Fogarty v. The State Of Ga.

• Decision Date: 31 March 1888
• Citation: 80 Ga. 450
• Parties: Fogarty. vs. The State of Georgia.
• Court: Georgia Supreme Court

80 Ga. 450

Fogarty. vs. The State of Georgia.

Supreme Court of the State of Georgia

MARCH TERM, 1888.

[COPYRIGHT MATERIAL OMITTED]

Continuance. Jury and jurors. Insanity. Pleadings. Charge of court. Trior. Voir dire. Practice. Newly, discovered evidence. Punishment. Criminal law. Before Judge Adams. Chatham superior court. June term, 1887.

Reported in the decision.

Garrard & Meldrim and P. J. O'Connor, for plaintiff in error.

F. G. duBignon, solicitor-general, for the State.

Simmons, Justice.

Fogarty was indicted in the superior court of Chatham county for an assault with intent to murder; to which indictment he pleaded not guilty. On the trial of the case the jury found a verdict of guilty; whereupon he made a motion for a new trial, upon forty-two grounds, which was overruled, and he excepted.

1. The first three grounds may be considered together. The 1st is, that the court held that an affidavit for a continuance should be made by the defendant himself; the 2d ground is, that the court held that when the affidavit for a continuance was made by another person than the de-fendant, the truth of the facts therein should be shown by other testimony; that the affidavit of itself was insufficient; and the 3d ground is that the court erred in refusing to continue the case on account of the absence of Burns, a witness for the defendant. We think the court was right in all of the three rulings complained of. When a person accused of crime seeks the continuance of his case, and does not wish to be subjected to cross-examination as to the grounds of the continuance, under our view of the law, he must make the affidavit himself. He is the only person who can absolutely swear to the truth of the grounds. While other persons might testify that the witness has been subpoenaed, and as to the materiality of his testimony, the defendant alone can testify as to whether the witness is absent by his procurement or consent, or that the motion is not made for the purpose of delay only. If, therefore, any other person undertakes to swear to these grounds, or to the grounds of the motion generally, we think that counsel for the State has a right to cross-examine him as to the truth of the grounds set out in his affidavit. There is no reason shown in the record why this defendant could not have made this affidavit. No plea was filed by him that he was insane at the time of the trial. The issue insisted on all through the trial, and which nearly all of the defendant\'s testimony sought to establish, was that he was insane at the time he committed the act—not at the time of the trial.

2. The court also did right in refusing to continue the case on account of the absence of the witness Burns. It was insisted by the defendant that he could prove by Burns that he had epileptic fits on divers and sundry occasions. It was not contended that the fact of his having those fits in numerous other instances could not be established by other witnesses. Indeed, the record shows that numerous witnesses testified as to his epilepsy. The State did not seek to combat this, and did not offer any witnesses to show that the defendant was not afflicted with this dis-ease. It was established by the defendant beyond all controversy, by numerous witnesses. We do not think, therefore, that the case should have been continued because of the absence of one witness who would have testified to seeing the defendant have fits upon occasions other than those testified to by other witnesses. While, generally, the defendant in a criminal case has the right to select the witnesses he desires to introduce, he has no right to continue his case where the issue is not combatted by the State and he can establish the fact by numerous other witnesses. Griffin vs. The State, 26 Ga. 501.

3. The 4th ground of the motion is, in substance, that the court refused to instruct the jury "that each juror should decide for himself, upon his oath, what his verdict should be, and that no juror should yield his deliberate conscientious convictions as to what his verdict should be, either at the instance of a fellow-juror or of the majority; and that no juror should yield his honest convictions for the sake of unanimity or to avert the disaster of a mistrial." We think the court's charge was sufficient upon this question when he charged the jury that " each juror should decide for himself, upon his oath, as to what his verdict should be, " if indeed he should have instructed the jury upon that subject at all. The jurors are supposed to be intelligent, conscientious men; each takes the oath prescribed by law, " that he will give a true verdict according to the evidence "; and he is presumed to understand the nature and effect of his obligation. Whether he can conscientiously yield his judgment to that of his fellow-jurors, is a question he must decide for himself. The charge requested was a virtual bid for a mistrial; for the effect would be to impress upon an obstinate juror never to yield to the argument or reasoning of his fellow-jurors. The daily experience of our lives shows that such a charge would be erroneous. How often are the fixed and conscientious convictions of a sensible man changed by reason and argument. How foolish and absurd does a man ap-pear when he announces that he never changes his opinions or convictions. The man who is willing to change his opinions and convictions upon reason and argument is the really reasonable man. This is so in the ordinary transactions of life; it is true as to courts, it is true as to jurors, and is true as to legislators.

This court, in the case of Smith vs. The State, 63 Ga. 170, held that "the jury are to act as a body, and should be charged as a body. The individual jurors are not to be addressed in the charge in a way to discourage mental harmony and concert. It is not incumbent upon the court to stimulate their individuality by charging at the prisoner's written request, 'that each juror must be satisfied for himself, from the evidence, of the guilt of the defendant, before he can lawfully agree to a verdict of guilty.'" We do not think, therefore, that the court erred in refusing the request set out in this ground of the motion.

4. The 5th, 6th, 7th, 8th, 10th, 11th, 12th, 13th and 14th grounds are as follows:

" 5th. Because the court erred in refusing to give in charge to the jury the following written request: ' The defendant should be acquitted unless the jury are satisfied beyond a reasonable doubt that the assault was not produced by mental disease.'

" 6th. Because the court erred in refusing to give in charge to the jury the following written request: ' If the defendant commit an assault, knowing it to be wrong, when driven to it by an uncontrollable and irresistible impulse, arising not from natural passion but from an unsound condition of mind, he is not criminally responsible.'

" 7th. Because the court erred in refusing to give in charge to the jury the following written request: 'You must be satisfied beyond a reasonable doubt of the defendant's mental capacity to commit the crime charged.'

" 8th. Because the court erred in refusing to give in charge to the jury the following written request: ' If from the evidence in the case a reasonable doubt arises in yourminds as to the sanity or insanity of the defendant, he is entitled to the benefit of that doubt.\'

" 10th. Because the court erred in refusing to give in charge to the jury the following written request: ' Though a total want of responsibility on account of insanity be not shown, yet if the prisoner's mind was so far affected as to render him incapable of a deliberate premeditated assault with intent to murder, he cannot be convicted of assault with intent to murder.'

" 11th. Because the court erred in refusing to give in charge to the jury the following written request: ' If you have any reasonable doubt that he was, at the time of the committing the alleged assault, of sound memory and discretion, it is your duty to give him the benefit of that doubt and acquit him.'

"12th. Because the court erred in refusing to give in charge to the jury the following written request: ' If you find that the defendant is subject to fits of insanity, he may not inaptly be called an insane man.'

" 13th. Because the court erred in refusing to give in charge to the jury the following written request: 'You may consider the mental and moral condition of the prisoner at the time of the alleged assault, for the purpose of determining whether or not he was capable of forming the deliberate intention unlawfully to take away the life of a fellow-creature. If you find from his condition, or from external circumstances capable of proof, that he was unable to form that deliberate intention, then there can be no express malice; and if you have a reasonable doubt of the existence of that deliberate intention, you are to give the benefit of that doubt to the prisoner.'

"14th. Because the court erred in refusing to give in charge to the jury the following written request: ' You cannot imply malice unless you find that no considerable provocation appears, and in addition thereto, that all the circumstances of the assault show an abandoned and malignant heart. If the assault can be attributed by you tohis mental or moral nature, and if you find that his mental and moral condition is the result of epilepsy, then you should attribute it to that, rather than to an abandoned and malignant heart; because if you can give to an act one of two constructions, the one in favor of the prisoner\'s innocence is the one that ought to be adopted.\' "

The able and learned counsel for the plaintiff in error asked leave of this court to review our former rulings on the subject of these requests. We declined, pending his argument, to allow him to do so, stating that if upon consultation, we saw reason to doubt the soundness of the rulings he sought to review, we would allow him to review them in further argument. We...