Jones v. State

By the Court

Warner, Judge.

In this case, the counsel for tho prisoner insisted on the right to aslt a juror, on his voire dire, after answering tho questions propounded by the act of 1843, if he had formed and expressed any opinion as to the guilt or innocence of the prisoner at the bar, which was denied by the court. In the ease of Robinson vs. The State of Georgia, decided during the present term, we held, the prisoner had not the right to ask that question of the juror on his voire dire ; but if he wished to show the incompetency of the juror' on that ground, hé must do so before triers, to be appointed by the court, in the manner pointed out by law, as required by the act of 1843; — and now affirm that decision.

The counsel for the prisoner also excepted to the decision of the court below, allowing the solicitor-general peremptorily to challenge a juror, according to the provision of the 15th section of the 14th division of the Penal Code, which declares, “The State shall be allowed one-half the number of peremptory challenges allowed the prisoner.” — Brin. Big. 660. The right given to the State, peremptorily to challenge a juror, by the Penal Code of 1833, it is contended is a violation of that clause of the State Constitution which declares, “Trial by jury, as heretofore used in this State, shall remain inviolate.” The trial by jury contemplated by the Constitution is, evidently, a trial by a common-law jury, of twelve free and lawful men, of the body of the county.” But it is said the manner of selecting the twelve free and lawful men has been altered by the Penal Code of 1833, and, therefore, the right of trial by jury, as used in this State at the time of the adoption of tho Constitution, in 1799, has been violated. Although we are not of the opinion it was the intention of the framers of the Constitution to impose a restriction on the Legislature as to.the manner in which a jury of twelve free and lawful men, of the body of the county, should be selected for the trial of offences, yet it does not appear to us that any of the rights of the accused have been taken away or impaired, in a practical point of view, by the provision of the Penal Code of 1833, allowing the State half the number of peremptory challenges allowed the prisoner.

Before the enactment of the statute of 33 Edward 1, the king, without assigning any reason, might have challenged, peremptorily, as many of the panel as he thought proper; but since that statute the king was required to show cause of challenge. Such cause of challenge, however, was not required to be shown by the king until the whole panel was gone through; and the defendant was first put to show all his causes of challenge before the king need show any. — 5 Bacon’s Ab. 364-5. Such was tlio practice in this State, it is believed, at the time of the adoption of the Constitution, and up to the time of the enactment of the Penal Code by the Legislature, in 1833. That act is entitled, “ An Act to reform, amend and consolidate the Penal Laws of the State of Georgia.” Prior to the enactment of the Penal Code, the prosecuting officer for the State, when a juror was called, instead of putting him upon the prisoner, or showing any cause of challenge whatever, peremptorily set him aside whenever he thought proper to do so, until the panel was gone through, or the prisoner, by being compelled to exhaust his peremptory challenges, had selected his jury. In this way the State, for all practical purposes, had, in very many cases, a greater advantage in getting rid of obnoxious jurors than it has now under the Penal Code; and in forcing upon the defendant jurors obnoxious to him, by compelling him to exhaust his peremptory challenges. The right of the State to pass jurors without showing any cause of challenge, we held, in the case of Sealy vs. The State of Georgia, and in the case of Reynolds, was taken away by the Penal Code of 1833, and half the number of peremptory challenges allowed the prisoner substituted in lieu of it; which, in our judgment, is equally as favorable to the prisoner as the old law, and is not an infringement of the Constitution.

The counsel for the prisoner also moved the court below for a new trial, because the jury found contrary to law; because the jury found contrary to evidence ; and because the jury found contrary to the charge of the court. A new trial was also moved for, on the ground the court overruled the motion of defendant’s counsel to put Allen Jones, who was jointly indicted with the prisoner, but who elected to be tried separately, on his trial first, for the reason, as was stated, that Allen Jones was a material witness for the prisoner.

By the 50th section of the 14th division of the Penal Code, it is declared : “When two or more defendants shall be jointly indicted for any offence, any one defendant may bo tried separately, except such of-fences as require the action and concurrence of two or more to constitute the crime ; and, in such cases, the defendants shall be tried jointly.”— Frin. Fig. 665. The defendants elected to be tried separately for the offence with which they were charged; and the indictment and trial is to be considered several as to each, as much so as if they had been separately indicted. Where prisoners indicted together sever in their defence, we are of the opinion it is the right of the prosecuting officer, who asserts the affirmative as to their guilt, to elect who of them he will first put upon his trial. — The State vs. Crank, 2 Bail. Rep. 66.

Besides, we are of the opinion, Allen Jones was a competent witness for the prisoner, they having severed in their trial. For the purposes of the trial, they are to be considered as if they had been separately indicted for the same offence. An accomplice who is separately indicted for the same offence, may be called as a witness, to prove the innocence of the prisoner. — 1 Chit. Crim. Law, 605; Roscoeh Crim. Ev. 118; 2 Russell on Crimes, 597; 2 Hale, 281; 1 Hale, 305; The United States vs. Henry, 4 Wash. Rep. 429.

We the more readily adopt this rule, because it will hare the effect to abolish a very pernicious practice which prevails in our courts, of including all persons who were present at the commission of an offence, in many cases whether guilty or not, in the indictment, for the purpose of excluding their testimony. Besides, it will open the door for the investigation of truth, leaving the jury to judge of the credit to which they may think the witness is entitled.

We are also of the opinion there was evidence from which the jury might have inferred the prisoner’s guilt.

It was proved the negro was missing, and the witness who searched for her found her in Bulloch county. It was also proved by another witness, the negro was in the possession of prisoner, in Bulloch county, and that he offered to sell her for $250 00. In most eases of larceny of this particular species of property, the offence can only be established by circumstantial evidence.

With regard to the prisoner purchasing the negro from Paul, which was insisted on, by way of defence, the jury may not have believed the witnesses. They may have been of the opinion it was all a eoncoctod arrangement between Paul and the prisoner, to deprive the prosecutor of his property, wrongfully and fraudulently, with intent to steal the same. It was the peculiar province of the jury to judge of the evidence ; and they have found the prisoner guilty; and we are not prepared to say there was no evidence in support of their verdict. Besides, the presiding judge before whom the cause was tried, and who is presumed to have been familiar with all the facts and circumstances which transpired at the time of the trial, has, in the exercise of his discretion, refused the motion for a new trial in the court below; and it must be a very clear ease of error in law, or a very naked, bald case as to tke/ac¿s, which will authorize this court to control that discretion in a criminal cause, where the jury are made both the judges of the law and the facts.

We are, therefore, of the opinion there is no error in the record, and that the judgment of the court below be affirmed.