Grant v. The State

Supreme Court of Georgia1896-02-29

97 Ga. 789

Summary · law.co

Holding. The judgment is affirmed. The trial court properly refused to review a private communication regarding counsel's argument rights because the matter was not raised through appropriate formal procedures in open court, and the trial court properly refused a new trial based on newly discovered evidence that contradicted the defendant's own testimony and lacked proper credibility support, as well as on the jury oath issue where evidence supported that the oath was administered.

Grant was convicted after trial, during which he presented no evidence and therefore secured the right to open and close arguments to the jury. One of his attorneys delivered a closing argument, but when a second attorney attempted to make an additional closing argument, the trial judge privately informed him that only one counsel could argue in conclusion and that Grant had already enjoyed both opening and closing positions. Grant challenged this as error. The court held that this private communication between counsel and judge was not a proper subject for appellate review because Grant failed to raise the matter through appropriate formal procedures in open court. The court emphasized that counsel must invoke rulings through proper motions or requests made publicly, with opposing counsel present, rather than through private conversations with the judge.

Grant also sought a new trial based on newly discovered evidence from a witness who allegedly saw the killing. The witness's account differed from Grant's trial statement regarding whether the deceased was armed with a pistol or a plank. The trial judge properly refused to grant a new trial on this basis because the evidence contradicted Grant's own testimony and lacked supporting affidavits regarding the witness's character or credibility. Additionally, Grant challenged whether all jurors received the preliminary oath during voir dire, but counter-affidavits established that the oath had been administered, and the evidence supported the judge's finding. The court concluded that the verdict was fully supported and the trial judge did not abuse discretion in denying a new trial.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a private communication between counsel and judge regarding trial procedure is proper subject for appellate review without formal motion in open court
Whether newly discovered evidence supporting a different weapon at the scene warrants a new trial when it contradicts the defendant's trial testimony
Whether alleged failure to administer preliminary oath to jurors during voir dire constitutes grounds for new trial when contradicted by counter-affidavits

Procedural posture

Grant appealed his conviction, challenging the trial judge's refusal to allow a second attorney to deliver closing argument, raising newly discovered evidence of a witness to the killing, and contesting the administration of preliminary oaths to jurors.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, Chief Justice.

Upon the trial of the case in the court below the accused introduced no evidence, and thus obtained the right to open and conclude the argument to the jury. At the conclusion of the evidence one of his counsel addressed the jury at some length; after which counsel for the State announced that he did not desire to argue the case. One of the counsel for the accused, who had not addressed the jury, thereupon approached the judge and privately stated that he desired to argue the case and wished the court to know that he insisted upon it as a legal right of the accused; hut the judge informed him privately that no further speech would be allowed for the accused, that the. rule was that in no case should more than one counsel be heard in conclusion, and that under the circumstances the accused had had both the opening and conclusion. This is complained of as error. The judge certifies that nothing was said about the matter except in this private conversation between counsel for the accused and himself. We think that what was said by the judge under these circumstances is not proper subject-matter for review by this court. Where it is desired to secure a decision of the court upon any matter, there should be some appropriate motion, pleading or request. The decision must be invoked in the proper method and at the proper time. If counsel for the accused desired to invoke a ruling of the court as to whether he should be allowed to make an additional argument to the jury, the proper method to have pursued would have been to make a motion or request in open court, instead of approaching the judge privately as he did. The motion should have been made in such a manner as that the judge should clearly rmderstand that a ruling was being invoked, and that opposing counsel should also have notice of it. Whenever a motion, request or objection is made by counsel in the trial of a case, opposing counsel are entitled to have notice of it, and they have a right to know of any ruling or decision made thereon by the court. The practice of counsel to approach the judge privately about matters or questions pending before him at the trial is a bad one, and cannot be too strongly condemned. See on this subject, 2 Elliott, General Practice, §1038; Wilson v. Danforth, 47 Ga. 676; Farrow v. The State, 48 Ga. 30; Barker v. Blount, 63 Ga. 423.

The accused, in his statement to the jury, said that he shot the deceased because the latter was advancing upon him with a pistol. The newly discovered evidence as set out in the affidavit of Leola Mclver is totally at variance with this statement. She deposed that she saw the killing, and that the deceased advanced upon the accused with a plank and was striking at him with it at the time he was shot. The trial judge therefore did not err in refusing to grant a new trial on account of this evidence. Besides, he •could have disregarded it altogether because there was no affidavit of any person as to the character or credibility of the witness. Polite v. The State, 78 Ga. 347(3); Dominick v. The State, 81 Ga. 715; Pease v. The State, 91 Ga. 19(4).

The affidavits introduced by the accused in support of the sixth ground of the motion for a new trial, to the effect that the preliminary oath was not administered to certain of the jurors when put upon their voir dire, weré met with counter-affidavits showing that the oath had been administered, and we think the decided weight of the evidence sustains the judge in finding that the oath was administered. The evidence fully warranted the verdict, and there was na abuse of discretion in refusing a new trial.

Judgment affirmed.