Taylor v. State , 83 Ga. 647 ( 1889 )

Blandford, Justice.

The plaintiff in error was indicted in the county of Washington for murder, in that he killed and murdered one W. I. Cone. He pleaded not guilty. The jury upon the trial of the case found him guilty, and he was sentenced to imprisonment in the penitentiary for life. Ho thereupon moved the court for a new trial, which being denied, he prosecuted the writ of error, to have the judgment of the court below reviewed and reversed.

1. The first ground is that the verdict is strongly and decidedly against the weight of the evidence and without evidence to support the saíne; and the 2d ground is that the verdict is contrary to law. These are the usual grounds in motions for a new trial; and it may be sufficient to say as to them that the verdict is neither contrary to law nor to the evidence.

2. The 3d ground was strongly urged before us by counsel for the plaintiff in error. This ground alleges that the court erred in rejecting as evidence certain indictments against the defendant, one for carrying concealed weapons and the other for disturbing religious worship, each of these offences being alleged to have been committed on the—day of-, 1885, and said indictments having been tried and verdicts of not guilty rendered as to each, at the March term, 1886, of Washington superior court. The purpose of the defendant in offering these indictments in evidence was stated to be, to follow the same with proof that the sole issue submitted in each case was the sanity or insanity of the defendant. And it is also alleged as error that the court rejected the testimony of Andrew M. Mayo, when offered by the defendant, to prove that on the trial of these indictments, the sole question submitted to the jury was the sanity or insanity of the defendant; and also that the court rejected the' testimony of this witness that Dr. J. H. Robson, one of the witnesses at said trials, swore that the defendant was insane.

The trials which took place upon the indictments referred to occurred several years prior to the time this homicide is alleged to have been committed. In our opinion, no conclusion can be drawn against the State in the present case by reason of what occurred upon the trial of those cases. It is true the State was by name a party to those indictments, but only by name, pro forma; otherwise than as representing the public, it had no interest therein. The indictments were found by a grand jury, and the prosecution was carried on by an officer of the State. So far as appears from the records of those cases, the verdict of the jury may not in fact have been upon the question of sanity or insanity. There was a general plea of not guilty as to both indictments, and insanity was not specially pleaded and relied on by the defendant in those cases; so that was not the sole issue submitted to the jury upon the trial thereof. The State may have failed to make out the case by its proof submitted against the accused upon those trials ; and this would have authorized the jury to find the verdicts they did find therein. The prosecuting officer may have been negligent in procuring testimony as to the sanity of the accused, and may have failed to introduce any testimony whatever upon the question of the defendant’s sanity; and no such laches of the State’s officers can be imputed to the State as to bind the State in any subsequent case upon a trial of a case depending on other facts. It was decided by this court in the case of Bradley v. Johnson, administrator, 49 Ga. 412, that where an application for letters of administration had been caveated by a person who claimed to be the widow of the intestate, upon the ground that as his widow she was entitled to such administration, and a verdict was rendered against her, this did not bar her right afterwards to recover in a suit against the administrator, as the widow and only heir-at-law of the intestate. And Chief Justice Warner, who delivered the opinion, refers to the Duchess of Kingston’s case (20 Howell’s State Trials) as the leading case upon the subject. In that case the Duchess of Kingston had been indicted and was on trial before the House of Lords for bigamy. Her counsel tendered a record of the consistory court, of a case between herself and Augustus John Hervey, in which she libelled Hervey for jactitation of marriage, and in which Hervey also appeared and filed an answer claiming to be her husband and that he had the right to say, as he did, that he was her husband; and a decree was rendered by the consistory court declaring that, as appeared to the bishop, he was not the husband of the Duchess of Kingston, and he was enjoined from saying that he was. And it was insisted by her counsel on the trial before the House of Lords that this record was conclusive evidence that she was not married to Augustus John Hervey; but the House of Lords held otherwise, and she was found guilty notwithstanding the decree of the consistory court, they having found that she was the wife of Hervey when she intermarried with the Duke of Kingston. It does not very clearly appear whether the testimony was admitted, although offered, but it was before the House of Lords, and they' considered it was no bar to the indictment. That case is much relied on by text-writers.

The rule is stated by some of the authorities to be, that the record sought to be introduced as a bar to the indictment, must show that the identical issue involved in the case on trial was passed upon in the former ease, and when shown, the State would be bound by the judgment in the former case, because it was a party. As to this case, however, things that occurred upon the trial of the indictments in question are in the nature of res inter alios acta. The State is never bound in any case by what took place on the trial of a former case, where the latter case is entirely different in all its facts and circumstances from the former. We conclude, therefore, that there was no error on the part of the court in refusing to allow these indictments to be read in evidence, or in refusing to. allow the testimony sought to be introduced, as to what was testified to on the trial of these indictments.

3. The 5th ground of the motion complains of error on the part of the court in refusing to rule out all of the testimony of the witnesses for the State showing the sanity of the defendant, upon the ground that they gave no facts upon which to base their opinions. We do not think that this exception is well-founded. The record shows that the witnesses testifying knew the defendant, and had known him for a considerable length of time, and that he always acted like a sane man; and we think these are facts from which they could form an opinion as to his sanity or insanity.

4. The 6th ground complains that the court erred in admitting proof of the fact that the witness Jake Mathis had served a term in the penitentiary, defendant’s counsel objecting thereto. This witness was sworn in behalf of the defendant, and he was asked if he had served a term in the penitentiary ; the defendant’s counsel objected to the question, but he answered of his own motion that he had.. He need not have made the answer; he could have declined to answer the question, and the court would have erred if it had compelled him to do so ; but as he answered it voluntarily, it constituted no ground of objection on the part of the defendant’s counsel. No witness is bound to testify to anything that will bring disgrace or infamy upon himself or his family; but if he chooses to answer questions that are asked him, he may do so, and it constitutes no legal ground of objection on the part of another person. The witness’s character and reputation were in his own keeping and not in that of the accused.

5. We see no error in the charge complained of in 1st amended ground of the motion for a new trial; besides, in the exceptions thereto no error is pointed out. And taking the evidence into consideration, it seems quite favorable to the accused.

6. Nor do we see any error in the charges complained of in the remaining grounds of the motion. It appears to us that the charge of the court as a whole was fair and legal.

7. We think the court was right in refusing to allow the witness Peeler to testify what he (Peeler) said to the father of the defendant about the conduct of the defendant testified to by him. This was wholly immaterial.

8. And so as to the refusal of the court to allow the witness Pawlings to testify that some time prior to the killing he heard Cone, the deceased, say that the defendant was crazy. It was wholly immaterial what the deceased had said on this subject some time prior to the killing.

9. Another ground of error is that the court permitted iDr. Allen, a physician, to testify in behalf of the State as to the sanity of the defendant, his opinion not being based on .the evidence adduced on the trial, or upon a hypothetical case stated. Dr. Allen lived near the defendant for a long time, knew him well and had had frequent conversations with him, and being an expert, we think he could give his opinion as to whether the accused was sane or insane.

10. It is further alleged that the court erred in permitting H. D. D. Twiggs, of counsel for the State, to comment before the jury in his concluding argument, over objection of the defendant’s counsel, upon the statement made by Jake Mathis to L. J. Stanley and Jesse Robson, as appears from the evidence, as facts proved; the defendant’s counsel insisting that what Mathis said to these parties could be used only for the purpose of impeaching his testimony, and not for the purpose of establishing the truth of his statements. This ground of the motion does not set forth what the comments of Judge Twiggs were, and before the exception could avail anything, these should have been stated. Counsel certainly had a right to comment upon all the testimony in the case ; that was a matter with him as counsel; and whether he was logical or illogical, the court could not interpose. His deductions may have been very illogical, but the court could not prevent counsel from drawing illogical deductions from testimony which had been introduced.

Upon the whole case we are satisfied that the verdict of the jury is right, and that there was no violation of law on the part of the court trying the case.

Judgment affirmed.