Hester v. The Stats Of Ga.
| Decision Date | 31 January 1855 |
| Docket Number | No. 27.,27. |
| Citation | 17 Ga. 130 |
| Parties | James L. Hester, plaintiff in error. vs. The Stats of Georgia, defendant in error. |
| Court | Georgia Supreme Court |
Arson, in Taylor Superior Court. Tried before Crawford, Oct. Term, 1854.
The errors assigned are the refusal of a motion in arrest of judgment, and a motion for a new trial.
The indictment alleged that the defendant did "burn an outhouse, being then and there a corn crib, on the plantation of E. F.—the said corn crib not then and there being in a town or village—by setting fire to the same." Motion in arrest—
1st. Because it did not allege that the house was consumed.
2d. Because it did not allege that it was in the day time or at night. 3d. Because it did not allege that the out-house was not a dwelling house.
The motion for a new trial was on the grounds, 1st. That the Solicitor arraigned the prisoner after a panel of 48 Jurors had been called and put upon him; and after the arraignment the Court allowed the panel to be put upon the prisoner again.
2d. That the Court erred in allowing two witnesses to give their opinion, that certain foot prints were those of prisoner— they having given their reasons for the opinion.
3d. Because the verdict was contrary to the weight of evidence.
The evidence was briefly as follows:
The corn crib was burned about 3 o'clock in the morning. It was not contiguous to any house, and was evidently set on fire. The owner of the crib was an acting bailiff, and had, the day before the burning, as bailiff, sold the corn of prisoner under a ft. fa. Prisoner said that day to prosecutor, that if he sold his corn he should pay for it, and suffer for it. Threats of a similar character were proved by several witnesses. Foot prints, going to and from the burned house, through ploughed ground, were proven to be similar to prisoner's, who had a peculiar walk—turning out the toes more than with men usually. Confessions of prisoner, that he burned the house at the instance of one Dukes were also in evidence. He was drinking at the time, though not drunk. There was an attempt made to impeach the two witnesses who proved these confessions. Dukes was introduced by prisoner, and disclaimed all knowledge of it. Prisoner also attempted to prove an alibi.
The refusal to arrest the judgment and grant a new trial are assigned as error.
The Court sentenced the prisoner to imprisonment in the penitentiary for three years. This sentence is also assigned as error.
S. Hall and G. R. Hunter, for plaintiff in error.
Ramsey and B. Hill, for defendant in error.
By the Court.—Benning, J., delivering the opinion.
Should the motion to arrest the judgment have been sustained?
The first ground on which the motion was put, was that the indictment did not allege the house to have been consumed. What the indictment alleged was, that the accused "did" "burn" the house.
To burn has for its first and leading meaning, in Webster's Distionary, "to consume with fire."
The word is commonly used, too, in that sense.
It is to be presumed, therefore, that it was so used in the indictment.
At all events, it is the word used in the definition of the offense of arson, and that justifies the use of it in the indictment. "Arson is the malicious and wilful burning of the house or outhouse of another." (Code. Cobb's Dig. 789.) "Every indictment or accusation of the Grand Jury, shall be deemed sufficiently technical and correct, which states the offence in the terms and language of the Code, or so plainly that the nature of the offense charged may be easily understood by the Jury."
The second ground on which the motion was put, was the omission from the indictment of any allegation, to show whether the arson charged was arson in the day-time or arson in the night.
The distinction between these two sorts of arson is confined, by the Code, to punishment—the degree of punishment. The definition of arson, as given above, is silent as to any such distinction.
The indictment "states the offence in the terms and language of" the definition.
The third ground on which the motion was put, was the omission, from the indictment, of an allegation, that the house burned was not a dwelling house.
The indictment did have in it an allegation, that the houseburned was an out-house and a corn crib. And this is equivalent to an allegation, that the house was not a dwelling house.
Besides, the exception ("except the dwelling house") which the motion insists should have been negatived in the indictment, is not contained in the section defining the offence, but in a subsequent section, designating the punishment for the offence. Elkins vs. The State )
These were all the ground of the motion to arrest the judgment; and none of them being sufficient, the Court was right in overruling that motion.
Ought a new trial to have been granted?
There is, plainly, nothing in the first ground assigned in the motion, for a new trial.
In the second ground there is something, but not enough, as we think, to support the motion. This conclusion, however, is one at which we arrive not without difficulty.
That the opinions of a witness are not admissible in evidence, is, as a general proposition, undoubtedly true; yet, that to this proposition are many exceptions, is no less true. The general law on the question of the admissibility of this sort of evidence, is stated by Greenleaf, in his work on Evidence, thus: And he gives other instances. (1 Greenleaf s Ev., §440.)
The opinions of the two witnesses which were received in this case, were opinions on a question of personal identity—onthis question, who was the person that had made certain footprints or "tracks, " found in a field near the site of the burnt house. The bill of exceptions thus gives the testimony, on this point, of one of those witnesses:
In this statement, the witness gives his belief, and his reasons for that belief, which is more than a witness is required to do, to render his opinion, as to hand-writing, admissible; for to render a witness's opinion admissible, as to hand-writing, it is only necessary that he should be acquainted with the handwriting of the person who, in the particular case, is assumed to be, or to be not the author of the writing in such case in question.
Whose hand made these marks—these letters on this...
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