Howell v. Howell

59 Ga. 145 | Ga. | 1877

Jackson, Judge.

This case was here before', on an alleged error in the court below in granting the defendant a new trial, when the verdict was against him. Now the verdict is for him, the court below has refused the complainants a new trial, and they bring up the case on various grounds of error contained in their motion for a new trial.

1. The first ground is the refusal of the court to purge the panel of jurors from which a special jury of twelve men was to be stricken, on demand of the defendants, the plaintiffs in error here. That demand was couched in the following words: “ That said jurors be put upon their voir dire and questioned as to thpir competency and impartiality as jurors, to try said cause, in accordance with the ruling of the supreme coiirt, as contained in vol. 15 Ga. Reports, p. 41; said cause having, before that time,- undergone two investigations in said court, both of defendants being residents of said county, while all of the complainants were non-residents, and the principal defendant, Singleton G. Howell, belonging to said panel of jurors, and having been relieved by a substitute when said case was called,”

We think that these words amount, in substance, to a challenge of all the twenty-four jurors, and a demand that each juror be sworn, as a witness, to testify as to his impartiality, and that the question made here is controlled by the case cited from 15 Ga. Page 41 of the report of that case shows, it is true, only what was demanded by the party and granted by the presiding judge; but as that was objected to, in its totality, by the other side, and the judgment of the court below affirmed on writ of error here, the ruling of that court became the judgment of this court; and as it is a unanimous judgment, it binds ug as firmly as an act of the general assembly could.

The course there pursued was to put each juror on his voir dire, and thus purge the list. That is the substance of what was asked here; it was refused; and if the decision in the 15th be law, of course the court erred in that refusal.

Nor do we think that the error was cured by the waiver of objection to the challenge of any jurors on the list pointed out by the other side. The complainants ought not to have been forced to incur the odium or prejudice of any particular jurors by thus singling them out. The same may be said in respect to the questions of relationship to either party, or as to whether any juror had set upon the case before, propounded by the judge. That did not cure the error. •The error was the refusal to pursue the course followed in 15 Ga., and approved by this court, so as to ascertain from each juror that his mind was free from all bias, and that he was perfectly impartial between the parties.

The cases in 7th Ga., 139, and 15th Ga., 39, construed together, decide that parties are entitled to an impartial jury, and to ascertain that impartiality from the jurors themselves, by putting the whole panel, man by man, on the voir dire.

2. We think that the testimony of Spence should have gone to the jury. It was his opinion of the character of the donor in regard to his pliability and prejudices, and the ease with which he could be influenced, drawn from long acquaintance with him, and circumstances arising from that acquaintance. In other words, it was his opinion of the sort of mind the donor had, when the stubborness or pliability of mind was an important point in the case, in respect to those qualities of mind; an opinion based uj>on long acquaintance with, and intimate knowledge of, the man. The Code, §3867, certainly covers such an opinion as this. The question being, was the donor unduly influenced, the character of his will, whether stubborn or yielding, seemed to enter into it materially, and the opinion should have gone to the jury with the reasons therefor. As the case is to be again tried, while we would not have reversed tbe judge on this ground alone, we rule that this evidence be admitted.on the next trial.

3, 4, 5. The other testimony, which was ruled out, we think should have been excluded, and we find no error in excluding it. It consists of general statements of conclusions of the witnesses without facts, of misrepresentations and exercise of influence.without a hint of what was said or done, and of sayings of the donor after the title had passed out of him, not, so far as we can see, in rebuttal of any sayings introduced by the donee, nor illustrative of the condition of the donor’s mind shortly after the date of the gift.

6. We give no opinion on the weight of evidence, as the case goes back to be tried over.,

7. We also decline to pass upon the bill of exceptions, taken and recorded qpendonte lite, inasmuch as error was not assigned thereon, and the point raised therein was not argued before us. If the plaintiff in error in that interlocutory bill of exceptions wished it decided, he should have given the other side an opportunity of being heard thereon, by assigning error and calling attention thereto in this court.

On the whole, we reverse the judgment, and grant the new trial, because the complainants were denied their legal right to ascertain that the jurors were impartial, as decided in 15 Ga., 39 et seq.

Judgment' reversed.