Miller v. State
| Decision Date | 17 April 1913 |
| Citation | 78 S.E. 181,139 Ga. 716 |
| Parties | MILLER v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Newly discovered evidence, which is impeaching and cumulative in character, is not generally cause for a new trial. In this case there was no abuse of discretion in refusing to grant a new trial because of newly discovered evidence.
Where a juror is kin both to the prosecutor and the defendant within the prohibited degrees of relationship, and this fact is known to the defendant, and he makes no objection until after conviction, he will be presumed to have waived the incompetency of the juror.
The fact that a sister of a juror married the brother of the prosecutor's wife establishes no relationship between the prosecutor and the juror, and the latter is not incompetent to serve as a juror on the trial of one charged with the murder of the prosecutor's child.
It is not error to fail to instruct the jury on the law of justifiable homicide and of voluntary manslaughter, where the evidence does not authorize it.
Error from Superior Court, Heard County; R. W. Freeman, Judge.
S Holderness and W. Smith, both of Carrollton, W. C. Wright, of Newnan, and A. J. Andrews, of La Grange, for plaintiff in error.
J. R Terrell, Sol. Gen., of Greenville, Frank S. Loftin, of Franklin, H. A. Hall, of Newnan, and T. S. Felder, Atty. Gen., for the State.
John Daniel and Lou Miller were jointly indicted for the crime of murder. Daniel was never tried, having fled from the state and died without being arrested. Miller was put upon trial as a principal in the second degree, convicted, and sentenced to life imprisonment in the penitentiary. He made a motion for a new trial, which was overruled, and he excepted. The evidence for the state tended to show that a few hours previous to the homicide Daniel and the prosecutor, D. E. (Doc) Bell, had a difficulty in the presence of the defendant, who was in the buggy with Daniel, and who had without legal provocation shot at Bell, and Bell, later arming himself, returned the fire, after Daniel had again fired first at Bell. Daniel and the defendant retired from the scene of the first encounter, and the defendant procured a Winchester rifle from a neighbor, and soon thereafter Daniel, with a Winchester rifle, in company with the defendant, went to Bell's home, where his family was, and a general fusillade occurred, Daniel shooting from behind a stump, and, according to eyewitnesses, firing first at Bell, who was on or near his front porch when the shooting began, and who later retreated to a storehouse near his dwelling, from where he and his brothers' friends returned the fire with shotguns and a parlor rifle. During this shooting the defendant was standing near Daniel and saying, In his statement the defendant denied this and said that what he did say was, "Don't shoot!" A Winchester rifle ball entered the dwelling house of Bell from the direction Daniel was standing and killed an infant child of Doc Bell in one of the rooms. After the shooting both Daniel and the defendant left the scene of the homicide together and fled from the state.
1. The first, second, third, and fourth special grounds of the amended motion ask for a new trial because of newly discovered evidence. Most of this evidence tends to impeach the state's witness McBrayer, who testified on the trial that, as he passed the scene of the difficulty, the defendant was standing near Daniel, who did the shooting, and said to the latter, "Shoot!" The affidavits of these newly discovered witnesses tend to show that McBrayer prior to giving his testimony said to the affiants that he understood the defendant, Lou Miller, to say to John Daniel, "Shoot!" but he could not be positive, that he might have said, "Don't shoot!" that his mule was frightened and he was watching his mule instead of Miller. In a counter affidavit McBrayer denies the language attributed to him by all the alleged newly discovered witnesses and says that what he did say to these witnesses was the same as his testimony given on the trial of the case, which was that he heard the defendant, Lou Miller, say to John Daniel, "Shoot!" and that he did not hear him say, "Don't shoot!" Two other newly discovered witnesses gave affidavits to the effect that on the afternoon of the homicide they saw John Daniel, who had on his shoulder a Winchester rifle at the time. Daniel gave affiants the first information they had of the difficulty at Bell's. The judge did not abuse his discretion in refusing a new trial upon the ground of this newly discovered evidence.
This evidence was impeaching and cumulative in its character, and "it is well settled that alleged newly discovered evidence of this character is not generally cause for a new trial, even where it is uncontradicted; and it is perfectly clear that, where it is contradicted by evidence introduced by the state on the hearing of the motion, there is no abuse of discretion in refusing to grant a new trial upon the ground of the existence of such evidence and its discovery since the rendition of the verdict." Washington v. State, 124 Ga. 423, 431, 52 S.E. 910, 914; Burge v. State, 133 Ga. 431, 66 S.E. 243; Wimms v. State, 135 Ga. 659, 70 S.E. 254.
2. The fifth ground of the motion assigns error because Joe Bagwell, a juror who was impaneled and sworn, and who did try the defendant, was related to D. E. (Doc) Bell and to the deceased; the latter being the infant daughter of the prosecutor. It is insisted that the juror is a second cousin by marriage to the prosecutor and a third cousin to the deceased and is therefore within the prohibited degrees of relationship. The affidavit to support this ground tends to show that "Bagwell married a Barber, which said Miss Barber was a daughter of Bud (L. E.) Barber; said Bud Barber married a Miss Mathis; and said Miss Mathis was a first cousin to John Bell; Doc Bell, the prosecutor in said case, is a son of John Bell." From this affidavit it appears that Bagwell, the juror, is the husband of the third cousin of the prosecutor. In other words, the juror married the prosecutor's third cousin. This would bring the juror within the prohibited degree, and as a general rule would disqualify him and would be cause for a new trial, if he served on the jury which convicted the defendant, without knowledge on the part of the defendant or his counsel of the relationship at the time of his acceptance and service as a trial juror. But the state introduced on the hearing of the motion for a new trial a counter affidavit of L. E. Barber, who testified that he was "the father of Lola Bagwell, the wife of Joe Bagwell; that deponent married Emma Mathews; that Matilda Mathews was the daughter of Mrs. Brown; that Mrs. Brown was the sister of John Cheek and also the sister of Mrs. Luke Bell, who was the grandmother of Lou Miller and D. E. Bell, the prosecutor; that Lou Miller [the defendant] always called deponent 'cousin Bud' and called my wife cousin; that said Miller has visited deponent's family; that Mrs. Luke Bell was the grandmother of said Lou Miller and said D. E. Bell." It appears, therefore, that the defendant and the prosecutor had a common ancestor in Mrs. Luke Bell, the grandmother, and consequently are first cousins. We think the evidence sufficiently indicates, if it does not absolutely show, that the defendant knew of the relationship existing between the juror and the prosecutor. He did know of the relationship between the juror and himself; and it is inconceivable that he did not know the relationship existing between all three. He lived in the neighborhood, was a first cousin of the prosecutor (as testified by the latter), and he called the juror's father-in-law "cousin Bud." The prosecutor testified that the defendant "was nearly double a first cousin to me; he was a first cousin, then he was a second cousin." If the juror was related to the prosecutor within the prohibited degree, he was also as nearly related to the defendant within the prohibited degree. This relationship must have been known to the defendant, because he always addressed the juror's father-in-law as "cousin Bud" and his wife as cousin. It is well settled that, where a juror is known to be incompetent, such incompetency is presumed to be waived unless objection is made. Georgia R. Co. v. Cole, 73 Ga. 713 (2b); Lampkin v. State, 87 Ga. 516 (7), 13 S.E. 523; Hadden v. Thompson, 118 Ga. 207 (2), 44 S.E. 1001.
3. The sixth ground of the motion assigns error because of the alleged relationship of one of the jurors, Jim Boggus, to Mrs. D. E. Bell, the wife of the prosecutor, and mother of the child killed, within the prohibited degrees. The affidavit of L. R. Jones introduced by the defendant at the hearing of the motion tends to show that Boggus, the juror is a brother-in-law of Jim Jones in that the latter married a sister of Boggus, and Jones is a brother of Mrs. D. E. Bell, the wife of the prosecutor, and the mother of the child killed. In other words, the juror is a brother-in-law of Jim Jones, who is also a brother-in-law of the prosecutor, Doc Bell. Neither is there any relationship between the juror and the mother of the child by reason of the fact that she was the sister of Jones who married the juror's sister. This does not disqualify the juror. It comes within the ruling made in the case of Burns v. State, 89 Ga. 527, 15 S.E. 748. It was there held that: And see City of Dalton v. Humphries, 139 Ga....
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