Hudgins v.State , 61 Ga. 182 ( 1878 )

Jackson, Justice.

The defendant, with two others, was indicted for an assault with intent to murder. He was put on trial alone, convicted, and moved for a new trial on various grounds, which were overruled, and he excepted.

1. The first ground respects the charge, and is to the effect that the facts did not authorize the court to charge on the subject of a conspiracy and concert of action between the three, or two of the three, men who were indicted together. The facts, we think, authorized the charge. The two men were together, they ran upon 'the prosecutor together, and assaulted him behind him, both struck him, one used a knife, the other probably some hard instrument, and both ran off together, leaving him about midnight in the darkness nearly dead, stabbed with the knife in several places, and the blade stuck in his back with such force as to adhere to the bone, and to require the best ¡effort of a strong man, after several trials, to pull it out. The hand of one knocked him down, that of -the' other did the stabbing. If believed, these facts make a conspiracy or joint attempt to murder; and -the credibility of the witnesses is for the jury. If -the facts be 'true, both are guilty of the assault with intent to murder, no matter who actually stabbed; and the court was right to leave the common intent and conspiracy to the jury under the facts.

2. The next ground is that ’a juror' was not impartial. The only evidence of it is his sayings to one person sworn to by him. He had sworn -that he was perfectly impartial, and the rule is that one oath is as good as another. In 19 Ga., 102, it was so ruled in-a murder-case,-and where the expression of opinion was as strong‘as it is possible ¡to make it. That case covers this all fours on this point.

3. The next ground' relates to newly discovered testimony. It is the testimony of the accomplice, who, after his plea of guilty, was willing to testify that he did all -the beating and stabbing, and that his co-defendant did none of it.

They severed; he could have been sworn on the trial. Hudgins knew what -the facts were, because he was present at the assault, and all the newly discovered evidence that the co-defendant was ready now to swear -to, occurred in Hudgins’ presence. If these facts were true, why did he not swear him on the trial? The only reason is, that the co-defendant would have sworn a lie, if put up then until his own case was decided; if he would have sworn a lie then, there is no reason why he would not again. At all events, the defendant Hudgins ought to have had him sworn. The discovery of the willingness of a witness to swear to what defendant knew that the witness knew, and when he was accessible and in court, is not the discovery of new testimony-in the sense of the law, but merely of change of mind in the co-defendant. The main object of severing is to have the evidence of each for the other; and when it is not had if accessible, there is no diligence.

é. The court, not being able to complete the trial on Sat: nrday night, adjourned to Monday; and Monday was the day fixed by law for Fulton court. The defendant says, as the court could not sit at two places at one time in one circuit, that it had no jurisdiction in DeKalb on Monday.

The reply is, that the judge is presumed to have had the clerk to adjourn Fulton court until he finished this case in DeKalb, as the law. empowered to be done.

The practice has been in accordance with Judge Hillyer’s course, time out of mind; and it would block the administration of the law in many cases, if it were otherwise. Oases sometimes take two or three days over the week allowed ordinarily for the court in one county, and the law and practice have ever been, so far as we know, to hold on to complete the unfinished case in the one county, and to adjourn the court in the other, under the statute, to await the arrival of the judge.

. 5. The evidence makes a very bad case against the negro who did the actual stabbing; and an ugly case against Hudgins, to say the least of it. The evidence is ample to convict both ; and the jury having passed on the facts, and the judge presiding having sustained their finding, we are not at liberty under the law to interfere.

The trial was fair and the charge full and impartial.

Judgment affirmed.