Jackson, Chief Justice.
1. This evidence is abundant to support the verdict ot guilty. It seems to us to demand it, and to demand it without those confessions which are in the slightest degree doubtful of admissibility.
Vail was murdered in a room belonging to the street car stables in Augusta, where he kept the money for delivery the next morning for change to the drivers. He was murdered at night. Defendant, not then employed by the company, but having been discharged a short time before, came next day to the scene where the murder was committed,-and being looked at suspiciously, jumped upon a dray moving off and was gone. A policeman got after him while on the dray, and he jumped off and escaped to Virginia, where he was arrested and brought back to Georgia. Before he left Augusta, he exchanged a very large number of nickels and small pieces of silver, just such as deceased would have had in the drawer of which he had charge. He gave as a reason for having so much little money — some eight or ten dollars or more m nickels — at the time he made the exchange for bills with some of the stores, that he peddled chickens. His statement on trial was, that a man from South Carolina got him to change the nickels for the bills, because he, defendant, knew Augusta so well. In statements to others, he said white men made him kill deceased, and gave him the money taken from the drawer to be exchanged. The false statements, the possession of the money, the jumping hurriedly on the dray when suspected, the jumping off when the policeman was after him, the running off to Virginia — away off from his home in Augusta — point to him, irresistibly carrying conviction of his guilt, beyond any reasonable hypothesis that the evidence could establish or probably suggest, that somebody else committed the terrible crime. Vail was knocked in the head, kerosene poured over the corpse so as to burn him black, doubtless with the intention to burn [479]*479up the premises and escape detection, and off to Virginia this defendant made his escape, while everybody else remained quietly at home.
2. The third and fourth grounds of the motion allege the illegal admission of confessions in the words following:
(3.) Because the court erred in admitting, over the objections of defendant’s counsel, the testimony of S. G. Byers, a witness for the State, as to a confession of the defendant, made in his presence, as disclosed in the brief of evidence in the record of this case, to which leave of reference is prayed, on the ground that said alleged confession was not freely and voluntarily made, as appears by the testimony of said Byers touching said alleged confession.
(4.) Because the court erred in admitting, over the objections of defendant’s counsel, the testimony of E. B. Hook, a witness for the State, as to a confession made by the defendant in his, the said Hook’s, presence, while confined in jail, as disclosed in the brief of evidence in the record of this case, to which leave of reference is prayed, on the ground that said alleged confession was not freely and voluntarily made, as appears by the testimony of said Hook touching said alleged confession.
The assignment of error in the bill of exceptions is, that the court erred in refusing the new trial on the several grounds of the motion for a new trial. It is a good assignment of error if the ground of the motion be complete in itself; it is not, unless it be so complete in itself. These grounds are not complete in themselves, but to see what the confessions were and what evidence went wrongfully to the jury, and thus whether the defendant was hurt or not by the admission of it over objections of counsel, it is necessary to inspect the brief of evidence. The 4251st section of the code demands that the decision complained of shall be plainly specified in the bill of exceptions; that is to say, the ground of exception and assignment of error must of itself show what is the error complained of. If these grounds of the motion had set out the facts rejected [480]*480and the facts that transpired before the court, then the assignment of error would be good, for it assigns error on that ground of the motion, and this need not go out of the motion approved by the court below to ascertain the error complained of; but even to call, to aid the motion and assignment, the brief of evidence before the jury would be insufficient; to invoke, however, as in this case is done, what transpired before the court on the question of admitting the confessions to the jury, and in their absence, is no part of the brief of evidence, and therefore no part of the record, and therefore evidence of nothing. It is a brief of evidence before the jury that the statute allows to come before this court as part of the record; it is not conversation between the court and counsel, nor is it what witnesses said before the court for his own separate action, and not for the jury even to hear.
3. But even were we allowed by the master of us all — the law — to hunt up what is scattered in the brief of evidence to find a specification there which ought to be in the motion for a new trial, and the error assigned on it; or worse, if the law allowed us to consider testimony before the court alone, and conversation about it between court and counsel, improperly and unlawfully interjected in the brief of evidence, we should encounter nothing authorizing us to disturb the verdict. There is no pretence of threat in any of the statements of witnesses to the prisoner, nor is there hope of reward. Something was said to him by the Virginia employer, to the effect that he had been a good worker, and he wished to help him, and afterwards that it might be better for him to tell him about it, but he was left perfectly free of either hope or fear in saying what he did, and afterwards, in Augusta, something was said to the effect that he had better tell the truth there, as witnesses from Virginia might be brought to tell what he had said there, but, if he said anything, to tell the truth anyway; and all this was enough to let the jury have it before them, and not absolutely exclude it.
[481]*481Moreover, other inconsistent confessions were made convicting him of the murder, but wholly unlike any he had made before, and which could not have been at all consequential on the two above considered. It is enough, however, that no legal assignment of error is before us.
4. The fifth and sixth grounds are in reference to the charge of the court on the right of punishment by the jury of the defendant, uncontrolled by the court, and are as follows:
(5.) Because the court erred in charging the jury as follows: “The punishment of murder shall be death, but may be confinement in the penitentiary for life in the following cases: ” (Here the court read §4323 of the revised code), and added, “So you see that in all cases'of murder, convictions of murder, whether the verdict is based upon circumstantial testimony or not, the jury may recommend the prisoner to the mercy of the court, and if you recommend him to the mercy of court, this court is obliged to respect that recommendation, and the punishment will then be, instead of death, confinement in the penitentiary for life. :It is for you to say first whether the testimony satisfies you, beyond a reasonable doubt, as to the guilt of the defendant;, df it does, it is your duty to convict.
Free access — add to your briefcase to read the full text and ask questions with AI
Jackson, Chief Justice.
1. This evidence is abundant to support the verdict ot guilty. It seems to us to demand it, and to demand it without those confessions which are in the slightest degree doubtful of admissibility.
Vail was murdered in a room belonging to the street car stables in Augusta, where he kept the money for delivery the next morning for change to the drivers. He was murdered at night. Defendant, not then employed by the company, but having been discharged a short time before, came next day to the scene where the murder was committed,-and being looked at suspiciously, jumped upon a dray moving off and was gone. A policeman got after him while on the dray, and he jumped off and escaped to Virginia, where he was arrested and brought back to Georgia. Before he left Augusta, he exchanged a very large number of nickels and small pieces of silver, just such as deceased would have had in the drawer of which he had charge. He gave as a reason for having so much little money — some eight or ten dollars or more m nickels — at the time he made the exchange for bills with some of the stores, that he peddled chickens. His statement on trial was, that a man from South Carolina got him to change the nickels for the bills, because he, defendant, knew Augusta so well. In statements to others, he said white men made him kill deceased, and gave him the money taken from the drawer to be exchanged. The false statements, the possession of the money, the jumping hurriedly on the dray when suspected, the jumping off when the policeman was after him, the running off to Virginia — away off from his home in Augusta — point to him, irresistibly carrying conviction of his guilt, beyond any reasonable hypothesis that the evidence could establish or probably suggest, that somebody else committed the terrible crime. Vail was knocked in the head, kerosene poured over the corpse so as to burn him black, doubtless with the intention to burn [479]*479up the premises and escape detection, and off to Virginia this defendant made his escape, while everybody else remained quietly at home.
2. The third and fourth grounds of the motion allege the illegal admission of confessions in the words following:
(3.) Because the court erred in admitting, over the objections of defendant’s counsel, the testimony of S. G. Byers, a witness for the State, as to a confession of the defendant, made in his presence, as disclosed in the brief of evidence in the record of this case, to which leave of reference is prayed, on the ground that said alleged confession was not freely and voluntarily made, as appears by the testimony of said Byers touching said alleged confession.
(4.) Because the court erred in admitting, over the objections of defendant’s counsel, the testimony of E. B. Hook, a witness for the State, as to a confession made by the defendant in his, the said Hook’s, presence, while confined in jail, as disclosed in the brief of evidence in the record of this case, to which leave of reference is prayed, on the ground that said alleged confession was not freely and voluntarily made, as appears by the testimony of said Hook touching said alleged confession.
The assignment of error in the bill of exceptions is, that the court erred in refusing the new trial on the several grounds of the motion for a new trial. It is a good assignment of error if the ground of the motion be complete in itself; it is not, unless it be so complete in itself. These grounds are not complete in themselves, but to see what the confessions were and what evidence went wrongfully to the jury, and thus whether the defendant was hurt or not by the admission of it over objections of counsel, it is necessary to inspect the brief of evidence. The 4251st section of the code demands that the decision complained of shall be plainly specified in the bill of exceptions; that is to say, the ground of exception and assignment of error must of itself show what is the error complained of. If these grounds of the motion had set out the facts rejected [480]*480and the facts that transpired before the court, then the assignment of error would be good, for it assigns error on that ground of the motion, and this need not go out of the motion approved by the court below to ascertain the error complained of; but even to call, to aid the motion and assignment, the brief of evidence before the jury would be insufficient; to invoke, however, as in this case is done, what transpired before the court on the question of admitting the confessions to the jury, and in their absence, is no part of the brief of evidence, and therefore no part of the record, and therefore evidence of nothing. It is a brief of evidence before the jury that the statute allows to come before this court as part of the record; it is not conversation between the court and counsel, nor is it what witnesses said before the court for his own separate action, and not for the jury even to hear.
3. But even were we allowed by the master of us all — the law — to hunt up what is scattered in the brief of evidence to find a specification there which ought to be in the motion for a new trial, and the error assigned on it; or worse, if the law allowed us to consider testimony before the court alone, and conversation about it between court and counsel, improperly and unlawfully interjected in the brief of evidence, we should encounter nothing authorizing us to disturb the verdict. There is no pretence of threat in any of the statements of witnesses to the prisoner, nor is there hope of reward. Something was said to him by the Virginia employer, to the effect that he had been a good worker, and he wished to help him, and afterwards that it might be better for him to tell him about it, but he was left perfectly free of either hope or fear in saying what he did, and afterwards, in Augusta, something was said to the effect that he had better tell the truth there, as witnesses from Virginia might be brought to tell what he had said there, but, if he said anything, to tell the truth anyway; and all this was enough to let the jury have it before them, and not absolutely exclude it.
[481]*481Moreover, other inconsistent confessions were made convicting him of the murder, but wholly unlike any he had made before, and which could not have been at all consequential on the two above considered. It is enough, however, that no legal assignment of error is before us.
4. The fifth and sixth grounds are in reference to the charge of the court on the right of punishment by the jury of the defendant, uncontrolled by the court, and are as follows:
(5.) Because the court erred in charging the jury as follows: “The punishment of murder shall be death, but may be confinement in the penitentiary for life in the following cases: ” (Here the court read §4323 of the revised code), and added, “So you see that in all cases'of murder, convictions of murder, whether the verdict is based upon circumstantial testimony or not, the jury may recommend the prisoner to the mercy of the court, and if you recommend him to the mercy of court, this court is obliged to respect that recommendation, and the punishment will then be, instead of death, confinement in the penitentiary for life. :It is for you to say first whether the testimony satisfies you, beyond a reasonable doubt, as to the guilt of the defendant;, df it does, it is your duty to convict. Then if you convict him, it is for you' to say whether the facts of this case, whether all the circumstances, warrant you in recommending him to the mercy of the court.” — Defendant claiming-that by the use of said language the court limited the jury;, in the exercise of their right to recommend, by the facts and circumstances of the case; that the use of said language was equivalent to charging the jury that their right to recommend depended upon the facts and circumstances of the case, whereas, under the law; the right to recommend in any case is merely an arbitrary right and privilege of the jury, without regard to the facts and circumstances.
(6.) Because the court erred as follows : After the jury •had been out in their room several hours without being able to agree, they were brought into court, and the court, [482]*482on being informed that they had not agreed and wished to be further instructed, asked them what the difficulty was. One of the jurors replied that it was the question of recommendation, and that the jury desired to know whether, in the event they, the jury, failed to recommend to mercy, the judge had any discretion himself in fixing the punishment. To which inquiry the judge replied as follows: “ That question is entirely with you, gentlemen of the jury. If you find the defendant guilty, the law leaves no alternative to the court but to sentence him td death. It is for you to say from the evidence, .from all the facts and circumstances of the case, whether, in the event you find him guilty, you are warranted in recommending him to imprisonment in the penitentiary for life; and if you render a verdict with that recommendation, the court is bound to sentence him accordingly.” — The error complained of being, in the opinion of defendant, that the language used in the supplementary charge again limited the jury in their right to recommend by the facts and circumstances of this case, and that there was a repetition of the error assigned in the fifth and foregoing assignments of error.'
We think that the error herein assigned on these two grounds of the motion amounts to nothing, because the issue of law made is settled by the case of Inman vs. The State, 72 Ga. 269. That case covers this. The distinction taken there between that case and Hill vs. The State, 72 Ga. 131, also exists here. The case of Johnson vs. The State, 58 Ga. 491, relied on so strongly by the able counsel for plaintiff in error, is for the offence of cattle stealing, and ■arose under a different statute in respect to the power of the jury on.the subject of punishment. Moreover the charge in that case confined the right of the jury in this, that the court charged that if there were no circumstances to justify yo.u in recommending him to the mercy of the court, • “ why then you ought not to do it.” Such a charge as that would be error under the statute in respect to pun[483]*483ishment for murder, because it said to the jury that they ought not to recommend to mercy unless such and such was proved.
5. That the charge was substantially repeated when the jury came into court and stated that their trouble to agree arose out of that difficulty in regard to the respective powers of themselves and the court, cannot be error. The court told them it had none, but the jury had all; “it is for you to say, from the evidence, from all the facts and circumstances of the case, in the event you find him guilty, whether you are warranted in recommending him to imprisonment in the penitentiary for life, and if you render a verdict with that recommendation, the court is bound to sentence him accordingly.”
This is what he should have instructed them when they asked him about that trouble on their minds. The responsibility was upon them, and they should have known it.
Judgment affirmed.