Bowie v. State , 19 Ga. 1 ( 1855 )

By the Court.

Penning, J.

delivering the opinion.

[1.] The grounds for the motion in arrest of judgment, consisted of matters which did not affect “the real merits of the offence charged in the indictment.” And such grounds are not good in arrest of judgment. (Code, 11 Div. 2 Sec.)

[2.] These same grounds were relied on in the motion for a new trial. But they are of a kind which is not appropriate to a new trial. They are not extrinsic: the matters in which they consist, are not “foreign to or dehors the record.” (8 Black. Qom. 887.) It- is obvious that such matters as these are, do not lie within the province of the Jury.

Another of the grounds contained in the motion for a new trial was, that the Court charged the triors, that if the Juror had formed and expressed an opinion from rumor, lio ivas incompetent.

But the MU of exceptions fails to state what was the charge of the Court to the triors.

In the motion for a new trial, it is assumed that such was the charge; but even in that motion, it is not stated whether the Juror was put upon the triors by the accused or by the State. The charge, if given, was such that it could not operate otherwise than in favor of the party, which was the one objecting to the Juror. If, therefore, it was the accused that was that party, the charge, if wrong, operating as it did in his favor, if it operated at all, was not a thing of which he could take advantage.

[8.] Under these circumstances, it is impossible for this Court to be able to say whether this ground, even if good in law, was one on which a new trial should have been granted by the Court below.

The next of the grounds taken for a new trial was, that the Court failed to make any charge to the Jury, concerning “ admissions.”

[4.] The mere omission by the Court to give a charge on a particular point, is not, in general, a ground on which a new trial may bo demanded. If the point be one about which the law is doubtful, or is abstruse, such an omission is, perhaps, a matter which gives a right to the losing party to call for a new trial. If it be not such a point, why should we say that the Jury, a body which, indisputably in criminal cases, is made the judges of what the law is, did not follow the law ? (Cfraham on W. Trials, 278.)

Even the Now Trial Act of 1854, does not make the mere omission to give a charge a ground for a new trial. (Acts of 1854, 46-’7.)

And the rule, that in considering a person’s admissions, all of the admissions arc to be taken together, is one so obvious, that a Jury would, of themselves, it is to be presumed, follow it.-

[5.] The next ground taken in the motion for a new trial was, that there was no evidence on which the Jury could find the defendant guilty. But we think there was evidence on which the Jury could find him guilty. We think the weight of the evidence is on the side of the verdict.

The next ground taken in the motion was, that the Court did not sufficiently charge the Jury, upon the nature and certainty of the evidence necessary to convict in criminal cases.

We cannot see any error in the charge of the Court on this point.

The next and last ground was, that the Court had refused to let the accused prove that the deceased, when killed, was a fugitive from Tennessee for an offence, and what the offence was.

No case, as far as we know, has gone the length of deciding, that evidence of such facts as those, is admissible for the purpose of showing a homicide to have been justifiable. The case of Monroe vs. The State, (5 Ga. R.) certainly has not. If the crime of which the slayer offers to prove the person slain to have been guilty, is such that from its very nature it may stand as one among those “ circumstances” which the law considers “ sufficient to excite the fears of a reasonable man,” then, perhaps, evidence that the person slain was guilty of it is admissible; but in this case, the bill of exceptions fails to tell us what was the crime of which the accused offered to prove the deceased to have been guilty.

We, therefore, cannot say that the Court below was wrong in refusing to let tlie accused make the proof which he proposed to make.

The result is, that we think the Court below did right in> over-ruling both motions.