Opinion
14645.
OCTOBER 7, 1943. REHEARING DENIED NOVEMBER 12, 1943.
Murder. Before Judge Hawkins. Forsyth superior court. June 15, 1943.
R. E. Kirby and Howell Brooke, for plaintiff in error. T. Grady Head, attorney-general, H. G. Vandiviere, solicitor-general, Wood Spence, and L. C. Groves, assistant attorney-general, contra.
On rehearing motion, Paul Crutchfield, J. R. Venable, J. L. Barwick.
1. In charging the jury in a murder case on their right to recommend life imprisonment in the event they found the accused guilty, and in giving them the correct form of the several possible verdicts they could render, it was no cause for the grant of a new trial that the judge by way of explanation used the expression, "If you find the defendant guilty, without a recommendation, the form of your verdict would be, `We, the jury, find the defendant [naming the one on trial] guilty;'" or that he used the word "desire" in the instruction. "If you should convict the defendant and desire to recommend him to the mercy of the court, the form of your verdict would be," etc.
2. A ground of a motion for new trial is without merit which asserts that it was error to instruct the jury that alleged dying declarations are not to be considered unless the jury is satisfied from the evidence that such declarations were made when the declarant was in the article of death; the attack on this instruction being that the judge did not charge that before the jury were authorized to consider any alleged dying statements they should first determine the truthfulness thereof; an examination of the entire charge disclosing that the latter principle was clearly stated to the jury.
3. Since the facts necessary to be shown before declarations are admissible as dying declarations may be proved by circumstances and by witnesses other than those testifying to such declarations, it was not erroneous, in view of the entire evidence, to admit the testimony of a witness as to such declarations, although her testimony taken alone did not show that at the time the declarant realized that he was in fact in the article of death.
4. There was no error in refusing a continuance on the ground that the accused was in court in the custody of a United States marshal, produced by virtue of a writ of habeas corpus, that he came into court in that custody and would so remain during the trial, and that if it was necessary to confer with the accused at any time during the trial such conference would have to be in the presence of the marshal; this ground containing the admission that counsel had had the opportunity to confer with the accused in the presence of the marshal, the court assuring counsel that he would have an opportunity to confer with his client whenever he so desired. Nor was it error to refuse to declare a mistrial on similar grounds; or to refuse a new trial on motion based on the additional fact that after the jury had entered upon their deliberations the accused, without his consent or the consent of his counsel. was removed from the county of his trial to the Federal penitentiary in Atlanta, being by the marshal returned into the county of his trial before the jury returned their verdict.
5. The evidence supported the verdict, and no reason appears why the denial of a new trial should not be affirmed.
No. 14645. OCTOBER 7, 1943. REHEARING DENIED NOVEMBER 12, 1943.
Walter Fowler was convicted of murder of Roper, without a recommendation. The first special ground of the motion for new trial complains of the court's instruction to the jury as to the form of several possible verdicts they might render, and especially of the instruction that should the jury find the defendant guilty, and should desire to recommend him to the mercy of the court, the form of their verdict should be, "We, the jury, find the defendant guilty, and recommend him to the mercy of the court;" special complaint being made as to the use of the word "desire."
The second ground complains of the refusal to grant a continuance on motion based on the fact that the accused was in the custody of the U.S. marshal, which fact made it impossible, as contended, for counsel to confer with their client except in the presence of the marshal; the fact of his being in the custody of the marshal implying, as contended, that he had been convicted or was under arrest, and this would put his character in evidence.
The third ground complains of the refusal to declare a mistrial for the reasons assigned in the second ground.
The fourth ground is as follows: On the 5th day of May, 1943, after argument of counsel and charge of the court, movant's case was submitted to the jury somewhere around the hour of 8 p. m. About the hour of 11 p. m. the jury reported they were unable to agree. The court instructed the sheriff to see if he could find some suitable place in which the jury would be comfortable for the rest of the night. The sheriff reported that he could find no such place. Thereupon, by consent of counsel for the State and the defendant, and in the defendant's presence, the court instructed the jury that they might come into the main court-room for the rest of the night and make themselves as comfortable as they could, and that every one else would be excluded from the court-room, which was done. Movant insists, as shown by the affidavit of one of the jurors, that the jury continued to consider the case until 12 o'clock that night. When the judge cleared the court-room and allowed the jury to occupy the same, the United States marshal immediately removed the defendant, without his consent and without the consent of his counsel, from the County of Forsyth and carried him and incarcerated him in the Federal penitentiary in Atlanta, but returned him to Forsyth County on the following morning at 8:45 o'clock. The jury began considering said case and reached a verdict about 8 o'clock that morning, after the accused was carried to Atlanta and before he was returned to Forsyth County. The jury had made a verdict, but had not returned it into court, and did not return it until after the accused was returned to Forsyth County. Movant contends that he had the right to be present at all stages of his trial, and insists that the action of the court in permitting the jury to consider the case during his absence from the county deprived him of his legal and constitutional right to be present at all stages of his trial.
In the fifth ground it is complained that the following charge of the court was hurtful and prejudicial: "Alleged dying declarations must not be considered by the jury unless they are satisfied from the evidence that such declarations were made when the declarant was in the article of death, that is, in a dying condition, and the statement was made with knowledge on his part of his dying condition and while conscious that he was in a dying condition. I charge you further, however, that it is not necessary for the person whose statements are sought to be introduced should express himself as believing that he was in a dying condition. Consciousness of his condition may be inferred from the nature of his wounds, or from other circumstances appearing from the evidence."
In the sixth ground it is contended that it was error to permit the jury to consider as dying declarations statements made by the person for whose murder the defendant was indicted, tried, and convicted, — statements made in the presence of his nurse, Miss Hyde, as testified to by her; the contention being that it was not shown by this testimony that the declarant realized that he was going to die. Miss Hyde testified, that two days before Mr. Roper died he regained consciousness for three hours; that he asked for water, and wanted to sit up and drink it, and by the assistance of his sons she permitted him to be raised, and he drank it; that he talked and said some one was trying to kill him. When his son asked who it was, he said Watson and Fowler. He said, "I put up a fight, but they got me." When asked whether or not, in her opinion as a graduate nurse, he realized his condition, she testified: "He didn't show it. He didn't say anything or do anything to show that he thought he was going to die. And none of the family or the doctor told him he was going to die. . . He lived two days after that. But no one even thought he would come out from under it, but he did come out from under it. But he did not at that time, that I know of, think that he was really going to live. He didn't say." The court admitted the evidence to be considered as a dying declaration, on condition that it be connected up with other testimony; and there was other testimony which did so connect it. A number of witnesses placed the accused near the scene of the crime. Three witnesses testified as to a dying declaration by Roper, in which he said that the accused and another person killed him. There was testimony that shortly after the homicide the accused stated where the pocket-book of the deceased could be found, and it was found at the place indicated. There was evidence authorizing the jury to find that after the homicide the accused hid part of outside apparel worn by him earlier in the day.
In his statement at the trial the defendant admitted going to a store with Watson (the other person charged with the crime of killing Roper). He further stated: While there Watson "reached over behind the counter and got a pistol, and put it in his pocket." Fowler spent that night with Watson. Two days later Watson said to Fowler that he (Watson) knew an old man and woman he was going to rob. A day or two later Watson and Fowler went to Roper's store. Watson had the pistol in his pocket. He hit Roper, telling Fowler to watch the door. Watson took the money from Roper, and later gave Fowler a roll of money and the pistol.
Grounds 3 and 5 of the motion for new trial, set forth in the preceding statement, will be considered together; and since they deal with a situation that has now for the first time confronted this court, some exposition will be made of the rulings thereon announced in the headnotes. The gist of the contention of counsel concerning these grounds is that under the facts as presented the defendant could not have had a trial by an impartial jury, as guaranteed to him under the constitution. Code, § 2-105. This contention rests upon the mere fact that the prisoner was brought into court by the United States marshal and remained in his custody throughout the trial. Reliance is placed on the fact that under our law the prisoner shall not be brought into court, for arraignment or trial, tied, bound, or fettered, unless the court shall deem it necessary during the arraignment or trial. Code, § 27-1401. It does not appear, however, that the plaintiff in error was brought into court bound and fettered. His counsel cites a long list of authorities holding that the refusal to permit the accused to consult counsel except in the presence of the marshal was a violation of the constitutional provision giving him the benefit of counsel. The answer to this is that the record is silent as to any request on the part of the prisoner or his counsel that a consultation be permitted between the two in the absence of the officer. Eliminating these two contentions by reason of the fact that there is no predicate on which to rest them, we have the naked question whether the mere fact that the accused is in the court in the custody of the U.S. marshal, who brings him from a Federal penitentiary, is a sufficient reason to grant him a new trial. In Ponzi v. Fessenden, 258 U.S. 254 ( 42 Sup. Ct. 309, 66 L. ed. 607), a great judge has written this:
"We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in common territory. It would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure. One accused of crime has a right to a full and fair trial according to the law of the government whose sovereignty he is alleged to have offended, but he has no more than that. He should not be permitted to use the machinery of one sovereignty to obstruct his trial in the courts of the other, unless the necessary operation of such machinery prevents his having a fair trial. He may not complain if one sovereignty waives its strict right to exclusive custody of him for vindication of its laws in order that the other may also subject him to conviction of crime against it. In re Andrews, 236 Fed. 300; United States v. Marrin, 227 Fed. 314. Such a waiver is a matter that addresses itself solely to the discretion of the sovereignty making it and of its representatives with power to grant it."
In that decision the Supreme Court of the United States quoted approvingly the statement made by the Supreme Court of Maryland in Rigor v. State, 101 Md. 465, 471 ( 61 A. 631): "The penitentiary is not a place of sanctuary; and an incarcerated convict ought not to enjoy an immunity from trial merely because he is undergoing punishment on some other earlier judgment of guilt." In the Ponzi case the U.S. Supreme Court said: "The prisoner when produced in the superior court [of a state] in compliance with its writ is personally present. He has full opportunity to make his defense exactly as if he were brought before the court by its own officer. State v. Wilson, 38 Conn. 126, 136." It was also said in the Ponzi case: "Delay in the trial of accused persons greatly aids the guilty to escape because witnesses disappear, their memory becomes less accurate and time lessens the vigor of officials charged with the duty of prosecution. If a plea of guilty and imprisonment for one offense is to postpone trial on many others, it furnishes the criminal an opportunity to avoid the full expiation of his crimes. These considerations have led most courts to take the same view as that expressed in the case just cited."
It appears from the record that the prisoner was in court under a writ of habeas corpus. While unusual, this affords no reason why the trial should not have proceeded, as, so far as this record shows, it did proceed in an orderly and legal manner. There is no merit in either of the second or third special grounds of the motion.
The fourth ground remains to be considered. The basis of this is that while the jury was considering the case, and at eleven o'clock p. m. had reported their inability to agree, and the court had made provision for their comfort for the rest of the night, the marshal, without the consent of the accused or his counsel, removed the prisoner from the County of Forsyth to the Federal penitentiary in Atlanta. He was returned, however, before the jury returned a verdict, and was present when that occurred. It has been said that the rule that one on trial for a criminal offense is entitled to be personally present at every stage of the proceedings is too well settled to require argument or authority, and that the rule is so well recognized by the standard textwriters and by judicial decisions in an almost unbroken line of cases that its existence can not now be seriously called into question. Tiller v. State, 96 Ga. 430 ( 23 S.E. 825). See Hopson v. State, 116 Ga. 90 ( 42 S.E. 412). This right, however, does not mean that he must be in court while the jury is deliberating. This is not a "stage of the proceedings" as that phrase is used in the authorities referred to above. See Holbrooks v. State, 48 Ga. App. 850 ( 174 S.E. 168). We know of no law, nor have we been cited to any, that declares that it is essential to the legality of a trial that the prisoner be kept in the county while the jury is deliberating on his case. Suppose, as suggested by counsel for the State, that the jail of the county where the accused is being tried should be destroyed, or that this county has no jail. No injury is shown to have resulted from his removal from the county while the jury were deliberating; and the record is silent that any request was ever made that he be allowed to remain in the county. The record shows, as previously indicated, that the accused — at the time a prisoner in the Federal penitentiary — was produced in court by virtue of a writ of habeas corpus, and remained during the trial in the custody of the United States marshal, who was thus acting in accordance with the order he had received from his superiors. It was never contemplated that, when a prisoner of the United States is produced in a State court to stand trial on a charge of violating the law of that jurisdiction, the Federal jurisdiction should absolutely surrender its custody. All that the United States did was to waive its strict right to exclusive custody in so far as it was necessary to afford the State an opportunity to vindicate its own laws. It was not necessary, in order to accomplish this result, that the prisoner remain in Forsyth County while the jury was deliberating on his case. He was present when the verdict was rendered.
There is no merit in the fourth special ground of the motion. No error of law was committed. The evidence sustained the verdict.
Judgment affirmed. All the Justices concur.