Reynolds v. The State Of Ga.

• Decision Date: 31 March 1846
• Docket Number: No. 31.,31.
• Citation: 1 Ga. 222
• Parties: John Reynolds, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

1 Ga. 222

John Reynolds, plaintiff in error. vs. The State of Georgia, defendant in error.

No. 31.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

This was an indictment for murder, in the Superior Court of the county of Stewart, tried before Judge Alexander, at April Term, 1846, and resulted in a conviction of the prisoner for voluntary manslaughter. The bill of indictment in this case contained a single count for murder, and was found at the October adjourned term of said court, in the year 1844. At the April Term thereafterwards, the prisoner was arraigned, and plead "not guilty." The murder was alleged in the indictment to have been committed on Jefferson J. Lamar, by the prisoner, in Lumpkin, Stewart county aforesaid, by shooting. The mortal wound was given on the 4th day of October, 1840, of which the deceased languished until the 15th day of December, 1840, when he died of said mortal wound, in the said county.

The case came on to be tried at the said April Term, 1846, and thereupon the court caused to come a panel of forty-eight men as jurors, that a jury of twelve might be obtained to try said issue; and the said panel having been called over, and found present, the court caused the same to be put upon the prisoner, and him to be informed that the said panel would again be called; and that then, if he had any cause of challenge against them, or any of them, he should make it known, as they were being called to the book to be sworn, and before they were sworn, and the court would hear him. The clerk then commenced to call said panel one by one, in the order in which their names were entered on the venire, beginning at number one and continuing through the panel, ending with number forty-eight. The juror number one being acceptable to both parties, was sworn in chief; number two was peremptorily challenged by the prisoner. The juror number three, Cyrus Lee, was called, when the counsel for the State objected to him, but assigned no cause, claiming for the State the right to pass such juror by until the whole panel should be gone through with, and be found insufficient to make a full jury of twelve; and that for so doing the State was not bound to show any cause, or to lose any of the peremptory challenges given by virtue of the penal code: And thereupon the counsel for the prisoner objected to the right so claimed on the part of the State, which objection was overruled by the court, and the juror Lee was passed by; to which decision of the court the counsel for the prisoner excepted. The call of the jurors was then resumed, and the counsel for the State caused divers jurors to be passed by, as in the case of the juror Lee. After thus completing the call of said panel the first time, and having failed to make up a jury of twelve, the call was resumed of those who had been passed by, beginning at the juror Lee, and continuing through, and still failed to make up a jury of twelve.

Elijah Lindsey, one of the jurors, being called and sworn on his voire dire, the solicitor-general proposed to propound to him the questions as provided by the act of the legislature of 1843, to wit: "Have you, from having seen the crime committed, or from having heard any part of the evidence delivered on oath, formed and expressed any opinion with regard to the guilt or innocence of the prisoner at the bar?" To which the counsel for the prisoner objected, and the objection being overruled bythe court, said question was propounded to the juror, and the counsel for the prisoner excepted.

Two other panels of twenty-four men each were then successively called in, and put upon the prisoner, the State passing by many jurors, as in the case of the juror Lee. Samuel Starr, whose name appeared upon the third and last panel, being sworn on his voire dire, and in answer to the question aforesaid, stated that he had, from report, formed and expressed an opinion with regard to the guilt or innocence of the prisoner. The counsel for the prisoner thereupon objected to his competency as a juror, because such formation and expression of opinion showed bias or prejudice; which objection being overruled by the court, and the juror pronounced competent, the counsel for the prisoner excepted.

A jury of twelve men having been made up and sworn to try said issue, the counsel for the State introduced several witnesses, who were sworn and examined, and proved the homicide, and closed their case.

The counsel for the prisoner then introduced divers witnesses, and among them John S. Randle was introduced, and being sworn, was asked the following questions:

1st. Whether, when Lamar returned to the house at about four o'clock on the evening of the day of the alleged shooting of him by Reynolds, he (Lamar) was armed?

2d. Whether, when Lamar returned from his house to the public square in Lumpkin, twenty or thirty minutes after having gone thither, he was armed with two pistols?

3d. Whether, when Lamar was so at his house, he did not fire off and reload his two pistols, and put them in his pantaloons pocket, and start off again immediately to the public square in Lumpkin?

4th. Whether, when Lamar returned to the public square aforesaid, he did not have loaded, upon his person and in his pockets, a pistol or pistols of the same kind and description as that found at his side on the ground when he fell after being shot?

The counsel for the State objected; and the court below decided that said several questions were illegal, and should not be answered by the witnesses, because the testimony theretofore delivered in said case did not show that the prisoner at the time of the shooting of Lamar had received any notice of any of the facts proposed to be proved by the witness, Randle, by said questions. And thereupon the counsel for the prisoner excepted.

The said case, after argument of counsel on both sides, was submitted to the jury under the charge of the court, and the jury returned their verdict, finding the prisoner guilty of voluntary manslaughter.

And thereupon the counsel for the prisoner, before judgment on said verdict, submitted to the court, after due notice to the State's counsel, a motion in arrest of the judgment, and notice also of a motion for new trial to be made, if the motion in arrest should be overruled.

The motion in arrest of judgment was based upon the following grounds:

1st. Because the indictment in said case was for murder only, and not for manslaughter.

2d. Because the verdict contained no finding by the jury as to murder, but only as to manslaughter. 3d. Because the indictment in said case was not found and filed in said court, within four years next after the commission of the offence charged in the bill of indictment.

4th. Because the jury found the defendant guilty of manslaughter, upon a bill of indictment for murder, which was not found and filed in said court within four years next after the commission of the offence therein charged.

5th. Because the record in said case is in other particulars informal, insufficient and void, and the legal judgment of the court can not be pronounced upon it.

And, if overruled in the foregoing motion, the prisoner would then move for a new trial on the following grounds:

1st. Because against the motion and objection of prisoner's counsel the court permitted the State to challenge and pass divers jurors when called, (after the array had been put upon the prisoner,) without compelling the State to show any cause for such challenges, or to exhaust any of its peremptory challenges, under the penal code, until the whole panel had been gone through.

2d. Because the court decided that the questions testing the competency of jurors, provided by the act of 1843, might De propounded to jurors in said case, and because thereupon the said questions were propounded to divers of them, notwithstanding that said offence was charged and proven to have been committed prior to said act.

3d. Because the court decided that the answer of a juror to the first of said statutory questions, that he had formed and expressed an opinion in relation to the guilt or innocence of the prisoner from hearsay, did not prove said juror to have any prejudice or bias for or against him, or to be in any respect incompetent.

4th. Because the evidence showed that manslaughter, in said case, was barred by the statute of limitations.

5th. Notwithstanding the bill of indictment charged, and the evidence proved, the offence to have been committed on the 4th day of October, 1840; and the bill of indictment was not found and filed in court till November, 1844, more than four years after the commission of the oftence, yet the court charged the jury that they might find the prisoner guilty of manslaughter.

6th. Because the court refused to allow the questions hereinbefore recited, to be put to the witness, John S. Randle.

7th. Because the prisoner was not tried and convicted by a jury of good and lawful men, duly summoned, empanelled and sworn, according to law.

The motion in arrest, and also the motion for a new trial, was successively heard and overruled by the court below, and judgment was pronounced against the prisoner. To all which the counsel for the prisoner excepted.

The court charged the jury on said trial that they might find the prisoner guilty of manslaughter, either voluntary or involuntary upon said issue, under the evidence given in upon the trial of said case. And the counsel for the prisoner excepted to said charge.

Error was assigned in each of the matters excepted to.

Hines Holt and Henry L. Benning, for the prisoner.

A. H. Chappell, for the State.

On the 4th of October, 1840, the prisoner shot Mr. J. L. Lamar in the public square in Lumpkin. Mr. Lamar died of the wound in December, 1840.

The indictment for murder, under which the present conviction took place, was found by the grand jury at the Oct. Term of Stewart Superior Court, a little more than four year after the giving of the mortal wound, but less than...