Jacobs v. State

• Decision Date: 28 March 1907
• Docket Number: (No. 224.)
• Citation: Jacobs v. State, 1 Ga.App. 519, 57 S.E. 1063 (Ga. App. 1907)
• Parties: JACOBS v. STATE.
• Court: Georgia Court of Appeals

57 S.E. 1063

1 Ga.App. 519

JACOBS

v.STATE.

(No. 224.)

Court of Appeals of Georgia.

March 28, 1907.

1. Criminal Law—Weight op Evidence.

Where, in a criminal case, the evidence for the state is wholly negative in character, and is opposed by evidence for the defendant which is definite, positive, and unimpeached, and which clearly establishes the innocence of the accused, the negative testimony must yield to the positive evidence, and a verdict reached in disregard of this rule is contrary to law. Where the testimony of witnesses who testified positively may be true, without it being necessary to reject any of the negative testimony as untrue, and the testimony can be harmonized without discrediting any witness, it is the duty of the jury to prefer the positive testimony. Pen. Code 1895, § 985; Civ. Code 1895, § 5165.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1248.]

2. Jury — Competency — Objections to Jurors.

It is the duty of a trial court to see that defendants in criminal cases are tried by a jury such that not even the suspicion of bias (leaning) or prejudice (prejudgment) can attach to any member thereof. If a defendant charged with misdemeanor believes or has reason to believe that one, or any number, of the jurors put upon him is not impartial, he has the right to have the juror or jurors tested, if he makes the request properly and before the jury is sworn.

[Ed. Note.—For cases in point, see Cent. Die. vol. 31, July, § 558.]

3. Same—Challenge to Poll.

"When the challenge to the poll is thus made, it is the duty of the court to put the juror upon his voir dire, and to ask him such questions as will test his fairness and impartiality. He may ask him, or cause him to be asked by counsel, the statutory questions prescribed for use in the trial of felonies, or such other questions as will test his impartiality between the state and the accused." Wells v. State. 29 S. E. 442, 102 Ga. 659; Cobb v. State, 45 Ga. 11.

[Ed. Note.—For cases in point, see Cent. Die. vol. 31, Jury, §§ 561, 577.]

(Syllabus by the Court.)

Error from City Court of Blakely; Jordan, Judge.

One Jacobs was convicted of vagrancy, and brings error. Reversed.

Oliver & Russell, for plaintiff in error.

W. G. Park, Sol., for the State.

RUSSELL, J. The defendant was convicted of vagrancy. The rigid enforcement of the law against those who will not work is ofthe greatest importance to society. Honest labor is the greatest preventive of crime, and idleness breeds every form of lawlessness. But criminal laws are not to be construed loosely, even to effectuate a good purpose. We think that the plaintiff in error in this case is entitled to a new trial, because the verdict is, for want of evidence, contrary to law. It appears from the evidence that one of the witnesses for the state did not see the defendant work; but this purely negative evidence is all that the state produced. Of course, the jury would have had a perfect right to disregard the evidence for the defendant (which was precise, definite, affirmative, and positive that defendant did work), to disbelieve it entirely, and to give the preference to a witness or witnesses in behalf of the state, who testified that the defendant did not work; but there was no such testimony. The testimony for the state was purely negative. The most the witness was able to testify was that he had seen the defendant at times when he was not at work. That positive evidence is to be preferred to negative is an elementary rule of evidence, binding upon juries, but absolutely disregarded in this case. If the allegations were sustained by some proof (however little), we would not disturb the verdict; but material allegations made by the state must be proved in the prosecutions of vagrancy as in other cases. The act of 1003, as amended in 1905 (Acts 1905, p. 110), in the eighth subdivision of section 1, recognizes two exceptions, in the class of minors, who are not vagrants, even though they may not work—those whose parents are able to support them, and those who are in attendance upon some educational institution. In the accusation in this case (in order to state a proper case and to show that the defendant is a vagrant) the state alleges that the parents of the defendant are unable to support him and that he is not attending an educational institution. An allegation not material to the case...