Franklin v. State , 69 Ga. 36 ( 1882 )

JACKSON, Chief Justice.

The defendant was convicted of murder, and being denied a new trial, assigns that denial, on the grounds alleged in the motion therefor, as error. The errors alleged when analyzed and reduced to points are not so numerous as they appear when spread over a large surface. We endeavor to reduce them, and consider the points of law so made.

1. A photograph of the wound of the deceased was admitted as evidence over the objection of defendant. The throat of deceased was cut; the character of the wound was important to elucidate the issue; the man was killed and buried, and a description of the cut by witnesses must have been resorted to; we cannot conceive of a more impartial and truthful witness than the sun, as its light stamps and seal's the similitude of the wound on the photograph put before the jury; it would be more accurate than the memory of witnesses, and as the object of all evidence is to show the truth, why should not this dumb witness show it? Usually the photograph is introduced to prove identity of person, but why not to show the character of the wound ? In either case it is evidence ; it throws light on the issue. ,[x Bish. Crim. Proc., 1097 ; Wharton’s Crim. Ev., 544, and cases cited in both texts.

2. The statement of deceased touching his owning the shoes and socks defendant had on, and which were pulled off his feet, made in defendant’s presence and not denied, was admissible. The attention of the accused must have been arrested by the statement, he could have heard and did hear in all probability, and the circumstances were such 'as to let the jury pass upon it. Moye vs. The State, 66 Ga., 740.

3. It was further objected that the pulling the shoes and socks off the prisoner’s feet, or inducing him to do it, rendered the evidence touching their identification inadmissible, under the ruling in Day vs. The State, 63 Ga., 667. But it will appear in that case that the accused was forced to put his feet in the tracks which had been made, and the principle there. ruled is that a defendant cannot be compelled to criminate himself by words or acts. Here it seems that he did not object, and really that the police pulled the shoes off. It was their duty to gather the fruits or evidences of crime as testimony against him, and the fact that he had on apparel of the deceased connected him with the homicide, whether shoes, socks, or other clothing. It was what he wore which witnessed against him, and not any act he did under coercion, such as being forced to put his feet in tracks somebody had made. 1 Greenleaf Ev., 34; Bishop’s Crim. Proc., 210, 211, and ■cases cited. Besides, when accused before of having on shoes of deceased, he did not deny it. So the testimony objected to if ruled out, would have left other testimony on the point in, and a new trial on this ground need not have been granted.

4. Of course these articles themselves, as well as the knife, and boots left at place of homicide, were admissi.ble. 56 Ga., 114; Moon vs. State, Feb. Term, 1882.

5. To re-open the case for more testimony is within the ■discretion of the presiding judge. To advance the ends •of justice and get at the truth should be the sole object ■of a trial; and while as a general rule this should not be • done — that is, the case should not be re-opened after witnesses on the other side are discharged, at least without an opportunity to send for them — yet when the other side had examined no witness except as to the character of defendant and for purposes of impeachment, and did not show the presiding judge that the discharged witnesses would testify so as to affect the point to which the new witnesses were called, we cannot say that the judge erred and abused his discretion in allowing the solicitor general to re-open the examination and to piut in new testimony.

6. The court did call the jury’s attention to the witnesses for the defence, to their testimony, and as that testimony related solely to the character of defendant, except that which went to impeachment of witnesses, the court thereby did call the attention of the jury to proof of good character. But if that had not been done, and was deemed important by defendant’s counsel, it was their duty to call the attention of the judge to the omission, and it would doubtless have'been more explicitly charged. 20 Ga., 523; 26 Id., 380.

7. The jury stated to counsel the ground on which the testimony objected to was admitted ; he did not express any opinion about it to the jury or intimate any, merely saying it is admitted on the ground that-defendant did not deny the statement of deceased, and not as dying declarations; we see no error in it, and no necessity to charge the jury upon it.

8. The twelfth ground in the motion, which excepts to the charge of the court, or an extract from it defining circumstantial evidence, is sustained by the Code, §3748, and of course is not error.

9. The thirteenth ground relates to the summing up of the court, contains numerous items, specifies no one item as erroneous, and, therefore, unless all be so, that ground cannot be considered, because it is broad and general and not specific. 60 Ga., 82. But if considered, and ruled upon here, we find no error in it.

10. The fourteenth ground is that the court erred in charging to the effect that though a witness be impeached as to general character, yet if corroborated in a material point he may be believed, and that if impeached by one witness as to character, and sustained by another, it is for the jury to pass upon the credit due to him — the entire credibility' of the witness in such cases is for the jury. The Code, as well as the decisions of this court, establish the ruling as right. Code, §§3874, 3875; Williams vs. State, present term, not yet reported.

11. The fifteenth ground attacks the entire charge as vague, argumentative, not presenting the law of the case, and not covering the issues. Wherein it is thus objectionable, is not pointed out and specified, and we fail to see it.

12. The verdict has sufficient testimony on which it can legally rest. It is not for us to decide on the credibility of witnesses, and the deductions to be drawn from appearance, manner of testifying, conduct on the stand, and the like. These are for the jury, with the cool head of an experienced and able judge supervising their finding, and hearing and seeing all that they saw. If both the jury and such a judge find the defendant proved in law to be guilty, and imprison him for life, our view of our law and the distinct rights of a nisi firius and a reviewing court, will not authorize us to interfere. The question is simply, is there evidence to uphold the verdict ? If so, it is a legal verdict, and not contrary either to evidence or to law. The facts that the accused had on the shoes and socks of deceased, that he left his own boots with the deceased, that he talked about the appearance of blood on his knife as made by a person to whom he loaned it in cutting a dog, that this person was neither named nor produced on the trial, that he admits himself, in his statement, he was that night, and near that time of the night,- near the scene of the throat-cutting, these point to him as the guilty man. There is no other reasonable hypothesis, which excludes this conclusion, to be drawn from this testimony. There is no other person to whom these facts point. They, none of them, point to any other man as probably, or even suspiciously, guilty. If the sole witness who saw him with the drunken man whose throat was cut by somebody, was mistaken as to his identity, or was unable to testify positively to that identity, the boots which he wore in the early part of the night, found with deceased, and the shoes and socks which he wore afterwards, and the explanation about the appearance of blood on his knife, and the bare feet of the man whose throat was cut, go to supply the lack of positive evidence of identity, and surround him with so many links of identity as to chain him by circumstances to the place of the cutting and to the perpetration of the murder. Assuredly they make altogether such an array of circumstances as to support the verdict of the jury and the judgment of the court below so strongly that this court must leave the case where the jury and presiding judge have said that evidence and law place it.

Judgment affirmed.