22 Ga. 545 | Ga. | 1857
By the 'Court.
delivering the opinion.
“If a clause of exception contained in the same statute, excuses a person under such and such circumstances, or gives license to persons so and so qualified, so as to excuse or except them out of the general prohibitory words, that must come by way of plea or evidence, that the party is not within such general prohibition but excepted out of it.” Rex. vs. Pemberton, 2. Bur. 1036. That case was.an indictment for exercising the occupation of a tanner, not having served an apprenticeship therein for seven years. The defendant contended that the statutes allowed certain persons to exercise the trade without having served such apprenticeship, and that the indictment ought to specify the qualifications of such persons, and to show that the party is not within any of them. The principle is the same.
The juror Robert Bears was examined as to his competency. His evidence was fully heard, and he was pronounced competent by the presiding Judge, who was the trior, whose judgment, we are not prepared to say, was such as to call for our interference. Costly vs. The State, 20. Ga. Rep. 629.
If a person be drawn from the jury-box, or summoned by the Sheriff as a tales juror, he is presumptively a qualified juror. The Sheriff is not to be presumed, to have returned a disqualified person; but if a person not qualified, shall be returned on a jury, he shall be discharged on the challenge •of either of the parties and proof thereof; or on the juror’s •own o^th. Cobb 546. The juror answered that he was born out of1 the limits of the United States; but that, did not overcome the presumption of qualification, for his return on the panel of the jury implied that, if he was born the subject of •another government, he had been naturalized here.
They must have found that the prisoner intended to kill the slave, and in this respect, the Court is not disposed to come to a different conclusion: but although the jury have "found, in the proof submitted to them, some circumstances which, under the law, they thought justified them in reducing the crime to manslaughter, we confess that it is difficult for us, under our construction of the law, to come to the same conclusion. The State does not and cannot move for a new trial. If we order a new trial, it must be on the ground that,, according to our judgment, the prisoner is guilty of murder. He was indicted for murder. The jury found him guilty of voluntary manslaughter. This finding acquits him of the charge of murder, and however contrary to law it may be., the Court cannot grant a new trial, so as to subject him to a trial for the offence of which the Court may believe him to be-guilty. The same section of the Penal Code which says that the jury shall be judges of the law and the fact, declares that on the acquittal of any defendant" or prisoner, no new trial shall, on any account, be granted by the Court. §309 Penal Code. Cobb 835.
Judgment affirmed.