Myers v. State

• Decision Date: 29 April 1895
• Citation: 25 S.E. 252,97 Ga. 76
• Parties: MYERS v. STATE.
• Court: Georgia Supreme Court

25 S.E. 252

97 Ga. 76

MYERS v. STATE.

Supreme Court of Georgia

April 29, 1895

Syllabus by the Court.

1. Courts are the agencies employed by organized society for the administration of laws designed for the protection of its members in the enjoyment of their rights; and as, by the organic law of the land, no person can be deprived of life liberty, or property except upon the judgment of his peers it is the duty of the courts scrupulously to guard the right of trial by jury as one of the essential incidents of our judicial system, and one the maintenance of which in its purity and integrity is necessary, not only to the perpetuity of our institutions of government, but likewise to the protection of the liberties of the citizen against the possible encroachments of arbitrary power.

2. Upon the trial of a criminal case, the mind of every person chosen as a juror should at the time of his selection, with respect to the person and the particular matter under investigation be, as between the state and the accused, in a condition of perfect neutrality; and though, upon the voir dire, they each do qualify as being thus impartial, a verdict of guilty may, nevertheless, be impeached by satisfactory proof that a single juror entered upon the discharge of his duties with a fixed and determined purpose, formed in advance of hearing the evidence, to convict the accused.

3. The existence of mere ephemeral impressions or opinions, either preconceived, or produced upon the mind by reading newspaper reports, or from hearing rumors and statements under oath or otherwise as to the causes and circumstances attendant upon the commission of a homicide, is not necessarily inconsistent with such a state of mental neutrality as renders one legally competent to sit as a juror; but if such impressions or opinions so far crystalize as to attain in the mind of the juror, in advance of hearing the evidence, that degree of mental conviction upon the question of guilt or innocence which would not readily yield to the evidence, then the juror is not impartial, in contemplation of law, and is incompetent.

4. The probative effect of affidavits submitted pro and con upon a motion to set aside a verdict upon the ground of bias and prejudice of a juror is ordinarily a matter for the trial court; and, where there is upon such an issue a conflict of the evidence, this court will not usually control the discretion of the judge who tried the cause, if he sustain the verdict, even though, as against the affidavit of a single witness showing prejudice, nothing be offered in reply save only the fact that the juror upon voir dire qualified. Yet where two witnesses depose with direct circumstantiality to statements and conduct of a person afterwards selected as a juror, made and occurring before the trial, which evince a deliberate purpose upon his part to convict the defendant in the event he should be chosen as a juror, and no effort is made to discredit such affidavits, either by a contrary statement of the juror as to the facts stated therein, or otherwise (he being at the time accessible), the testimony of such witnesses should be accepted as true; and, if supported by evidence that the facts to which they depose were unknown to the accused or his counsel until after verdict, a new trial should be awarded.

5. While every person accused of crime is entitled to a public trial, it is not necessary to its legality that a great multitude should be in attendance; and the presiding judge should not permit the bar or court room to become so crowded as to impede the progress of the trial, by rendering it difficult for the jurors to enter or leave the box, or by preventing the free movement of counsel and witnesses. Moreover, the jury should not be in such close and constant contact with the audience as that remarks of bystanders as to the guilt or innocence of the accused, or other indications of public feeling for or against him, may reach their ears or come under their observation. The bar, at least, should at all times be kept sufficiently open and clear for the prompt and orderly dispatch of the business of the court.

6. It does no violence to the constitutional prohibition against compelling a person accused of crime to give testimony tending in any manner to criminate himself for an officer to whose custody such a person is committed to take from the person of the accused any article of apparel which may be material as evidence upon his trial; and if such officer, under such circumstances, take the shoes of a prisoner, and compare them with certain tracks found near the scene of the alleged homicide, he may testify to the result of his comparison, notwithstanding an objection upon the ground that the evidence was illegally obtained. Where, therefore, under such circumstances, the trial judge erroneously sustained a motion to rule out the evidence of the officer, to the effect that he had made such a comparison, and giving the result of the same, but omitted to state to the jury that the testimony so ruled out should not be considered by them, such omission affords no ground for the granting of a new trial.

7. The testimony of a witness as to transactions occurring in his absence, based upon information derived from others, is hearsay, and, upon objection made on that ground, should be excluded. Where, therefore, a witness, who was a pawnbroker, testified that, in his absence, the accused, under an assumed name, deposited in his shop a certain watch, and it appeared that the witness spoke to that point, solely upon information derived from his clerk, and from an inspection of his books, together with a certain pawn ticket introduced in evidence, such testimony was but hearsay, and, upon objection, should have been excluded.

8. Though submitted in writing, requests for instructions to the jury based upon theories of the law which upon no candid view of the pleadings and evidence are involved in the issues being tried, should be disregarded by the court; and, consequently, their refusal affords no ground for the reversal of a judgment denying a new trial.

9. Confessions of guilt, being against the interest of the accused, are always admissible, unless improperly obtained; but declarations in his favor are only admissible where, in point of time, their utterance is so nearly contemporaneous with the commission of the alleged offense as to become a part of the res gestaA. Where, therefore, it appears that certain statements of the accused were submitted to the jury, which embodied both confessions of circumstances tending to establish his guilt and likewise declarations favorable to him, and where it further appears that the inculpatory statements were improperly obtained, and the exculpatory declarations were not so nearly contemporaneous with the commission of the alleged offense as to be a part of the res gestaA, it was proper for the court, in its charge to the jury, though neither side so requested, to withdraw draw from their consideration all the statements in question, including both inculpatory admissions and exculpatory declarations. The court is not bound to submit false issues, based upon illegal testimony, though neither party to the controversy objects.

10. The bare fact that a reward has been offered for the apprehension of a person accused of crime is a circumstances which may be given in evidence as affecting the credibility of any person offered as a witness and sworn upon the trial, who was instrumental in effecting the arrest, and this without evidence showing affirmatively how and in what manner the credibility of the witness is affected thereby; and it was therefore error for the court to instruct the jury with reference to the testimony of such a witness that "the mere fact that the reward was offered is not any evidence against the credibility of the witness. There must be something in connection therewith to show that the witness testified in view of the reward."

11. Whatever is admitted by the trial judge as evidence is entitled to go to the jury for their consideration, to bear such weight and be given such credit as, in their judgment, it is entitled to receive. Where, therefore, in addition to the parol testimony of the witnesses, written or printed documents or other physical objects are received in evidence as bearing upon the issues made in the case, it is error for the judge to practically withdraw the same from the consideration of the jury, by an instruction that they would come to their conclusion from the evidence, and then immediately adding: "The evidence is what the witnesses testify before you from the stand." The verdict should rest upon the entire evidence, of every character, whether oral or otherwise.

12. Inasmuch as the questions made in this case, other than as herein ruled, including those relating to the motion to continue, the alleged improper conduct of counsel, and the newly-discovered evidence, are not of such a character as that rulings thereon would be of general public utility, and inasmuch as upon another trial the same questions cannot again arise, it is not deemed essential to rule upon the same.

Error from superior court, Fulton county; Richd. H. Clark, Judge.

W. J. Myers was convicted of murder, and brings error. Reversed.

W. T. Myers, E. M. & G. F. Mitchell, and Virgil Jones, for plaintiff in error.

C. D. Hill, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.

ATKINSON J.

The facts necessary to an understanding of the questions made in this case are as follows: William J. Myers was indicted in Fulton superior court for the murder of Forest Crowley. Upon his trial for this offense, he was convicted, and thereupon moved for a new trial upon numerous grounds. It will be necessary to...