85 Ga. 69 | Ga. | 1890
Woolfolk was indicted and tried in the superior court of Bibb county for the murder of his father, and was convicted. There were eight other indictments against him for the killing, at the same time and place, of his step-mother, six brothers and sisters, and Mrs. West. He made a motion for a new trial, which was overruled in the court below, and he brought the case to this court; and a new trial was granted. 81 Ga. 551. When the case was again called in Bibb superior court, the venue was changed to Houston county, because of inability to obtain a jury in Bibb. On the trial in Houston he was again convicted. He again made a motion for a new trial, which was overruled, and the case was for the second time brought to this court.
Hpon this state of facts, the judge decided that he was not disqualified to try the case. Woolfolk excepted, filing his exceptions pendente lite, and also alleging the same as error in the second ground of his amended motion for a new trial. There was no error in this ruling. The code, §205, prescribes the grounds of disqualification of a judge. These grounds are pecuniary interest in the cause, relationship to either party within the fourth degree of consanguinity or affinity, his having been of counsel therein, or having presided in an inferior judicature when his ruling or decision is the subject of review. . The facts above recited show that Judge Gustin was not of counsel in this case; and his being retained or employed to advise as to the distribution of Mrs. Woolfolk’s estate, in no way connected
Before the venue in a criminal case can be changed, the presiding judge must be satisfied that an impartial jury cannot be obtained in the county. Constitution, art. 6, sec. 16, par. 6, Code, §5172. See also §4686. Section 4687 declares that he shall be satisfied of this “ only by an examination, careful and thorough, of the persons liable to serve on juries, such examination to be according to section 4682 of this code, partially or wholly, accordiug to the nature of the ease.” Section 4682 requires that in all cases of felony the following questions shall be propounded to the juror: “Have you, from having seen the crime committed, or having heard any of the testimony delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar?” If the juror shall answer in the negative, then the following question shall be propounded to him: “Have you any bias or prejudice resting on your mind either for or against the prisoner at the bar?” And if the juror shall answer these questions in the negative, the following question shall be propounded: “Is your mind perfectly impartial between the State and the accused?” And if he shall answer this question in the affirmative, he shall be adjudged and held a competent juror, in all cases where the oflenee does not involve the life of the accused; but when it does involve the life of the accused, the following additional question shall be put todiim: “Are you conscientiously opposed to capital punishment?,” 'If he shall answer this question in the negative, he shall be held a competent juror: Provided, nevertheless, that either the State or the defendant shall have the right to introduce evidence before the judge to show that the answers, or any of them, of the jurors
The trial judge denied the motion of .the defendants to hear aliunde evidence as to the formation and expression of opinion by the jurors, and hold that he had no power or discretion to hear any evidence except the answers of the jurors themselves to the foregoing questions. If there had been no statute prescribing the manner in which the presiding judge should satisfy himself that an impartial jury could not be obtained in the county, we would nevertheless hold that the judge did not err in the method pursued in this case. In the case of Hunter v. The State, 43 Ga. 483, which was tried before the adoption of the statute (§4087 supra; Acts 1871-2, p. 49), when the law was silent as to the manner in which the judge should satisfy himself of this fact, this court approved of this method. Judge Alexander, the trial judge in that case, in order to de .ermine whether the defendant could obtain a fair and impartial jury in the county, had the foregoing questions propounded to the jurors, holding that he ought not to change the venue unless after trying to get a jury it should appear that an impartial jury could not be had in Brooks county. This court, in reviewiug the case, held: “The provisions of the constitution clothe the superior court with power to change the venue when the presiding judge is satisfied an impartial jury cannot be obtained in the county, and while the judge may in his judgment become satisfied by aliunde evidence, still we hold that the most satisfactory method of arriving at such conclusion, as well as that most within the contemplation of the provision of the constitution, is to test the question by trying to get a jury in the county where the crime was committed.” And it seems to us that it is the most satis
It is argued by the able and indefatigable counsel for the plaintiff in error that this statute is unconstitutional, because it prescribes but one mode in which the judge shall satisfy himself as to whether an impartial jury can be obtained; that the constitution leaves the mode and method of determining this question to the judge himself, and that the legislature, therefore, had no right to prescribe that he should only be satisfied by an examination of the jurors upon their voir dire as prescribed in section 4682. In reply to this argument, it is only necessary, in our opinion, to quote, in connection with the clause of the constitution already cited (§5172), the provision which immediately follows it (§5178), which is as follows: “ The power to change the venue in civil and criminal cases shall be vested in the superior courts, to be exercised in such manner as has been or shall be provided by law.” The act had been passed by the legislature and embodied in the code, and Was of force when the constitutional convention met in 1877; and with full knowledge of this, the convention adopted the foregoing paragraphs of the constitution. When they declared that the power to change the venue should be exercised by the superior courts “to be exercised in such manner as has been or shall be provided by law,” the convention must have had in mind the act of December 13th, 1871 (§4687 supra), prescribing the manner in which that power should be exercised. The convention ratified the act, and gave the legislature authority to alter or change it, or adopt another method if it should see proper to do so. See Brinkley v. State, 54 Ga. 371;
As to its being in violation of the constitution of the United States, we will discuss that in another part of this opinion, wherein we deal with the right of the defendant to propound to jurors other questions than those prescribed by the statute. We hold that the court did not err in refusing to allow the defendant to introduce testimony to sustain the allegations in his motioii to change the venue, nor in holding that the court had no authority to hear any evidence on the motion to change the venue, and that the venue could be changed only in accordance with section 4687 of the code.
There was no error in refusing to continue the case upon the ground of public excitement. The record shows that the crime was committed on August 6th, 1887. The defendant was tried first at the May'term, 1888. and a new trial was granted by this court in February, 1889, and he was again placed on trial in June, 1889. Nearly two years, therefore, had elapsed from the commission of the crime, nearly one year from his former trial, and about four months from the granting of a new trial by this court, before he was again placed on trial. So it seems that if there had been public excitement against the accused, there was sufficient time for it to have cooled before this trial. But whether this be true or not, this court had held, in a number of cases, that since the passage of the act requiring jurors to he put upon their voir dire and to answer the questions set out in section 4682 of the code, supra, public excitement alone is not a sufficient ground for continuance. This was held in Thompson v. State, 24 Ga. 297, in which case McDonald, J., in delivering the opinion of the court, says: “Prior to the act of 1856 in relation to the qualification of jurors to serve on the trial of persons charged with felonies, this court had inclined to listen favorably to applications of this sort. Since that time, it is impossible that a party on his trial for such an ofience, if he choose to avail himself of all his legal rights, can have an unfair trial, unless it be by the perjury of persons put upon him as
The power of the judge, under the circumstances above stated, to draw a jury and have the jurors summoned and put upon the defendant, is the only question made by the defendant upon this branch of the case. If the judge had the power to draw this jury, he was right in overruling the challenges ; if he did not have the power, he should have sustained them. The several sections of the code which regulate the drawing of juries, provide for the drawing of a jury in almost every conceivable case where one is needed ; and the general tenor of the code is to give power and authority to the judge of the superior court to draw and summon juries whenever the business of the court requires it. We think that, under section 3942 of the code, the trial judge, under the peculiar facts of this case, had power and authority to draw the jury as he did. That section is as follows : “Whenever the session of any court of record in this State shall be prolonged beyond the week or period for which juries were drawn at the close of the preceding term, as by law provided, or the judge anticipates that the same is about to be so prolonged, or from any other cause such court has convened or is about to convene, and there have been no juries drawn for the same, it shall and may be lawful for such judge to draw juries, so many as may be necessary for such court, and cause them to be summoned accordingly, iu the manner pre
Counsel for the plaintiff in error argued that when a mistrial was declared and the judge had discharged the original panel of jurors, the court was at an end so far as the trial of cases was concerned. Admitting this to be true for the sake of the argument, it will not be denied that the judge still had the power to convene court at some future time for the purpose of trying the defendant. If he had the power to convene the court for that purpose, he certainly, under this section of the code and under the general law, had the power to draw a jury for that court. Under the law, the judge of the superior court has power to hold an adjourned term or call a special session for the purpose of trying criminal cases. The law does not designate what month, week or day he shall appoint for this purpose; nor is there any law requiring any number of days to intervene between the special or adjourned term, and the term which precedes it. If the regular term expires on Saturday, and the judge has no court to hold elsewhere in the circuit on the following week, and the business of the court he is holding is not finished, he certainly has the right to hold an adjourned term the following week. If this be true, what was there to prevent the judge in this case, when the court was at an end by reason of the juries having beeu discharged on Wednesday, from or
This disposes of all the preliminary motions made before the commencement of the trial, which were excepted
This court has held steadily since the passage of the act of 1856, embodied in section 4682'of the code, that counsel for the State, or for the defendant, cannot ask
The judge, therefore, did not ei'r in refusing to allow counsel for the defendant to ask these questions at the time he proposed to do so ; nor did he err in refusing to ask them himself at that time, nor in refusing to explain the meaning of the words-“prejudice,” “bias” aud “perfectly impartial,” when he saw that the jurors understood the questions themselves.
But it is argued by counsel for the defendant that jurors might answer these questions so as to qualify themselves as jurors, and still entertain á prejudice or fixed opinion as to the guilt of the accused ; and that unless the defendant is allowed to ask additional questions so as to sift the mind of the juror, the juror might be accepted on the jury when totally unfit to serve by reason of having a fixed opinion as to the guilt of the accused. We do not see how this can be true if a juror is “upifight and intelligent,” as our law requires him to be before his name can be placed in the jury-box. It seems to us that if the statutory questions are answered honestly and intelligently, the juror selected
But the law of Georgia does not stop there. If counsel for the State or for the accused is dissatisfied with the answer of the juror, he has the right under our code, §4682, to put the juror upon the court as a trior, and to show by evidence that the answers, or any of them, of the jurors are untrue. The judge acting as a trior is not confined to the statutory questions, but in order to test the juror’s qualification, may ask him any question except such as will tend to inculpate or disgrace him. As early as the case of Copenhaven v. State, 14 Ga. 22, this court said (page 26): “The triors, also, may examine the juryman challenged upon his voir dire as to the leaning of his affections, or whether he has given his opinion beforehand, and ask all other questions which may enable them to test his impartiality, provided they do not interrogate him as to facts and circumstances which tend to his infamy or disgrace.” As far as we know, this has been the practice in courts in this State from that time to this. So we think the machinery employed by the State for the purpose of procuring fair and impartial juries to try accused persons, is ample, and we think, also, that the legislature
But it is urged by counsel for the defendant that the putting of a juror upon the court as a trior is a harsh proceeding, as it is an effort to convict a juror of false swearing, and on such an issue the juror could not be compelled to swear against himself; that the putting of the j uror upon the court as a trior is calculated to prejudice the jui’or against the defendant; and that only in a few instances will the defendant be prepared to prove that the juror had a fixed and settled opinion. ¥e think the learned counsel is somewhat inconsistent in this position. In Ms motion to change the venue he offered to prove that all the jurors in the county were disqualified by reason of having fixed and settled opinions as to the guilt of the accused, but on this branch of the case he contends that this could not be proved in the case of the jurors put upon him. It seems to us that if he was prepared before the commencement of the trial to prove that every juror in the county was disqualified, he certainly could have proved
This exception is not well-taken. The objection made is more against the weight of the testimony than against its admissibility. The objection might have been a good argument to the jury, and they might have been urged to attach little or no weight to it, but it is not a sound argument against its admissibility. Besides, it appears from the testimony of these witnesses, attached to this ground of the motion, that they did not come to the conclusion that it was the print of a hand upon the drawers from any other evidence than the drawers themselves. They say that they saw the bloody print of a hand when the drawers were exhibited at the first trial to the jury, of which they were members, aud that the impression of a hand was still on them at the last
The general rule of law is, that where the State puts in part of the confession of the accused, the accused has the right to put the whole of it in evidence; and therefore, under this rule, if Birdsong had heard the prisoner say anything more upon that occasion, it would have been the duty of the court to admit it in evidence; but he says that he repeated all that he heard, and did not know whether Woolfolk had said anything more or not before he got there ; that he did not hear it. If there
We have given the third objection much reflection, and as far as we can ascertain, this is the first case m the judicial history of England or the United States in which the samequestiou has arisen. After mature consideration, we have arrived at the conclusion that it is not against public policy to allow a prayer of a prisoner, which inculpates him, to be given in evidence. If this had been a confession to a priest or clergyman, instead of to G-od, under the law of England and of a majority of the States of this country, it would have been admissible. “Though the law of England encourages the penitent to confess his sins, ‘for the unburthening of his conscience, and to receive spiritual consolation and ease of mind,’ yet the minister to whom the confession is made is merely excused from presenting the offender to the civil magistracy. . . In all other respects he is left to the full operation- of the rules of common law, by which he is bound to testify in such cases as any other person when duly summoned.” 1 Greenl. Ev. §247. See Hageman on Privileged Communications, where this question is discussed and many cases cited; also, 1 Whart. Ev. §596 et seq.; Taylor Ev. 787. And under our code, §8794, the fact that a confession is made under a spiritual exhortation does not exclude it. Under the law, communications between husband and wife, and attorney and client, are privileged, and neither the husband nor the wife can be compelled to testify to such communications, nor can an attorney be compelled to testify to auything his client says about his case; yet it has been frequently held that if a third person overhears the privileged communication, he can be compelled to testify as to what he heard. People v. Barker, 27 N. W.
While a party has a right to thoroughly cross-examine a witness called against him, this right must end at some time. We have examined the recoi’d as to the cross-examination of this witness, and find it to have been thorough and sifting. Many questions were asked and answered upon the line indicated in this ground of the motion, and some of the questions set out in this ground were asked and answered. While, perhaps, it would have been more satisfactory to the defendant’s counsel for the court to have allowed the examination to continue on .this line, yet, if it was error at all to limit the examination, it was not a sufficient error to require the grant of a new trial, especially when defendant’s counsel, as appears from the record, had introduced testimony as to the same things which he proposed to prove by this witness.
There was no error in refusing to admit this testimony. It was immaterial and irrelevant, and would shed no light upon the real question in the case, as to who was the perpetrator of the crime. We have shown that it was inadmissible to prove the threats of Jeff. 81 Ga. 551, supra. If these threats were not admissible for want of proper evidence to connect Jefi with the crime^ certainly the fright of an old man, suddenly awakened by the droppiug of a dipper in a bucket, and his apprehension of injury from a person he had prosecuted and sent to the penitentiary, could not be admissible. When the case was here before, we held that “ declarations made by one of the persons killed to her father, nearly a week before the killing, as to her fear that her life was in danger from the defendant, and that from the way he treated her she expected to be killed, were inadmissible.” 81 Ga. 552(3). Still less would apprehensions as to a person other than the defendant, not connected by other evidence with the crime, be admissible. It may have been the theory of the defendant that his father and his family were killed by the ne