Stevenson v. State , 69 Ga. 68 ( 1882 )

Crawford, Justice. .

The errors complained of in this case are:

(x.) That the verdict is contrary to law and evidence.

(2.) That the court erred in permitting McGee and Terry,witnesses for the prosecution, to give in evidence to the jury the sayings of the deceased, charging the prisoner with the commission of the crime, the more especially as. the sworn testimony of the deceased taken-on the committing trial had been previoüsly admitted.

(3.) That the court erred in allowing the witnesses, William Davis and William Davis, jr., to give in evidence to the jury the sayings of Lovick Stevenson, in an effort on his part to explain and account for his whereabouts, and what he was doing at the time of the commission of the crime charged.

Besides the above grounds set-out in a motion for a new trial, a further motion in arrest of judgment was made: Because the grand jury finding the bill of indictment was not drawn by the ordinary, together with the jury commissioners and clerk of the superior court of the county, nor was the said jury drawn in accordance with the order of the judge.

1. Upon the first question made, as to whether or not the verdict is contrary to evidence, we cannot say that it is ; it most certainly is not if the testimony of the deceased and the physician is true. There are but few, if any, cases, wholly free from that sort of doubt which almost invariably arises upon the application of the law to the facts, or upon the facts themselves. When, therefore, a-jury under oath has heard and weighed the evidence, and .finds that the accused is beyond any reasonable doubt guilty, and the presiding judge declines to interfere, it should stand as truth, unless it is apparent to this cpurt that there is an absence of testimony to support it. It. does not so appear by this record.

2. Did the court err in admitting the sayings of deceased charging the prisoner with the commission of the crime, the more especially after she had testified at the commitment trial? ’

The witnesses whose testimony is here objected to, having heard the report of a gun, and the screams of a woman some three hundred yards away from them, ran immediately to her assistance, and when in speaking distance she cried out for help ; they saw that she had been shot — was bleeding freely — could move nothing but her hands — and whilst begging that something be done for her, she said that the defendant had shot her. This was about three or five minutes after the shooting. The testimony was certainly admissible as a part of the res gestee under the numerous rulings of this court, the latest of which may be seen in the case of Johnson vs. The State, 65 Ga., 94.

That the deceased had sworn as a witness on the commitment trial would not per se exclude any sayings which were a part of the res gestee, nor are they to be confounded with dying declarations.

3. The next assignment of error is upon the admission of the evidence of Wm. Davis and Wm. Davis, Jr., as to the sayings of Lovick Stevenson, in an effort on his part to explain his whereabouts, and what he was doing at the time of the commission of the murder.

It appears from the record that Lovick Stevenson, the son of the deceased, a lad between fourteen and fifteen years of age, had been sworn as a witness for the state, and among other things had testified where he was on the day of the killing, where he went, and what he was doing. The defendant, in his statement and by his witnesses, endeavored to impeach his testimony by showing that he was not where he claimed to have been but that he was at the house, and, seeing his mother and the accused in criminal connection, Rad fired at him and shot his mother.

The state, therefore, to corroborate his testimony, introduced the Davises to show that he had gone away from the house, was where he said he was, went where he said he went, and did the things which he said he had done. The information upon which they acted of course was received from him.

“Where the character of a witness who is sworn on the direct examination is impeached, it is competent for the state to introduce testimony to the effect that the facts testified to by the discredited witness are true.” 16 Ga., 200.

One of the modes of impeaching is by disproving the facts testified to by the witness. Shall he, then, not be allowed to corroborate and support his testimony, even though that support and corroboration involved information received from him? Code, §3771.

4. Should the judgment-have been arrested upon the grounds stated ?

The grand jury had been drawn to serve at an adjourned term of the superior court, and the persons officiating at the drawing were three of the jury commissioners, the ordinary and the clerk of the superior court.

Whether the clerk is a member of the board or not it is unnecessary to decide; if he is, there were five out of eight at the drawing present, if he is not, then there were four out of seven present; so that in either case the drawing of the jury was by a majority of the board.

“A joint authority given to any number of persons, or officers, may be executed by a majority of them, unless it is otherwise declared.” Code, §4, par. 5.

But, conceding that a majority of the six jury commissioners proper should have been present, ought it not to have been taken advantage of by plea in abatement on arraignment, as provided for in §4639 of the Code, and not to have waited until after verdict? We so hold, unless there exists some good and sufficient legal reason to take it out of the rule.

This view seems to be clearly intimated in the case of Finnegan vs. The State, 57th Ga., 429, where it was held by a majority of the court that the grand jury was illegally drawn.

Another exception taken here, but not made below, is that thirty-two instead of thirty jurors were drawn. Granting that such a point can be entertained by this court, we think that it falls far short of such an irregularity as should quash an indictment, much less arrest a verdict. Williams vs. The State, September term, 1882.

Judgment affirmed.