Fussell v. State

• Decision Date: 24 October 1893
• Citation: 21 S.E. 97,93 Ga. 450
• Parties: FUSSELL . v. STATE.
• Court: Georgia Supreme Court

21 S.E. 97

93 Ga. 450

FUSSELL .

v.STATE.

Supreme Court of Georgia.

Oct. 24, 1893.

Criminal Prosecution — Impeachment of Witness—Delay in Prosecution—Explanation— Contradictory Statements—Instructions.

1. It appearing that the defense sought to draw from the fact that the prosecutor had delayed the prosecution for several months an inference unfavorable to him as a witness, there was no error in allowing him to testify that the prosecution had been thus delayed as the result of a consultation between himself and the solicitor general and another person.

2. There was no error in allowing a witness to testify to a confession which he swears was made by the accused to a third person in the dark, although the witness stated he did not see the accused, but only knew him by his voice. The testimony is admissible, its probative value being a question for the jury.

3. A witness impeached by proof of contradictory statements cannot be sustained by proof of his own declarations, consistent with his evidence at the trial, made at other times and places, whether prior or subsequent to the time of making the contradictory statements imputed to him.

4. Where evidence for the accused tends to impeach more than one of the state's witnesses, the charge of the court on the subject of impeachment should not be restricted to one witness only, but should be broad enough to embrace all to which the evidence applies.

5. Except as to points herein specifically ruled, there was no error.

(Syllabus by the Court.)

Error from superior court, Irwin county; J. L. Sweat, Judge.

Dan Fussell was convicted of arson, and brings error. Reversed.

The following is the official report:

Dan Fussell was convicted of arson, and his motion for a new trial was overruled. The state proved by Lewis Mobley that the store-bouse of Mobley & Mitchell was burned, and that he saw defendant strike a match and set the house on lire. There was other testimony to the effect that the defendant voluntarily admitted that he had done the burning. It also appeared that when he was prosecuted for this offense he left the place, and was brought back from another county. The defense introduced testimony to impeach Lewis Mobley, by proof of contradictory statements, which was met by testimony tending to support his credibility.

The first special ground for new trial is that the court, over objection, allowed Lewis Mobley to testify that he consulted T. D. Wilcox and the solicitor general about the case after the burning, and, as a result of the conversation, delayed the prosecution of the defendant; the objection being that this was irrelevant and illegal. It appeared that the burning took place in December, 1889, and that the indictment was found at the next April term of the superior court. It seems from the testimony of Mobley, on cross-examination, that he was asked questions concerning his waiting from December to April to prosecute the defendant, etc.

Over objection, the court allowed Alex Mobley to testify that he never saw Lewis Mobley the night of the burning, the objection being that this was irrelevant and illegal.

Jonas Pearson testified that he heard the defendant (who was his cousin) make a statement about this burning to Carrie Chambers. He said he did the work; that he was offered so much, but only got three dollars and a half a gallon of whisky; that he did the burning of Lewis Mobley's store; and that he was at Pearson's Station "on the scout" from that burning. On cross-examination he testified: "I passed by Dan [defendant] and Carrie Chambers, where they were talking. * * * I waited there about a minute. I don't know how long it had been up to that time since I had seen Dan. It had been four or five years. I did not speak to him. * * * I never went to shake hands with my cousin Dan. I did not really know who he was. I only recognized his voice. They were not by the firelight. They were off in the dark. * * * Q. When did you find out that it was Dan Fussell talking that night? A. On Sunday morning, about eight o'clock. * * * He was talking to Carrie Chambers. * * * He and Carrie were standing there talking, and after he left * * * Carrie Chambers says, 'Did you know that man? You ought to know him. That is Dan Fussell.' She says, 'Didn't you know him last night, when you passed him?' I says: 'I recognized his voice. I did not know his face. I could not see his face.' " The defendant moved the court to exclude from the jury what the witness had testified he heard the defendant say to Carrie Chambers about the burning, upon the ground that the witness derived his knowledge as to the person who made the statement from hearsay evidence, to wit, what Carrie Chambers told him the next morning. The motion was overruled.

Over objection, the court allowed Julia Graham to testify for the state: "I was hallooing and taking on about the burning, and Lewis Mobley said: 'Hush. I know who burnt it. Dan Fussell burnt it' We were going to the house when Lewis told me that." And Mary Mobley to testify: "On night of burning, Lewis Mobley had a conversation with me and my brother George. He told George to go home and put on his clothes, and go hunt up Dan Fussell, and kill him, because he saw him set the house on fire. When we got back to the house, George was gone." And Robert Mobley to testify that, next day after the burning, Lewis went to his house, and told him that Dan Fussell had burnt his house down, —burnt his store; that he saw him; that the reason he did not run onto him was because he had a gun, and the man that would do such business as that would kill a man. The objection was that this was hearsay and illegal testimony. It seems to have been offered and admitted in answer to testimony tending to prove contradictory statements by Lewis Mobley. After it had been before the jury for about a day, the court on excluding similar testimony offered by the state, said: "Gentlemen of the jury, the court instructs you that all such testimony as may have been admitted here before you, offered by the state, showing statements made, not at the scene of the burning, and not at the time and place where the defense has introduced proof that he made contradictory statements, the court instructs you that such testimony Is ruled out and excluded from your consideration, and you are not authorized to consider it" The motion for new trial assigns error upon the admission of the testimony objected to, and alleges that this ruling and instruction of the court to the jury were error, and that such instruction was not sufficient to dissipate the effect produced on the minds of the jury by the illegal testimony.

The court, in charging the jury, gave this further instruction: "In this case, gentlemen of the jury, in reference to this matter of Impeachment, the court desires again to call the attention of the jury, at this time, to the fact that, when an effort has been made to impeach a witness by proof of contradictory statements made by him, that you only are to consider such testimony as was not ruled out by the court and excluded from your consideration, or such evidence offered by the prosecution to sustain such witnesses as went to show, or tended to show, that at the scene of the burning, at that time and place, the witness in fact did not make the conflicting statement disputed by him, and the fact that he made such statement at that time were considered withhis testimony before you. But, In reference to their showing contradictory statements marie by him at any other time and place, that only so far as his testimony shows, at those...