Cornwall v. State

• Decision Date: 20 February 1893
• Citation: 91 Ga. 277,18 S.E. 154
• Parties: CORNWALL . v. STATE.
• Court: Georgia Supreme Court

18 S.E. 154

91 Ga. 277

CORNWALL .

v.STATE.

Supreme Court of Georgia.

Feb. 20, 1893.

Burglary—Articles Stolen as Evidence—Con-ff.ssions—Instructions —Impeaching Verdict by Jurors —Competency and Conduct of Jurors.

1. There was no error in admitting in evidence the bag which contained the silver when stolen from the broken building, and which bag was afterwards found in the prisoner's possession; and, though the tools admitted in evidence were new ones, and had not been used, this did not exclude them, there being evidence of the prisoner's admission that he had thrown away or concealed the tools used in the burglarious enterprise, and also evidence tending to show that the new ones were adapted to a like use as well as many other uses.

2. The bag in which silver money was when taken from a safe in the burglarized building, though of little or no value in itself, is such an article of property as the rule with reference to accounting for the possession of stolen goods applies to, this bag having been found in the prisoner's possession within four days after the burglary was committed.

3. A detective having arrested the accused, and being about to turn him over to other custodians, told him he knew where he came from, and what he had done, which was false, and said to him privately: "When I turn you over to these people you have my handcuffs on, and if you get away I want you to send my handcuffs back. If you get away you may need this money, " giving him two dollars, —admissions in the nature of a confession which followed immediately without other inducement than this were admissible in evidence; nor would the fact that the confession was indirect, rather than direct, render it inadmissible.

4. The jury may consider a confession if it was freely and voluntarily made, though the detective to whom it was made used artifice trick, or deception in order to impose on the accused, and induce him to confide in his good will and friendly feeling.

5. None of the witnesses who testified in the case being impeached by evidence introduced for that purpose, it was not error to charge the jury thus: "The law presumes all witnesses who testify under oath are credible and worthy of belief. The law presumes prima facie that no witness will willfully, knowingly, and absolutely swear to what is false. The law does not impute perjury to a witness, nor are you at liberty to do so. The law presumes that a witness will not testify falsely; that is a prima facie presumption only; it is not a conclusive presumption. The defendant is permitted by law to make a statement in his own behalf not under oath, and it is your right and duty to weigh and consider that statement. The law says that you may believe that statement in preference to the sworn evidence in the case. If you believe it, then you may accept the unsworn statement of the defendant in preference to the sworn evidence. Not capriciously and arbitrarily, but in search of the truth, you have a right to believe it in preference to the sworn evidence. There is no presumption touching the defendant's statement, no presumption that it is true, nor any presumption that it is untrue. In other words, it goes to you without presumption either for it or against it."

6. It was not error to charge the jury thus: "There are two kinds of evidence known to the law: one known as 'direct evidence, '—that is, that which immediately points to the question in issue. There is also known to the law indirect or circumstantial evidence; that is, that which only tends to establish the issue by proof of various facts sustaining by their consistency the hypothesis claimed. If you find there is no sufficient positive evidence to authorize a conviction in this case, then ascertain whether or not there is sufficient circumstantial evidence to authorize a conviction. If you find the evidence acceptable to you is of a circumstantial character only, then determine whether that evidence removes all reasonable doubts of the defendant's guilt. When testimony relied on to convict is entirely circumstantial it should be so strong as to exclude every reasonable hypothesis save that of the defendant's guilt. It must be sufficient to remove all reasonable doubt. If there is no reasonable hypothesis upon which it could be placed, that would remove any reasonable doubt, if there is a reasonable doubt. But whether the testimony be positive or circumstantial, if it removes from the mind of the jury all such reasonable doubt, it would be sufficient to authorize a conviction. If you

i find from the evidence in the case, whether positive or circumstantial, that it is sufficient I to remove all reasonable doubt of the defend-> ant's guilt, then evidence of either character— ' if it removes from your mind all reasonable doubt—would legally authorize a conviction: "

7. Though it was not accurate to charg* the jury thus: "And if you find there was a burglary committed, and that goods were stolen from the house burglarized, and the defendant was found in possession of such articles under

[ such circumstances as to make it incumbent on him to show that he obtained the articles hnu-estly and legally, and he does not do so, then you would be authorized to find him guilty on that proof, "—yet this inaccuracy is no cause for a new trial in the present case, the evidence as a whole showing beyond any reasonable doubt that the verdict was correct.

8. Jurors will not he heard to establish facts which go or tend to impeach the verdict which they have united with their fellow jurors in rendering.

9. Where the expression imputed by one witness to a juror as made by him before the trial was, "If they take me on the jury in thatburglary I will convict them fellows sure, " and by another, "If I am caught on that jury I will convict him sure, " and the juror in explanation testifies that all he said was addressed to one of the prisoner's counsel, and was, "That if the evidence warranted it, he would hang the defendant;" also that he said this without any prejudice whatever against the prisoner, and was rather in hopes that he would be rejected as a juror, there was no error in treating the explanation as sufficient, and in holding that the juror had not rendered himself incompetent. He was most probably endeavoring to evade service as a juror. He testified also that he was perfectly impartial, and only wished the prisoner, who was an entire stranger...