Fairfield v. State

Beck, P. J. O. C. Fairfield was tried- under an indictment charging him with having, on the 29th day of May, 1921, maliciously burned a railroad bridge of the A., B. & A. Railway Company. The jury trying the case returned - a verdict of guilty, and he was thereupon sentenced to life imprisonment at hard labor. The accused made a motion for new trial, which being overruled, he excepted. The first ground of the amendment to the motion for new — 662 — trial relates to the admission, over objection, of the testimony of a witness for the State, one Fountain. In giving his testimony as to the alleged confession, that witness used a copy of a typewritten statement of the confession, made at the time of the confession. The objection to this was that the carbon copy could not be used as evidence, no loss of the original having been sufficiently shown; and that the facts stated in the confession were immaterial and irrelevant, because they related to certain acts and doings of the accused on an occasion not connected with the offense for which he was being tried, and which took place two months subsequently to the date of the alleged crime. It was shown that the original of the statement as reduced to writing had been placed in the office of the superintendent of the railroad; it was searched for and could not be found. The ground of the motion does not show where it could more probably be found than in the office of the superintendent, where it was searched for. The court was authorized to find that the original was lost, and the copy would then have been the best evidence. Moreover, it appears that the testimony of the witness was given after refreshing his memory from the copy. The copy could certainly be used as a memorandum from which the witness could refresh his memory, if the witness could then testify of his own knowledge according to his recollection after refreshing his memory. Nor was the evidence of the witness inadmissible for the reason urged in the remaining ground of .the objection taken,— that it related to acts and doings of a criminal character not connected with the offense for which the prisoner was on trial. Generally such evidence is objectionable and inadmissible. In the .case of Alsobrook v. State, 136 Ga. 100 (54 S. E. 805), it was said: “ Evidence of the commission of a crime other than the one charged in the indictment is generally not admissible; but there are exceptions to this rule. Evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged is admissible; or where other offenses committed by the accused tend to prove malice or motive or the like, evidence of other offenses is sometimes admitted. But in all 'cases where evidence as to the commission of other offenses is admitted, there must be a connection between them and the offense with which the accused is charged. ‘ To make one criminal act — 663 — evidence of another, a connection between them must have existed in the mind of the actor, . . or it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other.’ Cawthon v. State, 119 Ga. 396 [46 S. E. 897], and cit.” In the alleged confession the accused had stated that on the night of the 4th of July, which was some two months after the burning of the bridge, “ scabs ” riding by on an engine had fired into a certain picket post, and before the latter could get themselves together they opened the throttle and hurried down to the shop. There was great excitement next morning, and he, being in charge of the picket line, collected his men and placed them around the picket line at the picket post. Standing alone, what the accused had said in regard to assembling and posting the men after they were fired into by persons denominated as “ scabs,” who were on the engine on July 4th, would apparently fall in the general rule. But the theory of the State in this ease was, that there existed a conspiracy between numerous persons, one of whom was the defendant in this case, to commit acts of violence, which had for their ultimate, purpose the prevention of the operation of trains over the railroad of which the burnt bridge was a part, and that in order to effect their purpose, a series of acts both before and after the burning of the bridge, was committed, and there was a continuity in this series of acts that showed that the different acts of violence were connected as parts of a general scheme; and the State introduced evidence tending to establish the existence of conspiracy, and that the defendant in this case was one of the conspirators. In the case of Frank v. State, 141 Ga. 243 (80 S. E. 1016), the admission of evidence of a criminal act other than that charged in the indictment was held, by the majority of the court, to be admissible. In support of the ruling there made it was said that ■the evidence admitted over objection tended to show motive and a common scheme or plan of related offenses, and also tended to show the identity of the person committing both of the crimes, the one charged and the other sought to be proved. In the case of Williams v. State, 152 Ga. 498 (110 S. E. 286), it was said: “The general rule is, that, on a prosecution for. a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent — 664 — from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible; but to this rule there are several exceptions. Among them is the admissibility of evidence showing or tending to show the commission of crimes other than that for which the accused is on trial, for the purpose of showing motive, plan, or scheme. Frank v. State, 141 Ga. 243 (80 S. E. 1016), and authorities on the subject referred to in both the majority and minority opinions; Hill v. State, 148 Ga. 521 (97 S. E. 442); 12 Cyc. 405, 410; 1 Michie on Homicide, 714, § 166; Id. 843, § 172.” In 1 Wharton’s Criminal Evidence (lO.th ed.), 146, is laid down this rule: “When the,object is to show system, subsequent as well as prior, collateral, offenses can be put in evidence, and from such system identity or intent can often be shown. The question .is one of induction, and the larger the number of consistent facts, the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to indicate they are a part of the system. In order to prove the purpose and design, evidence of system is relevant; and in,order to prove system, collateral and isolated offenses are admissible from which system may be inferred. Or, where crimes are so mutually connected or interdependent that the proof of one is not coherent without evidence of the other. But to be admissible as relevant under system, the collateral, extraneous, or independent offense must be one that forms.a link in the chain of circumstances and is directly connected with the charge on trial.' Such system may be common to all offenses known to the law. Again, there may be like crimes committed against the same class of persons, about the same time, showing the same general design, and evidence of the.same -is relevant which .may lead to proof of identity.” In 12 Corpus Juris, 634, it is said: “In the re-, ception of circumstantial evidence great latitude must be allowed. The jury should have 'before them and are entitled to consider every fact which has a bearing on and a tendency to prove the ultimate fact in issue, and which will enable them to come to a satisfactory conclusion. The government has the right to show the whole history of the conspiracy from its commencement to its conclusion. And • it is no objection that the evidence covers a great many transactions and extends over a long period of time, — 665 — that it may show another crime, that the acts, evidence to show which is offered, occurred some time before the alleged formation of the conspiracy; provided, however, that the facts shown have some bearing on and tendency to prove the ultimate fact at issue. But much discretion is left to the trial court in a case depending on circumstantial evidence, and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact.” The 12th ground of the motion for new trial assigns error upon the ruling of the court refusing to allow the defendant to make an additional statement. The defendant had already made his statement. After the State had introduced other evidence, the defendant requested the privilege of making the additional statement. In this ground of the motion for new trial it is not suggested that evidence relating to new and independent facts had been introduced by the State after the defendant made his statement, but it is distinctly recited that the State had introduced “ certain rebuttal evidence, and thereupon at the close ’ of such rebuttal evidence the defendant asked leave of the court to make an additional statement for the purpose of explaining certain facts and things that had been brought out and introduced against him, to wit, concerning maps, papers, and letters identified by Lewis.” There is no suggestion in the ground of the' motion that this evidence of Lewis contained new substantive facts, but, as shown by the language of the motion itself, it was entirely in rebuttal. If the facts testified to by Lewis were new facts and not merely in rebuttal, that could have been stated in the ground of the motion, and should have been so stated if the movant Telied upon the ground that new facts had been introduced; and under numerous rulings of this court, it can not go into other parts of the record in order to strengthen and make valid this ground of the motion for new trial. There is nothing shown in this ground to take the case out of the general rule that whether a defendant will be allowed to make a second statement rests in the discretion of the trial court. Of course we recognize the principle that while the allowance of the privilege sought is in the discretion of the court, there may be cases in which a refusal by the court to grant the privilege would be an abuse -of discretion. If the court did as a matter of fact abuse the discretion in this particular ease, the — 666 — ground of the motion should have shown and pointed out the fact or facts upon which the claim of an abuse of discretion is based. When the trial court passed upon this motion for new trial, the question presented for his ruling was made by the ground of the motion as it stands. The only question that this court is to eonsider is, whether the court committed error in overruling the motion as formulated and presented by the movant; and there is nothing in this ground of the motion to show that the court did abuse-his discretion in refusing to allow the defendant to make a second statement. “As the statute gives the accused no right to make more than one statement, whether he should be allowed to supplement it with another is a matter of discretion with the trial court.” Jones v. State, 12 Ga. App. 133, 136; Vaughn v. State, 88 Ga. 731 (16 S. E. 64); Cochran v. State, 113 Ga. 736 (39 S. E. 337); Dixon v. State, 116 Ga. 186 (42 S. E. 357); Pollard v. State, 144 Ga. 229 (86 S. E. 1096). “A failure to allow the accused to make a supplementary statement, even where the State, after the accused had made his statement, introduced additional evidence strengthening its case, is not cause for a new trial.” Johnson v. State, 120 Ga. 509 (3) (48 S. E. 199), citing Knox v. State, 112 Ga. 373 (37 S. E. 416), where it was ruled: “ The question as to whether or not one on trial for a criminal offense, as a matter of right, can make a second statement is no longer an open one before this court. It was decided that the accused has no such right, in the case of Vaughn v. State, 88 Ga. 732. In Boston v. State, 94 Ga. 590 [21 S. E. 603], it was decided: ‘It is not matter of right for the accused to make a second statement to the court and jury because the State has introduced additional evidence which strengthens the case against him.’ ” Holding that it was a matter of discretion with the trial court whether the accused should be allowed to make a second statement, it was said, in the case of Sharp v. State, 111 Ga. 176 (36 S. E. 633), “ If this court should ever in any case undertake to say that a judge did in such a matter abuse his discretion, it would have to be an extreme one.” In the 5th, 6th, and 7th grounds of the motion for new trial complaint is made that the court sustained objections made by the State to ■ certain evidence offered by the defendant, tending to show that an alleged confession of the defendant which had been — 667 — put in evidence by the State was not true. In part, the evidence offered was testimony to show that certain persons whom the defendant had named in his alleged confession as being with him at the time of the commission of the crime were not with him, and could not have been with him, as they were at places other than that of the commission of the crime at the time of its commission.. This evidence was objected to by the State’s counsel on the ground that it was irrelevant and immaterial “'at this stage of the trial, without any denial on the part of the defendant of the alleged confession shown by the State, insisting that the only relevant thing now is whether the confession is true, and until the defendant makes a- denial or says the confession was made under circumstances under which the jury ought not to believe it he could not collaterally attack it by showing that this man [the-man named in the statement] was not with him, the State not having undertaken to show' as a substantive fact that he was there, and the only issue before the jury is whether or not Fairfield [the defendant] did it.” When counsel for the defendant had stated his position in regard to the materiality of this evidence, the court had the jury to retire, and the question as to the admissibility of the evidence was argued; and at the end of this discussion the court ruled that the evidence was inadmissible. This ruling is excepted to on several grounds. It is insisted that the evidence was relevant and material; that the ground insisted upon by the solicitor-general,. to wit, that the .defendant had not denied the confession, was not a good ground for excluding the evidence, and to sustain the contention of the solicitor-general would allow that officer to dictate and control the order in which the defendant introduced his evidence, whereas the defendant had the right to present to the court and the jury all material and relevant facts in regard to the alleged confession, to show whether it was true or false; and to deny him this right at the time when he offered the evidence disturbed the order in which he proposed to introduce his evidence and destroyed the order in which he proposed to conduct the case for defendant. Subsequently the defendant did make, a statement denying the confession, and denying that the facts set forth in the alleged confession were true. After this statement the defendant was allowed to introduce the evidence which he had formerly offered to introduce. Conceding that the court erred — 668 — in refusing to admit the evidence when it was first offered, we are of the opinion that when he subsequently permitted the defendant to introduce it the error was cured. This has been ruled more than once, and case's sustaining the proposition are familiar. The rulings made in headnotes 6 and 7 require no elaboration. Other persons, Thomas, Bishop, and Hall, were arrested for the burning of the railroad bridge soon after the event. They were brought before a committing magistrate for a preliminary hearing, and the prisoner in this case, under arrest for another offense, was brought by the sheriff before the magistrate presiding at the preliminary hearing and there introduced as a- witness, and while on the witness-stand was questioned. He was not ad'monished as to his right to decline to answer questions that tended to incriminate him, but in the course of his testimony he made statements which tended to incriminate him and which in substance amounted to a confession that he and the others had burnt the bridge. Evidence of these statements thus made was introduced by the State on the trial of the instant case, as confessions, and was objected to upon the ground that they were not. freely and voluntarily made, but that the circumstances under which they were made precluded their being of the character of a free and voluntaiy confession. The objection was overruled. We are of the opinion that the court did not err in this ruling. Counsel for plaintiff in error relies largely oh the case of Adams v. State, 129 Ga. 248 (supra), where is was said: “The spirit of the law is that one accused of crime shall not be required to be put under oath, and thus to be placed in the dilemma of either being required to testify as a witness against himself, or being subject to the penalties of false swearing. His right to speak, not under oath, is a statutory privilege, and it is not lawful to require him to be sworn as a witness against himself. Where a coroner’s jury has been summoned to hold an inquest over the body of a deceased person who appears to have been murdered, and another has been arrested and is held in custody, accused of the crime, he is not formally upon trial, but substantially he is so, and the crime for which he has been arrested, as well as his connection with it, is the subject of investigation. Eor the coroner, or other officer representing the State, to bring him forward as a witness — 669 — under such circumstances, require him to be sworn, and demand of him under oath to testify as to his own guilt or innocence, is in violation of the spirit, if not the letter of the statute. If he should decline to be sworn at all, or to answer questions, he must know that the effect would be disastrous to him. It is not a case where one may lawfully be called as a witness generally, but where, if certain questions are put to him, he may claim his privilege. It is a case where the accused ought not to be sworn at all.” But it will be observed in the Adams ease that the prisoner himself had been arrested for the commission of the crime in regard to which he was interrogated, and it was in the discussion of that situation that the court made the ruling insisted upon by counsel for plaintiff in error as applicable here. Further on in the opinion in the Adams case it was said: “It may be that there is nothing in the fact of an arrest alone which will make a voluntary confession of a party under arrest inadmissible; or if one voluntarily makes a confession or inculpatory statement before a magistrate, this alone may not render it inadmissible; or, as suggested above, where it is lawful to swear a person as a witness, so that the general examination of him is proper, but if the witness is asked certain questions he may claim his privilege, the administration of an oath may not alone render a confession voluntarily made inadmissible on a subsequent trial. But we think there can be no doubt that, where it is unlawful to reqixire the accused to be sworn as a witness, to do so, and to draw out of him, by questions, confessions or inculpatory statements under oath, is improper; and such statements are not admissible against him, if he is subsequently tried for the offense involved.” The prisoner, it is true, was in the custody of the law at that time; but it does not from the ground of the motion appear that he was then charged with the commission of the offense for which he was being tried in the present case. His answers given under those circumstances were admissible, even though he was not cautioned that he need not answer a question which tended to incriminate him. If he had claimed his privilege, no doubt it would have been allowed. What we are saying here is also applicable to the objection to the prisoner’s statement before the grand jury. Error is assigned upon the following charge of the court: — 670 — “First, address yourselves• to the consideration as to whether or not there was a confession made by the defendant, and if there was as contended by the State, see if that confession was freely and voluntarily given without the slightest hope of reward or remotest fear of punishment; and if you are not satisfied beyond a reasonable doubt of such circumstances, address yourselves to the consideration as to whether or not there was any other confession made at any time; and if there was, apply the same rules to that and see if that measures up to the standard and rules which the court has already given you in charge. If there be such confession or confessions, either one or more, or any at all, which was made freely and voluntarily and without the slightest hope of reward or remotest fear of punishment, then even though you are satisfied of that beyond a reasonable doubt, you would not be authorized to convict this defendant, but go further and see if the crime itself has been committed, to wit, the burning of the railroad bridge, or if there are any other corroborating circumstances, as contended by the State; and if that is established, that is to say, corroboration of the alleged confession was shown to your satisfaction beyond a reasonable doubt, and all other elements of the alleged offense are present and shown to your satisfaction beyond a reasonable doubt, that is to say, if you are satisfied beyond a reasonable doubt under the rules of law that the defendant is guilty as charged, alleged and contended on the part of the State, then it will be your duty to find this defendant guilty, and the form of your verdict would be, ‘ we the jury find the defendant guilty,’ ” The first objection to this charge, which is in effect that the language in which the jury were instructed that “the confession must have been made without the slightest hope of reward or the remotest fear of punishment, was disposed of by the ruling made in the seventh headnote. In other respects the charge is not beyond criticism. It is wanting in clearness and accuracy. The language, “ but go further and see if the crime itself has been committed, to wit, the burning of the railroad bridge,” standing alone would seem to intimate that proof of the burning of the railroad bridge would itself show the commission- of a crime, whereas proof of the fact that the railroad bridge was burnt would not show that the crime was committed, without other — 671 — proof of circumstances showing that the fire was of incendiary origin; for if nothing more than the burning was shown, that would be presumed to ha.ve been accidental rather than occurring through some criminal agency. But that particular part is not criticised upon the ground here indicated. • Movant does criticize that part of the charge and say that it is error “ for tlie reason that the burning of a railroad bridge would not be corroboration of the confession; since the presumption of law is that if the bridge was burned it was an accident, and for the court to charge as it did, that if they found the confession was freely, and voluntarily made, . . that would make out a case against the defendant, was error, since proof of the burning would not be a corroboration of confession in the case, where the charge is arson.” This exception is not based upon .the ground we have indicated above, and the court did not charge that the burning alone and the confession would make out the case; for the court added, after referring to the burning, “if there are other corroborating circumstances, as contended by the State, and if that is established, that is to say, corroboration of the alleged confession is shown, and to your satisfaction beyond a reasonable doubt, and all other elements of the alleged offense are present [italics ours] and shown to your satisfaction beyond a reasonable doubt,” etc. Taking the entire excerpt together, the court made a verdict of conviction depend- upon proof of the burning, all other circumstances, and proof of “all other elements of the alleged offense;” and, besides, added that the jury must be satisfied beyond a reasonable doubt. We do not think the jury were misled by this charge, though, as we have said above, there were present inaccuracies in the charge as framed and submitted to the jury. But these inaccuracies were not of such character as to require the grant of a new trial. Judgment affirmed. All the Justices concur, except