Bone v. State

• Decision Date: 10 November 1890
• Citation: 12 S.E. 205,86 Ga. 108
• Parties: BONE v. STATE.
• Court: Georgia Supreme Court

12 S.E. 205

86 Ga. 108

BONE v. STATE.

Supreme Court of Georgia

November 10, 1890

Error from superior court, Fulton county; R. H. CLARK, Judge.

F. R Walker and Jas. A. Gray, for plaintiff in error.

C. D Hill, Sol. Gen., for the State.

BLANDFORD J.

The plaintiff in error was convicted in the superior court of Fulton county of the offense of murder, and he moved the court for a new trial upon the several grounds contained in his motion, which was refused by the court, and he excepted.

1. The general grounds, as to the verdict being contrary to law and the evidence and without evidence to support it, seem to us untenable. The evidence introduced by the state showed very clearly, as will appear by the record, that this was a case of murder. Even the statement of the accused himself was sufficient to show that this was a case of murder.

2. The first special ground in the motion for a new trial alleges that Richard H. Clark, the presiding judge, had no authority to hold the superior court of Fulton county, or to try movant upon the charge preferred against him, the said Richard H Clark being judge of the Stone Mountain judicial circuit, and Marshall J. Clarke the judge of the Atlanta judicial circuit, at the same time holding and presiding over the superior court of Fulton county, then in session and engaged in the trial of civil business in the room provided by the county authorities for the superior court; and movant avers that the act of the legislature of Georgia providing for two sections of the superior court in counties wherein there is a city of 10,000 inhabitants, and incorporated in sections 247, 247 ai-247 ie, of the addenda to the Code of Georgia, and acts amendatory thereof is unconstitutional and void. Article 6, § 3, par. 1, of the constitution of this state declares: "There shall be a judge of the superior courts for each judicial circuit, whose term of office shall be four years, and until his successor is qualified. He may act in other circuits when authorized by law." The eighth paragraph of the following section declares that "the superior courts shall sit in each county not less than twice in each year, at such times as have been or may be appointed by law." The act which is called in question by the plaintiff in error is that of September 29, 1879, (Acts 1878-79, p. 149,) as amended by the act of December 24, 1886, (Acts 1886, p. 34,) which act is entitled "An act to declare and amend the laws of this state touching the jurisdiction and modes of procedure in the superior courts in certain cases, so far as relates to counties having therein a city of ten thousand or more inhabitants." The act of 1879, as amended by the act of 1886, makes provision that two or more judges of the superior court may preside in bank, or that said courts may be held in two or more sections at the same time by different judges, in any separate rooms in the court-house or at the county-site as may be convenient; the second section providing for exceptions to the rulings of the judge, and writs of error to the supreme court. The original act provides that "all business, and all causes pending or which may be brought in said courts other than indictments for felonies, which latter are to be tried in the said superior courts in manner and form as heretofore practiced," shall be embraced within its provisions. This section was amended by the act of 1886 so as to embrace "all business and all causes, whether civil or criminal, pending, or which may be brought, in said courts." We do not think that the act of 1879, as amended by the act of 1886, is in any manner in conflict with the constitution of this state; and therefore the plaintiff in error can take nothing by this ground of his exception. The constitution requires at least two sittings of the superior court in each county, but does not prohibit more sittings to be held, nor does it prohibit two or more sections of the superior court presided over by different judges sitting at the same time where the interest of the public requires the same to be done; so that justice shall not be denied to any one. Nor is it unconstitutional because it provides for this scheme only for counties containing large cities, the legislature having power to classify in general terms.

3. The error assigned in the second ground of the motion is as to the conduct of the presiding judge, who, when the prisoner and his family and his counsel were passing from the court-room into an adjoining room to consult, remarked: "This is spectacular." We do not think this was any ruling or such intimation by the court as would make it a subject-matter of review by this court; and we cannot say whether it was calculated to work the plaintiff in error any injury or not.

4. The third ground of exception complains of certain remarks made by the court to the solicitor general, as follows: "By the Court. Small potatoes, Mr. Hill By Mr. Hill. And few in the hill, your honor. By the Court. And stringy at that." We do not clearly understand the meaning of these remarks by the court and the solicitor general, but this assignment of error is subject to what we have already said as to the second ground.

5. The fourth ground complains that the court committed error in admitting in evidence, over the objection of defendant's counsel, the contents of a certain note which it was claimed was written by Jessie Bone, the daughter of the accused, to the deceased, Woodward. We think the court ought not to have admitted the contents of this note in evidence, the note having been lost, and the witness not having shown any knowledge of her hand-writing, either by having seen her write or having had correspondence with her, or having stated that he knew her hand-writing. A witness may testify to hand-writing if he knows the same, and it matters not how that knowledge may be acquired; but it is very clear to our minds that he should have that knowledge before he can testify as to the contents of a writing which is lost. While we think this was error, we do not think it was such an error as should work a reversal of this case, inasmuch as we are satisfied that without this evidence the accused would properly have been convicted; and indeed we cannot see how the jury could have rendered any other verdict. Were this a close case upon the facts, however, we might be inclined to reverse the judgment, and doubtless would. The case of Smith v. State, 77 Ga. 705, does not apply to the facts of this case. In that case the witness did identify the letter by a certain blot thereon, which he noticed when he carried the letter to defendant.

6. The fifth assignment of error complains that the court did not fairly and fully submit all the issues in the case to the jury. We think, upon reading the charge of the judge who tried the case, that he fairly and fully submitted to the jury all the issues involved in the same.

7. The sixth assignment of error complains of the instructions which the court gave to the jury as to the prisoner's statement. We think the court might have been content on this subject to have given to the jury the rule laid down by the...