Blackman v. The State Of Ga.

• Decision Date: 31 March 1888
• Citation: 80 Ga. 785
• Parties: Blackman. vs. The State of Georgia.
• Court: Georgia Supreme Court

80 Ga. 785

Blackman. vs. The State of Georgia.

Supreme Court of the State of Georgia

MARCH TERM, 1888.

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Criminal law. Venue. Jury. Challenge. Evidence. Practice. Charge of court. Verdict. Before Judge Fort. Schley superior court. July special term, 1887.

This case has been before the Supreme Court twice. It is reported for the first time in 76 Ga. 288, and for the second in 78 Ga. 592. It is unnecessary to report the evidence introduced on the third trial in the superior court, as it is not substantially different from that introduced on the two former trials. The evidence was circumstantial, and the prisoner was found guilty and sentenced to death.

The evidence for the State tended to show, as the motive for the killing, jealousy of the deceased by the prisoner, on account of real or supposed illicit intercourse between the deceased and one Onie Black.

The 10th ground of the motion for new trial was as follows: Because when the witness, Doc. Murray, testified that " he (the deceased) sent me after her (Onie Black) to tell her to come up here, he wanted to see her, " and defendant moved to rule out the testimony as illegal, irrelevant and the sayings of deceased, the court erred in ruling as follows: " I think what you want to get at is the fact, if it be a fact, of illicit intercourse, and not the saying of the deceased, except to show whether or not this relationship that you claim did exist."

The other material facts in the case are sufficiently stated in the decision.

E. F. Hinton, J. C. Mathews and J. S. McCorkle, for plaintiff in error.

Clifford Anderson, attorney-general, by brief, and C. B. Hudson, solicitor-general, for the State.

Bleckley, Chief Justice.

1. The court correctly expounded and applied the law touching a change of venue. The constitution restricts change to where the judge is satisfied that an impartial jury cannot be obtained in the county, at the same time declaring that the power is to be exercised in such manner as has been or shall be provided by law. Code, §§5172, 5173. When these provisions were adopted, the acts of 1871 and 1874, embraced in section 4687 of the code, were of force, and they prescribed that the judge shall be satisfied only by an examination, careful and thorough, of the persons liable to serve on juries. In the present case, this was the test recognized and applied by the court; and the case of Brinkley vs. State, 54 Ga. 371, which had been ruled prior to the adoption of the constitution, holds that the judge was shut up to this mode of inquiry. In argument before us, it was contended that the legislature had no power to say how the judge should satisfy himself, but such a power is, we think, distinctly recognized by the constitution, and moreover it had been exercised before the constitution was made, and the same law then in force on the subject has continued to be in force ever since. No doubt, under the express terms of the constitution, the legislature can change the mode, but until they do so, the judges ought to observe that which has been ordained. By reference to the constitution of 1868, it will be seen that the provisions of that constitution touching the change of venue were the same as those of the constitution of 1877. The 4th and 6th grounds of the motion for a new trial were properly overruled.

2. There was no error in overruling the challenges of the jurors made by the accused, either the challenge to the array or those to the polls. As the matter of challenge was confined to four of the jurors, it was not broad enough to vitiate the array had it been otherwise good. Eberhart vs. The State, 47 Ga. 646; Code, §4680. But the matterwas not such cause as would avail even as challenge to the polls; for jurors are not disqualified to try a criminal case because at some previous trial they have been put upon the prisoner and one or more of them rejected by him. Their competency as jurors is not impaired by mere acceptance, without actual service, in previous proceedings for the same offence. Reed vs. The State, 50 Ga. 556. Andif acceptance does not destroy competency, why should rejection have that result? This disposes of the 5th, 7th, 8th and 9th grounds of the motion.

3. The 20th and 21st grounds of the motion relate to the competency of the juror Snider. As to the 20th ground, it is enough to say that the declarations imputed to the juror were denied by him, and his denial was controverted by the evidence of only one witness. The 21st ground is based on the theory that the affidavit of Snider himself shows that he was incompetent; but he says in that affidavit that when put upon his voir dire he answered conscientiously and truthfully the questions propounded to him by the solicitor-general. Among said questions were these: "Have you any bias or prejudice resting upon your mind, for or against the accused?"' "Is your mind perfectly impartial between the State and the accused?" As he was accepted as a juror, we are to take it that his answers to these questions were as to the one affirmative and the other negative; and is the effect overcome by his admission contained in the affidavit, that he had said, " I believe he is guilty, because two juries have found him guilty?" We think not. His answers on the voir dire imported that he had no fixed opinion as to the guilt or innocence of the accused; and the mere casual declaration made before that time, that he believed him guilty because two juries had found him guilty, is altogether reconcilable with such an import of his answers. A juror is not disqualified by a loose and vague opinion as to guilt or innocence, unless it has been generated by seeing the crime committed or hearing the evidence on oath; andsuch was not the origin of the opinion expressed by this juror. It is natural and proper for every citizen to have some opinion in favor of the correctness of the verdicts of juries; and if...