Hoye v. State , 39 Ga. 718 ( 1869 )

Brown, C. J.

1. The excuse set up by the defendant’s witness in this case, to justify the killing, was that the deceased, during the quarrel, cursed prisoner, threatened to kill him and put his hand in his bosom, when prisoner took witness’ pistol from his person and shot deceased. Under this state of facts the Judge gave in charg'e to the jury section 4267 of the Revised Code, which relates to the killing of another in self-defense, as the law applicable to the case, and this is assigned as error. And it is insisted that the Jqdge should have given in charge section 4264, which relates to justifiable homicide in defence of habitation, person or property, against one who manifestly intends, or endeavor's, by violence or surprise, to commit a felony on either. We think the evidence in the case justified the charge as given, though it might have been better, out of abundant caution, for the Judge to have given both sections in charge to the jury, and left them to apply the evidence.

2. The new trial was also asked, in this case, on the ground of the newly discovered evidence of Edwards, who swears that deceased told him, the day before the killing, that if Hoye, the prisoner, did not pay him some money which he owed him, he intended to kill him. It is not pretended that this threat was communicated to Hoye before the fatal shot was fired. It could not, therefore, have influenced his conduct, and is not admissible in evidence in justification of the killing. We are aware that such evidence was admitted in Keener’s ease in 18th Georgia, 194, not by way of justification, but merely to show the state of mind or feeling on the part of the deceased. But that ruling does not seem to have been followed in subsequent decisions. Bee 25th Georgia, 207, and 29th Georgia, 470. While we do not overrule that decision, we hold that it is not applicable to this case. We do not see what the state of mind of the deceased had to do with the case, as the deceased was unarmed, and made no effort to hurt the prisoner further than to make threats, and put his hand in his bosom, where he had no weapon. We are, therefore, of the opinion that the evidence of previous threats, not communicated to the prisoner before the killing, would not have been admissible, and that the Court did not err in refusing a new trial on this ground.

3. Nor will a new trial be granted on the ground of newly discovered evidence which is only cumulative, or intended to impeach the character of a witness examined on the trial, or when the evidence, if it had been before the jury on the trial, would not probably have changed the result.

4. The motion for a new trial was also predicated upon the affidavits of certain jurors who tried the case, to the effect that the character and conduct of the defendant, previous to the killing, was spoken of in the jury-room during their deliberations, which, it is insisted, was not justified by any evidence before the jury. We think the Court did right to overrule the motion, on this ground, also, as the jurors were not competent to impeach their verdict, 28 Get., 78; 30 Go., 869.

5. But we now approach a much more difficult question. Was the Court legally and regularly held, and if not, did the defendant waive his objection to the irregularity by going to trial without making the objection ? We have considered this question carefully, with a strong disposition to sustain the verdict, to which we find no other good objection. But we are unable to do so. The Constitution and Statutes of the State fix the time when the regular terms of the Superior Courts shall be held. Sections 3175 and 3176 of the Revised Code lay down the rules distinctly under which the regular terms of the Court may be adjourned by the Clerk, on failure of the Judge to attend, and by order of the Judge in vacation, when it is “ not possible for him to attend the regular term of said Court from sickness of himself or his family, or other unavoidable cause.” And section 3177 declares that “'no Superior Court shall be adjourned by the Judge in vacation except for the cause above stated.” This does not interfere with the right of the Judge, in term time, to adjourn the Court to such time as he may think fit, nor to hold adjourned terms, in his discretion, “ to close the dockets,” when the business requires it, or to hold “special terms” to try criminal cases. But it does distinctly and unequivocally forbid the Judge to adjourn over the regular term by order in vacation for any other cause than sickness of himself or family, or other unavoidable cause.

The practice which had grown up in some circuits of adjourning the regular terms of the Courts, at the mere convenience or caprice of the Judge, to the great detriment of parties and inconvenience of jurors and witnesses, was a great evil and demanded the emphatic mandate of the Legislature which is now found in the Code.

It is not pretended that the Superior Court of Bibb county was adjourned for either the sickness of the Judge or of his family, or for any other unavoidable cause, which rendered it impossible for him to attend at the regular term. The order recites that certain members of the bar could not attend at the time fixed for the regular term and that the Judge desired to go to the Commercial Convention. This was no legal excuse. If half the attorneys in the circuit should be absent, it is the duty of the Judge to attend at the regular time fixed by law. He can then make such adjournments, or grant such continuances of causes as he may think proper, or as the facts of each case may justify. "When the Judge, without any sufficient legal cause, has adjourned the regular term of the Court, by order in vacation, we hold that he has no power at such adjourned term to compel any party to go to trial before him. If, however, parties to civil causes make no objection and go to trial, we hold that the irregularity is waived, and that they cannot afterwards be heard to object to the judgment, on the ground of the illegal act of the Judge in ordering the adjournment.

6. But the rule is different in a criminal case involving the life or liberty of the defendant. He waives nothing by implication or intendment. And unless he expressly waives an objection to the legality of the adjournment, with a view to a trial which is to bind him, we hold that he may take ad vantage of it even after verdict. The State in such case is bound to make his guilt legally appear beyond a reasonable doubt before he can be subjected to the penalty which must follow the conviction.

As the Court, illegally adjourned as this was, had no right to try the defendant without his express consent to go to trial and take the consequences, (which consent, should have been in writing upon the bill of indictment,) he has not been put in jeopardy, and we set aside the verdict, on that ground alone, and send the case back with instruction that a new trial be had.

Judgment reversed.