Atkins v. State
| Decision Date | 17 October 1882 |
| Citation | 69 Ga. 595 |
| Parties | ATKINS v. THE STATE OF GEORGIA. |
| Court | Georgia Supreme Court |
September Term, 1882.
1. If it be competent in a criminal case to prove by one witness what another, who has since become inaccessible, testified on the committing trial, a proper foundation must first be laid by showing that the witness proposing so to testify professes to remember the substance of the entire testimony as to the particular matter about which he testifies.
2. It was not admissible to prove by a witness sworn on the trial in a murder case that he had heard another, who had been subpœ naed but was not present, state that the latter had heard the person killed utter threats in regard to the defendant, and that the witness sworn had communicated such threats to the defendant.
( a. ) Especially is this the case where no motion was made for a continuance to procure the testimony of the absent witness, who had been present on a former trial of the case but was not sworn, and no special effort was made to secure his presence.
3. Where one ground of a motion for new trial is that one of the jurors was not impartial, and statements made by him are relied on to support such ground, the juror may purge himself, and if he does so to the satisfaction of the presiding judge, this ground will be overruled.
( a. ) In the present case the purgation was thorough.
4. While defendant's counsel was reading authorities touching the fears of a reasonable man which would justify a homicide, and touching the doctrine of reasonable doubts, it was not error for the court to state to him that he recognized the principles so laid down to be the law, and would give them in charge without the reading of further authorities.
( a. ) Where counsel for defendant persisted in reading such authorities, that counsel for the state commented upon such fact, does not require a new trial.
5. Where a prisoner has been arraigned, pleaded not guilty and a trial has been had, resulting in a mistrial, it is not necessary to rearraign the prisoner in order to put him again on trial.
6. If requests be covered by the general char e, a failure to give them will not require a new trial.
7. The verdict is supported by the evidence.
Witness. Evidence. Criminal law. Practice in Superior Court. Jury. Before Judge WILLIS. Muscogee Superior Court. November Term 1881.
Reported in the decision.
B. A THORNTON; J. M. LEONARD, by brief, for plaintiff in error.
CLIFFORD ANDERSON, attorney general; J. M. MCNEILL, solicitor general pro tem., for the state
John T. Atkins having been convicted of murder, moved for a new trial, which was refused, and he excepted.
1. The first ground of the motion was, because the court refused to allow the defendant to prove by James Atkins that the testimony of George F. Helms, on the preliminary examination in this case (as taken down by a newspaper reporter), was in substance what the said Helms testified to on said preliminary examination, and to show in connection therewith that said Helms was beyond the jurisdiction of the court.
This testimony was rejected by the judge upon the ground that the defendant did not offer to prove by the witness that he professed to remember the substance of the entire testimony of the absent witness as to the matter about which he proposed to testify. §3782 of the Code, and the ruling of this court in the case of Puryear vs. The State reported in 63 Ga. 692, settles this question as ruled by the judge below.
2. Because the court refused to allow the defendant to prove also, by James Atkins. that on the 17th or 18th of July, 1881, he was informed by George F. Helms that Nasworthy, the deceased, said to him that if John Atkins did not stop his God d-d foolishness, that he (Nasworthy) would kill him; and that he (James Atkins) on the same day communicated the threat to his brother, the defendant, and that the said Helms had been subpœ naed to attend court that he might be sworn as a witness. It appeared in connection with this offer to prove the sayings of Helms, that he was present on a former trial of this case, but was not sworn or offered as a witness by the defendant.
This testimony was properly rejected,...
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