Fussell v. State , 93 Ga. 450 ( 1893 )

Bleckley, Chief Justice.

1. The arson for which the accused was indicted was committed by burning the storehouse of Mobley & Mitch•ell, a copartnership. Lewis Mobley, one of the firm, testified that he saw the accused strike a match and set the house on fire. This occurred in December, and it seems that no steps to prosecute were taken until the following April. The court allowed him to explain the ■delay, and the explanation given was that he had consulted one T. D. Wilcox and the solicitor-general, and that the delay was the result of this consultation. There was no error in allowing the witness thus to explain the •delay. As he professed to have seen the offence committed, it would naturally raise the inquiry why he had not sued out a warrant at once, and caused the guilty person to be arrested. The direction takén by the cross-■examination of the witness indicated that the defence ■sought to draw from the delay an inference unfavorable to the credibility of the witness. The explanation given would tend to rebut or keep clown this inference. For "that purpose it was legitimate.

2. The witness Jonas Pearson overheard a conversation between the accused and Carrie Chambers, in which the former admitted that he did the burning and was paid for doing it $3.00 and a half-gallon of whisky. The witness recognized the accused by his voice, the conversation being carried on in the dark. The motion to •exclude the evidence upon the ground that the witness •derived his knowledge as to the person who made the ■statement from Carrie Chambers, the next morning, was •correctly denied, for this motion assumed that the witness, in the course of his cross-examination, receded from his testimony that he recognized the accused by his voice, whereas, as we think, he meant to adhere to that testimony and in no wise qualify it. The jury would know how to estimate the difference between identification made by vision and that made by the sense ■of hearing together with a previous acquaintance with the voice of the speaker.

3. The code, §3875, declares, “A witness impeached by proof of contradictory statements may be sustained by proof of general good character, the effect of the evidence to be determined by the jury,” a previous section, §3871, saying, he may be impeached “by proof of contradictory statements previously made by him as to matters relevant to his testimony and to the case.” The-witness Lewis Mobley was impeached by proof of contradictory statements, and the court admitted, perhaps, for the purpose of sustaining him, evidence of other-statements -which were consistent with his evidence at. .the trial. This was error. Before the trial was concluded, the court discovered the error and endeavored to correct it by certain instructions to the jury which are set out in the reporter’s statement. We think these-instructions were not sufficiently specific. They left the-jury to determine what evidence was riled out or withdrawn; whereas the court should have specified in detail the withdrawn evidence and should have had it'eliminated from the brief or notes of the evidence, so that the-jury could have made no mistake as to what was left for their consideration. Touching the inadmissibility of' the evidence, see. Georgia R. R. & B. Co. v. Oaks, 52 Ga. 410, and McCord v. The State, 83 Ga. 531.

4. In charging the jury, the court dealt with the impeachment of witnesses as if there had been "evidence-tending to impeach one of the State’s witnesses only,, the language.used being this: “Now, in this case, géntlemen of the jury, it is contended by the defence that-they have,-in the manner pointed out by this law which the court has given you in charge, successfully impeached one of the main witnesses for the prosecution by disproving facts testified to by him, by proof of contradictory statements made by him as to matters relevant to his. testimony in this case. You will look to the testimony as to that matter, and determine for yourselves how far such impeachment has been successful.” The recital of facts contained in the motion for a new trial is duly verified by the judge. One of these recitals is, that “ Counsel for defendant, in arguing defendant’s case before the jury, did not assume the position that one witness only of the State had been impeached by the defence, but insisted, during the argument to the jury, that several of the State’s witnesses had been contradicted by the witr nesses for the defendant.” On looking to the brief of evidence, we find that the jury might have been justified in considering more than one of the State’s witnesses as discredited. This being so, the charge on the subject of impeachment should not have been restricted to one only, but should have been broad enough to embrace all to whom the impeaching evidence could have fairly been applied.

5. Except in admitting evidence as to what was said by the witness Lewis Mobley, tending to corroborate what he swore at the trial, and in not afterwards withdrawing it from the jury in such definite terms as to preclude the possibility of mistake concerning it, and except in. charging the jury as above set out, in terms too narrow on the subject of impeachment, we discover no error committed by the court; but for these errors there ought to be a new trial. Judgment reversed.