Wilson v. State
| Decision Date | 31 October 1882 |
| Citation | 69 Ga. 224 |
| Parties | WILSON v. THE STATE OF GEORGIA. |
| Court | Georgia Supreme Court |
September Term, 1882.
1. Where a defendant was indicted under the name of " Doc." Wilson, a plea of misnomer to the effect that such was not his name nor had ever been, but that his name was and had always been Harrison L. Wilson, was fatally defective in not alleging that the defendant had never been known or called by any other name. An indictment which describes the defendant by the name by which he is generally or commonly known is sufficient.
2. While the better and more general practice is to keep all the minutes together in one book, yet if the clerk keep the minutes of civil proceedings in one book and of criminal proceedings in another, the verity or legal effect of the latter is not thereby destroyed.
( a. ) Minutes should be signed by the court, but are not invalid for want of a signature unless repudiated by the court.
( b. ) In the present case the court did not repudiate the criminal minutes, but approved and signed them, and having found against the plea of pendency of a former indictment at the time of the return of that under which the trial was had, we cannot say that he erred.
3. The constitution of 1877 (art. 6, sec. 18, par. 2) requires that the general assembly shall provide by law for the selection of the most experienced, intelligent and upright men to serve as grand jurors, and intelligent and upright men to serve as traverse jurors. Neither in the constitution nor in the act passed in pursuance thereof is there any discrimination made on account of race, color or previous condition of servitude.
( a. ) The selection of persons qualified to act as jurors is entrusted exclusively to a board of jury commissioners, under the limitations of the act and the safeguards of an oath to discharge their duty impartially without regard to race, color or previous condition of servitude; and a punishment is provided for violating the law.
( b. ) Both white and black men were excluded from the lists because, in the opinion of the commissioners, they did not meet the requirements of the law; the commissioners denied being influenced by consideration of color, and on submission to the court, he having found against the plea in abatement, we will not reverse his finding.
4. A challenge to the array of traverse jurors on substantially the same grounds, was properly overruled. Especially so, as it appeared that the names of thirteen negro men were in the traverse jury box, and that the names of others whom witness thought qualified to serve did not appear on the tax books from which the jury lists are made up.
5. The challenge to the array of the second panel was substantially the same as to the first, except that there were two colored jurors on it, one of them being number forty-six on the list and the jury having been completed with number forty-three although the defendant had nine peremptory challenges unused. The challenge was properly overruled.
6. The first twelve jurors of the panel of forty-eight were called sworn and put on their voir dire; the clerk then called two more, who were asked the statutory questions without being sworn. It was almost immediately discovered and the solicitor general proposed to recall the jurors and swear them; defendant's counsel objected, but assigned no reason therefor; the call then proceeded:
Held, that this was not error. The defendant having prevented the jurors from being sworn, and not having shown lapse of time, mixing of the jurors with the crowd or other reason, cannot demand a new trial.
( a. ) That the defendant had stricken one of the jurors not sworn makes no difference, where defendant both objected to his being recalled and sworn and did not use all of his strikes in securing a jury.
7. Although a section of a charge considered separately might be erroneous, if considered in connection with its context it be correct, it will not necessitate a new trial.
8. The judge stated the issue as follows: " He pleads not guilty; he says he did kill Tinley, but he did it in self-defence, to save his own life, and that is the issue for you to try."
Held, that while this was perhaps too decided a manner of stating the issue, it was not error, it being nowhere denied that defendant did the killing, even in his statement, and self-defence being in fact the plea.
9. On a trial for murder, when the killing has been proved to have been done by defendant, it will be presumed to be felonious until the contrary appears, either from the testimony offered by the state or the accused.
10. Exceptions to long paragraphs of a charge, involving several points, without specifying any errors therein, are too general.
( a. ) The section of the charge complained of in the 12th ground of the motion for new trial was not error.
11. A charge must be taken with its context, and not by isolated sentences culled here and there and put together. So taken, the charge complained of in the 13th ground of the motion was not error.
12. Charges not applicable to the evidence should not be given.
( a. ) Where a difficulty resulting in a homicide was purely of a personal nature, and had no connection with the house where it occurred, there would have been no relevancy in charging §4332 of the Code. Especially so where the scene of the difficulty was a public bar room in which the defendant was employed, and to which the public were invited.
13. Where it is sought to justify a homicide on the ground of self-defence or defence of habitation or property, §4330 of the Code must be construed together with §4332 and §4333 according to the facts of the case, whether affecting person, property or family.
14. Where the general charge covers the law of a case substantially, if more specific instructions on any given point are desired, written requests should be made.
( a. ) A saloon where persons are invited to come and drink is a public place, and one who resorts to such a place for that purpose has equal rights there as to that business with the vendor for the time being.
15. The 17th and 18th grounds are covered by the principles already ruled.
16. The 19th ground is disposed of by the 13th head note above.
17. There was no error in the ruling set out in the 20th and 21st grounds of the motion for new trial. The charge was clear, fair and impartial.
18. Where a pure question of fact was submitted to the court, and there was no request by counsel to be heard, it will not require a new trial that the court rendered his decision without hearing argument.
19. Errors should be specified. Taking the entire instructions of the court on the subject of the credibility of witnesses together, they were not erroneous.
20. A prisoner's statement is not under oath, nor is he subject to cross-examination without his consent; the jury may give to the statement such force and weight as they may see proper.
21. While it is the duty of the court to charge on points made in the argument to the jury, growing out of the case and authorized by the testimony, yet his failure to do so will not require a new trial unless at the time of the charge counsel recall the points to his mind.
22. The verdict was supported by the evidence.
Criminal Law. Misnomer. Minutes. Practice in Superior Court. Jurors. Constitutional Law. Practice in Supreme Court. Before Judge SIMMONS. Bibb Superior Court. October Term, 1881.
The following, in connection with the decision, sufficiently reports this case: " Doc." Wilson was indicted for the murder of James Tinley. On the trial, the evidence on behalf of the state was, in brief, as follows: On the afternoon of February 7, 1881, Tinley and Birdsong, a friend of his, went into the bar room of one Loyall in the city of Macon. The entrance to this bar room was through a barber shop, which was in front of it, and from which it was separated by a partition having a double door for entrance to the bar. Wilson was an employé and bar-tender of Loyall. Tinley and Birdsong called for and received drinks. Tinley then called for his account at the bar, and, after going out and obtaining the money, paid it. He said that the account was not correct. Wilson said that it was correct. Loyall, the proprietor, who was present, stated that he did not sell drinks on credit; that if Wilson credited anybody it was on his own responsibility, and it was a matter for him. When Wilson said that the account was correct, Tinley told him that he was a damned liar. Wilson said that if he were not at his business he would see Tinley outside. The latter replied that Wilson could see him at any time. He and Birdsong then left. About seven o'clock in the evening, they again returned to the bar. Loyall went from behind the counter and Wilson took his place. Tinley and Birdsong called for drinks, which were furnished by Wilson. They started to drink, when Wilson said to Tinley, " You acted the rascal with me; " to which Tinley replied, " No, you are the one that acted the rascal with me." Birdsong said, Wilson replied, They then raised their glasses, and while Birdsong was drinking the pistol fired, and when he and the other witnesses looked, they saw Wilson with the pistol in his hand run from behind the counter through the rear of the store and disappear. Tinley said that he was shot through the heart, and turning, started through the barber shop, fell and died in a few minutes, the shot having taken effect under the left nipple. No weapon was found about his person, nor any evidence of his being armed. He had...
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Williams v. State, 55997
...be said to exist. Evans v. State, 222 Ga. 392, 401-402, 150 S.E.2d 240; Faulkner v. State, 166 Ga. 645(6), 144 S.E. 193; Wilson v. State, 69 Ga. 224, 240(6). 4. Counsel for the defendant has not argued the enumerations of error by correlating same in numerical order; however, we have consid......
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