Doyal v. State

• Decision Date: 13 March 1883
• Parties: DOYAL v. THE STATE OF GEORGIA.
• Court: Georgia Supreme Court

70 Ga. 134

DOYAL v. THE STATE OF GEORGIA.

Supreme Court of Georgia.

March 13, 1883

February Term, 1883.

[This case was brought forward from the last term under §4271 (a) of the Code.]

1. Where a city policeman was slain, and the mayor and council employed counsel to prosecute the slayer, this was not alone sufficient to disqualify all grand and traverse jurors residing within the corporate limits from sitting in the case, on the ground that they would be liable to taxation to satisfy the attorneys' fees. Such interest, if it exists at all, is too minute and remote to furnish a ground for challenge.

2. A person over sixty years of age is not a qualified juror; and if the court is apprised of the fact in time, it is his duty to excuse such person. Although one summoned as a juror, and who is over sixty years of age, may not have offered any excuse before the jury was impanelled, yet if, when his name was called in its order on the panel, he made known his age and desired to be excused, there was no error in so doing although the defendant may have exhausted all his challenges but one in order to secure such person on the jury.

3. The provisions of the Code respecting the mode and terms of entering a nolle prosequi in criminal cases are directory and for the protection of the public; a departure from them furnishes no ground of defence to the defendant when arraigned under a subsequent indictment, except when a nolle prosequi has been entered without his consent after the case has been submitted to a jury. In that case, he has been once in jeopardy, and cannot be so placed again. But there is no such plea to an indictment as pendency of a former indictment or autre fois arraign.

( a. ) The act of 1870 is improperly codified with §4649 of the Code of 1873.

4. Where one present at the scene of a homicide, in connection therewith, motioned toward the slayer with a stick, as if indicating flight, and the latter did flee, the person making the motion being in front of the slayer, who was in a situation to have seen him, evidence thereof was admissible.

5. A general character for violence cannot be established by proof of specific acts.

( a. ) A defendant charged with murder can introduce proof that the deceased was a person of violent and turbulent character, only where it is shown prima facie that the prisoner had been assailed and was honestly seeking to defend himself.

( b. ) The evidence being illegal, the court should not have allowed the defendant's counsel to state in the presence of the jury, for any purpose, what he expected to prove in relation to this matter.

6. When taken in connection with preceding explanations of the various grades of manslaughter and of self-defence, contained in the charge, the following charge was substantially correct: " If they found from the evidence that defendant and deceased met, and a rencontre ensued, in which defendant drew a deadly weapon and killed deceased, then whether the defendant was guilty of murder or manslaughter would depend upon their finding of the fact whether the killing was done with malice aforethought or not. If done with malice aforethought, it was murder, if not, it was manslaughter."

7. Nor, when taken in connection with other portions of the charge, was there any error in the following charge: " Before the defendant would be excused, under the law, for killing the deceased, it must appear from the evidence that at the time of the killing the danger was so urgent and pressing, the killing was absolutely necessary to save defendant's life."

8. That pending the selection of a jury in a criminal case, a portion of them already selected were placed in the court room with a bailiff, and outsider came into the room, addressed one or two idle remarks to members of the jury, and on being informed of the impropriety of his presence, at once withdrew, will not necessitate a new trial, it appearing that nothing was said or done relevant to the case or which had any effect thereon.

9. That a bailiff slept in the room with the jury up to the time of the charge of the court, will not require a new trial, where it appeared that he neither conversed with them, nor they conversed among themselves in his presence or hearing about the case.

( a. ) The affidavits show that the jury did not separate and were not out of the bailiff's presence during meal times, and that they saw no one else except the waiters who furnished their meals.

10. Where a defendant in a criminal case was aware of the presence of a witness during a conversation, and took no steps to secure his testimony at the trial, though he was accessible, a discovery after the trial of what such person would testify as to the conversation, is not newly discovered evidence such as will furnish a ground for new trial.

( a. ) The other newly discovered evidence, if competent at all, would only be admissible to impeach a witness sworn on the trial; and such testimony furnishes no ground for a new trial.

11. The verdict is supported by the evidence.

Criminal Law. Practice in Superior Court. Jury. Evidence. Before Judge STEWART. Spalding Superior Court. February Adjourned Term 1882.

Alfred B. Doyal was indicted for the murder of M. A. Hancock. On the trial, the evidence for the state was, in brief, as follows:

Hancock was a policeman in the city of Griffin. Between him and Doyal hostile feelings had existed for some time before the homicide. A week before that occurrence, Hancock had arrested and imprisoned Doyal on the charge of being drunk on the streets. Doyal felt much aggrieved at his treatment, and after being released, complained thereof, and on several occasions threatened that he would kill Hancock. On April 23 1881, Hancock was standing on the street. He was not at the time on duty as a policeman, nor did he have on his uniform nor had he the usual weapons that he carried while on duty. Doyal stepped up to him and said that he was ready to settle " this matter." Hancock responded, " Alf that's all right." Doyal had one hand in his pocket and was gesticulating with the other. He said, " God damn you, I will make it all right," and fired upon Hancock. The latter placed his hands upon his bowels and said, " Alf, you have killed me." The answer was, " God damn you, you can have it again," and Doyal fired a second time. Hancock turned and went to a drug store near by, and as he entered he said to the druggist, " Doctor, I am shot. Pray for me." He was laid upon the floor where he died in a few minutes. After firing the second shot, Doyal crossed the street waving his pistol and saying that he would kill the next man who came on, or making use of some similar expression. Some one said, " " Alf, you had better run," and one Johnson, who was in the street in front of Doyal, motioned with a stick. Thereupon Doyal began to run, and a crowd began to pursue him. After running some distance he stopped, and when the sheriff came up, under order of the latter, he put down the pistol and surrendered himself. He stated that he had four shots yet left in his pistol, and he could kill a man with each one of them, but he did not want to kill anybody but his enemies. Some one stated that Hancock was thought to be dead. Doyal said, " I hope he is. If he is not, I would like to finish it; " also, that he had said he would kill Hancock before Saturday or Sunday night, and he thought he had done it; that he would be willing to hang if he could get another man; that he did not shoot to miss, but knew where he aimed that he could be blindfolded and go in the dark and put his finger in the bullet hole where he intended to hit when he aimed and shot; that the second shot did not miss, but went either through Hancock's coat or his coat sleeve. No weapons were found on the person of the deceased. Before the homicide some one told Hancock of the threats which Doyal had made concerning him, and a fellow policeman advised him to be careful. He replied that he did not desire any advice, and that if Doyal fooled with him he would kill him. Shortly before the homicide, Doyal obtained from a bar-room near the scene of its occurrence a pistol which he had frequently borrowed before, and two or three minutes before the shooting, as he passed down the street, he was heard to use the words, " I will get him."

The evidence on behalf of the defendant was, in brief, as follows: Hancock was a dangerous man. When drinking he was violent and turbulent, but when sober was peaceable. His feelings towards Doyal had been for some time very hostile. A week previous to the shooting, he had locked Doyal in the calaboose, and three or four days before, upon Doyal's speaking to him, he had cursed and abused him, and stated that he would kill him if he (Doyal) spoke to him again. Just before the killing and near the scene thereof, Doyal had a conversation with one or two people. Just after he left Hancock came down and asked what Doyal was talking about. The person addressed replied that it was about a well. Hancock responded, " You know well, he was talking about me." While he was standing there, Doyal came out of a saloon and started across the street. Hancock called him and went towards him. He said that Doyal must take back something that he had said; that he (Hancock) was not then on duty, and it would be man and man. Doyal declined to retract, and started away, Hancock following and saying that it had to be settled. Doyal made some response, and then stopping told Hancock to let him alone. The latter insisted upon a retraction of what had been said, and Doyal declined. Hancock dropped his hand under his coat on or near his hip pocket. Doyal stepped back one or two paces and drew his pistol, Hancock advancing about the same distance. ...