1 Ga. 213 | Ga. | 1846
By the Court
The prisoner was convicted of murder in the Superior Court of Talbot Comity, in March, 1846 ; and from the judgment then rendered against him he has appealed to this court. He complains of certain irregularities in the proceeding, and assigns for error, first, that the court refused to continue the case. It appears from the record, that after the arraignment, counsel for the prisoner moved a postponement of the trial, upon the ground that William Hammock, a material witness for him, was absent without his consent or procurement, and he rendered as an excuse why he had not been subpoenaed, that the witness was confined in jail, and his presence, therefore, expected.
The court declines expressing any opinion upon this exception, for the reason that the point cannot again arise on the new trial, which we feel constrained to award, on other grounds ; and we dismiss this branch of the case with a single observation. The refusal of the court below to continue the indictment, could not be assigned as error but for the statute creating this court. — 6 Cranch's Rep. 206. There is great danger of doing mischief by revising matters of this kind, which should properly be confided to the discretion of the court below, to be regulated by the circumstances of each particular case. No precise rule can be laid down, and a most arbitrary and oppressive exercise of this discretion must be made apparent to this court, before it will interfere.
Another error complained of by the prisoner, is, that Pulaski Posey, the seventh man on the jury list, being called, the court allowed the solicitor for the State to pass him by, until the remainder of the panel was gone through; and the same practice was preserved respecting other jurors.
Anciently, by the common law, any number of jurors might have been peremptorily challenged by the crown, without alleging any other reason for the objection than “ quod non boni sunt pro rege,'’’’ that they were not good men for the king. But this power being found very liable to abuse,
In the construction of this statute, it is clearly settled, and is now the established practice of the courts, that if the king challenge a juror before the panel is perused, he need not show any cause of his challenge till the whole panel be gone through, and it appears that there will not be a full jury without the person so challenged ; and if the defendant, in order to oblige the king to show cause presently, challenge touts paravaile, yet it hath been adjudged that the defendant shall be first put, to show all his causes of challenge, before the king need to show any. — Lord Raymond, 473; Skinner, 82 ; 2 Hale’s His. P. C. 271.
Challenges, in England, on behalf of the defendant, were either peremptory or for cause. The number which, in all cases of felony, the prisoner was allowed by the common law thus peremptorily to challenge, amounted to thirty-five, or one under the number of three full juries.— Com. Dig. Challenge, c. 1 ; 2 Woodd. 493, Barnes on Juries, 4. This number has been restricted to twenty of the jurors, in murder, by 32 Hen. 8, ch. 14, sec. 7. — 4 Black. Com. 353.
The history of challenges, then, is briefly this: that originally, in Britain, the crown might challenge peremptorily any number of jurors; that by the 33d Edward 1st, the king could not challenge any juror, without cause ; but that he was not bound to show cause, till all the panel was called over, and not then, unless, from challenge or otherwise, the jury, is incomplete; that the prisoner was entitled, at common law, to thirty-five capricious challenges, which number is reduced and limited by the 32d Hen. 8th, to twenty, in murder and other felonies. And now the important question for our consideration is, how have the rights of the State and its citizens been effected by the penal code of 1833 ?
By the 15th section and 14th divisions of that code, it is provided, “that every person indicted for a crime or ofience, which may subject him or her, on conviction, to death, or four years imprisonment or longer in the penitentiary, may peremptorily challenge twenty of the jurors empaneled to try him or her. And the State shall be allowed one half the number of peremptory challenges allowed the prisoner.” — Prince, 660. Now, it will be perceived that under our code, the rights of the defendant are precisely the same as they were before ; while ten peremptory challenges are given to the State. Can it be believed that a code, professedly adopted to mitigate the rigor of the old law, intended to give this advantage to the State, in addition to the privilege which it already enjoyedj of setting aside any number of jurors, until the whole panel was exhausted ? The coteroporaneous interpretations of the statutes, by
Justice in this way would not be meted out alike to all of our people. In the case under discussion, the record shows, that seven, out of the first panel of forty-eight, and nineteen, out of forty-one, or about one half of the next tales panel of the same number, were thus passed by the State. Was or was not this an unreasonable number ? It far exceeded the exercise of the privilege in Tooke’s case.
After mature consultation, then, on this alleged irregularity, so deeply concerning the purity of trial by jury, and the rights of defendants, the court agree that the exception is well founded.
William Miller, a lad of thirteen years of age, was introduced among other witnesses in behalf of the State. He was asked, upon the cross-examination, by prisoner’s counsel, whether he had not, at a certain time and place, and in the presence and hearing of certain persons, naming them, made statements which were recapitulated to the witness, and materially different from his present testimony ? He answered, “ that he did not remember to have told William Wynn, (one of the individuals designated,) but thinks he never had any conversation with him about the matter, at Page’s grocery or any where else.” William Wynn was then introduced, and after being sworn, asked if Miller had not, at the time and place specified, and before Fleming Freeman and himself, made the representations referred to in the interrogatory put to him. The witness was stopped by the solicitor, and rejected by the court, upon the ground, that his testimony did not contradict Miller, whose denial was not positive and absolute, but to the best of his recollection merely.
The rule of evidence, as now understood, appears to be, that before the credit of a witness can be impeached, by proof, that he has made statements out of the court contrary to what he has testified at the trial, that it is necessary first to inquire of the witness himself as to the time,' place, and person, involved in the supposed contradiction. Such was the unanimous opinion of the learned judges, as delivered by Chief Justice Abbott, in (he Queen’s case. — 2 Brod. and Bing. 313, 314; 1 Moody Malkin, 473. In this country the same course is understood to be pretty generally adopted. — 1 Green. Ev. 516, notes.
In some of the States the rule is strenuously resisted, as an innovation upon the law. And in Tucker vs. Walsh, (17 Mass. Rep. 166,) Parker, C. J., says : that the practice in that State, ever since it can be remembered, has been otherwise, and that if the principal witness is present, he is called upon to attend ; and he then has an opportunity, after it has been shown that he had made different statements, out of court, to explain or deny. If he denies them, the credibility of the opposing testimony, is to be decided by the jury. He asserts that, no lawyer in that commonwealth can recollect an instance of an impeaching witness being stopped, until the other was called up, and asked, whether he had had any conversation with the person about to impeach him, and was reminded of that conversation.
He insists that the practice adopted by the British House of Lords, on the trial of Queen Caroline, has never been adopted in this country, and seems not to have been very familiar there; otherwise it would hardly have been necessary to have taken the solemn opinion of all the judges of the Court of King’s Bench upon the question.
The learned judge moreover suggests that the utility of the practice is not very obvious. That witnesses about to be impeached are, generally, persons of a doubtful or unknown character; and the wisdom of putting them upon their guard, and enabling them to forestall an answer to the opposing witness, is not very discernable. Phillips lays down no such rule of evidence; on the contrary, he expressly states, that a wit
The foregoing views are not without weight. It is not necessary, however, in the present case, to decide between them and the utility and convenience of the rule, as settled in the Queen’s case.
Here the witness was asked, upon cross-examination, whether or not he had said, or declared, that which was intended to he proved. His answer was that he did not remember, but that he did not think that he ever had made the statements imputed to him. Can he be contradicted ? There is a dictum in Roscoe on Criminal Evidence, (page 371,) citing Paine vs. Reeston, (1 Moo. and Rob. 20,) to this effect: “ Where the witness merely says that he does not recollect making the statements, evidence to prove that he did, in fact, make the statements, is inadmissible ; there must be an express denial.” We cannot recognize this proposition as sound law.
In Crowley vs. Page, (7 Carrington and Payne, 792,) this point came directly before the coart. The answer of the witness there was, that he did not recollect making the statements. Talfourd, sergl., proposed to call John Burton, to prove that William Beard had said that the hay was of good quality. Ludlow, the opposing counsel, remarked it could not be done, as Beard did not deny having said so. Parker, Baron : “ He did not admit and he did not deny it. Evidence of statements by witnesses on other occasions, relevant to the matter at issue, and inconsistent with the testimony given by them on the trial, is always admissable, in order to impeach the value of that testimony ; but it is only such statements as are relevant, that are admissable ; and in order to lay a foundation for the admission of such contradictory statements, and to enable the witness to explain them, and as I conceive for that purpose only ; the witness may be asked whether he ever said what is suggested to him, with the name of the persons to whom or in whose presence he is supposed to have said it, or some other circumstance sufficient to designate the particular occasion. If the witness, on the cross-examination, admits the conversation imputed to him, there is no necessity of giving other evidence of it ; but if he says he does not recollect,, that is not an admission, and you may give evidence on the other side to prove that the witness did say what is imputed, always supposing the statement to be relevant to the matter at issue. This has always been my practice, and if it were not so, you could never contradict a witness who said he could not remember. ”
We believe the true rule to be here stated, and that upon every consideration of reason, public policy and authorit}', the evidence should have been admitted. If the witness has honestly forgotten what he did say, it ought to be permitted to show his early and fresher recollections of the matter, which is likely to have been more accurate. Besides, should he even deny positively ever having made the declaration, it is nothing more after all than saying that he did not recollect to have done so. For
Upon the second and third grounds, then, the judgment must be reversed, and the cause remanded.
lion. William Gaston.