Kelly v. State

49 Ga. 12 | Ga. | 1872

McCay, Judge.

1. We hardly think counsel for the plaintiff in error serious in the objection they made to the admission of the indictment, judgment, etc., for the misdemeanor. If the fact that the defendant had been indicted and punished at the deceased’s instance was material, and this would seem to be a legitimate fact going to show a motive for anger expressed by prisoner against deceased — if such a fact was material, that is, competent — surely the record was the best evidence of it. That he was angry then does not prove he retained that anger, but it is a fact which, with other facts, may fairly be used to get at the feelings of the prisoner on the day of the killing.

2. The real question in this case is, whether this tribunal — a Court of law, composed of three men, not of the vicinage— shall declare the verdict of the jury, chosen by law, and required and authorized by law to pass upon the facts, not supported by the evidence. We have again and again declared our opinion that this Court has no power to act as a Court of appeal from the verdict of the jury. Indeed, it is only by a sort of fiction that we have jurisdiction at all over a verdict of the jury upon the facts. The Constitution expressly declares that this Court shall have no original jurisdiction, but shall be a Court alone for the trial of errors in law or equity from the Superior Courts, etc. The Constitution gives to the Superior Court the right to grant new trials in the Superior Court, on proper and legal grounds, and it is only when the Judge of the Superior Court has, in granting or refusing a new trial, committed an error of law, that the jurisdiction of the Supreme Court arises.

An ordinary mind finds it difficult to discover an error of law in a judgment turning exclusively upon facts. Whether a certain amount of testimony does or does not, assuming the testimony all to be legal, establish a certain fact, would seem to have none of the elements of a legal question in it. But as the Judge is expressly authorized to grant new trials, on proper and legal grounds, it has been the uniform ruling that whilst this Court has no power over the verdict of a jury directly, yet, if a Judge refuse a new trial, when proper and legal grounds exist, or grant one when proper and legal grounds do not exist, he has committed an error of law. Our Code, section 3662, as one of the legal and proper grounds for granting a new trial, says, in any case, where the verdict of a special jury is found “contrary to evidence and the principles of justice and equity,” the presiding Judge may grant a new trial before another special jury. And again: Section 3667 — “The presiding Judge may exercise a sound diseretion in granting or refusing new trials, in cases where the verdict may be decidedly and strongly against the weight of evidence, although there may appear to be some slight evidence in favor of the finding.”

The result of both these sections is that if a verdict be contrary to the testimony and principles of equity and justice, the presiding Judge mazy grant a new trial. But in doing this or in refusing to do it, he exercises a sound discretion. His own judgment upon the facts is to be exercised. He has seen the parties, the witnesses, and the jury. He is one of the community — the vicinage — and he has in his breast the unwritten and unwritable history of the case, and standing, as he does, a sworn judicial officer, accustomed from his habits of life and his legal knowledge, to estimate the value of evidence — to judge of the credibility of witnesses, and to ascertain the principles of equity and justice, the law casts upon him a discretion to grant or refuse a new trial in cases where the verdict is contrary to evidence and the principles of equity and justice. And when a bill of exceptions comes here assigning error on the judgment of a Judge, in granting or refusing a new trial, it is not only the verdict of the jury that is to be reversed, but the discretion of the Judge. And the real question before us is, has the Judge abused his discretion ? Has he shown a want of that fair, equal, calm consideration which the judgment of an officer so placed and so confided in should exhibit?

We wish to impress on the minds of the Judges that in all such cases we will take it for granted that they have exercised the discretion cast upon them, and that they have not, as is sometimes in argument stated by counsel here, decided without consideration, intending to cast the responsibility on this Court. We have none of this discretion cast by law on the Judge of the Superior Court, and we cannot interfere unless the case be one where the verdict is of such a character, under the evidence, that the judgment of the Judge in reference to it displays a want of that sound sense and judicial discretion properly and necessarily belonging to his high position. We say this because we fear some of our Judges do not feel, as they ought, the responsibility cast upon them in this respect, and that they are too apt to pass hurriedly and carelessly on these motions, thinking that if they are wrong the bill of exception will secure a correction of the error.

With this view of the powers of this Court over the verdict of a jury, on the facts alone, we cannot bring ourselves to the conclusion that the present record presents a case for our interference. By the verdict of the jury the defendant did this horrid deed, and the J udge, in the exercise of his discretion, has set his seal to the verdict.

It is not with us a simple question of whether, in our judgment, he be the man or not. The question for us is, does the record present such a want of evidence as to authorize us to say not only that the jury have found a verdict against the weight of testimony, but that the J udge has abused his discretion in letting it stand. We do not think so. There is a great deal of evidence to sustain the verdict. It is, indeed, very difficult, nay, almost impossible, to conceive of so many indications of guilt, all pointing to this man, and yet he be innocent. God alone knows the secrets of the human heart. Society must judge and act on such rules as are necessary for its preservation. True, this evidence is circumstantial wholly, but the circumstances pointing to the guilt of Kelly are numerous. The jury have judged of the credibility of the witnesses, passed upon the plea of an alibi, and under their oaths have said they have no reasonable doubt of his guilt. It is not for us, under the facts set forth in the record, to say that the verdict shall be set aside as illegal, shocking to the moral sense, and displaying prejudice or mistake. We think an honest, fair-minded, intelligent jury might conscientiously come to the very conclusion this jury have done, and so thinking, we affirm the judgment of the Court.

By virtue, however, of the power granted us in section 4219 of the Revised Code, we shall direct that, after our judgment is made the judgment of the Court below, the prisoner be re-sentenced, the presiding Judge acting on the case according to the discretion vested in him in cases of circumstantial evidence, and passing upon him sentence of death, or of imprisonment for life, accordingly as in his judgment the nature of the case, the public interests, the rights of humanity, and the liability of all men to be mistaken, may demand.

Judgment affirmed.