Hunter v. State , 43 Ga. 483 ( 1871 )

Lochrane, Chief Justice.

1. This was an indictment from Brooks Superior Court. Preliminary to the trial a motion was made to change the venue, which was overruled by the Court, and this is the first ground of error assigned. This motion was predicated upon the affidavit of the defendant, in which he alleges that upon the ground of excitement and prejudice, he could not obtain a fair trial in the county of Brooks. The Constitution of 1868, Code, section 5102, declares that criminal cases shall be tried in the county where the crime was committed, except cases in the Superior Courts where the presiding Judge is satisfied that an impartial jury cannot be obtained in such county. The law is silent as to the mode of ascertaining, by the presiding Judge, the fact upon which this judicial discretion is to be exercised. The presiding Judge must he satisfied, and inasmuch as this question has been the subject matter of grave forensic ' disputation, we feel invoked to express our opinion. We premise by saying, that we do not think the affidavit of the defendant as to the existence of excitement and prejudice against him ought to be sufficient to invoke a change of venue. It is but natural that a community of peaceful citizens, attached to law and the good order of society, would feel the shock produced by a great crime, and exhibit towards the criminal some of that natural and healthy dislike, which he would more aptly term excitement and prejudice. It is only in such cases where such a community have given utterance to their feelings by prejudging the case, and an upheaval of popular indignation has shaken the sober convictions of the people, so as to include within its influence those who are otherwise qualified as jurors, and exclude the idea of a fair and impartial trial, that the Court would be properly informed, so as to be justified in changing the venue.

Such an exercise of power was not, in our opinion, delegated by the Constitution as comprehends its capricious exercise, but only in cases where the facts are developed by the strongest proof. And while we do not lay it down as a legal rule that the Judge should first try to obtain a jury by the ordinary process of the Court, before changing the venue, still we are clear in the opinion that, perhaps, this is the most satisfactory test, and the one most in consonance with the provisions of the legal interpretation of the Constitution. And in the case at bar, we concur with our Brother Alexander in the mode and manner in which he exercised this judicial duty, and affirm his judgment upon this point.

2 and 3. The second ground which we will review, is in relation to the admission of the sayings of Sampson Maxwell, one of the witnesses for the State. It appeared, on the examination of this witness, that at the time of the homicide, he was one of the servants of the accused, and on the trial before the inquest, had given in evidence statements contradictory of that which he was then giving. Upon cross-examination as to this fact, in which he admitted this contradiction and inconsistency, he gave as a reason that he was afraid of the defendant, who, on the night of the homicide, had told him he would be in danger if he ever said anything about his shooting the' gun; and also what he had stated to Jesse Hunter, brother of the accused, and his reply, to “ keep that to yourself till the judgment dayalso, in admitting the testimony of Turner, as to the conduct and appearance of Sampson Maxwell on the previous examination, and also allowing evidence as to rumors in the neighborhood relative to the marriage of Miss Gaulding and deceased.

It was urged by counsel for the accused, that the above evidence ought to have been rejected, upon the ground, first, that it was hearsay, and that it was illegal to admit evidence to sustain a State’s witness, and that before he was impeached by the witness of the defense the rumors were not admissible under the facts in this case.

We propose briefly to glance at the character of this evidence and the conduct of the parties, before reviewing the question of the admissibility of this evidence :

It.appears that the accused was a rejected suitor of Miss Gaulding, and that Alexander, the deceased, was an accepted suitor. On the night of the homicide the prisoner passed by Captain Gaulding’sgate, in returning from Colonel Jones’ to his own house, and there saw the horse of Alexander, hitched or standing. Immediately on his return home, he cleaned out and loaded his gun with buckshot, hurrying supper, and went out with the gun. At a point between his own house and Captain Gauldiug’s, some half way, a gun was fired, and soon thereafter the horse of Alexander galloped by the gate of Hunter. In a short time Hunter returned through the fields to his own house, with his gun, and met Sampson Maxwell in the yard and a conversation took place, about which he testified. A company of serenaders returning from Captain Gaulding’s found the dead body of Alexander on the road. They came on to prisoner’s house, finding him up and they told him that they had found Mr. Alexander dead. The prisoner went to where Alexander was lying, having a lamp, but sat down with some others and waited the arrival of Captain Gaulding, apparently as if he did not know who it was. Before any accusation was made against him, he consulted with Colonel Jones about making his escape, and sent a party to Maxwell to see what he would swear. The day before the homicide he had a conversation relative to the marriage of Miss Gaulding and Alexander, and there was also evidence of some bad feeling existing between Hunter and Alexander, on account of the marriage, and evidence of some private conversations between himself and Maxwell. Upon his trial for this homicide, the testimony of Maxwell in the manner stated was drawn out.

We think there was no error in the Court, under the facts, in admitting the evidence. The attempt of the defendant, by cross-examination, was to impeach the witness in showing his contradictory statements, and he was entitled to give a reason for these contradictory statements elicited by cross-examination, by showing that he was in fear at the time that he uttered them. And the evidence of Captain Turner was properly admitted to show any facts or appearances upon that examination which went to show the witness was laboring under fear. And it was equally his right to show similar statements made by him previous to his relation to the prosecution, which would go to show the truth of his testimony: Greenleaf on Evidence, 1 volume, 469. And the fact that there was a rumor of the approaching marriage of the deceased to Miss Gaulding, was properly admitted as a circumstance in the case, for the purpose of showing motive upon the part of the accused, especially as the rumor was brought directly home to him, and conversations growing out of this, exhibited on his part towards Alexander an unfriendly feeling. It was immaterial, in fact, whether the marriage was approaching or not.

We do not deem it necessary to multiply authority upon these propositions. They stand out under the rules of law, commonly recognized and supported by the opinion of publicists and the adjudication of Courts; and looking to the facts of the case, were material to the elucidation of the truth. The various springs by which human motives are supplied, are frequently difficult to trace, but perhaps none are more difficult than those having their fountain head in envies and jealousies which agitate the human heart. The unfortunate prisoner, from this record, seemed to mark with more than ordinary prejudice, the man to whom he may have attributed his defeat, in the accomplishment of what he regarded the object of his domestic happiness. He evidently cherished toward him, from the proof in this case, an animosity kindled out of the embers of his own disappointment, and by utterances of vindictive feelings, which he could not suppress, warmed into life the suspicion against himself before it found existence elsewhere. Its picture became so vivid on his immagination as to induce him to seek the advice of Colonel Jones about flying from it before it had been felt or expressed by others. In the administration of the criminal law, any fact shedding light upon the motives of the transaction will not be excluded from the consideration of the jury, whether it goes to the attestation of innocence, or points to the perpetrator of the crime.

Again, complaint is made that in as much as no evidence was introduced by the defense, this evidence was improperly admitted to sustain the witness for the prosecution. It is not necessary to await the admission of evidence of the witnesses for the defense, to support the witness for the State, by the admission of material evidence supporting them, as to the truth of their testimony, and this is especially true from the fact that the defense may introduce no testimony.

4. During the argument counsel insisted upon the authority in 17 Georgia, that confessions were the highest species of evidence, while the counsel for the defense, under the authority of the Code, section 3739, insisted they were not. The Court was requested by defendant’s counsel to charge that confessions were the highest evidence, which he declined, and charged the jury in the language of the Code.

We see no error in the charge made by the Judge, under the laws of this State. He charged the jury what the law was, and it was not his duty to have intimated to them its effect or to have graded its influence upon their verdict by any classification.

It is alleged as error that the Judge charged the jury under the general rule to reconcile the testimony, and the ground of complaint is, that this rule does not apply to cases where the evidence is only introduced by the State. We hold the rule is equally applicable, whether there be evidence by the defense or not. The rule in relation to evidence is without exception.

5. Another ground of error complained of is, that the Court charged the jury in this case in relation to circumstantial evidence. In the view we take of the case under the facts proven, the charge of the Judge below on this subject was not only correct, but proper.

6. In relation to a portion of the jury before the completion of the pannel reading the “ Quitman Banner,” it appears that this newspaper contained no portion of the testimony, either for or against the prisoner, but contained a diatribe against one of the counsel of the accused for a speech made on the motion to change the venue. It is difficult to draw any line sufficiently well marked to constitute a rule upon this subject, and we can readily appreciate the propriety of keeping the jury, from the moment they are sworn in chief, away from all influences and communications which might, in the most remote degree, influence their verdict; but we are not prepared to say that the reading of a mere newspaper under the circumstances, being known to the counsel of the accused, not excepted to by him, then and there, and transpiring in open Court, would constitute a ground of error sufficient to set aside a verdict. On the contrary, we hold that it would not.

7. Another ground of complaint is in relation to the competency of the juror*, Harrell. We have examined the evidence by affidavits, inculpatory and exculpatory, and are clearly of the opinion that he was a qualified juror, and sustain the ruling of our brother below, whose pertinent and able opinion embraced in this record entitles it to great weight with this Court.

8. In view of the whole case we are satisfied that the verdict of the jury is sustained by the evidence, and therefore affirm the judgment refusing a new trial.

Judgment affirmed.