Dozier v. State , 26 Ga. 156 ( 1858 )

By the Court

Benning J.

delivering the opinion.

Was the Court below right in overruling the motion for a new trial? This is the question.

We think, that there is nothing in the first ground of the motion.

[1.] Does it follow from the Courts’ failing to charge in respect to voluntary manslaughter,- that the jury mistook the law of voluntary manslaughter, and mistook it to the prejudice of the accused? By no means. The jury were the judges of the law, as well as of the fact; and that the Judge decides right, is the presumption until the contrary be shown.

It does not appear, then, that this omission in the charge, did the accused any harm.

Such an omission, is not one of the things made grounds for a new trial, by the new trial Act of 1854. Acts of 1853-1854, 46.

We can perceive nothing exceptionable, in the second ground — and pass to the third.

[2.] The Court told the jury, that malice “does not mean hatred, enmity, ill-will, malevolence, or anything of that sort.” This is undertaking to say, not what malice is, but what it is not; and,perhaps, what is said, considered in that view, may pass. The words, “ or anything of that sort,” are, however, extremely broad. It would certainly be safest to follow the Code.

“Express malice is that deliberate intention unlawfully to take away the life of a fellow-creature, which is manifested by external circumstances capable of proof.”

“Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.” Cobb, 783.

It is deducible from these two sections of the Code that malice in the abstract, is, intention — is, a “ deliberate intention, unlawfully to take away the life of a fellow-creature.”

We pass from the third ground with these remarks.

The fourth ground is, we think, a good one.

[3.] The jury differed among themselves, as to what the main witness swore on an important point. They informed the Court of this difference. The usual course in such cases, has been, for the Court to require the witness, if at hand, to restate to the jury his evidence on the point; if the witness is not at hand, to read to the jury what has been taken down in writing as the evidence of the witness, on the point. This course, we think, has been in pursuance of the law. It complies with the great rule of evidence, that the best evidence which the nature of the case admits of, shall be required, and when produced, shall be received. It does not impose on any juror, the duty of surrendering a clear conviction as to what it was he heard from the mouth of the witness when the witness was testifying. This is a matter it leaves to him.

In Griffin vs. The State (15 Ga. 479) the charge to the jury was; “Take the evidence as it has been read to you,” &c.; and this Court held the charge wrong. Why? Because the charge amounted to saying, that this “ read” evidence was the best evidence — better than the evidence heard from the mouths of the witnesses. But holding this, was by no means holding,that such “read” evidence — that is, the evidence taken down by the Court — is not admissible as secondary evidence.

Supposing the fifth ground true in point of fact, it does not make a reason for a new trial.

The sixth ground is: “ Because in a difference between the prosecution and the defence, on a material fact, the de fence prayed the Court for reference to the brief of evidence, to settle the question, and the Court refused.” •

Such “ a difference” between opposing counsel, if requiring to be settled at all, ought not to be settled in a different manner from that in which a similar difference among the j ury would have to be settled. But we are not prepared to say, that there is any law which requires it to be settled at all. As long as there is no such difference among the jury, of what consequence is it, that there is such a difference between the opposing counsel? If the difference between these is shared in by the jury, they can make it known, and then the witness will be recalled, if at hand; if not, the manuscript of his evidence may be read.

The seventh ground is not a reason for granting a new trial: We think, however, that it is highly important, on ev-

ery account, that the “ evidence as taken down” ought to be ‘■read ovér to the witnesses for correction”; and that every other means ought to be taken, to render such evidence as perfect as possible. Why, it is needless to specify,

We do not mean to say, that a case is not conceivable in which, incorrectness in the evidence as taken down, might not become a ground for a new trial.

The husband is not a competent witness for or against the wife; nor the wife for or against the husband. But this rule does not extend to the case of a man and woman living together in a state of fornication. That the two contemplate marriage, can make no difference.

There is nothing then in the eighth ground.

The newly discovered evidence is a small matter any way; and it might have been discovered in time for the trial, by the use of any diligence.

There is nothing, then, in the ninth ground.

It is needless to express an opinion on the tenth, which is, that the verdict was contrary to the evidence.

New trial ordered on one ground.