Wade v. The State Of Ga.
| Decision Date | 31 August 1852 |
| Docket Number | No. 8.,8. |
| Citation | 12 Ga. 25 |
| Parties | Elisha Wade, plaintiff in error. vs. The State of Georgia, defendant in error. |
| Court | Georgia Supreme Court |
Indictment, in Dooly Superior Court, for an assault with intent to commit a rape. Tried before Judge Powers. April Term, 1852.
At the April Term, 1852, of Dooly Superior Court, Elisha Wade was tried and convicted of an assault with intent to commit a rape.
Counsel for the defendant moved for a new trial, upon the following grounds.
1st. Because John Lashly, one of the Jurors who tried said cause, since the trial of the same, has said to John D. and William R. Dawson, and various other persons, that before the trial his mind was fixed and made up as to the guilt of the defendant, and which was not known to the prisoner till after the trial.
2d. Because the Court erred in allowing the Solicitor General to lead the witness by asking her if the defendant attempted to strip up her clothes, after prisoner's counsel had objected, no objection being made by prisoner.
3d. Because the Court erred in this, that after the Jury had retired to their room to make up their verdict, and after having remained there sometime, to call them back into Court, and reading over the written testimony as taken down by the Court to the Jury, and without the consent of prisoner's counsel, and while prisoner was absent.
The following affidavits were read, in support of the first ground:
GEORGIA, Dooly County.
Personally came before me, John D. and Wm. R. Dawson, who, after being duly sworn, saith that on yesterday in a conversation with John Lashly, one of the Jurors who set upon the case, and after the trial and conviction of Wade, they heard the said John Lashly say that he was sorry he set on the case, and that if he had been put upon triors he would not have set uponsaid cause, because his mind was made up before, against the prisoner. JOHN D. DAWSON,
WM. R. DAWSON.
Sworn to before me, April 18, 1852. H. H. Bostwick, J. P.
GEORGIA, Dooly County.
Personally appeared before me, Stephen W. Pearce, who being sworn, saith that as well as he recollects, that on Tuesday of the first week of the present session of the Superior Court of this County, and before the impannelling of said Jury to try said cause, he heard John Lashly say, that he, from what he understood, believed the defendant, Elisha Wade, was guilty, and that there was no chance but for him to go to the penitentiary.
S. W PEA RCE.
Sworn to in open Court, this the 22d day of April, 1852. Robert B. Davis, Cl'k.
The Court refused to grant the motion for a new trial, and this decision is assigned as error.
T. H. Dawson and Lochrane, for plaintiff in error.
Solicitor General DeGraffenreid, for defendant in error.
By the Court.—Warner, J. delivering the opinion.
The first ground taken for a new trial in this case, in the Court below was, that John Lashly, one of the Jurors who returned the verdict against the defendant, was not an impartial Juror, having formed and expressed an opinion against him, before he was impannelled and sworn as a Juror, which fact was unknown to the defendant until after the trial. The application for a new trial on this ground, is based on the affidavits of S. W. Pearce, John D. and Wm. P.. Dawson, John W. Cox, and the affidavit of the defendant. Pearce states, that during the
28 term of the Court at which the trial was had, and before the Jury were impannelled, he heard John Lashly, the Juror, say, "that from what he understood, he believed the defendant was guilty, and that there was no chance but for him to go to the penitentiary.\'\' John D. and Wm. R. Dawson, state, that in a conversation with John Lashly, the Juror, after the trial, he said, " he was sorry he sat on the case, and that if he had been put upon triors he would not have sat on said case, because his mind was made up before, against the prisoner." The affidavit of Cox is substantially the same as that of the Daws0ns.
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