Sarah v. State , 28 Ga. 576 ( 1859 )

By the Court.

Lumpkin, J.,

delivering the opinion.

1. Was it error in the court to allow the prisoner to be tried by a jury taken, from the grand jury list, by the consent of both counsel for the State and the prisoner ? We think not.

And we lay down the broad proposition that as a prisoner may waive even a trial itself, and be capitally punished upon his own confession of guilt, he may waive any minor right or privilege. The greater including the less. Besides, by the act of 1856, all persons between the ages of twenty-one and sixty are qualified to serve as jurors in criminal cases. There is, therefore, no legal disqualification attached to any of the jurors who tried this case. Perhaps a jury taken from the grand jury list is the best that could be selected to try a slave. A slave has no peers or equals by whom they can be tried. He finds his best securitjr in the grand jury box.

Again; it is only “on request” that the court will supply a full pannel from which a jury in a criminal case is to be selected. Suppose the prisoner even when accused of a capital felony, should consent to be tried by either pannel of the petit jury in attendance on the court, no one we apprehend, would question the legality of the verdict.

2. Here, again, we have an exception to an aet done by the consent of parties. It is binding, and the prisoner must abide by it. As the witnesses had dispersed, there was no irregularity in it anyhow. As the jury were not distinct in their recollection of the proof, it was the- proper mode in the absence of the witnesses, of refreshing their memory.

3. We see no objection to the testimony of William Nelson. What if the negro had been whipped by her master the morning before 'she made the confessions, as proven by the witness, that does not make her voluntary confessions to Nelson subsequently, objectionable. Besides, counsel should have moved to withdraw the testimony if it'was illegal, and the excuse he renders for not doing so, is hardly satisfactory.

4. The showing made by Mr. Hill, as to the newly discovered evidence, is not sufficient; the fact is not verified which he expects to establish on another trial. Who was his informant, and where is his affidavit? But more than all, where is the affidavit of the prisoner herself, that she-did not know of the facts proposed to be proved at the time of the trial ? If they existed, she necessarily knew them, and should have communicated them to her counsel. They related to her condition at the time she made the confessions testified to by Nelson.

5. There is nothing in this objection. The testimony amounted to nothing. But be that as it may, the prisoner’s counsel consented to its introduction.

6-7. These two assignments may be disposed of together. The sum and substance of the ojection is, that the whole conduct of the Court was calculated t'o disparage the credit of the witness Howell. It may be that the presiding Judge yielded to the excitement of the moment, elicited by the bare-faced confession of Howell, evidently made to screen his guilty paramour; still he did not violate the statute which forbids the Judge to express or even intimate an opinion as to what has or what has not been proven; or as to the guilt or innocence of the prisoner at the bar. This being so, the Judge must be loft to his own sense of propriety as to what is due to himself as well as the prisoner on such occasions.

8. If the mistake in the testimony, as read to the jury, was of a character, to make it material to the conviction, we should deem it our duty to grant a new trial, notwithstanding the counsel of the prisoner was present and made no objection as to its accuracy. But it is very slight. The witness Williams says, “ he thought the girl drew the water that morning.” He is not certain. If the poison was deposited in the water, it was worse for her that she did draw it. Howell says he drew it the overnight, and put the poison in it unknown to prisoner. After all, the evidence is so uncertain and immaterial, and the evidence of the defendant’s guilty participation in this wanton and diabolical crime so satisfactory, without the proof, that we do not- think the case should be sent back, notwithstanding the oversight of the Court and the prisoner’s counsel, relative to the matter.

9. It was not error in the court to take down the testimony ; and so this court has heretofore decided.

10. The ancient practice was for the court to call on the prisoner, if he or she had anything to say why sentence should not be passed. It originated at a time when prisoners were not allowéd the benefit of counsel, and when the court was counsel for the prisoner, so far as to see that he was. deprived of no legal right. Besides the benefit of clergy was also allowed; and at this stage it was claimed. This is expressly abolished by our penal code.

Our penal code prescribes with some minuteness the formula to be observed in the trial of criminal cases. No allusion is made to this ancient ceremony. Prisoners represented by counsel, as they now are, lose no right by the omission. One of the reasons assigned in the books for the observance of the practice is, that a motion may be made in arrest of judgment. These motions are made daily, and always before the prisoner is called up to be sentenced.

Here a new trial was moved for. In the order of pleading, this follows the motion in arrest of judgment, and, therefore vii’tually overrules it. All the grounds against the judgment are taken in the motion for a new trial. If she had a pardon, or should even obtain one afterwards, it would be available even under the gallows. Had it been made to appear that the prisoner had lost any right by the failure of the court to observe this ceremony, relief would be extended.

11. "We are satisfied beyond a reasonable doubt that the defendant is guilty, and that the verdict is in accordance with the proof; and the court below was right in refusing a new trial.

12. Is the punishment inflicted disproportioned to the offence, inasmuch as no one was killed ? The law has left it discretionary with the court to inflict the death penalty or some milder punishment for this offence. It considers the extreme penalty sometimes justifiable. If the defendant be guilty, and the testimony and the verdict establish the fact, can we conceive of a more aggravated case ? An attempt is made to cut off' by one fell swoop the whole family from among the living. And that too, without the slightest provocation !

When we consider the facility with which this crime may be committed, the temptation to its perpetration, either under the influence of temper and revenge, or urged to it by base men to accomplish their own wicked and corrupt purposes; in a clear case of guilt the stroke should not be averted. It is due to the living that one so depraved should not be spared.

Judgment affirmed.