Woolfolk v. State
| Decision Date | 28 July 1890 |
| Citation | 11 S.E. 814,85 Ga. 69 |
| Parties | WOOLFOLK v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The defendant's father and step-mother having been killed on the same occasion, and the defendant being on trial for the killing of the former, disqualification of the trial judge did not result from his having been consulted as counsel after the homicide, and before he became judge, by a brother of the step-mother, as to the distribution of her estate knowledge or want of knowledge of the person who did the killing not affecting the distribution, and it appearing that nothing was said between them as to who this person was, and that the judge, while a practicing attorney, had merely informed his client as to the law of distribution, and advised him to take out letters of administration.
2. Upon a motion to change the venue on the ground that an impartial jury could not be obtained in the county, and an offer to introduce evidence to this effect, the judge properly overruled the motion, and held that he had no power to hear such evidence, and that the venue could be changed only by an examination of the persons liable to serve as jurors, as prescribed in section 4687 of the Code.
(a) This section of the Code is not unconstitutional as impairing the right of the defendant to be tried by an impartial jury. Nor is the statute unconstitutional, because, the power which the constitution (article 6, § 16, par. 6) has vested in the judge to change the venue, where he is satisfied that an impartial jury cannot be obtained in the county, is restricted by said statute, the constitution further providing that this power shall be exercised "in such manner as has been or shall be provided by law," (article 6, § 17, par. 5.)
3. With the means afforded by law for obtaining impartial jurors public excitement alone is not a sufficient ground for continuance, especially where nearly two years have elapsed since the commission of the crime.
4. Compulsory process of the court to procure the attendance of a witness residing beyond the state would have been nugatory and was properly refused; and there was no abuse of discretion by the trial judge in refusing a continuance on account of the absence of such witness. Although the defendant stated that he expected to procure the attendance of the witness at the next term of the court, it did not appear that the witness had promised to attend, or that there was any other ground for this expectation. Distinguishing Brown v. State, 65 Ga. 332.
5. A challenge to the array was made under the following circumstances: A term of the court which had been ordered for the purpose of trying the defendant began on Monday, and the jurors drawn for the term were then impaneled and put upon the defendant. A jury was partly selected, and the remaining jurors who had been drawn and impaneled, but not selected, were discharged for the term. On Wednesday of the same week a mistrial was declared. The court being then without jurors except talesmen who had been summoned to attend, but had not been put upon the defendant, the judge drew from the jury-boxes the names of the proper number of jurors, and directed, the sheriff to summon them to attend on the following day, when the defendant would be again put on trial; and the talesmen then in attendance were ordered by the court to return at the same time. The jurors thus drawn and the talesmen appeared accordingly on the following day, and 24 of the jurors drawn were impaneled as the two regular panels of petit jurors for the court, and these, together with 24 of the talesmen, were impaneled, and constituted the array first put upon the defendant for the trial now under review. One of the grounds of challenge was that the judge had no power to draw these jurors at the time he did, and that the defendant, when against placed on trial, was entitled to have first put upon him the jurors who had been drawn before the organization of the court on Monday, and had been impaneled on that day. Held, that the court did not err in overruling the challenge on this ground, the Code (section 3942) providing substantially for the emergency.
6. Nor did the court err in overruling the challenge on the ground that talesmen summoned prior to the mistrial, and who had not been put upon the prisoner, were ordered to return after the mistrial, and constituted a part of the array.
7. Nor was it proper ground of challenge that the court, when additional talesmen were needed, drew the names of some of them from the grand jury-box, the Code, § 3935, under which these talesmen were drawn, not restricting the judge to either one of the boxes exclusively, its language being, "the jury-boxes of the county."
8. Requests to charge, which were lengthy and argumentative, and the material propositions in which were substantially covered in the charge given by the court, were properly refused.
9. The statute, (Code, § 4682,) which prescribes the questions to be asked the juror upon his voir dire, and declares that when answered as therein prescribed he shall be adjudged a competent juror, does not impair the constitutional right of the defendant to be tried by an impartial jury. The legislature has power to prescribe the manner in which the qualifications of jurors shall be tested; and the manner prescribed in the statute for interrogating the juror, and for contesting by evidence the truth of his answers, affords ample test of his impartiality.
(a) Where jurors on their voir dire had answered the statutory questions so as to qualify themselves, and it not appearing from their answers that they misunderstood the questions, the court did not err in refusing to ask, or to allow counsel for the defendant to ask, other questions of the jurors to ascertain whether they understood the meaning of the words "bias" and "prejudice," and what they meant when they answered that they were perfectly impartial between the state and the accused, and whether they had not entertained, and did not then entertain, a settled and fixed opinion that the defendant was guilty.
(b) It is the duty of the judge, when it appears to him from the juror's answer that the latter does not understand the statutory questions, to explain them, it being left to his discretion to vary the form of the questions.
10. It is within the discretion of the court to explain to the jurors, before they have answered the statutory questions on their voir dire, the meaning of the words "bias" and "prejudice" and "perfectly impartial," as used therein; yet, if he should fail to do so, it would not be error.
11. The testimony of witnesses that certain marks and spots were the print of a hand, and blood-stains, was not incompetent because their information was acquired from an inspection which they made while jurors on a former trial of the case.
12. Testimony that the defendant, while alone in his cell, was overheard to say, --was not incompetent because the witness was the jailer in charge of the defendant, the law not disqualifying a jailer from testifying as to voluntary acts and confessions of prisoners under his charge.
(a) That the defendant on the same occasion may have said something else in connection with this, which the witness did not hear, did not render it inadmissible, the latter testifying that nothing else was said within his hearing, and it not appearing from the evidence that anything else was said.
(b) It is not against public policy to allow a prayer which inculpates the person who made it to be given in evidence against him.
13. Testimony as to prayers in which the defendant declared his innocence of the crime, although offered in reply to evidence as to an inculpatory prayer, was properly rejected, the rule being to admit inculpatory declarations or confessions, and to exclude those which are exculpatory when disconnected therewith.
14. The admission, over the defendant's objection, of testimony that the defendant, after the homicide, on being asked, "Who will get the property?" (meaning the property of the deceased,) replied: --although the testimony was irrelevant, was not such error as would require the grant of a new trial.
15. Testimony by a witness that he was informed by another that the latter had heard a third person give a minute account of the killing, the defendant proposing to prove this (1) with the statement repeated, and (2) without any repetition of it, and that the informant of the witness had become frightened, and denied making the statement, was incompetent.
16. A witness having testified that on the night of the killing and about the time it occurred, while she was at a house near the scene of the killing, a barefooted negro, whom she did not recognize, and did not undertake to identify, came to the house and, conversed in low tones with a third person, who lived there, the defendant, for the purpose of identifying this unknown negro, offered to prove by others that a certain insane negro, then present in court, was seen barefooted, three days after the killing, 11 miles from the place where it occurred, and that when arrested afterwards in a distant part of the state, charged with being an escaped convict, he said that he was "on the Woolfolk place the night the nine were killed," and mentioned the name of the person with whom the unknown negro was said to have conversed that night, and said that a woman named "Ann" (that being the Christian name of a woman who lived on the premises) gave him his breakfast. Held that, in the absence of other evidence to...
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