Vaughn v. State
| Decision Date | 15 February 1892 |
| Citation | 16 S.E. 64,88 Ga. 731 |
| Parties | VAUGHN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Though the formality of putting the panel upon him be not expressly waived, if, without informing the court he declines to waive it, the prisoner acquiesces in the omission, and takes part in the selection of particular jurors from the panel, raising no question touching the failure to put the panel upon him until after the full traverse jury has been selected and sworn, and the evidence in behalf of the state introduced, he will be deemed to have waived the formality by his silence and conduct.
2. In making his statement to the jury, as provided for by statute the prisoner not being sworn as a witness, nor subject to cross-examination, nor restricted by the rules of evidence he cannot lay the foundation for introducing evidence in his favor that would otherwise be inadmissible. Hence uncommunicated threats will not be received unless they are relevant and competent unaided by the contents of the statement.
3. Where there is positive and uncontradicted evidence by several witnesses that the prisoner fired the first shot, a previous uncommunicated threat of the deceased that he would "do up" the prisoner is not admissible in evidence as tending to show that deceased fired the first shot; there being no evidence that the deceased was armed.
4. The general tenor of the charge of the court on the trial of a criminal case should be shaped by the evidence alone and the law applicable thereto, adding, or at some stage of the charge incorporating, the statutory provisions touching the prisoner's statement, and, in case of special request to charge on the statement, granting such request, if the matter requested be appropriate. Taking the whole charge of the court together, there was no error committed in instructing the jury, nor in declining to instruct as requested. The charge was a clear, full, fair, and correct exposition of the law applicable to the case.
5. That the court excluded evidence when it was first offered is no cause for a new trial if the evidence was afterwards received.
6. The statute gives the prisoner no right to make more than one statement. Whether he should be allowed to supplement it with another is discretionary with the court.
7. There was no error in denying a new trial on any of the grounds stated in the motion.
Error from superior court, Bibb county; A. L. MILLER, Judge.
J. W Vaughn was convicted of manslaughter, and brings error. Affirmed.
W. B. Willingham, Hardeman, Davis & Turner, and Dessau & Bartlett, for plaintiff in error.
W. H. Felton, Sol. Gen., and Wm. A. Little, Atty. Gen., by J. H. Lumpkin, for the State.
1. In Cochran v. State, 62 Ga. 731, counsel for the accused did not waive, by acquiescence, the statutory requirement that the panel should be put upon the accused, but gave express notice at the time that it was not waived; the language being, "We waive nothing." In the present case, the accused and his counsel acquiesced by silence in the omission to put the panel on him, took part in the selection of particular jurors from the panel, raised at the time no question touching failure to put it upon him, and allowed the trial to proceed until all the evidence in behalf of the state had been introduced, and the state had closed. Putting silence and conduct together, there can be no doubt that the waiver was complete and effective, if such a thing could be waived at all. And what cannot be waived? It has been said that the whole trial may be waived. LUMPKIN, J., in Sarah v. State, 28 Ga. 581. There can be no doubt that minor matters, such as forms and ceremonials, in the course of the trial, whether prescribed by statute or not, may be waived. A right given by statute may be more certain, but is not more sacred, than one given by the common law. With respect to either, the accused is entitled to have it administered to him, unless he waives it. But, if he does waive it, he suffers no injustice, after his waiver has been acted upon, if he is held to abide by it. Public policy seems to be the only limitation upon the power of waiver, whether in criminal trials or anything else. Code, § 10; Logan v. State, 86 Ga. 266, 12 S.E. 406.
2. Assuming for the present that the uncommunicated threat made by the slain against the slayer was inadmissible as evidence for the latter, unless rendered admissible by his statement to the court and jury, made at the trial in the exercise of the statutory privilege secured to him by section 4637 of the Code, the question is, could the statement serve as a foundation for introducing the threat? The statement is not made under oath. The accused is not sworn as a witness. He is not subject to cross-examination without his consent. He is unrestricted by the rules of evidence, and may state any fact as to the condition of his own consciousness, or as to what he saw, heard, or believed at the time of the homicide. Coxwell v. State, 66 Ga. 309. Not even his general credibility is subject to attack. Doyle v. State, 77 Ga. 513. Is he entitled to corroborate his statement by evidence that would be wholly inadmissible for any other purpose? If so, the privilege of statement might be more valuable than that of testifying; for the testimony of a witness can be adduced only upon terms of cross-examination and subsequent corroboration may be largely discounted by what has been drawn out on cross-examination. The statute is silent as to corroborating the mere statement of the accused, and, while it allows the jury to believe it in preference to the sworn testimony, it seems to contemplate that the statement shall compete with sworn testimony single-handed, and not that it shall have the advantage of being reinforced by facts which do not weaken the sworn evidence otherwise than by strengthening the statement opposed to it. If the accused, by electing what matter he will inject into his statement, could render this or that fact which lies outside both of the statement and the evidence admissible when it would otherwise be inadmissible, his privilege would be not merely one of making a statement, but one of making evidence in his behalf out...
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Meldrum v. State
...aggressor, an uncommunicated threat by Bowen was not admissible in evidence as tending to show an overt act on the part of Bowen. (Vaughn v. State, 16 S.E. 64; Vann v. State, 83 Ga. 46, 9 S.E. 945; Lingo State, 29 Ga. 470; Carr v. State, 14 Ga. 358; Hoye v. State, 39 Ga. 718; Peterson v. St......
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Vincent v. State, (No. 2952.)
...that threat into execution. Lingo v. State, 29 Ga. 470 (2); Hoye v. State, 39 Ga. 718; Peterson v. State, 50 Ga. 142; Vaughn v. State, 88 Ga. 731, 16 S. E. 64; Trice v. State, 89 Ga. 742, 15 S. E. 648; May v. State, 90 Ga. 793, 17 S. E. 108; Pittman v. State, 92 Ga. 480, 17 S. E. 856; Nix v......
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...S.E. 897; Wiggins v. Tyson, 112 Ga. 744, 745(2), 38 S.E. 86; Williams v. State, 107 Ga. 721, 722(1), 726, 33 S.E. 648; Vaughn v. State, 88 Ga. 731(1), 735, 16 S.E. 64; Logan v. State, 86 Ga. 266, 270, 12 S.E. 406; Durham v. State, 70 Ga. 264 (4), 267; Sarah (a slave) v. State, 28 Ga. We com......
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Ferguson v. State of Georgia, 44
...The law fixes no value upon it; it is a legal blank. The jury may stamp it with such value as they think belongs to it.' Vaughn v. State, 88 Ga. 731, 739, 16 S.E. 64, 66. Because the statement is not evidence, even the charge in the strict terms of the statute favored by the Georgia Supreme......