Bishop v. The State Of Ga.

• Decision Date: 31 August 1850
• Docket Number: No. 26.,26.
• Citation: 9 Ga. 121
• Parties: Brinkley Bishop, plaintiff in error. vs. The State of Georgia, defendant.
• Court: Georgia Supreme Court

9 Ga. 121

Brinkley Bishop, plaintiff in error. vs. The State of Georgia, defendant.

No. 26.

Supreme Court of the State of Georgia

AUGUST TERM, 1850.

Indictment for murder, in Bibb Superior Court. Tried before Judge Stark, January Term, 1850.

The defendant was indicted at the January Term, 1850, of Bibb Superior Court, for the killing of one Turner Smith, on the eighth day of December, 1849. The cause came on for trial at the same term of the Court, when the defendant moved the Court for a continuance of Ms cause, upon the ground stated in his written affidavit, to wilt: "That he cannot go safely to trial, because such is the excitement in the public mind, and so excited is public feeling against him, as he has been informed and believes, that he has more to fear, and does fear that he cannot obtain afair trial." In answer to questions propounded by the State on a cross-examination, defendant stated, that he made the statement, contained in his affidavit, from information received from persons while he was in jail; that he had been confined in jail since the 8th day of December; that he remembered the names of but two persons who gave him information on the subject. One was Patrick Cunningham, who told him the day before, "that there was a heavy weight against him." The other was Hezekiah McKinney, Who told him sometime after his confinement, "that public opinion was against him." Defendant farther stated, that he did not know that any one had stated to him that public opinion was so excited that he could not have justice done him.

The Court overruled the motion for a continuance, and ordered the trial to proceed.

In the progress of the trial, John P. Lamar was introduced as a witness by the defendant. Upon his cross-examination, in answer to a question propounded by the State, witness stated that "he was not on friendly terms with Turner Smith, the deceased." Counsel for the defendant then proposed to ask the witness as to the reasons of his hostility to the deceased, which was overruled by the Court.

Richard Bassett, a witness for the defendant, testified as to the localities of the place at which, and the relative situation of the parties at the time the killing was perpetrated.

By way of rebuttal to the testimony of Bassett, the State introduced a "diagram, " based upon the testimony of--a witness for the State, without having first submitted the diagram to Bassett—said diagram being at variance with the testimony of Bassett as to the place and position of the parties at the time the killing was done.

The Jury returned a verdict of guilty, with a recommendation of the prisoner to the mercy of the Court.

Counsel for the defendant than moved the Court for a new trial, upon several grounds, of which the decision of this Court renders it only necessary to state the following:

1st. Because the Court refused to allow counsel for prisonerto ask John P. Lamar why he was unfriendly to the deceased, after the counsel for the State had been permitted to ask him if he was unfriendly.

2d. Because the Court allowed a diagram to go in evidence to contradict the testimony of Bassett, which was not exhibited to Bassett.

3d. Because David Smith, Jr., one of the Jurors who tried the cause, was induced to agree to the verdict by the persuasion of his fellows, by misrepresenting to said Juror the effect of the verdict rendered, he being assured by some of his fellows that a general verdict of "guilty, " with a recommendation to the mercy of the Court, " would authorize the Court to commute the punishment from death to imprisonment in the penitentiary.

4th. Because the Court erred in refusing the counsel for prisoner the right to examine the Juror when put upon triors.

5th. Because the Court erred in refusing to grant a continuance of his cause to the prisoner, upon the grounds stated in his affidavit, "as to the excitement existing in the public mind against him."

6th. Because Madison Malsby, one of the Jurors who tried said cause, was biased and prejudiced against the defendant; and so far prejudiced, as to be unable to do justice to the defendant.

Upon the hearing of the motion for a new trial, the defendant submitted the affidavit of David Smith, Jr., in which he stated that he was induced to agree to the verdict for the reasons stated in the third ground taken in the motion.

Defendant also submitted the affidavits of Henry B. Page, James B. Cooper and Zachariah Holloman, who stated, "that they heard Madison Malsby, one of the Jurors who tried the cause, on the Saturday before he was impanneled on the Jury, say that if he was on the Jury, he would hang Bishop and burn Smith (who was also indicted, but not put upon his trial.)

Counsel for the State then submitted the affidavit of Madison Malsby, the Juror, in which he sated, "that in a conversation with Page, Cooper and another individual by the name of Keel, on the Saturday previous to the trial, he said that if such testimonywas given before the Court, as he had heard could be brought in, he would stay there until hell freezed over, or hang them, " (meaning Bishop and Smith.) He further stated in his affidavit, "that on the trial of the cause, he acted under neither bias nor prejudice, and was solely governed by the law and the testimony delivered on oath upon the trial before the Court, and that he was put upon the Jury without ever having been placed upon his voir dire, or questioned as to his competency as a Juror by the prisoner or the State. Deponent further swears, that in a conversation with James B. Cooper, in the presence of Francis Wells, on Sunday last, he told Cooper that he was summoned, but did not want to serve on the Jury, for if they (meaning the prosecution) made such proof, as he understood they could make, he would stay there until he rotted, or until hell burned down, but he would hang them."

The affidavits of Ardin Keel and Francis Wells were also submitted by the State to corroborate and sustain the statements of Malsby, the Juror.

The Court overruled the motion for a new trial, and counsel for the defendant excepted.

Thomas P. Stubbs and Wm. K. DeGraffenreid, for plaintiff in error.

Sol. Gen. McCune, Hall, and Poe & Nisbet, for defendant in error.

By the Court.—Lumpkin, J., delivering the opinion.

The first error complained of in the proceedings of the Court below in this cause is, that the Court refused to allow counsel for the prisoner to ask John P. Lamar, a witness for the defendant, why he was unfriendly to the deceased, after the State's attorney had been permitted to inquire of him if he was not inimical to the deceased. The question asked the witness was properly propounded for the purpose of showing the bias under which he testified; but it does not occur to us, what good or le-gal object could have been subserved by instituting an inquiry into the cause of the hostility entertained by the witness toward the deceased. It may have answered, to be sure, to have justified him, in the opinion of the jury and others, but not in any way to elucidate the truth of the issue which they were trying; on the contrary, by entering into particulars as to the origin of the feud, statements might have been made which could not be rebutted, and thus improperly have prejudiced the mind of the jury against the prosecution. We do not deem this assignment of error sufficient to affect the judgment.

It is insisted, in the second place, that the Court erred in allowing a diagram to go before the jury, to contradict the testimony of Bassett, which was not exhibited to the witness.

It appears from the record, that this testimony was suffered to go to the Jury, without objection, either on its introduction or in the argument of the case. The illegality, then, is waived, and a new trial will not be granted in consequence of its admission. Had this proof been objected to, it might not have been pressed, and if pressed, might have been excluded by the Court. It will never do to permit a prisoner to hear illegal testimony without objection, and then assign its introduction as error; by such indulgence, advantage will always be taken of the prosecution. 4 Shep. 187. 4 Humph. 27. 5 Blackf. 436.

But apart from this rule, upon what principle was it necessary to exhibit the diagram, submitted to the Jury, to Bassett? He had testified to the localities where the homicide was committed. Another witness is introduced, who gives a different statement, and a plot is made out in accordance with his evidence. It is not the paper, but the proof upon which it is made out, that contradicts Bassett. Had the prisoner considered it material, Bassett could have been called back and re-examined as to this matter of discrepancy. This, then, cannot be regarded as error.

It is next urged as error, that the Court refused to receive the affidavit of David Smith, Jr. one of the Jurors who tried the cause, to impeach the verdict. He does not deny the guilt of the accused, but states, that he was induced to agree to the verdict, by the persuasion of his fellow-jurors, and by their misrepresentations as to the effect of the verdict.

In Monroe's Case, (5 Kelly & Cobb, 141,) although the point was not directly made, I ventured the opinion, that while the Jury would be heard in their vindicaton, they would not be allowed to impeach their own verdict. The argument now submitted has satisfied me of the soundness of that conclusion. I admit that the ancient law and practice was the other way. Phillips vs. Fowler, 1 Barnes, 441, 8 Geo. II. Parr vs. Seames, 1 Barnes, 438. Aylett vs. Jewell, 2 Wm. Black. 1279. Bellish vs. Arnold, Bund. 51. And in Smith vs. Chetham, (3 Caines, 57,) Spencer, J. says, "on examining the English authorities, prior to the revolution, it appears to me that the information of Jurors, as to what passed, may be received."

I will not refer to the case of Price vs. Powers, (1 Keble, 811,) Which was a decision to the contrary, as early as the reign of King Charles II. since Mr....