Carr v. State

• Decision Date: 06 April 1886
• Citation: 76 Ga. 592
• Parties: CARR v. THE STATE OF GEORGIA.
• Court: Georgia Supreme Court

76 Ga. 592

CARR v. THE STATE OF GEORGIA.

Supreme Court of Georgia.

April 6, 1886

March Term, 1886.

1. Under the act of 1878 (p. 34), the clerk of the superior court and ordinary were members of the board of jury commissioners, and, therefore, were required to certify the lists of grand and traverse jurors; but upon the passage of the act of 1879 (p. 29), they ceased to be so, and the clerk of the superior court was made the clerk of the board of jury commissioners, and was required to perform all the clerical duties required by law to be performed. Thus he becomes the ministerial officer of the board, and is not required to sign the certificate of the names in the respective jury-boxes but merely to transcribe them into the book required and to deposit it in his office; and a list certified by the jury commissioners is sufficient.

2. Where, on the trial of a defendant charged with assault with intent to murder, one of the jurors was put upon the defendant by the state, and after defendant's counsel had occupied a minute and a half in consultation, the court ordered the juror to be sworn, and no objection or protest thereto was made by the defendant or his counsel nor further time asked, this furnished no ground for a new trial although the defendant's counsel had not consumed, on an average, one minute in passing on each juror.

( a. ) Whether the 41st common law rule (Code, p 1351), providing that, in striking juries, not more than one minute shall be allowed to either party for each strike applies to felonies, where juries are not selected by what is commonly understood by the term striking, but more formally and deliberately by putting each juror upon his voire dire to test his competency, and it found competent, allowing the state to challenge him peremptorily or accept him and put him upon the prisoner, who, in turn, may challenge or accept him. Quæ re?

( b. ) In such a case, reasonable time should be given to the defendant to make his choice, but after the lapse of such time as the judge may consider reasonable, the presiding judge should act in the matter; and if more time is desired, he should be notified of the fact and asked for indulgence. He is not bound by any unbending rule, but even after ordering the juror to be sworn, he might revoke his order and allow the defendant to object, or make such other disposition of the juror as would be proper under the law, upon application for that purpose.

( c. ) Discretion in regulating and controlling the business of the court is necessarily confided to the judge; and this court should never interfere with its exercise unless it is made to appear that wrong or oppression has resulted from its abuse.

3. What a disinterested by-stander, who witnesses the conflict going on between the defendant and the party assailed, may say during the heat of the engagement, is not admissible in evidence, especially when the declaration amounts to nothing more than the declarant's opinion as to the defendant's motive or purpose for engaging in and prosecuting the fight. Such a declaration is no part of the res gestæ , and such statements of impressions could not generally be testified to even by a witness, at least without stating the facts on which such inpressions were founded.

4. No other exceptions were insisted on in this court.

Jury and Jurors. Criminal Law. Practice in Superior Court. Evidence. Res Gestæ . Before Judge LUMPKIN. Hancock Superior Court. October Term, 1885.

John Carr was indicted for assault with intent to murder and was found guilty. He moved for a new trial on the grounds which are substantially set out in the decision.

The motion was overruled, and he excepted.

C. W. DUBOSE; JORDAN & LEWIS, for plaintiff in error.

W. M. HOWARD, solicitor general, by brief, for the state.

HALL Justice.

1. On being arraigned, the defendant pleaded specially that the bill of indictment was found by grand jurors whose names did not appear on the list certified, as required, by the clerk of the superior court and ordinary, although it was certified properly by the jury commissioners. This plea was overruled, and this forms the first exception to the judge's decisions insisted on in this court.

By the 4th section of the jury act, approved December 16th, 1878 the clerk of the superior court is required to make out in a book lists of the names respectively contained in the grand jury-box and in the traverse jury box, alphabetically arranged, and place said book in his office after the lists therein have been certified by the ordinary, clerk and commissioners to contain respectively all the names placed in said jury boxes. (Acts, p. 34). The reason for requiring these lists to be...