Story v. State

Beck, J.

(After stating the foregoing facts.)

1. In the motion for a new trial it is complained that at the conclusion of the defendant’s statement the court refused to permit his counsel the privilege of calling his attention to a material omission from his statement, to wit: “I told Mr. Hargett that I killed Cherry; but I was so scared, as I thought the negroes were going to mob me, that I didn’t know what I was doing or what I said.” Counsel insisted that “it was discretionary with the court to permit defendant’s counsel to call his attention to a material omission from his statement. The court refused to exercise this discretion, saying that the court had no discretion in the matter, that to do so would be reversible error, that the law was mandatory upon him, and that he (the court) had no such discretion.” To this ruling the movant excepted. The court certified this ground of the motion with the following explanatory note: “The request of counsel for accused, stated in the 4th ground, was a whispered conversation with the court during the trial, not heard by State’s counsel; and this is. here stated on motion of latter.” Hnder the circumstances this court will not reverse the judgment for the failure to permit counsel to make the suggestion in reference to the statement of the accused, as requested. True, it was in the discretion of the court, had a request or a motion been duly made, to permit the counsel to make a suggestion to the defendant in reference to his statement, so as to call his attention to any material omission therefrom. But, in order to invoke a ruling from the court, counsel should have made a request or motion in open court and in the hearing of the State’s counsel, so that the latter might have opposed the motion had he desired to do so, or have consented to the request if he thought that was proper. But a. request made of a court in a whispered conversation, though the judge was at that time on the bench, can not be treated as a motion made in open court; and the reply that the court may have made to a request made in such whispered conversation can not be made the subject of exception in a motion for a new trial. The precise question which we have before us, that is, whether or not this court will pass upon exceptions taken to a statement on announcement made by a judge in a private conversation, denying a request urged in such conversation, has already been passed upon by this court. In the case of Grant v. State, 97 Ga. 789 (25 S. E. 399), it was said: “1. Where, on a criminal trial, the accused introduced no evidence, and thus obtained the right to open and conclude the argument, and one of two. counsel representing him thereupon addressed the jury, consuming less time than that allowed by the rules of court, and the solicitor-general, without having previously given notice of any such intention, then announced that there would be no argument for the State, it was the duty of the counsel for the accused, if they desired that one of them should continue to address the jury for the remainder of the time allowed for argument under the rules, to make in open court a motion or request to this effect to the presiding judge and obtain from him a ruling or decision thereon. 2. Where this was not done, but the counsel for the accused who had not addressed the jury merely stated to the judge in private conversation that he desired to argue the case, and wished the court to understand that he insisted upon so doing as a legal right of the accused, nothing stated by the judge in that private conversation is proper subject-matter for review by this court.” But if we could treat the refusal of the judge to exercise the discretion which the law confers upon him in the matter of allowing a suggestion to be made or a question to be propounded to the defendant, calling attention to an omission from his statement, as a ruling made in open court, and should hold that he erred in refusing to exercise the discretion, or in holding that he had no discretion upon the subject, we would not, under the circumstances, grant a new trial in this case; for we do not see how it could be possible, in view of the evidence, for the additional statement sought by counsel for the accused to-have changed the result. The defendant said enough in his statement, as it was actually made, to indicate, if the jury believed him, that he anticipated danger from a mob, and to show the state of his mind; for he declared that he said (as if speaking to himself), “If them niggers overtakes me before I get to Mrs. Fletcher’s, I will have something to break loose with.” And if counsel had called the attention of the accused to the omission •from the statement, as he contends he should have been permitted to do, the accused would merely have added that when he had the conversation with Mr. Hargett he was so badly frightened he did not know what he was doing or saying.

2. In the absence of a request to charge on the subject of confessions and admissions, failure of the court to instruct the jury on those subjects is not ground for the grant of a new trial.

3. The verdict is authorized by the evidence; and the judge of the court below having refused a new trial, his discretion will not be interfered with here.

Judgment affirmed.

All the Justices concur.