Walton v. State , 79 Ga. 446 ( 1888 )

Blandford, Justice.

Walton was indicted, tried, convicted and sentenced to be hanged for the' crime of murder, in the county of Terrell. He moved for a new trial on several grounds; the motion was overruled, and he excepted. The 1st, 2d and 3d grounds of the motion for new trial are the usual grounds, that the verdict is contrary to law and to the evidence. The 4th ground is, that the court erred in not granting a continuance of the case, counsel for the defendant having stated that they were not prepared for trial, not having had an opportunity to look into the case and make due-preparation. The crime was committed on Friday night, the deceased died on Saturday, and the bill of indictment was returned into court on the Tuesday following, counsel having been assigned to the defendant on Monday morning. The court set the caso for the following Wednesday, and -on Wednesday it was called for trial- and counsel for the defendant moved to continue. The motion was overruled and the case proceeded to trial.

1. There was nothing peculiar in the facts of this case' to require further time for preparation on the part of counsel for the accused. It affirmatively appears that- all of-the witnesses, both for the State and for the defendant, ■ were present in court, although the defendant introduced no witnesses. The killing was admitted; and it was either murder or manslaughter; the jury found it to be murder, and we think that their finding was right. We do not see that the court erred in refusing to continue the case. This case differs from Blackman vs. The State, 76 Ga. 288, cited by counsel for the plaintiff in error. In that case the defendant was in jail in an adjoining county, and his counsel, who had been assigned to him on Tuesday, wer.e-’ unable to confer with him until the evening before the-trial on Friday; besides, it was an intricate case, depending on circumstantial evidence; and we thought it required., further preparation on the part of counsel to defend; hence we deemed it proper to grant a new trial.

The case of Moody vs. the State, 54 Ga. 660, is much stronger than the present case. There counsel moved to-continue for want of preparation, and the motion was much, better fortified than in this case, but the court below overruled the motion, and this court held that the court below was right; that is to say, that its discretion would'not be interfered with in overruling the motion; because the'judge below was upon the ground, and knew the duties counsel had to perform and had been performing in the' court, and could better judge of the merit of the application than this court could.

2. The 5th ground of the motion for a new trial is, that' the court erred in admitting the dying declarations of the deceased, made under these circumstances: A physician-visited the decesed a short time prior to his death, and' warned him that there was but one chance in a hundred for liis recovery, and asked him if he had any statement to ■make, upon which he made a statement as to who cut him, .and how it took place. Another witness testified that ■directly after the deceased was stabbed, he stated that he ■was going to die. Within an hour after this declaration to the physician, the deceased died. The court allowed this declaration to go to the jury, leaving it to the jury to consider whether the deceased was at that time in articulo mortis and conscious of his condition. We do not think •this was error. Whether the deceased was conscious of his condition or not, was a question of fact to be finally determined by the jury, and it had .only to appear prima facie to the court; it need only appear to the court from the circumstances of the case that there was a probability that the deceased was conscious of his condition at the time he made the statement, and was in articulo mortis, to authorize him to pass it to the jury, with proper instructions on the subject.

3. Another ground of the motion is, that Ühe judge in 'the court below, while passing sentence upon another person, who had been tried and convicted of murder on the day before the trial of this defendant and found guilty, with a recommendation to mercy, said- to that person in presence of the jurors who had been summoned for the term : “ The court questions very seriously whether, had it been left to the court, you would have gotten off as lightly as you have. • I solemnly believe in the divine law which says, 1 whoso sheddeth man’s blood by man shall his blood be shed; ’ and when a plain case of murder is established without mitigating circumstances, my judgment approves of the penalty of death.” We do not think this exception is a subject-matter of review by this court. The judge had charge of the administration of public j ustice in that county, and he had a right to the opinions expressed and to express them as he did. The jury might or might not agree with Mm. We think the judge in this case would have been authorized in refusing to certify this ground of exception. It had nothing to do with this case. If he acted improperly, he was amenable to another tribunal.

4. The next ground is, that the charge of the court was against the accused. We have carefully looked into the charge, and find that it is fair and impartial, and a correct exposition of the law as applicable to the case. It is against the accused, because, unfortunately for him, the law is against him in this case.

The record shows no error in the finding of the jury or the rulings of the court; and the judgment is affirmed.