Maddox v. The State Of Ga.

• Decision Date: 31 May 1861
• Parties: John Maddox, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

32 Ga. 581

John Maddox, plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

MAY TERM, 1861.

Indictment for murder, in Jones Superior Court. Tried before his Honor Judge Harris, October Term, 1860.

The plaintiff in error was indicted for the crime of murder, and being put upon his trial, was convicted.

When his case was called, he moved to continue the same on two grounds, which the presiding Judge overruled and his counsel excepted.

Pending the Selection of a jury to pass upon the case, the presiding Judge decided a juror competent who avowed on his voir dire, a fixed opinion as to the guilt of the accused from hearsay, and the prisoner excepted.

After the verdict of conviction was rendered, counsel for the prisoner moved for a new trial, which was refused, and prisoner excepted, and asks a reversal of the judgment on the ground of alleged error in the rulings and decisions aforesaid.

This is one of the cases that were burned, and the Reporter is unable to find the record, to give a fuller statement of the case, and therefore refers to the opinion of the Court, as so ably expounded by Mr. Justice Jenkins, in which a very clear statement of the questions in the case may be found.

——, for plaintiff in error.

Lofton, (Solicitor General,) contra.

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

This was a case of indictment for murder, and conviction. The defendant moved the Court for a new trial, on numerous grounds, all of which were overruled, and the defendant excepted. We deem it unnecessary to consider more than three of these grounds.

1st. It is alleged that the Court below erred in refusing to continue the case, upon the showing made by the defendant. This showing presents two causes for continuance. 1st. The recent commission of the homicide charged, (less than two months having elapsed between the killing and the trial,) and the prevalence of a degree of excitement in the county, against the accused, which rendered it unsafe for him to go to trial at that term of the Court.

The affidavit of the accused on this subject is very distinct, and he offered to corroborate it by the affidavits of two of his counsel. These latter the Court refused to consider, because the proposed affiants resided out of the county of Jones, at the same time, holding the accused to the adduction of evidence, other than his own, of the excitement in the public mind.

This latter requisition, however, was subsequently abandoned by the Court, and the continuance on this ground refused upon the authority of a decision of this Court in the case of Thompson vs. The State, 24 Ga. R., 297. (See page 303.) In that case this Court held, that since the passage of the Act of 1856, providing additional and thorough tests of the competency of jurors, there was little danger to be apprehended by those charged with crime, from unfriendly excitement in the public mind, and that the existence of such excitement was not of itself a sufficient showing for a continuance of a criminal case.

In the case of Thomas vs. The State, 27th Georgia Reports, 287, it was ruled, "that popular excitement alone is not sufficient to procure the continuance of a cause, except under extraordinary circumstances." We are not prepared to say that the affidavit of the accused in this case shows any extraordinary degree of popular excitement, or any extraordinary circumstances likely to swell that excitement to a height beyond what usually results from homicide. Nor can we say that had this been the only showing for a continuance it should have received the favorable consideration of the Court.

In the connection in which it was presented, however, it was worthy of consideration. In all cases, in which this cause is superadded to others, if the Court have a doubt of the sufficiency of those other causes, this one may very properly turn the scale in favor of the motion to continue, even though there be shown no "extraordinary" circumstances. This I understand to be the effect of past rulings on this subject, and I should be very reluctant to see the force of such a showing further diminished.

2d. The affidavit for continuance under consideration went much further. It alleged that before he shot deceased he had himself been shot, as he then and still believed by deceased, but that he is unable to prove this, and uninformed as to what the bystanders, who were numerous, know of the circumstances, by reason of his arrest on the day following that of the homicide, his continued confinement in jail ever since, his inability from poverty to employ counsel to prepare his case, and his lack of a friend to perform that service for him; that he believes diligent inquiry would bring to light the person who actually shot him; that the bill of indictment had been found against him at the present term, and that he had, by the charity of others, been provided with counsel only since its commencement.

The Court below held, that because the accused had residing in the neighborhood a father and a brother, he might, through their instrumentality, have prepared his case for trial during his confinement. But he swears positively that he had no friend to do this office for him. The existence of the relationship, referred to by the Court, does not negative the averment in the affidavit. and the close confinement of the accused, sick and sore from his wounds the while, relieves him from the imputation of laches.

He alleges that he had been sorely wounded before he fired, by whom he does not positively know, but that he then believed, and still believes, that he was returning the fire of his assailant, and that with further time he will be able to procure proof of it. It is objected that he names no absent witness by whom he expects to be able to prove the fact. But this is not an application for a continuance, because of the absence of a known witness to prove a particular fact, nor is the absence of a known witness the sole sufficient ground for a continuance. The ground of application is the existence of a fact important to his defence, of which he believes there were witnesses who may be ascertained, but whom he has thus far been unable to ascertain, for reasons clearly stated.

This is his case. The 175th section of the 14th division of the Penal Code provides that " every person against whom a bill of indictment is found, shall be tried at the term of the Court the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice should require the postponement of the trial, and then the Court shall allow a postponement, etc. Now, taking this affidavit to be true in fact, (and the law does not permit a traverse of it,) we think the principles of justice peremptorily required a postponement.

But again, in Allen vs. The State, 10th Ga. R., 85, this Court held that " a party who is conscious of his innocence, should not be compelled to incur the expense and labor of procuring testimony until there is a bill found. Under this ruling had the accused known of a witness by whom he could prove the fact in question, had he failed to subpœna him before bill found, and had he in consequence thereof been unready for trial, his showing would have been good. How much more when he swears that he believes the fact to exist, and that there are witnesses who know it, but that circumstances beyond his control have...