Taylor v. State

• Decision Date: 09 December 1904
• Citation: 49 S.E. 303,121 Ga. 348
• Parties: TAYLOR v. STATE.
• Court: Georgia Supreme Court

49 S.E. 303

121 Ga. 348

TAYLOR v. STATE.

Supreme Court of Georgia

December 9, 1904

Syllabus by the Court.

1. The inclusion of a juror within the panel of 48, who is ineligible to serve at a particular term of court, does not vitiate the entire panel. The juror's disqualification is good cause of challenge to the poll, but not to the entire array.

2. It is not necessary to administer the oath prescribed for jurors in civil cases (Pen. Code 1895, § 856) to the jury impaneled to try criminal cases. The oath prescribed in Pen. Code 1895 § 979, is the only oath designed for jurors in criminal cases.

3. Declarations by the deceased of peaceful intent, communicated to the defendant, are admissible in rebuttal of evidence of previous threats made by the deceased against the defendant.

4. The evidence excluded by the court was inadmissible, and was properly rejected.

5. The interest of a witness and his bias or freedom from prejudice may always be inquired into, and the testimony objected to was admissible in rebuttal of the testimony of the defendant's witnesses.

6. In his discretion, the trial judge may allow a leading question and a new trial will not be granted solely because a leading question was permitted, unless it appears that the court's discretion has been abused.

7. It is not objectionable for counsel to embellish the argument with figurative speech, provided prejudicial facts extrinsic of the record are not introduced. Neither the remarks of the solicitor nor of the court offended the proprieties of a legal trial.

8. As stated by the court, the contentions comprehended the defense as presented both by the evidence and the defendant's statement. If a more elaborate presentation was desired, a timely written request should have been made.

9. The charge of the court on the subject of threats was appropriate and correct.

10. The judge is not bound to read Pen. Code 1895, § 76, to the jury where the general charge sufficiently presents justifiable homicide as a substantive defense.

11. The charge of the court on justifiable homicide was not too narrow or restricted, and is not open to the criticism made against it.

12. The verdict is amply supported by the evidence, and has the approval of the trial judge, and no reason is shown for disturbing it.

Error from Superior Court, Washington County; A. F. Daley, Judge.

C. T. Taylor was convicted of murder, and brings error. Affirmed.

J. K. Hines, G. H. Howard, J. E. Hyman, and T. W. Hardwick, for plaintiff in error.

W. E. Armistead, Evans & Evans, B. T. Rawlings, Sol. Gen., and John C. Hart, Atty. Gen., for the State.

EVANS J.

C. T. Taylor was indicted and tried for the crime of murder. The testimony disclosed that the deceased, W. R. Veal, and the defendant were bitter enemies, and that for a period of about three months prior to the homicide each was anticipating and was prepared for a deadly encounter. On the day of the homicide, Veal, while riding along a public road in a buggy with a negro driver, was stopped by another negro who had been working for him, and who asked that he might see him on a matter of business. Veal got out of his buggy, and went a short distance out on the side of the road, stopping by an embankment at or near a fence corner. The negro driver remained in the buggy to hold the horse. While conversing with the negro who had called him to this place on the roadside, and while engaged in tying one of his shoes, Veal was approached by another negro in his employment, who was coming down the road, followed by the defendant. The defendant, when first seen by Veal and the negro with whom he was talking, had his pistol in his hand; and, when he arrived within a few feet of Veal, he, without any warning, fired upon him, inflicting a wound in his side, under one arm. At the time Veal was sitting on the ground, tying his shoe, and was not aware until that moment of the presence of the defendant. After receiving this wound, Veal threw up his hands, quickly rose to his feet, and, apparently realizing his helplessness, started to run. As he was running away, the defendant fired three shots at him, each of which took effect in his back, and he fell to the ground. There was testimony that shortly after the shooting a pistol was found on the ground near the body of deceased, but the eyewitnesses to the homicide swore that neither before nor after the first shot did he make any effort to draw the weapon as a measure of offense or defense. The defendant introduced testimony disclosing that the deceased had previously made repeated threats to kill him on sight, which threats had been communicated to him; that the deceased habitually carried with him a Mauser rifle, and had it in his buggy on this occasion; and that he had stated to a number of people that he had procured this rifle for the express purpose of killing the defendant with it when they next met. The defendant also sought to prove his contention that the purpose of the deceased in leaving his buggy and going to one side of the road, where he was partially concealed from view by the embankment, because of a curve in the road, was to waylay the defendant and carry out these threats; that defendant, while walking along the road, suddenly and unexpectedly came upon the deceased, who immediately threw his hand to his pocket and attempted to draw his pistol; and that, realizing his imminent peril, the defendant thereupon fired four shots at him in quick succession. The defendant also made an attempt to impeach the witnesses for the state upon whose testimony it mainly relied for a conviction. The jury returned a verdict of guilty, and the defendant made a motion for a new trial, to the overruling of which he excepts, and brings the case here for review.

1. When the panel of 48 jurors was put upon the defendant, he urged as cause of challenge to the array that one of the jurors included in the panel had served as a traverse juror at the preceding term of the court, and was therefore disqualified to serve at the then present term, and that for this reason the panel was illegal. The court overruled this challenge to the array, and the defendant excepted pendente lite. The inclusion of a juror within the panel of 48, who is ineligible to serve at a particular term of the court, does not vitiate the entire panel. The juror's disqualification is good cause of challenge to the poll, but not to the entire array. See Thompson v. State, 109 Ga. 272, 34 S.E. 579, and cases cited.

2. The first and second grounds of the amendment to the motion for a new trial set forth the complaint that the oath prescribed in section 856 of the Penal Code of 1895 was not administered to the entire panel of 48 jurors put upon the defendant. It appears that 36 of the jurors included in that panel were jurors who had been regularly drawn, and who had taken the oath just referred to. Upon the opening of the court, this oath was administered to all of the jurors who had been summoned to serve during that term of the court. As the defendant was entitled to a panel of 48 jurors, other jurors were summoned and added to the number originally summoned, in accordance with the statute providing for completing a panel to try felony cases. The oath prescribed in the above-cited section of the Penal Code should be administered only to jurors called on to serve in civil cases. Originally this was the oath prescribed for special juries selected from the grand jury. Code 1868, § § 3854, 3855. The act of 1869 provided for the taking of this same oath by petit juries summoned for service in civil cases during a term of court. Acts 1869, p. 145. The provisions of this act appear in their appropriate place in Code 1882, § § 3932, 3933. In criminal cases the oath to be taken by the jury was that prescribed in section 4650 of that Code, and this oath had to be administered in each case. It was never contemplated that both oaths should be administered to jurors trying criminal cases. On the contrary, provision was made that in civil cases the taking of a prescribed oath applicable to that class of cases at the beginning of the term should suffice to render the jury competent to try all cases of that class coming on for trial before the jury at that term of court; but in criminal cases the accused was given the safeguard of having a specially prescribed oath, applicable to that class of cases, administered in each and every case the jury was called on to try. This oath now appears in Pen. Code 1895, § 979. The codifiers included therein all the law on the subject of impaneling juries and administering to them the different oaths prescribed by statute. This was done simply for convenience, as appears from section 4452 of the Civil Code of 1895, and was not intended to change the law as it had previously stood.

3. Objection was made to the admissibility of certain statements made to third persons by the deceased, which were communicated to the defendant. The purport of these statements was that the deceased intended no harm to the defendant. The record shows that for some months prior to the homicide there was a feud existing between the defendant and deceased, that the deceased had made threats against the life of the defendant, and that these threats were communicated to the defendant. The defense was that the homicide was justifiable, and an important element of that defense was that at the time of the homicide the defendant was acting under the fears of a reasonable man that the deceased intended to carry into effect his previous threats. Threats illustrated the state of mind of the defendant when he slew the deceased. These pacific messages from deceased to defendant were admissible as qualifying his other declarations. The...