Doyal v. StateDoyal v. State
- Reporters:
- Before:
- Hall
Alfred B. Doyal was tried for the offense of murder, at: the February adjourned term, 1882, of Spalding superior court, and found guilty; whereupon he made a motion for a new trial, upon the various grounds therein set. forth, which, after being heard and considered by the court, below, was overruled and denied. To this judgment refusing the new trial exceptions were taken, and by-writ of error brought to this court..
That a person over sixty years of age is not a qualified juror is evident from the very words of the Code, §4681, par. 2 - and it has been held that it is the duty of the court, if apprised of the fact in time, to excuse him. Cochron vs. The State, 20 Ga., 752; Buroughs vs. The State, 38 Ib., 403.
It is urged in argument that, under section 4649 of the Code of 1882, it was not proper for the court to allow the solicitor general to enter this nolle prosequi, except for some fatal defect in the bill of indictment, to be judged of by the court,‘in which case the presiding judge should *143order another bill of indictment to be forthwith submitted to the grand jury; or until an examination of the case had taken place in open court.
These provisions of the law are merely directory, and were intended to prevent an abuse of the power of entering a nolle prosequi by the solicitor general. They are improperly codified with what was section 4535 of the Code of 1863, and 4555 of the Code of 1868, which provided that no nolle prosequi should be entered after the case had been submitted to the jury, except by the consent of the defendant. This was evidently intended for the protection of parties accused of crime, and whenever their right to have a jury pass upon the case, after being submitted to them, has been violated, by causing a nolle prosequi to be entered without their consent, this court has invariably treated it as an acquittal. The cases to this effect are so numerous, and the principle they establish so plain, that it would be a waste of time and space to cite them. The solicitor general, by Irwin’s Revision, §415, had authority, on the terms prescribed by law, to enter a nolle prosequi on indictment. What those terms were is sufficiently indicated in the subsequent clause of that section, as also by the succeeding section. They related, as it appears, wholly to the payment of the costs that had accrued; for if he had directly or indirectly exacted in money or other valuable thing from the defendant or anybody else, more than his lawful cost, then it became a subject-matter for investigation by the grand jury; and if that body presented him for having received more than his lawful costs, then he was disqualified from further discharging his official duties until a trial could be had upon a bill of indictment, and if that trial resulted in his conviction, he was to be fined and imprisoned at the discretion of the court. This conviction was made a ground of impeachment, and the disqualification consequent upon this action was made to continue until the adjournment of the next session of the general assembly.
*144Notwithstanding these stringent provisions, it seems that in the opinion of the general assembly the public was not sufficiently protected from this abuse of power by the solicitor general, and they accordingly passed an act approved October 28, 1870, and entitled “an act to repeal section 415 of Irwin’s Revised Code, in relation to entering nolle proseguís, ” etc., by the first section of which it was enacted that no nolle proseguí should be allowed, except it be in open court, for some fatal defect in the bill of indictment to be judged of by the court, and if it was then allowed, the presiding judge should order another bill of indictment to be forthwith submitted to the grand jury.” (Acts, 1870, p. 422.)
By some singular classification, this act was, by the codifiers of 1873, made a part of §4649 of the Code that year; but in 1877, the legislature passed another act upon this subject (Acts, p. 108), which, although it did not in express terms repeal the act of 1870, yet, as it seems to us, did so by necessary implication. This is entitled “ an act to allow a nolle proseguí to be entered in criminal cases with the consent of the court ”; and it enacts that “a nolle proseguí may be entered by the solicitor general in any criminal case, with the consent of the court, after an examination of the case in open court.” This is the entire statute, except the usual repealing cause.
Notwithstanding this legislation, section 415 of Irwin’s Revised Code appears in each subsequent edition of the Code precisely as it stands there. See Codes of 1873 and 1882, §380. How such distinct and dissimilar provisions as those which regulated the conduct of a court official, and such as were designed to protect the rights of persons accused of offences, could have been united in the same section of the Code, we.do not understand. (See some timely and judicious observations upon this subject in the report of the Hon. Logan E. Bleckley, made in pursuance, of an appointment by resolution of the general assembly, *145approved December 11,1882, to examine the Code of 1882, etc., pp. 8-10.)
■ We know of no instance in which a defendant in a criminal case has ever been allowed in this state to avail him-self of a departure from the provisions of these acts respecting the entry of a nolle prosequi by the court or the solicitor general, as a defence to an indictment, except in the •case of entering the nolle prosequi without his consent after the cause has been submitted to a-jury. This latter, according to our Code, puts him in “legal jeopardy,” and would avail him under that plea; but from the entry *of a •nolle prosequi under different circumstances, no such effect follows. In a case where a jury was empanelled and sworn, and the state’s counsel had read the bill of indictment and made his opening remarks to the jury, but in which there ‘was no arraignment and plea, the prisoner insisted ■that he could not be convicted on account of this ’omission, and was entitled-to a verdict of acquittal, ‘the court below allowed a nolle prosequi to be entered, -and detained him until another indictment could be preferred and found; this court, upon writ of error, held that there was no error in the proceeding; that the pris - oner was never in jeopardy. Harris, J., delivering the opinion, said: “We well know that, by the Code, a nolle prosequi cannot, without the consent of the accused, be ■entered on an indictment after a case has been submitted to ■a jury; but we decide that there can be no legal submission to a jury until after arraignment and plea, or issue made. Hence, we can perceive no error in the circuit .judge in allowing the solicitor general to enter a nolle prosequi under the circumstances of this case. Had there been an issue as the law requires in all ‘criminal cases, and one juror only empanelled and sworn, the case would then have been submitted, and no •nolle prosequi .could then be entered as of right, but only with the consent of the accused. Then- the‘, jeopardy of ■the accused begins,- and not till then. - Whenever a juror *146has been selected and sworn, the cause must proceed to-verdict, unless one of those contingencies should occur provided for by statute.” Bryans vs. The State, 34 Ga., 323, 325.
That there is no such plea to an indictment as the pendency of a former indictment in the same case, or as autrefois arraign, we are well satisfied; indeed, this was expressly so ruled in the case of The King vs Swain & Jeffreys, Foster’s Crown Law, 104, 105, 106, citing 10 St. Tri. 36; Cro. Car., 147; 3 Bur., 1468.
Whether the facts testified, constitute any part of the transaction under investigation, it is not material to determine. The testimony was admissible, because the occurrence took place in the presence of the defendant, and he seems to have acted upon it. That he was in a situation to have seen what was done, and that it was done in connection with the killing, makes it competent. 65 Ga., 147. Every fact or circumstance shedding light upon the transaction should go to the jury, and especially such facts, as show motive for the crime or the intent with which it was committed. 43 Ga., 484. The act admitted here was-in the presence of the defendant and directed immediately towards him, and in that it differs from the case cited from *14753 Ga., 640. Besides, there was doubt in this case as to> the participation of the defendant in the crime and as to-the motives for their presence at the scene of the combat-For similar reasons the case cited by the able and indefatigable counsel for the plaintiff in error from 56 Ga., 274, is, unfortunately for his client, not more in point than that the statement of a witness to the disaster as to its cause, a short time after it occurred, made out of the presence of the defendant, was properly rejected. Besides, it was admissible as a warning to fly, and as part and parcel’ of the-flight of the prisoner.
The attorney general insists that “ the true rule in such cases is, that the defendant can offer proof that deceased was a person of violent, turbulent and dangerous character only where it is shown, prima facie, that the prisoner had. been assailed and was honestly seeking to defend himself and from a close and careful examination of the authorities, including the cases heretofore determined by this, court, our conclusion is, that the limitation here contended, for is. neither unreasonable nor improper, but is in accord, with the well-settled principles of the law in relation to self-defence. Dr. Wharton, in his able, accurate and. *148learned treatise upon criminal evidence, §§69 to 84 inclusive, shows that this limitation is adopted wherever ■such evidence is held admissible, in more than twenty states of this Union, including Georgia, and perhaps, likewise in England. In section 69 of his work, he thus states the proposition : “ The general principle, then, is this: not that it is lawful coolly to attack and kill a person of ferocious and bloodthirsty character; for it is as much murder in such manner to kill the most desperate of men as to Mil the most inoffensive; but that, whenever it is shown that a person honestly and non-negligently believed himself attacked, it is admissible for him to put in ■evidence whatever could show the bonafides of his belief.
* * * u must first prove that he was attacked; ■and this ground being laid, it is legitimate for him to put in evidence whatever would show he had reason to believe such attack to be felonious.” Note 1 to this section cites a great number of cases sustaining the text. This author, after reviewing the decisions of other states, says, (section 75): “In South Carolina, Geoi’gia, Alabama, Kentucky, ‘Tennessee and Mississippi, we have rulings to the same ■effect. In these states, the practice is to admit evidence ■of the deceased’s character for ferocity, in all cases in which the defendant is shown to have been acting in self-defence.” (See cases cited in note 1.)
In Bowles vs. The State, 58 Ala., 335, it was said that such ■evidence “is not receivable when there is nothing in the conduct of the deceased at the time of the killing which it illustrates.” In Monroe vs. The State, 5 Ga., 137, Lumpkin, J., •.speaking for the court, says: “ As a general rule, itis true that the slayer can derive no advantage from the character of the deceased for violence, provided the killing took place under circumstances that showed that he did not believe himself in danger.” Again, in Keener’s case, 18 Ga., 223, the same enlightened and humane judge quotes with approbation, and adopts the decision of the supreme court of Alabama, in Queensberry vs. The State, 3 Stewart and Por*149ter, 308, in which it was said by Lipscombe, C. J., who delivered the opinion: “ It is an acknowledged principle that if, at the time the deadly blow was inflicted, the person who inflicts has well-founded reasons to believe himself in imminent peril, without having by his fault produced the exigency, that such killing will not be murder.” “ If the killing took place under circumstances that could ■afford the slayer no reasonable grounds to believe himself in peril, he could derive no advantage from the general ■character of the deceased for turbulence and revenge.” In Haynes’ case, 17 Ga., 484, Lumpkin, J., again says : “ It has been well said and settled, however, that before the law of necessity can exist, a case of necessity must exist.55 In Hench’s case, 25 Ga., 701, McDonald, J., declared it the duty of the judge to enlighten the jury upon the law applicable to self-defence, and to impress upon them that it is not every danger to the slayer which justifies the killing of another; but that it is a danger to his life so great that, in order to save his own life at the time of the killing, the killing of the other was absolutely necessary.”
And lastly, in Bound’s case, 43 Ga., 128, Lochrane, C. J., speaking for the court, laid down the rule that such testimony wns “particularly applicable in cases of self-defence.”
This evidence being illegal, the court should not have permitted the defendant’s counsel to state for any purpose, in the presence of the jury, what he expected to prove as to it in relation to the matter. The course of the court, so far from being objectionable, as claimed in the 11th ground of the motion for a new trial, is rather to be commended. See Hall vs. State, 65 Ga., 36.
The newly discovered evidence set forth in the affidavits •of Leach and Blanton was of doubtful competency; if present, it could have contradicted the witness Gaddy only upon an immaterial point. But the evidence in both cases ■could have been received for the single purpose of impeaching the witness named, and a new trial is never *152granted where the evidence discovered can be used only for that purpose. Dobbs vs. The State, 66 Ga., 754.
Judgment affirmed.