McRae v. State , 52 Ga. 290 ( 1874 )

Trippe, Judge.

1. The crime of which the defendant (plaintiff in error,) stands convicted, was committed more than two years before the trial. The judge certifies that “when the case was sounded, the defendant, without having his witnesses called, moved for a continuance. The court requiring the witnesses to be called, Jacob Lassiter and another' witness came into court. The judge offered to furnish a bailiff to send and bring the absent witness, Baum, into court, having announced the intention to continue the term the following week. Defendant's counsel declined to send for the witness.” The continuance was then refused. The action of the court does not leave the defendant much ground of complaint. There was no reason why he should not have accepted the offer made to send for the witness. An officer was tendered and time proposed to be given. If the witness could not have been found after the effort was thus made, a different question would have then been presented. But the refusal of the defendant to make the effort, when taken in connection with the fact that he had made the motion for a continuance on the ground of the absence of several witnesses, when all but one came into court on being called, very strongly supports the court in refusing the continuance, and relieves the refusal from the charge of being an abuse of discretion. When parties decline to avail themselves of the aids which the courts tender, for the purpose of disposing of the business before them, it should be made to clearly appear that the offer would be of no avail to the one refusing, before a verdict should be set aside, on the ground that a whole term was nqt given.

2. Nor do we think that the remark of the court, to-wit: that it was satisfied from what had occurred in connection with the motion, that it was made for delay, authorizes the setting aside the verdict. That was doubtless the ground on which the refusal was based, and there was strong reason for so believing. It was not error to give the reason for the judgment pronounced. *

3. The assertions of counsel as to the opinion they entertain of the effect of the evidence, however strongly they may be made, are not evidence, and it is not error for the court so to say to the jury. It would be but a statement of an undeniably correct principle, and might often be a prudent warning to the jury. It is the duty of a jury to listen to the argument of counsel, but for the evidence they must look to the witnesses and the other testimony in the case. As to the effect of the evidence, after all the light that may be thrown upon it by the argument and the charge of the court, it is to be determined by the reason and judgment of the jury. It may be added, that so far as it appears from the record, it is 'not shown whether the remark complained of was intended by the court to apply to counsel for the defendant or for the state.

4. The charge of the court as to the credibility of witnesses, to-wit: that all witnesses are presumed to be credible unless impeached in the mode prescribed by law, was correct. If either party desire the modes of0 impeachment to be pointed out or specified, a request to that effect should be made. In this case any impeaching testimony that was introduced was admitted for the purpose of impeachment, and in the mode prescribed by law. That mode of impeachment was adopted, allowed, and was before the jury, and so understood, as one of the modes prescribed by law. If there was anything special in the case which would have made it proper that the jury should have been particularly charged upon it as a guard against being misled, it should so be made to appear in the record, and the attention of the court should have been called to it. '

5. According to several decisions made by this court, it was not error for the court to charge, in a criminal case, that “the jury are judges of the law and the facts, so as to enable them to apply the law to the facts; but it is the province of the court' to construe the law and give it in charge, and of the jury to take the law as given and apply it to the facts as found by them, and to bring in a general verdict:” Anderson vs. The State, 42 Georgia, 9; Oneil vs. The State, 48 Ibid., 66.

6. The indictment in this case was for murder. The verdict was voluntary manslaughter. A portion of the charge on the subject of murder may have been, on close criticism, in some respects objectionable. . Those portions are not given by the reporter in the statement of the case, nor is it necessary to state them here. But no exception is taken to the charge on the subject of manslaughter, which was also fully submitted to the jury. The verdict is strongly supported by the evidence, even if taken with the statement made by the defendant to the jury at the trial. This being so”, although there might have been some error in the charge as to another crime, not found by the jury, and which could not have misled them in the verdict that was rendered, we do not think we are called upon to set aside the verdict, and to grant a new trial.

Judgment affirmed.