Ozburn v. State
| Decision Date | 24 April 1891 |
| Citation | 13 S.E. 247,87 Ga. 173 |
| Parties | Ozburn v. State. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. When, on the trial of a felony, several of the jury have been selected, and one of them becomes sick, it is not error to excuse him, and then proceed regularly to complete the panel to the number of twelve; and this the court may do without summoning a physician to determine that the juror is sick.
2. On the trial of a murder case the court was requested in writing to give in charge to the jury the sections of the Code relating to the law of voluntary manslaughter and of justifiable homicide, and complied with the request as made except as to justifiable homicide; and, it plainly appearing that in no view of the case the law of justifiable homicide was applicable, no error was committed.
3. When, on a trial for murder, the court failed to instruct the jury they could find the defendant guilty of voluntary manslaughter, and no error is assigned on such failure either in the motion for a new trial or bill of exceptions the question whether or not such failure was error is not before this court for review.
4. A witness who testifies to the good character of a defendant for peaceableness, and that he had never heard of defendant having a difficulty before, may be asked on cross-examination if he had never heard of defendant's shooting any one before, and if he had never heard of his shooting a man in another state.
5. On the trial of a murder case counsel for the state may comment before the jury upon the propriety or impropriety of their recommending imprisonment for life as a punishment.
6. A specified portion of the court's charge concerning the defendant's statement being in the main correct, an exception to the same as a whole, not alleging any particular portion thereof to be erroneous, cannot be considered. In this case there is nothing in the charge complained of requiring a new trial. In charging concerning statements made by defendants, courts should confine themselves to the language of the statute upon this subject, and not indulge in extended comments upon the effect to be given to such statements.
Error from superior court, Fulton county; R. H. Clark, Judge.
1. After eleven jurors had been selected, but not sworn in chief, and, by direction of the court, had been kept together for a day and night, one of them became sick, and was unable to serve. The court satisfied himself of the juror's illness, which he certainly had a right to do without summoning a physician, and then discharged him, and proceeded regularly until two other jurors were selected, and the panel completed. There was no error in this conduct of the court. See Pannell v. State, 29 Ga. 681, and Hanvey v. State, 68 Ga. 612. In the latter case it appears that the juror did present a certificate of a physician that he was unable to serve; but it further appears that the judge himself, counsel consenting, heard the juror's excuse under oath, and determined therefrom that he was, on account of his sickness, unable to serve. It is immaterial how the fact of sickness is shown, if the judge is satisfied it exists. The consent of counsel was unnecessary to the validity of the court's action.
2. Defendant's counsel presented to the court a request in writing, which was as follows: "The defendant's counsel request that the court give in charge to the jury the sections of the Code defining and relating to the law of voluntary manslaughter and of justifiable homicide." It appears from an examination of the record that the court complied literally with this request, except so far as it related to justifiable homicide. He read to the jury the sections of the Code defining voluntary manslaughter, and explained to them distinctly the difference between murder and manslaughter, emphasizing the fact that the chief distinction between these two offenses was that in murder malice must exist, while in manslaughter there was an absence of malice. In no possible view of the case would a charge concerning justifiable homicide have been legal or proper. Indeed, the zealous and faithful counsel for the prisoner who argued the case before this court virtually conceded that the law of justifiable homicide had nothing to do with it. We therefore find no reason in this ground of the motion for granting a new trial.
3. The court, when instructing the jury as to the form of their verdict, did not state to them that they might find the defendant guilty of voluntary manslaughter. There was no request made to this effect; nor was any complaint made, either in the motion for a new trial or in the bill of exceptions, of the failure of the court to so instruct the jury. The question, therefore, is not made by this record, and cannot now be adjudicated, whether such failure was error or not. It was argued before us that the court ought to have distinctly told the jury that they could convict this defendant of voluntary manslaughter, but the fact that he did not do this is, as already stated, nowhere assigned as error. But suppose this had been done, would any benefit therefrom have resulted to the plaintiff in error? Taking the entire charge together, it in effect amounted to instructing the jury that if they should believe the defendant was guilty of voluntary manslaughter, they must acquit him. The judge plainly and clearly defined what was necessary to constitute murder, and told the jury, in substance, that unless they believed the defendant guilty of this offense, they must find him not guilty. In one view this charge was more favorable to the defendant than he had any right to expect or demand, because, following it, the result would have been an acquittal, even though the jury believed he was guilty of voluntary manslaughter. Be this as it may, we think it is clear from the record in this case that, if the judge had plainly instructed the jury they could convict of this offense, they would not have done so. If there had been the slightest inclination on the part of the jury to reduce this crime below the grade of murder they would most assuredly have recommended imprisonment for life, and thus have averted the penalty of death. The fact that they found the defendant guilty without making such recommendation is absolutely conclusive that in no event would they have rendered a verdict of voluntary manslaughter. This conclusion is fortified by the fact that the judge in his charge plainly and repeatedly told them that the penalty must be death unless they recommended life-time imprisonment, and used language which must have impressed upon them in the most solemn and emphatic manner the grave responsibility which rested upon them of deciding whether this man should be sent to the penitentiary or the gallows.
4. After a witness for the defendant had sworn that he knew the defendant, and had known him for a long time; that his character for peaceableness was good, and he had never heard of his having any difficulty at all,-it was not error to allow the state's counsel, on cross-examination, to ask the witness if he had never heard of defendant shooting any one before, and also, if the witness had never heard of his shooting a man in another state. A knowledge of character is derived from general reputation, and, the witness having sworn in effect that the reputation of the defendant was good as a peaceable man, and that he had never heard anything to the contrary, it was certainy allowable, on cross-examination, to sift the witness as to the accuracy of his testimony and the sincerity of the statements made by him. What the witness heard would not, of course, be evidence of the truth thereof, nor would it be proper to go into details of the occurrences referred to, but to the extent indicated the questions were proper, and the answers thereto admissible. Section 3874 of the Code, as to impeached witnesses, is as follows: "The witness may be...
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