John T. Boyd v. The State Of Ga.

• Decision Date: 31 January 1855
• Docket Number: No. 38.,38.
• Citation: 17 Ga. 194
• Parties: John T. Boyd, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

17 Ga. 194

John T. Boyd, plaintiff in error. vs. The State of Georgia, defendant in error.

No. 38.

Supreme Court of the State of Georgia

JANUARY TERM, 1855.

Murder, in Muscogee Superior Court. Tried before Judge Crawford, June Term, 1854.

David Wright, as principal in the first degree, and John T. Boyd, as principal in the second degree, were jointly indicted for the murder of Mark Robinson. The defendants severedand the Solicitor General elected to place Boyd, the principal in 2d degree, upon his trial first; which being allowed by the Court, is assigned as error.

One Kelly being called as a Juror, was asked by prisoner's Counsel if he lived in the city of Columbus? He answered yes. The State's Counsel then asked him "if he had resided here for six months?" He answered in the negative. The State's Counsel challenged him for cause. The Court understanding the last question to refer to the county sustained the challenge —Counsel for prisoner asking no questions and making no objections. Which decision is now assigned as error.

The Court admitted evidence to show that the deceased, Robinson, was Deputy Sheriff at the time of the homicide, and was acting in his official capacity. This decision is assigned as error.

The Court admitted in evidence a peace warrant against David Wright, and two warrants for a riot, severally, against Wright and Boyd, by virtue of which Robinson arrested Wright and Boyd at the time he was shot. The admission of this evidence is assigned as error.

Subsequently, the State's Counsel moved to withdraw from the Jury the consideration of the two warrants for a riot. The Court allowed the motion and this is assigned as error.

The Court charged the Jury, among other things, that they should find a general verdict of "guilty" or "not guilty." This charge is assigned as error.

The Court omitted to instruct the Jury as to the other grades of homicide—holding that there was no such offence as principal in the 2d degree in manslaughter. This omission by the Court is assigned as error.

A new trial was moved upon these several alleged errors, which being overruled, is also assigned as error.

Welborn & Clark, for plaintiff in error.

Sol. Gen. Brown, and Ramsey, for defendant.

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

Was it regular for the Court to suffer the principal in the second degree to be tried before the principal in the first degree? The affirmative of this proposition is fully sustained by the authorities.

"Principals in the second degree, " says Mr. Chitty, "were formerly denominated and regarded as only accessories at the fact. And it seems that he who actually committed the crime, was alone guilty as principal; and those who were present aiding and assisting, were but in the nature of accessories, and could not be put upon their trial until the principal was first convicted. This distinction has, however, been long since exploded; and now the stroke is considered as constructively given by all who consent and were present at its infliction; and they may be put upon their trial though the actual slayer is neither outlawed nor found guilty." (1 Chitty's Crim. Law, 256, citing 9 Coke, 67, b. Plowd. 98, a. 1 Hale, 437, 438. Hawkins, b. 2 c. 20, ^§7.) These authorities we have examined, and they fully support the doctrine in the text, and are conclusive upon this point.

Should the State's Attorney have been permitted to set aside the Juror, Edward P. Kelly, for cause?

When this Juror was offered, the usual Statutory questions were propounded to him, in order to test his competency. Having answered them in the negative, he was put upon triors. He was then asked if he resided in the city? He said he did. Have you lived here six months? was the inquiry next propounded. He replied that he had not; whereupon, the Juror was discharged for cause. And the complaint is, that the Judge misapprehended Kelly's answer; that he did not intend to say that he had not lived in the County of Muscogee six months, but that he had not resided so long in the City of Columbus.

Suppose this were so, what was the duty of the prisoner's Counsel? He should have insisted, at the time, that the Courtlabored under a mistake as to the Juror\'s answer. By their silence they must be held to have acquiesced in the understanding of Judge Crawford. Counsel are under obligations to the Court and to the country, as well as to their clients. And they must be required to keep and observe, in good faith, the former as well as the latter.

But did the Court misunderstand the response of Mr. Kelly? We think not; there is not any necessary connection between the first and second questions, and the first and second answers. The Juror, it will be borne in mind, is in the courthouse of Muscogee County, where the trial is progressing; and when the Juror stated that he had not lived here six months, he must be considered as meaning in the county where the trial was had. Besides, it does not appear, nor was any attempt made to make it appear, that the Juror thus rejected was legally qualified to serve. The failure to make any effort to show his competency, is the best evidence, that if made, it would have proved unsuccessful. We are called upon, therefore, to pronounce the judgment of the Court below erroneous, for setting aside one as an exceptionable Juror, who was not proven to have been otherwise, nor any motion made to do so.

The next error assigned is, in suffering the peace warrant to be read to the Jury. This process was issued in due form and by the proper officer, and placed in the hands of Mark Robinson, the Deputy Sheriff, by the Magistrate, to be executed. Being regular upon its face, we see no reason why it should have been withheld. But it is contended that this could not be done, there being no allegation in the indictment that the deceased was an officer acting in the discharge of his duty when killed. And this objection applies, not only to the peace warrant, but to all the testimony which went to establish the official character of the deceased. We know of no principle or practice which renders such an averment necessary in a bill of indictment. This fact, like any other ingredient, must be established to sustain the charge of murder. But neither this nor any other evidence need be set out in the record.

Mr. Chitty, in his book on Criminal Law, 3d Vol., p. 172, lays it down expressly, that "where the indictment is for the murder of an officer, or in any case where the circumstances are complicated, it will be unnecessary to set out any of the details, and that the indictment will be sufficient, in such cases, if it contain the general requisites of an indictment for murder." And further—"that if more of the special circumstances in evidence of malice be stated, than is necessary, the prosecutor will not be compelled to prove them; but they may be rejected as surplusage." And he refers to Mackalley\'s Case, (Croke, James, 280.) The indictment in this case, on account of its minuteness, repetition and prolixity, will, a few years hence, be a curiosity to the legal antiquarian. It will be found in extenso in the 9th volume of Coke\'s Reports.

By the King's command, all the Judges of England were ordered to meet together, to resolve what the law was upon the record of conviction. Accordingly, they assembled "and heard Counsel learned upon the special verdict, as well of the prisoner's as of the King; and the matter was very well argued on both sides, at two several days, " when all the Judges of England and Barons of the Exchequer held, that "when an officer is slain, as in the case before them, there needs not a special indictment upon all the matter, to be drawn, as in this case was done; but a general indictment, that such a party, ex malitia sua precogitata percussit, &c. And although there be not proof made of any precedent malice, yet the indictment is good; for the law presumes malice." Judgment was given accordingly, and Mackalley was executed.

It is gratifying to find mature investigation upon every point decided in this case, so abundantly fortified.

It is assigned as error, that other warrants were allowed to go illegally to the Jury, and then to be withdrawn against the consent of the defendant. There were a couple of warrants sued out against Wright and Boyd, by one Nancy Johnson, and intended to charge them with the offense of a riot. The warrants were defective in not alleging that other persons were concerned in the offence; and it is argued that on account of this omission, no crime was charged. Mr. Chit- ty states that a warrant is valid without setting forth any crime, (1 Crim. Law, 41. See also, 2 Hale, 111 Hale, 580, and Dick. J. Warrant, 1.) The authorities which seem to look contrary-wise have confounded the law as applicable to commitments, with that which relates to warrants. In commitments, it is always necessary to set out the charge or offence; but not so in warrants. Indeed, some of the cases go to the extent of maintaining that cases may occur in which it would be imprudent to let even the peace officer know the crime of which the party to be arrested is accused. (11 State Trials by Hargrove, 304, 323. Com. Dig. Imprisonment, 11, 7. Bacon\'s Ab. Tresp. D, 3.)

In Mackalley's case, to which I have before referred, it was resolved, amongst other things, that if there be error in awarding process, or in the mistake of one process for another, and an officer be slain in the execution thereof, the offender shall not have the advantage of such error; but that the resisting of the officer, when he comes to make an arrest in the King's name, is murder.

In Hale's Pleas of the Crown, 1 Volume, p. 460, we find this principle distinctly enunciated: "And although the warrant of the Justice be not in strictness lawful, as if it express not the cause particularly enough; yet, if the matter be with in his jurisdiction as Justice of the Peace, the killing of the officer in execution of such warrant, is...