Matthis v. State

By the Court —

Jenkins J., delivering the opinion.

There can be no doubt that the plaintiff in error committed the homicide with which he is charged, and the jury found him guilty of murder. This finding, it is said, was contrary to law and evidence, and against the weight of evidence. There was an attempt to prove by one of the witnesses, that the deceased assailed the accused with a large knife and attempted to do a serious personal injury. But upon this point the evidence is conflicting, and our opinion is, that the weight of evidence is strongly and decidedly against the accused. We therefore concur with the Court below in overruling the first ground for a new trial. It is urged further, that the verdict is contrary to that portion of the charge of the Court which instructed the jury, “that the defendant was entitled to the full benefit of any reasonable doubt they might have of his guilt.”

The charge was undoubtedly correct, but we have no means of arriving at the conclusion, that any of the jury entertained such reasonable doubt, and cannot, therefore, perceive that they disregarded the charge.

The impression made on our minds, by the evidence, is not such as to satisfy us that they (the jury) must necessarily have entertained doubts of the guilt of the accused.

1. The foundation for the impeachment of the witness, George Matthis, by proving declarations made by him in conversation with another, was not laid in accordance with the rule of evidence. The witness, Matthis, was simply asked with whom he had conversed relative to the case, and what he had said in such conversations. In 1st Greenleaf, Section 462, the rule in such cases is thus given: “ Before this can be done” (the proof of statements not under oath) “ it is generally held necessary, in case of verbal statements, first to ask him,” (the witness sought to be impeached) “ as to the time, place and person involved in the supposed contradiction. It is not enough to ask him the general question, whether he has ever said so and so, nor whether he has always told the same story,” etc.

In support of which the learned author cites Angies vs. Smith, 1 M. & M., 473; Crowley vs. Page, 7 C. & P., 789; Regina vs. Shellard 9, C. & P., 277; Regina vs. Holden 8, C. & P., 606; Palmer vs. Haight 2, Barbour’s S. C. R., 210.

To the same effect is the answer of the Judges, per Abbot, C. J., to the House of Lords, in the Queen’s case, 2 Brod. & Bing, 313. The rule, as given by Mr. Greenleaf, has heretofore been adopted by this Court. Wright vs. Hicks, 15th Ga., 160.

There must be a general or substantial compliance with this rule, to authorize the admission of the impeaching evidence. Nevertheless, we do not regard the error of the Court below, in this particular, as of sufficient moment to justify a reversal of the judgment.

The attempt to impeach George Matthis, by the witness Pain, was a failure. The testimony of Matthis and his statement to Pain agree in the main. The difference consists in the fact that there is more of detail in his testimony than in his conversation, doubtless produced by interrogation on the stand, and in the statement to Fain in answer to a distinct question, that he did not see the shooting, his back being turned at the moment. Yet before Pain put this question, Matthis stated to him, as he did' in Court, that “when the parties tore loose from each other, deceased commenced cutting at prisoner, and prisoner shot him.” Doubtless had the question put by Pain been put to him in Court, witness would have answered the same way. If it be said that this illegal evidence of Pain prejudiced the testimony of Matthis by representing him as testifying to what he did not see, the reply is that the facts secure him against any imputation of falsehood on that score.

What were the facts ? Matthis had witnessed a quarrel between the parties still in progress. He saw prisoner take a pistol from II. Matthis, for the avowed purpose of shooting deceased — he heard the report of but one pistol — and deceased, and he only, was shot. The conclusion from all this was so clear (I may say inevitable) that prisoner shot • deceased, that false swearing could hardly be imputed to the witness for asserting that he did so, though at the moment he may have been looking another way. The general agreement between Matthis’ testimony and his statement to Fain, and the success of the effort to sustain him by proof of his general character must have had the effect of strengthening his testimony in the estimation of the jury. An unsuccessful attempt to impeach a witness, though in violation of law, furnishes no grounds for a new trial.

Again, had there been no attempt to impeach George Matthis, we think the testimony of other witnesses would have justified the jury in concluding that he was mistaken in his statement that deceased was cutting at prisoner with his knife when prisoner shot him. Believing, therefore, that putting the testimony of Fain out of the question, the evidence in the case supports the verdict of the jury, we are constrained by former adjudications to sustain the Court below in refusing a new trial on this ground. 1 Ga. R., 580 ; 10, Ibid., 209-253; 11 Ibid., 331-14; Ibid., 43 and 145.

3rd. The showing made to support the application for a new trial, on the ground of newly discovered evidence, was not satisfactory to the Court below. It consists of evidence that the deceased, when intoxicated, or angry, was a violent man, and usually carried with him a large knife, which, at such times, he would draw, and was inclined to use, and that this must have been known to prisoner, as he was well acquainted with deceased ; and that affiants did not communicate their knowledge of these facts to the prisoner’s counsel until after the trial.

Prisoner himself swore that he did not know of this evidence of David Merritt and Wright Merritt (the two affiants above referred to) until after his trial, and did not know of the importance of such evidence to him. He does not say that he did not know that such was the character of deceased, nor that evidence to that effect could not be procured at the trial.

There was a manifest want of diligence on the part of the prisoner in the preparation of his case on this point. If such were the character of deceased, with his proclivity to drunkenness, it must have been pretty generally known in the neighborhood, and it is scarcely conceivable that no witness could be found to the point at the time of the trial. Either the prisoner knew that deceased was such a man, or he did not know it. If he did not know it, the evidence could not avail him, for then his justification must depend upon what actually transpired at the time of, and immediately preceding the homicide.

If he did know it, he should have adduced evidence of it on the trial, or if that was not attainable, by reason of the short interval between the homicide and the trial, he should have applied for a continuance, to enable him to procure the evidence. It cannot be supposed that an appeal to the discretion of the Court below for a continuance, to enable the accused to obtain any evidence important to his defense, not then attainable, would have failed of success. Persons charged with crime cannot be permitted to elect, unprepared, to hazard a trial, and then, if convicted, to procure a new trial, because a fact known to exist had not been proven on the trial, thus multiplying the chances of escape, speculating on the uncertainties of law, and mocking its majesty. It is not enough that the prisoner did not know the importance or materiality of this evidence, or that he was unlearned in the •law. ITe had counsel learned in the law, whose knowledge he appealed to for the supply of his lack. If the desperate or dangerous character of the deceased really influenced his conduct during the fatal rencounter, he was not likely to overlook or underrate it in .conference with his counsel, touching the preparation of his defense.

In such conferences, he owed it to hinself and to his counsel full and unreserved disclosure of all he knew concerning his case. If he withheld a fact, upon the knowledge of which he had acted in dealing the death wound, (for in that knowledge and its controlling influence upon him at the critical moment, consists the strength of this appeal,) then he was wanting either in diligence or fair dealing, and must take the consequences.

The administration of the law should not be defeated, delayed, or turned aside by -the neglect, caprice or cunning of persons charged with crime. 9 Ga., 4; 10 Ga., 511; 11 Ga., 33.

The motion, we think, was properly overruled.

Let the judgment be affirmed.