1. Photographs of the body of the deceased, showing the nature of wounds received in his alleged murder and showing the position of the body when discovered, as well as conditions appearing at the scene of the crime, were properly admitted in evidence.
2, 3. Where an accused freely and voluntarily submits to examination by arresting officers and the prosecuting attorney, respecting his alleged crime, and there is no claim that he was influenced by force, threats, or hope of reward, it is not error on his trial to receive in evidence a signed transcript of such examination, containing incriminating admissions. The fact that after giving such a statement in response to questions by the assistant solicitor-general the accused made oath as to the truth of the same does not render it inadmissible, the test being whether it was freely and voluntarily made.
4. Whether the court erred in failing to give in charge the law as to the penalty in case the defendant should be found guilty of involuntary manslaughter (the general law on that question having been given) need not be determined, in view of the verdict of the jury finding the defendant guilty of murder, without recommendation.
5. Since under all the evidence and the defendant's statement the killing of the deceased occurred as one of the "incidental probable consequences" of the crime of robbery committed by the defendant, the court did not err in refusing the request to charge the jury with reference to a killing by misfortune or accident.
6. The evidence authorized the verdict.
During the trial, on the day following the introduction of the defendant's examination as conducted by the assistant solicitor-general, counsel for the defendant stated to the court: "Yesterday the State introduced in evidence the statement number 10. a thirty-page typewritten statement in question and answer from signed by the defendant. We didn't object at the time, but now at this time we do wish to object and move to rule it out, on the following grounds: The law of Georgia provides that the defendant in a criminal case shall not be sworn and is not subject to cross-examination. This statement which is in evidence and was read to the jury, while objection was not made at the time it was offered, still it is a contention of the defendant that by putting him under oath and questioning him at length as was done in this case, and then introducing that statement in evidence at his trial, seeks to avoid the law which provides that the defendant shall not be subject to cross-examination or sworn. On those grounds we move to rule out that statement which was admitted yesterday." Whereupon counsel for the State pointed out to the court that the defendant was not sworn before he was examined, and that answers to questions by him were not actually made by him under oath, but that the oath was subsequently *Page 281 administered to him, and at the same time proposed to withdraw from the jury that part of the statement which included the oath. The motion to exclude the statement in its entirety was overruled, and the solicitor was permitted to withdraw "the last part which shows that he did swear to the statement and that part of the statement which would show to the jury that he did swear to the statement," including the signature. Under direction of the court that part of the statement as it appeared was so covered that it could not be seen by the jury. At this point counsel for defendant moved that a mistrial be declared, on the ground that the part of the statement, including the oath later withdrawn, had been read in the presence of the jury. This motion was overruled. The defendant offered no evidence except his statement as follows: "These gentlemen have told you how Mr. Thomas met his death. They have told you, as near as I can remember, everything I told them. It is the truth as far as any one, as much as any one inflamed by liquor, could tell anything. God knows when I went to see him that night I went to get a recommendation from him and borrow some money to get me some work clothes with." Continuing, he outlined his activities, or some of them, as they transpired while they were in the clubhouse, all of which, except his claim that he had been drinking at the time, conformed to or was consistent with those conditions related by him to the assistant solicitor-general. He claimed he did not intend to hurt Thomas, and that "it was due to drinking so much liquor and beer that I don't know what I was doing," protesting that Thomas had been his friend and that he liked Thomas. "So . . I know I didn't go there to hurt him. I would not have done it for nothing if I had been at myself. So I remember that I was to tie him up on the golf course after I came to myself and saw what I had done, so I could get away. . . When I reached for the towel he grabbed for the pistol, and we started tussling over the pistol, and it went off; and that's the way he got shot. After I came to myself I was so excited I didn't know what to do. The first thing I thought of was to get away, and the next thing was to come and give up to the law, so I don't know." After other recitals, the statement concluded: "And all I can do now is ask you for mercy and to spare my life."
1. Grounds 1, 2, 3, and 4 of the amendment to the motion for new trial relate to admission and explanation of certain photographs *Page 282 of the body of the deceased as it was found lying in the woods, and photographs of the inside of the premises at the golf club where the robbery had taken place. All of these photographs were explained as representing either the scene of the premises when the robbery was first discovered, or as representing the position of the body of the deceased at the time it was discovered; and certain of the photographs showing the nature of the wound received by the deceased, the clothing worn by him, etc. There was no error in their admission over the objection that they tended to inflame the mind of the jury. The nature of the wound was important, because of the issue growing out of how the shot was fired, i. e., whether in a struggle over the gun or otherwise, and these photographs with accompanying explanation were properly admitted. See Franklin v. State, 69 Ga. 36 (47 Am. R. 748). The same is true of those photographs showing the position of the body of the deceased and its condition when found, as illustrative of the surroundings at the time of the homicide. Butler v. State, 142 Ga. 286 (9) (82 S.E. 654). The scene at the place of the robbery was important as corroborative of the alleged confession of the defendant and as illustrative of one of the steps connected with the alleged crime of murder with which the defendant stood charged. See cases already cited, and Johnson v. State, 158 Ga. 192 (123 S.E. 120); Shafer v. State, 193 Ga. 748 (7) (20 S.E.2d 34). No error is found in any of these grounds.
2. Ground 5 complains of a refusal by the court to exclude from evidence the transcript of the statement given by the defendant, under questioning of the assistant solicitor-general, to the court reporter, it having been previously admitted without objection. The basis for its exclusion as urged at the trial was that it violated that provision of law embodied in the Code, § 38-415, as follows: "In all criminal trials, the prisoner shall have the right to make to the court and jury such statement in the case as he may deem proper in his defense. It shall not be under oath, and shall have such force only as the jury may think right to give it. They may believe it in preference to the sworn testimony in the case. The prisoner shall not be compelled to answer any questions on cross-examination, should he think proper." It is contended that since the transcript shows that the defendant was examined as if he were a witness, and since he took an oath to the truthfulness of his statement, *Page 283 all of which was permitted to go to the jury, the provisions of this section were circumvented, and that the defendant was thus compelled to give incriminatory testimony against himself. See constitutional provision (Code, § 2-106) which is that "No person shall be compelled to give testimony tending in any manner to criminate himself." The test for the admission of confession of crime in this State is declared by § 38-411, as follows: "To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury." In Bryant v. State,191 Ga. 686 (13 S.E.2d 820), it was held: "`To make a confession admissible, it must have been made voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury.' Code, § 38-411. Before an alleged confession or incriminatory statement can properly be admitted in evidence, there must be a prima facie showing made by the State or elicited by the court that it was freely and voluntarily made, without hope of reward or fear of punishment. If such preliminary proof fails to meet the requirements of the statute, it is the duty of the court to exclude the confession from evidence. Where such proper preliminary proof has been made, the confession or incriminatory statement becomes admissible; but the defendant is privileged to attack such showing by proof that the confession or incriminatory statement was not voluntary or was made with hope of benefit or fear of injury. In that event, the question as to the voluntary character of the confession becomes one for the jury." The Code does not undertake to specify to whom it must have been made, in order to render it admissible against the accused, or under what circumstances. The test is, was it freely and voluntarily made? This seems to be the exclusive test that runs through all of the decisions we have examined on the subject. The fact that a confession or incriminating admission may have been made while the defendant was in custody of officers will not of itself justify its exclusion. Fuller v. State,109 Ga. 809 (35 S.E. 298); Whitworth v. State, 155 Ga. 395 (2) 400 (117 S.E. 450). It was held in Riley v. State,180 Ga. 869 (2) (181 S.E. 154), that "A confession reduced to writing and sworn to by accused is admissible in evidence, when made freely and voluntarily." In that case, as in the one now under consideration, the statement of the defendant was made before any oath had *Page 284 been administered. Authorities were cited for the proposition that such a confession was not rendered inadmissible by the mere fact that it was sworn to. This ruling was followed in Mincey v. State, 187 Ga. 281 (200 S.E. 144). In Claybourn v.State, 190 Ga. 861, 866 (11 S.E.2d 23), the accused was in the custody of arresting officers, and after being urged to tell the truth he stated to the officer: "I guess I'll tell you the truth. I didn't kill Dr. Lee, but I know something about it." Following this, in company with the officers the accused went to another town; and the solicitor-general, having been informed of his statement, warned him of the consequences of making any statement or confession, and then proceeded to receive from him a complete confession of the crime. It further appeared that he had been questioned at length by the officers who had told him at various times that they knew he was lying and knew of his guilt. While not approving the practice there shown to have been adopted, this court held that the confession made to the solicitor-general was not shown to have been influenced, and approved its admission as having been made without fear of injury or hope of reward, applying again the test whether or not it was made "freely and voluntarily," and citing an exhaustive collection of cases which have consistently adhered to that principle. Counsel for the plaintiff in error have cited Adams v. State, 129 Ga. 248 (58 S.E. 822, 17 L.R.A. (N.S.) 468, 12 Ann. Cas. 158), where the following ruling was made: "Where the body of a man apparently murdered was found by the roadside, and two persons were arrested and placed in jail charged with the murder, and were subsequently taken thence in custody before the coroner's jury summoned to hold an inquest on the body, and, without being informed that they were not compelled to testify, were sworn and examined as witness, not on their motion but on that of the coroner or the jury, in regard to the homicide and their connection with it, on a subsequent trial under an indictment charging them with murder, confessions or inculpatory statements elicited on their examination before the coroner's jury were not admissible against them." It is not contended by counsel that this ruling is controlling in the present case, but it is urged that it states principles which, if here properly applied, would call for a ruling that the confession in the instant case should have been excluded. We find nothing in that case to support the position of the plaintiff in error. On the contrary, in the opinion *Page 285 are to be found stated the principles above announced. The two persons in custody were called to appear at a coroner's inquiry, and, without being told that they were not compelled to testify, "were sworn and examined as witnesses." In Cicero v. State,54 Ga. 156, it was held that a committing magistrate had no right to examine the defendant for the purpose of entrapping him, and that statements made as a result of such examination could not thereafter be used against such defendant; but all of these cases definitely affirm and illustrate the rule that the whole object on this score in the administration of criminal justice in this State is to protect the accused from being forced to testify against himself. Our attention has also been called to the recent case of McNabb, 318 U.S. 332 (63 Sup. Ct. 608,87 L.ed. 579), as helpful to the plaintiff in error. Although not binding upon us in such a case as now under consideration, we have carefully examined that decision. The prosecution there involved was under Federal law in the Federal courts; and at the outset of the opinion Mr. Justice Frankfurter said: "We brought the case here because the petition for certiorari presented serious questions in the administration of Federal criminal justice," although the defendants who had been convicted of the killing of a Federal officer claimed to have been denied due process under the United States constitution. The prisoners in that case had not been taken before a United States commissioner, as required by Federal law, had been held for about fourteen hours, confined in a cell, given only small amounts of food, and were shown to be without experience and entirely ignorant. They were subjected to a grueling examination for more than two days; and in addition to this, at the time of their trial their counsel moved to exclude their confessions thus obtained, and sought to show that they had not been freely and voluntarily made, but that they had been made under coercion; and finally under those circumstances the opinion in the case, which held that the confessions were improperly admitted, did not put the holding upon the ground of coercion, but, as pointed out by Mr. Justice Reed in his dissenting opinion, "Now the court leaves undecided whether the present confessions are voluntary or involuntary, and declares that the confession must be excluded because, in addition to questioning the petitioners, the arresting officers failed promptly to take them before a committing magistrate. The court finds a basis for the declaration *Page 286 of this new rule of evidence in its supervisory authority over the administration of criminal justice." The dissenting Justice, as was true in our case of Claybourn v. State, supra, found nothing wrong with mere questioning of an accused while in custody, and preferred as the most reliable "the test of the voluntary character of the confession."
In the case now before us there is no evidence of any force or even of persuasion brought to bear on the defendant with reference to the statement made to the solicitor-general, or to any of the other statements attributed to him. We have very carefully examined the entire transcript of the assistant solicitor-general's examination, and find in it no note of hostility, or threat, or argument with the accused on the one hand, nor do we find any such thing as a leading question or suggestion by him on the other hand. The accused answered the question most freely, if we are to judge from the nature of what he said. While the examination of him was exhaustive in so far as detail was concerned, this, so far as we can determine, related only to the matter of thoroughness. Even at the time the motion was made to exclude the confession, it was not offered to prove or even contended that any force, threats, coercion, or reward might have been involved in procuring the statement. Then, to go a step further, the defendant, while having the full advice of counsel and the protection of the court, the full benefit of reflection while awaiting trial, and the benefit of the events of the trial itself, not only stated that the contents of the confession were true so far as he remembered, but repeated a considerable portion of the statement in conformity to what had been given to the court reporter under the questioning of the assistant solicitor-general. There is no suggestion in the record that the defendant was either ignorant or laboring under any fear. While this court has been most zealous in application of the rule that the confession to be admitted must have been freely and voluntarily made, we can find nothing in the present record but support for the circumspect care thrown about the prisoner; and the basis of this ground of the motion can not be accepted.
What has been said is without reference to the claim on the part of the State that other incriminating statements and confessions which are not here under attack were made to the officers having the accused in custody. *Page 287
3. The complaint made in ground 6 relates to the refusal of the court to declare a mistrial because the oath and signature of the defendant had been permitted, while before the court without objection, to be presented to the jury. As a matter of record the court instructed the jury that this portion of the statement had been withdrawn, and that no consideration should be given to it; but in any event it follows from what has been ruled in the foregoing division of this opinion that the complaint made in this ground is without merit.
4. In ground 7 complaint is made that the court in response to a request, having given in charge the law of involuntary manslaughter, failed to charge the jury what the penalty or punishment was for this crime, although the omitted charge was not embraced in counsel's request. Without intimating whether involuntary manslaughter might have been involved in the case, so as to require a charge on the subject to be given, since the jury in the verdict had the choice, under the law and the charge of the court, of fixing a sentence of either death or life imprisonment, and since they did not elect to reduce the sentence to life imprisonment, it seems, without regard to the merit of criticism in this ground, that the defendant could not have been harmed by such failure.
5. Ground 8 complains of the refusal by the court of a request to give the following in charge: "A person shall not be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect. I therefore charge you further that if you should find from the evidence in this case, including the defendant's statement, that he killed the person charged in the indictment, but that he did so by accident and with no intention so to do, it would be your duty to find him not guilty. I further charge you that if you have a reasonable doubt as to whether the killing was voluntary or accidental, it is your duty to give the defendant the benefit of the doubt and acquit him." The first sentence in this request was given in charge, and the complaint relates to the refusal to give the entire requested instruction. There was no error in so refusing. Under all of the evidence and the defendant's statement, the killing occurred in connection with and as one of the "incidental probable consequences" of the robbery in which the defendant was at the time engaged. His own statement *Page 288 was that the deceased was shot in struggling over the gun while he was trying to tie him up so that the defendant could get away.Gore v. State, 162 Ga. 267 (1a) (134 S.E. 36); Berryhill v. State, 151 Ga. 416 (107 S.E. 158); Lumpkin v. State,176 Ga. 446, 449 (168 S.E. 241).
No error appearing on any of the contentions made by the plaintiff in error, the judgment must be
Affirmed. All the Justices concur.