Lovett v. The State

• Decision Date: 31 January 1878
• Citation: 60 Ga. 258
• Parties: Lovett. v. The State.
• Court: Georgia Supreme Court

60 Ga. 258

Lovett. v. The State.

Supreme Court of the State of Georgia

(January Term, 1878.)

[This case was argued at the last term and decision reserved.]

Criminal law. Continuance. Evidence. Res gestae. Jury. New trial. Before Judge Pottle. Hancock Superior Court. April Adjourned Term, 1877.

This case arose upon substantially the same facts as that *of Griggs v. The State, 59 Ga. Rep., 738. Any further report beyond a reference to that is deemed unnecessary.

A. M. DuBose; B. H. Hill, Sr., for plaintiff in error.

Seaborn Reese, solicitor general, for the state.

Bleckley, Judge.

1. This case and that of Griggs v. The State, 59 Ga., 738, relate to the same criminal transaction. The two cases were argued together in this court. The continuance for which Lovett moved in the superior court was properly denied. Pop-ular excitement, as a ground for postponing trial, is generally not to be regarded. The statutory provisions for securing an impartial jury are very ample, and prove, for the most part, very effectual. If such a jury cannot be had in the county, the venue may be changed. Code, § 5118. There is very little danger that a jury regularly organized will turn out to be a mere detail from the mob. Could this happen at all, it would be highly improbable after a three months\' cooling time had elapsed. 24 Ga., 297; 18 Ib., 567; 48 Ib., 116.

2. Nor was the absence of the recently discovered witness a cause for continuance. The discovery was not complete; the witness was a conception, not a mature birth. He was in ventre sa mere. He was supposed to be in Massachusetts; a supposition founded upon information derived how, or from whom, or whence, no man knoweth. The sepulchre of Moses would, perhaps, be as easily found as this witness.

3. The coroner's minutes of evidence must have been admissible. The prisoner had affirmed the truth of what was there recorded, a part being his own evidence, and the rest the evidence of another for whose veracity he vouched. There was due proof that the minutes were correct, etc.

4. A witness was the son of the deceased. His mother told him what the prisoner said. These declarations were first proved by the son as reported to him by the mother; *they ought to have been proved by the mother as coming directly from the prisoner. She was called as a witness after the son was examined, and the irregularity was thus corrected. There was no absolute requirement for a new trial on this ground.

5. The prisoner first brought to the attention of the jury, that another person was arrested for the homicide. The warrant of arrest, with the magistrate's decision thereon, would seem to be the proper answer. This answer establishes that the warrant, etc., was unfruitful. It resulted in...