69 Ga. 11 | Ga. | 1882
There are thirty grounds taken in the motion for a new trial, and on each of them error is assigned in this voluminous record. For want of time to examine them all with necessary care during the last term, the case was held up for further investigation during the vacation. These grounds of error may be classified under three general heads: first, errors assigned upon the rulings of the presiding judge preliminary to the trial on the merits; secondly, those in regard to the competency of witnesses and their testimony; and, thirdly, those respecting the charge and refusals to charge.
A motion was made by the defendant to continue the case, and error is assigned as well on the refusal to continue as on the mode of trying the issue of continuance.
The contradiction in ‘ such case is not of the absent witness, but of the defendant. It denies not what the absent witness would swear, but what the defendant says he would swear. It is a mere contradiction of defendant, such as that he did not subpoena the witness, or gave him leave to be absent, or that he is out of the state, or dead, or was not present when the crime was committed. The distinction is clear, and takes the point out of the ruling in 62 Ga., 362.
It will be observed that there is no exhibit to the plea of any precept at all, so that the court can pass on its legality. The allegation is “that no precept has ever
The above is not an allegation that there was no precept at all, but none such as the law directs or requires. We cannot pass upon it unless we saw it. Under our law, it is a very simple thing. It must contain the names of the persons drawn, and that is all the statute seems to require. Code, §3913. When the clerk hands .that list to the sheriff, it is his duty to serve the persons, named. We presume this was done. 34 Ga., 270. Nothing to the contrary appears of record here. It is doubtful whether it be important to enquire about such matters at all. They relate, it appears, not to the securing of a fair and impartial jury for the defendant as much as to the mode of bringing the jurors to the court, and equalizing, by rotation, their duties among themselves. Such seems to be the ruling in 20 Ga., 60. See also 14 Ga., 43, and dissenting opinion in 57 Ga., 427. Certainly we will not enquire into what excuses any of the grand jurors made to the court for not serving, and whether good excuses or bad, or none at all; nor will we enquire into the necessity of summoning tales grand jurors. These ..Matters must be left with the superior courts ; and if, on' the trial of the criminal, all such details were open to investigation, the trial would be interminable.
The objection in the plea that two members of the grand jury who found the bill true, had formed and expressed an opinion, came too late. If there can beany objection to such, a grand juror, it must be made before he acts on the- case" — not before the final verdict, but before the finding- the bill. 3 Wendell, 313 ; see op. of Savage, C. J., and Márcy, J., and note to the case. It is too late to move Pn. the trial before the traverse jury. The truth is that it is matter of comparatively little importance that grand jurors should not have formed opinions, because
The only remaining ground of the plea is the fact that the solicitor,general pro tem., who merely prepared and signed the bill of indictment, was the ordinary of the county and of counsel for the prosecution. Of course no man by our fundamental law may hold two offices of honor and profit at the same time, and the ordinary would be disqualified for election as solicitor general. At least he would be put to election of one or the other office ; but we do not think that the prohibition would extend to the mere act of preparing and signing an indictment pro tem. in the absence of the regular solicitor general, and that this fact should quash the proceeding. As to his being counsel for the prosecution, it strikes us as of no consequence. Often associate counsel draw the bill of indictment. The solicitor general pro tem. here was appointed by the atourt for this specific duty until the arrival of that permanent officer, and his signature to the bill of indictment alter its preparation is the merest technicality, and cannot vitiate the entire proceeding. It may be doubted whether any signature 'is necessary of any solicitor general See Code, §4628 et seq. So the fo.urth ground was properly overruled. ' (
She swore to no confidential communication of her husband to her, as in 63 Ga., 410, 416. Why could she not corroborate him on facts not coming to her from him in the confidence of the marital relation by act or word of his? So error does not appear in the 15th, 16th and 17th grounds of the motion.
In the twenty-first ground the error is specified to the extent that the particular request is given, but the charge thereon is omitted. The substance of the request is that if Mrs. Durham testified differently upon a former investigation, knowingly and wilfully, she ought not be believed on this trial, unless corroborated by a credible witness, or circumstances of the case or other credible evidence, on material points. On hunting out for ourselves the charge on this point, we find that it is given substantially and fully as requested, but that the judge adds that if i.t appeared to the jury that she was then in fear of her life if she swore truly, and thus swore falsely under duress, the former statement under oath would not be wilful and would not impeach her evidence here. The law on the point is fully and clearly given and no error is apparent to us in the ruling. The addition or modification of the request is right, and was absolutely necessary to put the whole case before the jury.
23. As the defendant was not convicted of being an accessory, but a principal, he was not hurt by the complaint that the court charged he could be found guilty of being an accomplice on this trial.
On looking to the general charge, the law in respect to the right of jurors to believe a witness whom they believe impeached by his own contradictions, or that of others, is clearly laid down. It is the well settled rule that if a witness knowingly and wilfully swear falsely in a material matter, his testimony should be rejected entirely, unless corroborated by the facts and circumstances of the case, or other credible evidence. 53 Ga., 365, 369. But it is for the jury to give credit to the impeaching testimony, or the witness sought to be impeached, and to determine for itself whether to believe the one or the other, — and it is for the jury to determine whether the first swearing was wilfully done, or under coercion, as put by the presiding judge in this case. The credibility of all witnesses is for
In the case here, construing the charge given by request with the general charge, it amounts to this: When a witness is satisfactorily impeached by testimony you believe, then his evidence should be rejected unless corroborated on a material point; but whether he be impeached or not is for you to say, and though others contradict him, you may believe him and reject them ; and though he swore differently on a former trial, you may still believe him on this trial if he swore under duress of bodily harm on the first, So construing it, we see no error in it. It must be observéd, too, that the rule nisi was never granted by the presiding judge, and that the grounds stated in the motion are not verified at all by him. Pending the refusal to grant the new trial and the •time within which a bill of exceptions was filed, he died; and we labor under the disadvantage of not having any explanatory note of his to this writ of error.
The motive to kill — the preparation to kill- — -first to remove -otherwise, then to kill if necessary — the actual killing by another under such circumstances as must make murder — the presence of defendant aiding and abetting the deed — all are sufficiently -substantiated to authorize the verdict, perhaps to require it.
Certainly it cannot be pretended with any sort of reason
Judgment affirmed.
Compare Robinson vs. State, 68 Ga., 833. (R.)
^Justice Speer’s term of office having expired, Justice Hall succeeded him. He began to preside January 8th, 1883.