Miller v. State

• Decision Date: 20 January 1896
• Citation: 25 S.E. 366,97 Ga. 653
• Parties: MILLER v. STATE.
• Court: Georgia Supreme Court

25 S.E. 366

97 Ga. 653

MILLER v. STATE.

Supreme Court of Georgia

January 20, 1896

Syllabus by the Court.

1. Where the credibility of a witness was open to attack because upon a previous occasion, when it was apparently his duty to speak out, he had not disclosed any knowledge whatever as to certain very material matters, but at the trial testified that he did have knowledge of the same on the occasion referred to, it was competent to sustain the witness by proving that he kept silent on that occasion because he was advised to do so.

2. A juror whose deceased wife had been a second cousin of the accused in a criminal case was not disqualified from serving on the trial thereof unless the deceased wife left issue; and where, on such trial, the state alleged the incompetency of the juror, on the ground that he was related by affinity to the accused, it carried the burden of showing that the former relationship was still subsisting, by proving affirmatively that the deceased wife did in fact leave issue.

3. It was error, upon the trial of an indictment for murder, to admit in evidence against the accused declarations made by a third person before the homicide was committed, which, though uttered in the presence of the accused, amounted at most to no more than an implied threat by the person making them against the life of the deceased, and contained nothing tending to incriminate the accused, or call for a repudiation of them upon his part, and which--there being no evidence of any conspiracy between him and the declarant to commit the murder, nor any legal reason rendering them admissible--were totally irrelevant to the issue on trial.

Error from superior court, Paulding county; C. G. Janes, Judge.

Clabe Miller was convicted of homicide, and brings error. Reversed.

The following is the official report:

Clabe Miller and Howard Parton were jointly indicted for the murder of Wesley H. Roberts. They severed. Howard was tried convicted, and sentenced to life imprisonment, and his motion for a new trial was overruled. The material grounds of the motion are sufficiently apparent from the opinion, excepting those referred to in the third division, which are as follows: Error in refusing to exclude, on motion of defendant, the following testimony of W. J. Parris: "I was trying to advise Howard Parton to go home and work with his father. Work was scarce, and bad weather, and he was not getting any work to do. And he just said he would go home, or go home to his father, if it was not for one or two things. Miller, the defendant, was present at the time. I said 'What is it?' He said, 'If I go home, there is two or three I will be obliged to kill,' or bound to kill, if he should go home. Liza Jane, my daughter, said 'Howard, if I was to guess, would you tell me?' He said, 'Yes.' She said, 'Is Oscar Campbell one?' He said, 'Yes; that is one'; and she guessed two or three more,--I don't recollect who they were. And in this talk he said: 'There is old Hogan Roberts. The damned old rascal ought to have been killed several years ago. He don't do anything but undermine people. He runs to Dallas, and undermines people, and reports them for dealing in whisky and toating concealed weapons.' That is what he said about Mr. Roberts. Clabe Miller turned to my wife and said, 'Mrs. Parris, did you ever know anybody to get rich by work?' She said 'No, I don't know that I did; but have known people to make a living by work.' He said, 'I am not able to make a living by work, and there is a living here on this earth for me, and I am going to have it.' That is all I heard Miller say in my presence." Defendant moved to exclude the testimony as to Parton's sayings to Parris on the ground that the evidence failed to show any conspiracy between said Parton and defendant, and for that reason Parton's sayings were not admissible on the trial of Miller. Error in not excluding, on motion made upon the ground just stated, the following testimony of Eliza Parris "Pa, he commenced talking to Howard, and told him to go home to his pa; he said he thought it was the best place for him; and Howard said he would if it was not for one thing. He said, if he should go back to Hulseytown,--he called it,--there were two or three he would be bound to kill; then he was ready to die. I said, 'Howard, if I guess, will you tell me?' He said, 'Yes,' and I guessed Oscar Campbell. He said, yes, he was one. I guessed Bill Mosley. He said nothing. And I never thought to guess anybody else, and he never said, anyhow. He said: 'Old Hogan Roberts, the damned old rascal! he ought to have been killed some years ago. He is always ready to undermine people,--reporting them for toating concealed weapons and selling liquor.' That is all I heard him say. Clabe Miller said to Ma, 'Mrs. Parris, did you ever know a poor man to get rich by work?' Ma told him, no, they always could make a good living if they tried. He said he was not able to work, and there was a...