Golden v. The State Of Ga.

• Decision Date: 30 June 1858
• Citation: 25 Ga. 527
• Parties: Thomas Golden, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

25 Ga. 527

Thomas Golden, plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1858.

Murder, from Marion. Tried before Judge Worrill, March Term, 1858.

Thomas Golden was put upon his trial for the murder of Nicholas Jordan, and found guilty. Whereupon his counsel moved for a new trial upon the following grounds:

1st. Because the Court erred in refusing to let defendant prove by John Matthews, a witness who had been sworn for the State, that John Eidson said, on the evening of the homicide, that he was the whole cause of it.

2d. Because the Court erred in refusing to let the defendant prove by John Hanks, State's witness, that after he had arrested prisoner, one John Eidson made an attack on prisoner with a knife.

3d. Because the Court erred in its charge to the jury: "You having heard the evidence and the argument, it becomes my duty to give you in charge the rules of the law, by which I apprehend you are to be governed in the decision of the case."

4th. Because the Court erred in its charge to the jury, "that it is the right of the jury to differ with the Court in its construction of the law, but such difference should not be placed upon light and trivial grounds; you should be clearly satisfied that the Court is wrong before you do this."

5th. Because the Court erred in charging the jury as follows: "Though voluntary drunkenness is no excuse for the commission of a crime in a prosecution for murder, where the question is whether the act was done in a sudden heat of passion, intoxication is a circumstance proper for the consideration of the jury."

6th. Because the Court erred in refusing to charge the jury: "If they believe, from the evidence, that Golden killed Jordan through cowardice, alarm, or fear that great bodily harm or injury was about to be inflicted upon him, then he is guilty of neither murder nor manslaughter, but that he killed him in his own defence."

7th. Because the Court erred in refusing to charge the jury as requested by the prisoner's counsel, "that a man may kill another against whom he has malice, and yet not be guilty of murder; therefore, if the jury believe, from the evidence, that Golden had malice against Jordan, and that Jordan pursued and sought a difficulty with him under such cir-cumstances as to create apprehension on the part of Golden that a serious bodily harm was about to be perpetrated upon him, then the killing is to be referred to this, and not to malice, and he is not guilty of murder."

8th. Because the Court erred in refusing to charge the jury as requested for the prisoner: "If the jury believe, from the evidence, that the prisoner was very drunk for the purpose, or as an excuse to take the life of Jordan, and that being in a state of intoxication, and very drunk, killed Jordan through cowardice, alarm, or fear that a great bodily injury was about to be inflicted upon him, then he is not guilty of murder."

9th. Because the Court erred in refusing to charge the jury as requested, "that if they believed, from the evidence, that Golden was very drunk, and that in this condition several persons pursued and sought a difficulty with him, it is proper that said drunkenness shall be taken into consideration, and that they shall enquire whether a man in this condition would not sooner apprehend felony or serious bodily harm or injury about to be done him, than if he had been sober, and if they shall so believe, that the killing is to be referred to this, and not to malice or any purpose to kill, and he is not guilty of murder."

10th. Because the Court erred in refusing to charge the jury as requested by prisoner's counsel: "If the jury believe, from the evidence, that the prisoner fired the pistol, and when he did so acted under reasonable apprehension that serious bodily harm or injury was about to be done him, he can not be guilty of a higher offence than voluntary manslaughter."

11th. Because the Court erred in refusing to charge, "if the jury believe, from the evidence, that the gun or pistol-shot wound received by deceased produced his death, and if the jury have a reasonable doubt upon their minds as to whether Golden discharged the gun or pistol which inflictedthe wound upon deceased, then they must give the prisoner the benefit of the doubt, and find him not guilty."

12th. Because one of the jurors, Slaughter, who tried the prisoner in said case, stated to Baily R. Gill, at the house of N. H. Tullis, on Tuesday before the trial, that he had been summoned as a tales juror in this case, and if he was taken on the jury he would hang the prisoner or stay there until the hairs of his arse dragged the ground; the said Slaughter not being a fair and impartial juror, and had prejudice and bias resting upon his mind against prisoner, and his mind was not perfectly impartial between the State and the accused, the same not being known to the prisoner and his counsel or either of them before the trial of said case; and in support of this ground, affidavits of Gill, the defendant, defendant's counsel, Solomon Welch and T. D. Walker, were filed.

The Court overruled the motion, and defendant's counsel excepted, and assign error.

H. Holt; and M. Blanford, for plaintiff in error.

Solicitor-General, Oliver; and Thomas Sloan, for defendant in error.

By the Court.—Lumpkin, J., delivering the opinion.

The defendant in this case was convicted of murder, and having been refused a new trial in the Court below, he has prosecuted a writ of error to obtain one in this Court.

Some of the grounds occupied in the rule for a new trial, have been abandoned on the argument here; and as to some of the rest, we deem it unnecessay to notice. It is but a repetition of the same objection. We propose to consider the material questions only.

It is in evidence that after the homicide was committed and Golden arrested, he made his escape, and was found crouched under a fence, in the immediate neighborhood. Andthis flight, it is contended, on the part of the State, indicated a consciousness of guilt. To rebut this presumption, it was proposed by the prisoner\'s counsel to prove that a violent assault was made upon the accused, by one of the party, before he fled. And this testimony was rejected.

The point in this case is not very material any way; but as the State deemed it of sufficient importance to prove the escape, it would seem proper to allow the accused to account for it as he proposed to do; and to show that it originated in fear of injury from the surviving companions of the deceased, and not from any consciousness of guilt. At any rate, it was a proper matter to be submitted to the jury.

As to the complaint against the use of the word "apprehend, " we see nothing in that. "My duty, " said the Judge, "is to give you in charge the rule of law, by which I apprehend" —that is, understand, conceive, believe—"you are to be governed in the decision of this case."

The next part of the charge we think is objectionable. While the learned Judge admits that it is the right of the jury to differ from the Court in its construction of the law, yet, he says to them, it should not be...