49 Ga. 210 | Ga. | 1872
'The defendant was indicted for the murder of Frank Phillips, and put on his trial therefor, at the first term of the Court after the offense was alleged to have been committed and indictment found. During the progress of that trial, and before its termination, one of the jurors was taken sick and a mistrial was ordered by the Court for that cause. During the same term of the Court, (the Court being held for several weeks,) the case ivas again called up for trial, and another trial was had, which resulted in a verdict finding the defendant guilty. A motion was made for a new trial on the several grounds specified and set forth in the record, which was overruled by the Court, and the defendant excepted. When the case was called the second time for trial, the de
There is nothing in the laws of this State which prohibited the Court from proceeding with the second trial as it did, but, on the contrary, it was its duty to have done so, provided the term of the Court would extend to such a length of time as would allow the trial to be had. As to the sickness of the defendant, the presiding Judge certifies “that when the case was called at the appointed time for trial, it was stated that defendant was too sick to come into Court. I summoned two physicians, who, under oath, disclosed that defendant was suffering from the effects of alcohol; that there was nervous derangement. I then passed the case for a time which was indicated by the physicians. When he was again called on to announce, this affidavit was presented. I asked his counsel if his condition had grown worse, and they replied that it had not. I then asked them if they had anything further to offer in support of the ground of alleged sickness, and they said they had not. I was satisfied from all that had occurred in open Court, that defendant was in a proper condition to proceed with the trial.” This certificate of the presiding Judge, as to the sickness of the defendant, disposes of that ground made in the showing for continuance. In relation to the absence of Emma Gilmore, it appears in the record that a motion had been made by the defendant on the first trial to
There was no error in overruling the defendant’s plea as to the grand jury that found the bill of indictment. The certificate of the presiding Judge states that all of the drawn grand jurors did not appear, and that he filled up the jury with tales
There was no error in overruling the defendant’s challenge to the array of jurors put upon him by the State at the last trial. The presiding Judge certifies that the cause of challenge contained in the first ground of the motion, occurred on the first trial, and not on the second; that the last ground contained in the motion was made on the last trial, but as no proof was offered to sustain it, it was overruled. This disposes of the technical objections and exceptions made by the counsel for defendant before the evidence in the case was submitted to the jury.
It appears from the evidence in the record that the defendant shot the deceased in a house of ill fame, at night, in the city of Atlanta, in the month of August, 1872. It does not affirmatively appear in the evidence that the defendant and deceased knew each other before they met in that house that night, and we think it to be a fair inference therefrom that they were not personally acquainted with each other; whether they knew each other by sight only, is not so clear. Roth were young men, the deceased the youngest of the two. Deceased went to the house first, and after a short time defendant came there. The evidence is, that both had been drinking and were somewhat excited by liquor. It also appears in the evidence that a short time before the killing defendant applied to a saloon keeper, who had his pistol, for it, and said, as he put it in his pocket, “You will hear from me in fifteen minutes.” The distance from the saloon to the house where the killing took place is about three hundred yards. About eight minutes thereafter, defendant shot deceased in the house to which he went. There is some conflict in the evidence as to what was said by the deceased after the defendant got there. The weight
In order to have reduced the killing of the deceased by the defendant, to the offense of voluntary manslaughter, there must have been some actual assault made by the deceased upon the defendant, or an attempt by the deceased to have committed a serious personal injury on- the person of defendant, or other equivalent circumstances to justify the excitement of passion and to exclude all idea of deliberation or-
We find no error in the refusal of the Court to charge the jury as requested, or in the charge as given, in view of the evidence contained in the record. The charge of the Court as to a reasonable doubt of the guilt of defendant, was in exact accordance with the ruling of this Court in the case of Long vs. The State, 38 Georgia Reports, 491. The doubt must be a doubt pertinent to the matter in issue on trial, arising out of the evidence, or the want of evidence. The charge of the Court that drunkenness could be looked to, to ascertain and determine the condition and state of the defendant’s mind and to throw light upon the inquiry whether there was malice, was quite .as favorable a charge for the defendant as he had a right to expect under the law and facts of the case.
It does not affirmatively appear that the bailiff who attended the jury did eat or sleep in the same room with the jury, and the presiding Judge certifies that he did not know that he had done so. If such was the fact, it was incumbent on the defendant to have shown it by competent evidence, which the record fails to disclose.
There is sufficient evidence in the record to sustain the verdict of the jury. They were the exclusive judges of the credibility of the witnesses who were sworn on the trial of the case, and there was no error in overruling the motion for a new trial on the ground that the verdict was contrary to the evidence, and the weight of the evidence, according to the repeated rulings of this Court in similar cases. The fact of the killing of the deceased by the defendant was not disputed on the trial, and the only question for the jury was, whether the killing, under the circumstances as detailed by the witnesses, made him guilty of the crime of murder under the law, or guilty of an inferior grade of homicide, and they having
The Court did not err in overruling the motion for a new trial on the ground of newly discovered evidence. The newly discovered evidence is merely cumulative, and a new trial will not be granted for newly discovered evidence merely cumulative in its character. What is cumulative evidence? Evidence is cumulative when it goes to the fact principally controverted on the trial, and respecting which the party asking for a new trial produced testimony on the trial of the cause: Grubb vs. Kolb, 37 Georgia Reports, 459. The newly discovered testimony of Stokes relates to the same facts which were controverted on the trial, as to rvhat the parties said and did at the time of the shooting, and the same remark may be made as to the newly discovered evidence as to the defendant having been drinking. There was evidence of his having been drinking on the trial.
If the newly discovered evidence had been introduced on the trial, it is not at all probable that it could have produced, or that it ought to have produced, a different result under the law. The plea of insanity was not relied on at the trial, and it is too late now to fall back upon that defense after the trial, when the facts now sought to establish it could as well have been ascertained before the trial, by the exercise of ordinary diligence, as since the trial, if, indeed, he was insane before the killing, which the newly discovered evidence fails to establish, and it does not show that he was insane at the time of the hilling.
After a careful and laborious examination of the evidence contained in the record, and the several grounds taken in the motion for a new trial, we are all of the opinion that the judgment of the Court below refusing a new trial should be affirmed.
Let the judgment of the Court below be affirmed.