128 Ga. 254 | Ga. | 1907
The accused was tried for the offense of murder and ■convicted. He excepts to the judgment overruling his motion for .a new trial.
It was said in an English decision, in 1623, “If a party can not find a witness, then he is as it were dead unto him,” and his former testimony may be read, “so as the party make oath that he did his endeavor to find his witness, but that he could not see him nor hear of him.” Godbolt, 323. In 1685, in Oates’ trial, the same principle was recognized. 10 Howell’s St. Tr. 1227, 1285. Mr. Greenleaf, after stating that the absence of the witness from the jurisdiction would be a sufficient reason for allowing his testimony on a former trial read, says, “Inability to find the witness is an equally sufficient reason for non-production, by the better opinion, though there are contrary precedents; the sufficiency of the search is usually and properly left to the trial court’s discretion.” 1 Gr. Ev. (16th ed.) 284. See also 2 Wig. Ev. §1405; 16 Cyc. 1096 et seq. While a witness beyond the limits of the State is inaccessible, it is not .absolutely necessary to show such to be the fact, in order to make the rule laid down in the code section above referred to applicable in a particular case. As has been seen, the witness may be inaccessible even though he be within the limits of the State, that is, within the jurisdiction of the court. Whether he is so inaccessible depends upon the diligence shown by the party ^seeking to use his testimony on a former trial in ascertaining where the witness is and in attempting to bring him into court. Whether such diligence has been shown as to authorize the admission of his testimony on a former trial is a question addressed to the discretion of the trial judge; and the same rule will be applied to the decision of the question of diligence in a particular case as is applied to
The evidence on the question of diligence, taken most favorably for the accused, shows that during the latter part of the week before the case was set for trial, the .accused sent an officer to an adjoining county to look for the absent witness at the place where he was supposed to be at work, a few miles from the State line. When the officer approached, the witness fled. It was not shown that he left the State, but there were witnesses who testified that such was the supposition. The officer then returned home without the witness. The case, while set for trial on Monday of the following week, was not actually tried until Wednesday. The court had, previously to the trial, issued an attachment for the witness. 'The officer to whom this attachment was delivered testified that he inquired all round the witness’s home, which was in still'another county, and among the people who knew him, and that he heard that the witness was in Florida. At the time the officer first mentioned above went to Decatur county he was accompanied by a person who was a former employer of the witness and who had a warrant for his arrest, but this warrant had not been placed in the hands of the officer. The officer who went -to Decatur county had no attachment or other process against the witness. The other officer, to whom the attachment was delivered, seems not to have gone to Decatur county at all, but to have simply made inquiry about the former home of the witness in another county. It would seem that due diligence would have required that the officer with the court’s process should have gone to the place where the witness was last seen, that is, in Decatur county. So far as the record discloses, the witness may have returned .from Florida, if he ever went into that State, and have been at work in Decatur^ county on the day that the trial was had. .We do not think that the evidence was sufficient to establish that the witness' was inaccessible within the meaning of the law. In Taylor. v. State, 126 Ga. 557, it was held that the inaccessibility of a witness was not established by merely showing that the., witness, was absent from the county, and when last heard from was living within the limits of the State. See also Augusta & Summerville R. Co. v. Randall, 85 Ga. 297 (3); Gunn v. Wades, 65 Ga. 537.
Complaint is made that the judge charged the jury that the presumption of innocence remained with the accused throughout the entire trial, “unless the State has, at some time in the course of the trial, legally established his guilt to the satisfaction of the jury and to a moral and reasonable certainty.” The objection to this ¡Dortion of the charge was that proof to a moral and reasonable certainty was not proof beyond a reasonable doubt. Immediately following the sentence from which the above extract is made, the court instructed the jury that absolute and mathematical certainty was not required, but that it was “incumbent on the State to establish his guilt to a moral and reasonable certainty and beyond a reasonable doubt.” In Bone v. State, 102 Ga. 387, the majority of the court held^that the expression “moral and reasonable certainty” was the equivalent of “beyond a reasonable doubt.” The writer dissented from this view, and he is still of the opinion as expressed at that time, but, without reference to this, the use of the words, “ moral and reasonable certainty,” in the extract from the charge upon which error is assigned, could not have misled the jury, even if these words be given the meaning contended for in the dissenting opinion in the Bone case. In the sentence following this, the court gave instruction about which there could be no difference of
Error is also assigned upon two extracts from the charge laying down the rule that if there is an interval between- the assault or provocation and the homicide, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to revenge and be punished as murder. The objection made to this charge is that it is inapplicable to the facts of the case. The question as to whether a sufficient interval elapsed for the voice of reason and humanity to be heard is a matter to be determined by the jury in each case, and it was not improper for the judge to submit this question to the jury. While, according to the testimony offered by the accused, the assault of the deceased upon the accused, and the killing of the deceased by the accused, was a transaction of short duration, it was still a matter to be determined by the jury. We do not think there was any error in charging the principle of law contained in the extracts of the charge upon which error is assigned.
The remaining extracts from the charge upon which error is assigned were not erroneous for any reason assigned, and, when taken in connection with the entire charge, were not calculated to prejudice the accused in any way.
Judgment affirmed.