Revel v. The State Of Ga.

• Decision Date: 30 June 1858
• Citation: 26 Ga. 275
• Parties: James Revel, plaintiff in error. vs. The State of Georgia,defendant in error.
• Court: Georgia Supreme Court

26 Ga. 275

James Revel, plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

JUNE TERM, 1858.

Murder, in Crawford Superior Court. Tried before Judge Lamar, at March Term, 1858.

The facts of this case are stated in the opinion of the Court.

Hunter; and Lochrane, for plaintiff in error.

Sol. Gen.; and S. Hall, for the State.

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

Was the Court right in overruling the plea to the jurisdiction of the Court in this case?

The regular terms of Crawford Superior Court are on the first Mondays in March and September. To accommodate the bar, who were in attendance on the Supreme Court at Macon, Judge Lamar determined to adjourn over Crawford Court. He first acted under the statute of 1823, (Cobb, 460,) as amended in 1837, (Cobb, 461,) that is, through the agency of the Clerk. But reflecting that he could not order an adjournment through this officer, except on account of the sickness of himself or his family, or some other Providential cause, which cause the law required to be expressed in the order of adjournment, he attended in person, at the regular term for holding the Court; opened the Court; offered to hear motions, &c, and then adjourned over the Court till the Monday following. I confess I am unable to comprehend the objection to the regularity of this proceeding.

If the Court that tried the prisoner during the second week was not legally constituted, then no adjourned Court ever held in this State was. The Courts have the power, and they have uniformly and universally exercised it for threescore years, when once organized, of adjourning from day to day, or from week to week, even passing over intervening sessions in other counties, until they have completed the business of the term; and we know of no limitation or restriction upon this right. The Acts cited have no application to a Court which has been properly organized, and which has entered upon the duties of the term.

Ought the continuance to have been allowed?

The showing is made up of several distinct grounds. As to the public excitement, there is nothing in that. The offence had been committed five months before the prisoner was put upon his trial. Surely, this was sufficient time for the mind of the community to become tranquilized, if it ever wasunduly excited. It is manifest, that such indeed was the fact. Seven impartial jurors were selected and sworn out of the first panel of forty-eight; and the remaining five out of the next. And it does not appear that the whole of this second panel was exhausted. No public passion, which would prevent a fair trial, could have prevailed under such circumstances. The prisoner was mistaken if he thought so.

And then, as to his want of opportunity to prepare for his defence, by reason of the recent finding of the bill; that does not meet the truth of the case. The accused had been arrested for this offense, and committed to jail five months before. What prevented him from setting about at once to hunt up his testimony, if he had any? He might have applied for compulsory process to coerce the attendance of witnesses. If this had been denied, his application would have seemed more reasonable. The transaction was not complicated, involving any mystery to be unraveled; there were but few persons present when the homicide was committed. They were doubtless all known to the defendant. Most, if not all of them, have been examined on the trial. True, the accused could not anticipate with certainty, whether the grand jury would find a true bill for murder or manslaughter. He could but foresee, however, that the same proof would be required in either event. Indeed, it would readily occur to him, that his main purpose would be to mitigate the crime from murder to manslaughter.

If the fact of his imprisonment hindered him from doing anything for five months, how much better off would he be were the time prolonged? He would not have been bailed after the true bill for murder was found. One witness, Elizabeth Bundrick, was subpoenaed and did not attend. Was her testimony material, or even relevant? Whether Adams was killed by Revel, or died under the want of skill in the surgeon, in attempting to extract the ball from the wound, is a matter of little or no consequence in the present issue. Revel admits, in his affidavit for a continuance, that he shotboth Adams and Hammock. True, he says it was in self-defence. He does not dispute intending to kill Adams. If he was not justifiable, then, he was guilty of an assault with intent to kill Adams. It follows, therefore, that the degree of criminality between the two cases, as to Adams, was too slight to make any perceptible difference on the trial for killing Hammock. And that, consequently, the evidence of Mrs. Bundrick was quite immaterial. It could not have affected the verdict of the jury.

The next objection is, as to the mode of selecting the jury.

The first panel of forty-eight was made up by adding to the twenty-four jurors in attendance upon the Court, a like number of talesmen, to which no exception was taken. Seven jurors having been selected and sworn out of this panel, forty-eight more were summoned and presented to the prisoner, who, through his counsel, objected to this second panel, on the ground that it was not authorized by the Act of 1856, regulating the manner of empaneling a jury in a criminal case.

It is true, that the 2d, 3d, 4th, 5th, 6th and 7th sections of that Act refer only to new panels of forty-eight, where the former have been set aside by challenges to the array; and no part of the Act makes provision, in so many words, for summoning additional panels, where the former have been exhausted by challenges to the polls. Still, it may be inferred from several expressions in the Act, that the Legislature did not intend to change the old law in this respect. In section 10 it is said, that the Court shall proceed to apply the tests furnished by the Act to secure an impartial jury, "until a jury be empaneled to try the accused." Now, this requirement is impracticable, unless new panels are summoned. Again, in the 11th section, "until a jury is empaneled to try said case." Pamphlet Acts, 229, 230.

But suppose the Act was defective in this particular, it does not, like the attachment and garnishment law of thatsession, repeal most unwisely all other laws in the State upon the same subject; but such only as are in conflict with it. Of course, then, the old law would supply the remedy.

The Solicitor General proposed proving, that cotemporaneously with the killing of Hammock, prisoner shot one Adams, who died of the wound; and snapped his pistol at two other persons, to wit: Smithson and Clay. Counsel for the accused objected to this testimony on the ground of irrelevancy. It was admitted that prosecutions were pending against Revel for each of these other offences. The merits of this case are materially involved in this exception.

Without adverting to all the facts contained in this record, it is sufficient to say, that these four men, Hammock and Adams, Smithson and Clay, were all at Revel's grocery on that occasion. The parties had been engaged in shooting for beef. There was some political animosity between them. And most, if not all of them, were excited by liquor. Hammock had, a short while before the killing, insulted Revel. But being put right as to the mistake under which he labored, he made prompt and ample apology, which Revel accepted as satisfactory. They conversed together in private. While Hammock was outside of the door, Revel, who was evidently in hot blood, peremptorily ordered Clay out of the house, threatening to shoot him. And from the testimony of Clay, this conduct was without provocation. Revel remarked that he had been insulted by a damned democrat, meaning Hammock, and that he intended to have revenge. Clay undertook to pacify him, and expressed the hope that there would be no difficulty. And for this, he was rudely thrust out of the house, with a hostile demonstration on the part of Revel. Clay left the house; and my interpretation of the evidence is, that Revel, with his revolver in his hand, seemed to be following. Clay met Hammock just outside the door, and for the purpose of defending himself against Revel, snatched Hammock's gun out of his hand, which was unloaded and without a cap. Hammock stepped into theroom, and meeting Revel, raised his hands; but whether he put them upon Revel, the proof is not clear. He seemed to be intending to prevent rather than inflict an injury. His attitude is inconsistent with the idea of offering personal violence to Revel. The witnesses inclined to the belief that his hands were not upon Revel. Hammock, in this position, is shot down, Smithson, the constable of the district, orders the persons present not to permit Revel to escape; and he and they attempt to prevent it. He shoots down Adams, an unoffending person, and snaps at Smithson and Clay, and effects his escape. Are not the whole of these acts a part of the res gestœ? Ought they to be suppressed? Can they be separated? Flight has always been considered an admission of guilt. When culprits thus recklessly destroy human life, in order to get away, is not the confession of conscious guilt thereby greatly strengthened? We think so; and that in this aspect of it, at least, the testimony was admissible. Still more so, perhaps, as an exponent of the quo animo of the accused.

It is argued that the malice which constitutes murder, must be felt toward the individual killed. Is this true? Where a gun is fired at random into a crowd, and life is taken, malice, says the law, shall be implied; and so too shall it be, declares the Code, where no considerable provocation is given, and where all the circumstances of the killing denote an abandoned and malignant heart. True, there had been provocation by opprobrious words, but atonement had been made and accepted....