Th0mas v. The State Of Ga.

• Citation: 67 Ga. 460
• Parties: Th0mas . vs. The State of Georgia.
• Decision Date: 30 September 1881
• Court: Supreme Court of Georgia

67 Ga. 460

Th0mas . vs. The State of Georgia.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Criminal Law. Jurors. Evidence. Witness. Practice in Superior Court. New Trial. Before Judge Simmons. Bibb Superior Court. April Term, 1881.

Thomas was indicted for the murder of one Nancy Dykes, alias Puss Edge. On the trial the following facts, in brief, appeared from the testimony:

The defendant and deceased had lived together as husband and wife for a considerable length of time, and he staid almost nightly at her house. She became jealous of his attentions to another woman, and quarrels ensued, in the course of which he struck her and threatened to kill her. On the night of the homicide he had not returned home up to bed time, since early in the evening. She looked out of the house, and saw two people standing in an alley which ran nearby. She said, "Yonder stand two persons at the corner of the lot; it looks like Harp Thomas and his sweetheart, I think; and I am going to see if it is them, and am coming back light away to the house." She went towards the couple, who separated and moved off in opposite directions. About the same time a witness testified to hearing defendant and deceased (at least he felt quite confident it was they) talking in angry tones in the alley. Defendant stated to a witness that night that he had separated from his wife (meaning the deceased). He did not return home that night, but went to the house of another woman, where he sat before the fire and nodded. She told him to lie down with the children, but did not know whether he did so, as she went to sleep leaving him sitting there, and when she woke early next morning he was putting on his shoes. He went to work unusually early next morning, without going home and without breakfast, dressed too in other than his usual working garb. A stick which he left at the house where he staid showed stains apparently of blood. The deceased never returned to her house after leaving it as stated above. Next morning she was found dead a short distance down the alleywith her throat cut and a contusion on the side of her head, as though she had been struck.

The jury found the defendant guilty, and recommended that he be imprisoned for life. He moved for a new trial, on the following among other grounds:

(1.) Because the court overruled a challenge to the array of jurors, on the ground that many names of citizens were not in the jury box that should be there, and that the names of only very few colored men were on the jury list. (Affidavits pro and con were produced.)

(2.) Because the solicitor-general was allowed to swear the state's witnesses and place them on the stand, over objections of defendant's counsel.

(3.) Because the court allowed a witness, over objection of defendant's counsel to testify to what deceased said just before leaving her house, as set out in the evidence above.

(4.) Because the court allowed a witness who found the defendant's stick in the house where he had staid the night of the murder, it being found the next day, to testify that it had stains upon it which looked like blood, the witness not being an expert.

(5.) Because the court admitted the stick itself in evidence.

(6.) Because there was no proof of the corpus delicti. (7.) Because the verdict was contrary to law and evidence.

The motion was overruled, and defendant excepted.

F. J. M. Daly, for plaintiff in error.

Clifford Anderson, attorney-general; Jno. L.Hardeman, solicitor-general, for the state

Jackson, Chief Justice.

The defendant was convicted of murder on circumstantial evidence and sentenced, under the verdict of the jury, to the penitentiary for life. A motion was made for a new trial, it was denied and its denial on all the grounds taken in the motion is the error assigned.

1. It being in proof that the commissioners for the selection of traverse jurors, as intelligent and upright citizens, acted honestly and according to law, and their integrity being conceded by defendant, the challenge to the array, based apparently upon the fact that but few colored men were selected and some, colored and white, were omitted who in the judgment of witnesses should have been on the list, was properly overruled. It is the judgment of the commissioners which, under the constitution and laws of this state, controls in the selection of grand and petit jurors, and not the opinion of witnesses sworn on the trial of a cause.

2. The solicitor-general, as the organ of the court and under its direction, " time whereof the memory of man runneth not to the contrary, " has sworn the witnesses for the state and for the defense; and there has hardly ever been a legal conviction in Georgia, if that officer, by order of the judge in open court, had not the legal power to administer oaths to those witnesses. It is the common law of this state, sanctioned by a practice ever since its independence, and to rule it not to be law would be to open the doors of the penitentiary and to convict her judged and sheriffs of murder in many cases. There was no error, therefore, in overruling the objection to that officer's administering the oath provided by law to the witnesses in the case on trial.

3. The sayings of the murdered woman on the night or the homicide when in the act of leaving the house to which the never returned, and a short time before the homicide, that "there are two persons down the alley; I think it is Harp and his sweetheart; I will go down and see, " were admissible as part of the res gestœ, which is the transaction which began in her leaving the house in search of the prisoner and culminated in her assassination where she ex-pected to find him. He was living with her as his wife, had beaten her on account of jealousy of this woman called by her his sweetheart, and her sayings just as she left the house were part of the act of...