Henry v. State , 33 Ga. 441 ( 1863 )

By the Court. —

Lyon, J., delivering the opinion.

1. The first exception made in the record is to an explanation given by the Court to one of the jurors while on his trial for competency. The juror did not understand the meaning of the term “ perfectly impartial,” and the Court explained its meaning to his understanding of it. We see no error in this; on the contrary, we think it was the duty of the Court to make the explanation.

2. It is also objected, that while another juror was on trial, and after he had answered the question, whether he had any bias or prejudice against the prisoner, in the affirmative, the Court interrogated the juror as to what he meant by his answer, etc. There was nó error in this. The object of the examination is to get impartial, unbiased and unprejudiced jurors to try the cause. The questions propounded to the juror, under the statute, are the tests of the law for the ascertainment of this fact, and it is legitimate in the Court, if he suspects from the examination, the answer of the witness, or otherwise, that the juror does not correctly understand the questions, or the effects of his answer, to sift the juror by other questions and explanations, until the' question as well as the answer* and its effect is fully comprehended; but the statutory questions, nor the consequences of a negative or affirmative answer thereto, must not be neglected when the question is fully understood and fairly answered.

3. Whether a negro slave can control a blacksmith shop, under the laws of this State, is not so clear. There is no express statute, so far as we know, expressly prohibiting it; but from the restrictions, placed by different statutes, on slaves, for the proper discipline and subordination of that class of our population, we are inclined to think such an act in conflict with the general policy of the State on this subject. He, the slave, is not permitted to go off the plantation of his owner, without a permit. He cannot rent or hire a house to be used or occupied by any slave. Cobb Digest, 980. , They are not allowed to learn to read or write; nor are they permitted to labor for themselves, even with the permission of the owner. Cobb New Digest, 984. If he cannot do any of these things, it certainly could not have been within the intention of the Legislature that he should control a blacksmith shop, or any other shop, and carry on and conduct the business thereof. Hence, we think there was no error in the ruling out evidence of this fact; for if the prisoner did control the shop, such control was illegal.

4. Was the evidence sufficient to support the verdict of murder? We think that it was not. There was a quarrel between the accused and the deceased, originating more in the drunkenness of the accused than from any apparent provocation by the deceased. He, it seems, was a striker for the prisoner, who felt, in consequence, that the deceased was under his control, and that he had the right to chastise him. This was the whole extent of the prisoner’s intention. He designed nothing more, and in the execution of such purpose, he beats the deceased with an axe-helve, a very improper instrument for that purpose, it must be confessed. Two blows are given —one witness says four — and death ensues. Is this murder? We cannot think that it is. There is no malice, no design on the life; and to bring the case within the presumptions of the law as to malice and intent, the State attempts to show that the weapon used was one likely to produce death. The effort was not successful. The axe-hel ve used was not exhibited, and the only evidence we have as to its character is the loose 'statement of a contradicted negro witness, not on this point, however, that the axe-handle was wide but thin, and tha^ the accused struck with the thick end of the stick. This is all we have as to this particular axe-helve, and that, too, as seen by the negro in the dark; and then we have the testimony of the witness, Dr. Gilbert, as to the force and effect of axe-helves generally. He says an ordinary axe-handle would produce death, in the hands of a strong man. Was this an ordinary axe-handle. We have no evidence that it was. That it would produce death is clear; for it did so in this case; but was it a weapon likely to produce death ? that’s the point — on an occasion when it was not used for that purpose, with no design to kill, but with the sole object, as the negi’o repeatedly said, of whipping the deceased.

Believing, as we do, that the evidence is insufficient to make out a case of murder, we think that the Court below ought to have granted a new trial on the ground taken that the verdict was against law and the evidence.

Let the judgment be reversed.