Green v. The State Of Ga.

• Decision Date: 31 July 1871
• Citation: 43 Ga. 368
• Court: Georgia Supreme Court
• Parties: PINK GREEN et al., plaintiffs in error. v. THE STATE OF GEORGIA, defendant in error.

43 Ga. 368

PINK GREEN et al., plaintiffs in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

*Criminal law. Conduct of Judge. Evidence. Practice. Before Judge Harrell. Randolph Superior Court. May Term, 1871. Pink Green et al., were jointly indicted for assault and battery upon one Conyers, a negro. The Court, upon its own motion, had the testimony taken down in writing by an attorney, in open Court. When Conyers had detailed the facts he was asked, "Was that in Randolph county?" This was objected to as a leading question. The objection was overruled. Conyers testified that a crowd came to his house, took him out and whipped him cruelly. It appeared that one of the party was a bailiff, and had a warrant for one Mark Moses and the defendants. Conyers had given Moses notice, and thus prevented his arrest, and for this they whipped Conyers. To impeach Conyers and lay the foundation for contradicting Conyers, (as they say in their motion) defendant\'s counsel asked him if he did not see Mark Moses that night. The court would not allow the question answered. The only matter of doubt was as to whether this crowd was the defendants. To show their identity Conyers testified that he saw the crowd come from Mr. Vinson\'s; Mr. Vinson\'s son said defendants were there at the time stated, looking for Mark Moses; and Mr. Vinson, Sr., testified that after they failed to find Mark Moses they went off and came back, and said they had whipped one of Mark Moses\' spies.

In commenting on the evidence, counsel for prisoners said that Vinson said that "one of the boys" made said statement. The Judge interrupted him by saying that he had no idea that he wished to misstate the evidence, but that Vinson, Sr., said "they told him so, " and read from the written evidence in support of his assertion. Counsel contended that an officer, in executing a warrant, had a right to remove obstacles that might come in his way, to break open a houseor commit a battery, if necessary.

In alluding to said position of counsel, the Court in *charging the jury said: "An officer can, under his power to remove obstructions to an arrest, break open a house, commit an assault and battery, and in some cases kill the party obstructing the process of the law; but if counsel meant to maintain that an officer had authority to whip a person after he has been arrested, it is without law or reason to support it; while an officer has said powers, if he, after arrest, whip or beat a person, he is guilty of a crime; the Legislature has passed a special law against the mistreatment of prisoners." The Court charged the jury also, that even if Conyers acted as aspy for Moses, and enabled him to avoid arrest, that did not justify the whipping.

The jury retired, and afterwards came back to receive an additional charge, and one of the jury desired to know what was the evidence as to the connection "of an old man, " about whom Conyers testified, with the affair. The Judge read that part of the evidence from said evidence written down as aforesaid. The jury found the defendants guilty.

Defendant's counsel moved for a new trial upon the grounds that the verdict was contrary to the evidence, etc.; because the Court erred in allowing said leading question to be answered; in refusing to allow Conyers examined as to seeing Moses that night; in requiring the evidence taken down in writing; by stating what Vinson, Sr., said when testifying, and reading his evidence from said writing; in charging the jury as he did; in reading to the jury what was taken down as the evidence concerning "an old man, " and last, in his remarks as to counsel's position as to the right of an officer, when interfered with in executing process, in that he gave reasons and argument to show the unreasonableness of said position, instead of simply stating it was not law. The Court refused a new trial, and that is assigned as error.

Wooten & Hoyle; R. F. Lyon, for plaintiffs in error.

*West Harris, J. W. Taylor, Solicitor General, for the State.

Leading questions discretionary: Revised Code, section 3809. No impeachment by irrelevant evidence: Revised Code, section 3815. If council mistake evidence Court should correct him: 11 Georgia Reports, 253. Sayings of one confederate good against all: 17 Georgia Reports, 356; 1 Gr. on Ev., 156. Court should charge on points made in argument: 4 Georgia Reports, 287. The Court did not say what was proved but what a witness testified: 25 Georgia Reports, 520. Even if error in charge, verdict is right: 14 Georgia Reports, 55.

LOCHRANE, Chief Justice.

This was an indictment against certain parties for the offense of assault and battery, upon the trial of which the plaintiffs in error were convicted, and the motion was made for a new trial upon eight grounds, which we will dispose of in their order. First, because the jury found...