Oneal v. State, 47 Ga. 229

Oneal v. State

47 Ga. 229 | Ga. | 1872

Montgomery, Judge.

1. The Code, section -3178, provides for the holding of special terms for the trial of those accused of crime. When a person is indicted, he is of course liable to be tried either at a general or special term. Suppose a case continued at any *248given term, and before the next term the Legislature changes the sessions of the Court, will the case not be in order for trial at the changed session immediately succeeding the passage of the law making the change? If then the time of trial can be changed by a law passed after the continuance, a fortiori may it be changed in accordance with a law in existence at the time the continuance is granted. And this is conceding that a continuance at one term is necessarily a continuance until the next regular term. Is it not rather a continuance for the term at which the continuance is granted? Certainly a continuance in a criminal case is for no longer than until the next term provided by law for the trial of such cases. To hold otherwise would be to defeat one of the main objects the Legislature had in view at the time of the passage of the law providing for these special terms, which was to dispose of the rapidly accumulating criminal business of the Courts; for by section 3475 of the Code all cases not reached stand continued. If the position of' counsel for plaintiff in error be correct, all cases called and continued stand over until the next- regular term, and by the section last referred to those not reached stand over' also until the next regular term. What business then would be left for the special term ? There was no showing for a continuance other than that above discussed.

2. If the juror objected to in this case is disqualified, it must be by reason of a supposed relationship between himself and the deceased and the prosecutor. The juror married the widow of their uncle. There are but two kinds of relationship known to the law: relationship by consanguinity and relationship by affinity. It is not pretended that the relationship here insisted on is of the first class. The consanguineous relations of relatives by affinity are not related at all; thus, the sister of a man’s wife’is not related by affinty to that man’s blood relatives. Relationship, by affinity does not extend to the nearest relations of husband and wife, so as to create a mutual relation between them: Bouvier’s Dictionary, “Affinity ;” and so all the elementary writers. The relationship here insisted on is, if possible, a degree further removed. If *249the brother of the uncle’s wife would not have been disqualified by reason of relationship by affinity, it would seem to follow, a fwtiori that the husband of his widow is not. We think the juror was competent.

3. The newly discovered evidence is that of J. P. Hughie, and is as follows: “He saw Joseph Anthony feeling with his hands around the waist of Rufus Oneal, and saw said Joseph Anthony strike or grab Rufus Oneal on the top of the head, and Rufus Oneal and Anthony then commenced scuffling around, and Anthony backed Rufus Oneal against the desk, and while Anthony had him so backed against the desk some one fired, and Anthony fell.” This evidence does not show that Anthony manifestly intended to commit a felony on Rufus Oneal. All the evidence shows he had no weapon of any kind, not even a stick; nor that a serious injury was intended or might accrue to Rufus Oneal, if indeed the facts bring the case within section 4266 of the Code. Nor do we think the evidence shows that the case stands upon the same footing of reason and justice as those referred to. In short, the evidence, if admitted, ought not to have had any weight with the jury.

But this evidence was communicated to prisoner’s counsel before he made his concluding argument, and he declined to introduce it, as he might even then have done. Doubtless he judged, and judged correctly, if our estimate of the weight of the evidence be correct, that it was not worth the sacrifice of the conclusion. Assuming, however, that the evidence would have had more weight with the jury than we think it ought to have had, there is a want of diligence shown in not obtaining it earlier. If the facts stated in the affidavit of Hughje be true, why did not the prisoner and his brother, Rufus Oneal, direct the attention of counsel to it when he was cross-examining Hughie before the committing Court ? If the evidence is thought important as showing justification for the shooting, the prisoner must have known of the existence of the facts. It is upon the hypothesis that he saw the occurrences as detailed by Hughie, that they would justify him, if *250at all. If he were ignorant of them, he could hardly rely prs their existence as justification.

4th. We see nothing in the evidence that would justify the charge upon reasonable fears. A man who could have entertained any fears at all of serious bodily injury to Rufus Oneal, from the facts as developed by the evidence, must have been unreasonably timid. Had the prisoner approached Anthony from behind and clasped him around the arms, his action would have been quite as effectual in preventing injury of any kind to his brother, as the terrible alternative to which he resorted, especially with many bystanders to assist in the separation of the parties, if assistance were necessary.

5th. We think the verdict amply supported by the evidence, and in strict accord with the charge.

Judgment affirmed.