Turner v. State , 70 Ga. 765 ( 1883 )

Jackson, Chief Justice.

The defendant was indicted for murder, found guilty, and sentenced to suffer capital punishment therefor.

1. The verdict is supported by evidence enough to uphold it, and, therefore, is not contrary to law because without that support. It remains, then, to see whether it be illegal and should be set aside, because of some illegal ruling of the presiding judge, by which the preservation of law and the ends of justice make a new trial proper. The case will be reviewed by us on the points grouped and argued by the able and distinguished counsel who pressed, with great earnestness and acumen, the cause of his unhappy client before this, court.

The first three grounds of the motion are announced by him as formal. The fourth and fifth grounds, in so far as they relate to the order of a special term for the trial of defendant, were abandoned; and upon the sixth ground, the first position on which counsel stood and fought was taken and maintained, as best could be done. It is a motion to quash the panel of jurors, on the following grounds:

(1.) The term of court was not lawfully called and not a lawful court. This ground was abandoned.

(2.) The judge ordered that the petit or traverse jurors impanelled at the August term, 1882, do attend this special court, and the traverse jury now put upon defendant is not composed of said traverse or petit jury of said August term, 1882, but the entire traverse jury of the first week of said court has been left off of the list served on defendant and put upon him ; and only the traverse jurors for the second week are in attendance and put upon the defendant.

So far as this point is concerned, the facts are that the traverse jurors for the first week.had been discharged when the order was taken that the traverse jurors of the regular term be ordered to attend the special term, and that order necessarily meant the traverse jurors in attendance when the order was put on the minutes, and not those discharged; that is, it meant those of the second week and not those of the first. It could-not have meant anything else, for the reason that forty-eight jurors of the regular panels, called to serve at different times, could not compose a panel of forty-eight to be put on the prisoner, but the first twenty-four and talesmen always would make such panel first put on the prisoner as the array. So that the court was right so to construe its own order and to tell the sheriff to summon under it only the traverse jurors of the second week of the regular term for the special term.

(3.) The motion to quash the array was based, thirdly, on the ground that the jury-box had been revised since jurors were drawn for the regular term, and therefore, the defendant was entitled to a newly drawn jury for the special term. But the law allows the court, either to draw a new jury for the special term, or to compel the attendance of those from the regular term. Code, §3245. It is well settled that jurors, competent when drawn, are competent on the trial. 42 Ga., 9; 55 Ib., 391.

The 7th and 8th grounds of the motion for a new trial are covered by the above ruling on the 6th, and were likewise properly overruled. So that the entire ruling of the court below, on the motion to quash the array first argued for plaintiff in error, is approved.

2. The second point refers to the overruling the motion to continue. These motions are always addressed to the discretion of the presiding judge, and much deference is paid to his judgment on questions of continuance. So far as the motion rests on the absence of the witness, it appears that he was in the state of Florida, and beyond the jurisdiction of our courts. 47 Ga., 606; 60 Ib., 257. The matter resting in the discretion of the court below, and no means being shown whereby the witness beyond seas could be got to court, and if brought, his testimony being-only corroborative, it is difficult, from the cases just cited and many others which could be cited, to see any abuse of discretion in overruling- the motion to continue on this ground; and counsel really did not press it.

The motion was then renewed on the ground of illness of Mr. Freeman, after the jury was stricken and some testimony in ; but the defendant swore that Mr. Cox, not Mr. Freeman, was leading counsel. Moreover, he did not swear that he could not go safely to trial without Mr. Freeman’s services. Code, §3525.

It was then renewed again, after all the evidence was in, and two arguments had been made, on the ground of the continued sickness of Mr. Freeman. A good deal of evidence was put before the court to show that he was the leading counsel, but the judge adhered to the opinion imbibed from the first oath of the defendant, that Mr. Cox was the leader, especially to make the argument, the thing which then remained to be done. Having witnessed the entire transaction in respect to the effort to continue; having full knowledge of the respective standing, skill, tact, ability and eloquence of the several counsel, we cannot say that, when the judge held that the man whom the defendant relied on as the leading counsel, was such in truth and fact, he thereby abused his discretion. In a case where there was but one counsel, and he much wearied and wasted with labor, so much so as not to have been able to prepare the case as he insisted, this court held that the presiding judge was better prepared to pass on the issue of continuance than this court, and left his discretion undisturbed. 54 Ga., 660. And in Cox vs. The State, where the defendant himself had been shot in the mouth, and had not recovered from it, and his inability to communicate distinctly and without pain to counsel on the trial was pressed as ground for continuance, this court, on the same ground of reluctance to interfere where the judge below had the discretion, and so much superiority over this court, from eyesight and immediate supervision, refused to intervene, and put the refusal on this reasoning. 64 Ga., 374.

The conclusion must bé that this court cannot now say, on this case, so much stronger than those cited against the grant of the continuance, in view of all the shifts and turns and changes of scene under the eye of the court below, and of the three counsel besides Mr. Freeman, left to defend the prisoner, and of our own knowledge .of the experience and ability of two of the three, to say nothing of the growing promise of the younger, that the court below so abused his discretion as to require us to condemn its exercise and reverse its judgment as abuse of law.

3. The 12th ground is rested, not on the admissibility of another indictment for murder against the defendant, in which the deceased was the prosecutor, but on the manner in which it was admitted and the confined view with which the jury was allowed to look at it, as involving expressions or intimations of opinion on the evidence. It appears that the court said, in ruling the indictment in as evidence, that “ it is put in evidence for the fact that he appeared as prosecutor, and for that evidence and that alone,” and because, in charging the jury, the court repeated, “ it is simply the isolated fact that he was prosecutor in that case, and in that case alone ; that is all that the jury can consider in reference to that testimony.” It appears from the general ■ charge that the court confined them to the.consideration of that indictment, to illustrate motive or malice towards deceased, and laid down the law clearly thereon. There is no legal expression or intimation of opinion about it — none of. any sort, except to prevent the jury from using it, as they might have otherwise done, as evidence of the repeated homicides of the accused. Nothing was said to hurt, all to help, the prisoner. The jury were told that the presumption was the accused was innocent in that case, and they could only consider it to show motive.

4. The 13th ground of the motion has nothing objectionable in it when the facts in testimony are considered. A witness may give his opinion of the character of a man as dangerous or otherwise, if he has known him long — ever since the war.

Surely it is for the jury to determine when a witness is successfully impeached; if so impeached in their opinion, he should not be believed; if corroborated, he may be believed, and the corroboration may be by circumstances or other witnesses.

Section 4234 of the .Code was inapplicable to the case.

These embrace the heterogeneous complaints embraced in the 13th ground, with a re-hash of that embodied in the 12th.

5. The 14th ground embodies another set of objections or complaints equally untenable. Where one knows the character of a witness-generally in the town where he once lived, he may testify as to that character for veracity, though the witness has moved some four orfive miles in the country, and the evidence should go to the jury, to be considered and weighed for its worth by them.

A charge that, “ inasmuch as murder embraces the lower grades of homicide, the defendant can not only be convicted of murder under the indictment in this case, if the evidence should authorize it, but if not guilty of murder, may be guilty of voluntary manslaughter, if the evidence require it,” is the law. The word “require” was used merely to avoid tautology in repeating “authorize,” and could not have hurt defendant, in all human probability, no matter where used in the charge ; but where the language occurs in the opening of the case to the jury, as is the case here, it is impossible to conjecture how it could be so construed as to- hurt defendant.

Whether the verdict was contrary to the charge complained of in this ground, depends on whether it was contrary to law because the evidence was insufficient to convict in reference to rules of law about reasonable doubts, the effect and weight of positive and negative testimony, and of assault by the deceased, etc. We do not see that it is not supported by the evidence on these points of law, ruled by the court and uncomplained of as law by the defendant.

6. The 15th ground is robbed of all sting by the judge’s statement.

The prisoner’s surety requested the judge to say to the sheriff, if the defendant was tried, that he desired to be relieved as soon as the trial commenced. This message was delivered, and after the motion for continuance was overruled, at the dinner recess, and before any of the jury were empanelled, the defendant was taken in custody by the sheriff on his own motion. This appears to us right, and does not show or certify anything like the complaint made by the defendant, that the court ordered him, while under bond, publicly in open court, into custody, and from that time until the end of the trial, he was kept under guards specially deputized for that purpose. It is not pretended that he was so in custody as not to have freedom of intercourse and consultation with his counsel.

7. In respect to other grounds, that counsel for the state indulged in vituperation and abuse of the defendant, and made statements of facts outside of the evidence, it is enough to say that the record shows that the counsel was not interrupted by the defendant’s counsel while so animadverting on the conduct of their client; and that it had been agreed between the concluding counsel on each side not to interrupt each other.

It is well settled in this court that unless the attention of the court be called to such lines of discourse, failure to stop counsel is not good ground for a new trial. 65 Ga., 525; 57 Ib., 42; 46 Ib., 26; 11 Ib., 629. ^*

8. The last point is the partiality of certain of the jurors as alleged by defendant and undiscovered until after the trial.

On a careful examination of the affidavits pro. and con., it seems .to us clear that the judge committed no error in overruling the motion, so far as it rests on this ground. There is really nothing arising to the position of deserving serious comment except in the case of Jackson. A family by the name of Ooleman, consisting of a man and wife and two daughters, swear to statements of his which, if true, would show bias and prejudice to such extent as to disqualify him; but bad feeling between the juror and this family is proved by the juror’s own affidavit and that of his neighbors, and the motive to bring him into disrepute is alleged in his affidavit. He denies the language and all bias or prejudice of any sort; his character as an upright and truthful citizen is sustained and vindicated by quite an array of witnesses; and his fellow-jurors also all come to his rescue, and the fact is brought out that the only disagreement was but trifling and brief and related to the penalty only in which he seems to have taken no more active part than the others. It must be borne in mind that the rule is well settled that, if it be witness against witness, a new trial on this ground is never granted; because oath balances oath. Here, it is true, there aré four, but it is one family, on one occasion; nobody else present by whom to contradict them, and bad feeling existing. This, in connection with the sustaining depositions, makes such a case as does not per se disqualify the juror, and the depositions of his fellow-jurors turn the scales decidedly in favor of his own solemn and repeated oath of impartiality; and when to this is superadded the fact that he did not know personally, or very slightly if at all, either the accused or the deceased, it would appear that the trial was fair, so far as' his impartiality was necessary to render it so. 5 Ga., 139; 14 Ib., 712; 15 Ib., 544; 17 Ib., 512; 11 Ib., 616; 38 Ib., 296; 43 Ib., 238, 516; 45 Ib., 279; 58 Ib., 577; 61 Ib., 182; 68 Ib., 696.

In view of the whole case, we do not feel at liberty as a reviewing court to reverse the judgment and set aside the verdict.

The testimony furnishes abundant evidence to support the verdict; the presiding judge is satisfied with it; the charge is apposite, clear and full; and though the penalty be capital punishment, it is inflicted under the law by a jury of the vicinage, upon facts fully investigated, and from which the truth of the case was elicited by them.

Disregard of human life is too common everywhere: the use of the deadly weapon, too frequent; and while no man should suffer, if innocent; if guilty, none should escape.

Judgment affirmed.