Smith v. The State Of Ga.

• Decision Date: 30 September 1883
• Citation: 72 Ga. 114
• Parties: Smith . vs. The State of Georgia.
• Court: Georgia Supreme Court

72 Ga. 114

Smith . vs. The State of Georgia.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1883.

Witness. Evidence. New Trial. Criminal Law. Practice in Superior Court. Practice in Supreme Court. Before Judge Willis. Muscogee Superior Court. May Term, 1883.

Smith was indicted for assault with intent to murder, alleged to have been committed on one Kimbly. On the trial, the jury found the defendant guilty, with a recommendation to mercy. He moved for a new trial, on the following among other grounds:

(1.) Because the court admitted testimony of witnessesto show that Kimbly was detained as a prisoner in the coal mines of Alabama at the time of the trial.—Objected to as hearsay, and because the record of his conviction and sentence was better evidence.

(2.) Because the court admitted testimony of witnesses to show what Kimbly swore on the committing trial of defendant for this offence.—Objected to as hearsay, because the defendant should be confronted with his witnesses, and because the testimony at the committing trial had been taken down in writing, and this was better evidence than parol.

(3.) Because the court committed error in the following remarks to defendant's counsel, in presence of the jury, upon the admission of A. L. Newberry's testimony: Question: "Well, Mr. Kimbly was in jail here once, was he not?" Answer. "Yes, sir." By the court: "That question has been answered; we have got to try this case today. He had just answered that not two minutes ago. You must proceed with the evidence, and get at the testimony that is material." [The court added the following note to this ground: "This statement was made by the court, because the question had been asked and answered before; and to save time, that being Saturday, and the court not desiring to hold the jury over Sunday."]

(4) Because of newly discovered evidence. [This was cumulative.]

(5.) Because the verdict was contrary to law and evidence.

The motion was overruled, and defendant excepted.

A. A. Dozier; C. J. Thornton, for plaintiff in error.

T. W. Grimes, solicitor general, by J. M. McNeill, for the state.

Blandford, Justice.

1. The main question in this case is as to the admission of the testimony of Kimbly, the prosecutor, which had beengiven in before the court of inquiry, it being shown that the witness was in the state of Alabama, without the jurisdiction of the court, and not accessible, over the objection of the defendant.

The Code, §3782, provides as follows: "The testimony of a witness since deceased or disqualified, or inaccessible for any cause, given under oath on a former trial, upon substantially the same issue, and between substantially the same parties, may be proved by any one who heard it, and who professes to remember the substance of the entire testimony, as to the particular matter about which he testifies." If this question were res integra, I should hesitate before giving my sanction to the admissibility of this testimony, under the clause of the Code quoted above. It is much to be doubted if a "former trial, " mentioned in this section of the Code, means a trial before a committing court. But this is settled in the case of Robinson vs. The State, ^* decided March 7th, 1882...