Hall v. State , 124 Ga. 649 ( 1906 )

Cobb, P. J.

Hall was convicted of the offense of murder, and sentenced to the penitentiary for life. He assigns error upon the refusal of the judge to grant him a new trial.

1. It is alleged in the motion that two of the jurors who were selected for the trial of the case were not impartial. Numerous affidavits appear in the record as to statements claimed to have been made by these jurors prior to the trial, indicating that their minds were not in such condition as that they could accord to the accused a fair trial. There also appear the affidavits of these two jurors in which they either den}'’ or explain the statements accredited to them, each swearing that at the time they were sworn upon their voir dire and selected their minds were perfectly impartial, and they went into the trial of the case free from bias or prejudice either on the one side or the other, and that the.verdict to which they agreed was the result of a conscientious consideration of the evidence produced. Hnder such circumstances the judge was the trior who was to pass upon the question of the competency of the jurors, and his judgment will not be reversed unless it is apparent from the record that he has abused the discretion which the law vests in him. Perry v. State, 117 Ga. 719, and cit. See also King v. State, 119 Ga. 427. No such abuse of discretion has been shown as to authorize this court to interfere.

2. Complaint is made that the court erred in failing to charge the jury that in considering the weight and credit to be given to the alleged dying declarations of the deceased, the character of the deceased for wickedness and his disregard of the laws of God should be taken into consideration by the jury. The credibility of witnesses whose testimony goes to the, jury through the, medium, of! dying declarations is-subject to the same attack,.'and should be determined under the same rules governing the testimony of living-witnesses who testify upon the stand. Such ’ a witness- may be. - impeached by proof of contradictory statements, by proof’ of general bad character, or in any other way in which, the law authorizes; the impeachment of a witness. In Nesbit v. State; 43 Ga. 238; Mr. Chief Justice Lochrane said: “The peculiar Character of - the-deceased for wickedness and disregard of the law of Cod in- his outpourings of blasphemy would have invoked the ¡consideration- of- the; jury; for if a man, even without hope of life in this world1, nevertheless without belief in God or in the divine revelation, while his. declarations would be admissible, their weight and ■ consideration should be weighed by the jury.” See also 10 A. & E. Enc. L. (2dl ed.) 384. While all of this is true; in ccrder to render the failure; of the judge to charge upon the subject available for an assignment;, of error, it must appear that there was a timely and appropriate-written request; and as none appears in the present case, the failure-of the judge to charge upon the subject, even if the evidence- was of' such a character as to authorize it, is not a sufficient reason- for-reversing the judgment.

3. The evidence in behalf of the State made out an atrocious case-of. murder. The claim of self-defense set up by the accused in his. statement bears the evident impress of afterthought. The credibility,of the witness whose dying declarations were introduced was. a question for the jury, and as they, have resolved the case by believing this testimony, and as the trial judge has declined to interfere with their finding, under the established rulés of this court his. discretion will not be interfered with.

Judgment affirmed.

All the Justices■ concur.