Epps v. The State Of Ga.
| Decision Date | 30 September 1853 |
| Docket Number | No. 24.,24. |
| Parties | John Epps, plaintiff in error. vs. The State of Georgia. |
| Court | Georgia Supreme Court |
Indictment for murder, in Clark Superior Court. Tried before Judge Jackson, August Term, 1855.
Defendant moved for a new trial in this stated case, on the following grounds:
1st. That the Court allowed the two triors, being Jurymen sworn to try the cause, to take out Benjamin Jones and other persons who were declared incompetent to try the case, and to converse with said persons in private.
2d. That the Judge said, in presence of a full panel of Jurors, that it was a strange thing that a man should have a decided opinion without having heard the testimony in the case.
3d. That the Court erred in his charge to the triors in the case of John Hawkins, a Juror who stated, in answer to question, that his opinion was now fixed and decided, provided the reports are true; that he had heard that the defendant had shot his father at his own house, and his opinion was, that he ought to be hung, and that he would give the defendant a fair trial. As to this Juror, prisoner's Counsel requested the Court to charge the triors, in arriving at the influence of a previously expressed opinion on the mind of a Juror, the triors must judge for themselves, from the opinion expressed, and their knowledge of human nature, and not from whatthe Juror, himself, may say as to its influence upon his mind; which charge the Court declined to give. Second. That the fact that the Juror formed his opinion from a portion, only, of the facts, is no reason why he is competent, provided his opinion is fixed. Upon which last request the Court charged, that an opinion, to disqualify, must be based on some of the facts or circumstances; and that the triors were to judge from the portion of the facts which the Juror heard, whether or not his opinion could deter him from giving the prisoner a fair trial.
The triors returned the Juror competent, and the prisoner challenged him.
4th. That the Court erred in reference to Frances M. Blackman, a Juror who was put on triors, and being understood to answer that he had formed and expressed a decided opinion, was sit down for cause by Mr. Cobb, prisoner's Counsel, as many other Jurors, giving similar answers, had been sit down, by a kind of tacit consent with Solicitor General. The Solicitor General then announced that the panel was exhausted; the Clerk stated that there were only three others on the new panel, when the Court said he was informed that Mr. Blackman was misunderstood in his answer; that he had answered he had formed no opinion whatever; whereas, he had been understood to answer that he had formed and expressed a decided opinion. The Court placed him again on the triors, and he was pronounced competent, and was challenged by prisoner.
5th. That the Court erred, after the Solicitor General had asked the first question of Sanford Roberts, one of the State's witnesses, in taking the examination of said witness out of the hands of the Solicitor General and examining said witness himself.
6th. That the Court erred in declining to charge the Jury as requested in the words requested (in writing); that is "that in a case where there is but one witness to the immediate facts of the killing, as in this case, then the previouspeaceable and good character of the prisoner is, of itself, sufficient to raise a reasonable doubt of his guilt.
7th. That the Court erred in charging the Jury, that if the prisoner went to the house of the deceased with the intention of killing him, and broke down the door for the purpose of killing him; and in breaking down the door, the gun went off accidentally and killed deceased, the prisoner is guilty of murder; whereas, there was no evidence to warrant such charge. Because James Dee, one of the Jurors who tried the cause, was not a competent Juror, not having resided in said county but four months before the trial; which fact was unknown to the prisoner and his Counsel, until after said Juror was sworn to try the case.
9th. That Joseph M. Williams conversed with William Wood and another Juror, in the Court house, after they were sworn as Jurors to try the case.
10th. That John C. Benedict, one of the Jurors who tried said case, who was put upon triors, and denied before them having ever formed or expressed any opinion as to this case, and was by them decided to be competent, had previously formed and expressed a decided opinion, unfavorable to the prisoner; which fact was unknown to the prisoner or his Counsel until after the verdict was rendered in said case.
In support of the motion, the following affidavits were filed:
Georgia, Clarke County:
Personally appeared, Anderson W. Reese, who being duly sworn, says, that after a portion of the Jury were sworn in the case of The State vs. John Epps, on his trial for murder in Clark Superior Court, at August Term, 1855, he, deponent, saw persons conversing with the Jury; and more especially did he see Joseph M. Williams of said county, holding such conversation with William Wood, one of said Jury.
ANDERSON W. REESE.
Sworn to and subscribed before me, in open Court, August 30, 1855. John Calvin Johnson,
Clerk S. C. Clarke County, Georgia.
The State.
vs.
John Epps.
Murder.
Personally appeared, in open Court, Thomas R. R. Cobb, Howell Cobb, William H. Hull and C. Peeples, Counsel for defendant, who being duly sworn, saith, at the trial, James Dee was taken and sworn as a Juror in the above case; they were not aware of the fact that the said Dee had resided in this county only four months; that he was put upon triors at the instance of defendant, and found competent.
C. PEEPLES.
Sworn and subscribed in open Court, August 20th, 1855.
Asa M. Jackson,
Ordinary Clarke County, Georgia.
Sworn and subscribed in open Court, August 20th, 1855.
John Calvin Johnson,
Clerk S. C. Clarke County, Georgia.
The State vs. John Epps.
In open Court appeared John Epps, who, on oath, saith that he was not aware that James Dee was not a citizen of this county; and consequently, not qualified to act as a Juror, until after the verdict was returned by the Jury.
JOHN EPPS.
Sworn to and subscribed before me, August 20th, 1855.
Asa M. Jackson,
Ordinary Clarke County, Georgia.
Georgia, Clarke County:
Personally appeared, James Dee, who, on oath, saith that he has been a citizen of this county only four months; that he was one of the Jury that tried the case of The State vs. John Epps, murder; that he formerly resided in this county and had his family here; that in the month of March, 1854, he moved away from this county, with the intention to remain, and carried his family with him; that his family, up to this time, remained away, and that he returned to this county to reside about four months ago; that he did not state these facts when sworn as a Juror. JAMES DEE.
Sworn and subscribed before me this 20th of August, 1855.
John Calvin Johnson,
Clerk S. C. Clarke County, Georgia.
John Epps.
Indictment for Murder in Clarke Superior Court.
Personally appeared, in open Court, the defendant, John Epps, who, on oath, saith that he was not aware that John C. Benedict, one of the Jurors who sat on said case, had ever expressed any opinion with reference to this case, until he was sworn as a Juror in this case; that said Benedict was put upon triors by defendant, and before them denied having ever formed or expressed any opinion with regard to the case, and was declared by them to be competent, and was then accepted by defendant. JOHN EPPS.
Sworn to and subscribed before me, this 20th Aug. 1855.
John Calvin Johnson,
Clerk S. C. Clarke Co., Georgia.
State of Georgia, Clarke County:
Personally appeared before me, John Calvin Johnson, Cl'k Superior Court of said County, Francis W. Winfrey, who, being duly sworn, deposeth and saith, that in the months of May, June and July of the present year, he, as often as six times (and he thinks oftener), heard John C. Benedict, a Juror in the case of The State vs. John Epps, murder, say "that if he ever should be on the Jury, he would hang John Epps, and that he ought to be hung."
F. W. WINFREY.
Sworn to and subscribed before me 8th day of Sept. 1855.
John Calvin Johnson,
Clerk S. C. Clarke Co.
Georgia, Clarke County:
Walton H. Booth, of the County and State aforesaid, personally before me, on oath, says, that William Wood, one of the Jurors on the trial of John Epps, in Clarke Superior Court, at August Term, 1855, frequently said in his presence, shortly after the death of Thomas N. Epps, that if he was on the Jury for the trial of said John Epps, that he would go for hanging him, and would stay on the Jury until he "growed" to the bench, and that the said John Epps ought to be hung without a Jury. WALTON H. BOOTH.
Sworn and subscribed before me 8th Sept. 1855.
John Calvin Johnson,
Clerk S. C. Clarke Co.
Georgia, Clarke County:
Personally appeared Wilson Lumpkin Biggs, who, on oath, saith that he heard John C. Benedict, about three months ago, say "that John Epps, the prisoner, ought to be hung; that if Epps was not hung, no man ought to be hung."
his
WILSON LUMPKIN X BIGGS.
mark.
Sworn to and subscribed before me this 20th Aug. 1855.
John Calvin Johnson,
Clerk S. C. Clarke Co.
In over-ruling the motion for a new trial, the Court took up the several grounds seriatim, and disposed of them as follows:
In regard to the 1st ground, the Court said that he allowed the triors (at first not Jurymen) to retire with the Juror upon his trial, under a practice recommended by the Supreme Court itself, after the Juror, upon trial, was asked such question as the defendant\'s Counsel and the...
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