Armistead v. State

18 Ga. 704 | Ga. | 1855

By the Court.

Starnes, J.

delivering the opinion.

It has been long the practice, where several are jointly indicted for an offence which does not require the concurrence of two or more to constitute the crime, to allow a severance. by the defendants, and to permit the Counsel for the prosecution to elect which shall be first put upon trial. I believe that the practice is derived from the Common Law. The 50th section of the 14th division of our Penal Code has been considered, in some districts of our State, as amounting to no more than an affirmance of this practice.

A close criticism of the language of this section, however, seems to encourage the conclusion,'that something more than this was meant by the words, “ any one defendant may be tried separately.” This looks very much like a general permission to the Court,, where the purposes of justice may require it, to try such defendants' separately, whether they elect to be so tried or not. But the direction which wc give this case, as will be seen, makes it unnecessary, formally, to decide this point; and as our opinions are not well settled in. regard to the same, we will make no further observation upon it.

[1.] It is a general rule, that “ even where the accomplice has been joined in the same indictment with the principal, he may be still called as a witness-before he is convicted.” (Hawk’s P. C. b. 2, c. 46, Sec. 95, 1 Hale, 305.) It seems to be the practice, however, to allow the testimony of such accomplice, when thus indicted, only where he who is offered as a witness, has been 'acquitted, or where the defendants are severally tried. A different rule has been deduced by the Solicitor General, (and perhaps by the Court' below,) where two or more are indicted as principals in the first and second degree, from the' case of Studstill vs. The State. (7 Ga. R. 2.) There the prosecuting officer seems to have taken for granted, that a principal in the first degree must be convicted before the principal in the second degree can be ; and therefore, that upon trial of the latter, it was necessary to introduce the record of conviction. The Superior. Court, trying that case, seems to have adopted that view without investigation ; and as no point was made to, the contrary, when -the case came up for consideration on other points, this Court simply acquiesced in that view of the matter. No investigation was had thereof, and the observation -which was made by the Court, does not amount to an opinion given upon an issue made.

The correct rule is that which we now lay down ; and the Court below, consequently, erred in deciding that GeorgeArmistead was not a proper witness in this case for hist brother, who was" being separately tried.

[2.] We think that there was no error in rejecting the declaration of the decedent, that George Armistead did not-touch him. If George Armistead had been upon his trial,, this statement, perhaps, under the circumstances, might be regarded as part of the res gestee. But he was not on trial, and the declaration, therefore, was not testimony relevant to the issue being tried.

[3.] The Court below charged the Jury, that before they could find the defendant not guilty, upon the ground that he was acting in defence of his brother, they must believe that it was absolutely necessary to kill the decedant in order to save his brother’s life, or- to prevent the' perpetration of' a felony upon him.

It is urged that error here lies in not giving the prisoner the benefit of the 16th section of.the 4th division.of our Penal Code, which, after justifiable homicide has been defined in previous sections, and. such circumstances and instances as will amount to the same have been given, declares, that “ all other instances which stand upon the same footing of reason and justice, as those enumerated, shall be justifiable homicide.”

The rules which justify self-defence, have been held to extend to- the relations of parent and child, husband and wife, and master and servant; and to no other domestic relations; It would seem, however, that the relations of brother and brother, or brother and sister, or sister and sister, in this respect, may be said to stand upon the same footing of reason and justice, especially if he or she who was assailed was dependent upon the slayer for protection. If so, such an assault upon a brother or sister as would justify the fears of a reasonable person, that the same would result in death, unless he-or-she •took the life of the assailant, would be his or -her justification in so doing.

These are our views on this point. We would not,, however, be understood as reversing the judgment on this-ground, as no point was made to the Court below, by specially calling his attention to this view of the subject; and it is unnecessary to give direction to the case upon this point, as it goes back upon another ground.

While on this point I desire to say,. that this section of the Code which we have been .considering, should be cautiously applied by .the Courts, in my opinion. -This Court has found it frequently misapplied by Counsel, in their fervent aeal successfully to defend their clients. It has become .quite common, indeed, ingeniously to interpose it as a sort of elastic shield which may be broadly spread over almost any homicide. There is great need, therefore, of such caution as may prevent its abuse.

On the ground specified, the judgment is reversed.