Horne v. State

| Ga. | Dec 15, 1867

Walker, J.

1. By the Revised Code, section 4535, the form of an indictment should be: “The grand jurors selected, chosen and sworn for the county of-to-wit: in the name and behalf of the citizens of Georgia, charge and accuse,” etc. By section 4536, all exceptions which go merely to the form of an indictment, shall be made before trial; and no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offence charged in the indictment. After the rendition of the verdict, the defendants moved to arrest the judgment because the bill of indictment fails to charge defendants “ in the name and behalf of the citizens of Georgia.” Did this omission affect the real merits of the offence charged in the indictment? Was it'not an exception which went merely to the form of the indictment ? The exception being merely to the form of the indictment should have been taken before trial.

2. Ought the Court to have permitted the defendants to sever on their trial ? This is an important question, and has received our careful consideration. By the old law, when two or more defendants were jointly indicted, any one might be tried separately, except such offences as required the concurrence of two or more to constitute the crime; in such cases, the defendants should be tried jointly. Cobb's Dig. 841. The act of 1856, Pamp. Acts, p. 266, amended this, and authorized the trial of one or more in those cases which require the joint act of two or more to constitute the crime. The history of this act,, as we understand it, and the reason for its passage was, that in many cases of riots, etc., some of the parties would avoid arrest, and one party might be held for years without being tried, because the other party charged in the indictment could not be brought to trial. This was especially so in the counties bordering on the State line, and proved to be in many cases a great hardship to those parties who were indicted for such offences and remained within the jurisdiction of the court. They could not be tried separately, and they could not demand a trial, (McAlester vs. The State, 17 Ga. R., 618,) and were liable to be bound indefinitely to attend upon an indictment for an offence for which they could not be tried. The act of 1856 intended to remedy this evil and allow any one of such defendants to be tried separately, without waiting for the arrest of others charged in the same, indictment. The effect of this amendment was to advance the ends of justice and secure to the citizen his right to a speedy and public trial. Sec. 4595 Bev. Code, intended to embrace the provisions of the Code of 1833, as amended by the act of 1856, and authorized the separate trial of defendants for all offences. In Caldwell vs. The State, 34 Ga. R., 10, this section was before the court for construction and the court seemed to hold that the court is the repository of the discretion given by the statute to say in what cases a defendant may be tried separately, though jointly indicted. The court, however, there say, (p. 20,) “We do not say it is an unbridled, uncontrollable discretion; but where severance is demanded as a right, unsupported by cause shown and refused, we are wholly indisposed to interfere with the exercise of the discretion.” That was an indietment for riot, a crime which required the joint act of two or more to constitute it, and the defendants demanded a separate trial as a matter of right, upon mere motion, and without any special cause shown therefor. Under that state of facts, and in that class of cases, we think the decision was right, and wc affirm it. This case, however, is a very different one.

Here the defendants were jointly indicted for an offence of which one might be guilty and all the others innocent; this is one of the other class of cases referred to in the statute. The defendants stated that they wished to use each other as witnesses on the trial; this was assigning a special reason for severing on the trial. We all from our experience know how difficult it is to have a fair trial when several parties are on trial and they are introduced as witnesses for each other. The witness cannot testify in his own favor, and he is not bound to criminate himself. Besides the confusion of several issues being passed upon at the same time by the same jury, affecting the lives of several persons, and some of those persons on the stand as witnesses, is not likely to enable the jury to do full and impartial justice to each defendant. In.this case the wife of one of the defendants was a witness and there is a difficulty in determining from the bill of exceptions what the court ruled as to certain portions of her testimony. Even the counsel for the State, in the argument before this court, differ as to what was decided. It originates from complicating too many issues to be decided at once. The humanity of the law did not intend to deprive three men of their lives by a trial thus confusedly conducted. The court should have granted their motion to sever on their trials, and then the attention of the court, counsel and jury could have been fixed upon the party on trial; and justice would much more likely be attained in this manner than by the coui’se pursued on' the trial. In a case of this sort the fact that the defendants wished to use each other as witnesses ought to have been sufficient special reason for severing on the trial, even if the court had the right to refuse it without special cause shown, and we would have felt bound to reverse his ruling on this point as a matter of discretion. The court must so use his discretion as not to abuse it, and if he improperly use his discretion this court will control it. But as a general rule we hold that in all cases where parties are indicted for an of-fence which does not require the joint act of two or more to constitute the offence, the defendants upon application have a right to be tried separately ; the rule is otherwise in those cases which require the concurrence of two or more in their commission; in cases of this class the matter is subject to the legal discretion of the court - before whom the trial takes place.

3. The remark of the judge in ruling out a question asked by the State’s counsel “ that Horne had a right to be mad; he thought any body shot had a right to be mad,” was improper; and such an impropriety as we should be constrained to correct, if there were no other error in the case. It was certainly an intimation by the judge during the progress of the cause as to the guilt of the accused; and would make it obligatory upon this court to grant a new trial. Rev. Code, sec. 3183. Horne had no right to be mad unless he had been wronged ; and whether defendants had wronged him or not, and if so of how great a degree was that wrong, was the issue then upon trial. The judge should discharge his duties with impartiality. Let him so administer the law that it may appear, as indeed his feelings should be, that it is wholly indifferent to him which party may succeed, provided the law is administered. Justice is represented 'as blind, so that she may not know either party, and with a firm hand hold the scales even. The jury should not from any conduct or word of the judge be able to know what he thinks the verdict should be. Let him discharge with impartiality those duties which the law imposes upon him, and leave the jury free to perform those imposed upon them, according to law and the facts of the case.

Judgment reversed.