Licett v. State , 23 Ga. 57 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

The question is, was the judgment overruling the motion for a new trial erroneous ? and we answer, No.

The motion was put upon eight grounds. Of these, not one, in our opinion, was sufficient.

As to the first ground, we think that it is not true that “ the jury found contrary to the evidence.”

[1.] As to the second, it does not appear that the sayings of Bush and Hardegree to Brown, were objected to. And the admission of even illegal evidence will not be a ground tor a new trial, unless the admission of it was objected to.

As to the third, it does not appear that any threat of any kind, or any promise of any kind, had ever been made to the accused, at the time when he confessed. His act of confession seems to have been a purely voluntary act.

As to the fourth, we think that there was evidence that the accused had had “possession of the stolen filly.”

As to the fifth, it could not possibly have hurt the accused, that the Court told the jury that his confessions were “ to be believed or not, according to their truth.”

[2.] It is not true that a ‘-jury is bound to regard the whole of a' confession made at the same time.” The confession may be such as to require them to believe a part of it, and to disbelieve a part of it. It follows, therefore, that they are not bound to regard more of a confession than they believe to be true. In respect to what is to be the test, as to what part of a confession is to be believed, if any, and what part disbelieved, if any, there is not made any question in this case.

As to the sixth, this ground relates to what was a mere matter of discretion in the Court, and there is nothing to show that the Court, in doing what it did in relation to the matter, abused its discretion.

As to the seventh, by the Act of 1856, prescribing who are qualified to serve as jurors in criminal cases, &c., the Court takes the place which, by the previous law, had been occupied by triers. Acts 230,331.

Triers, by this previous law, might or might not have considered it sufficient to show a juror biased, that he had, from rumor and hearsay, formed and expressed an opinion as to the guilt or innocence of the person on trial. They would not have been bound to consider such evidence sufficient to show the juror biased. Hence, the decision of triers was final.

[3.] By the present law, the Court takes the place of triers. Therefore, by the present law, the decision of the Court made as trier, must, in like manner, be final.

As to the eighth ground, this was abandoned.

None of the grounds being good, the Court was right in overruling the motion.

Judgment affirmed.