Peterson v. State, 47 Ga. 524

Peterson v. State

47 Ga. 524 | Ga. | 1873

Montgomery, Judge.

1. Many English Judges have regretted the nice technical particularity required by the common law in indictments. Fortunately for the preservation of the good order and peace of this State, it has for many years only been necessary to state the crime “so plainly that the nature of the offense charged may be easily understood by the jury:” Code, 4535. The indictment charges that the prisoner “ did shoot off and discharge said pistol at, in and upon the said John Sims, (the person slain,) and upon the left side of the said John Sims did inflict one mortal wound, of the breadth of one half inch, and depth of six inches, of which mortal wound the said John Sims, on, etc., in the county aforesaid, died.” Is not the nature of the offense so plainly stated as to be easily understood by the jury ? To ask the question is to answer it.

2. The Court must, by examination, decide upon the capacity of a witness alleged to be incompetent on accoiint of childhood: Code, 3803. This is one of, those cases that must, from its very nature, be confined almost exclusively to the Judge of the Superior Court. He has the child before him. "We can only judge of its capacity from written evidence. In this case, we are asked to reverse the Judge’s ruling on this point because of the answer of the child, who is alleged to be seven or eight years, to a single question. What the question was, the record does not inform us. We are only told that *528“ said Ellen, among the answers to questions put to her by the Court, said if she told a story she would be put in jail, as a punishment therefor.” Is not the statement true ? Surely, if one commits perjury, that is precisely what would be done with him in the first instance, in the absence of bail. Of course, so flagrant an abuse of discretion on the part of the Court below may be imagined as would justify correction by this Court. The present is no such case.

3. One párfc of a conversation being given in evidence, the opposite party may prove the whole. But to allow the witness to state the deductions drawn by him from the conversation is at once to trench upon the province of the jury, and to transform the witness, pro hao vice, into a juror: Woodward vs. Gates, 38 Georgia, 205. A witness may infer a previous difficulty between parties from their conduct. Information so derived does not make him competent to prove it. An examination of Printup vs. Mitchell, 17 Georgia, 561, and of Lockett vs. Mims, 27 Georgia, 210, relied on by plaintiff in error to support his position on this point, will show that they fail to sustain him. The witnesses in both cases testify to facts as they saw or heard them. The inference of a witness is inadmissible, where that inference is a mere conclusion drawn from facts: Martin vs. State, 38 Georgia, 297. In short, whatever language a witness may use, if he is evidently testifying to his recollection of facts, as he saw or heard them, the evidence is admissible: Franklin vs. The Mayor, etc., 12 Georgia, 260. So, an expert may give his opinion upon a hypothetical state of facts, and an ordinary witness may sometimes give his opinion as to the existence of an ideal fact — one capable of being perceived, but not seen or heard; as, for instance, the affection existing between man and wife, the value of property, the sanity of an individual, perhaps, the age of a person, handwriting, etc.* In such cases, the ordinary witness is required' to state the facts upon which his opinion is founded. But *529when he attempts to deduce a substantive fact (so to call it) from what he has seen or heard, he gets beyond the province of a witness and enters the domain of a juror. To apply the principle to the present case: The fact, if such was the fact, that the deceased* approached the prisoner, knife in hand, in a hostile manner, was a fact of substance, capable of being seen. If the prisoner, in the conversation about which the witness testified, had said the deceased so approached him, the testimony would have, of course, been admissible, (that would have been a substantive fact heard by the witness,) but the inference of the witness, that such was the case, is not. See Potts vs. House, 6 Georgia, 324.

4. In Long vs. the State, 38 Georgia, 491, this Court decided that “the jury, in a murder case, have no right authoritatively to recommend in lieu of the death penalty imprisonment for life, except when the conviction is founded solely on circumstantial evidence.” In this case Ellen Benton testified that she saw the prisoner shoot the deceased. Hence, to have given section 4257 of the Code in charge to the jury would have been charging law not applicable to the case.

5. The charge of the Court that “a reasonable doubt is such an one as an upright man might entertain in an honest investigation after truth from the evidence,” is more favorable to defendant than perhaps a strictly accurate definition of a reasonable doubt might warrant. It leaves the inference open to the jury that any doubt, which an upright man might entertain of the prisoner’s guilt, would justify an acquittal.

6. We do not think the verdict contrary to the charge of the Court.

Judgment affirmed.

A distinction is to be observed between testifying to an act of writing and testifying to handwriting. Any witness to an instrument, entiroly ignorant of tbe bandwriting of tbe maker, may do tbe former. Such testimony excludes tbe idea .of forgery absolutely. Testimony to tbe handwriting does not so effectually.