Cohron v. State

By the Court.

Lumpkin, J.

delivering the opinion.

Ought a new trial to have been granted in this case ? We propose to examine the several grounds upon which it was : asked.

[1.] Because one of the Jurors, David Plumb, after having been sworn in chief, left the Jury box, walking about the court-room unattended and conversing with various persons.

It seems from the evidence of Mr. Dyson, the Clerk, that .Mr. Plumb did not go outside the bar. He remarked, perhaps in an undertone, to the Judge and Solicitor General, that he was over age. Some one observed that he did. not believe-him from the looks of his hair; the Juror wore, a'wig.

We think this exception fully covered by. the case of Epps vs. The State, (19 Ga. Rep. 602.)

The 9th assignment of error in that case was, “ that Joseph M. Williams, one of the Jurors, conversed with William Wood and another Juror after they were sworn to try the-cause./’ This transpired in open Court and in the presence-of the Judge; and the Court say: “With a crowded courtroom it is impossible to prevent some casual remark of this-sort. A Juror is, unexpectedly to himself, sworn and put upon, the panel; he whispers to a friend some message to his family, or gives some directions concerning his horse. While we condemn the practice, as no one should speak to the Juror nor he to them without leave of the Court; still, . no-case has been found which decides that this is such an irregularity as will entitle the prisoner to a new trial; such misconduct as will require the verdict to be set aside.”

We forbear to enlarge upon this point.

[2.] The next ground upon which the moticn for a, new trial was made, was, that David Plumb, one of the Jurors-who tried the prisoner, was over sixty years of age, which-fact was not known to prisoner’s Counsel until after, said Juror was sworn in chief.

It is not pretended that the defendant himself was ignorant of the fact that David Plumb, the Juror, was over sixty years of age. We concur, however, with his Honor, Judge-Thomas, that the objection came too late. It is one of those disqualifications,.if, indeed, it be one, which should be inquired into before the Juror is sworn. The Juror is exhibited to the prisoner for that, amongst other purposes. How easy to get at the fact by propounding to the Juror himself the quéstion. I have intimated a doubt, whether this be a disqualification. I know that the Act. of February, 1856, professes to define who are both qualified and liable to serve as Jurors in criminal cases; and declares that all free white male citizens who have arrived to the age of twenty-one years, mid not over sixty,' and residents in the county where the-trial is to be had, and not being idiots or lunatics, shall betqualified and liable to serve as Jurors upon the trial of all criminal cases.

Did that Statute intend to classify persons over three score years with infants, as having reached their second dotage-?' Nay worse — degrade them to the intellectual level of idiots and lunatics? Rampant and reckless as Young America may be, I can hardly believe that such was the meaning of' the “reverend, grave and potent seniors” who enacted this law. Surely its reputed author did not design to commit felo de se by superannuating himself.

This may constitute a good objection, if taken in time. It can never be allowed as a sufficient ground to grant a new trial.

£8.] Again, it is said the Court misled the Jury and caused the conviction of the defendant, by erroneously charging them, that “ if they believe from the testimony that the father disarmed the son and then gave the mortal wounds, that the accused was guilty of voluntary manslaughter.”

The complaint is, that the facts thus supposed would constitute murder, and not manslaughter.

[4.] [5.] As an abstraction, the objection is "well taken. If a father disarms an unoffending son — disarms and kills him, it 5s certainly murder. But the charge is given in view of the facts proven and fully warranted by the evidence. That the son was slain by the father, was not denied. In contemplation of law, the homicide was murder. And it was for the-slayer, by proof, to relieve himself from this presumption, to reduce the offence from murder to manslaughter. And this he endeavored to do by the introduction of his own account of the transaction, as testified to by several witnesses. The statements were confused and somewhat contradictory. It was for the Jury to weigh and compare them, and to determine which narrative was the most reasonable and probable. The confession made to Dr. Anderson was, that the deceased “.had attacked the prisoner in bed, choking and cutting him; that prisoner’s wife and daughter came to his assistance and caught hold of deceased, trying to get him away; that he turned and pursued his daughter out of the house toward the front gate of the yard ; that he came back to the house into the piazza; that prisoner met him at the door, took his knife from him and cut him with it. Witness saw the knife; the blade had blood upon it.”

Now the instruction of the Court to the Jury was in reference to this statement, and was fully sustained by it. The Judge was justified in charging, and the Jury in finding, that the killing was without malice. And malice is an indispensable ingredient in the crime of murder. And this super-cedes the necessity of considering the fourth and last ground, namely: that the verdict was contrary to evidence.

If the admission to Dr. Anderson was in accordance with the truth of the case, and the Jury had the right so to conclude, the verdict they rendered would be the judgment which the law would pronounce upon the testimony. The killing was voluntary, upon a sudden heat of passion, and without any mixture of deliberation whatever. It is to be hoped that the 22d of May, 1856, the day of this memorable tradegy, will long be recollected in the village of Mallorysville. Twice on that day, Mr. Downer swears that the father was sent by the son to procure spirits at his grocery — under the maddening influence of which, the hands of that father was imbrued in the lifeblood of that son !