Lyon v. State , 22 Ga. 399 ( 1857 )

By the Court

McDonald, J.

delivering the opinion.

[l.] The Court properly rejected the admission of Cox, that itwas he who hud shot the prosecutor at iho time and place stated in rhe hill of indictment” There is no sound principle upon v/hieh ir van lie edmiiied. Though jointly indicted with the defendant oa t iol, lie trail not on his Pial. This Court h.-w held that a v in.osa jointly indict,"! will.' a <h fondant on .hi; trial iu compo! :i.t, if he be nol also on hit; trial. Jones vs. The State, 1 Kelly 610. In that case, tiio parties had severed on the trial. The witness was not a party to the issue to he tried, and upon that ground he was considered competent. Cox is not a parly to the issue here, and being a competent witness, his admissions ought not to have been received. But it is not on that account alone that his admissions ought to have been rejected. He was jointly indicted, and to have admitted his ‘declarations to acquit his accomplice, would be recognizing a principle, which would, in all such cases, subvert the ends of justice. All one defendant wopld have to do, would be to admit that his guilty accomplice was innocent, and that he himself had perpetrated the crime, absent himself so as (o enable the parly on his trial, to 1 i<ave the bo: tefit of bis adiui j.-uon, and alter bis acquittal, appear, demand his trial and prove by the evidence of the acquitted parly, that he was in fact the guilty person. 3t is true that the jury might justly entertain strong suspicion of testimony given under these circumstances, and perhaps, without corroboration, discard it entirely, as they ought to do; but if corroborated by circurnsiancoss too slight, standing alone, to have much influence on their judgment, they might give credence to h. But the oilier ground is sufficient According to the decision of this Court, his admissions were no more receivable as evidence, than the admissions of any tuber witness. It is true, that if ihe defendants had been tried, together, the eridenca ought to hove 'near admitted, but not as testimony in favor of the. other defendant, but a.:, proof of the guilt of Cos.

It was no .-.v vm for rim admission of the testimony offered by the defendant, that ibo Civic had given ¿he sayings of Cox in evident'If coco xl Ibr the defending thux.hi proper to ;kAw them to he A vunoui obA-efimi, i¡ i uo reason for admitting then, A i liega I, when ofi'erod by (ho dofeu (hush .uid t A«f m A- flit* f Uonicy C,.’ii''nd.

[2.] We think them urns no i.-rtnr in the refusal oí ¡he G¡ui:í. to give the ch-gyv as •requesi.od. The mu/cs: was simply an ali-draet principle of lew, coper w not, wvsudg'g to die proof in the case in which me request was made. In this case, the defendant was a tr.-v > -u.r on ¡ho pruseeuiohs promises, al a late hour of í.¡vs ;g .i. jie carried deadly woapons with him, which it was unlawful for him to carry, and the evidence shows he was quite ready to use them. He knew he had no right on the premises, and supposed that the owner, if he found him there, would probably attempt to drive him off, and went prepared to take his life if he did. Ño assault that could have been made upon him by the prosecutor, short of an attempt to take the life of the intruder, or made in a manner to induce the apprehension that such was the intention, could have reduced the killing, if he had killed the owner, from murder to manslaughter. His going armed with a loaded pistol — prepared to meet any emergency, is evidence of malice. If it was a contrivance to get the prosecutor to assault him that he might take his life, it would have been murder, if he had killed him. If he went there to defy all resistance of his purpose, the prosecutor might have been justified, not only in assaulting, but killing him. It is not necessary to extend remarks on the subject. It might be improper to do it. It is sufficient to say, that there was no error in the refusal of the Court below to give the charge as requested, and that the judgment must be affirmed.

Judgment affirmed.

* Judge Lumpkin was absent during this Term of the Court, on account of indisposition.