McDonald v. State

• Decision Date: 09 February 1884
• Citation: 72 Ga. 55
• Parties: MCDONALD v. The STATE OF GEORGIA.
• Court: Georgia Supreme Court

72 Ga. 55

MCDONALD v. The STATE OF GEORGIA.

Supreme Court of Georgia.

February 9, 1884

September Term, 1883.

1. As a general rule, when the court has admitted illegal evidence which is subsequently ruled out, this subsequent action of the court will cure the error; but this rule is subject to the exception that, where the illegal evidence, wrongfully admitted, upon the facts of the given case, may have worked such harm or injury to the accused as to render it probable that its subsequent withdrawal did not heal the wounds so inflicted, a new trial will be granted. The facts of this case are such as to render it probable that the error of the court in admitting the illegal testimony was not cured by the subsequent withdrawal thereof.

HALL J., concurring. JACKSON, C. J., dissenting.

2. Affidavits used on the hearing of a motion for new trial must be properly authenticated and brought to this court. A mere order that all affidavits so used be filed in the clerk's office, and the appearance in the record of what purport to be copies of the affidavits, with the entries of filing thereon, is not sufficient; and a ground of the motion dependent on them will not be considered.

Criminal Law. Confessions. Evidence. Practice in Superior Court. Practice in Supreme Court. Before Judge PATE. Dooly Superior Court. March Term, 1883.

Perry G. McDonald was indicted for assault and battery, alleged to have been committed on Stephen Woodward. The fact that he caught Woodward by the beard, pulled him out of a buggy, and committed a battery upon him, was scarcely contested, but it was insisted by the defendant that Woodward grossly and repeatedly insulted him, and gave him such provocation as to justify the battery. The defendant was about twenty-five years of age, while Woodward was about seventy-six. The jury found the defendant guilty. He moved for a new trial on various grounds, the only material one of which is stated in the opinions of the justices. The motion was overruled, and defendant excepted.

One ground of the motion for new trial was newly discovered evidence. In support of this ground, several affidavits appear in the record marked filed in office. There also appears in the record an order that the affidavits, to be used on the motion for new trial, should be submitted to counsel for the other side at least ten days before the hearing, and should be filed in the clerk's office before the hearing. When the case was called in the Supreme Court, a motion was made to dismiss the writ of error, under the ruling in Warnock vs. Kilpatrick, administrator, 70 Ga. 730. The court refused to dismiss the case, but declined to consider the ground to which these affidavits applied.

G. W BUSBEE; GUSTIN & HALL, for plaintiff in error.

C. C SMITH, solicitor general; HARRISON & PEEPLES, for the state.

BLANDFORD Justice.

The plaintiff in error was indicted for an assault and battery. The state, on the trial, offered to prove that a few days after the battery, accused said he wished he had broken every bone in prosecutor, on account of the manner in which he had been treated afterwards by prosecutor. This testimony was objected to by the accused as illegal. The objection was overruled by the court, and the evidence was allowed to go to the jury. Subsequently the court withdrew the evidence from the jury, upon motion of defendant's counsel. The general rule is that, when the court has admitted illegal evidence to the jury, which is subsequently ruled out, this subsequent action of the court will cure the error in the admission of the illegal evidence; but this rule is subject to this exception: where the illegal evidence, wrongfully admitted, upon the facts of the given case, may have worked such harm or injury to the accused as to render it probable that the subsequent withdrawal of such evidence from the jury did not heal the wounds so inflicted, then a new trial will be granted. This court, in Hall vs. State, 65 Ga. 36, intended to go to this extent only, although the language employed by the lamented judge in that case is susceptible of a construction that would carry that case much further.

By applying the minor rule thus laid down to the case now before us, we think it is probable that the error of the court, in admitting the illegal testimony complained of, caused such injury to plaintiff in error as the subsequent withdrawal of the same did not cure, and for this we reverse the judgment, and grant a new trial.

Judgment reversed.

HALL Justice, concurring.

I concur in the judgment of reversal in this case, not only for the reasons given by my colleague, but because I do not understand that it is one of the privileges of age to use, without provocation, opprobrious language to and of, and in the presence of another, which tends to a breach of the public peace, without legal responsibility for so doing. Code, §4372. On the trial of an indictment for assault and battery, the defendant may give in evidence opprobrious words and abusive language used by the prosecutor or person beaten, which may or may not amount to a justification, according to the nature and extent of the battery, all of which is to be determined by the jury. Code, § 4694.

In this case, opprobrious and insulting words seem to have been used by the prosecutor to the defendant, and notwithstanding his remonstrance and request that it be not persisted in, they were several times repeated, and, as it might be reasonably inferred, with the purpose of drawing him into a difficulty. It seems to me that the only question about which there could be any dispute was, whether the battery was so excessive as to degenerate into aggression, and to show that the alleged provocation was seized upon as a pretext by the defendant to gratify a revengeful feeling, and afford him an opportunity of inflicting upon his opponent unwarranted injury. Upon this question the testimony was pretty evenly balanced, if its weight was not in favor of the defendant's version of the affair. This was a question exclusively for the determination of the jury, and if it had been submitted to them upon the testimony alone, which was legally and properly before them and the presiding judge had been satisfied to let their finding stand, I would not interpose to arrest or modify it. But such was not the case on this trial; there was confessedly before this jury a fact which might have had a most material effect upon the conclusion they reached, and which had gotten before them improperly and illegally; it was the confession of the defendant that he was sorry that he had not broken every bone in prosecutor's body, because prosecutor had treated him badly since the difficulty. This last part of the confession was drawn from the witness upon cross-examination,...