Smith v. The State Of Ga.

• Court: Supreme Court of Georgia
• Writing for the Court: Bleckley, Justice
• Citation: 63 Ga. 168
• Parties: Smith. v. The State of Georgia.
• Decision Date: 28 February 1879

63 Ga. 168

Smith. v. The State of Georgia.

Supreme Court of the State of Georgia

(February Term, 1879.)

1. Misdemeanors—Accusation—Indictment—Waiver.^*—The county court may proceed to try the prisoner for a misdemeanor on written accusation based upon affidavit, unless the prisoner in writing demands indictment by a grand jury. No express waiver of indictment is necessary. Code, §§ 297, 299.

2. Same—Same—Requisites.^†—The requisites of the accusation are only that it shall be in the name of the state and signed by the prosecutor, and that it shall distinctly set forth the nature of the offense charged, the time and place of its commission, the person by whom committed, and the fact that it is based upon an affidavit, referring thereto. Code, § 299.

3. Same—Same—Same—Malicious Mischief—Public Property.^‡— An affidavit and an accusation for the offense of malicious mischief, which charges that the accused entered a certain edifice, broke and injured an organ, defied it with ordure, and, at the same time and place, defiled with ordure certain benches and books, charge but one offense though the organ belonged to an individual, and the benches and books to a church. When benches and books in a church edifice are described as the public property of the church, the meaning

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is, that they are its common property, or for common use by the members or by the congregation.

4. Same—Same—Same—Same.^§—In describing the offense, the accusation need not go beyond a recital of the terms of the affidavit, if these terms are so ample and minute that they would suffice in a regular indictment.

5. Same—Same—Same—Same.^‖—Where a church is mentioned by name as the owner of property, the persons composing it need not be specified, unless it appears affirmatively that the church is not a corporation.

6. Same—Same—Same—Same.^¶—An accusation does not consist of two counts because, in setting forth acts of malicious mischief (all committed at the same time,) it enumerates some of them in one sentence or paragraph, and the rest in another. Neither are there two counts because some of the property injured was individual property and some of it the property of a church, and because the former, with the injury thereto, is first dealt with in the accusation, and the latter next.

7. Jury—List.^**—The county judge is not required by law to keep in his office a list of the persons whose names are in his jury-box. The list which he is required to make is for use in furnishing the box. Code, § 298.

8. Same—Examination—Waiver.^{†â€} —After duly convening a jury and testing their impartiality in the manner prescribed by the Code, the county judge may postpone impaneling them and swearing them to try the case, and may require their attendance on a future day, discharging them until that time. The prisoner has a right to have their impartiality tested again before they are sworn, but his failure to ask for or propose it is a waiver of the right.

9. Same—Same—Oath—Waiver.^{‡‡}—In swearing the jury, if the oath administered deviates from that prescribed by statute, the prisoner should object. Acquiescence *until after the verdict has been returned and the jury discharged, is a waiver of objection.

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10. Same—Deliberation—Presumption.^§§—When the jury, in the presence of the court sitting below stairs, retire to the upper story of the court-house to deliberate upon their verdict, going up by a stairway leading directly from the room in which the court sits, the presumption is that the whole up-stairs is a private and convenient place for the deliberations of the jury; and unless it appears that their privacy was invaded, the verdict will not be set aside because no officer was sworn to attend them, or did in fact attend them during the time they were absent, they having returned into court by the same stairway, and it not appearing by the petition for certiorari or otherwise that the court did not continue to sit at the foot of the stars during the whole time they were above, or that there was any but the one way to or from the upper story.

11. Evidence—Examination of Witness.^‖‖—When a witness testifies that he knows a thing from the best of evidence, though he did not see it take place, the court may allow the examination to proceed for the purpose of ascertaining how he knows it; and when it appears that it is by hearsay, rule out the testimony.

12. Same—Objection^¶¶—That the prosecutor had a regular seat in church, and that the witness did not know where he sat, but has since found out, is not, of itself, illegal evidence. If objectionable, the ground of objection should be stated.

13. Same—Same—Public Property.^***—The evidence objected to should be specified. Complaint, "That court erred in allowing proof of injury to private property in support of an allegation in the accusation that an injury had been done to public property, this proof being let in over defendant's objection, " is too vague and general. Moreover, "public property, " as used in the accusation, is not to be understood in a strict, but in a loose sense, as indicated in note 3 above.

14. Accusation—Charge of Court.^{††â€} —The accusation being under section 4627 of the Code, and being full and minute in setting forth the acts laid to the prisoner's charge, it was unnecessary to read to the jury any of the Code, or to state what particular act or acts had to be proved in order to make out the case. This information was conveyed to the jury by reading to them the accusation, and calling upon them to render a verdict of guilty or not guilty.

15. Charge of Court—Reasonable Doubt.^{‡‡‡}—It was not error to charge the jury that "Before you can convict, you must believe that the prisoner is guilty beyond a reasonable doubt; this doubt must be a reasonable one, not a fanciful doubt. A mathematical certainty is not required; a reasonable and moral conviction of guilt is all that the law requires." After thus charging, it was not error to decline to add, at the written request of the prisoner, "The testimony must satisfy the jury to the exclusion of a reasonable doubt that the defendant committed the acts charged, *before the law would justify a verdict of guilty." Several acts were charged. It did not require all of them to render the prisoner guilty.

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16. Same—Same.^§§§—The court having charged, "In order to convict on circumstantial evidence, it must be so strong as to exclude every other reasonable hypothesis than that of the defendant\'s guilt, " and the case being one of circumstantial evidence in respect to the identity of the guilty party, and admitting of no rational controversy as to the fact of the offense having been perpetrated by some person, it was not error to decline to add at the prisoner\'s written request, "That if there is a reasonable hypothesis consistent with the evidence and the defendant\'s innocence, it is the duty of the jury to adopt that hypothesis, and acquit the defendant."

17. Same—Presumption.^‖‖‖—The court having charged, "The defendant began on his trial with the presumption of innocence in his favor, and that presumption remains until removed by sufficient proof, " it was not error to decline to add at the prisoner's written request, "That the defendant is presumed to be innocent, and that presumption...