81 Ga. 551 | Ga. | 1889
It appears from the record in this ease that, on the night of the 6th of August, 1887, Richard E. Woolfolk his wife and six children, and Mrs. West were murdered. The defendant, Thomas G. Woolfolk, was indicted for the murder of his father, Richard E. Wool-folk, and was tried and convicted. Pie moved for a new trial on numerous grounds. Plis motion for a new trial was overruled by the court, and he excepted. As the case is to be remanded for a new trial, it is unnecessary for us to consider many of the grounds set out in the motion, such as the overruling of the motion for a continuance, newly discovered evidence, the disqualification of the juror Lumpkin, etc. We will confine ourselves in this opinion to the questions likely to arise when the case is again tried. The 7th, 8th and 12th grounds will be considered together. They are as follows :
(7) The court erred in permitting a witness to testify that when the hat was drawn from the well, it was claimed to belong to a son of Silas Woolfolk; the objection being that the testimony was hearsay and illegal, and that the witness did not state who it was who claimed that the hat was the boy’s.
(8) The court erred in refusing, on the next day after it was given, to rule out the testimony of Davis, that after the killing some one stopped him and said, “Tell everybody that the Woolfolk family are all killed but one,” and Davis said immediately, “The one that got away was Toni Woolfolk, and he is the one who killed all the rest.” The motion to rule out was on the ground that this testimony was illegal, as what Davis said to
(12) The court erred in permitting Howard to testify, in answer to the question, what Mrs. Woolfolk said to him when she was leaving, going home (and afterwards in refusing to rule out the testimony), as follows : “She said her visit was to see me and to know what to do ; her life was in danger from Tom Woolfolk; the way he treated her, she expected to be killed.” — The objection was, that the testimony was hearsay; and that even dying declarations could not be given in evidence, unless it was first proved that the person was in articulo mortis, and was conscious of death at the time of making them.
For the errors complained of in these three grounds, we are constrained to grant the defendant a new. trial.
But counsel for the State argued before us that the defendant had no right to complain of these things. Whether this be so or not, we -think the court below should have put the seal of its condemnation upon this conduct. We think the judge should have stopped the argument of the State’s counsel then and there and ascertained the guilty parties, and should have punished them to the extent of the law. He should have taught them that the law was supreme; that the trial of a man for his life, however heinous the crime charged against him might be, was a serious and solemn thing, and that the law would not permit a mob to interfere, either by applause or by threatening and exciting cries. By so doing he would have upheld the supremacy of the law, and would have shown to the jury that whatever verdict they might find, the law would protect them. It would also have shown them that the court was uninfluenced by the feelings or demonstrations of the crowd; that it was still able to administer justice and to give the accused a fair and impartial trial. It would have given them a moral support, and would have tended to impress upon them the necessity of resisting such influences.
On this subject see Cartwright vs. State, 16 Tex. Court of App. 473, (49 Am. Rep. 826.) The defendant in that case was on trial for murder, and at the conclusion of the opening address of counsel for the prosecution,
We cannot say that this jury was influenced by any of these things, but will say that in all trials, either civil or criminal, the trial “ is not to be affected or influenced by the clamor of the crowd, the pressure of public sentiment, or the thousand or more rumors that almost invariably attend every case of notoriety. There is no nobler spectacle than that of a judge and jury who quietly but firmly, in the face it may be of public sentiment and popular clamor, go forward and do their duty and their whole duty.”
The rule laid down by "Wharton in his Criminal Evidence, §§664, 668, upon this subject, isms follows : “A statement made voluntarily under oath by a witness before a coroner’s inquest in answer to interrogatories there put to him, although he was at the time informed he was suspected of the crime, has been held subsequently admissible when he was on trial for homicide. But the testimony of an accused party, taken as such, is not admissible, when such accused party is put on his oath and sworn and examined.”
Bishop, in his work on Criminal Procedure, vol. 1, §§1255, 1256,1257, says : “The answers and other testimony which one voluntarily gives as a witness in any cause or proceeding, civil or criminal, — as before a . . . committing magistrate or a coroner, . . are, as admissions or confessions, competent against him on any issue in a criminal cause to which they are pertinent. So likewise is the party’s own voluntary affidavit made on a motion for a continuance. But testimony involuntarily given, as for example, answers compelled from a witness who objects because they may criminate himself, or made under the pressure of an oath which the tribunal had no legal authority to administer, or uttered when, by reason of circumstances, he probably feels under a constraint to testify in a cause which in effect appears as his own, or otherwise under fear, — is not thus admissible. It is believed that the foregoing sections are correct in principle, and in accord with all but a few of the authorities. There are cases which seem to regard the oath as a disqualifying circumstance, without distinguishing whether it was lawfully required or not; and eases wherein the testimony is deemed inadmissible if given after the witness
See the authorities cited by these authors, which we have examined, and which fully sustain the text. See also Dickerson vs. The State, 48 Wisc. 288, where this subject is ably discussed; also Teachout vs. People, 41 N. Y. 7; and 3 Am & Eng. Encyc. of L. 470.
There was no error in the ruling of the court excluding his testimony. We do not think that a single isolated threat of a third party, unconnected with any other act or circumstance of the killing, is admissible. “While evidence tending to show that another party
In the case of The State vs. Beaudet, 58 Conn. 536, Loomis, J., in an able and learned opinion, reviews all the authorities upon this question, and announces the decision of the court in the following head-note: “Upon a trial for an assault on A with intent to murder, in which the defence was that B and not the prisoner made the assault, evidence of threats of B against A was held inadmissible.” This was a case of circumstantial evidence against the accused. See also 4 Am. and Eng. Encye. of Law, p. 866, where the subject of threats of third persons is treated. The author says, upon this subject, “It is therefore going far enough in favor of the accused, to allow him to exculpate himself by showing the fact of another’s guilt, by some appropriate evidence directly connecting that person with the corpus delicti. The animus of a third person is no defence, and by itself it cannot prove the ultimate fact which is a defence.” Numerous authorities upon this subject will be found collated in this book.
The fact that Jeff chopped cotton with the deceased and left him two weeks before the killing, was not sufficient to connect the threats with the killing. There was no ill feeling shown between him and Woolfolk;
These are the only grounds of the motion for a new trial which, in our opinion, it is necessary for us to notice.
Judgment reversed.