Malone v. Hopkins

• Decision Date: 31 July 1873
• Citation: 49 Ga. 221
• Parties: MILTON MALONE, relator. v. Honorable JOHN L. HOPKINS, Judge of the Superior Courts of the Atlanta Circuit, respondent.
• Court: Georgia Supreme Court

49 Ga. 221

MILTON MALONE, relator. v. Honorable JOHN L. HOPKINS, Judge of the Superior Courts of the Atlanta Circuit, respondent.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

New trial. Bill of exceptions. Mandamus. Practice in the Supreme Court. Before the Supreme Court. July Term, 1873.

Malone petitioned the Supreme Court for a mandamus nisi requiring the Honorable John L. Hopkins, Judge of the Superior Courts of the Atlanta Circuit, to show cause why a mandamus absolute should not issue directing him to certify the bill of exceptions presented to his decision refusing a new trial in the case of the State against petitioner, lately pending in Fulton Superior Court.

The motion for a new trial was as follows:

THE STATE OF GEORGIA v. MILTON MALONE.

Indictment for murder, verdict of guilty, and motion for a new trial.

And now comes the defendant, by his attorneys at law, and moves the Court to set aside the verdict rendered in theabove cause, and to grant him a new trial upon the following grounds, *of which he knew nothing until about September 20th, 1873, and which came to his knowledge on or about that time, to-wit:

1st. Because he has learned that he can prove by one R. L. Turner, a citizen residing in the county of Fulton, insaid State, that he was present at the house known as the "carriage factory" on the night of the homicide, saw the whole difficulty, and knows that the defendant shot Phillips in defense of his own life.

2d. Because he has learned since the trial that the jurors put upon him on said trial were selected, chosen and impaneled under a law of the State of Georgia, enacted and passed for the purpose of excluding from service as jurors a certain class of citizens, on account of their previous condition of race and color, and that the purpose of said law was political, so as to deprive persons belonging to the republican party from an equal participation in the rights and privileges of other citizens, and equality before the Courts of said State of Georgia, and that the said proceedings and law are in violation of the fourteenth amendment of the Constitution of the United States, and resulted in manifest wrong and injury to this defendant.

3d. Because James O. Harris, the sheriff of the county of Fulton, in selecting said panel of jurors which was put upon said defendant, confined himself to a certain class of white persons, being only one thousand in number, when there were citizens of said county, amounting to four thousand seven hundred, equally liable and competent, under the law, to do jury duty, and that the same were drawn, selected and summoned by the sheriff aforesaid, to exclude from the jury and the equal participation before the Courts of the class of colored persons residing in said county, and to make up the jury in said case from the selected class, and not so as to allow equality before the Courts to all the citizens of the United States.

4th. Because the only qualification of a juror, under the Constitution of the State of Georgia, is uprightness and intelligence, when the same should be impartiality, and by which *means the defendant was denied all the tests usual in the Courts of justice, to test the fairness and impartiality of jurors selected to try him.

5th. Because the defendant was insane at the time of the commission of said alleged offense, at his trial therefor, and is now, which facts were not known, as developed by the testimony of Dr. Charles Pinckney, in an affidavit hereto annexed, until since said trial.

Said motion was supported by the following affidavits:

1st. Affidavit of James G. Maull, to the effect that be was a member of the Convention which framed the present Constitution of the State of Georgia; that he represented the county of Muscogee in the first Legislature assembled under the provisions of said Constitution; that it is his belief and understanding that the clause of said Constitution organizing a jury system, known as paragraph 2, section 13, Article V., was inserted therein for the purpose of excluding colored persons, as a class, from the jury box, and by operation of law to prevent said class from serving on juries; that the Actpassed by the General Assembly for the purpose of carrying into effect the aforesaid provision, had also in view, in his opinion, the exclusion from the jury box of the colored people as a class.

2d. Affidavit of James O. Harris, to the effect that he was the sheriff of Fulton county, and was present when the jury box was made up by the commissioners appointed for that purpose; that on the tax books there were two lists of tax payers, one of white and the other of colored persons, and the commissioners made up the jury box exclusively from the white list, without examining the list of colored persons at all; that all the panels put upon the defendant at his trial were taken from the jury box made up as aforesaid.

3d. Affidavit of Charles Pinckney, to the effect that he is a practicing physician; that he saw defendant for the first time on the morning of the day of the killing, and believed him insane, and so expressed himself to F. B. Palmer at the time; that he has been defendant's physician ever since the homicide, *and has all of this period believed, and does now believe, that defendant is at times an insane man, and that he was at the time of the killing in a condition of mania a potu; that deponent was a witness at the trial, and would have testified to these facts had the questions been propounded to him, but he did not feel called upon, on his own motion, so to do.

4th. Affidavit of F. B. Palmer, in reference to the remark made to him by Dr. Charles Pinckney, as to defendant's suffering from mania a potu.

5th. Certificate of A. E. Buck, clerk of the Circuit Court of the United States for the Northern District of Georgia, to the effect that the jurors selected from Fulton county for said Circuit Court consist of seventy, of whom forty are white and thirty are colored.

6th. Affidavit of defendant, to the effect that the facts set forth in the said motion for a new trial are true, to the best of his knowledge and belief, and have come to his knowledge since his trial, to-wit: about September 20th, 1873.

The State responded to said motion as follows:

1st. That at the October term, 1872, of this Court, a motion for a new trial in this case was made and overruled, which decision was affirmed at the July term, 1873, of the Supreme Court, and a second motion cannot be made, under the laws of this State.

2d. That...