McAfee v. State

| Ga. | Aug 15, 1860

By the Court. —

Jenkins, J.,

delivering the opinion.

After conviction, defendant’s counsel moved in arrest of judgment, on the ground that, at the time of his trial, the Court was holden without authority of law, and its proceedings, therefore, void.

The statute prescribing the time for the sitting of the Superior Court in Whitfield county, provides that it shall be holden on the fourth Wednesday in April, and the first Monday in May, and on the fourth Monday in October, and first Monday in November of each year. By another statute it is provided that “the Judge of the Superior Court of Whitfield county is authorized, and recjuired, to draw a panel of grand, and a panel of' petit jurors for each week of Whitfield Superior Court, so long as the same shall continue, for the space of two weeks.” In the present year, there were five Mondays in the month of April. The crowded state of the dockets indicated, as the result proved, that the business of the term could not be disposed of in two weeks, and the Judge, at the end of the first week, caused this entry to be made on the minutes: “The Court took a recess until next Monday morning, 10 o’clock.”

The juries drawn and impanneled for the first week were ■retained for the service of the week commencing with the fifth Monday in April.

The Court below overruled the motion, and counsel for defendant excepted.

One position assumed in support of this motion is, that the Court could not be holden during the week intermediate the weeks commencing on the fourth Monday in April, and the first' Monday in May, because the law specifies only those two days. It is apparent that the same rigid, literal construction would limit each term of the Court to two days, with an intervening week. The language of the statute is, ■on the fourth Monday in April, and first Monday in May. If the Court, in those years wherein April has but four Mondays, may sit on all the days following Monday in the week wherein the fourth Monday occurs, why not in those wherein April has five Mondays, sit on all the judicial days intervening between the fourth Monday of April and the first of May? There is nothing in the statute prohibiting such a session, nor any express limitation of the entire term to two weeks. In the absence of such a limitation, or rather of any limitation, a Court, once regularly organized, may sit from day to .day, or from week to week, until its business shall be accomplished. The Court was regularly and legally in session.

But it was argued, that if in. session, it was without a jury legally constituted; because the week for which the first ■set of jurors was drawn and empanneled had expired. The law does not disqualify a juror from serving more than one week in that Court. It extends to him, at most, nothing more than a privilege of exemption after one week’s service; but that being a personal privilege, may be waived, and in this case it was waived by all the jurors.

Besides the statement of defendant’s counsel during that week, that the defendant was ready for trial whenever it ■suited the Court’s convenience to try him, together with the ■omission to challenge the array, was a waiver of all exception on this ground.

Counsel moved for a new trial on sundry grounds, which having been refused, they excepted on each ground. .

It is said the Court erred in permitting the prosecuting officer to give in evidence circumstances attending a previous difficulty between the parties, on’ the same day. Before this was done, or attempted by the State, defendant had given evidence relative to that previous difficulty. The evidence offered by the State was to supply omissions touching that difficulty — to add omitted portions of the res gestee, so as to render perfectly intelligible what the defendant had imperfectly brought to the cognizance of the jury. Upon his objection, the Court gave him the option of withdrawing what had been admitted, or submitting to have what he had omitted received. He did not withdraw, and the Court admitted the entire history. If a party put in evidence matter not pertinent or relative to the issue, he does so at the peril of having all put in by the other party that may be necessary to explain what he has thrust before the jury. It is on the same principle that a party’s sayings may be evidence for himself if his adversary have proven a part of what he said in the same conversation.

Secondly. It isf urged that the Court erred in permitting two of the witnesses to exculpate themselves. I am at a loss to understand from what they were supposed to exculpate themselves, unless it be from an imputation involved in defendant’s effort to prove a conspiracy between those witnesses and the prosecutor, to do him some bodily harm; and in this view, it was but rebutting his evidence, and they were competent witnesses.

Thirdly. Exception is taken to the charge of the Court,, as objected to on the motion for a new trial. We deem it unnecessary to review these objections in detail; they are numerous, and have been well considered. It is enough to sayr we have carefully looked into the charge, and see nothing there of which defendant has cause to complain. It may be that, in speaking of a man’s right to defend himself by using a knife or dirk against one who attempted to “whip him zvith his fist,” the Court too much restricted the right of self-defence; but that was not defendant’s case. What his case was, we shall presently indicate, in considering' another exception.

The fourth exception we have considered in disposing of the motion in arrest of judgment.

The fifth exception is, that the verdict is contrary to law and to the evidence, and decidedly against the weight of evidence.

The law governing the case prohibits a person from “stabbing another, except in his own defence, with a sword, dirk, knife,” etc.

According to the evidence, these are the facts of defendant’s case: One Fuller had run, or staggered against defendant, who pushed him off. Prosecutor standing by, and addressing Fuller, said, “Jim, do you take tjiat?” or, “I would not take that,” but said nothing to defendant. Defendant said to prosecutor, “Do you take it up?” Prosecutor — “I would as soon as not.” Defendant (throwing off his coat), “Here’s at you.” The parties then simultaneously approached each other, and both struck about the same time — prosecutor with his fist (having no weapon at all, not even a cane), defendant from first to last striking with a knife, and inflicting upon prosecutor’s person four or five stabs. .Here was a distinct agreement to fight, defendant showing at least as much willingness as the other. Having agreed to fight, his first — his every blow inflicted a serious ■ stab upon the person of an unarmed antagonist. This was not self-defence, in contemplation of law.

The law and the evidence both sustain the verdict of the jury.

The last exception is, to the refusal of the Court to grant a new trial, because of newly discovered evidence.

Numerous rulings of this Court, here cited, made it obligatory on the Court below to refuse a new trial on this ground, for the following reasons: Due diligence had not been used; two of the witnesses relied upon having been subpoenaed by defendant, and being in attendance; and the third testifying to the same facts as themselves. By interrogation of them, defendant or his counsel could have ascertained what they knew as well before as after the trial. The testimony was cumulative only, tending to prove a conspiracy against defendant, of which there was some testimony before the jury. It does not go to the extent of showing that the facts newly discovefed had been communicated to the defendant before the stabbing. It would not probably, and, in the opinion of this Court, should not, have varied the result, had it been before the jury. Roberts vs. The State, 3d Ga. R. 322; Monroe vs. The State, 5th Ga. R. 85; Giles vs. The State, 6th Ga. R. 276; Beard et al. vs. Simmon, 9th Ga. R. 4; Berry vs. The State, 10th Ga. R. 511; Carr vs. The State, 14th Ga. R. 358; The prevalent practice of carrying deadly weapons concealed about the person; the greater readiness to engage in fight, produced by their presence; the frequent, effusion of blood upon trivial provocations, and the frightful loss of life among us in this day, call for a stern enforcement of the criminal law.

- JUDGMENT.

Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.