Fussell v. State
| Decision Date | 24 October 1893 |
| Citation | 21 S.E. 97,93 Ga. 450 |
| Parties | FUSSELL v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
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.
Error from superior court, Irwin county; J. L. Sweat, Judge.
Dan Fussell was convicted of arson, and brings error. Reversed.
E. D Graham, for plaintiff in error.
Tom Eason, Sol. Gen., and Hines, Shubrick & Felder, for the State.
1. The arson for which the accused was indicted was committed by burning the storehouse of Mobley & Mitchell, a copartnership. Lewis Mobley, one of the firm, testified that he saw the accused strike a match and set the house on fire. This occurred in December, and it seems that no steps to prosecute were taken until the following April. The court allowed him to explain the delay, and the explanation given was that he had consulted one T. D. Wilcox and the solicitor general, and that the delay was the result of this consultation. There was no error in allowing the witness thus to explain the delay. As he professed to have seen the offense committed, it would naturally raise the inquiry why he had not sued out a warrant at once, and caused the guilty person to be arrested. The direction taken by the cross-examination of the witness indicated that the defense sought to draw from the delay an inference unfavorable to the credibility of the witness. The explanation given would tend to rebut or keep down this inference. For that purpose it was legitimate.
2. The witness Jonas Pearson overheard a conversation between the accused and Carrie Chambers, in which the former admitted that he did the burning, and was paid, for doing it, three dollars, and a half gallon of whisky. The witness recognized the accused by his voice, the conversation being carried on in the dark. The motion to exclude the evidence upon the ground that the witness derived his knowledge as to the person who made the statement from Carrie Chambers, the next morning, was correctly denied, for this motion assumed that the witness, in the course of his cross-examination, receded from his testimony that he recognized the accused by his voice,...
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