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CADE v. THE STATE.
17152.
Murder. Before Judge G. C. Anderson. Richmond Superior Court. April 3, 1950.
HAWKINS, Justice.
1. So much of the body of the act approved February 25, 1949 (Ga. L. 1949, p. 1082), as purports to confer upon counsel for the defendant in criminal cases the right to cross-examine individual jurors as therein provided, is unconstitutional and void, because violative of article 3, section 7, paragraph 8 of the Constitution of 1945 (Code, Ann., 2-1908), which provides that "No law shall pass which . . . contains matter different from what is expressed in the title thereof."
2. The trial court did not err in overruling the motion for a new trial.
Charles Cade was indicted in Richmond Superior Court for the murder of one J. K. Joe, a Chinese merchant. The record discloses that this defendant, along with Curtis Wynn, Lincoln Mays, James Smith, and Johnny Hardge, formed and carried out a conspiracy to rob the deceased; that the deceased was a Chinaman about fifty years of age, and under the testimony of the coroner's physician, when his body was found, had been cut across the eyes, face, forehead, and nose, and his nose was broken; that there were numerous lacerations, and the right common carotid artery was severed by a stab wound in the neck, which caused immediate death. This defendant, in a written, sworn statement, which was admitted in evidence without objection, stated that he cut the deceased with a butcher knife to make him tell where the money was and to make him open his safe; that he called for the butcher knife to finish the deceased up after he had been robbed and tortured, but, in his statement, contended that the stab in the neck was made by Lincoln Mays just before they left the scene of the homicide; that this defendant, Curtis Wynn, and Lincoln Mays, left the scene of the homicide and went to a described house, where they divided the money. There was evidence by one of the State's witnesses that the defendant had stated to him that he killed the Chinaman; that he cut his damn throat, and in his statement to the jury the defendant stated that he handed the butcher knife to Lincoln Mays when he said "he is not dead," and told Lincoln Mays to finish killing him, and that Lincoln Mays took the knife and cut him. These statements of the defendant were corroborated in many particulars by other evidence.
When the jury had been purged as to relationship by the court, and the solicitor-general had put the usual voir dire questions to the first juror, and then informed the defendant that the juror was on him, counsel for the defendant--basing his request upon the act approved February 25, 1949 (Ga. L. 1949, p. 1082)--moved the court that he be allowed to ask each individual juror the following list of questions: "(1) What is your occupation? (2) What is your religious denomination, are you [sic]? (3) Do you attend church regularly? (4) Do you belong to any social or fraternal organizations? (5) Do you belong to any organizations that Messrs. Hains, Curry, and Kennedy are members of? (6) Were you still impartial toward the defendant, Charles Cade, after reading the accounts of the crime in the local papers? (7) What is your age? (8) Do you still feel unbiased after reading these articles in the Augusta Herald? (9) Do you do any business or have business with the local Chinese? (10) Have you any business or social connections with Mr. Curry or Kennedy? (11) Have you had any business or social connection in the past with Mr. Curry or Kennedy?"
The trial court made the following ruling: "I overrule your motion for that because that applies to civil cases only and doesn't apply to criminal cases; if it does, the act is unconstitutional because the caption of the act says nothing in regard to criminal cases, nor does that act seek to add to the general questions of the voir dire." After this ruling the defendant struck the first juror, and to the ruling and judgment of the court the defendant excepted pendente lite and in the only ground of the amendment to the motion for a new trial.
The jury returned a verdict of guilty without recommendation. The defendant filed his motion for new trial on the usual general grounds, and to the judgment of the trial court overruling his motion for a new trial as amended he excepts, and also assigns error upon his exceptions pendente lite above referred to.
(After stating the foregoing facts.) 1. Counsel for the plaintiff in error expressly abandoned the usual general grounds of the motion for a new trial, and the only question presented for our determination is whether the trial court erred, as complained of in the exceptions pendente lite and in the only ground of the amended motion for a new trial, in refusing the request of counsel to be permitted to propound to each individual juror the questions set out in the statement of facts.
It is contended by counsel for the plaintiff in error that the trial court erred in holding that the act approved February 25, 1949 (Ga. L. 1949, p. 1082), as applied to criminal cases, was unconstitutional because the title of the act made no reference to criminal cases.
It is true, as contended by counsel for the plaintiff in error, that this court has many times held that statutes should be construed in such way as to be consistent with the Constitution, if it can be done, and that the conflict between a statute and the Constitution should be serious before the court declares the statute unconstitutional. Hope v. Mayor &c. of Gainesville, 72 Ga. 246; Smith & Co. v. Evans, 125 Ga. 109 (53 S. E. 589); Lamons v. Yarbrough, 206 Ga. 50 (55 S. E. 2d, 551). It is also true that this court has held that article 3, section 7, paragraph 8 of the Constitution (Code, Ann., 2-1908) does not require that the title of an act should contain a synopsis of the law. Wright v. Fulton County, 169 Ga. 354 (150 S. E. 262); Williamson v. Housing Authority of Augusta, 186 Ga. 673 (199 S. E. 43); Fields v. Arnall, 199 Ga. 491 (34 S. E. 2d, 692). But this provision of our Constitution does require that "No law shall pass which . . . contains matter different from what is expressed in the title thereof." In Cady v. Jardine, 185 Ga. 9 (193 S. E. 869), it is pointed out that the court should ever keep in mind the history of the event that gave this provision of the Constitution birth, the evil it sought to prevent, and recognize the wisdom of the provision. One of the evils it sought to prevent was the insertion of clauses in the body of acts of the General Assembly of which the title gave no intimation, and their passage was secured from legislative bodies whose members were given no notice thereof by the title and who were not generally aware of the intention and effect of such clauses. Mayor &c. of Savannah v. State, 4 Ga. 26, 38; Howell v. State, 71 Ga. 224, 226 (51 Am. R. 259).
How stands the act now under consideration in the light of this clause of our Constitution? The title of the act is as follows: "An Act to repeal in its entirety Section 59-705 of the Code of 1933, and to substitute in lieu thereof, a new section to be numbered Section 59-705, to provide that in all civil causes, it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail, or that he has a wish or desire as to which shall succeed, and that upon challenge made by either party upon either of these grounds, it shall be the duty of the court to hear such competent evidence respecting the challenge as shall be submitted by either party; to provide that the court shall determine the challenge on the evidence adduced thereon, to provide that in all civil causes the parties thereto, shall have the right to an individual examination of the panel of jurors from which the jury is to be selected, without interposing any challenge; to provide for the manner in which such examination is to be conducted, and for the administration of a preliminary oath to the panel; to provide for the rights of counsel for either party in conducting such examination."
The body of the act, in section 1 thereof, repeals Code 59-705 as it then existed, and by section 2 enacted in lieu thereof another section, which, after re-enacting substantially the same provisions of the Code section repealed, further provides as follows: "That in all civil causes the parties thereto, shall have the right to an individual examination of the panel of jurors from which the jury is to be selected, without interposing any challenge. That in all criminal cases both the State and that the defendant shall have the right to an individual examination of each juror from which the jury is to be selected prior to interposing a challenge. Such examination shall be conducted after the administration of a preliminary oath to the panel or in criminal cases after the usual voir dire questions have been put by the court, and in such examination, the counsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the cause, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning or bias, which the juror might have respecting the subject matter of the suit, or counsel or parties thereto, and religious, social and fraternal connections of the juror."
It will be observed that the title of the act makes no reference whatever to criminal cases, and that the section of the Code thereby repealed applied only to civil causes, and made provision for putting juries in civil cases on their voir dire, and prescribed the questions which the court should put to the jurors upon such request. The Code section repealed and the title of the act refer exclusively to civil causes, and only in the body of the act is any reference made to criminal cases, and even in that portion of the act many of the terms used apply primarily to civil causes, for the act continues to refer to "the cause," "which party ought to prevail," "the relationship or acquaintance of the juror with the parties or counsel therefor," "any fact or circumstance indicating any inclination, leaning or bias, which the juror might have respecting the subject matter of the suit, or counsel or parties thereto"--all terms which are ordinarily used in connection with civil causes and some of which have no application to a criminal case.
It is further apparent that it was the purpose of the legislature to broaden the scope of the examination of jurors when put upon their voir dire in civil causes, the Code section repealed having limited the scope of the questions to be propounded. Moreover, the Code, 59-806, an entirely different section from that which the title of the present act gave notice it was to amend, makes provision for putting the jurors in trials for felonies on their voir dire, and these questions are much more comprehensive in their scope than the voir dire questions previously provided for in civil cases. In fact, they in effect cover every subject referred to in the new act, but in a condensed form. They are designed to ascertain from the juror whether he has any opinion as to the guilt or innocence of the prisoner, either from having seen the crime committed or from having heard any testimony delivered on oath; and whether he has any prejudice or bias either for or against the prisoner, and whether his mind is perfectly impartial between the State and the accused. If not perfectly impartial and free from prejudice or bias, he is subject to be excused for cause, and no matter from what cause the partiality, prejudice, or bias arises--whether because of his acquaintance or relationship with the defendant, or his counsel, or with counsel for the State, or from his or the defendant's religious, social or fraternal connections, or from any matter, thing, fact, or circumstance which would create any inclination, leaning or bias on the part of the juror respecting the defendant or the subject-matter of the charge against him. Further provision is also made by our law to challenge the juror and put him on the court as trior, in which event other and additional questions may be propounded. Herndon v. State, 178 Ga. 832, 838 (174 S. E. 597), and cases there cited. There was, therefore, no existing evil with respect to the interrogation of jurors in felony cases to be remedied. While this court has nothing to do with the reasonableness, wisdom, policy, or expediency of a law ( Flint River Steamboat Co. v. Foster, 5 Ga. 194, 48 Am. D. 248; Winter v. Jones, 10 Ga. 190, 54 Am. D. 379; Franklin v. Harper, 205 Ga. 779, 792, 55 S. E. 2d, 221), it is the duty of this court to declare acts of the legislature in undoubted conflict with the Constitution to be void ( Bank of St. Mary's v. State, 12 Ga. 475; Macon & Western Railroad v. Davis, 13 Ga. 68; Lamons v. Yarbrough, 206 Ga. 50, supra); and in determining this question, the courts may look at the effects of such statute, if held valid. If it could be held that so much of the body of the act of 1949 (Ga. L. 1949, p. 1082) as attempts to make it applicable to criminal cases is valid, the effect of such holding would be to make it practically impossible for the trial courts to carry out that other mandate of our Constitution, that every person charged with an offense against the laws of this State shall have a speedy trial. Code (Ann.), 2-105. If this portion of the act be valid, then it applies not only to felony cases, but also to every misdemeanor case, and would thus open the door for cross-examination of every juror by counsel for both the State and the defendant in both felony and misdemeanor cases in an unlimited field "touching any matter or thing which would illustrate any interest of the juror in the cause, . . . the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning or bias, which the juror might have respecting the subject matter of the suit, or counsel or parties thereto, and religious, social and fraternal connections of the juror," and might consume many days in the selection of a jury in every misdemeanor case, thus increasing enormously, and to an extent difficult even to surmise, the expense of the various counties in the conduct of courts; and a legislative body enacting such a statute must, as required by the constitutional provision here involved, have notice from the title of the act that such a far-reaching provision was contained therein. The trial court properly held so much of the act of 1949 (Ga. L. 1949, p. 1082) as purports to apply to criminal cases, to be violative of article 3, section 7, paragraph 8 of the Constitution of 1945 (Code, Ann., 2-1908), and did not err in overruling the defendant's motion for a new trial.
Judgment affirmed. All the Justices concur.
Eugene Cook, Attorney-General, George Hains, Solicitor-General, Robert E. Andrews, contra.
William C. Calhoun, for plaintiff in error.
DECIDED JULY 11, 1950.
Saturday May 23 05:50 EDT


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