The leading features in this case present a striking similarity to those of Choice against the State, 31 Georgia, 424. In each case the prisoner takes mortal offense at an act towards himself done by his victim, which the latter was perfectly justified in doing. In each the prisoner is a man of dissipated habits; drinks, and broods over his imaginary wrong until he works himself up to the point of shooting down a man walking peaceably along the streets of Atlanta at the time. In each, after the commission of the crime, the attempt is made to screen the offender from punishment by a plea of insanity, resulting in each case, it is singularly
Many points are made in the bill of exceptions. The following, it is believed, embraces all that are material:
1. It is alleged that in impanneling a jury, one of the jurors said he had formed and expressed an opinion from hearsay, but could give the prisoner a fair trial. The Court refused to exclude him for cause, and the prisoner challenged peremptorily. The jury was obtained before the prisoner exhausted his challenges. This refusal of the Court is alleged as error. That it is not error, see the following authorities: Mitchum vs. The State, 11 Georgia, 636; Anderson vs. State, 14 Georgia, 710; Griffin vs. State, 15 Georgia, 476; Jim vs. State, Ibid, 534; Mercer vs. State, 17 Georgia, 146; Wright vs. State, 18 Georgia, 383; Costly vs. State, 19 Georgia, 614; Thompson vs. State, 24 Georgia, 297. The Court is the trior, and no error lies to his finding: Galloway vs. State, 25 Georgia, 596. See 22 Georgia Reports, 556; 25 Georgia Reports, 57.
2. Again, it is objected that some of the jurors were summoned by a bailiff in attendance upon the Court, and not by the sheriff. For this cause the array was challenged. The Court overruled the objection, and this is excepted to. We fail to perceive the validity of the objection here also: Conner vs. State, 25 Georgia, 515; McGuffie vs. State, 17 Georgia, 497.
3. Another exception is, that the Court permitted a witness to testify to all of a conversation of defendant heard by him, there being parts of it which he did not hear. It may be remarked that the conversation was a desultory one, ex
4. Defendant attempted to give in evidence his own sayings as to when a certain injury was inflicted upon him, and who inflicted it, made to his physician several days after the commission of the offense for which he was indicted. The rule is that complaints of physical suffering made to a physician may be testified to by him to show the extent 'of the injury sustained by the prisoner: 1 Greenl. Ev., section 102. The rule goes no further.
5. The next objection is that the Court refused to charge the jury that if they had a reasonable doubt as to the sanity of the prisoner, they should acquit. The Court did charge the jury that the law presumes sanity until the contrary is made to appear, and that the burden of proof on this point was on the defendant; “ and that it ought to be made to appear to a reasonable certainty, to your reasonable satisfaction, that at the time of the commission of the act, he did not know the nature and quality of the act, or if he did, did not know that the act was wrong.” “ If a man has capacity and reason sufficient to enable him to distinguish right and wrong as to the particular act in question, if he has knowledge and consciousness that the act he is doing is wrong, and will'deserve punishment, he is, in the eye of the law, of sound memory and discretion, and is responsible for his acts. If he has not that
After charging the law correctly as to the effect of habitual drunkenness, the Court added: “ If, after a careful survey of all the testimony, you have a reasonable doubt of the defendant’s guilt, you will acquit him.” We think the charge as favorable to the defendant as he could have asked. It certainly warranted the jury in finding the defendant insane, upon less evidence than that required by the fifteen Judges of England, in their answers to the questions propounded by the House of Lords, after the trial of McNaughton for killing Drummond, in 1843, which answers were approved by this Court, in the Choice case, as sound law. Indeed, the Judge charged, in effect, all that was asked of him by the defendant. He charged that if the jury had a reasonable doubt of the prisoner’s guilt, they should acquit. As he was clearly guilty, and so admitted by the line of defense adopted, unless he was insane-the charge was tantamount to telling the jury that, if they had a reasonable doubt of the prisoner’s sanity, they should', acquit.
6. The next ground of alleged error is the refusal to-grant a new trial for misconduct on the part of one or more jurors in the jury-room, during the progress of the trial which lasted several days, in that “ written papers were received and sent out by some of the jurors, while they were confined, and carpet-bags received by them, and communications had with persons who were not jurors.” This is sustained by the affidavit of one of the jurors, but fully explained by the affidavits of the bailiff in attendance on the jury, and of other jurors, showing no injury resulted to defendant. This Court has, however, repeatedly decided that a juror will not be heard to impeach his own verdict: Bishop vs. The State, 9 Ga., 125. Mercer vs. The State, 17 Ga., 146.
7. Another objection to the verdict was that the jury were informed that a bet had been made by a named person as.
8. It was also shown, by affidavits, that liquor had been conveyed to the jury by the bailiff in attendance upon them, and that one of the jury had gone out of the jury-room into a barber’s shop to be shaved, without the knowledge of the bailiff’. These two facts certainly threw the onus upon the State to show that the' prisoner had not been injured by the irregularities: Monroe vs. The State, 5 Ga., 85. The explanation is that a small quantity of liquor, only, was furnished, and that none of the jury were at any time under its influence. The practice of furnishing liquor in any quantity, to a jury, while they have a case under consideration, cannot be too strongly reprehended, and the bailiff should have been, and probably was, punished ; but the explanation, we think, disarms the objection of its force: Wharton’s Am. Cr. Law (3d ed.,) 1020. The other fact was sufficiently explained by the State, showing that the absent juror conversed with no one on the subject; of the trial, during his absence, and returned to the jury-room as soon as the purpose for which he had absented himself was accomplished Other irregularities are charged against the jury, but entirely refuted by the affidavits introduced by the State. See Berry vs. The State, 10 Ga., 525, pt. 2. Roberts & Copenhaven vs. The State, 14 Ga., pt. 4.
9. The usual objections to the verdict, as contrary to law and evidence, and to the charge as inapplicable to the facts, are made and overruled.
Judgment affirmed.