Smith v. State , 59 Ga. 513 ( 1877 )

Bleckley, Judge.

1. There was a consent for the jury to disperse after the verdict was agreed upon, and for the verdict to be returned into court by the foreman next morning. This, in effect, was to bring the trial to an end when the jury made a verdict and separated. 49 Ga., 458. Prom that time forth, the strict legal harness was off, and, the consent was to have its consequences, one of which was, that the right to poll the jury was gone. 6 Ga., 458; 36 Ib., 380. The waiver of that right wTas a necessary incident of the consent, after the jury had separated in pursuance of instructions from the court, founded on the same. It was, doubtless, an irregularity to receive the verdict in the absence of the prisoner. He.ought to have been brought from the jail, so as to be present at the reception. But we think it was merely an irregularity, and that no matter of substance was involved. Having surrendered his right to poll the jury, no other of any value to him remained, for the exercise or protection of which his presence was important. Had he been in court, the result must have been the same as it was. Nothing took place in his absence, but the mechanical act of receiving the verdict, as the consent had provided it should be received. If he ,had been present, the act would have been no less mechanical. In Nolan's case (53 Ga., 137; 55 Ib., 521,) the event contemplated did not happen.

2. The request to charge, which the court refused, was not legal. It was in these terms: “ If the assault was made in a fight that was provoked by words, threats, or blows, and in the midst of the excitement of the fight, then, had killing ensued, it would not have been murder.” Words and threats are .here put on an equal footing with blows; whereas, the Code declares (section 4325) that provocation by words or threats shall, in no case, free the party killing from the guilt of murder.

3. The conviction was not unwrarranted by the evidence, though there was much evidence that tended to show the prisoner acted throughout in the character of peace-maker. The newly-discovered evidence represents him in the same amiable light, and is, therefore, cumulative upon the great mass of testimony which he introduced at the trial. It adds another witness to substantially the same array of facts, but this is all. We think there is no probability that it would produce a different Verdict.

Judgment affirmed.