Judge v. The State Of Ga.

• Decision Date: 28 February 1850
• Docket Number: No. 29.,29.
• Citation: 8 Ga. 173
• Parties: Judge, a slave, plaintiff in error. vs. The State of Georgia, defendant.
• Court: Georgia Supreme Court

8 Ga. 173

Judge, a slave, plaintiff in error. vs. The State of Georgia, defendant.

No. 29.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1850.

Certiorari, from a Special Term of the Inferior Court of Houston County. Trial and decision had and made 30th of July, 1849. Certiorari refused by Judge Floyd, September, 1849.

A slave, named Judge, the property of Robert Freeman, was charged with, tried, convicted and sentenced for the crime of murder. On the trial, prisoner's counsel objected—

1st. To the array, because a former Jury had been regularly drawn and summoned to try said negro, on the same charge, which Jury had been discharged, (and, so far as now appears, capriciously discharged.)

2d. Because the Sheriff by his return on the venire, showed that he had legally served only twenty-three instead of twentyfour Jurors—one Juror having been served by a subpoena left at his residence instead of personally, and the Sheriff was then allowed to correct his return, and call said Juror served. 3d. Because Jesse McKinnie Evans appeared and answered, when the name of Jesse McClay Evans was called—he stating that there was a mistake as to his name.

4th. After State's counsel had said he closed for the present, and prisoner's called on to proceed, and declined introducing any evidence, and the case thus submitted to the Jury, prisoner's counsel asked the Court to charge the Jury, that they must acquit the prisoner, because the warrant and other preliminary proceedings before the Magistrates, had not been offered in evidence to support the allegations in the indictment; which also was refused, and the State allowed then to introduce said evidence; and after lawful notice of the intended application for certiorari, it was applied for, and refused, as above stated.

Giles and Powers & Whittle, for plaintiff in error, cited the following authorities—

Prince's Digest, 791, 793. Joy on Conf. and Challenge, 180. 3 Black. Com. 355. 2 Coke on Lit. 218. Starkie on Ev. Arbouin vs. Willoughby, 1 Marshall, 477, (4 E. C. L. R. 348.) Lindsay vs. Wells, 3 Bingh. N. C. 777, (32 E. C. L. R. 327.) Coles vs. Green, 1 Bingh. 426, (8 E. C. L. R. 36.) Mary vs. The State, 5 Miss. 71. Drake vs. Boyce, Riley, 222. Brown vs. Giles, 1 Carr.&P. 118, (11 E. C. L. R. 337.) Rex vs. Bazely, 19 E. C. L. R. 353. Rex vs. Hillditeh, 5 Car. &Pay. 299, (24 E. C. L. R. 330.) Rex vs. Stimpson, 2 Car. &Payne, 415, (12 E. C. L.R..197.)

Rogers, for defendant, cited—

Prince's Digest, 789 to 793. 1 Chit. Grim. Law, 299, 300, 511, 512, 556. Stark. Grim. Pl. 331, 332, 290, 291, 273 to 275.

2 Mass. R. 172, 173. 1 Wheeler's Cr. Cases, 222. 2 lb. 96 to 101. Graham on New Trials, 24 to 30. 5 John. R. 83, '4. 3 Peters, 6. 14 Ib.327. Bacon's Abr. Misnomer, a. 2 Russell on Crimes, 705. 1 Phil. Ev. 167.

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

The error assigned to the decision of the presiding Judge of the Court below is, the refusal to sanction a certiorari, presentedin behalf of the negro slave, Judge, who had been tried for the offence of murder, before the Justices of the Inferior Court of Houston County, and found guilty.

There are several grounds stated in the petition for certiorari, which appear to be sustained by the bill of exceptions signed by the Justices of the Inferior Court.

The first ground taken in the certiorari is, that the Inferior Court discharged the first panel of the Jury drawn to try the slave.

It appears that a Jury was regularly drawn and summoned for the trial of the slave, for the offence of murder. The 8th section of the Act of 1811, required the Justices of the Inferior Court to draw a Jury for the trial of slaves, at their regular terms. Prince, 790. The Act of 1811 was amended by the Act of 1816, which authorizes a majority of the Justices of the Inferior Court forthwith to draw a Jury, after being notified of the commitment of a slave charged with a capital offence, of not more than thirtysix, nor less than twenty-six Jurors. Prince, 792.

According to that part of the 8th section of the Act of 1811, which was not repealed by the Act of 1816, twenty-four of the Jurors so drawn and summoned, according to the Act of 1816, are to be impannelled for the trial of such slave. The 9th section of the Act of 1811 declares, that the owner or manager of the slave, shall have the right of challenging seven of said number, (that is, of the twenty-four,) and the said Court five on the part of the State, and the remaining twelve shall proceed to the trial of such slave. Prince, 791.

The construction which we give to the Act of 1816 is, that it was not intended to alter the number, twenty-four, which was to constitute the panel out of which the Jury were to be selected for the trial of the slave, as provided by the 8th section of the Act of 1811. The Act of 1816 requires not less than twenty-six Jurors to be drawn and summoned—twenty-four of whom will constitute a legal panel for the trial of the slave.

It appears a Jury had been regularly drawn and summoned for the trial of the slave Judge, and were discharged by the Court without any cause, so far as the record discloses. Without some good and legal cause shown, the slave was entitled, under the law, to have been tried by a Jury, to be selected out of the twentyfour impannelled out of the twenty-six so regularly drawn andsummoned for that purpose. The 9th section declares, that after the owner or manager of the slave, and the Court, shall have exercised the right of challenge given to them respectively, the remaining twelve of the Jury shall proceed...