West v. The State Of Ga.

• Decision Date: 31 October 1887
• Citation: 79 Ga. 773
• Parties: West. vs. The State of Georgia.
• Court: Georgia Supreme Court

79 Ga. 773

West. vs. The State of Georgia.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

Criminal Law. Verdict. Code. Laws. Practice in Superior Court. Jury and Jurors. Before Judge Roney. McDuffie Superior Court. March Term, 1887.

Reported in the decision.

Thos. E. Watson; John T. West, for plaintiff in error.

Clifford Anderson, attorney-general, by brief; Boykin Wright, solicitor-general, for the State.

Simmons, Justice.

The plaintiff in error was tried in McDuffie superior court for the offence of murder, and the jury returned a verdict of guilty with a recommendation to mercy. A motion for a new trial was made upon the grounds (1) that the verdict was contrary to the evidence; (2) that the verdict was decidedly against the weight of evidence; (3) that the verdict was contrary to law; (4) that the court, after a juror, W. J. Paschal, had been put upon the defendant by the State, and accepted as a juror by the defendant, allowed the State to withdraw its acceptance of said juror, and have his name stricken from the list of accepted jurors, and refused to allow the defendant to retain said W. J. Paschal as a juror to try said case, said juror not having been shown incompetent.

When the motion came on to be heard, the plaintiff in error amended his motion and added the 5th ground, as follows: "Because of the disqualification of the foreman of the jury which tried him, for that Huriah Reese, one of the jurors rendering said verdict and acting as foreman of the panel, had previously to the trial formed and expressed the opinion that movant was guilty of murder, and should be hung; which state of facts was unknown to movant and his counsel until after the said trial."

1. There was no error in the court's overruling the motion on the first and second grounds. The evidence is sufficient to sustain the verdict, and the court below being satisfied with the verdict, we will not interfere with it on those grounds.

2. The next ground of exception is, that the jury found a verdict of guilty and recommended the prisoner to themercy of the court, instead of recommending that he be imprisoned in the penitentiary for life; and it is contended by the plaintiff in error that, under the decision in Archer vs. The State, 35 Ga. 5, the verdict is illegal and ought to be set aside.

We do not agree with the plaintiff in error upon this question. We think that the act of 1875 (acts 1875, p. 106,) is conclusive on this point, a recommendation to mercy in capital cases of homicide being therein defined or declared to mean a recommendation to imprisonment for life. This section of that act is omitted from the code of 1882. Judge Bleckley, in his report of omissions in the code of 1882, refers to this section as one of the acts so omitted; and for some reason it seems that it was again omitted from the addenda made up from his report and attached to the code. It was claimed by the plaintiff in error that this act was not of force, and was repealed by the act of 1878, amendatory to section 4323 of the code. The act of 1878 simply changed that section of the code so as to permit a recommendation by the jury in capital cases, without regard to whether the evidence is merely circumstantial or not. And the act of 1875 is just as consistent with section 4323 after its amendment as it was before. This ground of exception therefore cannot be maintained. The act was a proper subject of legislation, and beyond doubt is still of force. The act being of force, it is an answer to the decisions relied upon by the plaintiff in error in 35 Ga. (above cited), and 48 Ga. 119 and 49 Ga. 451.

Indeed, in our opinion, we think the act was passed to meet the views of this court as pronounced in these cases. We, therefore, hold that the verdict of the jury in recommending the prisoner to mercy, instead of recommending that he be imprisoned in the penitentiary for life, under the act of 1875, means the same as if they had recommended imprisonment for life. The act declares that that shall be the meaning of this particular verdict. It would be the better practice, however, for the judge below topoint out always in his charge to the jury the particular kind of verdict the jury should find in cases of this sort. The jury then would know exactly what the effect of a recommendation of this sort would he.

3. We do not think that the court erred in the matter complained of in the fourth ground of the motion. It seems, from the record of this case, that in...