65 Ga. 756 | Ga. | 1880
The plaintiff in error having his motion lor a new trial overruled, seeks a reversal of that judgment.
1. Because the verdict was contrary to evidence. There can be no better ground for a reversal than this, and we proceed to its consideration. The testimony, shows that Wade said in January before the killing in April, that he wished Ready would die. They had a difficulty about two weeks before Ready was killed. He said to another witness a few days before the killing, that Ready would be found dead in his field some day, and nobody would know who killed him, and this he repeated about ten o’clock of the same day on which he was killed. About one hour and a half by sun he was seen to come out of his own house with what the witness took to be a gun, and going in the direction of Ready, and when he discovered the witness, appeared to want to hide it; he had also said to this witness that he would kill Ready if he fooled with him. About sun-down of that same evening Ready was killed in his field and nobody did know who did it. He was, however, killed with a rifle ball, and Wade
With this testimony before the jury we do not think that the verdict was contrary to evidence.
2. Because the jury found against this charge of the court: “ If the state has shown you by the proof a chain of circumstances that point so directly to the man’s guilt as to satisfy your minds, beyond a reasonable doubt, and you can’t reasonably account under the evidence for the entire transaction upon any other reasonable hypothesis than that the man did the killing, then your verdict will be, ‘We, the jury, find the defendant guilty.’ ”
This ground in the motion simply challenges in another form the sufficiency of the testimony to justify a convic
3. For error in the following charge: “That when a number of witnesses testify to the same transaction, and there is a difference (an immaterial difference only) as to the main point in issue, it is rather an evidence of strength than weakness in the testimony for discrediting it.”
Had this been all that the judge said in this connection, it might be subject to the criticisms of counsel made in the argument. But it was only a part of the sentence, and the judge adds, “A story told by two or. three witnesses exactly word for word, and letter for letter, when human reason and human experience is applied to it, presents a suspicious phase.” He makes further illustration qualifying and explaining his exact meaning, and we think committed no error.
4. Because counsel for the state read to the jury the following principle ; “Alibi as a defense, involves the impossibility of the prisoner’s presence at the scene of the offense, at the time of its commission; and the range of the evidence, in respect to time and place, must be such as reasonably to exclude the possibility of such presence.” The judge .charged the jury that this was the law of Georgia, and we reaffirm it as having been held in the case of Johnson vs. The State, 59 Ga., 142.
5. That the court erred in refusing to allow counsel for the defendant to argue certain material ■ facts to the jury, which the state failed to prove, and which the solicitor-general in his opening speech, stated that he expected to prove by Dr. Hand and Mrs. Bailey.
' To have allowed argument on material facts not in the testimony, either by counsel for the state or the defendant, would have been, error.
There may have been error in this charge, but it is not made to appear, because what the books contained, or what law was read to the jury, is not set out, and it is impossible for us to know whether it was the law of Georgia or not. Besides, it 'was admitted on the trial by counsel on both sides, that the killing was murder, and the case turned entirely upon who committed the act.
7. “Because James Irvin, a bailiff, being a prominent witness for the state, retired with the jury (upon a call of nature) as jury bailiff, and this too after he had been sworn with other witnesses, and the court had been requested to keep the witnesses- separate.”
No law was produced to us declaring that a bailiff might not be a witness in a case, and still retire with the jury upon a temporary absence from the court-room, even though he may have been sworn and “put under the rule.”
8. This was not insisted upon.
9. Because the court erred in admitting the testimony as to measuring the tracks, over the objection of defendant’s counsel, upon the ground that the measure itself was not produced.
It is competent to testify as to the measurement of a track without producing the measure itself in open court.
10. Was not insisted on.
11. That the court refused to allow counsel for defendant to prove a conversation between the deceased and the witness Guye, to the effect that the deceased had had a difficulty with a negro on the place about driving his wagon over the negro’s cotton, who had requested him to desist, and Ready replied, “G—d d—n you, I will
We think that this testimony was clearly inadmissible under all the rules of evidence. It was but hearsay at best. The dying declarations of one are admissible under the well defined rules of law, and so may the sayings of one when they constitute a part of the res gestae, but a conversation such as this falls within none of the rules of law making it admissible.
Judgment affirmed.