Kirk v. State , 73 Ga. 620 ( 1884 )

Hall, Justice.

George Kirk was indicted, tried and found guilty of the murder of Hick Ratchford, at the August adjourned term, 1883, of Polk superior court, and was sentenced to imprisonment in the penitentiary for life, in accordance with the recommendation of the jury that passed upon his case. He made a motion for a new trial on various grounds, which was overruled, and the case is here upon a bill of exceptions and writ of error, to review the judgment overruling this motion.

1. We cannot say, after a careful review of this testimony and an able and exhaustive argument upon the question, that there was not sufficient evidence to sustain the verdict of the jury, or that it was contrary to law. The experienced and able judge who presided at the trial was satisfied with the result, and seems to have exercised the discretion vested in him by law with becoming care and prudence. We can perceive nothing that should lead to the conclusion that it had been abused, and are therefore precluded, under the many rulings of this court, from interposing to control it.

2. Complaint is made in the 3d ground of the motion for a new trial, that the court committed error in admitting in evidence, over defendant’s objection, a bill of indictment against the accused for retailing liquor without a license, on which the names of Dick Ratchford, the deceased, and Ailsey and Anna' Ratchford were marked as witnesses. ■The ground of objection to this testimony is not disclosed by the record, and this, of itself, would be sufficient cause •for refusing to consider it here. The decision complained of is pointed out, but the error in it is not plainly specified. 'General objections to testimony make no questions upon which this court is required to pass. Apart from this, however, we can discern good reason for the admission of this evidence. It furnished a motive for connecting the accused with the commission of this crime, and, corroborated a portion of the dying declaration of the man who had been slain, in which he said, “ that true bill was the .cause of his being killed.”

'3. The 4th and 8th grounds of the motion relate to the jury being left alone and unattended by the bailiff in the streets of Cedartown, while he went on an errand for one of them to the courthouse. He was absent from them only two or three minutes, and during that interval, it is charged. that a portion of them separated from their fellows. This occurred pending the trial. The fact of their separation and of the bailiff’s failure to attend them is made to appear,. and generally the presumption that it was detrimental to the accused would prevail, and would necessitate the grant of a new trial. In this instance, however, the facts were discovered by two of the counsel of the defendant dur- • ing the progress of the trial, and at the time of their occurence, and they failed to bring them to the notice of the court until the conclusion of the case, and until a motion for a . new trial was made. That such an omission is fatal to this ground of the motion has been often decided. Cannon vs. Bullock, 26 Ga., 432; Carter's case, 56 Id., 467; Eberhart's case, 47 Id., 607.

In connection with the foregoing, we will consider the further irregularity complained of, that the bailiff slept in the room with the jury each night they were out during the trial. It does not appear from the record that they were out at night after the judge’s charge was given to them and while they were deliberating upon their verdict, or that the bailiff was in their room during their deliberations ; neither does it appear that, when he was there, he conversed with them upon the case or upon any other subject contrary to his sworn duty, and without affirmative evidence to either of these facts, it would be going too far to hold that this was cause for setting aside the verdict and ordering another hearing. The decisions of this court 'have never gone to this length. Doyal's case, 70 Ga., 135, 151, in which the previous decisions upon this question .are examined and approved. It would violate all principle to presume, in the absence of proof to that effect, that an officer of the law, however humble his station, had .acted in violation of his sworn duty; unless proved to the contrary, it will always be presumed in his favor that he has discharged his duty. Code, §§3752, 3753, 3751. All officers are presumed to have discharged their sworn official duties. 1 Kelly, 3; 36 Ga., 442; 89 Id., 22. Besides, there are affidavits of jurors repelling any presumption that arises from the alleged misconduct of the bailiff in this particular; in these it is shown that no one conversed with them about the case.

While it is essential to thé protection of the accused to require a strict performance of duty from sheriffs and bailiffs charged with the custody of juries in this respect, yet it would defeat the ends of justice to interpose for every trifling and immaterial irregularity of conduct in this regard and make a pretext for setting aside verdicts. To this length we are not disposed to go.

. .4. The 5th ground of the motion for a new trial complains of the. admission of, a bill of indictment against one Wiley Aired, who was not a party or witness in this case. but who was a brother-in-law of the defendant, and on which the name of the deceased, Dick Ratchford, was endorsed as a witness. What the objection to the admission of this evidence was does not distinctly appear, but we are authorized to infer from the facts that it was objected to because it was irrelevant; and while we are not prepared to say that this objection might not possibly have been good, yet it appears that the evidence, after being admitted, was withdrawn from the jury, and it must be pr-esumed, in the absence of a contrary averment, that it was not afterwards insisted upon or alluded to, and that its withdrawal was accompanied with proper instructions from the court in relation to the right of the jury to attach importance to it. Under these circumstances, it is not an indispensable presumption- that its temporary admission was injurious to the defendant.

5. The next exception to the ruling of the court is embodied in the next ground of the motion for a new trial, and relates to the testimony of Ailsey Ratchford, which was admitted over the general objection of the defendant, who swore, “ that as she was towards Dick,” immediately after he was shot, as we must conclude from its connection with other facts in proof, “ she halloed and asked him what was the matter, who had shot him, and he answered George Kirkand this he repeated after she got to him. This testimony was so nearly coincident in point of time with the shooting, as to form a part of the transaction, and was admissible as a portion of the res gestas. The Augusta Factory vs. Barnes, 72 Ga., 217. Besides, jt was, when first offered, ruled out, and was after-wards admitted, to corroborate the dying declarations of the deceased. That it had this effect, we think, is evident; but we are of opinion that it should have been admitted when originally tendered. It was proper both as part of the res gestas and as corroborative of the dying declarations.

6. There is nothing in the grounds taken in the motion in relation to permitting-the counsel to discuss objections to evidence in the presence of the jury. No request was made to have the jury removed, and the court made no ruling upon this subject. This was not evidence that required a preliminary hearing to determine its admissibility, and does not fall within the rule laid down in Hall's case, 65 Ga., 36, and followed in McDonald vs. The State, 72 Ga., 55.

7. The newly discovered evidence, as set forth in the affidavit of Lazarus Powell, could not authorize the grant of a new trial. Its only object being to impeach one of the state’s witnesses by contradictory statements made by her since the trial.. Doyal's case, ut supra.

Judgment affirmed.