64 Ga. 374 | Ga. | 1879
Lead Opinion
With regard to public excitement and prejudice, we see nothing to take this case out of the general rule long since laid down here authoritatively, to the effect that these have ceased to be cause for a continuance. 24 Ga., 297 ; 48 Ga., 116; 60 Ga., 257. It seems quite immaterial that the means of stirring up the excitement and prejudice were inflammatory newspaper articles. Why should the condition of the popular mind be treated as more dangerous to the accused when wrought up against him by the press, than when inflamed to an equal degree by any other agency ? Is the press, as such, to be recognized as a power which can retard the trial of persons accused of crime ? Newspapers are free to publish what they please, so that they keep clear of the law of libel, and if they succeed in impressing the public mind unduly against an alleged criminal, are the courts to wait for the storm they have raised to subside, though the presiding judge should be convinced that there is no real obstacle to obtaining an impartial jury and having a fair trial? Surely it is unsound to make any distinction, as matter of law, between excitement produced by the newspapers and that produced by other means. In a county
Upon the subject of the prisoner’s ability while in jail to confer fully with his counsel and prepare for trial, notwithstanding his injuries and his physical and mental suffering, the court below, on the counter-showing made by the state, was warranted in coming to the conclusion at which the judge arrived. To overrule the motion for a continuance, in so far as it rested on this branch of the showing, was strict practice, and we should have been better satisfied if the judge had been more liberal; but we must toy his conduct by the law, and not by our personal feelings, and so doing, must remember that the application for a continuance was addressed to his sound discretion, and that he was in a better position than we are to discern the precise line upon which his discretion ought, in a doubtful case, to move. The question for us is not whether we should have exercised his discretion as he exercised it, but whether he abused it. Being of opinion that he did not, but that he only pursued a strict practice instead of the more liberal practice which we ourselves, if in his place, would have preferred, we, as a reviewing court, must decline to interfere. Code, §3531; 1 Ga., 213; 10 Ib., 86; 14 Ib., 6; 26 Ib., 276; 38 Ib., 491; 46 Ib., 209 ; 47 Ib., 598.
Having, in the light of the evidence, traced the accused from the beginning to the ending of the criminal enterprise,
The difficulty of formulating a description of the res gestee which will serve for all cases, seems insurmountable. To make the attempt is something like trying to execute a portrait which shall enable the possessor to recognize every member of a very numerous family. Eschewing anything so impracticable, and letting the present case sit for its own individual likeness, its res gestee may be sketched in general language as follows: (1.) Where two persons consent to fight with deadly weapons, and by agreement separate to arm themselves, both intending to return presently and begin the combat, and they do in fact arm themselves and meet, though not at the place appointed, but near it, in the same city and on the same street, and only a little later than the time contemplated, and actually fight with the weapons thus prepared, and one of them is slain by the other, the res gestes of the transaction comprehend all pertinent acts and declarations of the parties (either or both) which take place in the interval between the agreement to fight and the consummation of the homicide such interval being very brief. (2.) Acts are pertinent as a part of the res gestes if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it; and declarations are pertinent if they are uttered contemporaneously with pertinent acts, and serve to account for, qualify, or explain them, and are apparently natural and spontaneous. See the works on evidence, and the cases they cite. Also the cases cited in Hopkin’s Penal Laws, §§527, 528, 530. Code, §§3771, 3773.
In the order of time, the next conversation complained -of is that to which Murphy testified (9th ground of the motion for a new trial). Though Murphy was a witness for the state, he was examined late in the trial, and, as will be seen hereafter, this conversation had already been touched upon by one of the prisoner’s witnesses, Sams, and by two ■other witnesses for the state, Renfroe and Howard. It took place during the interview between' Sams and the deceased in the treasurer’s office, about twenty minutes before the homicide, at which interview the deceased received and answered the message which the accused had sent to him through Sams. Most certainly this exchange of messages was an important event in the occurrences of the day, and the whole of the conversation repeated by Murphy bore directly on the transaction then immediately in hand. A part of it went to the very shaping of the answer which Sams was directed to bear to the accused, and to the inspi
The matter embraced in the 6th ground of the motion for a new trial followed immediately upon the return of the deceased from Berron’s and his seating himself in the-treasurer’s office, and was succeeded immediately by the matter set forth in the 5th ground. The evidence complained of in these two grounds, when thrown together, reads thus: “ He (Alston) stated to me, ‘ This is an awful thing to have a man hounding you in this way.’ I asked him, ‘Did you not meet Cox?’ He said, ‘No, he has gone-up stairs hunting me ’ — and then it was that Peter made-the remark that Cox was coming down stairs. Peter said,. ‘Col. Alston, Cox is coming down the steps now;’ and Alston said, ‘ Go and fasten that door ’ — ^and, Peter went to-do so, and met Cox there, and Cox passed .him and came-into the room.” Let it be borne in mind that it was from; this very office that the deceased had sent his answer to the-message of the accused received through Sams; that after-receiving that answer the accused had set out from the-barber-shop to seek him ; that it was to this office that he-first went on reaching the capital; that the deceased, while-at Berron’s in conversation with Governor Colquitt, had seen him on his way to the building, and that at the time the deceased returned from Berron’s, he was in fact upstairs in the building, and it will be plain that neither of these parties had passed wholly out of the res gestee of their pending difficulty. Both were still armed with the prepared weapons, and both may have desired and intended to-use them. The return of deceased to the treasurer’s office,, and there stopping as if to remain, were acts of undoubted pertinency, and the state of mind in which they were performed^ — -the motive and purpose which attended them— are of the utmost importance. If he went there to put himself in the way of the accused and bring on a collision, and if the accused went with a like object, it was essentially the meeting which had been pre-concerted in the barber
Furthermore, by turning'back to the reporter’s statement, it will be seen that a very similar conversation, in so far as it embraced recitals or narrative by the deceased, was put in evidence by the accused in the testimony of Governor Colquitt. The state also afterwards, and without any objec
Adverting again to the 9th ground of the motion for a new trial (Murphy’s evidence), Howard was examined before Murphy, and testified without objection thus : “ I took Mr. Murphy aside and told him let us stop this, and we persuaded Alston to stay in that part of town, and he did so, though he did not like to be bullied- that way. Then directly he said, ‘Here is a man who has come with a message from Cox for me to come down there and settle it like a man ;’ and I said to the man, ‘ did he send that message ? and he said, ‘yes, and I am sorry to bring it.’ That was Mr. Sams, and I said to him, ‘you go and tell Cox to stop this and wait-; I will be down there directly and give him some advice, and he will thank me for it the balance of his life.’ And Alston said, ‘ Go and tell him I have reconsidered the matter and will not come — that I don’t want to kill him and don’t want him to kill me.’ ” Before Howard testified, the accused had proved by Sams a part of what was said at this interview ; and, first of all, Renfroe had gone into it, the accused it seems objecting, but not carrying forward the objection into the motion for a new trial. If Murphy’s evidence was doubtful or even inadmissible as a part of the res gestes (but it was neither), it would not, considering what was already before the jury when it came in, and remained before them, be sufficiently material to require a new trial. In substance
On both sides the case was argued before us with unusual thoroughness and remarkable ability. The result of the argument and of a careful examination of the record, has been to satisfy a majority of this court that there was no error in overruling the motion for a new trial.
Judgment affirmed.
Siuco this case was decided, useful articles touching declarations as a part of tho res geslm have appeared in 31 Alb. Law Journal, 484, 504; 22 Ib., 4; 14 American Law Rev., 817; 15 Ib., 1, 71.
Concurrence Opinion
concurring.
The exhaustive opinion of my able colleague, who announced the judgment of the majority of the court, leaves me nothing to say. Complying with the law, however, which requires me to state my reasons for concurring in the judgment, I wish to say that those reasons are to be found at length in the opinion of my colleague, and to add that on the point in which the venerable Chief Justice differs from us my views very briefly are these:
1. While as a circuit judge presiding in this case, I might have ruled differently on the motion for a continuance, yet I cannot say that the court abused his discretion in the ruling he made. He had the defendant before him and saw his condition; he could judge of all the surroundings; he heard the evidence ¡pro and eon; in the light of all the facts, he made his ruling, and I cannot say that he erred.
2. The meaning of res gesta is the thing carried on. To show the thing carried on, its beginning is as essential as its ending. - An enterprise is carried bn by acts and words. In
Not only as res gestee, but on the principles last mention•ed, all the testimony was, in my judgment, admissible.
The entire charge is fair and legal — the evidence sustains -the verdict — and my sense of duty demands that I affirm it. Most gladly would I restore the living to freedom and family — the dead to life and family, if I could ; but these I cannot do.
. It remains that I administer the law impartially as I understand, it, and that leads me clearly to the conclusion that the defendant has had a fair trial — that he has been legally •convicted, and that the judgment should stand.
Dissenting Opinion
dissenting.
Whilst public excitement alone would not have been sufficient to authorize the continuance of the case, still, when that public excitement is aggravated by inflammatory newspaper publications calculated to prejudice the public mind' against the defendant, as set forth in the record, coupled' with the fact of the defendant’s physical condition resulting from wounds received in the then recent difficulty, as established by his attending physician, and not denied, to-wit: having received a pistol-shot wound in his mouth,, knocking, out three upper jaw teeth and four lower jaw teeth, and indenting one of his teeth in his tongue, and had another pistol shot wound in his left hand and wrist;» his tongue so lacerated and swollen that the saliva was constantly oozing from his mouth, and in the opinion of the doctor he was unable to confer with his counsel fully and prepare his case for trial. By the constitution of the-state the defendant was entitled to a trial by an impartial-jury, and was entitled to defend his own case in the court in person, by attorney, or both. From the evidence in the-record it is manifestly apparent that the defendant was not in a condition to exercise his constitutional right to defend his own case, and by forcing him to trial in that condition-deprived him of that right, for it was his undoubted constitutional right to defend his own case in person, by attorney,, or both. The spirit of the constitution, as well as the ends-of justice, required a continuance of the case.
In my judgment the court erred in admitting the declarations of Alston, the deceased, to Renfroe and Nelms, as-contained in the 6th and 7th grounds of the motion for a new trial, in so far as the same related to the acts and sayings of the defendant, in his absence, said grounds being as-follows :
6th. Because the court erred in allowing J. W. Renfroe,. a witness for the prosecution, in answer to questions by the state, and over objection of defendant’s counsel, to testify to a conversation had with the deceased from five to ten.
7th. Because the court erred in admitting in evidence, over the objection of defendant’s counsel, a conversation between J. W. Nelms and the deceased, which occurred twenty minutes before the killing, in a different part of - the building and in the absence of.Cox, as follows: “Alston told me he had like to have had a difficulty and wanted a pistol. I told him to come and sit down and tell me about it. I asked him who he was about to have a difficulty with ; he said with Cox. Said he‘Nelms, he carried me in to take a drink with him and I would not drink with him, and took this cigar (had a cigar in his hand) and then he took me into-a back room of a barber-shop and shut the door and said, ‘ Bob, I want to see that power of attorney you have to sell Gordon’s interest.’ And I said’I would riot show it under compulsion, and Cox said, T am going to see it before you leave this room.’ And that he (Alston) said, ‘aint you a nice great big rascal here with your knife when I have not got a piece of steel on me, to try and force me to terms.’ And he said, ‘goand arm yourself and I will wait for you, and,, he said he is waiting for me now ; and he asked me again for a pistol, and I said my pistol was at home.”
The illegal part of Renfroe’s testimony was in proving by Alston’s mere declaration “ that the defendant had gone up-stairs hunting him.” The defendant had a perfect right to go up-stairs iri the capitol building, and there is r.ot a particle of evidence in the record, either by word or act on the part of the defendant himself, going to show that he had gone up-stairs hunting Alston, and surely he ought to be judged by, and held responsible for, his own acts and declarations, and not by the acts and declarations of other people made behind his back, the more especially as in this
The court charged the jury amongst other things: “It would be unlawful for two persons to deliberately conspire
This charge of the court was error in view of the evidence in the record, inasmuch as it did not present the defendant’s theory of his defense for the consideration of the jury. The evidence shows that the agreement to meet and fight at the barber-shop had been abandoned. The deceased had however procured one of the best self-cocking pistols in the city, and while standing at Berrons’ talking with Governor Colquitt, saw the defendant go into the capito 1-building, and said that he did not know but that it was his duty to his family to take a double-barreled shot-gun and shoot him when he saw him; said he had a pistol then. Shortly thereafter the deceased went into the capitol-building where he had just seen Cox, the defendant, go, and went into the treasurer’s office where the difficulty occurred— Alston firing the first shot, having Nelms between him and defendant at the time. Although the deceased had sent the defendant word that he would not meet and fight him at the barber-shop, but whether he was willing to meet and fight the defendant in the treasurer’s office, and was seeking him for that purpose where his friend Murphy, who had