Sealy v. The State Of Ga.

• Decision Date: 31 March 1846
• Docket Number: No. 29.,29.
• Parties: Thomas Sealy, plaintiff in error,. vs. The State OF Georgia, defendant in error.
• Court: Georgia Supreme Court

1 Ga. 213

Thomas Sealy, plaintiff in error, . vs. The State OF Georgia, defendant in error.

No. 29.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

Indictment for Murder.

The plaintiff in error was convicted of murder, before Judge Alexander, in the Superior Court of the county of Talbot, at March Term, 1846.

Upon the arraignment, and the issue joined, the prisoner being unable, on account of his poverty, to employ counsel, Hines Holt, Henry l. Benning, Allen P. Owen, and William Elam, Esqrs., were assigned by the court as counsel to appear for and defend him on his trial.

The counsel for the prisoner being called upon to announce whether he was ready for trial, moved for a continuance, and in support of their motion submitted an affidavit of the prisoner, setting forth that he was not ready to come to trial at that term; that William Hammock was a material witness for him, and was absent without his consent or procurement; that he had not been subpoenaed, because he was confined in jail, and his presence, therefore, expected; that the showing was not made for delay, &c.; that he expected to prove by Hammock that he saw the difficulty in which the deceased (Chambles) was said to have been killed; that the deceased was pursuing the person who gave him the blow, and who said he did not intend to go any further; that deceased came up with him, andgrabbed at him, when Hammock saw the blow given; that he expected, further, to prove by Hammock, that himself (the prisoner) and the deceased had been in company together during the evening of the day on which the deceased was killed, and that up to the time of the killing they had been perfectly friendly, without any previous difficulty, or cause of difficulty, between them. The motion for continuance being objected to on the part of the State, was overruled by the court below, and the counsel for the prisoner excepted. It appeared that Hammock had broken jail on the night preceding the term of the court.

The court below then ordered on the said issue to be tried, and caused to come a panel of forty-eight men as jurors. The array was then put upon the prisoner in the usual form; and there being no objection to the array, the court below caused the panel to be again called, one by one, in the order in which their names appeared upon the venire facias, and as numbered therein, commencing at number one, and continuing on to the name of Pulaski Posey, the seventh juror, who, on being called, was set down by the counsel for the State, until the remainder of the panel should be gone through with, and found insufficient to make a jury of twelve; it being claimed on the part of the State, that the State might by law pass by a juror, as a right, in addition to, and over and above, the ten peremptory challenges allowed by the Penal Code; and these last challenges were in no respect affected by such passing by of jurors. To all which the counsel for the prisoner objected. Whereupon the court below decided that the State might thus pass by the juror, Posey, until the remainder of the panel should be perused, without affecting her right to the ten challenges allowed by the code in such cases. The counsel for the prisoner excepted. The juror, Posey, was passed by, and the calling of the panel resumed. In the course of empanelling a jury, the counsel for the State, under the decision of the court, passed by divers other jurors, as in the case of the juror, Posey. A jury having been empanelled, divers witnesses were introduced, and sworn, on the part of the State, and amongst them William Miller, a lad thirteen years of age, who, after testifying at considerable length in behalf of the State, was asked, upon the cross-examination, by prisoner's counsel, whether he did not say to William Wynn and Fleming Freemen, or one of them, at Page's grocery, in Talbotton, since his examination before the committing magistrates in the case against the prisoner for the alleged murder, that the prisoner told the deceased, just before the stabbing, "I have run from you twice, and I shall not do it longer, " whereupon the deceased grabbed at him, (prisoner,) and said, "I will cut your d--d windpipe?" and, in answer to said question, the witness, Miller, replied that he did not recollect having any such conversation with any one, and thought that he had never had any conversation with William Wynn about the matter at Page's store, or anywhere else. William Wynn was introduced, on behalf of the prisoner, with a view to discredit the witness Miller, and, after being sworn, was asked if William Miller had not at the time and place specified, and before Fleming Freeman and himself, made the representation referred to in the question put to him, Miller? The witness was stopped by the solicitor-general, and rejected by the court below, upon the ground that his testimony did not contradict Miller, whose denial was not positive, but to the best of his recollection merely. To which the counsel for the prisoner excepted.

The prisoner\'s counsel introduced John C. Maund as a witness, to impeach, collaterally, some of the witnesses on the part of the State, who had testified to the homicide taking place after dark, between seven and eight o\'clock; that it was a tolerably dark night, but that they could distinguish, at the distance of ten paces on the public square at Talbotton, whether a man had on a white or a black hat or cap, and stated that there was but one person near the deceased when he was stabbed, and that person had on a black hat, and was a tall, spare-built person, &c, (corresponding with the description of the prisoner.) Maund, and another, had experimented, between the same hours, of a similar star-light night, and satisfied themselves that the objects could not be distinctly distinguished at the distance of ten steps. The testimony of Maund was objected to, and he was rejected by the court below. And the counsel for the prisoner excepted.

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

Levi B. Smith and E. H. Worrill, for the State.

By the Court—Lumpkin, Judge.

The prisoner was convicted of murder in the Superior Court of Talbot County, in March, 1846; and from the judgment then rendered against him he has appealed to this court. He complains of certain irregularities in the proceeding, and assigns for error, first, that the court refused to continue the case. It appears from the record, that after the arraignment, counsel for the prisoner moved a postponement of the trial, upon the ground that William Hammock, a material witness for him, was absent without his consent or procurement, and he rendered as an excuse why he had not been subpoenaed, that the witness was confined in jail, and his presence, therefore, expected.

The court declines expressing any opinion upon the exception, for the reason that the point can not again arise on the new trial, which we feel constrained to award, on other grounds; and we dismiss this branch of the case with a single observation. The refusal of the court below to continue the indictment, could not be assigned as error but for the statute creating this court.—6 Cranch's Rep. 206. There is great danger of doing mischief by revising matters of this kind, which should properly be confided to the discretion of the court below, to be regulated by the circumstances of each particular case. No precise rule can be laid down, and a most arbitrary and oppressive exercise of this discretion must be made apparent to this court, before it will interfere.

Another error complained of by the prisoner, is, that Pulaski Posey, the seventh man on the jury list, being called, the court allowed the solicitor for the State to pass him by, until the remainder of the panel was gone through; and the same practice was preserved respecting other jurors.

Anciently, by the common law, any number of jurors might have been peremptorily challenged by the crown, without alleging ony other reason for the objection than "quod non boni sunt pro rege, " that they were not good men for the king. But this power being found very liable to abuse, and mischievous to the subject, tending to infinite delays and dangers, it was taken away by the 33 Edw. 1, statutes 4; commonly called ordinatio de inquisitionibus. By this it is enacted, quod de caetero, licet pro domino rege dicatur, quod juratores, &c, non sum boni pro rege; non propter hoc remaneant inquisitiones, &c.; sed assignes, certam causam calumlnae suae, &c, whereby the king is now restrained. — Thomas\' Coke, 474, note n. This ordinance of inquests directs, that when a juror was challenged for the king, the inquisition should not, therefore, remain untaken; but those who sued for the king should show some cause of challenge, and the truth of such cause should be inquired of, according to the custom of the court; after which, the inquisition should be proceeded in or not, according as the challenge was established or not.

In the construction of this statute, it is clearly settled, and is now the established practice of the courts, that if the king challenge a juror before the panel is perused, he need not show any cause of his challenge till the whole panel be gone through, and it appears that there will not be a full jury without the person so challenged; and if the defendant, in order to oblige the king to show cause presently, challenge touts paravaile, yet it hath been adjudged that the defendant shall be first put, to show all his causes of challenge, before the king need to show any. — Lord Raymund, 473; skinner, 82; 2 Hale's His. P. C. 271.

Challenges, in England, on behalf of the defendant, were either peremptory or for cause. The number which, in all cases of felony, the prisoner was allowed by the common law thus peremptorily to challenge, amounted to thirty-five, or one under the number of three full juries. — Com. Dig. Challenge, c. 1; 2 Woodd. 498, Burnes on Juries, 4. This number has been restricted to twenty of the...