Monday v. The State Of Ga.

• Decision Date: 30 June 1861
• Citation: 32 Ga. 672
• Parties: Monday, (a slave,) plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

32 Ga. 672

Monday, (a slave,) plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1861.

Assault with intent to murder, in Sumter Superior Court. Tried before Judge Allen, at the April Term, 1861.

This was in indictment in which the grand jury "charge and accuse Monday, a slave, of the county and State aforesaid, with the offence of an assault with intent to murder, for that the said defendant, Monday, a slave, on the fifteenth day of October, in the year eighteen hundred and sixty, in the county aforesaid, did then and there unlawfully, and with force and arms, willfully, feloniously, and of his malice aforethought, make an assault at and upon one Andrew Bass thenand there being, said Andrew then and there being a white man, with intent him, the said Andrew Bass, then and there wilfully, feloniously, and of his malice aforethought, to kill and murder, to the damage of said Bass, contrary to the laws of said State, the good order, peace and dignity thereof."

The defendant being arraigned, pleaded not guilty.

Pending the organization of the jury to try said case, one of the jurors, W. A. J. McKnight, being called, was asked the questions prescribed by the statute, and his answers rendering him prima facie a competent juror, counsel for the prisoner put the juror upon the Court as a trior, and proposed to ask said McKnight if he had not talked with the prosecutor about this case, and expressed to said prosecutor an opinion against the prisoner? And if he did not have a fixed opinion against the prisoner? Upon objection being made thereto, the Court would not permit the prisoner's counsel to ask the juror these questions, holding that no question could be propounded to the juror except those prescribed by the statute, and that if the prisoner's counsel desired to show that the juror was incompetent, it must be done by some one else.

Prisoner's counsel then swore Andrew Bass, the prosecutor, who testified: That he may have had a conversation with the juror about this case, but that if anything was said, he did not recollect what it was.

The presiding Judge pronounced the juror competent, and prisoner's counsel was forced to challenge the juror peremptorily.

The jury being empanneled, the testimony adduced on the trial of the case disclosed, in substance, the following facts:

Some time in the month of October, 1860, the prosecutor (Andrew Bass) was going out of the town of Americus, on his way home, from the house of a neighbor, where he had been sitting up with a sick child—it was early in the morning, between daybreak and sunrise, and as he passed along, his attention was arrested by a noise in the bushes, as of something running; he stopped, and in a few minutes some one, appearing to be a negro, came into the road aheadof him; the negro came toward him and met him; Bass asked who it was; the negro replied, Monday McRea; the negro had a bottle in his hand; Bass passed the negro, and as he arrived at the place where the negro came into the road, he discovered a sack lying by the road. He put his foot on it, to see what it was, and whilst he was examining the sack, the negro walked back to where he was. Bass asked the negro what was in the bag, and he answered, that it contained nothing but clothes. Bass and the negro took hold of the sack about the same time. Upon examination, the sack was found to contain bacon. Bass told the negro to pick it up, and he would go with him to town, but the negro insisted on going to a house near by. Bass then told him that he intended to take him to town, but the negro still insisted on going to the other house. Bass then told him that if he did not go on he would knock him down. The negro becoming more obstinate, Bass struck him once or twice with his fist. Bass was holding to, and pulling the negro along, when, somehow or other, they both fell to the ground. The negro caught Bass by the throat and choked him severely, so much so that he could scarcely get up from the ground. Bass would cry for help whenever he could get his breath sufficient to do so. His cries at last attracted the notice of persons who came to his relief, and as they came up the negro ran off. Bass\' throat was skinned on both sides of his neck, by the negro\'s finger nails, and was badly hurt and much exhausted. Bass had known Monday (the prisoner) for ten years, and testified, that he felt certain that the negro was the prisoner, Monday. In about one-half or three-fourths of an hour after the scuffle with Bass, Monday was in his mistress\' kitchen putting on his shoes.

Amongst other testimony adduced by the State, was that of one John C. Beard, who testified: that attracted by the cries of Bass, he went to where he was, and some one ran off; that he asked Bass what was the matter? to which Bass replied, that Monday McRea was trying to choke him to death.

This testimony of Beard was objected to, but the objection was overruled.

Dr. Thomas C. Lamar, one of the witnesses for the State, testified, amongst others things, that he was unable to state how long it would require for strangulation to produce death; that it would depend upon the extent to which the air passages were closed; he would say it would require but a few minutes; that he would suppose severe choking or strangulation would produce death, by cessation of respiration, if the air passages were completely closed, in a few minutes.

This testimony was objected to by the prisoner's counsel, but the Court overruled the objection.

The prisoner relied on the proof of an alibi, as one of the grounds of his defence, and in support of this defence, introduced three witnesses to prove that he was at home, at his mistress', (Mrs. McRea's,) at the time the difficulty occurred between the negro and Bass.

This defence was met by the State with testimony, going to show that one of the defendant's witnesses was unworthy of credit, on account of his general bad character, and that another had made statements, out of Court, at variance with his testimony in Court; and also, by the testimony of one Mrs. Barfield, who testified, that early on the morning of the difficulty she saw Monday going toward Mrs. McRea's, and after he passed some time, there passed some dogs and men, going in the same direction he was and following on his (Monday's) path.

There was much other testimony, but the foregoing statement is sufficient to illustrate the decision of the Supreme Court, upon the points presented in the record.

After the testimony had closed, and the Court had taken a recess for dinner, counsel for the prisoner learned, during the recess, that he could prove by James W. Bagan, that Mrs. Barfield was mistaken in her testimony, and that the dogs did not run on the path or track of Monday, or in the direction, as indicated by Mrs. Barfield; that when Mrs. Barfield saw Monday, he was under arrest, and in custody of the marshal and guard, going to the guardhouse; that afterthe dogs had ceased running, Ragan went to where Monday was, his dogs bayed him, and this was the direction indicated by Mrs. Barfield\'s testimony.

When the Court re-assembled, after dinner, prisoner's counsel announced to the Court what he had learned during the recess, and also stated further, that in conversation with Mr. Eagan, he (Ragan) informed the counsel that he had told the prosecutor that his testimony would do the State no good, and that he had better not swear him; that thereupon the prosecutor let him off; that he had been subpoenaed by the prosecutor. Counsel for the prisoner then instructed Ragan to...