Mercer v. State , 17 Ga. 146 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

[1.] When the Jurors were called up in this case, they were asked by the Solicitor General “ if they had any conscientious scruples as to capital punishment,” this offence having been committed before the Act of the last General Assembly, authorizing such questions. No objection was made, at the time,,, by the prisoner’s Counsel, and no decision on the point was. asked for, or made -by the Court. • He may have supposed, and: he had the right to suppose, that the questions were put by an understanding between the counsel, and that all objections were waived. We think, therefore, that in this proceeding the Court committed no error by not interposing, supposing that the questions were not authorized by law to be put in this case.

But wo are not sure of this. We rather incline to think that the provisions of this Act, merely regulating the form of trial as they do, apply to all trials taking place after the passage of the Act, whether the offence was committed before or not.

[2.] In the course of his charge, Judge Crawford remarked, that confessions were the “ highest kind of evidenceand of this, complaint is made. It is insisted that confessions may not be the highest kind of evidence; that they may be made under such circumstances as tend to involve them in doubt or suspicion. And that the charge of the Court was calculated to lead the minds of the Jury away from the inquiry, whether or not any such circumstances existed in this case; whether or not the confessions of this prisoner may not have been made while he was in a state of mind and body which lessened the value of his admissions, and rendered them not the highest, kind of evidence.

That justice may be done to the charge on this head, we should look to the circumstances under which it was given. The charge had been concluded, and the Jury were about to retire when the Counsel for prisoner arose and asked the Court, to “ charge the Jury as to confessions.” Thereupon, the Court instructed the Jury, that “ confessions were permitted to go before the Jury, and although permitted so to go, yet they should weigh them as they did other testimony; and the rule, of law was, that any confession made under the influence of hope or fear, was no evidence whatever, and they should disregard it entirely; but if they should believe that the prisoner made confessions without any such influence upon him, and did so, freely and voluntarily, then such confessions were the highest, kind of evidence against him.”

It will be observed that the Court was thus requested, in > general terms, to charge the Jury “as to confessions,” and’ gave in charge the general and elementary principles which govern the subject. In a general point of view, all that was • charged was correct, and if there were any special circumstances in the evidence, which took this case out of the general rule, to these the attention of the Court should have been called. In the absence of this, and looking to the generality of the request, the Court may have rightly presumed that only the general instruction was desired. But [perhaps it may be said, that if the charge be examined closely, enough was contained in it to direct the attention of the Jury to any circumstances which might lessen the value of the confessions as evidence ; for we find the Court, while telling the Jury, that if the confessions, ¿fe. were freely and voluntarily given, they were the highest hind of evidence; at the same time saying, that they should he weighed hy them as any other testimony..

After verdict in this case, a motion was made for a new trial, and over-ruled by the Court on all the grounds taken. And this decision is before us, alleged to be erroneous., because —1. The verdict was contrary to the evidence. 2. Tó the ■ charge of the Court. 3. Because it was contrary to law.

[3.] A very forcible criticism has been made upon the char- - acter of this testimony, and we have felt the weight of it. It is alleged that most, if not all the witnesses who were present, at this homicide, were in a state of beastly intoxication, and very unfit, properly to take cognizance of,' or to report what transpired.

This is partly true. But though true, there are several circumstances not depending on the statements of the drunken witnesses; (we speak not now of the admissions made by the prisoner,) which authorize a strong suspicion that the decedent came'to his death at the hands of the prisoner. Yet these were-not entirely satisfactory; and hence, during a part of the con- • siderable time which we have had this case under advisement,» we have hesitated to say that this prisoner should be deprived of his life upon such testimony. Not that it was all the testimony of drunken witnesses; but that a very large portion of that which was material, was so. And not that we were prepared to say, that any other verdict could have been rendered on this evidence; but that we felt, as Judges, that the responsibility of depriving our fellow-man of life, upon such testimony, was very great; and that in consideration of the circumstances, as no witness had seen the mortal blows given, and the evidence, upon which reliance was chiefly had, as we thought, for a conviction, was circumstantial, the sentence might have been commuted to perpetual imprisonment in the penitentiary. And a majority of this Court were inclined to send the ■case back with instructions to this effect.

Upon looking more narrowly into the testimony, however, we have become satisfied, that there is evidence of the prisoner’s guilt, which is not circumstantial — evidence consisting of ■ confessions made by him, and deposed to, in part, by witnesses who were not intoxicated, and whose testimony is not impeached.

We find James H. Jackson saying, that the father of Green B. Lee (the decedent) bame up, after the homicide had been ■committed, and said, that the prisoner had killed his son, “ and should hang,” when “prisoner spoke very low, and said, he had done nothing more than he wanted to do, and he did not care if they hung him, or what they did with him.”

Mrs. Mary Ellis, a witness who was not one of those who •were said to have been more or less intoxicated, says that she went to the place where the homicide was committed, on the ■night decedent was killed, with Mrs. Mercer (prisoner’s wife) and her children — “ heard prisoner say he did kill Green B. 'Lee, and would do it if it was to do again.”

Samuel Wright said, that “ on the morning after the killing of Green B. Lee, was at B — asked prisoner how he felt. 'Prisoner answered he would feel better if he had some coffee. W. then asked prisoner how he felt about the scrimmage or '■fracas of the over night, or what he had done: his answer was, Sam, I have done nothing more than I expected I would do four years ago’.”

Charles T. Connally (a witness of whose high character for respectability the eloquent Counsel for the prisoner speaks) says, that he “ was called twice by prisoner to come to him. He then went. As he was approaching, prisoner says, ‘ Connally, I am in strings’. Witness replied, £ I see you are; I am sorry for it’. Witness then asked, £ how came you to kill Lee, or what caused you to do it ?’ ” [Did the prisoner deny it, or prevaricate, or speak doubtingly, like one who had committed the act in a dream of madness ? Let us see.] ££ His reply was, £ I can’t tell you now what caused me to do it.’ ” [We might conjecture that this arose from his not recollecting. But mark what follows:] “ I then asked if they were in a row or difficulty that caused him to kill him. Prisoner replied, £ no; there had not a word passed between us.’ He then went on to remark — £ It is done as you see it there,’ (this was-next morning, in view of the decedent) ‘ but I cannot tell you, now, what caused me to do it. 1 will acknowledge the whole truth to the Court.’ ”

Samuel J. Johnson, a witness for the defendant, swears that ££ at commitment trial, he asked prisoner what he killed Green B. Lee for. Prisoner answered he did not know, for he had nothing against him.”

In view of these confessions, and taking them in connection with all the other testimony, we have felt constrained to say that the verdict of the Jury was supported by the evidence; and that we see no reason, because of the intoxicated condition in which some of the witnesses were, to disturb the judgment in this case.

[4.] It was argued that the verdict was contrary to law, because that this prisoner was overcome with liquor, until (as it was insisted the testimony shows) he knew not what he was doing, if he did take the life of the decedent; that he had no malice against him (who was his brother-in-law) but that he struck the mortal blows in irresponsible madness.

To this appeal, we oppose the law of the land — the law which declares, that voluntary drunkenness “ shall not be an- excuse for any crime.” To it we oppose more than this; we present reason, plain policy, and the facts of this sad' case. Let us glance at these facts for a moment.

On the 12th day of November, 1853, there was a militia muster at a place called Bumbletown, in Stewart County. Many persons were assembled, and among them one or more candidates for public office. Out of this circumstance, perhaps, grew some electioneering and political excitement after the muster. Not a little strong drink, too, was consumed upon the occasion, and the decedent, who seems to have been a leading man at the place, called upon his party friends to-drink with him ; when the prisoner, who thought the brother-in-law of the decedent, was opposed to him in politics, expressed some exasperation, and proposed that a candidate of the opposite party who was present, should also call for drink.. As night approached, most of the company dispersed; but some remained, apparently for the purpose of prolonging the debauch at one of those sinks of iniquity and sources of crime — a grog-shop— for that particular place made and provided. Here these persons, among them the decedent and the prisoner, assembled, and all continued to ply themselves with the vile drink there retailed — a drink as “thick and slab” with-poisonous and inflaming ingredients, (according to the description given by the Counsel for the prisoner,) as was ever the disgusting liquid in a witch’s cauldron ; until every man, including even the dispenser of the mischief-working fluid, (fit minister for such an altar) the keeper of the shop himself, had become more' or less intoxicated. Then it was, when the night had considerably advanced, that a quarrel arose, (as is of course, always to be expected on such occasions,) between some of those present. The decedent still giving vent to something like political excitement, knocked down one of the company, of whom he spoke'as obnoxious to him from this cause, and thrust him from the ■ house. The next thing stated is, that the prisoner, (very probably espousing the cause of his political friend,) is seen in contact with the decedent, with a bloody knife in his hands — his face and hands dripping with blood; and presently afterwards, the decedent is found dead, covered with several ghastly wounds. Subsequently, the prisoner throws his knife into the bushes, according to the evidence. It is found and indentified as a knife which he had previously owned. And afterwards, he confesses to several persons that he had taken the life of the decedent.

We shall not continue this reference to the testimony. Our ■only object has been, by this slight resume to show, that going upon the supposition that the decedent was slain by the prisoner, there is nothing in the evidence, (such as is contended for by his Counsel) the effect of which is to show an excuse in his ■drunken madness. He voluntarily placed himself in this situation, even if he were thus drunk, and if he continued to inflame himself with liquor until he had reached such a pitch of ■fiendish phrenzy,. that without..any cause which can be assigned, unless it be mere political 'excjtément, he could imbrue his hands in his brother’s blood, there' c^ñ be no excuse for such voluntary madness — there can ancl should be no excuse for it; because it shows a heart fatally bent, on mischief, and desperately at enmity with mankind. ' If it should be excused, what good and peaceable citizen is safe, who may chance to come in contact with the reckless ruffian in his cups, or the drunken debauchee fresh from his midnight revel ?

There is, in the evidence, a statement by an unimpeached witness, (Henry Harrison) who says that he has known prisoner for twenty years, and that for “ the last four years he has had the character of being a dangerous man when in liquor.” If this be so, there is the more reason why he should be held responsible for such an act, committed in a state of voluntary drunkenness.

[5.] One of the assignments of error in this case is, that the Court refused a new trial on the ground that Richard E. Bostwick, a Juror who tried this prisoner, had before the trial formed and expressed an opinion as to the guilt of the prisoner, viz: had said that “ he ought to be, and would be hung.”

The record shows, that the “ said Bostwick and some other persons were talking about the circumstances of the murder,” &c. that a statement was made in relation thereto by some one present, and “ that said Bostwick replied, if such were so, that said Mercer ought “ to be hung.” Bostick was not put upon his voir dire. And as the Court below decided, the statement showed that he had no fixed opinion on the subject, or prejudice against the prisoner, but the remark was a mere loose observation founded on the unsworn statement then made in his presence ; and indeed, was cautiously guarded, for he said, “if that were so,” &c. The presumption is, from the record, that such an impression would have yielded to ilftdence delivered under oath, and that triors would so have found, had he been-put upon triors.

[6.] It is also urged that the Court should have granted a new trial, because Richard Harrison, one of the Jury who tried the prisoner, had informeL^Wral"SOTtfa whose statements, appear in the record, th/TmcT m"|ee to the verdict,, but suffered it to be brought in. b^auseJm ,|ould not control the rest of the Jury.” II#AW

In the first place, this fcsserti(muf±l"ur«r is not sustained by the record. That shol"&xaa agree tgnhe verdict, in the way which is known to thenfcr*^¡HjíHftéfnext place, a Juror cannot be allowed, in this way, to' impeach his verdict. The practice is too plainly improper and dangerous, to need any-further comment from us.

It is our solemn duty to affirm this judgment.