Hinkle v. State
| Decision Date | 04 June 1894 |
| Parties | HINKLE v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A juror who, in answer to the statutory questions prescribed for testing his competency, after receiving from the presiding judge a correct definition of the word "bias" and the phrase "perfectly impartial," testifies that he is perfectly impartial between the state and the accused, is without any disqualifying prejudice if he has neither seen the crime committed, nor heard any part of the evidence delivered upon oath, and if he has no fixed opinion,--no opinion touching the guilt or innocence of the accused which will not readily yield to evidence,--although he may entertain an unfixed or floating opinion upon the subject, founded on rumor, hearsay or newspaper reports, and may have expressed the same. In the true legal sense, he has no prejudice, and if he is unbiased he may properly answer in the negative the question "Have you any bias or prejudice resting upon your mind for or against the accused?"
2. As to the three jurors whose alleged incompetency was discovered after verdict, the finding of the trial judge in favor of their competency on the affidavits submitted to him pro and con was sufficiently supported by the evidence to render his finding on the question of fact involved conclusive upon a reviewing court. This is true whether the affidavit as to the good character of one of the movant's witnesses be considered or not. Inasmuch as the general character of the witness was not attacked, the judge was not legally bound to receive evidence in support of it.
3. Counsel for the accused having invoked the rule for excluding witnesses from the court room, and then sought to obtain an exception in favor of a son of the accused, on the ground that he was not only a material witness, but a necessary assistant in conducting the defense, by reason of his having taken a leading part in its preparation, it was discretionary with the court either to allow or to disallow the exception and having disallowed it, and thereupon the counsel having withdrawn the son as a witness, for the sake of having his services in court during the trial, and it not appearing what fact or facts he could or would have testified to as a witness, no such abuse of discretion as will justify the supreme court in directing a new trial has been made out.
4. There was no error, upon any of the grounds of objection presented, in allowing the clerk of the court to testify that the deceased was a witness in a given case previously tried in the same court, and testified therein.
5. Even if the court erred in excluding evidence of uncommunicated threats which the accused sought to prove by one of the state's witnesses on cross-examination, the error was sufficiently neutralized by allowing the accused afterwards to recall the witness, not as his own, but as the state's witness, and examine him fully touching such threats.
6. The charge of the court to the jury, read all together, so as to arrive at its true sense and spirit, was full, fair impartial, and correct. There was no substantial error in the same upon any of the topics embraced in the motion for a new trial; these topics being impeached witnesses, res gestae considering evidence and prisoner's statement together, malice, presumption of malice, common intent of assailants in joint assault, manslaughter, justifiable homicide, felony and felonious assault, self-defense by first assailant, self-defense by slayer generally, defense of son, and duty of the jury to free themselves from external influences in deliberating on the case.
7. Although there was much evidence tending to support the theory of the accused that he committed the homicide in defense of his son, yet as there was abundant and very powerful evidence to the contrary, and the jury being the accredited agents of the law for the determination of such questions, and they having found that the homicide was murder, and the trial judge having approved their finding, this court can discover no legal cause for reversing the judgment denying a new trial.
Error from superior court, Sumter county; W. H. Fish, Judge.
John B. Hinkle was convicted of murder, and brings error. Affirmed.
A juror who, in answer to questions for testing his competency, after receiving from the judge a correct definition of the word "bias" and the phrase "perfectly impartial," testifies that he is perfectly impartial between the state and the accused, is competent if he has neither seen the crime committed, nor heard any part of the evidence delivered on oath, and has no fixed opinion, though he may entertain a floating opinion, founded on rumor, hearsay, or newspaper reports, and may have expressed the same.
Following is the official report:
J. B. and A. B. Hinkle were indicted for the murder of J. J. Worsham. The crime was alleged to have been committed on December 21, 1892. The state elected to sever, and J. B. Hinkle was put upon trial and found guilty, with a recommendation that he be imprisoned in the penitentiary for life. The trial occurred in January, 1894, the verdict being rendered February 1st. The defendant moved for a new trial, and his motion was overruled, to which ruling he excepted. On the hearing of the motion for a new trial the movant offered in evidence two affidavits, signed by a number of persons, to the effect that they know the general character of J. B. Stewart; that his character is good, and from their knowledge of that character, they would unhesitatingly believe him upon oath upon any and all occasions. These affidavits were offered as counter affidavits in support of the affidavit of J. B. Stewart. The court refused to allow and refused to consider the same, to which ruling also movant excepted, upon the ground that it was contrary to law, and because such affidavits were material in support of the testimony of Stewart, and in contradiction of the evidence offered to disprove the affidavit of Stewart.
The motion for new trial contained the general grounds that the verdict was contrary to law, evidence, etc., and that the verdict was such as to be shocking to the moral sense, and such as to show that the benefit of reasonable doubt was not given to defendant.
Further: Because when it was ordered by the court, on defendant's motion, that all the witnesses should be put under the rule, defendant's counsel stated to the court that the preparation of the case, to a very great extent, had devolved upon defendant's son E. E. Hinkle; that he was more familiar with the witnesses and evidence than any one else, and it was material to have his services in the examination of the witnesses, and they desired to use him as a witness for defendants; and they asked that he be allowed to stay in the court to assist in the defense. The court refused to allow this if he would be sworn as a witness. Under this ruling, defendant, to secure the attendance of E. E. Hinkle in the examination of witnesses, then withdrew him as a witness. This ruling is alleged as error, and as an abuse of the court's discretion. In a note to this ground by the court, the following is stated as what occurred: Defendant's counsel invoked the rule that the witnesses be put under the rule. The court put them under the rule, giving the witnesses instruction not to talk to the other witnesses, nor to come into the court room, etc. Defendant's counsel then asked that A. B. Hinkle, his wife, the two sons of the prisoner, and Maj. Lewis be allowed to remain in the court room, to assist in the consultation. The solicitor general objected, and asked that all be put under the rule. Defendant's counsel stated that they needed the assistance of Eugene Hinkle particularly, and of the codefendant, and these other members of the family, in the conduct of the case and the examination of witnesses, and could not safely go to trial without their presence, and that defendant's counsel understood the rule to be that it was discretionary with the court. There was then argument between counsel upon the question, mainly directed to the question of allowing the codefendant to remain in the court room; and the court then stated that the court understood it was in its discretion to permit such witnesses to remain as the court might see proper, but the rule had been invoked by defendant, and, whether invoked by the one side or the other, the best way, when it was invoked, was to have it enforced, and, under the discretion lodged in the court, it must decline to allow these witnesses to remain in the court room. Defendant's counsel then asked if that included all of the witnesses, and the court stated that it did. Defendant's counsel then said that they wanted to ask the court that as far as Eugene Hinkle was concerned, who would not be called to testify to the facts of the homicide, having been in New York at the time of the homicide, he be allowed to remain; that they needed his presence to assist them in the examination of the witnesses; that he had had charge of that department of getting up the testimony, ascertaining the facts, and his aid was very material and indispensable; and they asked that he, if no other, be allowed to remain. The solicitor general insisted upon the rule as to this witness, and the court stated that it had ruled on the matter. After a conference between Eugene Hinkle and defendant's counsel, the latter announced that the former was so vitally indispensable that, under the ruling of the court, they would have to withdraw him as a witness, and have him remain.
Because G. W. Kinard, one of the jurors trying the case, was not a legal and competent juror, for before the term of the court at which the trial was had, he publicly said: "The homicide of Worsham was a...
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