Hayes v. State, 58 Ga. 35

Hayes v. State

58 Ga. 35 | Ga. | 1877

Lead Opinion

Bleckley, Judge.

1. The indictment will not be quashed because the names of two of the grand jurors varied thus : the jury list had on it the name of S. Wadford; the indictment contained the name of Seaborn Watford; the jury list had on it the name of John W. Stoy, Jr., and the indictment contained the name of John W. Stoy. When the names so nearly correspond, and there is no decisive evidence showing that the persons who actually served as jurors, were not the individuals designated by the commissioners, and registered on the list as competent to serve, the presumption is that the grand jury was legally constituted.

2. When the prisoner has been arraigned and has pleaded not guilty, an issue is formed, and the same remains an issue *46until tbe plea is withdrawn, or until the indictment is disposed of. If, after a verdict of guilty, a new trial be had, the new trial may take place without a second arraignment. 49 Ga., 103. So, if a mistrial be declared, it is not necessary to re-arraign the prisoner in order to put him again on trial.

3. When the judge has become exhausted by a late night session, he may and should adjourn over until next day, though he had previously annnounced that he would conclude the trial that night, and counsel for defendant have made their final argument with that expectation, and though the concluding argument for the state be thus postponed until the solicitor has had the benefit of rest. There is no law which requires a court to disregard the necessary physical conditions of efficient labor.

4. Where the killing is admitted, the court may say so. See 56 Ga., 365. The complaint that the rale given in the 14th ground of motion for new trial, touching manslaughter, is less favorable to the prisoner than it should be, is wholly unfounded. It seems more favorable to him than the true law of the case would warrant; and the same may be said of some other parts of the charge set out in the record.

5. Under the facts in evidence, the 6th, 1th, 11th and 13th grounds of the motion for new trial, are so obviously free from error as to require no more than bare mention. The 5th and 12th grounds are disposed of by what is ruled on the subject of trespass.

6. As the jury have no concern with the reviewing powers of the supreme court, any reference to the same by the presiding judge, in his charge, on the law of a criminal case, even if not positive error, should be omitted. 5 Ga. 138-9; 8 Ib. 267; 11 Ib. 57; 15 Ib. 121, 122; 22 Ib. 212.

7. To intentionally kill, with a deadly weapon, one who is committing a trespass upon property, is generally murder, and not manslaughter. Wharton on Homicide, §414. No exception to this general rule is involved in the present case, the trespass, if any, being the appropriation and removal of *47a small piece of timber of trifling value. "What is said in 5 Ga. 86, and 18 Ib. 194, refers to trespass affecting tbe person, and not to trespass affecting the goods only.

8. The defendant having requested a charge on the subject of preparing the weapon, it was not error for the court, after giving the matter requested, to add, that the jury were to judge from the evidence whether the prisoner provided himself with the weapon for the purpose of killing the deceased, and that doing so would be evidence of malice. This addition was not wholly without evidence to warrant it. Although the prisoner was a watchman at a railroad depot, and committed the homicide while on duty; and although, under the evidence, it was usual, and not improper, for railroad watchmen to go armed, yet, as there was no direct evidence that the prisoner had ever been armed while on duty before the occasion of this shooting, and as it did not affirmatively appear when, where, or for what purpose, he procured the pistol, and as there was some evidence tending to show that certain expressions escaped him shortly after the shooting, which indicated that the thought of dealing with the deceased as a trespasser was not altogether new to him, the jury were at liberty to consider whether, from all the circumstances, lie had the pistol as a part of his ordinary equipment as watchman, or whether he procured and prepared it with special reference to using it as he did use it — that is, shooting the deceased with it in case the latter should attempt to carry wood from the yard and not desist when ordered.

It should be added that, generally, the court cannot instruct the jury that one thing is evidence of another, for this is to reason or infer, which is work appropriate to the box and not to the bench. But as respects the conclusion of malice from the preparation and use of a deadly weapon, it has long ago become a rule of law; and because it is such a rule, the court may give it in charge, not solely because it is sound reasoning or good logic. Originally, perhaps, it was but the latter, and while it so continued a more reserved method of charging on it may have prevailed. A still further *48observation proper to be made is, that the application of the rule to the present case is not made doubtful by any element of justifiable homicide in the evidence.

9. The charge to the jury, in a criminal case, should state and explain the law, but should contain no argument whatever upon the facts. The tribunal of inference is the jury, and the jury alone. Not only are they to judge wliat facts are established, but they are to draw their own conclusions from them, under the law, uninfluenced by any impressions which may have been made by the testimony upon the mind of the judge. His convictions should neither be declared nor intimated. He should state that the law implies malice from the preparation and use of a deadly weapon, but to proceed in the orgumentati/oe manner following, is manifest error:

“Well, did he deliberately intend to do it? Was there any circumstance to show he had prepared himself to stop people from trespassing on the yard ? That he had got a pistol, loaded it with ball, prepared himself for the emergency, and that he had previously or afterwards said he was going to stojo it ? If that was the evidence, what more deliberation cam a morn have? You are bothered, troubled, and you commit an act, and you say afterwards, you have stood that thing as long as you are going to. These are facts from which a deliberate intention may be inferred.”

This charge is the more objectionable, because some of the facts enumerated are not found in the evidence — certainly not in the distinct and definite form in which they are here presented.

10. In the fifteenth ground of the motion for new trial there is objectionable matter. In arriving at intention, regard should be had to what transpired at the killing, as well as before and after. The following ¡passage should have been omitted as partly argumentative and partly irrelevant: “ What kind of a duty can a man feel he was periorming to take human life ? In defense of person, habitation, or as an officer of law.”

*4911. In charging the jury, the court should not ask, “ LIow did he conduct himself afterwards, as the deceased lay before him, a victim ? ” The use of the word victim is not favorable to cool and dispassionate trial. Nor should the court decide for the jury, so far as to say to them that if certain facts be not true, the prisoner “ is guilty of murder.” See the twentieth ground for new trial in the reporter’s statement.

12. When, during the trial of a capital case, the judge leaves the bench and withdraws beyond the bar, he should order a suspension of business until his return. His immediate presence tends to preserve the legal solemnity and security of trial, and upholds the majesty of law. Especially, while a witness for the state is under examination, should the judge not retire beyond the bar, without directing the examination to cease during his temporary absence, however necessary or however brief his absence may be.

13. The guilty and the innocent are alike entitled to be tried according to law, in the immediate presence of one of the state’s judges, and with no material error in the charge of the court. Because the prisoner has not been thus tried he is, as matter of right, entitled to a new trial, whatever may be the degree of Iris guilt.

Judgment reversed.

Concurrence Opinion

Jackson, Judge,

concurring.

Whilst I do not give my assent to all the criticisms upon the charge of the presiding judge made in the opinion of the majority of the court, and think that the charge, taken as a whole, including the requests given, is fair, if not favorable to the prisoner, yet in view of the fact that the presiding judge left the bench without suspending the trial, and was outside of the court-room pending the examination of a witness and the argument, and that the judge made allusion in the charge to the deceased as the prisoner’s “ victim,” and on the vital point of deliberation in the act *50of shooting, after enumerating certain facts, asked the question, “ What more deliberation could a man show ? ” or words to that effect, I concur in the judgment that it is better to grant a new trial even in a case like this.