Jefferson v. State
| Decision Date | 11 January 1912 |
| Parties | JEFFERSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
When in a criminal case, after verdict, an attack is made upon a juror upon the ground that he was not impartial, the trial judge occupies the place of a trior, and his finding that the juror is competent will not be reversed, unless under all the facts the discretion of the judge is manifestly abused. No abuse of discretion appears in this case.
Certain grounds of the motion for new trial, in which exception was taken to the expressions of the judge made pending the examination of witnesses, and others made while instructing the jury, were not subject to the criticism that they amounted to the expression of an opinion upon material facts in issue, or that they were otherwise prejudicial to the accused.
In the trial of a murder case, if at the time of making declarations the condition of the wounded party making them, the nature of his wounds, the length of time after making the declarations before he expired, and all the circumstances, make a prima facie case that he was in the article of death, and conscious of his condition when he made the declarations, such declarations are admissible in evidence under proper instructions by the court to the jury, though the person may not have expressed his consciousness of impending dissolution.
Whether or not statements, made about eight or ten minutes after deceased was shot, to the effect that the accused "shot him like a dog and kicked him in the face," were admissible as a part of the res gestæ, the admission of them was not cause for a new trial, in view of other evidence to the same effect, which was afterwards introduced, some of which was introduced by the defendant.
In view of other evidence admitted, it was no cause for a new trial that the judge refused to allow a witness to testify that the prosecutor in the case, who was a witness for the state, had previously said: "He stated to me he wanted to hang him [meaning defendant] as high as a telegraph post."
There were numerous exceptions to the charge; but, considered in the light of the evidence and the charge in its entirety none of them were sufficient to require the grant of a new trial.
Several grounds of the motion for new trial complained of omissions to charge, and several of the refusal to charge upon request but, in the light of the charge as given and the evidence submitted, none of them were meritorious.
The alleged newly discovered evidence was not sufficient to require the grant of a new trial.
The evidence was sufficient to support the verdict, and there was no error in refusing to grant a new trial.
(Additional Syllabus by Editorial Staff.)
The contention that the court erred in refusing to instruct Pen. Code 1910, §§ 64, 65, relating to voluntary manslaughter, cannot be sustained, where the court gave a concrete charge as to the law of voluntary manslaughter in so far as the offense was involved in the case, under either the evidence or the prisoner's statement.
Instructions that, if the circumstances were sufficient to excite the fears of a reasonable man that he was in any serious danger and the serious danger was less than a felony, it would be a voluntary manslaughter, and, if of a felonious assault, it would be justifiable homicide, and that, if an assailant intends to commit a trespass only, to kill him is manslaughter, and if he intends a felony, the killing is self-defense, and justifiable, did not give accurate statements of the law, and were properly refused.
Where the court, in charging, read the sections of the Code as to dying declarations, and further instructed that dying declarations should be received with great caution, that if they were made the jury should consider all the circumstances under which they were made, the mental and physical condition of the deceased, whether the circumstances were calculated to impair his powers of observation and memory, whether he stated a mere conclusion, or the facts of the case, whether his statement was full, and whether the account was influenced by resentment, and therefore biased, there was no error in refusing to charge that great caution is necessary in the use of dying declarations, as deceased may have spoken under circumstances of confusion and surprise, which may occasion an injury to the mind and an indistinctness of memory, and that such evidence is liable to be incomplete.
Alleged newly discovered evidence, merely intended to impeach witnesses for the state, is insufficient to require the grant of a new trial.
Newly discovered evidence, partly cumulative, offered by a witness whose veracity is sustained by the affidavit of one person and attacked by the affidavits of several, is insufficient to require interference with discretion of the judge in overruling a motion for a new trial.
Error from Superior Court, Muscogee County; S. P. Gilbert, Judge.
James Jefferson was convicted of murder, and brings error. Affirmed.
J. H. Martin, S. B. Hatcher, A. W. Cozart, Ed. Wohlwender, S. T. Pinkston, and J. E. Sheppard, for plaintiff in error.
Geo. C. Palmer, Sol. Gen., T. T. Miller, T. S. Felder, and T. Hix Fort, Atty. Gen., for the State.
James Jefferson was indicted for the crime of murder. The person alleged to have been killed was Marion Marchant, a policeman in the city of Columbus. The implement employed by Jefferson in committing the homicide was a pistol. Immediately before the killing, Jefferson was seen standing in the front door of Thompson's near-beer saloon, fronting on Sixth avenue, talking to Marchant, who was standing out on the sidewalk facing him. No other witness testified to having heard the conversation, but Jefferson was seen suddenly to commence firing his pistol while standing in the door, and to fire five shots in rapid succession; all taking effect, and all passing entirely through the body except one, which passed through the arm. At the first shot Marchant began falling face forward, and when the shooting was over was lying face downward on the sidewalk, unable to move. After lying in that position for several minutes, and calling for those coming to the scene to turn him over, he was lifted, and carried into the saloon, and laid on the pool table. In about five minutes after he was shot, he made certain statements to McPhail, a witness introduced by the defense, concerning the homicide, and about eight or ten minutes afterwards made other statements of the same character to J. T. Moore, the chief of police, and Moses Moon, a fellow policeman. The shooting occurred in the city of Columbus at about 7:30 o'clock on Wednesday evening, the 12th day of April, 1911. On Saturday following the shooting, he made to the solicitor general a statement, telling who shot him, and giving other circumstances attending the shooting. The statement was reduced to writing, and on the following Monday morning submitted to him, and upon its being read over to him he said that it was correct. During the same morning he died. The doctor was with him at the time he made the statement on Saturday, and testified as to the nature of his wound and his opinion that Marchant could not recover, and that he was conscious and realized his condition; but he was not with him at the time the written statement was submitted to him on Monday. The chief of police, who was present on both occasions, testified as to Marchant's condition and appearance, and, upon the facts recited by him, stated that Marchant was conscious and obliged to know that he was in a dying condition.
According to the statement of the accused, the policeman threatened to arrest him without cause, and, upon being remonstrated with, threatened to blow a hole through him, and attempted at the time to draw his pistol, whereupon the accused drew his pistol and fired the five shots; Marchant endeavoring all the time to draw his pistol, but failing to do so. According to the statement of the deceased, Jefferson was drunk, and a few minutes before had been warned by him to go home, and after returning from up the street and finding him at this saloon he "got after him again," and Jefferson began shooting him without any provocation. At the first shot he fell, and Jefferson "stamped" him. After this he was shot while lying on the ground, but could not say how many times. The jury found the accused guilty, without recommending that he be punished by imprisonment in the penitentiary for life, and the death penalty was imposed. A motion for a new trial was refused, and the defendant excepted.
1. The fourth ground of the motion for new trial, being the first of the amended grounds, complained that one of the jurors who rendered the verdict "was not a fair and impartial juror, but he was incompetent and disqualified to serve as a juror in said case; he having said [on a given date], and before the trial of this case, that the defendant ought to be hung." As to this ground the trial judge occupied the position of a trior on the hearing of the motion for new trial. The evidence submitted upon the question was conflicting, and there was no abuse of discretion in overruling this ground of the motion. In such a case the Supreme Court will not control the discretion of the trial court, unless it clearly appears that it has been abused. Bowdoin v. State, 113 Ga. 1150 (6), 39 S.E. 478; McNaughton v. State,
2. The fifth, tenth, eleventh,...
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