Harbison v. State

• Decision Date: 24 April 1889
• Parties: Harbison v. State.
• Court: Georgia Supreme Court

9 S.E. 542

(83 Ga. 129)

Harbison

v.State.

Supreme Court of Georgia.

April 24, 1889.

Criminal Law—Continuance —Alibi—Instructions—Evidence.

1. Where no motion for a continuance is made for absence of counsel or witnesses, the court does not err by disregarding such absence, the accused having had full time after his arrest to prepare for trial. Cumulative evidence to prove an alibi, even if newly discovered, is not cause for a new trial.

2. A charge to the jury which, properly construed, makes presence at the time and place of the homicide a necessary condition of guilt, is favorable, not prejudicial, to the accused.

3. Touching alibi, the rule in Georgia, as established by authority, consists of two branches: The first is that, to overcome proof of guilt strong enough to exclude all reasonable doubt, the onus is on the accused to verify his alleged alibi, not beyond reasonable doubt, but to the reasonable satisfaction of the jury. The second is that, nevertheless, any evidence whatever of alibi is to be considered on the general case with the rest of the testimony, and, if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be given in favor of innocence. In sense and substance the charge of the court in the present caseconformed to the rule, certainly to the latter

branch of it.¹

4. The jury are not precluded from considering the prisoner's statement throughout by instructing them that the statute allows them to believe it on material matters in preference to the sworn testimony.

5. The evidence was conflicting, the credibility of the witnesses was for the jury, and their verdict was warranted, if they believed those who testified in behalf of the state, and did not believe those who testified in behalf of the accused

(Syllabus by the Court.)

Error from superior court, De Kalb county; R. H. Clark, Judge.

Haygood & Douglas and H. C. Jones, for plaintiff in error. John S. Candler, Sol. Gen., and Clifford Anderson, Atty. Gen., for the State.

Bleckley, C. J. The plaintiff in error bears three names in the record, —Harrison, Haralson, and Harris. He was convicted of murder, and sentenced to imprisonment for life. The person killed was Hurst, the marshal of Decatur. The homicide occurred while the marshal had in custody one Hubert, in the midst of a large crowd, some of whom were endeavoring to rescue the prisoner or promote his escape from the officer. Several shots were fired, and there is no doubt that one of them killed the marshal. The indictment was found at the February term, 1888, and the trial took place at the following August term. Harrison was arrested upon a bench-warrant, and was confined in jail for about six months. Gen. Gartrell, one of his counsel, was not present at the trial, but was represented by Mr. Haygood. There was no motion made for a continuance, but Mr. Haygood stated to the court that he had received a telephonic message from Gen. Gartrell saying that he could not attend on account of the illness of his wife, and requesting Mr. Haygood to represent him. It seems that at that stage steps were taken to subpoena more witnesses in behalf of the accused, and these witnesses, or most of them, came into court while the trial was in progress, but neither the accused nor his counsel saw them, or knew of their presence. The court had no concern with the matter, and was not called upon in any way to continue the case, suspend it, or postpone the trial.

1. Affidavits by these witnesses, produced on the motion for a new trial, show that their evidence would have been material upon the question of alibi, but it would only have been cumulative, as other witnesses testified on that subject in the prisoner's behalf. The policy of the law is adverse to granting new trials on account of merely cumulative evidence, more especially where the point to which the evidence relates is the defense of alibi. Wright v. State, 34 Ga. 110. The decisive matter, however, against this ground of the motion for a new trial, is that Page 544

such testimony outweighed the evidence for the state, whereas the prisoner was entitled to the benefit of a reasonable doubt produced in the minds of the jury by the consideration of all the evidence, including that of alibi, at the close of all the testimony. On looking at the full charge, we find the jury were instructed thus: "Now, do you believe from the evidence that this defendant was there? because you must fix him there in order to convict him of anything; and that, in the next place, he was one of this party; and that the common purpose and design of that party was to effect a rescue, and in that rescue the marshal lost his life? I say, if you believe it beyond a reasonable doubt, it would be your duty to find the defendant guilty of the crime of murder; if, as I have charged you, of course, you believe his death was caused by a shot from some one of the persons who were engaged in that rescue." Again: "If the state has made out such a case as I have narrated to you, then you would proceed further in your investigation, and say whether the defendant by his evidence has relieved himself from the effect of the state's evidence, or has put the matter in such a condition as would raise upon your mind a reasonable doubt as to his guilt." Again: "You have observed, gentlemen, that whether you depend upon the evidence of the defendant's guilt, or whether you take the statement into consideration or not, whatever you believe against him you must believe beyond a reasonable doubt." Again: "If you do not believe that he is guilty, or have a reasonable doubt as to his guilt, you will say: ' We, the jury, find the defendant, Sandy Harris, not guilty.' "

Under these instructions, the jury, we think, must have felt it incumbent upon them to give the prisoner the benefit of any and all reasonable doubt upon summing up the entire evidence, including that relating to the alibi; and this, in the present state of the Georgia authorities, seems to be sufficient. Compare Arnold v. State, 53 Ga. 325; Johnson v. State, 59 Ga. 142; Goldsmith v. State, 63 Ga. 85; Jackson v. State, 64 Ga. 344; Wade v. State, 65 Ga. 756; Landis v. State, 70 Ga. 651; Bryan v. State, 74 Ga. 393; Ledford v. State, 75 Ga. 856; Simpson v. State, 78 Ga. 91. The cases which perhaps bring out the exact shades of our law touching alibi the most fully are Landis v. State and Ledford v. State, supra; and the doctrine of these cases, especially of the latter, is this: "Though the burden was the defendant's to show alibi to the satisfaction of the jury, and on that issue reasonable doubts would not avail him, yet on the final issue of guilty or not guilty * * * all...