Loyd v. State , 45 Ga. 57 ( 1872 )

McCay, Judge.

1. That a principal felon and an accessory before the fact maybe included in the same indictment, with proper charges and averments against each, seems unquestionable. Such was the settled rule of the common law: Bullock vs. The State, 10th Ga., 47. And such would seem, in the nature of things, right and proper. They are, in a very proper sense, joint offenders, both concurring, at least in intent, in the crime.

2. Our Code, even as to the substantial averments in an indictment, only requires that they should be stated so as .to be easily understood by the jury : Code, section 4535; and it seems directly contrary to the spirit of this enactment to require that the merely formal parts of the indictment shall conform to the letter to a provision the sole object of which was to make unnecessary the cumbrous formality of the common law proceedings.

3. When an indictment against several is called for trial, the whole case, as it stands, is announced. The defendants are asked if they be ready for trial. And if any one is not ready, he will be heard. If there be after this a severance, the Court proceeds to try them severally. When one has been tried, and his case disposed of, the Court proceeds with the next. As a matter of course, if any'new complication occurs, if anything has, in the mean time, happened that makes either the State or the accused less ready than at the announcement, the Court will hear and judge of it. But we see no more reason for a new call, because a trial of one of the joint offenders has intervened, than because any other temporary delay has occurred.

4. We have so often ruled that the granting or refusal of a continuance is in the discretion of the Court, under the special facts of each case, that we do not care to repeat our reasons. The absence of counsel would seem to be specially within this rule, since it must depend very much on the surroundings how material such absence may be. The Judge, knowing, as he does, the counsel, and seeing, as he does, all that transpires, has special means of getting at the truth. In this case, too, there is a serious defect in the evidence as to the reason of the absence of the counsel. Could any one be punished if the fact should turn out different from what was stated ?

5. Until a new trial has been granted to the principal felon, he stands convicted. Even a supersedeas of the sentence only leaves matters as it finds them; it does not vacate the finding. The verdict of conviction stands until it is set aside. We do not think an actual motion — nay, even the granting of a rule nisi, would require a continuance of the case against the accessory; much less is this the case, when nothing appears but that the principal intends to move for a new trial.

6. The test of the juror’s qualification is by the statute, fixed to be his having formed and expressed an opinion as to the guilt or innocence of the accused. Have- the Courts authority to change this test? If they add to the test made by the law that prepared in this case, where are they to stop? It is very true that the guilt of the principal felon is an estial element in the guilt of the accessory, and one who has formed and expressed an opinion as to the guilt of the principal felon, has formed and expressed an opinion on a very material fact, necessary to be proven in order to establish the guilt of the accessory. But if the forming of an opinion as to the truth of one of the necessary facts of the offense is to disqualify a juryman, who could be a juryman in a case of murder? The death of the deceased is, in all cases, a necessary and material fact to be shown. Is a juryman disqualified because he had formed and expressed an opinion as to the fact of the death of the deceased ? And the same may be said as to many other facts. It may very well be that the principal felon is guilty, and the person charged as accessory not guilty. We are clear, therefore, that the juryman who has formed and expressed an opinion as to the guilt or innocence of the principal felon, is not, for that reason, disqualified from trying the accessory. Our statute prescribes the tests, forming and expressing an opinion as to the guilt or innocence of the prisoner, from having seen the crime committed, or from having heard any part of the testimony delivered on oath, prejudice or bias, etc., etc. Nor was it improper for the Judge, in a general way, to instruct the panel as to what the law was in the premises. This Court has approved of the practice, and we think rightly.

7. Perhaps the admission of this phonographic report was not strictly regular. As it did not appear to have been taken down under the direction of the Court, as prescribed by section 4636 of the Code, it cannot stand as a part of the magistrate’s report. If admitted.at all, it could only be on the faith to be given to it as sworn to at the principal trial by the phonographer, and it is not the usual course to permit a witness to reduce his testimony to writing, swear to it, and have it read as evidence. Though it may also with truth be said, that this phonographic report is by far the best evidence of' what this statement really was; certainly it is better than any man’s memory of what took place. In this case, the statement is very immaterial; there is nothing in it of confession,, nothing that could have damaged the prisoner, and we will, not grant a new trial.

8. Something is due, even in a criminal trial, to the public. Is the Court to sit and listen until it pleases the pris— oner to stop? So long as his statement is pertinent to the issue, and not a continued repetition of what has been said, the Court ought to hear it. Charity and kindness requires much forbearance to one so situated. But even these have their limits, and we do not think the Judge did, in this case, in this matter, more than was proper.

9. We see no material error in the Judge's charge on the subject of insanity. In one sense, all crime is insanity. Indeed, in view of the awful responsibility of all of us to the Judge of the quick and the dead, any sin is a sort of insanity. But as the Judge justly said, society cannot afford to treat a man as insane because he has become so steeped in crime as to have stupefied his conscience. The Judge stated the rule of responsibility, from the words of this Court over and over again repeated, to-wit: Was the accused conscious he was doing wrong? Was his mind sound enough to judge of the right or wrong of his acts ?

10. Upon the whole, we think this man guilty; perhaps the most guilty of the two engaged in this terrible tragedy, and affirm the judgment without hesitation. It is painful to be the instrument of the law in meeting out the reward to guilt, but it is a public duty.

Judgment affirmed.