McLain v. State , 71 Ga. 279 ( 1883 )

Hall, Justice.

The first question to be considered is, whether the court erred in overruling the prisoner’s challenge to the jurors, as they were severally put upon him, upon the ground of challenge assumed and insisted upon.

(1.) That several of said jurors belonged to the panel of grand jurors, and were incompetent to serve as tales jurors upon the trial of this issue.

(2.) That when the jury box was revised and the list of jurors was made out, the commissioners neglected to certify and sign said list.

(3.) That one of the jury commissioners was incompetent to act as such, he being then a county officer, to-wit: a county school commissioner.

1. The first of these grounds ivas abandoned on the hearing in this court, and very properly so, as it has been repeatedly decided that a person who is on the list of the grand jury is competent to act as a traverse juror on the trial of a felony. 4 Ga., 136 ; 20 Ib., 60. The constitution provides expressly that grand jurors shall be competent to serve as traverse jurors. Code, §5175. A grand juror, belonging to the panel which found the indictment, would doubtless be incompetent, for the reason that he had formed and expressed an opinion from having heard the evidence under oath.

2. That the certificate of lists of grand and traverse jurors were not signed by the jury commissioners might be a good ground to challenge the array, we shall not stop to consider; but we think it ±s not good cause of challenge to the poll, especially as in the present case the challenge to the array was made and withdrawn, and inasmuch as the certificate was completed by the signatures of the commissioners, each and all, after a thorough and searching investigation by the court as to the correctness of the lists, before the panel was put upon the prisoner.

3. The fact that a person is a county school commissioner does-not disqualify him from acting as a jury commissioner , he is not such a county officer as is rendered incompetent by the statute to act on the jury commission. By art. xi., §ii., par. i., of the constitution, Code, §5227, county officers are described as those who shall be elected by the qualified voters of their respective counties or districts, and who shall hold their offices for two years.

Members of the board of education (county school commissioners) are chosen by the grand jury ; and after the first selection, their term of office extends to four years. Code, §1254. From the first of January, 1880, the board of jury commissioners was required to be composed of six discreet persons, who were not county officers, and who were to hold their appointments for six years, etc. Code, §3910, (a). The term county officers in this act was evidently used in the sense attached to it in the constitution, and in that sense it does not include a school commissioner.

4. There was no question of skill and science in this case, and consequently no necessity to resort to the testimony of experts; the witness was not called upon for an opinion upon facts proved by other witnesses. Code, §3868. He gave his opinion upon the facts sworn to by himself as to the cause of the death of the party alleged to have been killed, and he was competent to do this. Code, §3867. 62 Ga., 65, covers this case.

5. The dying declarations of the party slain were properly admitted; he was in artículo mortis when they were made, was conscious of his condition ; the declarations related solely to the cause of his death, and the person who killed him. Code, §3781. The foundation for their admission was laid in the absence of the jury, who had been ordered out of court during this preliminary examination. They contained no objectionable matter,such as' hearsay, etc., and no improper use appears to have been made of them. Mitchell vs. The State, decided at this term, in which the authorities upon the subject are collated and reviewed.

6. The indictment alleged the killing of W. F. Sexton by the defendant. Most of the witnesses spoke of deceased as Freeman Sexton. The question of the identity of Freeman and W. F. Sexton was submitted to the . jury, and they found that they were one and the same person; the testimony not only sustained, but required, this conclusion. There was no error as to this question. 11 Ga., 615; 68 Ib., 833.

1. There was an abundance of evidence to show that the deceased came to his death from the wounds inflicted by the prisoner; indeed, no' other cause of death could be inferred from it.

8. The objections urged to the charge of the court as to. the sufficiency of the circumstances to excite the fears of a reasonable man, and as to the defendant’s acting under the influence of those fears and not in a spirit of revenge, and as to his refusal to charge as requested upon this sub - ject, are not well taken. The court gave in charge' Code, §1330, as to justifiable homicide, and in connection therewith the succeeding §4331, as to reasonable fears, and instructed the jury that the question was not whether these fears were, in fact, well grounded, but whether the defendant acted under such circumstances as would induce the fears of a reasonable person; and at the request of de-. fendant’s counsel, that if a person kill another under the fears of a reasonable man that the deceased was manifestly endeavoring to commit a personal injury upon him amounting to a felony, then the killing was justifiable, and the defendant could not be convicted. He further charged upon this subject, as requested, that to justify the homicide, it is sufficient if the danger be apparent, though unreal—that is, if the appearance of danger was such as to •arouse the fears of a reasonable man, and he acted under the influence of those fears. The circumstances from which the conclusion might be drawn that the defendant acted under the fears of a reasonable man had, at his request, been previously pointed out to the jury, and, we think, in a manner too favorable to him, inasmuch as the request omitted to mention all such facts in evidence as •qualified or detracted from the weight of such circumstances, and no allusion was made to them by the j udge in giving the request. After this, we cannot see the neces■sity of charging, as requested, “ that it is sufficient if there be actual danger, to the defendant’s comprehension, as a reasonable man. The inquiry is not whether the harm apprehended was actually intended by the assailant, but was it actual and real to the defendant, as a reasonable man, as compared with danger remote or contingent.” The substance of this request, in a less abstract but more intelligible form, had been several times repeated to the jury, and we cannot understand the necessity for another repetition of.it, or what possible injury could have resulted to the defendant from refusing a thing that had been several times pressed upon the jury in a manner that would enable them to comprehend it more easily and clearly. It might have confused instead of aiding them, and prevented their arriving at a j>roper conclusion.

9. The ground that the verdict was contrary to law and evidence was scarcely alluded to on the argument before •this court; and had it been, we regret to say that it would not have changed the result. The verdict is fully sustained hy the evidence, and as there is no error in the case of which the defendant can complain, it must stand.

Judgment affirmed.