Lyman v. State

• Decision Date: 12 September 1882
• Citation: 69 Ga. 404
• Parties: LYMAN v. THE STATE OF GEORGIA.
• Court: Georgia Supreme Court

69 Ga. 404

LYMAN v. THE STATE OF GEORGIA.

Supreme Court of Georgia.

September 12, 1882

September Term, 1882.

1, 2 3. The verdict was not contrary to law or the evidence.

4. If counsel know of misconduct on the part of the jury during the trial, such as conversing with others than members of their body, they should bring the same to the attention of the court, or it will be held to have been waived. They cannot take the chances of acquittal, and upon failure make such conduct a ground for new trial.

5. When information received is a fact showing motives or explaining conduct, it ceases to be hearsay evidence and becomes admissible.

6. Objection being made to a witness on the ground that, after being put under the rule, he was present in the court room during a portion of the trial if he testifies that such is not the fact, and that he has heard none of the testimony nor the prisoner's statement, his testimony is admissible.

( a. ) That a witness for the state, after being put under the rule, and having testified, may have heard the prisoner's statement, would not disqualify him from reintroduction.

7. A ground of the motion for new trial which is not approved will not be considered by this court.

8. To ask counsel publicly in the presence of the jury trying a cause whether the jury should be allowed to disperse, is error.

( a. ) A case having been called in the afternoon, and the court not desiring to begin the trial, if it would require keeping the jury together all night, that, before they were empanneled or sworn, he asked counsel whether the beginning of the case that evening would necessitate the keeping of the jury together, did no injury.

New Trial. Criminal Law. Practice in Superior Court. Jurors. Before Judge BROWN. Cobb Superior Court. November Term, 1881.

To the report contained in the decision it is only necessary to add in connection with the fifth division thereof, that Sanges the person assaulted, in stating how the assault happened testified as follows: " A young man reported that Neese's house had been broken into. I notified Stephens, the sheriff, of the fact. I was acting as a special policeman. He and I started up there, ** When we got to a house used by McClatchey for a lime house, Stephens said, ‘ Hold on; I saw something go in there.’ Stephens asked me to strike a match, etc. One ground of error assigned was the admission of the testimony that it had been reported that Neese's house had been broken into. For the other facts see the decision.

W. J. WINN; C. D. PHILLIPS; W. T. & R. WINN, for plaintiff in error.

GEO. F. GOBER, solicitor general for the state.

CRAWFORD Justice.

The plaintiff in error, having been convicted of an assault with intent to murder, seeks a new trial for errors which he alleges to have been committed by the court below.

1, 2, 3. The first three grounds of error assigned are, that the verdict is contrary to law, contrary to evidence, and without evidence to show that the defendant was guilty beyond a reasonable doubt.

That the defendant made an assault upon James Sanges at the time and place alleged, is not controverted, but that he made an assault with intent to murder him is denied. How this was must be determined by the jury, under the law and testimony.

Sanges at the time of the assault, was a policeman, on duty in Marietta, and upon information received that a dwelling house had been broken into, he in company with the sheriff, whilst on their way to the same, saw somebody or something enter a house used for the storage of lime, but otherwise unoccupied. These officers approached the door, and when they reached it, Sanges opened it with his left hand, and the sheriff requested him to strike a match, which he did, and in an instant he was stricken a heavy blow in the face, which " started him over," when a second felled him to the ground. The light of the match discovered to the officers Lyman, the defendant, and one Williams, his co-defendant. The defendant was standing with his stick raised in both hands, and in a striking position, Williams stooping over, whether to arm himself or...