O'Byrne v. State , 29 Ga. 36 ( 1859 )

— Stephens J.

By the Court.

delivering the opinion. •

[1.] In petty offences, the practice of striking a jury, has been so long and so uniformly held to be an equivalent for challenging as provided by statute, that we are not disposed at this late day to hold it an inadmissible practice in that particular class of cases. The first assignment of error therefore is overruled.

[2.] In this case, there was the testimony of two witnesses that from their knowledge of the general character of Fanny Bell, the State’s main witness, they would not believe her under oath in a case where she had either an interest or a prejudice ; and it was also in evidence that she had had with defendant a difficulty which remained unsettled. This therefore, was evidence going to her impeachment. The Judge charged the jury as to the effect of impeachment where successfully made out, and then expressed a doubt whether the charge was applicable to the case. This was equivalent to saying that he doubted whether the defendant had made out a case of impeachment, and this again is a clear intimation of his opinion as to the evidence, contrary to the statute prohibiting such intimations. The judgment must be reversed on this ground, without considering the other ground which was abandoned in the argument.

Judgment reversed.