Watkins v. State , 125 Ga. 143 ( 1906 )

Lumpkin, J.

The evidence was not very precise either as to the weapon used in the assault for which the defendant was convicted, ■or as to the venue; but we think there was enough to support the ■verdict. The prosecutrix did not distinctly state the weapon with which the shooting was done. But the defense showed that he had •and was shooting a pistol that evening, though the scene of the .■shooting was located by the witnesses for him elsewhere than the .scene of the crime, at about the time when it occurred. The jury, mo doubt, believed he had a pistol “about the time” the offense was committed, but rejected the theory that he was not at the place where it transpired.

On the subject of venue the father of the prosecutrix testified, that he was coming from the store “that evening” and heard some shots Bred. “It was in the direction of the house where my daughter lives. I didn’t see anybody and don’t know who did the shooting. It was in this county.” Fairly construed, we think this means that the shooting was in the county of the trial; and other witnesses were introduced to show that the accused did it.

In Ledford v. State, 75 Ga. 856, it was held that a juror “was disqualified, being a third cousin, and within the ninth degree, which fact was unknown to the defendant and his counsel till after the trial.” In the headnote in that case the want of knowledge on the part of counsel is not mentioned, but both in the report and in the opinion the necessity for a lack of knowledge of the counsel is coupled with that of the defendant. In McElhannon v. State, 99 Ga. 672(1), it is stated that the accused and his counsel accepted as true the answers of the jurors to questions propounded to them by the court in regard to their relationship, and that they had no-reason to know or suspect the contrary until after the verdict was rendered, having exercised all necessary and proper diligence to discover it. In Brown v. State, 28 Ga. 439, the same rule is recognized, and while it is stated generally that one of the jurors was a cousin to the prosecutor, it appears in the opinion that the disqualification was conceded, and the only question was whether diligence-was used in ascertaining it. In Rust v. Shackleford, 47 Ga. 539, where two Judges presided, it was stated generally that the juror,’ being the cousin of one of the defendants, was incompetent to sit on the trial. The record discloses that he was a second cousin. The ninth degree of relationship, as that expression was used in Ledford’s case, has been construed to mean the ninth degree as calculated by the rules of the civil law, and not of the canon law. Thompson on Trials, 53; 17 Am. & Eng. Enc. L. (2d ed.) 1124. It seems, however, that in determining the relationship of a party to a judge in this State, the rules of the canon law should be used. Short v. Mathis, 101 Ga. 287; Roberts v. Roberts, 115 Ga. 261. By the civil law the reckoning was taken from one of the persons, up to the common ancestor, and then down again to the other. By the canon law the reckoning was taken from the common ancestor to that one of the two persons who was furthest removed from him. Sir Edward Coke stated that relationship in any degree was-sufficient to disqualify a juror. Co. Litt. 157a. But later writers-state that the relationship must be within the ninth degree, calculated according to the civil law. 3 Bl. Com. 363; 1 Chitty’s Crim. L. 541; Finch’s Law, 401. Such seems to be the view adopted in this State, as indicated in Ledford’s case, supra. Whether it is necessary to show what the degree of relationship is, and whether it is sufficient to simply state that a juror married a, cousin of the prosecutrix, without showing whether it was a first, second, or third cousin, or a cousin within whair degree, so as to bring it within the ninth as calculated by the civil law, need not be decided. Certainly it would be the better practice, if it be not indispensable, to specify the degree of relationship. In the affidavits supporting the motion for a new trial it was stated by one person that the prosecutrix had said that the juror married a cousin of hers; and by another affiant, that the wife of the juror was a relative of the prosecutrix; that “she was an own cousin.” That the mere statement of the accused that he discovered the relationship afterwards is not sufficient in itself to prove such relationship, see Barron v. State, 74 Ga. 833. In view of the indefiniteness as to the relationship, and the fhilure to show that the defendant’s counsel was ignorant of it, the showing did not require a new trial.

Judgment a-fjirmed.

All the Justices concur.