Barrow v. The State Of Ga.

• Decision Date: 31 October 1887
• Citation: 80 Ga. 191
• Parties: Barrow. vs. The State of Georgia.
• Court: Georgia Supreme Court

80 Ga. 191

Barrow. vs. The State of Georgia.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

New trial. Evidence. Criminal law. Jury and jurors. Charge of court. Practice in superior court. Witness. Res gestae. Before Judge Simmons.^* Houston superior court. April term, 1887.

Mattie Barrow was indicted for murder, and was found guilty of voluntary manslaughter. Her motion for a new trial contained, among others, the following grounds:

(1) Because of newly-discovered evidence. (The effectof this was to contradict or impeach witnesses for the State. The only affidavit as to diligence in its procurement, and as to ignorance of it, was made by defendant herself.)

(2) Because of the separation of one of the jurors from the others while absent from the court-room in charge of the bailiff. (The facts as to this ground are stated in the second division of the decision.)

(3) The court erred in charging the law in cases of direct testimony as applicable to this case, and in not charging as to circumstantial evidence; the evidence as to who gave the fatal stab being entirely circumstantial.

(4) The court erred in not riding out before the jury the answer to the following question: " Was Lucy cut be-fore or after you threw Marietta into the embrace of Molly Scott?" Answer: "I couldn't tell; I didn't know it until John Dunn said he knew Mattie had the knife." At first an objection to this was sustained, but it was subsequently admitted as part of the res gestae.

The motion was overruled, and the defendant excepted, For the other facts see the decision.

M. G. Bayne and A. S. Giles, by brief, for plaintiff in error.

J. L. Hardeman, solicitor-general, for the State.

Lumpkin, Judge.

1. This court has so repeatedly ruled that newly discovered evidence, the effect of which is merely to impeach a witness who has testified at the trial, is no ground for a new trial, and that alleged newly-discovered evidence will not be considered at all unless the counsel for movant, as well as the latter, will swear they did not know of its existence till after the verdict, it is quite sufficient to mention these rulings, if indeed that be necesessary, without discussing them.

2. It appeared that during the trial of this case, (he judge allowed the jury, attended by their bailiff, to leave the court-room for a necessary purpose. They soon returned, with one of their number missing, who came in within a few minutes. The court immediately inquired of the juror where he had been and the cause of his absence. He explained that he had gone to his stable to attend a call of nature. The court then asked him if he had spoken to anybody or anybody had spoken to him about the case, to which ho replied in the negative. Defendant and his counsel were present and said nothing, and the trial thereupon proceeded. On the hearing of the motion for a new trial, it further appeared, by the affidavits of this juror and other persons not members of the jury, that while separated from his fellows he did not hear any one express any opinion in relation to the case, or make any remark about the case, except that one Martin asked the juror if the case was closed, to which he said \'\'no\'\' and the juror further swore that during the separation no act, word or sign reached him, by which he was affected or influenced in his...