Thomas v. State

CourtSupreme Court of Georgia
Writing for the CourtPER CURIAM
Citation95 Ga. 484,22 S.E. 315
Decision Date05 February 1895
PartiesTHOMAS. v. STATE.

22 S.E. 315
95 Ga. 484

THOMAS.
v.
STATE.

Supreme Court of Georgia.

Feb. 5, 1895.


Homicide —Continuance —Grounds for New Trial—Amendment—Instructions.

1. Where, upon the trial of a criminal case, it appears that for some time previous to the trial the defendant had been confined in jail; that in due season he requested the sheriff to subpoena a witness in his behalf, who resided in the county, and thereafter, several times, reminded the sheriff of his requests, the latter promising to comply therewith; and where it further appears that the facts to which the alleged witness would, if present, swear, were not only material, but of vital consequence to the defense; and the showing being in all other respects in perfect conformity with the requirements of the law, — it is no reply to a motion to continue upon such a showing, because of the absence of such witness, that on the night immediately preceding the trial the sheriff had sent a bailiff to subpoena the witness, who, going to the house of the witness, was unable to find him, or to ascertain his whereabouts, and the refusal to grant a continuance was error.

2. Where a motion for a new trial is made during the term, and an order taken to perfect it in vacation, the court, as to that case, in contemplation of law, continues in session until the time limited in the order; and a party moving for a new trial may, as a matter of right, under section 3503 of the Code, amend his motion at the hearing by the insertion of new and independent grounds of error, and this right is not subject to any arbitrary limitation imposed either by the practice prevailing in any particular judicial circuit, or by the order of the judge in granting a rule nisi. Motions for new trial must be made during the term, unless upon extraordinary grounds, but, for proper reasons, the presiding judge may grant such reasonable time thereafter for the preparation of the grounds and brief of evidence as the justice of the ease may seem to require; and where such time is granted the judge may not arbitrarily refuse to allow amendments to the grounds of the motion because, according to the practice prevailing in that circuit, certain classes of exceptions to rulings of the presiding judge are required to be submitted during the term. In all such cases, however, the movant must abide the consequences of the judge's inability to remember with such accuracy the minor happenings upon the trial as will enable him to certify the grounds as true. If he remembers, he should allow the amendment. If he does not, he should refuse to certify its truth. In this case it does not appear that the presiding judge did not remember, and he therefore erred in rejecting the amendment offered.

3. The office of a charge by the court is to give to the jury such instruction touching the rules of law pertinent to the issues involved in the pending trial as will enable them intelligently to apply thereto the evidence submitted, and from the two constituents; law and fact, make a verdict. In delivering his charge the trial judge should carefully avoid an invasion of the province of the jury. He should refer to the evidence only so far as is necessary to present the leading issues in the cause, leaving the minor contentions of opposing counsel to the consideration of the jury, under appropriate general instructions. It should contain no such summary of the evidence as might, to a jury, either seem to be an argument, or amount to the expression or intimation of an opinion thereon. It is therefore error (1) for the presiding judge to repeat the substance of the testimony of the state's witnesses, as detailed from the stand, and submit this, with the argumentative deductions drawn therefrom by the state's counsel, as the issues in the case. (2) It is likewise error, where the evidence shows only that the defendant and deceased went off together, to charge that, if the defendant "took charge of the deceased, he should account for him." (3) It is likewise error to use such language, in instructing the jury upon the subject of the impeachment of a witness, as to suggest to their minds that, because of his ignorance or inexperience, he bad been overreached or entrapped by counsel in the cross-examination; such a matter being one exclusively for the jury, and appropriate to be dealt with by argument of counsel, rather than by the charge of the court.

4. Where the presiding judge, by his general charge, presents to the jury the law governing the substantial and controlling issues in a case, the mere failure or omission to charge upon minor points, to which his attention is not called at the time, is not ground for a new trial.

(Syllabus by the Court.)

Error from superior court, Worth county; B. B. Bower, Judge.

Charles Thomas was convicted of murder, and brings error. Reversed.

The following is the official report:

There were two counts in the indictment against Thomas, —one charging him, as principal, with the murder of Tom Watts, and the other as being accessory before the fact to the murder of Watts by Nim Kerce and Cliff Kerce. He was found guilty of being accessory before the fact, with the recommendation that he be imprisoned in the penitentiary for life. His motion for new trial was overruled, and to this he excepted. He also excepted and alleged that the court erred in refusing to approve the twenty-third ground of the motion for new trial, as corrected by the court; insisting that he ought, under the facts of the case and the law, to be allowed to make said ground as an amendment to the original motion for new trial. The grounds of the original motion for new trial were that the verdict was contrary to the evidence, and without evidence to sustain it. This motion was filed during the term at which the case was tried, and during that term the court passed an order reciting that the court was about ready to adjourn, and the stenographer not having had time during the term to write out the evidence and charge of the court, so that the defendant's counsel could prepare a motion for a new trial, it was, by consent, ordered that

[22 S.E. 316]

defendant's counsel have until November 25, 1894, to prepare a brief of the evidence, and present the same to the court for approval, and to amend his motion for new trial as to any exception to the charge of the court, and the motion to continue, and that said motion be set for trial on said date in November, but might be reset by the judge without prejudice to either side. What was presented as the twenty-third ground of the amended motion was as follows: Because the court erred in this: When the jury first came in and delivered their verdict, it read: "We, the jury, find the defendant guilty, as accessory before the fact, and recommend him to the mercy of the court." The judge then asked them if they meant by that to put him in the penitentiary for life. The foreman replied that they wanted the court to put a less punishment than that on him. The court then erred in telling the jury, "Gentlemen, if you wish to put the defendant in the penitentiary for life, you must so write on your verdict, or the penalty will be death." Defendant insists that this was error. This ground was corrected by stating that the court charged the jury fully and explicitly on the subject of the punishment, — that the punishment would De death unless they recommended that the defendant be punished by imprisonment in the penitentiary for life, in case they found him guilty, —and then sent the jury back to their room to make up their verdict. As to this ground, the court certified that it was disapproved, as incorrect, and, after being corrected by the court, was stricken because the amendment by this ground came too late, according to the order above mentioned, which limited the amendment to only such grounds as the motion for continuance, and exceptions to the charge of the court; the court having stated to counsel for defendant that all other grounds must be made before the adjournment of the court, while they were fresh in the mind of the court, according to the practice in that circuit. The amended motion was upon the ground that the court erred in refusing to grant the continuance asked for. The motion for continuance was as follows: Defendant testified: "I have an absent witness named Tom Wiley. He is not absent by my leave or consent, and I expect to have him here by the next term of the court. He lives in this county. I am not making this motion for delay, but in order to get his testimony. I expect to prove by him that Tom Watts was seen by him the morning after the time Hiram Warren said he went off with me, and that he was cutting potato vines, to set out potatoes; that Tom Watts was alive, and helped me cut potato vines, the morning after Warren sweats he went off with me, and was not seen afterwards....

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55 practice notes
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...Argumentative instructions are generally reversible error. (Willis v. State, 134 Ala. 429; Boling v. State, 54 Ark. 588; Thomas v. State, 95 Ga. 484.) The instructions with reference to possession of recently stolen property were erroneous. The evidence did not show nor tend to show that de......
  • Chester v. State, No. S96A0236
    • United States
    • Georgia Supreme Court
    • May 6, 1996
    ...as might to a jury either seem to be an argument or amount to the expression or intimation of an opinion thereon." Thomas v. State, 95 Ga. 484, 485(3), 22 S.E. 315 (1895). Accordingly, a trial court is not required, "even after request, to specifically point out particular evidence in behal......
  • Mika v. State, Nos. 14580, 14581.
    • United States
    • Supreme Court of Georgia
    • July 7, 1943
    ...& S. W. R. Co. v. Allen, 130 Ga. 656(1), 658, 61 S.E. 541, and cit.; City & Suburban Ry. v. Findlev, 76 Ga. 311(3), 317; Thomas v. State, 95 Ga. 484(3), 488, 22 S.E. 315; Nelson v. State, 124 Ga. 8, 9, 52 S.E. 20, and cit.; Brown v. State, 6 Ga. App. 356, 360, 64 S.E. 1119; Smith v. State, ......
  • Parker v. State, No. 24782.
    • United States
    • United States Court of Appeals (Georgia)
    • May 23, 1935
    ...them intelligently to apply thereto the evidence submitted, and from the two constituents, law and fact, make a verdict." Thomas v. State, 95 Ga. 484, 22 S. E. 315. The real important thing is that the charge be a clear picture, disclosing the rights of the parties on the issues involved th......
  • Request a trial to view additional results
38 cases
  • Robinson v. State, 609
    • United States
    • United States State Supreme Court of Wyoming
    • January 10, 1910
    ...Argumentative instructions are generally reversible error. (Willis v. State, 134 Ala. 429; Boling v. State, 54 Ark. 588; Thomas v. State, 95 Ga. 484.) The instructions with reference to possession of recently stolen property were erroneous. The evidence did not show nor tend to show that de......
  • Chester v. State, No. S96A0236
    • United States
    • Georgia Supreme Court
    • May 6, 1996
    ...as might to a jury either seem to be an argument or amount to the expression or intimation of an opinion thereon." Thomas v. State, 95 Ga. 484, 485(3), 22 S.E. 315 (1895). Accordingly, a trial court is not required, "even after request, to specifically point out particular evidence in behal......
  • Mika v. State, Nos. 14580, 14581.
    • United States
    • Supreme Court of Georgia
    • July 7, 1943
    ...& S. W. R. Co. v. Allen, 130 Ga. 656(1), 658, 61 S.E. 541, and cit.; City & Suburban Ry. v. Findlev, 76 Ga. 311(3), 317; Thomas v. State, 95 Ga. 484(3), 488, 22 S.E. 315; Nelson v. State, 124 Ga. 8, 9, 52 S.E. 20, and cit.; Brown v. State, 6 Ga. App. 356, 360, 64 S.E. 1119; Smith v. State, ......
  • Parker v. State, No. 24782.
    • United States
    • United States Court of Appeals (Georgia)
    • May 23, 1935
    ...them intelligently to apply thereto the evidence submitted, and from the two constituents, law and fact, make a verdict." Thomas v. State, 95 Ga. 484, 22 S. E. 315. The real important thing is that the charge be a clear picture, disclosing the rights of the parties on the issues involved th......
  • Request a trial to view additional results

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