Hudgins v. The State Of Ga.

• Decision Date: 31 August 1878
• Citation: 61 Ga. 182
• Parties: Hudgins. v. The State of Georgia.
• Court: Georgia Supreme Court

61 Ga. 182

Hudgins. v. The State of Georgia.

Supreme Court of the State of Georgia

(August Term, 1878.)

Charge of Court. Criminal law. Jurors. New trial. Practice in the Superior Court. Before Judge HILLYER. DeKalb Superior Court. March Term, 1878.

To the report contained in the opinion, it is only necessary to add the following:

The evidence made, in brief, the following case: Lucas, theprosecutor, had been to Atlanta, had become drunk, and been confined in the callaboose the afternoon before the affray. That night he went into a bar room in Decatur, and there met the defendant (James Hudgins), John Hudgins, and a negro; they were also drinking, Lucas spoke to them, they chatted together, and "knocked around considerably" in company. John Hudgins bought some brandy for Lucas, and something was said as to the amount of money Lucas had. Lucas inquired where one Farmer and one Gordon lived, as he thought of spending the night at one or the other place. After eleven o\'clock the party started out of town (Decatur); Lucas and John Hudgins locked arms and walked together; defendant and the negro followed together. After a time, Lucas heard some one running up behind him; on turning he found it to be defendant; the latter ran upon him, with his arm drawn back, struck him with some hard substance, and felled him; some one got on him and began to beat him; at first he thought it was defendant, but soon saw it was the negro; defendant stood by and looked on; he shouted for help; they withdrew, spoke together, and all ran off. Lucas did not at first know he was cut; he discovered it by the flow *of blood. A knife was left sticking in him so firmly as to have penetrated the bone and to require considerable force to remove it. There was also a good deal of evidence as to the credibility of the witnesses, as to whether or not Lucas was drunk at the time of the affray, and as to general character.

The jury found defendant guilty; he moved for a new trial, which was refused, and he excepted.

L. J. Winn; H. Clay Jones, for plaintiff in error, cited as follows: Charge error, 8 Ga., 408; 17 ib., 356; 20 ib., 681; 1 Greenleaf on Ev, § 111; Rose. Cr. Ev., 84. Conspiracy, what is, 21 Ga., 221; 13 Ib., 322; 31 Ib.. 236; 28 Ib., 200. Juror incompetent. 5 Ga., 86, 140; 10 Ib., 25, 28; 19 Ib, 163: 10 Ib., 513, 527-529. New evidence, Code, § 3716; 33 Ga., 281, 288. Terms of court, rule as to, Code, §§ 3244, 3245. Judicial notice, Code § 3815; 43 Ala., 402; 4 Dev. (N. C.) L, 427. Cannot be two terms at once. Code, §§ 241, 3241; 42 Ala., 404; 42 Col., 397; 14 Fla., 523; 17 La. Ann., 253; 9 Port. (Ala.), 218; 5 Ind, 137; 1 Green (Iowa), 406; 2 Ib., 559; 19 Iowa, 94; Peck (Tenn.), 82.

B. H. Hill, Jr., solicitor general, for the state, cited as fallows: Conspiracy, 36 Ga., 222; 21 Ib., 221; 28 Ib., 604; 1 Russell on Crimes, 47-49. Juror not shown incompetent by one affidavit, 19 Ga., 103, 122; 58 Ib, 296.

Jackson. Justice.

The defendant, with two others, wo indicte 1 for an assant with intent to murder. He vis put on trial alone, convicted, and moved for a new trial on various grounds, which were overruled and he excepted.

1. The first ground respects the charge, and is to the efffect that the facts did not authorize the court to charge on the subject of a conspiracy and concert of action between the three, or twoof the three, men who were indicted together. The facts, we think, authorized the charge. The *two men were together, they ran upon the prosecutor together, and assaulted him behind him, both struck him, one used a knife, the other probably some hard instrument, and both ran off together, leaving him about midnight in the darkness nearly dead, stabbed with the knife in several places, and the blade stuck in his back with such force as to adhere to the bone, and to require the best effort of a strong man, after several trials, to pull it out. The hand of one knocked him down, that of the other did the stabbing. If believed, these facts make a conspiracy or joint attempt to murder; and the credibility of the witnesses is for the jury. If the facts be true, both are guilty of the assault with intent to murder, no matter who actually stabbed; and the court was right to leave the common intent and conspiracy to the jury under the facts.

2. The next ground is that a juror was not impartial. The only evidence of it is his sayings to one person sworn to by him. He had sworn that he was perfectly impartial, and the rale is that one oath is as good as another. In 19 Ga., 102, it was so ruled in a murder case, and where the expression of opinion was as strong as it is possible to make it. That case covers this all fours on this point.

3. The next ground relates to newly discovered testimony. It is the testimony of the accomplice, who, after his plea of guilty, was willing to testify that he did all the beating and stabbing, and...