Williams v. The State Of Ga.
| Decision Date | 30 September 1882 |
| Citation | 69 Ga. 11 |
| Parties | Williams. vs. The State of Georgia. |
| Court | Georgia Supreme Court |
[This case was argued at the last terra, and the decision reserved]
1. A counter-showing may be made to a motion to continue a case, whether in writing or by parol.
2. While on a counter-showing to a motion for a continuance on account of the absence of a witness it is not permis_ible to show that the facts which the absent witness would swear, if present, are not true, yet it may be shown that the absent witness would not in fact give such testimony as the movant attributes to him. Such testimony tends to contradict the party moving for a continuance, not the absent witness.
3. Motions for a continuance are addressed to the sound discretion of the court, and his ruling will not be disturbed by a reviewing court, unless such discretion be abused.
4. Where affidavits have been introduced by way of counter-showing to a motion for continuance, the cross-examination of the witnesses so swearing should be limited to the subject-matter embraced in the affidavits, and not be left wholly unrestricted.
(a.) If they knew facts of importance to movant not embraced in theiroriginal affidavits, additional affidavits could easily be procured to support the motion.
5 Where error is assigned in overruling a plea in abatement, based on the ground that the grand jurors who found the true bill and the traverse jurors who tried the case had not been legally summoned, because " no precept has ever been issued or ordered as the law directs for the summoning or attendance of jurors, " such precept as was in fact issued should be set out, that the court may judge of its legality. The precept required by law is very simple; and in the absence of anything to show the contrary, service will be presumed when the clerk hands the list to the sheriff.
(a.) Is the mode of equalizing jury duty, which does not effect the impartiality of those summoned, a proper matter for plea in abatement? Quare.
(b.) This court will not inquire into the legality of excuses made by grand jurors who were summoned at the time the true bill was found, on exception to the overruling of a motion for new trial under such indictment.
(c.) If a defendant in a criminal case can except to a grand juror at all, on the ground that he has formed and expressed an opinion, it should be done before the true bill is found, and not on the trial thereunder. Certainly so where the defendant had notice of the pending consideration of his case by the grand jury by reasons of having been previously placed under bond.
(d.) That the ordinary of the county acted as solicitor pro tempore in drawing and signing an indictment, is not good ground for a plea in abatement; neither is it that such solicitor pro tempore• was the employed counsel for the prosecution of the case.
6. Where jurors had been summoned through the instrumentality of the clerk and sheriff, a challenge to the array on the ground that no legal precept had been issued, and served, was properly overruled, where it did not appear what sort of precept had in fact been issued and served, or that there had been none at all.
7. A defendant in a criminal case charged as principal in the second degree, may be tried before the principal in the first degree.
8. Where an indictment charged a defendant in different counts with murder as principal in the first degree, as principal in the second degree, and as accessory before the fact, the state was not obliged to elect on which count it would try him.
9. The judgment of the court as a trior is final, and will not be reviewed by this court on a motion for a new trial.
10. The middle name of a juror or the initial of it is immaterial, and if the right man be summoned, a mistake in his middle initial will
not be ground for discarding him.
11. On a trial for murder, the question of motive being in issue, it was competent to show that deceased claimed to know facts connecting the prisoner with a larceny, and that he was therefore interested in removing her.
12. 13. The facts that on the second night after the killing, when search was being made for the prisoner, and he was suspected, defendant staid at a house other than his own, and with the owner of which he was not on friendly terms, that he was armed, and that he said "the way things are working, they are going to throw everything" on him and his brother, were admissible.
14. The motive of a defendant charged with murder being in issue, statements of the deceased made before the killing implicating defendant in the commission of a larceny, could be proved by parol, though made in giving testimony on a committing trial, in which the substance of the testimony was reduced to writing.
(a.) Is the substance of the testimony taken down by a magistrate at a committing trial better evidence of a statement made by one of the witnesses than the parol testimony of a reliable witness who was present? Qucere.
15, 16, 17. The restriction of a wife's testimony in a criminal case is confined to giving testimony on issues involving the guilt of her husband. Although he may be indicted jointly with others, yet on the several trial of one of the others she may testify as to matters not affecting his guilt or innocence.
(a.) Semble, that if an accomplice gives testimony as such, his wife may corroborate him.
18, 19. One question being as to the motive for a killing alleged to have been done by defendant, it was competent to show that money had previously been stolen, and that the deceased charged defendant and his brother with the larceny; but it was not competent to enter into a full trial as to the guilt or innocence of defendant of such crime on the trial of the indictment for murder.
to, 21, 22. If a request has been substantially given in charge by the court, a reversal will not be granted because the court did not repeat the charge in the exact language of the request.
(a.) A plaintiff in error must specify the errors complained of. To set out eight pages of requests, and say that each request should have been given, is not sufficient.
(b.) If, on a former investigation of a case, a witness has knowingly and wilfully sworn differently on material points from her testimony on the present trial, her testimony would be unworthy of credence unless properly corroborated. But, if the former testimony was given under duress, and impelled by fear for her life, such testimony would not be wilful, and would not impeach her evidence now given.
(c.) While proof of an unlawful killing may not of itself be sufficient to corroborate the testimony of an acomplice on a murder trial, yet this with other facts might be sufficient, and the jury would be authorized to consider such corroborating facts.
23. Where one was indicted both as an accessory and as principal in the second degree, and was found guilty on the latter branch of the case, an erroneous charge relating solely to finding him guilty as an accessory, did not necessitate a new trial.
24. No error is distinctly set out in this ground, and it cannot be considered.
25. Presence and participation in an unlawful killing will be sufficient to warrant a conviction of murder, unless the defendant shows something to exempt him from the operation of the rule. If this case nothing was shown.
26. 27. Proof of the corpus delicti is sufficient corroboration of a confession of murder to warrant a conviction, especially when the confession is such as could not have been made without the presence of the prisoner at the scene of the crime.
28. When a witness has been impeached by testimony which the jury believe, his evidence should be rejected, unless corroborated on a material point. But whether he be impeached or not is for the jury to say; and though others contradict him, the jury may believe him in preference to them. Even though he swore falsely on a former trial, the) may still believe him, if he then swore under duress.
29. The verdict is sustained by the evidence, and the charge as a whole is full and fair.
September 5, 1883.
Criminal Law. Evidence. Practice in Superior Court. jurors. Continuance. Husband and Wife. Practice in Supreme Court. Impeachment of Witnesses. Before Judge Fleming. Decatur Superior Court. August Special Term, 1881.
An indictment was found against Robert H. Durham John W. Williams and Walter Williams. The first countcharged all three with murder in the first degree; the second count charged John and Walter Williams with murder in the second degree, and the third count charged them with being accessories before the fact. John Williams being placed upon trial, moved for a continuance on the ground of popular excitement; because defendant and his counsel had not time or opportunity for the preparation of his defence, he having been committed to jail on July 29, 1881, and the court having assembled on August 22 following; because, if given time, he could impeach certain material witnesses for the state. [Here he stated what the absent witnesses would testify.] After the showing and counter showing, the motion to continue was overruled.
The defendant plead in abatement that some of the grand jurors who found the bill had formed and ex pressed an opinion adverse to defendant, because the court excused one of the regular grand jurors without legal excuse or authority, and supplied his place with a talesman; because the bill of indictment was signed by Maston O'Neal, as solicitor-general pro tem., he being at the same time the ordinary of Decatur county and being also employed for the prosecution; and because the court has never organized according to law, " nor are...
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