18 Ga. 194 | Ga. | 1855
delivering the opinion.
When the name of Samuel A. Verdery was called, he was put upon his voire clire; and in answer to the question— “ Have you, from having seen the crime committed, or having heard any portion of the evidence delivered on oath, formed and expressed any opinion as to the guilt or innocence of the prisoner at the bar?” Said Juror announced that he had not, but that he had formed and expressed an opinion from what he had heard of the case. He answered the other questions propounded by the Statute negatively. The Attorney General pronounced the Juror competent, and he was accepted and sworn in chief to try the cause.
Whether Mr. Yerdery was a competent Juror, we are not called upon to decide. True, he was pronounced qualified by the State’s Attorney, but not by the presiding Judge. His opinion, as to whether or not the Juror stood indifferent, was not invoked; and yet, it was the only judgment which this Court is authorized to review. There has been no decision by the Court below upon this point. Not only was no attempt made by the prisoner to get -rid of the Juror, by making the question to the Judge, but he failed to put him upon triers, to test his competency, as he was entitled to do under the Act of 1843. He accepted the Juror as he was — and consented, without objection, that he should be sworn in chief, to try the traversysY And it is a maxim of the English Law, as well as of common sense, that no one can take advantage of a wrong which he, himself, agreed to.
This doctrine underwent a thorough investigation by the Judges in Convention in Glover vs. Woolsey, Co. (Dudley's 22. 85.) It is true, that was an action of assumpsit; but the
And so we. say in this case.
It is insisted that Archer was incompetent to testify, and the 7th section of the 14th division of the Penal Code is relied upon for his exclusion. It is in these words: “ Every person charged with a crime or offence which may subject him or her, on conviction, to death or imprisonment in the Penitentiary for the term of three years or more, shall be furnished, previous to his or her arraignment, with a copy of the-indictment, and a list of the witnesses who gave testimony before the Grand Jury.” (Cobb’s Digest, 834.)
In the case of Stokes against The State, recently determined at Milledgevillo, this Court held, that the defendant was entitled only to a list of the witnesses who gave testmony before the Grand Jury. Such is the definite language
True, a different construction was put upon this clause by the late Thomas N. P. Charlton, Judge of the Eastern Ciruit, in The State vs. Calvin and others, (R. M. Charlton’s R. 142.) And the reason assigned was, that as one of the authors of the Penal Code, he was solicitous to placo persons accused under our law, upon as high a scale of. dignity as was dictated by the wide difference between a citizen of a Republic - and the subject of a Monarchy. -Hence, every person committing a felony in this State, should be placed upon the same footing as a subject of England charged with treason. And that as by the Statute of Ann, a prisoner charged with treason, was entitled to a list of all the witnesses to be produced', with their professions and places of abode, the like provision was incorporated with our Code, the better to enable defendants, by inquiry into the characters of the witnesses, to make their defence.
However much we may admire the humanity of the motive which prompted-this interpretation, we most respectfully submit, that both the distinguished Jurists who framed the Code, as wejl as the Legislature which adopted it, were most importunate in the use of the terms employed, if the exposition of Judge Charlton be correct. And we coincide with His Honor, Judge Holt, that it is not safe to inquire what the -framer of the law thought when he drafted it, but what the Legislature intended when they passed it; and that this intention is to be gathered from the words used, taken in "'their plain and obvious sense; and that it is very .clear, that all that was designed was, to let the accused distinctly lenow, before arraignment, the charge brought against him — the prosecutor who preferred it, and the witnesses who gave. testimony before the Grand Jury. This is all that is expressed. Had it been designed to limit the State, on the trial, 'to .any
We affirm the judgment of the Circuit Court upon this point also.
We regret that this question was not suffered to be propounded, because of its entire immateriality. Every body, at the house where this homicide was committed, that night,, expected a difficulty, as a matter of course. There could have been but one answer to the interrogatory, and that would not have weighed a feather with the Jury; and yet, hours, perhaps, have been consumed, first and last, in discussing the rule of evidence applicable to the facts contained in the record. We subjoin the reasons given by the Judge for rejecting this testimony, in his own language :
"This question Was not allowed to be asked, because the answer would not bo as to a fact, but the expectation of a witness, arising out of a series of facts, either then in evidence or capable of being put in evidence. Now the expectation of' the witness was nothing more than the deduction or conclusion of the mind of the witness, as to the effect which these facts produced on his mind, and inferentially, would be likely to produce on the mind of Keener.”
Our brother, we believe, has stated, with accuracy, the rule as laid down in the books. (1 Greenlf. Ev. §440.) And jet, the writer from which it is taken, cites with approbation the case of McKee vs. Nelson, (4 Cowen, 355,) in which it was held, that in an action for breach of a promise to marry, a person accustomed to observe the mutual deportment of the parties may give in evidence his opinion upon the question, whether they wore attached to each other; and' that, too, without it being made to appear that the witness was an expert in the affairs of the heart.
No authority was read, for or against this point, except the case of Boswell and Blackwell, (12 Ga. R.) and that establishes this principle only: that where a witness is sought to
I took occasion, when delivering the opinion in this case, to vstate, that for myself, I was inclined to hold that the rejection of the questions, in the form in which they were put, was error ; but that in deference to the opinion of my brother Starnes, as yell as to that of the learned Judge who presided at the trial, I was content to affirm the judgment, with this distinct explanation: that it was competent to give proof as to the general conduct of the deceased for violence at this place— especially toward Keener — the testimony showing that they had long beeix rivals for the favor of the keeper of the brothel.
Upon examination, I am satisfied that the questions propounded to Prater, were in the proper form.
Mr. Greenleaf, in treating of the rule as to the admissibility of evidence of general character, concludes thus: “ But it seems that the character of the party, in regard to any particular trait, is not in issue, unless ib be the trait charged against him; and of this, it is only evidence of general reputation which is to be admitted, and not positive evidence of general bad conduct. . And the -author quotes Swift’s Evidence, and numerous cases, English and American, to sustain this proposition. (1 Greenleaf’s Evidence, §55 — note.) The particular trait involved in the issue here, was the character of Mr. Reese for violence i'n this place ; - a circumstance relied on by Keener, in part, for hi-s justification' in committing the-homicide. And it would seem that the character of the deceased for violence, was to be established by general reputation, rather than positive evidence of general bad conduct.
Either mode of proof will be satisfactory to the defendant’s Uounsel, in the present case,' provided we repudiate the doctrine, as we distinctly do, that a -man may not have different .general characters, adapted to different circumstances and .localities.; that is, a character-for rail cars and a character for the brothel; a character-for-the-church and- one for the
A schoolmaster is indicted for an assault and battery upon one of his pupils; he defends himself under his acknowledged right to inflict moderate correction. The charge puts in issue the character of the teacher for violence ; and whore, pray, would you go, to ascertain that character ? among his fellow-men, or in the schoolroom ? There can be but one response to this question: an officer in the army or navy is-tried for cruelty to a soldier or sailor; what has his reputation in the community, generally, to do with the trait of character, involved in the issue ? It is in the barracks, and on board the Man. of War, that we look for what we wish to ¡learn. There are thousands of men in this country, mild as .a May-morning when sober, but demoniacs when drunk; have not such two distinct characters ? Their moral identity is completely lost — their individuality metamorphosed under the maddening effects of alcohol. Philip drunk and Philip .sober, were altogether different persons. As a conductor, Mr. Reese was uniformly gentlemanly; at the brothel, he was menacing, turbulent, rash, reckless and raging.
The case of Quesenbury vs. The State, (3 Stewart & Porter, 308,) although not strictly applicable to the precise point which we have been considering is, nevertheless, so pertinent to the case, that I am induced to make the following quotation from the opening of the Court, as delivered of Chief Justice Lipscombe: “ that the good or bad character of the deceased, as an abstract proposition, can have no influence on the guilt of the accused, is too clear to admit of controversy. To murder the vilest and most -profligate of the human race, is as much a crime as if he had been the best, most virtuous, and the greatest benefactor of mankind)
“ If the deceased was known to be quick and deadly in his revenge of imagined insults ; that he was ready to raise-a deadly weapon on every slight provocation; or in the language of the Counsel, his “ garments were stained with many murders,” token the slayer had been menaced by such an one, he would find some excuse in one of the strongest impulses of our nature, in anticipating the purposes of his antagonist; the language of the law in such a case would be, obey that impulse to self-preservation, even at the hazard of the life of your adversary.”
“ If the killing took place finder 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 ; but if the circumstances of the killing were such as to 'leave any doubt, whether he had not been more actuated by the principle of self-preservation than that of malice, it would be proper to admit any testimony calculated to illustrate to the Jury the motive of which he had been actuated.”
“ To this cause, we can see no good objection ; and it seems pretty certain, that it would often shelter the innocent from the influence of that sound, but not unfrequently severe maxim of law, that when the killing has been proven, malice will be presumed, unless explained and rebutted. There can be but little danger of the guilty escaping, under the influence of a prejudice created by such testimony against the deceased. The discretion of the Judge will be. able to control and pre
The testimony of Cosby was rejected, mainly upon the ground, that the threats which it proves, were made in a private conversation between Reese and witness, which was never communicated to Keener.
Without stopping to inquire whether the facts related by the witness, apart from the threats, were not admissible, we prefer to confront the question directly; and to consider whether or not the evidence of Cosby, taken as a whole, should not have been received ? Keener is indicted for killing Reese; his defence is, that Reese manifestly intended, by surprise violence, to take his life, or do him some bodily hurt; that the circumstances were such as to excite the fears of a reasonable man; 'and that he acted under the influence of those fears, and not in the spirit of revenge. The proof is, that two nights before the tragedy occurred, Reese entertained the most deadly hostility toward Keener. Jealousy, another name for insanity, of the most malignant character, had taken possession of his bosom, and was shaking the throne of his reason to -its very foundation. Keener had talcen his woman .from him; and if the damned coward ever crossed his path, he would kill him; he was going out on McIntosh street be
Ought not this conversation, whether communicated to Keener or not, to have been admitted as a substantive fact,, to show' the malus animus, or evil intent toward Keener, with which Reese went to that house that night ? Laying aside all technical rules and reasoning, we ask, with the knowledge of the mind an'd feelings of the deceased disclosed by this witness, would we not, and ought not tho Jury, to listen more indulgently to the alleged apprehension of injury on the part of Keener ? as well as to the facts and circumstances upon which lip relies, to justify his conduct ? Do not these previous threats throw light upon Reese’s conduct,.up to tho time of the killing ? Do they not serve to illustrate the transaction ?
It is stated by Mr. Starkie, (1 Treatise on Ev. p. 39,) Mr. Roscoe, (Ev. p. 74, Seq.) and all the writers on evidence, that tho general rule is, that all the circumstances of a transaction may be submitted to the Jury, provided they afford any fair presumption or inference as to the matter in issue. This proposition is exceedingly broad, and if carried out in good-faith, would produce the most beneficial results. Accordingly, in Richardson vs. Royalton § Woodstock Turnpike Co. (6 Vermt. 496,) and Davis vs. Calvert, (5 Gill. & Johnston, 269,) it was held, that all facts upon which any reasonable presumption or inference can be founded, as to the truth or falsity of the issue, arc admissible in evidence.
In addition to the precedents quoted by Mr. Roscoe, to sustain the general rule of evidence above stated, we beg leave. to refer to a few cases in illustration of tho rule.
The case from Vermont was this : An action was brought by the plaintiff for damages occasioned on account of the insufficiency of defendant’s bridge — so that in passing with a drove of cattle, some eighteen or twenty were precipitated
In Caldwell against The State of Connecticut, (17 Conn. R. 467,) it was decided, that where an information for keeping a house of ill-fame, charged the offence as having been committed after the Statute prohibiting it, went into operation, and evidence was offered to prove that the house was reputed to be of ill-fame previous to that time, that such evidence was admissible as conducing to prove that it sustained the same reputation afterwards.
The State vs. Goodrich, (19 Vermt. R. (4 Washburn,) 116,) is almost identical with the case under discussion. Goodrich was indicted for discharging a gun at one Green and wounding him; and the person injured was a witness on the trial; and it appeared that the affray took place on the premises off
Redfield, Justice, in delivering the opinion of the Supreme Court, stated the question to be, whether Green made the first assault, or whether Goodrich acted in self-defence. And after stating that it is not always easy to determine what is collateral to the main issue, the Judge proceeds — “ In the .present case, if it was material to know with what intent Green went to defendant’s house, that could only be shown by his acts and his deciar ations, in connection with those acts. As part of that intent, it might have been shown that he declared his intention to see if the hay remained; and we apprehend what is stated in the bill of exceptions, in regard to the tendency of the testimony on the part of the State, to show that he went there with that intent, must have been derived, partly at least, from his declarations on the way and while there. That is the only way it could be shown, aside from his own testimony. And we think that all his declarations, from the time of setting out on his expedition, in connection with his •acts, are competent to show with what intent he went there. And if an innocent intent may be shown in this wuy, then the contrary may also be shown in the same manner. And in this view, the evidence was in no sense collateral.”
“ If Green, then, denied making such a declaration, it might be shown that he, in fact, did both as tending to impeach the witness by contradicting him; and as going to establish the fact that he went therefor the purpose of begin
Upon the authority of the note, then, as laid down by Mr. Starkie and others, and as illustrated by numerous adjudicated cases, wo are clear that the testimony of Cosby should have-been admitted, as it conduced to prove, in connection with other evidence, the quo animo with which Reese resorted to the brothel on McIntosh street that night; and that his manner and conduct corresponded with that purpose, so as to warrant Keener in believing that the same scenes were toberepeated there that night, which had been re-enacted several times before; and that no alternative would be left, but to retreat again as he had done before, twice or three times, or take the consequences.
In view then, of the frequent failure of justice, from the failure of evidence — and thoroughly convinced, as wo are, that no competent means of ascertaining the truth ought to be neglected, wo think the testimony of James Cosby was improperly ruled out. It was pertinent to the issue, and ought to have been submitted to the Jury. It showed the intent with which Reese resorted to this brothel; and, also, his feelings toward the defendant.
In his charge to the Jury, the Court, in the language of the hill of exceptions: “failed, omitted and declined, although requested by the Counsel for the prisoner so to do, to read to the Jury or comment upon the 12th and 13th sections of the 4th division of the Penal Code, upon which Counsel for prisoner had mainly relied for his defence. The Court having read the 1st, 2d, 3d, 4th, 6th and 7th sections, then charged the Jury that the section of the Penal Code, applicable to the grounds on which the defence had been placed, was as follows : reading the 15th section ; to which failure, omission and refusal to charge, and charge as given,. Counsel for prisoner excepted.”
“ The Court was also requested, by Counsel for prisoner, to charge the Jury as follows :
1st. That if they believed, from the evidence, that the prisoner, at the time of the commission of the act, -was under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him — amounting to felony, the killing was justifiable homicide.
2dly. That if they believed, from the - evidence, that the prisoner was under similar fears of some act of violence and injury, less than a felony, his offence was manslaughter,-and not murder.”
“Which charge, so requested, the Court failed and refused to give; to which failure and refusal, Counsel for the prisoner excepted.” It is also assigned as error, that the Court failed and omitted to read to the Jury and comment upon the 9th, 10th and 11th, as well as the 12th and 13th sections of the 4th division of the Penal Code, although requested by Counsel so to do.
I would remark, that by reference to the. bill of exceptions, I -do not find that any request was made of the Court to give in charge and expound to the Jury the 9th, 10th and 11th
In this State — in all free governments — in tenderness to the accused, great latitude has been allowed to Counsel in stating and enforcing their views of the law in criminal cases. And a liberal confidence has been reposed in those who are called to defend the liberty and life of the citizen in the hour of trial. And where Counsel, in their place, under their professional obligations to the Court and the country, insist that certain portions of the law apply to the facts of -their client’s case; especially where it is capital, it would be better to read the law to the Jury, with such comments and explanations as the Court, possessing the superintending power, might feel it to be its duty to give.
The theory of our system is, that the Jury have not only the power, but the right, to pass upon the’law, as well as the facts, in rendering their verdict; and yet, this anomaly stares us in the face, that they are not permitted even to take the Code to their consultation room. They know nothing of the law, except so much and such parts of it as are given them in charge by the Court. This fact alone, is strongly suggestive of the propriety of withholding no law from them, which they are entitled to consider. Suppose, as in the present case, it were doubtful whether this offence, as proven by the witnesses, came under the 12th and 13th sections of the 4th division of the Penal Code, as contended for by the defendant’s Counsel, or under the 15th section, according to the opinion of the presiding Judge, should not both have been submitted ?
In Case’s English Liberties; or, The Freeborn Subject’s Inheritance, 201—’2, it is said, “ the office and power of Juxies in criminal cases, is judicial; from their verdict there lies no appeal; by finding guilty or not guilty, they do complicately resolve both law and fact.” And that in a criminal trial, the Jury may determine the law and the fact of the case, has been supported by every English Judge, except Chief Justice Jeffries, in the case of Col. Sidney, (3 Har
Rut how can they judge of law which is not before them T There is no alternative — either the Courts must refer to the-Jury the whole law of the case, or the supposed distinction between the power of Juries in civil and criminal cases, should, be abolished.
Ry the 12th section, it is enacted, that “ there being no rational distinction between excusable and justifiable homicide, it shall no longer exist. Justifiable homicide is the killing of a human being by commandment of the law, in execution of public justice; by permission of the law, in advancement of public justice; in self-defence, or in defence of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either; or against any persons who manifestly intend and endeavor, in a riotous or tumultuous manner, to enter habitation of another, for the purpose of assaulting or offering personal violence to any person dwelling or being therein.” (Cobb’s Digest, 784.)
Section 13th, declares that a bare fear of any of those of-fences, to prevent which the homicide is alleged to have been. committed, shall not be sufficient to justify the killing; must appear that the circumstances were sufficient to excite the fears of a reasonable man; and that the party killing really acted under the influence of those fears, and not in the spirit of revenge.” (Ib.)
Section 15th, provides that, “ if a person kill another in his defence, it must appear that the danger was so urgent and pressing, at the time of the killing, that, -in order to save his own life, the killing of the other was absolutely necessary
It is clear that there is no conflict between these different sections. The last two sections may bo construed, perhaps,, to be qualifications of the first. The right of self-defence is given by the 12th section, against one who manifestly intends-to commit a felony, by violence or surprise, on the person or property of another. Section 13th limits this right, by requiring that the circumstances, to justify the killing, must be sufficient to excite the fears of a reasonable man; and that the party killing, really acted under the influence of these fears, and not in the spirit of revenge ; and the 15th section still further restricts the right, by providing that the danger should be so urgent and pressing, at the timo of the killing, that in order to save his own life the killing of the other was absolutely necessary.
Either this is the true exposition of the three sections taken together, and they should not, therefore, be separated; or else the 15th section applies to a different class of cases than the one contemplated in the 12th; and we are not prepared to say that the latter would not be the sounder interpretation.
Was there'any evidence, then, which entitled the defendant to have the 12th and 13th sections given in charge by the Court to the Jury ?
It is in proof, that Eeese went to the house of Yarborough, the night on which he was killed, with his bosom boiling with hate toward Keener, and breathing forth threats of revenge, should he encounter him. He finds him in the bod-room the miserable mistress of the brothel; ho kicked furiously at the door ; he jobbed at the window with his knife, the blade of which was six inches long ; he called out to Jane Yarborough : “ show up your Keener, I want to cut his damned-throat.” Keener dresseFand comes out upon the piazza,
We ask not whether this proof is sufficient to justify Keener in killing Reese, or even to reduce the homicide to manslaughter. That is not the question. Is there no evidence which tends to show that Reese intended, by surprise or violence, to commit a felony upon the person of Keener ? or, at any rate, that the circumstances wore sufficient to excite the fears of a reasonable man, that such was the intention, of Reese?
Without expressing or intimating the slightest opinion as to the sufficiency of the testimony, we are unanimously of the opinion that the facts which have been detailed, in connection with others in the record, were such as to have entitled the accused to the consideration, by the Jury, of the law upon, which he rested his defence; and consequently, that it was-error in the Court to refuse to give this law in charge to the-Jury, when requested to do so by prisoner’s Counsel.
The presiding Judge instructed the Jury, very properly,, to inquire whether the homicide was murder, voluntary manslaughter, or done in self-defence; and read to the Jury the law defining each; and assigned, as a reason, the facts disclosed by Emma Burns and Dr. Felder. Why was not all the law respecting voluntary manslaughter and justifiable homicide given in charge ? How could it be said that there was evidence to authorize the reading of the 15th section, but none which was applicable to the 12th and 13th sections; and that, too, when it is admitted that stronger proof is ne~ cessary to acquit under the 15th, áían under the 12th and 13th sections ? If the evidence referred to by the Court
Said Chief Justice Parsons, in Coffin vs. Coffin, (4 Mass. R. 25,) “the issue involves both law and fact; and the Jury must decide the law and fact. To enable them to settle the fact, they must weigh the testimony; that they may truly decide the law, they are entitled to the assistance of the Judge.” How to the “assistance?” By withholding from them the law upon, which the prisoner professedly grounds his defence? No — nor by having it read, and then taking the law, implicitly and without questioning, from the Court ; otherwise, the verdict is not theirs, but in part only; and general verdicts should be abrogated, and special verdicts revived. They should find the naked fact instead of the criminal fact. It follows, demonstrably, then, under our Code, that to make a whole verdict — a legal verdict, the Jury must find the conclusion of law upon the facts ; and notwithstanding it is their privilege, as well as their duty, to receive “ assistance” from the Court, still, the conclusion of law upon the facts, must be the result of their own conviction and understanding.
If the power thus committed to the Jury be exercised against the opinion of the Court -to convict, the remedy is
In connection with the topics already discussed, the Court was requested, by Counsel for the prisoner, to charge the Jury—
1st. That if they believed, from the evidence, that prisoner, at the time of the commission of the act, was under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him, amounting to felony, the killing was justifiable homicide.
This charge the Court refused to give. And wherefore ? Is it not in exact accordance with the terms of the Code ?
2dly. That if they believed, from the evidence, that prisoner was under similar fears of some act of violence and injury, less than a felony, his offence was manslaughter.
This request was likewise refused; and although not in the Code, in so many words, it woiild seem to be a necessary corollary from the sections we have been considering. Indeed, it is a familiar principle, and one scattered everywhere in works on criminal pleading. “Neither can a man,” says Hawkins, “justify the killing another in defence of his house or goods, or even of his person, from a bare private trespass; and therefore, he that kills another who, claiming a title to his house, attempts to enter it by force or shoots at it, or that breaks open his windows in order to arrest him, or persists in breaking his hedges after he is forbidden, is guilty of manslaughter.” (1 Hawkins’ Pleas of the Crown, 372.)
, The requests being legal and refused, the judgment complained of upon these points, must be reversed.
The 7th ground taken in the motion for a now trial, was because James Sikes, one of the Jurors sworn in chief, did not stand indifferent between the State and the prisoner, said .Juror having, previously to being sworn,, expressed decided opinions in relation to the guilt of the accused, and such strong
As this question cannot recur on the re-hearing of this -cause, and no principle is involved in its adjudication, we forbear to consider it; our decision upon the whole case being, that the judgment of the Superior Court ought to be set aside and a new trial granted, which is ordered accordingly.