1. The verdict was amply supported by the evidence.
2. Where in the trial of accused for rape the assistant solicitor-general in his concluding argument made the statement, "Anything less than the death penalty would be a mockery," and where counsel for accused promptly stated, "We object to that, and ask for a mistrial in this case," and where the court denied said motion by stating, "I will strike the word `mockery' and tell the jury to put it out of their minds;" the court did not err in refusing to declare a mistrial.
3. Where the judge refused to declare a mistrial by reason of facts just set forth, there was no violation of the rights of the accused under the due-process clause of the constitution of this State, or under the provision that he be given a trial "by an impartial jury."
No. 14656. OCTOBER 7, 1943. The accused was convicted of rape, and was sentenced to electrocution. He excepted to the overruling of his motion for new trial.
There are two questions for decision: (1) whether the evidence is sufficient to support the verdict; (2) did the court err in not declaring a mistrial by reason of the argument of the assistant solicitor-general.
The evidence disclosed that the victim and her escort were returning home late at night from a dance, and while traversing a street adjoining a large body of woods they were stopped by accused, who with a pistol compelled both the victim and her escort to proceed into the woods, where the accused by duress held the escort at bay and had intercourse with the victim. It would serve no useful purpose to relate the sordid details of this occurrence. The testimony of the victim related all the elements necessary to constitute the crime as charged. Her testimony was fully corroborated by her escort, who was an eye-witness to the entire transaction; also by the testimony of others as to a complaint, her physical condition immediately thereafter, the description of the place of the crime, and the finding there of an article of property of the victim. The State introduced in evidence a detailed confession by accused.
By amendment to the motion for new trial accused alleges error in the court refusing to declare a mistrial by reason of certain statements being made to the jury in the concluding argument of the assistant solicitor-general, which statements are alleged to be *Page 672 inflammatory and prejudicial to accused. Also, that by reason of such statements being made in argument he was denied a trial by an impartial jury under article 1, section 1, paragraph 3, of the constitution of Georgia (Code, § 2-103) providing: "No person shall be deprived of life, liberty, or property, except by due process of law." And further, that the failure of the court to declare a mistrial was a denial of his constitutional rights under article 1, section 1, paragraph 5, of the constitution of Georgia (Code, § 2-105) which provides that he "shall have a public and speedy trial by an impartial jury." 1. The verdict was amply supported by the evidence, and there was no error in overruling the general grounds of the motion for new trial.
2. The accused insists that the court erred in not declaring a mistrial, by reason of a remark by the assistant solicitor-general in his concluding argument to the jury, as follows: "Anything less than the death penalty would be a mockery." Counsel for accused promptly said: "We object to that, and ask for a mistrial in this case." The court denied said motion for mistrial, making the statement, "I will strike the word `mockery,' and tell the jury to put it out of their minds." The record does not disclose what, if anything, the court afterward said to the jury. The accused insists that the remark was inflammatory and calculated to arouse extreme prejudice against him in the minds of the jury, and more especially so as he was a negro charged with rape upon a white woman.
Where a person is tried for rape under the Code, §§ 26-1301, 26-1302, the jury has the right to find him guilty, which verdict would carry the death penalty, or to find him guilty with recommendation to mercy, in which event the jury would go further and fix a punishment from one to twenty years in the penitentiary. The jury in determining whether or not to recommend mercy is not controlled by any rule of law, nor could the court under any circumstances instruct them as to when they should, or should not, *Page 673 make such a recommendation. They may do so with or without a reason, and they may decline to do so with or without a reason. It is a matter wholly within their discretion. Lucas v.State, 146 Ga. 315 (7) (91 S.E. 72). Under our law, the jury being vested with this right, it is not improper for counsel to argue before them the question whether or not they should so recommend. Lucas v. State, supra; Ozburn v. State,87 Ga. 173 (13 S.E. 247); Bailey v. State, 153 Ga. 413 (112 S.E. 453); Johnson v. State, 154 Ga. 529 (114 S.E. 713);Allen v. State, 187 Ga. 178 (200 S.E. 109, 120 A.L.R. 495). Where prejudicial matters not in evidence are stated in the argument, it becomes the duty of the court to interpose and prevent, or to hear objections and rebuke counsel, or to instruct the jury, or to declare a mistrial. Code, § 81-1009.
There are two types of improper statements made in argument of counsel, to wit: (a) One that can be cured by the court rebuking counsel, or giving needed instructions to the jury, or both, as in Patterson v. State, 124 Ga. 408 (52 S.E. 534);Wallace v. State, 126 Ga. 749 (2) (55 S.E. 1042); Hunter v. State, 133 Ga. 78 (65 S.E. 154); Floyd v. State,143 Ga. 286 (84 S.E. 971); Waters v. State, 150 Ga. 623 (104 S.E. 626); Hammond v. State, 156 Ga. 880 (4) (120 S.E. 539); Hulsey v. State, 172 Ga. 797 (5, 6) (159 S.E. 270);White v. State, 177 Ga. 115 (5) (169 S.E. 499); Whaley v. State, 177 Ga. 757 (6) (171 S.E. 290); Powell v.State, 179 Ga. 401 (4) (176 S.E. 29). (b) Where an irrelevant statement is so inflammatory and prejudicial that its injurious effect cannot be eradicated from the minds of the jurors by instruction from the court to disregard it, as applied in Bennett v. State, 86 Ga. 401 (12 S.E. 806, 12 L.R.A. 449, 22 Am. St. R. 465); Washington v. State, 87 Ga. 12 (13 S.E. 131); Johnson v. State, 88 Ga. 606 (15 S.E. 667);Broznack v. State, 109 Ga. 514 (35 S.E. 123); Minor v.State, 120 Ga. 490 (48 S.E. 198); Jones v. State,123 Ga. 129 (51 S.E. 312); Casar v. State, 125 Ga. 6 (53 S.E. 815); Barker v. State, 127 Ga. 276 (56 S.E. 419);Butler v. State, 142 Ga. 286 (82 S.E. 654); Fair v.State, 168 Ga. 409 (148 S.E. 144). Where improper statements have been made by counsel in the presence of the jury, it is the duty of the judge to endeavor to remove from the minds of the jury improper impressions made by unfair argument; and in determining the proper method the judge is vested with a sound discretion, and his rulings *Page 674 thereon will not require a new trial, unless it manifestly appears that his discretion was abused. Adkins v. Flagg,147 Ga. 136 (93 S.E. 92); Manchester v. State, 171 Ga. 121 (7) (155 S.E. 11); Georgia Power Co. v. Puckett, 181 Ga. 386 (182 S.E. 384). In determining whether an argument is improper, it should be borne in mind that "flights of oratory and false logic do not call for mistrials or rebuke. It is the introduction of facts not in evidence that requires the application of such remedies." Patterson v. State, 124 Ga. 408 (supra); Georgia Power Co. v. Puckett, 181 Ga. 386 (supra).
Applying the foregoing principles to the instant case, and even if it be assumed that the language complained of was to some extent improper argument, still it was not inflammatory nor highly prejudicial. The statement made by the judge was tantamount to directing the jury to give the remarks no consideration. In the circumstances we do not think the judge was required to do anything more. Accordingly the court did not err in overruling this ground of the motion.
3. The refusal to declare a mistrial on account of the argument of the assistant solicitor-general was not a denial of the constitutional rights of the accused under the constitution, art. 1, sec. 1, par. 3 (Code, § 2-103), which provides: "No person shall be deprived of life, liberty, or property, except by due process of law." Where a citizen is accorded a trial in a court of justice according to the modes of procedure applicable to all cases of a similar kind, it cannot be said that he has been denied "due process of law." Lamar v. Prosser, 121 Ga. 153 (4) (48 S.E. 977); Frank v. State, 142 Ga. 741 (83 S.E. 645); Arthur v. State, 146 Ga. 827 (92 S.E. 637);Meyers v. Whittle, 171 Ga. 509 (3) (156 S.E. 120);Norman v. State, 171 Ga. 527 (2, 3) (156 S.E. 203); King v. State, 174 Ga. 432 (3) (163 S.E. 168). Nor was the refusal to declare a mistrial a violation of any right under art. 1, sec. 1, par. 5 (Code, § 2-105), providing that he "shall have a public and speedy trial by an impartial jury." In this opinion we have held that the argument of the assistant solicitor-general, when considered in connection with the statement of the judge, was not such as to affect the impartiality of the jury; and that construction necessarily negatives any violation of this constitutional right. Moore v.State, 151 Ga. 648 (108 S.E. 47).
Judgment affirmed. All the Justices concur. *Page 675