Stiles v. State ( 1922 )

Hines, J.

(After stating the foregoing facts.)

It is urged that the verdict is without evidence to support it. The State relies solely for conviction on dying declarations made by the deceased. These declarations made out a case of murder. But counsel for the defendant urge that these dying statements were made when the deceased was intoxicated and under the influence of narcotics. It is further insisted, that these dying declarations are unreasonable, and that there was no reason or motive for the defendant to have taken the life of the deceased. These were matters for the jury. We cannot take onr seats in the jury-box, and decide the weight and credit to be given to these ■declarations of the dead man. We would be usurping the province of the jury.

The defendant introduced members of his family and a witness not of his household, who testified that the defendant was at his supper-table, eating his supper, at the time the fatal shot was fired. There was testimony from his witnesses of a statement of the deceased, that the latter accidentally shot himself. The conflict between the statements of the deceased and the evidence of the witnesses for the defendant, tending to establish an alibi and the accidental homicide of the deceased, was sharp. We know of no better tribunal for the solution of such conflicts than a jury of the vicinage. The credit to be given to these dying declarations was a question for the jury. They have resolved the conflict between them and the evidence tending to establish an alibi and an accidental homicide, in favor of these statements; and as the trial judge has approved their finding, his discretion will not be interfered with. Hall v. State, 124 Ga. 649, 651 (52 S. E. 891).

‘The competency of one of the jurors to try this case was challenged in the first special ground of the motion for new trial. This challenge was based upon the ground of the juror’s bias and prejudice against the defendant. It was shown by the affidavits of two witnesses that this juror had declared on the day before the defendant was tried, that, if he was on the jury, he would hang the defendant, that there was too much killing going on, and that it had to be stopped. The State made a counter-showing, and introduced the affidavit of the juror in which he denied making 'the statements attributed to him in the affidavits of the witnesses for the defendant. In his affidavit the juror gave a narrative of his movements during the day upon which the witnesses for the defendant say he made the statements tending to show his bias and prejudice against the defendant, from which narrative the inference might be drawn that the attacking witnesses were mistaken in their evidence. A fellow-juror corroborated this narrative of the attacked juror. There was thus engendered a conflict in the evidence on this issue. The trial judge became the trior of this issue; and his finding that the juror was competent will not be reversed, it not appearing from all the facts that the judge abused his discretion. McCrimmon v. State, 126 Ga. 560 (55 S. E. 481).

In the absence of a proper request to charge upon that subject, the failure of the trial judge to charge the law touching impeachment of a witness by contradictory statements furnishes no ground for the grant of a new trial. Crawley v. State, 150 Ga. 586 (5) (104 S. E. 410).

Judgment affirmed.

All the Justices concur, except Gilbert, J., absent.