Williams v. State , 60 Ga. 367 ( 1878 )

Bleckley, Judge.

1. The Code declares, section 4681, that “ on calling each juror, he shall be presented to the accused in such manner that he can distinctly see him, and it shall then be lawful for the state, or the accused, to make either of the following objections ” (specifying them). Section 4684 prescribes, that “ if found competent and not challenged peremptorily by the state, he shall be put upon the prisoner, and unless challenged peremptorily by him, shall be sworn to try the cause.” This shows that jurors are to be driven upon the prisoner in single file, and not in platoons. He is not to be confused by looking upon a multitude of faces at once, but is allowed to scan each countenance separately. He is not to be thrown into alarm by too strong an exhibition of force. He takes his jurors one by one, and wrestles with them single handed. This is the scheme of the Code, and it is the scheme of the common law as well. Chitty says, “ the usual course is for the clerk of the arraigns or the clerk of the peace (after he has addressed the prisoner as to his right of challenge, and that he is to object to the jury as they come to the book and before they are sworn,) to call the name of the first juror, and then, if he be not objected to, the prisoner so signifies; and then that juror is sworn, and then the next is called and he is accepted or challenged.” 1 Chit., Cr. Law, 547. See, also, Archbold Cr. Pl. & Prac. 162. There is no reading in the books of a regular march of the jurors upon the prisoner, and of his having to welcome or repel more than one at a time.

2. The length of argument, in the trial of a felony, is not a matter for pre-determination by the court. How can the court know, in hours and minutes, how long the argument ought to be ? There is no rule of practice that settles it, and the judge cannot settle it by what he may suppose sufficient. As argument progresses, he may confine its range to the facts and law of the case, and may interdict idle repetition; but Avhile counsel speak to the point, and proceed in good faith, wasting no time, how can the court forbear to be patient, and hear what is said ? When it is manifest that the discussion is complete, and the subject exhausted, a stop may be ordered.

3. The discretion of the court in permitting either party to introduce evidence at any stage of the trial, will not be controlled unless it appears that the opposite party, in consequence of the discharge of witnesses, or from some other cause, has been injured.

4. The charge of the court was free from substantial error, in reference to admissions, asportation, or to principals in the first degree. And the request to charge in reference to aiding and abetting, was not appropriate to the facts in evidence.

Cited for plaintiff in error: Code, §§4681, 4682, 4684; 49 Ga., 255 ; 47 Ib., 598; Code, §§3790, 3791, 3248 ; Wharton, 1810 ; 36 Ga., 222.

Cited for defendant in error: Code, §4392; 1 East P. C., 555; 1 Hales P. C., 507, 527; 1 Brit., Cr. Cases, (1 Rus. & Ry.,) 387, 292; 2 Brit. Cr. cases (1 Moody,) 714; 2d. Car. & Payne, 423; 8 Porter, 511; 49 Ga., 225; Code 3790; 10 Ga., 512: 27 Ib., 649; Code, §3791; 19 Ga., 7; 22 Ib., 40; 1 Greenleaf’s Ev., 218; 30 Ga., 757; 32 Ib., 661; 10 Ib., 517; 28 Ib., 604.

Judgment reversed.