Williams v. State ( 1882 )

JACKSON, Chief Justice.

There are thirty grounds taken in the motion for a new trial, and on each of them error is assigned in this voluminous record. For want of time to examine them all with necessary care during the last term, the case was held up for further investigation during the vacation. These grounds of error may be classified under three general heads: first, errors assigned upon the rulings of the presiding judge preliminary to the trial on the merits; secondly, those in regard to the competency of witnesses and their testimony; and, thirdly, those respecting the charge and refusals to charge.

A motion was made by the defendant to continue the case, and error is assigned as well on the refusal to continue as on the mode of trying the issue of continuance.

1. The showing was made in writing, and the point is made that in such cases the law will not allow a counter-showing. The statute permitting a counter-showing is not restricted to the showings in parol, but is general, and embraces both kinds, written and verbal. Code, §3531. If confined to a reply to parol showings, the law would be worthless; because no matter how simple the ground, it would be reduced to writing, and then it could not be controverted.

2. It is objected again, that the court should not have permitted the state to show, by counter-showing, that' defendant’s witness would not testify as defendant Had sworn he would. We see nothing in the point. It is true that other witnesses, on a counter-showing, ought not to be allowed to testify that the facts which the absent witness, if present, would swear to, were not true, because that would be to try the whole case; but the principle does not go the extent that by counter-showing it may not be proved that the witness, if present; would not testify as defendant swore he would.

The contradiction in ‘ such case is not of the absent witness, but of the defendant. It denies not what the absent witness would swear, but what the defendant says he would swear. It is a mere contradiction of defendant, such as that he did not subpoena the witness, or gave him leave to be absent, or that he is out of the state, or dead, or was not present when the crime was committed. The distinction is clear, and takes the point out of the ruling in 62 Ga., 362.

3. Continuances are addressed to the sound discretion of the court, and should not be disturbed by a reviewing court, except where discretion is abused in granting or refusing them, and injustice done. We see no error bathe third ground. Code, §3531.

4. We think, as matter of practice, that the court was right to confine the cross-examination of state’s witnesses on the counter-showing to the facts sworn to by them. If they knew outside facts, wholly independent of what they swore for the state, their affidavits thereto could be easily procured by the defendant. So that he was not hurt, even if the court, as matter of practice, was wrong. But it was right; because, if the door were opened wider, a world of prolixity and confusion, and a labyrinth of cross-questions, would enter and embarrass.

So there is no error in the ninth ground, and this concludes the questions on the motion to continue. Excitement is on the same plane of discretion as other grounds, "and the policy and public necessity of expediting trials of criminals which led the legislative mind to provide for extraordinary terms of court therefor, would seem to caution courts not to procrastinate on account of public excitement or other cause, where a fair trial can be had. There are in the record affidavits and counter-affidavits on the subject of excitement, and in regard to the accessibility of counsel to their clients in jail, and also in respect to their accessibility to testimomy taken before the inquest and committing court, somewhat conflicting and contradict.ory, but the presiding judge examined the subject with much patience and at great length, and has settled it. From a re-examination of it here, so far as the record can and does bring here witnesses and their evidence, we see no abuse of discretion, but an earnest desire to administer the law and to mete out the measure of equal justice to the state and the defendant.

5. The special plea in abatement rests on the grounds that two of the grand jury had formed and expressed opinions adverse to the prisoner; that the court had excused wrongfully grand jurors, and thus made it necessary to summon five tales grand jurors; that the solicitor general pro tern., who signed the bill of indictment, was the ordinary of the county, and also of counsel for the state, and that the whole grand jury and petit jury is illegal, because there was no legal precept directed to the sheriff to summon them to attend the court. On demurrer to this plea to abate the prosecution for want of a sufficient accusation to put the defendant on trial, the demurrer was sustained, and the plea was stricken. On this action of the court error is assigned.

It will be observed that there is no exhibit to the plea of any precept at all, so that the court can pass on its legality. The allegation is “that no precept has ever been issued or ordered, as the law directs, for the summoning or attendance of jurors at this special term, nor has any juror, either grand or petit, been summoned or sworn under a precept as required by law.”

The above is not an allegation that there was no precept at all, but none such as the law directs or requires. We cannot pass upon it unless we saw it. Under our law, it is a very simple thing. It must contain the names of the persons drawn, and that is all the statute seems to require. Code, §3913. When the clerk hands .that list to the sheriff, it is his duty to serve the persons, named. We presume this was done. 34 Ga., 270. Nothing to the contrary appears of record here. It is doubtful whether it be important to enquire about such matters at all. They relate, it appears, not to the securing of a fair and impartial jury for the defendant as much as to the mode of bringing the jurors to the court, and equalizing, by rotation, their duties among themselves. Such seems to be the ruling in 20 Ga., 60. See also 14 Ga., 43, and dissenting opinion in 57 Ga., 427. Certainly we will not enquire into what excuses any of the grand jurors made to the court for not serving, and whether good excuses or bad, or none at all; nor will we enquire into the necessity of summoning tales grand jurors. These ..Matters must be left with the superior courts ; and if, on' the trial of the criminal, all such details were open to investigation, the trial would be interminable.

The objection in the plea that two members of the grand jury who found the bill true, had formed and expressed an opinion, came too late. If there can beany objection to such, a grand juror, it must be made before he acts on the- case" — not before the final verdict, but before the finding- the bill. 3 Wendell, 313 ; see op. of Savage, C. J., and Márcy, J., and note to the case. It is too late to move Pn. the trial before the traverse jury. The truth is that it is matter of comparatively little importance that grand jurors should not have formed opinions, because they only put the party on trial, and that after hearing only one side of the case. If, however, it be deemed important in a particular case to fight the prosecution in limine, diligence requires that the challenge be made before the bill is found. In this case the party could have done so. In the case supra from New York, the defendant was not recognized, and it was, therefore, doubtful that the defendant knew that the grand jury that found the bill would pass on his case, yet the court held the point too late. See also 6 Wendell, 386; 6 Serg & Rawls, 395; 1 Bish. Crim. Pro., 881.

The only remaining ground of the plea is the fact that the solicitor,general pro tem., who merely prepared and signed the bill of indictment, was the ordinary of the county and of counsel for the prosecution. Of course no man by our fundamental law may hold two offices of honor and profit at the same time, and the ordinary would be disqualified for election as solicitor general. At least he would be put to election of one or the other office ; but we do not think that the prohibition would extend to the mere act of preparing and signing an indictment pro tem. in the absence of the regular solicitor general, and that this fact should quash the proceeding. As to his being counsel for the prosecution, it strikes us as of no consequence. Often associate counsel draw the bill of indictment. The solicitor general pro tem. here was appointed by the atourt for this specific duty until the arrival of that permanent officer, and his signature to the bill of indictment alter its preparation is the merest technicality, and cannot vitiate the entire proceeding. It may be doubted whether any signature 'is necessary of any solicitor general See Code, §4628 et seq. So the fo.urth ground was properly overruled. ' (

6. The challenge to the array of forty eight traverse jurors is based on the same ground in regard to the want of a legal precept, and the views presented above will cover this point. It is not stated what sof t of paper or list was presented by the clerk to the sheriff. ■ There must have been some sort of list or the jurors would not have been summoned and in attendance. The ruling in the 20th and 34th Ga. supra, must also cover this the fifth ground of the motion.

7. The sixth ground makes the point that a principal in the second degree cannot be tried until the case against the principal in the first degree has been disposed of. However it might be in the case of a mere accessory, a principal in the second degree may be tried before a principal in the first degree. 17 Ga., 194. Of that offence this party was found guilty, and it does not matter, on a motion for a new trial of that issue, that he was also indicted as accessory.

8. The state need not elect on which count to try. 58 Ga., 577.

9. The judgment of the court as a trior will not be reviewed by this court; its decision below is final, and no ground for a new trial. 47 Ga., 598, et seq.

10. The middle name of a juror, or the initial of it, is-immaterial. 8 Ga., 173, et seq.

11. The transaction in respect to the Donaldson money was admissible to show motive. The accused was interested in removing deceased if she knew facts connecting him with the larceny of that money. The court did not err in admitting Sally Lambert’s evidence thereon.

12. 13. The testimony of Mrs. Bailey and of John Bailey, touching the unfriendly relations between the latter and defendant, considered in connection with his spending the night at Bailey’s house during the res gestae (or near it) of the homicide, we think admissible, as well as his conduct and conversation while there. The facts sworn to may be mere circumstances, but often slight circumstances point the path which truth took, just as the bending straw will show the course of the wind as certainly as the prostrate oak the track of the hurricane. As slight circumstances they are relevant, and no error •Was committed in not ruling them out.

14. Two or three- distinct legal points seem to be made in the 14th ground of the motion. If the written evidence, taken down by the magistrate, on the charge of cow-stealing by deceased, is the best evidence, and must ,be accounted for before parol proof can be admitted, then ;the point is made that the writing has not been accounted ;for sufficiently. The presiding judge held that it had ibeen sufficiently accounted for, and the record does not ■■disclose error in his judgment on that matter. Besicjes, rthe parol evidence of the statement of deceased was admitted as made in the presence and hearing of defendant. It would have been legal evidence, therefore, if not under oath at all,-and could have been proven* by parol. Is the rule narrower because it was a statement under oath ? Besides, it is by no means certain that the mere substance of the testimony taken down in a case like this, is in law better evidence than the recollection of a competent and reliable witness. The relevancy of the evidence to this .case has been already discussed. It had reference to a recent contest between the deceased and the parties charged with her homicide, and intended to show cause or motive for the deed, which is-always relevant. On the general subject of the admissibility of parol evidence, and of the written evidence and value of each in such cases, see 54 Ga., 156; 63 Id., 600.^*

15, 16, 17. The wife was not called to testify against her husband. .The restriction on her competency is confined to such issues as involve his guilt. Our Code declares, “ nor shall any wife be competent or compellable to give evidence for or against her husband” “ in any criminal proceeding.” Code, §3854, sub sec. 4. Besides, in Stewart vs. The State, 58 Ga., 577, the point was necessarily under consideration, and ruled that a wife might corroborate her husband though an accomplice and indicted for the same offence — the issue being the innocence or guilt of another than her husband. If the accomplice may testify, why may not his wife? We see no error, therefore, in allowing Mrs. Durham to be sworn, certainly none under the caution that she need not answer any question tending to criminate her husband. See also, 41 Ga., 613; 46 Id., 626; 54 Id., 625; 58 Id., 87; 60 Id., 509; 61 Id., 305; 63 Id., 410.

She swore to no confidential communication of her husband to her, as in 63 Ga., 410, 416. Why could she not corroborate him on facts not coming to her from him in the confidence of the marital relation by act or word of his? So error does not appear in the 15th, 16th and 17th grounds of the motion.

18, 19. The time when the Donaldson money was lost and the manner of its loss, in order to show that it had been stolen, was relevant and admissible, because deceased had charged defendant with having it, or part of it- — ■ thus showing motive to get rid oi her. But to go into a full trial of the defendant for the larceny, would have been to try another crime and to multiply issues. The qu' stion was not whether the defendant, was guilty of larceny or innocent, but was he mad with her for charging it on him and thus had motive to kill her, after an unavailing effort to remove her without the state. The fact that the money was stolen was important to the issue of murder, because the charge by deceased that defendant had it was not such as to enrage him unless it was stolen. It was immaterial to this murder-issue whether defendant stole it or not. The charge, if he was innocent, would provoke his wrath more, perhaps, than it would if he were guilty of the theft. So error does not appear in overruling the 18th and 19th grounds of the motion.

20, 21, 22. This brings us to the errors assigned upon the refusal of the court to charge as requested. Since the two cases of Hammock vs. The State, argued and decided together, (52 Ga., 397), the principle seems to have been undisputed that where the judge has fully and substantially covered the point of law requested, in accordance with the request, it need not be repeated in the precise verbiage of the written request. It would be but over and over to tell the jury the same thing, and would, or might be interminable, and tend to confuse rather than enlighten the jury. So that two questions arise on the refusal to charge as requested in writing: first, is the written request law; and, secondly, if law, had it been so substantially) fully and clearly given as to be, if again given, a mere repetition of the principle previously given in the direct charge. So far as any specific point is made in the 20th ground of the motion, which is to the effect that the exact verbiage should be given as requested, it is satisfactorily disposed of by that and following cases. So far as it asks this court to examine eight pages of requests, and compare them with as many or more pages of the general charge, it is enough to say that the plaintiff in error must himself specify his point of error and not put the reviewing court to the labor of hunting it out of such a mass of writing. See Code, §4251, and many decisions thereon, passim from 1 Kelly down.

In the twenty-first ground the error is specified to the extent that the particular request is given, but the charge thereon is omitted. The substance of the request is that if Mrs. Durham testified differently upon a former investigation, knowingly and wilfully, she ought not be believed on this trial, unless corroborated by a credible witness, or circumstances of the case or other credible evidence, on material points. On hunting out for ourselves the charge on this point, we find that it is given substantially and fully as requested, but that the judge adds that if i.t appeared to the jury that she was then in fear of her life if she swore truly, and thus swore falsely under duress, the former statement under oath would not be wilful and would not impeach her evidence here. The law on the point is fully and clearly given and no error is apparent to us in the ruling. The addition or modification of the request is right, and was absolutely necessary to put the whole case before the jury.

The twenty second ground also specifies the error complained of. It is the refusal to give in charge, without qualification, that “ the fact that a person has been unlawfully killed, will not of itself corroborate the testimony of the party who did the killing, and has turned state’s evidence, that another stood by aiding an.d abetting him,” and that the court erred in qualifying the charge as follows: “ but you are authorized to look to the evidence to see if there be any corroboration, and if there be any, then you may believe it or not, according as the corroboration should satisfy your minds.” It appears that the request was given exactly as asked, but the additional words were added, and the complaint is that those words were added. We can discover no error in the addition. The charge as an entirety on the point is, that the unlawful killing alone will not corroborate in such a case, but there may be other facts which, under the law (of course as elsewhere given) would corroborate, and the jury might consider them. See McCalla vs. The State, not yet reported, pamphlet, February Term, 1881, p. 32; 57 Ga., 478; 64 Id., 344; 52 Id., 106, 397.

23. As the defendant was not convicted of being an accessory, but a principal, he was not hurt by the complaint that the court charged he could be found guilty of being an accomplice on this trial.

24. No plain specification of error is made in this ground. The charge as a whole will be considered hereafter.

25. The request was not in writing, but if it had been, it ought not to have been given. The “ presence and participation in the act of killing,” under the circumstances of this case, showed a felonious intent, and such presence and participation will, under any circumstances, be sufficient to convict of murder in the first or second degree, unless the defendant show an effort to stop the killing or his participation was in self-defense or other such justification. But where the killing is unlawful and another is present and participates, he is guilty of murder, unless he show something to take him out of the rule. In this case he shows nothing.

26, 27. These grounds relate to confessions of defendant. They are to the effect that the corpus delicti with the confession is sufficient to convict, and especially where the confession could not have been made unless defendant had beeh present. Embodied in this confession are the sayings of deceased before and at the time of the assassination, and which could not have been known by defendant 'if he had not been there present so as to have heard what was said. 45 Ga., 43; 57 Id., 478; 63 Id., 339.

28. This point is, that the court charged that notwithstanding the impeachment of a witness by contradictory statements or contradictory evidence, the jury could, if they saw fit, believe the witness any way. The meaning of the court undoubtedly was, that it was for the jury to consider the entire evidence and determine whether they would believe the witness who contradicted the assailed witness or the witness assailed. If the latter, he was not in their judgment impeached, because they believed his statement and rejected that of his assailants. Certainly they had a right to do this. 49 Ga., 31.

On looking to the general charge, the law in respect to the right of jurors to believe a witness whom they believe impeached by his own contradictions, or that of others, is clearly laid down. It is the well settled rule that if a witness knowingly and wilfully swear falsely in a material matter, his testimony should be rejected entirely, unless corroborated by the facts and circumstances of the case, or other credible evidence. 53 Ga., 365, 369. But it is for the jury to give credit to the impeaching testimony, or the witness sought to be impeached, and to determine for itself whether to believe the one or the other, — and it is for the jury to determine whether the first swearing was wilfully done, or under coercion, as put by the presiding judge in this case. The credibility of all witnesses is for the jury; the weight of all evidence is for their judgment; and this has been extended even to embrace their personal knowledge of the character of witnesses sworn before them. Head vs. Bridges, September term, 1881, not yet reported. Pamph. p. 56.

In the case here, construing the charge given by request with the general charge, it amounts to this: When a witness is satisfactorily impeached by testimony you believe, then his evidence should be rejected unless corroborated on a material point; but whether he be impeached or not is for you to say, and though others contradict him, you may believe him and reject them ; and though he swore differently on a former trial, you may still believe him on this trial if he swore under duress of bodily harm on the first, So construing it, we see no error in it. It must be observéd, too, that the rule nisi was never granted by the presiding judge, and that the grounds stated in the motion are not verified at all by him. Pending the refusal to grant the new trial and the •time within which a bill of exceptions was filed, he died; and we labor under the disadvantage of not having any explanatory note of his to this writ of error.

29, 30. On a careful review, however, of the whole case, long and laborious as it must have been to him, we detect no such error of law as requires a new trial. On the contrary, the law and the testimony both sustain the verdict; and on a new hearing of the same case on the same facts, we do not see how a conclusion of not guilty of murder could well be reached by any intelligent and impartial jury.

The motive to kill — the preparation to kill- — -first to remove -otherwise, then to kill if necessary — the actual killing by another under such circumstances as must make murder — the presence of defendant aiding and abetting the deed — all are sufficiently -substantiated to authorize the verdict, perhaps to require it.

Certainly it cannot be pretended with any sort of reason that there is abuse of discretion in refusing to try it again because there is not evidence to sustain the finding. The charge as a whole presents the law of the case applicable to the proof fairly and fully, and our duty leads us to deny a new trial and to let the finding stand.

Judgment affirmed.

* Compare Robinson vs. State, 68 Ga., 833. (R.)

^Justice Speer’s term of office having expired, Justice Hall succeeded him. He began to preside January 8th, 1883.