Whitley v. State , 38 Ga. 50 ( 1868 )

Harris, J.

There are many assignments of error made by the bill of exceptions, but we propose to confine our opinion to those only which we deem most material. The first is the refusal of the Court to continue the case. By paragraph 4553 of the Revised Code, it is evident that the policy of the law is that of a speedy trial, and hence the direction that a criminal case shall be tried at the term of the Court at which the indictment is found. This rule was not intended to be inflexible ; it is a general direction, subject to such modification as the principles of justice demand; thus, the absence of a material witness is a sufficient ground to change it. It may so happen that the witness has not been subpenaed, and the question might arise, whether, in such an event, the trial could be postponed.

Instead of denying a continuance, the circumstances should control the decision. What diligence was used ? When was it discovered that such persons would prove a material fact for accused ? What have been the accused’s opportunities for making preparation for trial ? How long since the transaction occurred ? and other similar matters which may be presented. These are all to be considered by the Court in the light of the administration of justice, and when the delay sought appears to be sought in good faith, with the view to a fair trial, time should be accorded, and especially where full opportunity for preparation has not been had. Expense may accrue to the county by a continuance permitted to an accused person, who happens to be insolvent, but such a consideration must not be regarded for a moment when the paramount principle of giving a fair trial demands the postponement. The State can never be supposed to have any wish but for a fair trial. Her honor and her justice should not be compromitted by her officers pressing forward hastily the trial of an accused person, when, from the circumstances, it is apparent that he will be cut off from the probable means of vindication. That the spirit of our laws is opposed to a harsh and rigorous interpretation, is evinced by a subsequent clause in the paragraph cited; that clause provides not only for a continuance from the term at which the indictmentAvas found to the next succeeding term, but expressly confers the power on the Court to allow continuances, from term to term, as often as the principles of justice may require, on sufficient cause shewn on oattu

These general views, as to continuances, contain within them the principles by L which we have been controlled in our decision upon the first assignment.

On the 27th January, 1868, in a rencounter with Worn-mack, who was killed by him, Whitley, the plaintiff in error, received two pistol-shot wounds, one through the body, the other through the thigh and testicles. He was at once arrested, and kept closely confined in jail — guarded and denied intercourse with his friends. On the 19th February, 1868, twenty-three days after the homicide, he was arraigned, and required to announce whether he. was ready for trial. He said he was not, and moved the Court to continue the case for the purpose of preparing his defence. He madé an affidavit, and stated therein, whilst in jail, he had not been able to make inquiries for persons who had seen the difficulty, there having been many in town that day ; that from the wounds he had received, he had not sufficiently recovered to enable him to endure the fatigue and excitement of a trial, having suffered great bodily pain, etc. The affidavit of Hr. ■ Galloway, the attending surgeon of Whitley, was also submitted. The surgeon testified that he would not say that the accused might not stand his trial without serious injury; but he thought that serious consequences might arise, and that he did not think it prudent that Whitley should go to trial in his present bodily condition, though the wounds had nearly healed. The motion for a continuance was overruled. We think, if there ever was a case in which such a motion should have been promptly granted,' this was the case. This refusal entitles the plaintiff in error to a new trial.

2. The second assignment of error is, that the Judge overruled the challenge of the accused to the array of the second panel, for that eight of the panel of jurors were negroes, who were not, by the law of Georgia, competent to serve as jurors. The Judge, in overruling the challenge, stated he was acting, in doing so, only in obedience to military orders. By agreement between the Solicitor-General and counsel for the accused, the negroes were excused from service, the Judge assenting. • The panel thus relieved from the objectionable persons summoiied by the sheriff as jurors, was proceeded withwithout other objection. The assent to go on with the remaining persons, can be regarded only as a waiver to the challenge to the array, and this ground should not, therefore, have been included in the bill of exceptions. "We, therefore, refrain from the expression of any opinion as to the sufficiency of a military order of a department commander, under what are called “ the Reconstruction Acts,” to make persons competent to sit as jurors, who are not competent by the laws of the State.

3. The third assignment is as to the admission of the following words as the dying declarations of Wommack, that it was hard to be killed for telling the truth; that God knew that he (Wommack) told the truth, and Eg. knew it was the truth.” The objection was, that they disclosed no fact as to the relations of the parties to the rencounter, or connected with it. We apprehend, there is a decisive test to which “ dying declarations” must be subjected, and by it their admissibility as testimony can be readily determined. That test is, whatever may be statedjby a witness under oath, is admissible in evidence as dying declarations, made by one under the conciousness of approaching death. The statement, under such circumstances, is held to be as truthful as if under oath, and equivalent to a statement sworn to. But the opinions of witnesses under oath, as a general rule, are inadmissible in evidence in criminal cases, and hence opinions in dying declarations are excluded. In the case of Sellers, cited in Roscoe ■ Criminal Evidence, pp. 27, 28, it was ruled that the dying declarations of opinions and inferences, without facts, could not not be given in evidence, and that, like witnesses, the declarations must be confined to circumstances which caused the death, or facts having a distinct relation to it. We are, therefore of the opinion that the Judge erred in not rejecting the sayings of Wommack as incompetent testimony.

4. Error has also been assigned upon portions of the charge given to the jury, viz: “that the charge is upon a hypothetcal statement of facts, not warranted by the testimony, which testimony involved the guilt of the prisoner, and that they excluded, in almost every instance, from the consideration of the jury, every hypothesis of the defendant’s innocence or justification, and every hypothesis that might reduce the offence from murder to manslaughter.” The portions objected to are in the following words: “ If you shall be satisfied, from the evidence, beyond a reasonable doubt, that the defendant deliberately determined to assail the deceased with the purpose of taking his life or doing him some grievous bodily injury, and the deceased knew the fact, and that in his rencounter with defendant, he was acting in self-defence, it is no difference whether he fired the first shot or not as he had in that instance a perfect right to destroy his assailant to preserve himself, and if his resistance was overcome and the defendant succeeded in carrying out his original purpose and killed the deceased, then it would be murder, notwithstanding deceased had prepared a weapon and endeavored to destroy his assailant to save himself.”

Again: “ If your minds are satisfied, beyond a reasonable doubt, that defendant was armed with a deadly weapon, and was pursuing deceased with threats of vengeance, and that deceased knew these facts, he had a right to arm himself and destroy the assailant and preserve himselfj and his attempt to do so, and failing, is no justification for defendant.”

We think these portions of the charges liable to the exceptions taken to. them. They assume, as in testimony, every thing that is essential to fix the guilt of the accused as a murderer, and everything which could excuse the deceased, and malte his conduct throughout as entirely justifiable; the legal conclusions are applied by the Judge to such assumed facts. The jurors’ minds were thus made to look through the testimony for such facts as would produce a verdict of guilty, without, in any wise, instructing them to look to those portions of the testimony, which, when analyzed and carefully considered, might induce a rational doubt whether Whitley had formed any deliberate intention to take Wommack’s life. The threats of vengeance used by Whitley were indefinite. The jury should have been instructed to draw their inferences as to what they meant, by weighing the words and circumstances under which they were uttered, and in connexion with his conduct then and afterwards. That Wommack was pursued by Whitley, with a deadly purpose, is also assumed. The testimony does not show clearly, and without reasonable doubt, any pursuit at all. The rencounter may have been an accidental casualty of two hostile parties brought together without the occurrence being sought; and this is a view, which, if the testimony will authorize such a conclusion, would have been an important consideration in ascertaining the degree of guilt of the respective parties.

It was also assumed that Whitley was the assailant, and the law arising upon such a fact was strongly stated. The testimony shews no assault at any time on Wommack. When Whitley approached Wommack on the sidewalk, where the rencounter took place, he was bid by Wommack not to advance; Whitley continuing to walk forward, Wommack drew his pistol, cocked it, and fired first; Whitley, when advancing, having no weapon in hand, making no threat, nor making any assault whatever. If, then, Whitley did not make any assault, then it became an inquiry, which the jury should have made, and to which the charge should have directed their attention, whether or not the parties, having hostile feelings towards each other, had not, without agreement or premeditation, been brought suddenly together, and, their passions inflamed thereby, engaged in mutual combat; and if they should regard the rencounter as casual, the parties being on equal terms, notwithstanding their previous differences, the law, in its tenderness to those who act under sudden violence of passion, would not have reduced the offence to manslaughter. There are other assumptions of fact, as in testimony, which might he pointed out, but as they are of minor importance we omit to notice them.

In every form in which the facts assumed by the Judge to be in testimony have been grouped together, with the intention of shewing what legal principles they involved, it strikes us that they were so presented as to admit of the jury reaching but two conclusions, viz: the guilt of murder in Whitley, and the entire justification of Wommack, when it is very questionable whether either would be a fair result from a full consideration of the whole testimony. The oftener we read the charge of the Judge, as contained in the bill of exceptions, the more deeply are we impressed with the conviction that it is violative of the spirit, if not the letter, of our Code, section 3183. By that paragraph, a Judge is not only prohibited from the expression of an opinion as to what facts have been proved, or as to the guilt of the accused, but he is also prohibited from an intimation of opinion as to either the one or the other. Had we been- in the jury box, and addressed as it was by the Judge, it would have been impossible for us to have understood him otherwise than as conveying the idea that what he had stated were facts sworn to in the testimony, and that if we believed them to be true, then that Whitley was guilty of murder. The charge was, it appears to us, an intimation, or indirect suggestion, conveying to the mind, covertly but effectually, that the facts of the cas'e were as he had stated them, and that they necessarily made defendant guilty; nor did the addition, that if the jury were satisfied of their truth, beyond a reasonable doubt, lessen or remove the effect of the impression made on their minds, that he believed the facts.

A charge from such a source, from a Judge commanding the confidence of all who know him, for the high attributes of integrity, ability and personal worth, could but have carried along with it to the jury, the impression it makes on us. If it had been intended, .(which we will, by no means, impute,) to produce a verdict of guilty, we apprehend a more effectual mode, to assure such an end, could not have been pursued; indeed, it well merits the appellation of “a hanging charge.”

In England, such a mode of charging would probably be unexceptionable; for the Judges there are accustomed “to sum up,” or in other words, to comment temperately upon the testimony; state what appears to be proved, and what not proved; the value of particular facts, as also of them combined, and the result they should produce. This course, and it is authorized there, has necessarily, a weight with the jury, proportionate to the dignity, learning, impartiality and honest intentions of the magistrate, and is almost always decisive in giving direction to the verdict.

However valuable the assistance thus given to juries in England, in enabling them to perform intelligently their duties, such a course is wholly unwarranted by the laws of Georgia to its Judges.

By a jealousy, which has no foundation for its existence in a republican government, our Judges have been prohibited from the discharge of those duties which would seem most appropriately to belong to' theta in criminal trials, and have been made little else than mere automata.or why have juries been made alone the judges, not simply of the facts, but of the law governing them ? Why otherwise, are the Judges prohibited from directlyor indirectly expressing or intimating any opinion as to what facts are proved, or what facts in the case establish guilt?

Our experience on the circuit bench, make's ns very sensible of the difficulty of making charges unexceptionable and free from violations of the Code, but we are persuaded it can he done by the Judge avoiding the slightest reference'to the testimony, hypothetically or otherwise, and confining the instructions given to a statement of what facts are essential to bring a case within the crime alleged or involved in the indictment.

He should not be betrayed, by his zeal for the efficient • administration of the criminal justice of the State, to throw directly or indirectly the influence and weight of his opinions into the scale. The Act intended, after he had charged the law, that he should no further have any connexion with the case; his duty then ceased.

We must all obey its clear and unmistakable requirements, and whatever fears we may entertain as to the effect of this restriction upon the Judges in charging the juries, the consequences, whatever they may be, cannot be ascribed to those who obey law; they will, if they should'prove injurious, probably satisfy the people that they are not imputable, in any degree, to the ministers of the law, but to the law itself. The verdict in this case is the fruit of a charge which involves a violation of law; and if this had been the only ground of error alleged, the plaintiff in error would, on it, have been entitled to a new trial.

Judgment reversed.