Kearney v. State
| Decision Date | 20 July 1897 |
| Parties | KEARNEY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The declaration of a person who died of a mortal wound, to the effect that, in the declarant's opinion, the infliction of this wound was accidental, is not admissible in favor of the slayer upon his trial for murder.
2. It is not improper for a trial judge, when he sees that a witness is embarrasses or hesitates while testifying, to caution him not to become excited, and to think over what he is going to say.
3. Where, in a criminal trial, the solicitor general makes an improper statement, of which the judge is not aware, or indulges in an improper argument, which the judge, of his own motion, promptly stops and rebukes, and no ruling as to these matters is invoked by the accused or his counsel, it is too late after verdict to take advantage of such irregularities.
4. When, in a trial for murder, there is a doubt as to whether the pistol with which the homicide was committed has been put in evidence, there is no impropriety in the judge's inquiring as to the truth of this matter, in order to satisfy his own mind "whether the pistol had been formally offered in evidence."
5. While, as a general rule, the contents of a writing cannot be proved by parol, if the fact that a witness has knowledge of the existence and of the amount of an insurance policy is relevant as affecting her credibility, such knowledge is a proper matter of inquiry, and it is not erroneous to allow the witness to testify to the same, and, in so doing, to state the amount of the policy, "if she knows it as a substantive fact independent of the policy."
6. It is not incumbent upon the judge to require the official reporter or stenographer of the court to remain in attendance until the end of a trial, in order that, in case of disputes between counsel as to what the evidence was, a party may not be "deprived of the privilege of referring to the official report of the case to refresh the recollection to the jury."
7. If the judge undertakes to instruct a jury trying a murder case as to the various forms in which their verdict may be written, and, in so doing, states what would be proper forms for all findings, from that of murder without a recommendation down to voluntary manslaughter in the commission of a lawful act, he should not omit to state in the same connection what the form of the verdict should be in case of an acquittal. Failure to do so is not, however, cause for a new trial, when it appears that the judge distinctly charged the jury that, in a certain view of the evidence they should acquit the accused, and when it is manifest from their finding him guilty of the highest offense charged that the omission in question could have done him no injury.
8. There was no error in the charges complained of, the evidence warranted the verdict, and the record discloses no cause for a new trial.
Error from superior court, Chatham county; R. Falligant, Judge.
Patrick Kearney was convicted of murder, and brings error. Affirmed.
T. S Morgan, Jr., and T. L. Hill, for plaintiff in error.
W. W Osborne, Sol. Gen., and
p>Page J. M. Terrell, Atty. Gen., for the State.
Patrick Kearney was indicted for the murder of John W. Wyness. He was convicted, and, upon his motion for new trial being overruled, he excepted.
1. The court properly refused to permit the witness Halliman to testify, in behalf of the accused, that Wyness, the deceased, the day after the shooting, told the witness that the shooting was accidental, and requested the witness to so inform the recorder, at the same time saying that "it must have been accidental, because he did not think Pat wouldhave done it on purpose." These statements were matters of opinion or belief, and therefore were not admissible as dying declarations. McPherson v. State, 22 Ga. 478; Whitley v. State, 38 Ga. 50; Ratteree v. State, 53 Ga. 570; 6 Am. & Eng. Enc. Law, 126, and cases there cited.
2. It was not improper for the judge, when he saw that the witness John Coaker was embarrassed or hesitated while testifying, to caution him by saying, "Don't get excited; just think it over." What the judge did was evidently for the purpose of eliciting the truth from the witness, and was in the interest of a fair and impartial trial, and the accused had no just cause of complaint. In Epps v. State, 19 Ga. 118, Judge Lumpkin said:
3. The solicitor general asked the witness Coaker, "Did any of Mr. Kearney's friends ever offer you any money to testify in this case?" The question being objected to by counsel for the accused, the solicitor remarked, "I will withdraw the witness now, as I stand prepared to prove it." Plaintiff in error, in his motion for new trial alleges that such statement was calculated to prejudice and harm him before the jury. The judge certifies that he did not hear the remark of the solicitor general, that his attention was not called to it, and that no objection was made to it at the time by counsel for the accused. It is due to the solicitor general to say that he contended that the remark was only intended for the ears of counsel for the accused, who was sitting near by. The statement was certainly improper, but as the judge did not hear it, and as his attention was not called to it, either when made or afterwards during the trial, and as no ruling was invoked upon it at any time, it was too late after verdict to raise the point in a motion for a new trial. In Young v. State, 65 Ga. 528, it was held: "For counsel to sit silently by, saying nothing, asking no correction in the charge, and never bringing his complaint to the attention of the judge, until it appears among the grounds for a new trial, would be to lie in ambush both for him and the opposite party, and this the law does not encourage." When the solicitor general, in his concluding argument to the jury, made the improper remarks complained of, counsel for the accused made no objection nor asked any ruling in reference to them. The judge certifies that he, of his own motion, immediately checked and rebuked the solicitor, directing him to confine his argument to the evidence, and at the same time instructed the jury that they, also, must confine themselves to the evidence in the case and the law as given them in...
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