23 Ga. 292 | Ga. | 1857
By the Court —
delivering the opinion.
Wheeler, the plaintiff in error, Anderson Hudgins, and Lumpkin Pruett, were all arrested for the offence, for which Wheeler was tried, and were all, at the same time, brought down the railroad, in irons, to Forsyth. Whilst on the way, Anderson Hudgins had conversations in the cars, with persons, in reference to the offence. What he said in these conversations, was admitted in evidence by the Court. After-wards, the Court ruled out all of it, except so much as was said in the presence of Wheeler. In doing this, however, the Court failed to specify which was the part of the sayings spoken in the presence of Wheeler, and which was the part not spoken in his presence. And it is the failure to make this specification, on which rests, the first, second, and third grounds, contained in the bill of exceptions.
Was there any error in the failure, to make this specification. None, as far as we can see. It does not appear, that the Court was asked to make it, or, that the case was such, that the jury could not tell for themselves, which of the sayings were uttered in the presence of Wheeler, and which were not
Besides, if the case was such, that there was a doubt on the point, was not that a doubt for the jury ? I am not clear myself, that it was the province of the Court to make this, separation.
At all events, Wheeler, so far as appears, accepted the decision when made, and did not complain of it, till after the verdict. It was a decision which, as it stood, might work for
This disposes of i'ae first three grounds taken in the bill of exceptions.
The sayings of the negro were, it is true, not legal evidence, but then, they were such as to add little, or nothing, to the legal testimony that existed against Wheeler; and that was amply sufficient to show his guilt.
No motion for a new trial was made.
McCowen, the owner of the stolen negro, admitted in the course of his examination that he had owned the negro for six weeks before the negro left; and he admitted, that he had whipped the negro, once or twice, during those six weeks; but said, that he did not recollect telling D. W. Collier, that he “had whipped him and he ran away.” Wheeler offered to prove, that McCowen did tell Collier this. The Court rejected the proof; and the rejection of it is made the seventh ground of the bill of exceptions.
The only object of the proof was, to impeach McCowen ; but it must be manifest, that the proof was not calculated to do this, in any appreciable degree. McCowen, himself, had admitted, that he had whipped the negro once or twice, in the six weeks before the negro left, he having owned the negro but six weeks. He merely said, that he did not recollect telling Collier, that he had whipped the negro and he ran away.
The rejection of the proof, therefore, is not a sufficient ground to justify this Court in granting a new trial.
What is said of this seventh ground, may also be said, mutaiis mutandis, of the eighth.
The counsel for Wheeler, requested the Court to charge the jury, “that the evidence of the verbal confession of guilt, is to be received with great caution, on account of the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory.”
“Which charge the Court gave in full, as desired.”
“ And the counsel for defendant requested the Court to read from the bodk, perhaps Greenleaf, the reasons assigned by the author, for the existence of the rule of law, the Court remarked, that the rule had been given as desired, in full; and, on counsel insisting, that the Court should read from the book, the Court remarked, that the particular reasons assigned in the request, and authority, more particularly applied to cases where the party making the confessions, is under arrest at the time they are made, than to confessions made not. under arrest, and made, at the instance of the party himself.”
Is there any error in all this ?
If we deem a man guilty of a crime, are we not more liable to misapprehend, and even to forget, his words to his disadvantage, than we are, if we do not deem him guilty ? I rather think so. And are we not more disposed to believe a man under arrest for a crime, guilty of the crime, than we are to believe a man not under arrest for a crime, guilty of the crime ? I rather think so.
If both of these questions can be answered in the affirmative, the Courtbelow was right throughout — right in remarking that all of the enumerated grounds for the distrust of evidence reporting confessions, applied more strongly to that evidence, when it reported the confessions of a man under arrest for the crime, than, to that evidence, when it reported the spon
But if the Court, instead of making this remark, had done-all that it was requested to do, and no more, the verdict, we think, would, and should, have been, the same that it was. The evidence was against Wheeler.
If there had been a motion for a new trial, we should under the excessive strictness of the new trial Act of 1854, have had to scrutinize the distinction taken by the Court below, more closely. But there was none.
Hence, we say, that in our opinion, there was nothing, in the Court’s making this distinction, sufficient to justify this Court in disturbing the verdict.
And this disposes of the ninth and tenth grounds of the bill of exceptions; and they are all that remained to be disposed of.
Judgment affirmed.
