Mitchell v. State , 22 Ga. 211 ( 1857 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] The first objection in this case is, that the presiding Judge made out, himself, the bill of exceptions.

It is certainly the privilege of the party who complains of the judgment in the Court below, to make out and present to the Judge, who presided in the cause, his bill of exceptions. If it be consistent with what transpired in the cause, in otilar words, if it contains the truth, the whole truth and nothing ■ but the truth ; and all the evidence material to a clear un- - derstanding of the error complained of, it is the duty of the - Judge to certify and sign the same. If the bill of exceptions ■•is not true, and sufficiently fully so as to present the points '..fairly, the Judge may refuse the same; or suggest to the ■party, the defects, so that he may amend the bill of exceptions himself, or the Judge may do it, and the party complaining may rectify his own bill, or accept it as altered by the Judge, as he may see fit. Having accepted and presented the bill of exceptions as made out, we must act upon it, and we do not recognize this ground, therefore, as good on a motion for a new trial. If the party is dissatisfied, a different course altogether should have been adopted.

[2.] The second objection is this: A motion was made by the prisoner to continue the cause, on account of the absence of Sarah Cope who was alleged in the showing, to be a material witness for the accused; that by defendant’s direction a subpoena had been issued for her, and placed in the hands of the Sheriff, who stated that he had left the same at the last most notorious place of abode of the witness. The witness, it turned out, upon further incpiiry, lived in Ringgold, Catoosa county, about 20 miles off, and not in Walker county where the trial was pending. She had removed several months before the subpoena was left at her former residence. The Court overruled the motion, for the reason that due diligence had not been used to procure the attendance of the witness. Some fifteen months had elapsed since the arrest of the prisoner, and it did not appear that the materiality of this testimony had come but recently to the knowledge of the accused. The Court stated at the same time, that he would dispatch an officer after Miss Cope, and have her at Court by the time she was needed ; accordingly she was brought, and was in attendance most of the day before she was examined.

Admitting that the Court was wrong in hoiding that due diligence had not, under the circumstances, been shown to procure the testimony of the witness, which we do not, the error was abundantly atoned for by what subsequently transpired. The witness testified in behalf 0f the defendant on the trial; what more could he ask ?

[3.] The application being rejected, the Court announced that ,“the trial mustproceed,” and this last expression, as well as the manner of it, constitutes the third exception, and if there was anything wrong in the expression it certainly must have been in the manner of uttering or emphasizing it, and of this we are incapable of judging, and not in the language itself. The motion to continue being overruled and the defendant’s counsel referring to the written affidavit and saying, “This is our showing.” The Judge responds, “The trial must proceed.” Court and counsel seem to have been equally impressive in announcing their respective determinations.

Counsel now complain that conceding that ’the showing made was insufficient or obviated by the promise of the Court to send for Miss Cope; that they were cut off from making any further attempt to continue the cause, by the solemn declaration, that the cause must proceed.

They were precluded by the 53d Common Law Practice, from amending their showing. It provides that, “all grounds of motion for nonsuit, in arrest of judgment, awe? for continuance ; all objections to testimony, and all exceptions to declarations, m-ust be urged and insisted upon at once, and after a decision upon one or more grounds, no others, afterwards urged, will be heard by the Court.” 2 Kel. 476. Besides, the only other ground suggested in the argument is, that it might have been made to appear that the public prejudice was too much aroused to admit of an impartial trial; sufficient time had elapsed to allow this excitement to subside, and no continuance could have been granted on that account.

[4.] The fourth objection is, that the Conrt itself performed the duties of the Solicitor General in “requiring” of the prisoner, — 1st. A waiver of the arraignment; 2d, of a copy of the bill; and 3d, of the list of witnesses.

The Court did not “require” of the prisoner to do this, but inquired if he would ? and to which inquiry the counsel for Mitchell answered affirmatively.

We see no error in this.

[5.] The fifth objection is, that the Solicitor General being unable, from indisposition, to perform his dutjq the Court appointed Judge Hooper, a gentleman of acknowledged unexceptionable character, to officiate in his place.

The State must not go unrepresented, nor the criminal jurisdiction fail for want of a prosecuting officer; and if in¿the opinion of the Court, the States Attorney is unable from sickness, or any other malady of mind or body, from discharging his duty, it is not only the privilege, but the imperious duty of the Court, in the true spirit and intent of the Act of 1799, (Cobb 574,) to substitute another in his place.

[6.] As to the sixth objection, that one of the empanneled jurymen was permitted to aid the State in selecting the juiy: the Judge certifies that he did not witness the impropriety complained of; and that had it cometo his knowledge, it would have been rebuked. Prisoner’s counsel made no objection at the time; and when Gladden, the juror was sworn, he disqualified himself, and was set down for cause, without having been put upon .the accused.

[7.] The seventh objection is, that after the Solicitor General had asked the questions required by the statute, in making up the jury, the Court repeated the questions, frequently eliciting answers tending to prejudice the prisoner.

No doubt jurors frequently misapprehend the meaning of the questions propounded under the statnte, and when put in the form therein prescribed, “Have you, from having seen the crime committed or having heard any part of the evidence delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar?” perhaps the juror answers in the affimative. But separate the members of the sentence, and repropound the questions, Did you see the crime committed ? Have you heard any portion of the evidence in this case, delivered on oath ? perhaps the juror will reply in the negative to both of these interrogatories, thereby evincing he did not understand the question as originally asked. That jurors frequently fail to comprehend the true import of the question put to them, under the law, to test their indifferency, there can be no doubt; and that the Court should interpose to prevent mistake in this matter, there is just as little.

[8.] The eighth objection is, that the Court erred in taking down the testimony himself and in not having it done by another; and in omitting to take down a part of the proof.

If the Judge see fit to perform this service, the accused has no right to object, In taking down the testimony of Wm. S. Thompson, Judge Brown forgot, for a moment, his character as amanuensis, and as Judge says, “his statement above not correct as cross examination showed.” He adds, “the statement a little tangled.” While acting as amanuensis, he should confine himself strictly to that character, still this inadvertance is no ground for a new trial.

[9.] The ninth objection is, that the Court erred in replying to the argument of prisoner’s counsel, in its charge to the jury, and manifested displeasure thereat, while it admitted the correctness of his position.

This complaint is not sustained by the bill of exceptions, and we dismiss it with the single remark, that all reference to the Supreme Court, either by Court or counsel, by way of menace or otherwise, except to cite its decisions, had best be dispensed with.

[10.] The tenth objection is, that while the Court stated the law correctly, namely, that the jury were the judge of the law, as well as of the facts, yet it so stated it as to destroy its force and defeat the object of the law.

This objection is not supported by the bill of exceptions. We must say, however, in all kindness, that Courts acknowledge this right too grudgingly to the jury. We commend to their consideration what this Court has said upon this subject in Keener vs. The State, 18 Ga. Rep., 194.

[11.] The eleventh assignment, that the Court stated to the jury, that if it erred, it was responsible to the Supreme Court, is included in the 9th.

[12. 13.] It is complained of in the next place, that the Court in charging the jury., that while one person has a right to kill another, to prevent the commission of an atrocious of-fence, he must use all reasonable means to prevent it, and that it must have been done for the public good.

The charge as given was this, “that prisoner had the right to kill to prevent the commission of an atrocious crime, such as murder, manslaughter or the like, but that he must have acted in good faith and used all reasonable means in his power to prevent the perpetration of the crime. But that this principle could avail the prisoner nothing if he acted in concert with Thompson in bringing about the difficulty; took part in the quarrel; made himself party to it; and aided and assisted in bringing about the fatal rencounter.”

We do not think the prisoner has any cause to complain of this charge. Concede the common law doctrine, that homicide is justifiable for the prevention of any forcible and atrocious crime, must there not be an apparent necessity, on the part of the slayer — yea, an absolute necessity for the act — to make the killing justifiable ? And must it not have been done, bona fide, to save life, and not wantonly or wickedly to destroy it ? Under the pretext of punishing a felony, had Mitchell, the author and finisher of this whole tragedy, the right to kill in a spirit of revenge, and in the execution of a pre-conceived plan and purpose ? Upon the proof in this case, does this killing stand upon the same footing of reason and justice, as that of a woman who kills another to save her person from lustful violence ? And ought not the Court, in stating the principle, have qualified it as 'he did ? Had he failed to do so, the grossest abuse of a very delicate doctrine would have been the inevitable consequence. Is it probable that Cole would have killed Thompson, had he not been shot by Mitchell ? There was a time when trespassers in aristocratic parks might be slain, provided they refused, upon summons, to surrender themselves to the keepers. That day is past. The law is more tender of human life. But even under the statute de malefactoribus in parcis, it was incumbent on the keeper to show, that the deer-stealers could not but escape unless they were killed. The burden is

upon the defendant in this ease to show that bo was without fault on his part. The he killed to prevent murder.

[14.] The next error complained of is, the Court’s charge upon the subject of doubts: first, in referring to counsel’s speech ; and secondly, in not sufficiently charging upon this subject.

The Judge certifies that he charged the jury in the very words of the Supreme jCourt, in Giles vs. the State, (6, Ga. Rep., 276,) as to what kind of doubts should justify a jury in acquitting a prisoner; and.if so, he ought not to be reversed by this Court. After all the exposition by text writers, and illustrations by this and other Courts, the simple rule is, that jurors must not convict without plain and manifest proof of the prisoner's guilt. And that intrusted as they are with the administration of publicjustice on the one hand, and with the life, the liberty, and the honor of the prisoner on the other, their duty calls on them, before they pronounce a verdict of condemnation, to ask themselves whether they are satisfied, beyond a reasonable doubt, that the accused is guilty of the charge alleged against him in the indictment.

And when the Court has said this, it has probably said enough, both as to the rule of evidence, as well as the duty of the jury, in the performance of their important functions.

[15.] As to this complaint, that it appears from the whole mode, that the conduct of the Court may have damaged the prisoner, and prevented him from having a fair trial, it is too vague and indefinite. It presents nothing tangible.

[16.] The sixteenth objection is, that the jury was not called on, when it came into the box, to return its verdict, and the case of Settle vs. Alison and others, (8, Ga. Rep., 208,) is cited in support of this assignment.

This Court held in that case, amongst other things, that where a jirry had rendered an imperfect verdict by not finding all the issues submitted to them, that after the verdict had been received and recorded, and the jury discharged from the further consideration of the cause, that it was error in the Court, after the expiration of four days, to re-assemble the jury and amend the verdict, according to what the jury then stated it was their intention to find, such intention not appearing on the face of the verdict.

Here the jury returned into Court, with their verdict, finding the defendant guilty of murder ; when they were seated in the box, and before the verdict was received, the Court asked defendant’s counsel if he desired to poll the jury ? To which he replied he did not. He was then asked if he knew of any reason why the verdict should not be received ? He answered he did not. The verdict was then received and read, the twelve jurors sitting in the box. The jury were then discham ,d from the further consideration i.¡ the case. The Court r collecting, after their dispersion, that the jury had not been called over, each by name, when the verdict was deliveied, had them re-assembled, within i rom five to ten minutes, an oath was administered, and each juror swore that he was in the box when the verdict was read in open Court; that he heard it read; that it found the defendant gujlty of murder; and that.he agreed to it.

The statement of the case, not only acquits the Judge of the error reputed to him, but makes manifest the tota ccela difference between this case and the precedent referred to.

[17.] The last assignment is in these words: “ The jury in criminal cases, being the judges of the law, as well as of the facts, when they misapply the law to the facts, and find an erroneous verdict, according to the facts, anew trial ought to be granted; and the jury did so find in this case.”

Without stopping to controvert the proposition thus assumed, but which we must be permitted to say, is scarcely deducible from Colquitt vs. Thomas et al., 8, Ga. Rep., 258, certainly not in the amplitude in which it is stated, we are constrained to dissent from the conclusion, to which the learned counsel comes, that the verdict of the jury was contrary to the law and the facts of the case. There was, to say the least of it, ample testimony to justify the finding. Indeed, after a calm and dispassionate, and careful examination of the evidence, we must say, that, had we been in the place of the jury, we should have rendered the verdict which they did.

Judgment affirmed.