37 S.E.2d 173 | Ga. Ct. App. | 1946
1. Where the judge satisfied himself that a juror was incompetent, in that he had been convicted of a crime involving moral turpitude, and then set the juror aside and proceeded regularly until the other jurors were selected and the panel completed, there was no error in this conduct. It is immaterial how the fact of such incompetency is shown, and if the judge is satisfied that it exists, the consent of counsel is unnecessary to the validity of the court's action. Ozburn
v. State,
2. The trial calendar of the court, showing when the case or cases listed thereon are set for trial, is generally made for the convenience of the court, the court officers, and counsel, and is not a judicial record which would be proved only by certified copies.
3. In the instant case, where the defendant and his brother went to the home of a witness, and the brother of the defendant offered the witness money to testify falsely in a material matter in a particular and specified judicial proceedings, it was, under the facts of this case, a question for the jury whether the defendant heard such statement of his brother, and whether his failure to disaffirm or deny it amounted to an admission.
4. The evidence authorized the verdict of guilty of a felony (attempt to commit subornation of perjury).
It is for the party asserting error to show it. The defendant could demand a competent and impartial jury but not an incompetent juror. Northern Pacific R. Co. v. Herbert,
In Abbott's Trial Brief (Criminal Causes), § 124, p. 279, it is said: "The court may of its own motion, in the exercise of sound discretion, set aside an incompetent juror at any time before evidence is given." A footnote under this statement says: "Even against defendant's objection." Warnack v. State,
2. The trial calendar of the court is usually a sheet of paper, on which is a list in writing or printing showing when the case or cases listed thereon are set for trial, and, as a general rule, is made for the convenience of the court, court officers, and counsel. There is no law requiring the making and preserving of such calendars so as to establish them as judicial records which would be proved only by certified copies. Such a calendar, when tendered in evidence, is not subject to the objection here urged, to wit, that it is a court record and that the highest and best evidence is a certified copy of such calendar.
3. The witness, Fannie Walton, testified that the defendant and his brother went to her home and that the brother of the defendant offered her money to testify falsely in a matter material to the issue in question in a particular and specified judicial proceeding. As to whether the defendant made such a statement to the witness, the witness, in answer to a question propounded by State's counsel as to whether the defendant heard such statement made by his brother, testified: "I don't know; he [defendant] could have. I don't guess he is just hard of hearing." The relative positions of the defendant, his brother, and the witness, and the tone of voice of the witness and the defendant's brother were all testified to by witnesses. "`Where inculpatory statements were made by a brother of the defendant in his presence and under circumstances which would warrant the inference that he heard them but did not deny them, they were admissible in evidence, the question whether they were so heard being left to the jury under proper instructions.'" Thrasher v.State,
4. It appeared from the evidence that there was: (1) a case pending against the defendant, in which perjury might be committed; (2) an attempt by him to induce Moneter Moore to testify therein; (3) testimony sought which was material; (4) and false; (5) Moneter Moore being approached by defendant to so testify falsely in said case; (6) but a refusal by her, resulting in a failure of the defendant's efforts to procure the perjured testimony. Nicholson v. State,
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.