Keeser v. The:state Of Ga.

• Decision Date: 30 June 1855
• Docket Number: No. 20.,20.
• Parties: Henry C. Keeser, plaintiff in error. vs. The:State of Georgia, defendant in error.
• Court: Georgia Supreme Court

18 Ga. 194

Henry C. Keeser, plaintiff in error. vs. The: State of Georgia, defendant in error.

No. 20.

Supreme Court of the State of Georgia

JUNE TERM, 1855.

City of Augusta.Indictment for murder, in Richmond Superior Court. Tried before Judge HOLT, January Term, 1855.

Henry C. Keener was placed upon trial for the murder of James Reese.

When the name of James Sikes, a Juror, was called, hewas put upon the voire dire and answered negatively, all the questions required to ho propounded by law. He was put upon the prisoner, accepted by him, and sworn in chief to try said cause.

When the name of Samuel A. Verdery was called, he was put upon the voire dire, and in answer to the question, "Have you, from having seen the crime committed, or having heard any portion of the evidence delivered on oath, formed and expressed any opinion as to the guilt or innocence of the prisoner at the bar?" Said Juror answered that he had not, but that he had formed and expressed an opinion from what he had heard of the case. He answered the other questions negatively. The Attorney General pronounced the Juror competent, and he was accepted and sworn in chief, to try said cause.

In the progress of the cause, the Attorney General offered as an original witness, on the part of the State, one William A. Archer, whose name was not in the list of witnesses sworn before the Grand Jury, nor among those of whom the defendant had notice. Counsel for prisoner objected to said Archer's being sworn as an original witness on the part of the State, for those reasons. The Court over-ruled the objection, and Counsel for defendant excepted.

On the cross-examination of the State's witness, Goodwyn, Counsel for defendant propounded the question: "Whether the tone of voice, with the language and manner of deceased, at the time he walked through the piazza to the room in which the defendant was, were not such as caused him to expect or look for a difficulty?" The Court refused to allow the question to be asked, objection having been made by Counsel for the State, the Court holding that the witness could not give his opinion, but could only state the facts, which was sufficiently done by saying that the language was harsh and excited his attention. To which ruling, Counsel for prisoner excepted.

Counsel for prisoner having asked the witness, Prater, " whether he was acquainted with the general character ofdeceased for violence in the place where the difficulty occurred, " objection was made by the Counsel for the State. The Court, thereupon, refused to allow the question to be asked; to which ruling, Counsel for prisoner excepted. And the further question having been asked—"What was the character of deceased for violence in that particular place, " and objection thereto having been made by Counsel for State, the Court refused to allow the question to be asked; to which ruling Counsel for prisoner excepted.

A witness, Cosby, was introduced and sworn on the part of the prisoner, and testified as follows:

James Cosby, sworn for prisoner. Witness: On Friday night before the death of Reese, witness went in United States Hotel bar room and found Reese in there, and walked out into the hotel with him (Reese); he then remarked that he had not seen me on Mcintosh street for a good while; witness replied that he had not been there for about 10 months; Reese then said that he did not go there as frequent as he used to do—that Keener had taken his woman from him; and he said that Keener was a damned coward, and that he had made him leave there two or three times, and that if ever Keener crossed his path he would kill him; he then said ho was going out before long and kick up hell out there; this was either the Thursday or Friday night before his death; we then turned and walked down the street, and there was no more said about it.

The witness was then turned over, for cross-examination, to Counsel for the State, who immediately moved the Court to strike out from the record and withdraw from the Jury, all of said testimony of said Cosby, which motion was allowed by the Court; whereupon, Counsel for prisoner excepted.

In his charge to the Jury, the Court failed, omitted and declined—although requested by Counsel for prisoner so to do—to read to the Jury, or comment upon the 12th and 13th sections of the 4th division of the Penal Code, upon" which Counsel for prisoner had mainly relied for his defence. The Court having read the 1st, 2d, 3d, 4th, 6th and 7th sec-tions, then charged the Jury, that " the section of the Penal Code, applicable to the grounds on which the defence had been placed, was as follows: " (reading the 15th section.) To which failure, omission and refusal to charge, and charge as given, Counsel for prisoner excepted.

The Court was also requested, by Counsel for prisoner, to charge the Jury as follows:

1st. That if they believed, from the evidence, that the prisoner, at the time of the commission of the act, was under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him, amounting to felony, the killing was justifiable homicide.

2d. That if they believed, from the evidence, that prisoner was under similar fears of some act of violence and injury less than a felony, his offence was manslaughter, and not murder.

Which charge, so requested, the Court failed and refused to give; to which failure and refusal, Counsel for prisoner excepted.

A verdict of guilty was rendered. Whereupon, Counsel for prisoner moved the Court for a new trial, upon the grounds, viz: The several rulings of the Court excepted to as above, and also upon the following ground:

Because James Sikes, one of the Jurors sworn in chief, did not stand indifferent between the State of Georgia and Henry C. Keener, said Juror having, previously to being sworn, expressed decided opinions in relation to the guilt of the accused, and such strong prejudice against the accused, as rendered him an incompetent Juror in law, and which were unknown to the accused or his Counsel until after the verdict was rendered, as will appear by the annexed affidavits, the said James Sikes having previously answered, negatively, the usual question on the voire dire.

The following is the testimony in the case:

TESTIMONY ON THE PART OF THE STATE.

Edward Green, sworn: Witness knows prisoner by sight. Was not present at the difficulty. It was in the City of Augusta, County of Richmond, State of Georgia. Was at the place between 7 and 8 o'clock in the evening where Reese was killed, at the house of Jane Yarborough, City of Augusta. Heard deceased's name mentioned. Some one tried to persuade prisoner to go away; said he would not; said he would kill or shoot the damned son of a bitch, whose name had just been mentioned, or any other rail road man. Prisoner alluded to Reese. Deceased was not there at that time, to my knowledge. These remarks were made in the back piazza of the house. Prisoner was sitting down at the time.

Cross: Did not know to whom prisoner was addressing. It was in the back stoop of the house. Heard Reese's name mentioned. There were several present. Does not think prisoner's remarks were, if the damned son of a bitch came there to run him off again, he would kill him. They were trying to get him off. Heard something said about Campbell Minstrells afterwards; supposed it be Campbell Minstrells from the name given them. Did not know what was said before he went in the house; left while they were talking. Said nothing about disturbing him. Said if he came there that night, he would kill or shoot the damned son of a bitch.

William A. Archer, sworn: Witness knows defendant. Was present the night of the difficulty between Reese, deceased, and prisoner. It was in Richmond County in the early part of September last. Was there when Reese came in the parlor; he walked through into the back piazza— made some little noise, and hallooed out, " where is Keener, Yarborough's man?" I heard a voice which I supposed to be Keener's. I went out to where Reese was. Does not know Keener's reply. Mr. Reese was at the window, looking out on the back piazza. Reese went to the window and wantedto go into the room where Keener was. Told him (Reese) to open and come in. Reese had a knife in his hand; apparently an old knife, about six inches long. Could not tell what kind of a knife it was; blade about six inches long; looked large for a pocket knife. It was tolerable dark. Reese was jobbing at the window with the knife, telling Keener to open, Keener telling him, "come in—you come in here. God damn you." "Witness went and took hold of Reese; he jerked away from me. I took hold of him again, and asked him if he knew me. Said he did. Asked him to come away and not to raise any difficulty. He (Reese) said there would be no danger with a damned coward. Witness replied there was danger in a coward. Deceased said, "that is a fact, " and went off. We walked off into the parlor peaceably, and sat down in the parlor. There was a deck of cards on the table. Witness picked up the deck and dealt off three cards apiece to himself and deceased. There appeared to be considerable moving about among the women. Sat there some little time. Heard some one stamp out in the piazza, and some one say "here 1 am." I went out in the piazza; saw Keener, and when I approached him he told me to stand off; I still approached nearer Keener, and he backed and told me again to stand off". Prisoner then called me and told me to come to him. Don\'t know whether he (prisoner) had anything in his hand at that time. Put my hand on his shoulder and commenced talking to him, and told him not to have any fuss there, and to go off; said he would not; that he had been run off several times; had been woke up out of his bed, time and again, and he did not intend to be run off any more. While we were talking in that way, Mr. Reese came out of the parlor, close by, within ten feet. Keener kept talking, but without...