Howell v. The State Of Ga.

• Decision Date: 31 July 1848
• Docket Number: No. 7.,7.
• Citation: 5 Ga. 48
• Parties: John D. Howell, plaintiff in error. vs. The State of Georgia, defendant.
• Court: Georgia Supreme Court

5 Ga. 48

John D. Howell, plaintiff in error. vs. The State of Georgia, defendant.

No. 7.

Supreme Court of the State of Georgia

JULY TERM, 1848.

Indictment for an assault with intent to murder, in Early Superior Court. Tried before Judge Warren, April Term, 1848.

The defendant was indicted at the April term of the Superior Court, held in and for the county of Early, for an assault with intent to murder John Dill. The cause came on for trial the next day after the bill of Indictment was found by the Grand Jury, when the defendant moved the Court for a continuance of his cause, upon the several grounds stated in his written affidavit, to wit: "That he was not ready for trial, because of his close confinement in custody since the commission of the crime imputed to him, and that he had not been able to subpoena witnesses, or procure testimony material for his defence; that the bill was returned into Court on yesterday, and that he has not been advised sufficiently long as to what offence would be imputed him; that he cannot go safely to trial, until he can collect and prepare his testimony, which he has not been enabled to do at the present term of the Court; and he further states, that he had employed Judge Colquitt to defend him in another prosecution instituted against him at the last term of the Court, and had the assurance of said Colquitt, that he would be certain to attend upon this Court; that on the arrival of John Schley, " Esq. at this term of the Court, he is advised by said Schley, that Judge Colquitt was in Columbus, on his way to this Court; that expecting his arrival, he had calculated on obtaining his services in the defence of this prosecution also; that his means are limited, and having secured the services of Judge Colquitt, and not doubting that he would attend upon this Court, he has not as yet procured the services of such other counsel as would justify him in going to trial at this time; that he does not make this shewing for delay, but for the purpose of getting a fair trial, and such justice as he humbly contends he is entitled to receive at the hands of the Court and country. Deponent further states, that he cannot go safely to trial, because such is the excitement in the public mind, and so excited is public feeling at this time against him, as he has been advised and believes, that he has more to fear, and doesfear, that he cannot obtain a fair trial." The Court overruled the defendant\'s motion for a continuance, and ordered the trial to proceed; whereupon, the defendant, by his counsel, excepted. In the progress of the trial, the defendant proposed to ask Christopher Green, a witness, the following question: "Do you know, whether Genl. Dill made any threats to drive prisoner from the place, or to take his life?" Which question, the Court refused to be asked the witness; whereupon, the defendant excepted, and now assigns the same for error In this Court.

Colquitt & Wellborn, for plaintiff in error, submitted—

That two grounds of error were assigned in the bill of exceptions before the Court, viz:

1st. The overruling the motion made by plaintiff in error, for a continuance of the prosecution for the term at which the trial and conviction complained of, were had.

2d. The improper rejection of evidence, offered by the accused on the trial. This Court having decided, in the cases of Sealy vs. the State, 1 Kelly, 213, and Daniel McDongald vs. the Central Bank, 3 Kelly, 185, "that the improper granting or refusal of a continuance, is ground for a writ of error, " it only remains, in respect of this point in the cause, to inquire whether the reason assigned in support of the motion for a continuance, by Howell, was a valid one in law.

The record show's, that a few days only transpired between the date of the alleged offence, and the delivery of the verdict. The oath of the movant was for the continuance, to the effect, that the prejudices of the community by whom the case was to be tried, were so inflamed by reason of the recent date of the act for which the prosecution was instituted, and the representations given of it, that he believed it impossible for him to have, if then tried, an impartial hearing.

No crime so thoroughly arouses the passions and resentments of society, as that for the attempt to commit which, Howell was about to be put upon his trial. Additionally, the mode charged of the attempt, was an aggravated one, viz: by shooting. There is no difficulty, then, in believing the truth of the statement, made in the motion to continue, aside from the oath of the party. Can the rejection of an uncontradicted shewing like that, be justifiedby a tribunal, one of the cardinal rules of whose government is, that the accused is entitled to a "fair and impartial trial: " The motion, too, was fortified by the absence of original or leading counsel. Of such stress in the eye of the law, as is known to this Court, is this fact of public prejudice against an accused, that the right of parties, particularly in criminal cases, to change the venue or locus of trial, even on affidavit, is a very common provision of law. Such has long been the case in many of our sister States, and only a few years have elapsed, since an amendment of our State Constitution, with a view to the introduction of a similar provision into our law, came well nigh being adopted. I refer to what is matter of history.

Again, the 17th section of the 14th division of the Penal Code, (see Prince, 660,) very plainly indicates the legal validity of the motion under review. "Every person against whom a bill of indictment is found, shall be tried at the term of the Court at Which the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice should require a postponement of the trial, and then, the Court shall allow a postponement of the trial, until the next term of the Court; and the Court shall have power to allow the continuance of criminal causes from term to term, as often as the principles of justice may require, upon sufficient cause shewn on oath." Can it be said to consist with the principles of justice, to try one in circumstances in which it is shown to the Court, that a "fair and impartial trial" cannot be had? And the cause finally, in the language of the Act, was "shown on oath."

2. The proof of the receipt of notice by Howell, of the use of threats on the part of Dill, the assaulted party, implying purposes respecting Howell, of the violent and deadly nature indicated, was improperly rejected on the trial. It should have been allowed, in explanation of the relations of animosity existing between the parties to the assault, and as tending to show that Howell acted, or may have acted, in the attack on Dill, upon the suggestions of a reasonable fear touching his own security. It is sufficient for our purposes, to say, without looking into the extent of the influence which this proof was calculated to exert upon the mind of the jury, that it was admissible. Evidence, believed to be similar to this in its nature, was ruled by this Court to be ad-missible, as in the case of Hudgins vs. the State, in error, 2 Kelley\'s Rep. 173. The People vs. Rector, 19 Wend. 569.

Solicitor General Perkins, and McDougald, for defendant, cited—

Prince's Dig. 622, 623. Rules of Court, title "Continuance." Wharton's Am. Crim. Law, 595-9. Roberts vs. the State, 3 Kelly, 324.

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

There are two grounds of error assigned upon the record in this case. First, in refusing to grant the defendant a continuance of his cause. Second, in refusing to the defendant, the right to examine Green, a witness, as to threats made by Dill, upon whom the assault is alleged to have been committed.

This Court has said, that it would not interfere with the discretion of the Court below in regard to continuances, except in cases of manifest injustice, or where there had been a flagrant abuse of such discretion. This record, in our judgment, presents such a case: and we feel bound, according to our views of public justice, to control the discretion of the Court below, in refusing to the defendant a continuance of his cause. We do not pretend to question the motives of the Court below, but most...