No. 44 | Ga. | Mar 15, 1857
By the Court.
delivering the opinion.
It is certainly the privilege of the party who complains of the judgment in the Court below, to make out and present to the Judge, who presided in the cause, his bill of exceptions.
Counsel now complain that conceding that ’the showing made was insufficient or obviated by the promise of the Court to send for Miss Cope; that they were cut off from making any further attempt to continue the cause, by the solemn declaration, that the cause must proceed.
They were precluded by the 53d Common Law Practice, from amending their showing. It provides that, “all grounds of motion for nonsuit, in arrest of judgment, awe? for continuance ; all objections to testimony, and all exceptions to declarations, m-ust be urged and insisted upon at once, and after a decision upon one or more grounds, no others, afterwards urged, will be heard by the Court.” 2 Kel. 476. Besides, the only other ground suggested in the argument is, that it might have been made to appear that the public prejudice was too much aroused to admit of an impartial trial; sufficient time had elapsed to allow this excitement to subside, and no continuance could have been granted on that account.
The Court did not “require” of the prisoner to do this, but inquired if he would ? and to which inquiry the counsel for Mitchell answered affirmatively.
We see no error in this.
The State must not go unrepresented, nor the criminal jurisdiction fail for want of a prosecuting officer; and if in¿the opinion of the Court, the States Attorney is unable from sickness, or any other malady of mind or body, from discharging his duty, it is not only the privilege, but the imperious duty of the Court, in the true spirit and intent of the Act of 1799, (Cobb 574,) to substitute another in his place.
No doubt jurors frequently misapprehend the meaning of the questions propounded under the statnte, and when put in the form therein prescribed, “Have you, from having seen the crime committed or having heard any part of the evidence delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the
If the Judge see fit to perform this service, the accused has no right to object, In taking down the testimony of Wm. S. Thompson, Judge Brown forgot, for a moment, his character as amanuensis, and as Judge says, “his statement above not correct as cross examination showed.” He adds, “the statement a little tangled.” While acting as amanuensis, he should confine himself strictly to that character, still this inadvertance is no ground for a new trial.
This complaint is not sustained by the bill of exceptions, and we dismiss it with the single remark, that all reference to the Supreme Court, either by Court or counsel, by way of menace or otherwise, except to cite its decisions, had best be dispensed with.
This objection is not supported by the bill of exceptions.
The charge as given was this, “that prisoner had the right to kill to prevent the commission of an atrocious crime, such as murder, manslaughter or the like, but that he must have acted in good faith and used all reasonable means in his power to prevent the perpetration of the crime. But that this principle could avail the prisoner nothing if he acted in concert with Thompson in bringing about the difficulty; took part in the quarrel; made himself party to it; and aided and assisted in bringing about the fatal rencounter.”
We do not think the prisoner has any cause to complain of this charge. Concede the common law doctrine, that homicide is justifiable for the prevention of any forcible and atrocious crime, must there not be an apparent necessity, on the part of the slayer — yea, an absolute necessity for the act — to make the killing justifiable ? And must it not have been done, bona fide, to save life, and not wantonly or wickedly to destroy it ? Under the pretext of punishing a felony, had Mitchell, the author and finisher of this whole tragedy, the right to kill in a spirit of revenge, and in the execution of a pre-conceived plan and purpose ? Upon the proof in this case, does this killing stand upon the same footing of reason and justice, as that of a woman who kills another to save her person from lustful violence ? And ought not the Court, in stating the principle, have qualified it as 'he did ? Had
upon the defendant in this ease to show that bo was without fault on his part. The he killed to prevent murder.
The Judge certifies that he charged the jury in the very words of the Supreme jCourt, in Giles vs. the State, (6, Ga. Rep., 276,) as to what kind of doubts should justify a jury in acquitting a prisoner; and.if so, he ought not to be reversed by this Court. After all the exposition by text writers, and illustrations by this and other Courts, the simple rule is, that jurors must not convict without plain and manifest proof of the prisoner's guilt. And that intrusted as they are with the administration of publicjustice on the one hand, and with the life, the liberty, and the honor of the prisoner on the other, their duty calls on them, before they pronounce a verdict of condemnation, to ask themselves whether they are satisfied, beyond a reasonable doubt, that the accused is guilty of the charge alleged against him in the indictment.
And when the Court has said this, it has probably said enough, both as to the rule of evidence, as well as the duty of the jury, in the performance of their important functions.
This Court held in that case, amongst other things, that where a jirry had rendered an imperfect verdict by not finding all the issues submitted to them, that after the verdict had been received and recorded, and the jury discharged from the further consideration of the cause, that it was error in the Court, after the expiration of four days, to re-assemble the jury and amend the verdict, according to what the jury then stated it was their intention to find, such intention not appearing on the face of the verdict.
Here the jury returned into Court, with their verdict, finding the defendant guilty of murder ; when they were seated in the box, and before the verdict was received, the Court asked defendant’s counsel if he desired to poll the jury ? To which he replied he did not. He was then asked if he knew of any reason why the verdict should not be received ? He answered he did not. The verdict was then received and read, the twelve jurors sitting in the box. The jury were then discham ,d from the further consideration i.¡ the case. The Court r collecting, after their dispersion, that the jury had not been called over, each by name, when the verdict was deliveied, had them re-assembled, within i rom five to ten minutes, an oath was administered, and each juror swore that he was in the box when the verdict was read in open Court; that he heard it read; that it found the defendant gujlty of murder; and that.he agreed to it.
The statement of the case, not only acquits the Judge of the error reputed to him, but makes manifest the tota ccela difference between this case and the precedent referred to.
Without stopping to controvert the proposition thus assumed, but which we must be permitted to say, is scarcely deducible from Colquitt vs. Thomas et al., 8, Ga. Rep., 258, certainly not in the amplitude in which it is stated, we are constrained to dissent from the conclusion, to which the learned counsel comes, that the verdict of the jury was contrary to the law and the facts of the case. There was, to say the least of it, ample testimony to justify the finding. Indeed, after a calm and dispassionate, and careful examination of the evidence, we must say, that, had we been in the place of the jury, we should have rendered the verdict which they did.
Judgment affirmed.