Boswell v. The State Of Ga.
| Decision Date | 31 July 1876 |
| Citation | 57 Ga. 102 |
| Parties | Boswell, Moughon, plaintiff in error. v. The State of Georgia, defendant in error. |
| Court | Georgia Supreme Court |
Criminal law. Evidence. Charge of court. Before Judge Wright. Dougherty Superior Court. April Term, 1876.
Moughon was placed upon trial for the offense of assault with intent to murder, alleged to have been committed upon *the person of one Hopkins Tillory, on August 10th, 1875. The defendant pleaded not guilty.
The evidence showed that Tillory was shot about eight o'clock at night, whilst lying upon the couch in the passage of his dwelling-house, by some unknown person; that he was struck by some fourteen squirrel shot.
The circumstances which pointed to the defendant as the perpetrator of the crime were, in brief, as follows:
1st. Four or five days before Tillory was shot he saw two negroes pick up a sack of cotton in his field, and run off with it; he fired at one of them and hit him. This person was ascertained to be the brother of the defendant. On the next day, at the gin-house, words passed between Tillory and the defendant in reference to the shooting of the latter's brother, and, according to the testimony of the former, threats were made against his life.
2d. The defendant, when arrested, made conflicting statements as to the whereabouts of his gun.
3d. One barrel of the gun, when found, at eleven o'clock, a. m., on the day after the shooting, appeared to have been recently fired—within the preceding twelve hours.
4th. The shot which lodged in the person of Tillory and in the banisters of his house, corresponded in size with those drawn from the loaded barrel of his gun.
The jury found the defendant guilty. He moved for a new trial upon the following grounds, to wit:
1st. Because the verdict was contrary to law and evidence.
2d. Because the court erred in admitting the opinion of the witness, J. J. Bush, as to the time which had elapsed since the gun had been discharged, accompanied by the facts upon which he based such opinion, he having also stated that he had been familiar with the use of guns all his life.
3d. Because the court erred in admitting the testimony of James J. Mayo, to the effect that the shot drawn from the loaded barrel of the gun on the day after the shooting corresponded in size with those found in the person of Tillory *and in the banisters of his house, the witness having compared them.
4th. Because the court erred in rejecting the testimony of Joe Smith, to the effect that one Frank Knighton had confessed the crime of shooting Tillory.
5th. Because the court erred in refusing to charge, "that in cases of circumstantial evidence, the facts proved to connect the prisoner with the crime, must all be proved by positive testimony; there must be no dispute about the facts.
6th. Because the court erred, when the jury returned and asked to be re-charged as to what circumstantial and positive evidence were, in instructing them as follows, to wit:
7th. Because the court erred in not telling the jury what circumstantial evidence was, except by reading section 3747, et seq., of the Code.
8th. Because the court erred in this: after charging each of the three following requests of the defendant, in stating that it had already given this in charge, and now gave it again; and after reading the last of the three requests to the jury, in stating that they contained the same principle of law:
1st. "The question in this case is not whether it is more probable that the defendant committed this crime than any other person, but whether the circumstances given in evidence are sufficient to satisfy the jury, beyond a reasonable doubt, that the prisoner committed the crime?
2d. "It is the duty of the jury to weigh circumstantial evidence with caution and deliberation—to be careful not to draw any inference of the guilt of the defendant from the facts proven, unless such facts, taken and connected together, establish beyond a reasonable doubt the defendant\'s guilt.
*3d. "If the jury, after examining all the evidence, have a reasonable doubt whether this crime was committed by the defendant, or by some other person, it is the duty of the jury to give the defendant the benefit of that doubt."
The court erred in making any comments whatever on said requests to charge, and also in making the particular comments it did, especially as it,...
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