Turner v. State

Decision Date09 November 1886
Citation78 Ga. 174
PartiesTURNER v. THE STATE OF GEORGIA.
CourtGeorgia Supreme Court

October Term, 1886.

1. Points relating to the number of grand jurors drawn and their competency should be made before the true bill is found, and not on the trial before the traverse jury, especially where the defendant is under a charge that apprises him that the case will go before the grand jury, by being under bond to appear or confined in jail to answer the offence at court.

( a )The provision of the code as to the number of grand jurors to be drawn, is directory and not mandatory upon the court.

( b ) Statutes of Alabama and Mississippi and the decisions thereunder contrasted with those of this State.

( c ) A substantial compliance with any requisition of the code or laws amendatory thereof, especially on the part of public officers, shall be deemed and held sufficient; and no proceeding shall be declared void for want of such compliance, unless expressly so provided by the enactment.

2. Where a plea in abatement to an indictment alleged that one Joseph A. Huger was drawn as a grand juror, and Joseph A Huger, jr., served as such grand juror; that they were not the same person; and that upon the book in the clerk's office where the names of grand jurors were kept, the name of Joseph A. Huger appeared, but that of Joseph A. Huger, jr did not; and where it was agreed that Joseph A. Huger was the only Huger selected to serve; that Joseph A. Huger, jr served; that Joseph A. Huger was and had been for several years the quarantine physician of Savannah, resided in the county of Chatham, was over sixty years of age, and had never been known to serve on any jury in the county; and that Joseph A. and Joseph A., jr., were not one and the same person:

Held that, in the light of the facts, the plea in abatement was bad. The question was one of identity of persons, not of name, and there was enough to show that the person on the grand jury list, and who was drawn and summoned, was the same as the person who served.

3. There was no error in refusing to charge " that the defendant might be found guilty of assault and battery." Such a charge would have been too broad, without qualifying it by adding, if the facts do not make a case of assault with intent to murder or stabbing not in the defendant's own defence.

( a ) Where a person is badly cut and stabbed with a knife, there is scarcely room to find the assailant guilty of a mere assault and battery.

4. The verdict is supported by the evidence and not contrary to law.

Criminal Law. Jury and Jurors. Assault and Battery. Pleadings. Before Judge ADAMS. Chatham Superior Court. June Term, 1886.

Turner was indicted, together with one Studstill, for assault with intent to murder, charged to have been committed on William Sullivan. On the trial, Turner filed pleas in abatement, which are set out in the decision, and they were overruled. The evidence for the State showed, in brief, as follows: Sullivan was walking on a street in Savannah at night, when he met Turner and Studstill. He said good evening to Turner, to which the latter replied, " Go to h-l, you son of a b-h." Sullivan asked what he had said, and Turner repeated it. Sullivan slapped him in the face and started to walk off. Thereupon Turner cut him in the back with a knife, and as he turned, Studstill cut him in the neck and Turner cut him again in the face. Sullivan did not think he was badly hurt, and went home to change his clothes. In about fifteen or twenty minutes, he again met Turner and Studstill. He pointed his finger at Turner, and started to tell him he intended to prosecute him, when Studstill came from behind and struck him with a billy or loaded stick, and Turner cut him again.

The fact that Turner cut Sullivan was not denied, but the evidence for the defendant tended to show that Sullivan was the aggressor in both difficulties; that he struck both Turner and Studstill, and Turner struck him with his fist and Studstill with a stick; and that in the second rencounter Sullivan snapped a pistol at both, and in defending themselves against this, the cutting was done. The language attributed to Turner was denied.

The jury found the defendant guilty. He moved for a new trial on the following grounds:

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

(2) Because the court overruled the pleas in abatement.

(3) Because the court refused to charge the jury that the defendant might be found guilty of assault and battery.

The motion was overruled, and the defendant excepted.

J. J. ABRAMS; GEO. A. MERCER, for plaintiff in error.

F. G. DUBIGNON, solicitor-general, for the State.

JACKSON Chief Justice.

The plaintiff in error was convicted of the offence of an assault with intent to murder, and being dissatisfied, brings the case on assignments of error before this court.

1. The first assignment is, that the court erred in overruling a plea in abatement to the effect that the judge of the superior court drew more than thirty grand jurors, and that of those who found true the bill of indictment, four were among those drawn after thirty had been drawn, and that one Joseph A. Huger was drawn as a grand juror, and Joseph A. Huger, jr., served as such grand juror; that they are not the same persons, and that upon the book in the clerk's office where names of grand jurors appear, the name of Joseph A. Huger appears, but that of Joseph A. Huger, jr., does not. It was agreed that Joseph A. Huger is the only Huger name selected to serve, and that Joseph A Huger, jr., served; that Joseph A. Huger is and has been for years the quarantine physician of Savannah, resides in the county of Chatham, and is over sixty years of age; that Joseph A. and Joseph A., jr., are not one and the same person, and that Joseph A. Huger, quarantine officer, has never been known to serve on any jury in the county. The court held the plea in the light of the agreed facts bad, and the question made is, is it a good plea in abatement?

In 69 Ga. there are two decisions of this court bearing on the point. In Williams vs. The State, page 11 of that volume, it is intimated very strongly, if not decided outright, that points like these, relating to the competency of grand jurors, should be made before the true bill is found, and not on the trial before the traverse jury especially where the defendant is under a charge that apprises him that the charge will go before the grand jury, by being under bond to appear. The same principle would apply were he in jail to answer the offence at court. The reason is, that he must fight in...

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1 cases
  • Carhart v. Reviere
    • United States
    • Georgia Supreme Court
    • January 25, 1887
    ... ... bond to make title when the notes were paid. Hortman ... transferred the notes to Turner by delivery without ... indorsement or guaranty. Mrs. Carter and others obtained ... judgments against Carter, and subsequently Turner obtained ... ...

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