Burns v. State

• Citation: 15 S.E. 748,89 Ga. 527
• Parties: Burns v. State.
• Decision Date: 23 August 1892
• Court: Georgia Supreme Court

15 S.E. 748

89 Ga. 527

Burns

v.State.

Supreme Court of Georgia.

Aug. 23, 1892.

Criminal Law—Competency op Juror — Relationship — Applause — Oral Instructions — Statement of Prisoner — Fear — Perjury — Excuse—Credibility of Witness.

1. Marriage relates the husband to the wife's kindred, but does not relate any of his kindred to hers. Consequently, a man whose brother had married the prisoner's sister was not, for that reason, incompetent as a juror to try the prisoner for an offense.

2. "Where, during the argument of the state's counsel in a capital case, some of the spectators made demonstrations of approval, which were not distinctly heard by the presiding judge, and of which he did not know the import, and his attention was not called to the same by counsel, or otherwise, until after the jury had retired, his failure to reprimand the disorderly persons, or to take any official action touching the matter, is no cause for a new trial.

3. It is no failure to comply with a request to charge the jury in writing for the judge, instead of copying into his charge sections of the Code which he submits to the jury, to read these sections verbatim from the Code itself, noting accurately in his written charge the sections so read; but it is error for him to instruct the jury orally as to the form of their verdict, instead of writing out and reading such instructions as a part of the written charge given. The request to charge in writing covers all final in structions to the jury touching their action upon the case.

4. In charging on the prisoner's statement, the court should instruct the jury that they may believe it in preference to the sworn testimony, as laid down in section 4037 of the Code.

5. According to section 4303 of the Code, in order for duress or fear, produced by threats or menaces, to be a valid, legal excuse for doing anything which would otherwise be criminal, the act must have been done under such threats or menaces as show that life or member was in danger, or that there was reasonable cause to believe, and actual belief, that there was such danger. The danger must not be one of future violence, but of present and immediate violence, at the time of the commission of the forbidden act. Thus, where the forbidden act is perjury by a witness at a coroner's inquest, the danger of death or dismemberment at some future time, in the absence of all danger at the time of testifying, will not excuse. In so far as the case of Williams v. State, 69 Ga. 11, conflicts with this holding, the decision then pronounced is modified.

6. Though fear of future violence to life or member will not justify or excuse, it may afford a moral explanation of perjury, sufficient to account to the jury for false testimony; and, where the explanation is satisfactory to them, the witness may be believed, with or without corroborating circumstances or supporting evidence, though he or she admits the falsehood of the testimony formerly given, and now deposes directly to the contrary of that testimony. McCoy v. State, 3 S. E. Rep. 768, 78 Ga. 490, affirmed.

7. A person who aids and assists in the commission of a crime, or in measures taken to conceal it, and protect the criminal, is not relieved from criminality as an accomplice on account of fear excited by threats or menaces, unless the danger be to life or member, nor unless that danger be present and immediate, as above announced touching fear under the influence of which perjury is committed.

(Syllabus by the Court.)

Error from superior court, Lumpkin county; C.J. Wellborn, Judge.

Martin L. Burns, having been convicted for murder, brings error. Reversed.

The following is the official report:

Burns was tried for the murder of Bear-den and was convicted. The principal witness against him was his stepmother, Mrs. Burns. She was the only witness who professed to have seen the killing, and it is to her evidence that most of the grounds of the motion for new trial, hereafter to be stated, refer. The motion for new trial was overruled, and to this the defendant excepted. In addition to the usual grounds of the motion, that the verdict was contrary to law, evidence, etc., it was insisted therein that the defendant did not have a fair and impartial trial, in that, when the state's counsel had reached the conclusion of the concluding argument, and just as he had finished an appeal to the jury to visit upon the defendant the extreme penalty of the law, one Burt, a relation of the deceased, and a minister of the gospel, and Milhollin, one of the state's witnesses, united in saying, in an audible voice, and in the hearing of the court and jury, " Amen ! Amen!" The...