Nesbit v. State , 43 Ga. 238 ( 1871 )

Lochrane, Chief Justice.

The plaintiffs in error were indicted for the crime of murder and found guilty. A motion was made for a new trial upon several grounds, which were overruled by the Court, and the case comes before this Court for error alleged upon that judgment.

1. The first question made in relation to the refusal of the Court below to allow certain questions to be put to the juror, who was before the Court on trial as to his competency. This question is an important one as to the practice of the Courts in this State, and we will briefly advert to the rule of law governing such cases. Under the present law we hold that, after the juror has answered the statutory questions satisfactorily, and has been pronounced competent, and the parties put him before the Court as trior, primary evidence of the untruthfulness of his answers must be offered, and that it is not competent or legal to propound questions to the juror himself to show his ineompetency. But after the introduction of such testimony, it is within the province of the Court to hear the juror or examine him as to his explanations in the premises. The object of the-law is to procure fair and impartial men, and while the formation or expression of an opinion upon mere rumor is not sufficient to disqualify a juror, yet much depends upon the opinion of the Court, under all the circumstances in evidence, to see whether he has bias or prejudice. It is not the amount, but the existence of the sentiment that should control the judgment, for the law of Georgia provides for perfectly impartial men to discharge the duty of jurors. The judgment of the Court on this subject is seldom reversed, and therefore the conscious responsibility of the judgment should weigh in the consideration of the Court. In the case before us we think there was no error in the view he took of the law upon this subject.

2. The second exception is in relation to the admission of dying declarations, under the Code, section 3728. We have examined the evidence touching the condition of the deceased at the time the declarations were made, and while we recognize the rule laid down by several authors, as to’ what the condition must be: 1 Phil. Ev., 289; Wharton, 31; 11th Ga., 353, and in Roseoe’s Cr. Ev., etc., still we apprehend the contiguity to death, and the fixed opinion of the deceased that he would die, and his being, in fact, dying from the effect of compression of the brain, constituted such a condition as would have properly admitted the testimony, subject to the charge of the Court applicable to it.

w 3. The peculiar character of the deceased for wickedness and disregard of the law of God in his outpourings of blasphemy, would have invoked the consideration of the jury; for if a man, even without hope of life in this world, nevertheless without belief in God or in the divine revelation, while his declarations would be admissible, their weight and consideration should be weighed by the jury.

4. In this case we will not travel over the field of evidence before us; it is unnecessary. Prom its consideration, we are overwhelmingly satisfied that the verdict for murder is not supported by the testimony. And we think the Court erred in not granting a new trial on this ground.

Judgment reversed upon the ground the Court erred in overruling the motion for a new trial iu this case upon the ground that the verdict was contrary to the testimony.