17 Ga. 497 | Ga. | 1855
delivering the opinion.
The indictment under which this proceeding took place, was subsequently quashed, and a new bill was returned, on which the trial proceeded, which we have now under consideration. The point made, therefore, has nothing to do with this case, and should not have encumbered the record.
Our Judiciary Act, in declaring that “ the Sheriffs of the several counties shall attend the Superior and Inferior Courts in the respective counties,” &c. is simply directory to the Sheriff. It was not intended that his presence should be necessary to the organization and continuance of the Court. Besides, it may be correctly said, that attendance by duly qualified deputy, in legal contemplation, is attendance by the Sheriff.
It appears by the record, that these persons had been appointed Bailiffs by the under Sheriff, for the purpose of executing this particular duty. This was lawful. An under Sheriff may constitute a Bailiff for the purpose of doing a particular act; though he cannot appoint a deputy to do the general business of the office. (Leak vs. Howell, Cro. Eliz. 533. Parker vs. Kett, 1 Lord R. 658. 12 Mod. 467. 1 Salk. 95. Hunt vs. Burrell et al. 5 John. 138.)
The regulation of this matter at Common Law, in capital cases, frequently seems to have depended very much upon the exigencies of the trial, and was within the discretion of the Court. (10 Co. 105, a. 8 Bac. Abr. Tit. Juries, C. State vs. Lamon, 1 Hawk. 175.) Our Statute of 1799 declaring, as it does, that “ when, from challenge or otherwise, there shall not be sufficient number of Jurors to determine any civil or criminal case, the Court may order the Sheriff or his Deputy to summon by-standers or others, sufficient to complete the panel,” &c. in effect, places this regulation within the discretion of the Court, if it were not so before. Tho panel which is thus directed to be made complete, is of course the panel of twelve who are to try the case ; for the language employed pre-supposes that the other panel is exhausted “by challenge or otherwise.” The authority, then, which is given for the purpose of making this panel complete, is general, and not restricted, by any Common Law practice, as to the number of which the successive panels should consist. For convenience sake, perhaps, it may be more judicious to pursue the old practice in some cases. But the matter may be safely left where, we think, the law places it, viz: with the sound discretion of the presiding Judge.
Objection was made, too, to Sion Morris, on the ground that he was not of age at the period of the last general election, though of full age at the time of trial.
It is our opinion that the law does not require that the names of tales Jurors should be in the Jury box, or that they should have had the qualifications of Jurors at any time previous to the trial. It is sufficient, if they have the legal qualifications ■of Jurors at that time. There are several reasons for this view
The practice pursued by the Court was known to the Common Law, and is pursued generally by the Courts of our State. “ If six” (Jurors) “ be sworn and the rest challenged; the Court may assign any two of the six sworn to try the callenges.” (2 Hal Hist. P. C. 275. 1 Ch. Cr. L. 549. 8 Bac. Abr. Ar. Juries, E. 12.) For obvious reasons, this is a better practice than to require all who are sworn to try each challenge.
So too, it was objected, that a Grand Juror who was upon the Jury which returned the first bill against the prisoner was summoned upon one of the panels of the Petit Jury. But it appears, that he too was passed for other cause, and no injury resulted to the prisoner.
Fuqua Beasly and William Ellison had been summoned on a previous panel of tales Jurors, and were again returned upon another panel and put upon the prisoner; and this, 'too, was objected to as error. These Jurors were likewise passed for cause ; and it is unnecessary for us to say any thing in relation to the point made.
Upon this point we remark; first, that it has been held, that there is no positive law requiring that the foreman of the Grand
In the next place, we observe, that this return seems to have been signed by a Juror but he did not sign as foreman. It could easily have been made certain by the minutes of the Court, however, we suppose, that he was foreman of the Jury; and if so, this might have been done; for in such case, that is certain which may be made certain.
Lastly, this is an exception which goes rather to the form than to the merits of the proceeding, and should have been taken before trial, according to the provisions of our code.
If the challenge “ be made to the first Juror, and of course before any one is sworn, then the Court will direct two indifferent persons to try the question; and if they find the party challenged indifferent, he will be swrorn and join with the triors in determining the next challenge. But when two Jurors have been found impartial and have been sworn, then the office
■ This Juror had heard a portion of the testimony as it was delivered at the first trial. He had subsequently expressed the opinion to several persons,' that the prisoner was guilty. And in his statement vindicating himself, he said that he had formed a decided opinion. He was thus disqualified by the express provisions of our law. ¡,
We have never decided that a Juror so disqualified might show himself competent by swearing, that notwithstanding such expression of opinion, &c. he feltr that he was able to render a fair and impartial verdict, dr that he had rendered such verdict. And especially did we not so decide in the case of John Anderson vs. The State, (14 Ga. 709.) That case, and all others should be considered seeundem subjeotam materiam. There the Juror had expressed an opinion from rumor. And we held that the effect of his affidavit was to show, that the opinion formed and expressed by him under these circumstances, was not a fixed opinion; that it may have yielded and did give way, probably, to the force of the testimony when heard by him upon oath, and that he was therefore a Competent Juror, and would so have been pronounced if he had been challenged on this account when first called, up, and had been put upon triors.
n I have carefully considered this subject. I have looked into all the cases that I can find, in which it is discussed, and the result is, that I have been induced, by the reasoning of Mr. Justice Best, in Rex vs. Burdett, (4 Barn. & Ald. 95,) and of
1 defer, therefore, to the view of this subject taken by my brethren, and agree that they were right in holding that the Court below erred in restricting the Jury as he did on this point, to the law “ as given them in charge by the Court.” He might have called their attention to the fact, that the Judge, by his education and position, was better skilled in the law than themselves as the general rule, and might be looked to by them as a reliable and proper adviser; still, ho should have added, that though, according to his view of the law, the prisoner might be guilty; yet, if they took a view of that law different from himself and deemed the prisoner innocent, they had the legal right so to find him.
The Court instructed the Jury, among other things, that “if the prisoner raised and pointed the loaded gun at deceased, within a distance which the gun would carry, this act was an assault, and the deceased was justified in making resistance. That if the prisoner presented a loaded gun at the deceased,
Taking this part of the charge as a whole, we are satisfied that it was of a character too much to limit the Jury in determining whether or not this crime was murder or voluntary manslaughter.
Mr. Loring, a witness for the State, testified that after the prisoner had presented his gun at the deceased, and had taken it down at the instance of some of the by-standers, the dece- • dent said to him, “ if you raise that gun' again, I will throw a brick-bat at you, tho prisoner raised his gun again, and deceased threw the brick-bat at him, and then deceased jumped over the hack” of bricks, &c. Again he says : “when prisoner first put the gun to his face, deceased was standing in the crowd ; when deceased threw the brick-bat at prisoner he jumped over the hack, and was in the act of picking up another brick, when prisoner walked round the end of the hack, fifteen or twenty feet, and shot him,” &c.
Now let us suppose, that after the prisoner had presented his gun at the decedent, even though he had done so with malicious intent to shoot him, he had desisted at the instance of the bystanders, and would not again have pointed the same at decedent or have fired on him, if the latter had not said what he did, and had not thrown the brick-bat.
We will see from the above statement, that it was possible-the prisoner might not again have presented his gun, but for wliat he may have regarded as tho bantering words of tho decedent, nor have fired at him, but for the throwing of the brickbat. If so, tho crime may have been no more than voluntary-
We mean to express no opinion upon the evidence. We do not wish to be understood as intimating that this crime did not amount to murder. We only desire to say, that it was the province of the Jury to determine this (they might possibly have found the same verdict, if the charge had been correct in this respect) and that they may have been prevented by the charge of the Coimt from giving due weight and consideration to circumstances, the effect'of which, on their minds, might have been to show that the prisoner would not have fired on the decedent when he did, if he had not been provoked by the language and conduct of the former; and that it was possible they might have regarded the throwing of the brick-bat as such an assault as would have reduced the crime from murder to manslaughter.
Let the judgment he reversed.