Frain v. State , 40 Ga. 529 ( 1869 )

McCay, J.

1. It is with much reluctance we reverse the judgment of the Court below in this case. We have no complaint with the verdict of the jury; on the contrary, we think it proper enough under the facts as they were presented.

2. We think, too, that the motion in arrest of judgment was properly overruled. The verdict of “guilty generally” is only in accordance with the usual instruction given to the jury in cases where in one count there is a charge of an offense, and in another count a charge of a lower grade of the same offense. Receiving stolen goods, knowing them to be stolen, makes the receiver accessory after the fact to the theft: Code, section 4420. A verdict of guilty generally, convicts the accused of the principal offense. This Court has held, that after verdict, one bad count in an indictment is no ground for a motion in arrest of judgment. The verdict will be presumed to have been found on the- good count: 11th Ga. 92; 12th Ga. 393.

3. We think, however, that the testimony of the witness, Young, was improperly admitted. Even in a civil case it was inadmissible, because evidently and in the terms, the language of the accused was used by way of an offer to compromise the claim of the witness upon him for damages, and by the Code, section 3736, it was inadmissible. As a confession, it is inadmissible, because niade under the influence of a promise to settle. It is clearly within the rule of section 3740, of the Code, excluding admissions made under the influence of fear or hope of reward.

4. We are further of opinion, that this defendant did not have a fair trial. The action of the Court in dragging him from his bed and forcing him to trial, in the condition he was in, was not only harsh, but unauthorized. However bad a man may be, he is entitled, when put upon his trial for a crime, to the full use of his faculties. From all the evidence it is apparent that this man ought, during the trial, to have been in bed, and it was not only unjust to him, but unjust to the public justice of the country, to put him upon his trial under the circumstances.

5. Clearly, the prisoner may, in a showing for continuance, state, under his oath, that a witness has been subpoenaed. It is a necessary part of the showing for a continuance which the rules of Court require to be under the oath of the defendant: Rules of Court, 36. He does hot do this as a witness before the jury. It is for the Court alone, and has always been allowed. How much credit is to be given to it depends upon circumstances, and it was error in the Court to refuse to hear him. Infamy is now no ground of incompetency : Act of 1865 and 1866. Perhaps had the Court heard his story it would have carried conviction with it, in spite of the bad opinion the Court had, perhaps justly, of the teller of it.

6. We do not think a physician’s “certificate” proper evidence before a Court of a fact required to be proven, and we say nothing, therefore, about the effect of it. These certificates were, a few years ago, very useful documents to sick soldiers, but it is not proper to receive them as evidence in the court-house.