Ivey v. State , 23 Ga. 576 ( 1857 )

By the Court. —

McDonald, J.

delivering the opinion.

[1.] The Court below committed no error in admitting as evidence to the jury, the record of the presentment of the grand jury, on which the Solicitor General made out the bill of indictment. The mere entry on the record of the word “indictment,” did not change it from what we usually understand a presentment to be. It did not have the name of a prosecutor, and it was stated in the margin to be the “special presentment of the grand jury.” Indeed, we have already held, that when a presentment contains fully and formally all the charges necessary in a bill of indictment, the Solicitor General may prosecute it as an indictment, without making out a literal copy.

[2.] The next exception is on the charge of the Court, to the jury respecting the competency of the evidence of Albert C. Ivey introduced to impeach the testimony of Joel C. Ivey. The Solicitor General moved to rule out the evidence of the impeaching witness, on the ground, substantially, that there was no direct contradiction of the statement of the witness intended to be impeached. The Court did not remember distinctly, the answer of the first witness, to the question propounded to him, and referred that question to the recollection of the jury, the Solicitor General and defendant’s counsel disagreeing as to the answer, and charged them to regard or disregard the evidence, accordingly as they should remember that his answer was the one way or the other. It would certainly have been more regular to have re-examined the witness on that point, if he was at hand. If he was not accessible, the Court resorted to the only practicable mode of disposing of the matter. He instructed them correctly as to the law of the case, and the exception is not to his referring the decision of that question to the jury, but to his charge to them, admitting that he was right in referring it to them.

[3.] The request made of the Court, by defendant’s counsel, to charge the jury, that if the witness, Joel C. Ivey, had, in their opinion, from the testimony, sworn falsely in any one particular, they ought to throw aside the whole evidence, is not founded in law. The evidence of a witness is false if it is not true. But it may be false by accident and without intention, on his part; and it may be false by design. The witness who testifies falsely, when he intends to testify truly, and the fault is in his memory, and not in his intention, is not guilty of perjury. But if he testifies falsely wilfully and knowingly, he is guilty of perjury, if to a matter material to the issue, or point in question. The whole narrative of a witness who intends to swear truly, ought not to be discarded as untrue, because, from the failure of his memory, his evidence is false in one particular. But if a witness perjure himself, that is swear wilfully and knowingly false, even to a collateral fact, his testimony ought to be rejected entirely, unless it be so corroborated by circumstances, or other unimpeachable evidence, is to be irresistible. Mac Nalley's evidence, 4. The request of defendant’s counsel makes no distinction between the testimony of a witness who swears falsely, wilfully and knowingly, and the one whose testimony is false through mistake or the failure of memory. The refusal of the Court to charge as requested, is not erroneous, and if there be any fault in the charge of the Court as given, it is in favor of the defendant,

[4.] We think there is no error in the charge of the Court, as to the effect of circumstantial evidence, and the weight due it in cases like the one before him. The Court used a strong expression when he said, that “if the above facts be proven by the testimony, the iawfpresumes the defendant guilty.” It would have been better, put in another way; that the law would authorize the jury to presume the defendant guilty. A presumption is an inference as to the existence of a fact not actually known, arising from its necessary or usual connexion with others which are known.” Phil Ev., Cowen & Hills notes 289, note 298. In a subsequent part of his charge, the presiding Judge gave such an explanation of the presumption to which he referred, as rendered what he had said, harmless to the defendant. There was no motion for a new trial in this case^and as the rigid exactions of the statute in reference to the granting of new trials, do not apply to it, satisfied as we are with the finding of the jury, upon the facts in proof, we affirm the judgment of the Court below.

Judgment affirmed..