Mitchum v. The State Of Ga.

• Decision Date: 31 July 1852
• Docket Number: No. 72.,72.
• Parties: Wiley Mitchum, plaintiff in error vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

11 Ga. 615

Wiley Mitchum, plaintiff in error vs. The State of Georgia, defendant in error.

No. 72.

Supreme Court of the State of Georgia

JULY TERM, 1852.

Indictment for murder, in Stewart Superior Court. Tried before Judge Iverson. May Term, 1852.

The plaintiff was placed upon his trial under an indictment, charging him with the murder of William R. Morris.

The State introduced Wayne W. Eilands, who testified that he was present at the time a difficulty occurred between W. R. Morris and prisoner, on the 1st Monday in October, 1851, at the house of witness, in Florence, Stewart County. Morris was standing at the counter of witness for an hour; had taken three drinks; commenced singing and talking, which caused him to cough and vomit. Prisoner cursed him and said, " God d—n you, if you want to puke, go out of the house;" took hold of him and tried to push him out of the door; deceased caught hold of the door and said "not exactly yet." Prisoner drew a large Spanish dirk and struck deceased on the shoulder; deceased asked him if he was in earnest; prisoner said he was; deceased pulled out his knife and dropped it on the floor; prisoner stooped down, and witness thinks, picked up the knife; prisoner then drew a six barrelled revolver—presented it within six inches of the breast of deceased—took deliberate aim and fired; deceased died in five minutes; prisoner ran out of the bouse, but-was caught and brought back; never saw the prisoner before that day; had no authority in that house; deceased was quite drunk; prisoner was drinking, but not drunk; pistol was self-cocking.

Benjamin Horton, sworn by defendant, testified, that he was present at the time of the killing; prisoner had no difficulty with deceased; prisoner and witness were talking together, andprisoner was flourishing his pistol about, when it fired; prisoner was then looking at the witness, and appeared alarmed when the pistol fired; prisoner was drunk; the pistol belonged to witness, who loaned it to prisoner the evening before; was very easy on trigger; prisoner and deceased were not acquainted.

Thomas Gilbert, was some thirty or forty yards from the house when the pistol fired; prisoner ran out to where witness was standing; seemed to be drunk, and very much agitated; not over two minutes elapsed from the firing, before prisoner reached witness. Defendant's counsel proposed to prove by this witness that at that moment prisoner said " that he would not have done it for the world" which evidence was ruled out by the Court.

Benjamin Horton, re-examined. The moment the pistol fired, prisoner asked witness " if he had killed him;" witness said he did not know; prisoner said " he would not have done it for the world if he had."

Job C. Patterson (introduced by the State) contradicted Horton in some of the minutiae of his testimony.

The Jury returned a verdict of guilty. Whereupon defendant moved for a new trial, on the grounds—

1st. That there was not sufficient proof that the alleged crime was committed in the jurisdiction of the Court.

2d. That there was not sufficient proof of the identity of the person represented in the bill of indictment to have been slain, with the person proven on the trial to have been slain.

3d. That there was not sufficient proof that the deceased was slain by the prisoner.

4th. That there was not sufficient proof that the deceased was slain by the prisoner.

5th. That the Court erred in rejecting the evidence proposed to be proven by Thomas Gilbert, as above stated.

6th. That the Court erred in charging the Jury that it was evidence of express malice on the part of the defendant to constitute murder, if it appeared that the intention to shoot entered the mind of the defendant only one moment before the firing, provided there had been no actual assault on the prisoner by the deceased.

7th. That the Court erred in allowing the Solicitor General, in the concluding argument (although objected to by counsel for the prisoner,) to support the testimony of Eilands, by stating that he was an unwilling witness for the State; that he had refused to come under subpoena and was brought by arrest under attachment; none of which was in evidence before the Jury; the Court remarking that it was allowable, because B. K. Harrison, one of the defendant's counsel, had in his argument to the Jury, stated that Eilands was locked up on the Sabbath before the trial with the father-in-law of the deceased and the prosecutor, drinking with them, none of which was in evidence, Mr. Harrison contending that Eilands was a willing and a bribed witness.

8th. That the Court erred in refusing to permit the witness Eilands to be asked the question whether he did not on his examination before the committing Magistrate, swear, "that immediately after the shooting, the prisoner, being brought into the presence of the body of deceased, asked witness if he killed him; witness answered he did; prisoner said, " Lord, I am sorry for it, I did not intend to kill him."

9th. Because Wm. W. Beman, the foreman of the Jury, before he was sworn, had said to Elijah Bostwick, " that if the testimony was as he had heard it, the prisoner was guilty and would be hung;" which fact was unknown to the prisoner until after the trial.

10th. That the verdict is contrary to the evidence.

11th. That the verdict is contrary to law.

In support of the ninth ground, defendant's counsel filed the affidavit of Beman the Juror, stating, that not being examined on his voire dire he had not stated the fact that he had expressed an opinion; that he did express the opinion to Bostwick, but that he was influenced in finding his verdict only by the evidence and the charge. Also the affidavit of the defendant that he was ignorant of this fact until after the trial.

It appeared to the Court that Beman, with a view to deter the counsel from selecting him as a Juror, had said to B. K. Harrison, one of defendant\'s counsel, before the trial, that " he had better not take him as a Juror, as he would hang the prisoner."

The Court refused to grant a new trial on either of the grounds taken, and error has been assigned on each ground.

Gaulding and Harrison, for plaintiff in error.

Sol. Gen'l. Williams and Jno. A. Tucker, for defendant.

By the Court.—Nisbet, J. delivering the opinion.

The errors complained of in this case, grew out of a refusal to grant the prisoner a new trial. And first, it is claimed that the presiding Judge erred in refusing a new trial upon the ground that it was not proven that the crime with which the prisoner was charged, was committed within the jurisdiction of the Court. By the Constitution of the State it was triable alone in the County where it was committed, and the Court had jurisdiction over it no where else; to give jurisdiction, therefore, it was necessary to prove that it was committed in the County where the Court was sitting. The Court sat, and the trial was had in the County of Stewart, and the proof was that the crime was committed in the house of the witness, at Florence, in the County of Stewart. That the Court was sitting in the County of Stewart and State of Georgia, was a fact known to the Court from its own records and the public law. When therefore it was proven that the crime was committed in the County of Stewart, it was proven that it was committed in the County in which the Court entertained jurisdiction over it. Non constat that there is in Georgia any other County called Stewart. There is no use in discussing a question like this. If such an exception were sustainable, it could be done alone by taking leave of common sense, and by yielding the solid virtue of judicial investigation to a distinction too subtle to command the least respect.

The next exception goes upon the assumption that the proof did not identify the person charged to have been murdered with the person proven to have been slain. The personslain, according to the indictment, was William R. Morris, and the person proven to have been slain, was W. R. Morris. It is claimed that the variance between the allegation as to the person and the proof is fatal.

It is very clear that there must be a killing before there can be murder, and it is equally clear that the prisoner cannot be convicted of murder unless he is proven to have slain the person which the indictment charges him to have murdered. On this indictment for the murder of William R. Morris, the plaintiff in error could not be convicted upon proof that he had mur-dered John Stiles. So vital is this, as a practical rule, that its observance substantially, must be insisted upon with strenuous-ness. It may be conceded that in former times, such a variance would have been held decisive, and even now, we are not altogether satisfied that we are right in not so holding it. We think however, whether W. R. Morris, the person slain according to the testimony, was or was not the William R. Morris charged to have been slain in the indictment, was a question safely trusted with the Jury. W. R. it is true, may represent Wilson R. or Willis R; but these letters may also represent William R. The Jury had the right to consider the question of identity, not alone in the light of the testimony specially referred to, but also in the light of all the attendant circumstances. They were satisfied with the identity, as is evidenced by their verdict, and we will not disturb it on this account.

A new trial was asked and refused, on the ground that there was not sufficient evidence that the deceased was slain by the prisoner; and to the ruling on this point the prisoner takes exception. A mere recital of a portion of the evidence, is sufficient to quiet this complaint. The witness Eilands says, " Prisoner stooped down, and as witness heard a rattling on the floor, and did not see the knife afterwards, he supposed that prisoner picked it up; prisoner rose with a six barrelled pistol in his hand—presented it at the breast of deceased, not more than six inches distant—took...