Cason v. State

Decision Date13 July 1910
PartiesCASON v. STATE.
CourtGeorgia Supreme Court

(Syllabus by the Court.)

1. Criminal Law (§ 1152*)—Jury (§ 72*)— Impaneling — Talesmen — Discretion of Court—Review.

Under Pen. Code 1895, § 858, if on the trial of a person indicted for felony the jury, cannot be made up from the regular panel of 48, the court shall continue to furnish panels, consisting of such numbers of jurors as the court, in its discretion, may think proper, until a jury is obtained. Unless the court abuses its discretion in regard to the number of jurors in such successive panels, it will furnish no ground for reversal.

(a) Where, after 10 jurors had been selected, the regular panels were exhausted, and the court drew 30 talesmen and directed the sheriff to summon them, and upon 4 of them coming into court they were put upon the defendant as a special panel, and subsequently as others came in they were put upon him one at a time, it does not appear that such a proceeding was an abuse of discretion on the part of the presiding judge.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 3056; Dec. Dig. § 1152;* Jury, Dec. Dig. § 72.*]

2. Criminal Law (§ 918*) — New Trial — Grounds—Irregularities — Preliminary Proceedings.

Where a juror's name appeared on the book containing the jury list as "Sterling Whitfield, " and the man summoned was named "Starling Whitfield, " and the evidence introduced before the judge clearly showed that the two were identical, and that there was a mere error in spelling the juror's first name, it furnished no ground for a new trial that the court held the juror competent and directed the clerk to correct the spelling of the name on the list of jurors drawn.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 918.*]

3. Criminal Law (§ 918*) —New Trial — Grounds — Irregularities — Impaneling Jurors.

Where, after the defendant had exhausted his strikes, a juror was put upon him, accepted, and told to take his seat in the jury box, but at once, and before the juror was sworn, the court stated that he had forgotten to ask if the juror had any excuse, and upon the statement of the latter that he had a pain in his breast, had been sick two or three days, and did not think he was able to serve, and upon observation of his physical condition and appearance as a sick man the court excused him from the jury, this furnished no ground for a new trial, although the defendant's counsel stated that they did not want to be understood as agreeing to excuse the juror. Ozburn v. State, 87 Ga. 173, 13 S. E. 247.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 918.*]

4. Jury (§ 75*)—Impaneling—Competency of Juror.

After the juror had been excused, there was no error in overruling a motion to declare a mistrial on that ground, and proceeding regularly to have the panel completed.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 384-390; Dec. Dig. § 75.*]

5. Criminal Law (§§ 366, 419, 420*)—Homicide (§ 204*)—Evidence—Hearsay—Dying Declarations—Res Gest.e.

Where a person was walking along a street at night, and saw the flash of a pistol, and heard the report, and thereupon went immediately to the place, traversing a distance estimated at about 150 yards, and occupying in going about two minutes of time, and where, on approaching the spot, he saw a man run away in the dark, and, thinking that he recognized the man who had been shot, and who had fallen to the ground, he called the name of such person and asked if it were he, and, on receiving an affirmative answer, asked who had shot him, and the wounded man answered, giving the name of the accused, and died a few minutes later, on a trial of the accused for his murder, there was no error in admitting evidence of the above-stated facts over the objection that the conversation detailed was hearsay, and neither dying declarations nor part of the res gestæ.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 811, 816, 819, 820, 973; Dec. Dig. §§ 366, 419, 420;* Homicide, Cent. Dig. § 438; Dec. Dig. § 204.*]

6. Criminal Law (§ 404*) — Evidence — Admissibility.

The evidence sufficiently identified the pocketbook and warrant claimed to have been found in the pocket of the city marshal, who was killed, so as not to require a new trial on account of their admission in evidence as against an objection that they were not shown to have been in his pocket, or to be the same book and paper in it as those found, and to be unchanged, or that they were irrelevant.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 891; Dec. Dig. § 404.*]

7. Sufficiency of Evidence—Issuance of Warrant.

The evidence for the state made a prima facie showing that the warrant was issued by the city clerk.

8. Criminal Law (§ 430*)—Homicide (§ 338*) — Evidence — Documentary Evidence — Transcript of Ordinance.

A copy of a section of a municipal ordinance, which on its face was complete in itself and declared that it should be unlawful for anyperson to be in a state of intoxication or drunkenness in the city, or to conduct himself openly on the streets or public places like one intoxicated or drunk, and directed that a person should be taken in custody by the marshal at once, if found in such a condition, but should not be tried until sober. It was certified by the city clerk as a "true copy of section 9 of the Ordinance 253 as contained on page 293 of Book of Ordinances of the city of Tallapoosa." This was admitted in evidence, along with evidence tending to show that the accused was drunk, and acting in a drunken manner on the streets, and that the marshal was sent for, and took him into custody. Held, that the transcript was not objectionable, on the ground that the city clerk was not the proper person to certify to the ordinance, or that it was not relevant. Civ. Code 1895, § 5216.

(a) Where it is sought to have the clerk of a municipal corporation certify to a transcript of an ordinance, generally the entire ordinance on the subject in hand should be copied, so that it may be determined what is the effect of the ordinance as a whole. But, under the facts of this case, the admission of the certified transcript of the section authorizing an arrest of one drunk on the streets, along with evidence tending to show that the accused was thus drunk, and killed the marshal who arrested him, will not furnish ground for a reversal.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1019; Dec.'Dig. § 430;2-* Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.*J

9. Criminal Law (§ 218*)"Warrants"—Issuance.

By section 16 of the charter of the city of Tallapoosa (Acts 1888, p. 240) it is provided that "all processes, writs, warrants, subpoenas, or other papers shall be issued by the clerk of council in the name of the mayor of said city, and signed by such clerk; and it shall be the duty of the marshal of said city to serve all such processes, " etc. The "warrants" referred to were warrants for the arrest...

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5 cases
  • Curry v. State
    • United States
    • Georgia Court of Appeals
    • November 20, 1915
    ... ... and no more, and it grants to him a panel of 48 jurors, and ... the right to sever on the trial. If, therefore, he was ... furnished a panel of 48 jurors, as required by the statute, ... and he declined to sever on the trial, he has been deprived ... of no right. See Cason v. State, 134 Ga. 786, 68 S.E ...          We ... think the reasoning of the Supreme Court in that case can ... well be applied to the point under discussion here. It is ... clear to us that counsel for the defendants in this case were ... not entitled, as a matter of right, to more ... ...
  • Green v. State
    • United States
    • Georgia Supreme Court
    • August 18, 1922
    ... ... a prima facie case that he was in the article of death, and ... conscious of his condition when he made the declarations, ... such declarations should be admitted in evidence by the court ... under proper instructions to the jury. Lyens v ... State, 133 Ga. 587, 66 S.E. 792; Cason v ... State, 134 Ga. 786, 68 S.E. 554; Perdue v ... State, 135 Ga. 277, 69 S.E. 184; Barnett v ... State, 136 Ga. 65, 70 S.E. 868; Jefferson v ... State, 137 Ga. 382, 73 S.E. 499. The facts necessary to ... be shown before declarations are admissible as dying ... declarations may ... ...
  • Meyers v. State, (No. 7007.)
    • United States
    • Georgia Supreme Court
    • November 13, 1929
    ...are of the opinion that these grounds of the motion for new trial do not show harmful error as against the defendant. See Cason v. State, 134 Ga. 786, 68 S. E. 554; Woolfolk v. State, 85 Ga. 88, 90, 11 S. E. 814; Kirksey v. State, 11 Ga. App. 142, 74 S. E. 902. The court below, in overrulin......
  • Curry v. State
    • United States
    • Georgia Court of Appeals
    • November 20, 1915
    ...of 48 jurors, as required by the statute, and he declined to sever on the trial, he has been deprived of no right. See Cason v. State, 134 Ga. 786, 68 S. E. 554." We think the reasoning of the Supreme Court in that case can well be applied to the point under discussion here. It is clear to ......
  • Request a trial to view additional results

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