Phillips v. State , 29 Ga. 105 ( 1859 )

— Benning J.

By the Court.

delivering the opinion.

[1.] The jurors were not interested in the event of the suit. How could they be gainers or losers, by the conviction or acquittal, of Phillips. In either event they would as citizens of the county, have to contribute the same money to the building of a new jail.

If there was a challenge to the array, on the ground, that the Sheriff was the prosecutor, and that challenge was sustained, and the jurymen were discharged, it is doubtless true, that none of them was a competent person, to sit in the case. But, it is not clear from the bill of exceptions, that these things were so. Therefore, we pass the first ground stated and relied on, to the second objection.

The second ground was, that the second panel was summoned by the Bailiff, instead of by the Coroner.

[2.] The Bailiff was ordered to do this service, by the Court; and power to make the order, was in the Court. The Act, (Judiciary) of 1799,) says; “when the Sheriff or his deputy are disqualified,” “jurors shall be summoned by the Coroner, or such other disinterested person, as the Court may appoint.” Pr. Dig. 430.

We find no error, therefore, in the Court’s ordering the Bailiff, to summon the talesmen.

So much for the first two exceptions.

What the witness, Foster said, as he ran to the jail, was ■> mere hearsay, unless it was-assented 10 by Phillips. And there was no evidence that Phillips assented to it, none, even, that he heard it.

[3.] We think, therefore, that the Court erred in receiving as evidence, what Foster said.

If the Court allowed Foster to tell the jury, that his opinion was, that Phillips burnt the jail, we think, the Court erred. We, suppose, however, that the Court received the saying of Foster, on another ground, than that of a witness’s belief being evidence, viz: on the ground, that the saying was addressed to Phillips himself.

As to the first request — if the fact, that the crime has been actually perpetrated, has to be first established, before circumstances can avail anything,' what use is there for circumstances at all ? Certainly none. It may perhaps be true, that, in a charge of murder, death must be shown — the finding of a dead body must be shown — before circumstances will be sufficient to warrant a conviction. But this death is not the crime ; it is what is called the corpus delicti. And so perhaps in other cases, the corpus delicti has to be shown, before there can be a conviction on circumstantial evidence. But in the present case, what was the corpus delicti ? Obviously, that the jail was burnt. See Best on Pres, sec’s 201, 204; 2 Hale, P.C.290; Wills on Circum. Ev. 105; 1 Stark Ev. 575; a a S; p. i76.

What is thus said of the first request, is equally applicable to the second.

[4.] But whilst we cannot go the length of these requests, we are equally unable, to concur with the Court below, in the qualification which it engrafted on the requests. Is it true, that if a house is consumed by fire, we are bound to believe, that some person intentionally set it on fire, unless it is shown, that the fire was the result of lightning, or accident. Surely not. Rather is it true, that, if nothing appears but the mere fact, that the house was consumed by fire, the presumption, which we are authorized, if not required, to make, is, that the fire was the result of accident, or of some providential cause.

New trial granted.