Monday v. State , 32 Ga. 672 ( 1861 )

By the Court.

Lyon, J.,

delivering the opinion.

There was no error in the refusal of the Court to allow the juror, on trial for competency, to be asked whether he had not talked with the prosecutor, etc. The only question to be propounded to the juror are those prescribed by the Statute of 1856. King vs. The State, 21 Ga., 220; Pines vs. The State, 21 Ga., 236.

2. The juror having been asked, and answered that he had conscientious scruples as to capital punishment, without objection it was competent for the Court to discharge him for incompetency under the Act of 1856, notwithstanding the objection of counsel for prisoner.

3. It was competent for the declarations of Bass, the prosecutor, made so immediately after the contest' between himself and prisoner, as testified to by the witness, Beard, to go to the jury as part of the res gestee to illustrate the impression, on the mind of the prosecutor at the time, of the nature of the attack made on him by the accused.

4. We subscribe fully to the opinion of the Court below that it is the right of any white man to arrest any slave on the public highway if he has a reasonable suspicion that the slave has in possession stolen property. Such a principle, is necessary to the proper discipline, government and protection of that species of property, and we think there was an abundance of evidence in this case to justify the suspicion of the prosecutor, and to justify him in an arrest of the negro under the circumstances, and the resistance of the negro was unwarrantable upon any pretext whatever.

5. We agree, too, with the Court that while an assault with intent to murder is usually manifested by the use of a deadly weapon, the employment of which is ordinarily calculated to produce death, still an assault with intent to murder might be committed without the use of a weapon that would be likely to produce death.

6. The Court also did right to exclude from his charge all allusion to the irrepressible conflict, and a dissertation on the relative rights of the negro to that of a white man, but in lieu thereof to tell the jury simply, as he did, to disregard all outside considerations, and to determine the case by the proof alone.

We do not think that the verdict was against the charge of the Court.

The defence relied on was, that the negro with whom Bass had the conflict, was not the accused, but some other; that Bass was mistaken; that he was deceived by the light, or some other cause; that the accused was not there, etc., and much negro testimony was offered in support of this position. The evidence of Mrs. Barfield’in rebuttal to all this testimony, to-wit: “ that she saw the accused on the morning of the conflict, and before the time they can-ied him to the jail, passing her house going home; he was at the corner of the public square, and that after he passed sometime, there passed some dogs and gentlemen going the same direction he was,” if true, was corroborative of the testimony of the prosecutor, who could not consequently have been mistaken.

The testimony of the absent witness, James W. Ragan,

’ “ that the dogs did not run on the track of the accused,” as testified to by Mrs. Barfield, was material to the defence in overcoming the effect of the testimony of Mrs. Barfield in that respect at least. The verdict of the jury may have turned entirely on the evidence of Mrs. Barfield. We do not say that it should, but it was testimony that the defendant had a right to have before the jury. What effect it would have had upon the verdict, if any, we can not say. That was for the jury to consider; but it was legitimate evidence for them, and after it was discovered by the counsel, under the circumstances, we think the Court ought either, in his discretion, to have suspended the trial long enough to procure the testimony, or have continued the trial to another term, upon the application, to enable the defendant to obtain the benefit or supposed benefit of the witness’ testimony, and in not doing either the one or the other, we think the Court committed error, and this is all the error 'that we find in this record.

Let the judgment be reversed.