Johnson v. State

Evans, J.

1. The record contains evidence abundantly corroborative of Mrs. Hembreé that she was the victim of a rapist. We think the brief narrative of the facts developed on the trial, as contained in the foregoing summary of the evidence, was sufficient to support the finding of the jury that the defendant was the guilty person. There was evidence tending to discredit his alibi, and we will not interfere with a verdict, which has the approval of the trial judge, and which is sustained by the evidence, establishing not only that a rape was committed,, but also that the defendant is the guilty person.

2. The court refused to give the following instruction, requested in writing by the defendant’s counsel: “The charge made against the defendant in this case is in its nature a most heinous one, and well calculated to create a strong prejudice against the accused, and the attention of the jury is directed to the difficulty growing out of the nature of the usual circumstances of the crime in defending against the accusation of rape. So you, the jury, must carefully consider all the evidence in the case- and the law given you by the court in making your verdict.” This court has several times held that it is not ground for a new trial to give the jury a cautionary charge couched in appropriate language. McTyier v. State, 91 Ga. 254; Beck v. State, 76 Ga. 452. Though it may be proper to give a cautionary instruction in an appropriate case, the judge is not bound to do so. , In every'criminal case the judge is bound to give in charge to the jury the principles of law which of necessity, must be applied by them in reaching a correct conclusion upon the questions submitted for "their consideration. A prophylactic instruction has no tendency to elucidate the issue ; it only sounds a note of warning that the- jury must not be influenced in their deliberations because of the character of the particular crime, or the bias of popular opinion, or because of other foreign and extraneous matters. The charge given by the learned judge in this ease was full and impartial, and was expressed in language to which no exception is taken by counsel for the accused.

3. A new trial is asked because of newly-discovered evidence tending to establish a different alibi than that relied on at the trial. The newly-discovered evidence consists, in part, of a time book containing a list of the laborers and their time, kept by H. I. McDuffie, the foreman of the Southern Concrete Company, in the construction of a stable for the Southern Express 'Company at Mangum street, in the city of Atlanta, for the week embracing August 15; the entry in the book being that among the thirteen laborers who worked on the stables on Wednesday, August 15, the defendant worked nine and one half hours. Other newly-discovered evidence is the testimony of McDuffie, who.deposed, that he knew the defendant,' and that the defendant is the Will Johnson whose name appears on the book; that deponent kept the time book in the capacity of foreman of the Southern Eerro-Concrete Company, and it related to the laborers employed and the time they worked in the construction of the Southern Express Company’s stables, on the corner of Mangum and Chapel streets, in the city of Atlanta; that the entries were made by him at the time the work was being performed, and showed the number of hours worked by each laborer, and deponent believes the entries to be correct, as he was in the habit of making correct entries; that during the month of August a full day’s time upon that job of work consisted of ten hours a day, except Saturday, the work day beginning at 6:30 a. m. and ending at 5 p. m., with half an hour out for dinner. The deponent further deposed that he was a resident of Fayetteville, N. C., but at the time of making the affidavit he was located in Birmingham, Ala., in the employment of the Southern FerroConcrete Company, and expected to remain there for at least six months, but should it be necessary for him to attend a trial of the defendant he was willing to do so, and so far as he knew he would be able to do so. The evidence of E. B. Haywood is also claimed to be newly-discovered evidence. He deposed, by affidavit, that during the month of August, 19(36, he was employed by the Southern Ferro-Concrete Company in building the stables of the Southern Express Company, and was sub-foreman under H. I. McDuffie, who was foreman; that it was McDuffie’s duty to superintend the laborers, see that they worked, and ascertain the number of hours-worked by each laborer daily, by walking over the job and calling the roll, and checking each man to ascertain the time worked by each laborer, and then and there to make daily entries in the time book of the number of hours worked for such day by each laborer; that McDuffie performed these duties during August, 1906; that tlie entries in the time book are in McDuffie’s handwriting; that the book indicates that the defendant worked under McDuffie on the Southern Express Company’s stables nine and one-half hours on Wednesday, August 15, 1906; that McDuffie was in the habit of keeping correct time and making correct entries in the time book; that Will Johnson worked on this job under McDuffie; that the stables are two and one half miles from Battle ■Hill, which distance could not be made in less time than forty minutes by a man in an ordinary walk. Deponent resides in Atlanta. Affidavits were exhibited to support the credit of McDuffie and Haywood.

The defendant, Will Johnson, deposed by affidavit that he did not know of this evidence and could not have discovered it by the exercise of ordinary diligence. He further deposed as follows: “That being innocent of the crime with which he is charged, he had no personal knowledge of the date upon which or the time at. which the crime with which he is charged was actually committed;. that after his indictment he endeavored to refresh his recollection as to the 15th day of August, 1906, but on account of the lapse of time he had become confused and uncertain as to dates that long past, and he was unable to remember anything about that particular date or fix certainly in his -mind his whereabouts on said particular date, nor did he have any means of refreshing himself about said particular date; that his only knowledge of the time of the commission of the crime with which he is charged was his recollection of the time and circumstances under which he first heard of said crime; that he knew and was able to recall that he was at home sick on a certain day about the middle of August, and he remembered that on said day on which he was at home sick he then first heard .of the assault on Mrs. Hembree, and he thought the crime had been committed on the date that he had heard-of it, but he was unable to remember what day of the month he was at, home sick and on which he heard of said assault. Being unable to recall, by reference to date, the 15th day of August, 1906, he did not know whether he had worked on said date or not, and accordingly he informed his counsel that he was at home sick on the date on which Mrs. Hembree was assaulted, believing the date of the said assault to be identical with the date of his being at home sick. ' He did inform his counsel that at some time in August, the exact dates of which he could not recall, he worked for the concrete company on its stables, but he worked there only a few days, and he did not know the name or address of the foreman or the names and addresses of any of the men with whom he worked; he did not know that Henry I. McDuffie Jr. would testify that he worked on said date until since his conviction, and he did not know of the existence of any time book showing that he worked on said date until after his conviction; he did not withold anything touching his whereabouts on said date from his counsel, or any other matter touching his defense, but told all that he could, as best he could remember it.” Counsel for defendant deposed, by affidavit, that immediately after their appointment by the court to defend Will Johnson, they held an interview with him and inquired of his whereabouts from April, 1906, to the time of his arrest, informing the defendant that the indictment charged him with the crime of rape committed on August 15, 1906; that defendant gave them a number of places where he had worked during this period, including the express company’s stables on Mangum street. Deponents applied to the office of the Southern Ferro-Concrete Company and asked the officers and clerks there employed for information as to whether there was any witness who could testify that the defendant worked on August 15, 1906, or whether they had any pay-roll, time book, or other memoranda, which would show whether or not he worked for the company on that day. Deponents could find neither witness nor memoranda showing whether or not defendant worked for the company on that date. Deponents were led by defendant and his witnesses, Emma Glover and Mrs. Latham, to believe that defendant had not worked that day, but was at his home, and had no reason to believe that there was in existence any evidence that defendant was at work on that date. After the trial they received of Mr. Duncan, a clerk of the Southern Eerro-Concrete Company, a time book which had been discovered in Mobile, Alabama, in tbe possession of the wife of Ii. I. McDuffie, which is the book attached to the motion.

Newly-discovered evidence is not favored as a ground for granting a new trial. When a new trial is asked for on this ground it is incumbent on the movant to satisfy the court that the evidence has come to his knowledge since the trial; that it was owing to no want of diligence that it did not come sooner; that it is so material that it would probably produce a different verdict if the new trial be granted; that it is not cumulative, and is not of an impeaching character. Berry v. State, 10 Ga. 512; Civil Code, §§5480-1. Courts are not obliged to grant new trials on the ground of newly-discovered evidence, unless they are reasonably convinced that on another trial there would probably be a different verdict. Young v. State, 56 Ga. 403. Where the defendant has been given a fair trial and the verdict is supported by the evidence,'it should not lightly be set aside and a new trial ordered because of facts subsequently discovered which might possibly produce a different result. The reviewing court should give to the consideration of the evidence alleged to-have been newly discovered the most careful scrutiny, and, even if the utmost diligence has been shown, a new trial should not be granted on this ground unless the newly-discovered evidence raises a strong presumption that a different result would probably be readied upon a second trial. In some jurisdictions, where the defendant is permitted to testify in his own behalf, it has been held that a new trial should not be granted where the newly-discovered evidence is inconsistent with the testimony of the defendant on the former trial. People v. Hovey, 1. N. Y. Cr. R. 324; People v. McCauley, 45 Cal. 146. A .new trial will not usually be granted where the newly-discovered evidence supports a defense which is entirely different from or inconsistent with that interposed at the trial. 12 Cyc. 735. i! has been held that a new trial will not be granted upon newly-discovered evidence tending to establish the defendant’s insanity, where he set up a different defense on the trial. Cooper v. State, 120 Ind. 377; People v. Freeman, 28 Pae. Pep. 261. It is a sound rule which, prohibits a defendant from carving his defense into piecemeal and bringing in new defenses after verdict. The losing party, whether the case be civil or criminal, should never be allowed to trifle with the court by withholding one defense and relying upon it as a means of securing a new trial after an adverse verdict. In such a case, if the facts authorize- the conclusion that the defendant knew of the omitted defense, or had information which would lead to the discovery of the facts if the quest for them had been prosecuted with proper diligence, a new trial should never be granted because of such so called newly-discovered evidence.

The defendant was put upon notice that the date of the alleged assault was August 15. This was the date alleged in the indictment and insisted upon by the prosecution on the trial. He offered evidence tending to establish an alibi on that day. There were several facts relied upon, both by him and his witnesses, to fix the date as Wednesday, August 15. After the-trial he makes the discovery that he was mistaken as to his whereabouts' on August 15, as stated on his trial, and attempts to show that he was in an entirely different place. His counsel show that they made an attempt at the office of the Southern Concrete Company to ascertain at what time he worked for that company during a period embracing the time the assault is alleged to have taken place. No reason is disclosed why the defendant should not have known his fellow laborers, and yet he made no effort to have them subpoenaed. It might be questionable whether he exercised proper diligence; but waiving the question of diligence, is the newly-discovered evidence so- convincing or conclusive in its nature, that a different result would probably be had if a new trial is granted? The witness by whom he expects to establish his new alibi relies upon contemporaneous entries in a book made by him, and from which he infers that the defendant was at work at the stables of the Southern Express Company at seven o’clock. He does not remember and does not undertake to swear positively that the defendant was at the stables as early as seven o’clock on the morning of the 15th of August. It is his inference, from entries on the time book, that because of -his superintendence of the hands and seeing that they were kept at work, and the work hours at that time were ten, beginning at six-thirty o’clock in the morning and closing at five o’clock in the afternoon, with half an hour intermission for dinner, the defendant began work at seven o’clock. The sub-foreman deposes that the stables were a forty-minutes walk from Battle Hill. The evidence on the trial discloses that Battle Hill was nearly three quarters of a mile from the place of the assault. The husband of the victim testified that he was at work in a field half a mile from his house when he received'information that his wife had been assaulted, and repaired immediately to his house, reaching his home “something near seven o’clock.” The evidence shows that the stables were almost in the heart of the populous city of Atlanta. It does not appear whether or not there was any means of rapid transit which might have been accessible to the accused, nor does it appear that the standards of time relied on by the witnesses were the same. Mrs. Hembree was the wife of a farmer, and McDuffie the foreman of a contractor doing work in the city. It may have 'been that Mrs. Hembree referred to “sun time,” and McDuffie to “railroad time.” It is a matter of common knowledge that there is a difference between these standards. It is but right and proper to require a defendant who is seeking a new trial on the ground of alibi to establish a defense which is perfect. If it is not, and is only relied upon to cast suspicion upon the State’s evidence, it comes within the rule that the evidence is impeaching in its character. To take the defense of alibi out of this rule, the range of evidence in respect to time and place must be such as reasonably to exclude the possibility of the defendant’s presence at the scene of the crime at the time of its commission. We do not think that the range of the newly-discovered evidence establishes a complete alibi for the defendant; and when taken in connection with the fact that the alibi set up by the newly-discovered evidence contradicts the alibi relied on by the defendant at the trial, we can not say that the newly-discovered evidence would probably produce a different verdict.

Judgment affirmed.

Fish, C. J., absent. Lumpkin and Beck, JJ., concur. Cobb, P. J., and Atkinson, J., dissent.