Malone v. The State Of Ga.

• Court: Supreme Court of Georgia
• Writing for the Court: WARNER, Chief Justice
• Citation: 49 Ga. 210
• Decision Date: 31 July 1873
• Parties: MILTON MALONE, plaintiff in err0r. v. THE STATE OF GEORGIA, defendant in error.

49 Ga. 210

MILTON MALONE, plaintiff in err0r. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

[49 Ga. 211]

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[49 Ga. 212]

Criminal law. Murder. Mistrial. Continuance. Indictment. Grand jury. Jury. Challenge. Reasonable doubt. Drunkenness. Malice. Polling jury. New trial. Newly discovered evidence. Cumulative evidence. Before Judge Hopkins. Fulton Superior Court. October Term, 1872.

The defendant pleaded in abatement to the indictment, upon the ground that it was found by only ten of the original grand *jurors who were drawn, the panel having been filled with talesmen summoned for that purpose.

The plea was overruled, and the defendant excepted.

The defendant challenged the array of jurors put upon him, upon the ground that the various panels composing the same were drawn from a box containing the names of only one thousand persons, while the number of persons in the county of Fulton subject to jury duty, and from whom the defendant had the right to select a jury, amount to four thousand or more.

The Judge attached a note to this challenge, in which it is stated that no proof was submitted in support of the allegations therein contained. The challenge was overruled, and the defendant excepted.

With the above statement, this case will be found fully reported in the opinion.

W. A. Hawkins; Gartrell & Stephens; J. F. Pou; Hill & Candler; D. P. Hill, for plaintiff in error.

John T. Glenn, Solicitor General; S. B. Spencer; Thrasher & Thrasher, for the State.

WARNER, Chief Justice.

The defendant was indicted for the murder of Frank Phillips, and put on his trial therefor, at the first term of the Court after the offense was alleged to have been committed and indictment found. During the progress of that trial, and before its termination, one of the jurors was taken sick and a mistrial was ordered by the Court for that cause. During the same term of the Court, (the Court being held for several weeks,) the case was again called up for trial, and another trial was had, which resulted in a verdict finding the defendant guilty. A motion was made for a new trial on the several grounds specified and set forth in the record, which was overruled by the Court, and the defendant excepted.

[49 Ga. 213]

When the case was called the second time for trial, the defendant *made a motion for a continuance on the ground that the case could not legally be tried again during the same term of the Court; that he was then too sick to engage in the trial, and, also, for the absence of Emma Gilmore, a material witness for him, who had been subpœnaed, and who was present and testified on the first trial, states the material facts expected to be proved by her; that when she was first subpoenaed, she resided in the county, but did not state that she then resided in the county, or where she resided; that said witness was not absent by his consent or procurement; that he expected to be able to procure her testimony at the next term of the Court; that the application was not made for delay, but to enable him to obtain the testimony of said absent witness.

There is nothing in the laws of this State which prohibited the Court from proceeding with the second trial as it did, but, on the contrary, it was its duty to have done so, provided the term of the Court would extend to such a length of time as would allow the trial to be had. As to the sickness of the defendant, the presiding Judge certifies "that when the case was called at the appointed time for trial, it was stated that defendant was too sick to come into Court. I summoned two physicians, who, under oath, disclosed that defendant was suffering from the effects of alcohol; that there was nervous derangement. I then passed the case for a time which was indicated by the physicians. When he was again called on to announce, this affidavit was presented. I asked his counsel if his condition had grown worse, and they replied that it had not. I then asked them if they had anything further to offer in support of the ground of alleged sickness, and they said they had not. I was satisfied from all that had occurred in open Court, that defendant was in a proper condition to proceed with the trial." This certificate of the presiding Judge, as to the sickness of the defendant, disposes of that ground made in the showing for continuance. In relation to the absence of Emma Gilmore, it appears in the record that

[49 Ga. 214]

a motion had been made by the defendant on the first trial to *continue the case on account of her absence and others, which was overruled, and when that was done, she did appear in Court and testified for the defendant, and in that testimony disclosed facts which clearly indicate that her movements in coming from Chattanooga here to testify, were controlled by friends of the defendant; in other words, her testimony clearly shows that her movements in attending the Court were regulated by the wishes of the defendant\'s friends. She had left the State before the trial and gone to Chattanooga. When the motion for a continu-

[49 Ga. 215]

ance was overruled on the first trial, she returned here again in time to testify in the case in favor of the defendant, and is absent again when the case is called for trial the second time. These facts were all known to the Court when the motion for a continuance was made at the second trial. The presiding Judge certifies that he had no doubt, from all that had occurred before him in the progress of the cause, that the showing was made for delay only and to avoid a trial. Upon the former trial, Emma Gilmore was produced and examined, and the circumstances of her absence, and the means employed to get her to be present at the trial, are shown in her testimony. The Court admitted her testimony, taken down by the reporter on the first trial, to be read in evidence in favor of the defendant on the second trial. The argument for the plaintiff in error is, that when a defendant is indicted for a criminal offense and a motion is made for a continuance at the term of the Court at which the indictment is found on account of the absence of a witness, and he complies with the requirements of the 3471st section of the Code in making his affidavit for such continuance, the Court has no...