Wright v. The State Of Ga.

• Decision Date: 31 July 1855
• Docket Number: No. 49.,49.
• Citation: 18 Ga. 383
• Parties: David H. Wright, plaintiff in error. vs. The State OF Georgia, defendant in error.
• Court: Georgia Supreme Court

18 Ga. 383

David H. Wright, plaintiff in error. vs. The State OF Georgia, defendant in error.

No. 49.

Supreme Court of the State of Georgia

JULY TERM, 1855.

Murder, in Muscogee Superior Court. Tried before Judge Worrell, at January Term, 1855.

David II. Wright was indicted at June Term, 1854, for the murder of Alexander M. Robinson, alleged to have occurred in February, 1854. At June Term, 1854, a copy of the indictment and list of witnesses was waived. At January Term, 1855, when called for trial, Wright moved a continuance upon the following showing:

THE STATE

vs.

DAVID WRIGHT.

Indictment for Murder, in Muscogee Superior Court.

And now, at this term, comes the defendant, in his own proper person, in open Court, and asks the continuance of said case; and for causes of continuance, states, on oath—

That Walter T. Colquitt, Esq. is his original and leading Counsel in said case; that since he has been accused of said offence, and during all the period of his confinement in jail, he is the only one of his Counsel with whom he has personally conferred in the preparation of his defence, and with whom he has fully and freely communicated in relation thereto; that for the employment of his Counsel he is indebted to the kindness of his father; and that said Walter T. Colquitt was his first and leading choice, and the Counsel upon whom he mainly relied, and with whom he has mainly conferred. And defendant saith, that he feels both unwilling and unready to go to trial, without his aid and assistance; and that he is informed, and believes, he is unable, from serious indisposition, to render him such aid and assistance.

And as a further ground for continuance, deponent states that he cannot go safely to trial in the present excited state of the public mind against him; that acting upon the love of liberty, which he presumes common to all, he escaped from his long and tedious confinement in jail; and that individuals, aided by the public press, have used the occasion of his re-capture and return to jail, occurring on the 30th ult. and during the present term of this Court, to throw out the most exaggerated statements concerning him; and thus, so to influence public prejudice against him, as to create, he apprehends, the too general desire and hope that he has been remanded to jail, there to remain until he is taken thence by the sentence of the Court, and to prevent him from obtaining, at the present term, a fair and impartial Jury. And this deponent saith, that his application for a continuance of the case on these grounds, is not made for delay, but to accomplish for himself a fair and impartial trial, and to be aided therein by the Counsel of his choice; that he hopes, by another term of the Court, that the health of the said W. T. Colquitt will be restored, and such aid rendered him; and that by another term, the public excitement and prejudice against him now so industriously created, will have abated, and that he will be able to select a Jury, uninfluenced and unaffected thereby.

And deponent further saith: Christopher Finley is a material witness for him, and that he is informed and believes, that he has been subpoenaed, and resides in the County of Bibb, and is not absent, by his leave, consent or procurement.

That he expects to prove by said Finley, that he was in company with this deponent on the night of the alleged shooting, and that he, this deponent, had no pistols or other firearms; and that the pistol or pistols said to have been found near where he was arrested, were not the pistols of this de ponent; and that he, the deponent, did hot have the same in his possession on the night of the shooting; and he furtherexpects to prove by said Finley, that bo (Finley) was near by when Robinson was shot, and that there was but one pistol fired on the side walk in front of the Pleasant Hour, where said shooting of Robinson occurred.

Deponent saith, that this affidavit is not made for delay, but to enable him to procure the evidence of the said Finley, which he hopes and expects to do at the next term of the Court. DAVID H. WRIGHT.

Sworn to and subscribed in open Court, this 9th Jan. 1855.

David J. Barber, Clk.

The Court over-ruled and denied the motion; to which ruling and decision, the said defendant, by his Counsel, then and there excepted.

A Jury was impannelled, and the Sol. Gen. pro. tem. James N. Ramsey, submitted the cause to the Jury, by an opening speech explanatory of the nature and importance thereof, but without submitting the bill of indictment against defendant to the Jury, by reading the same, or tendering the same to his Counsel.

During the impannelling of the Jury in the case, one Jenkins Lowe was called as a Juror, and being put upon his voire dire, in answer to the usual question, rendered himself competent. The prisoner demanded the examination of the Juror before triors, which was granted, and before the triors the Juror announced, " that he had formed and expressed an opinion from rumor and report, but that such opinion was not fixed and decided; that he had said, if what he had heard should be proved to be true, the prisoner ought to be hung; that he had heard the prisoner shot down deceased in the street, when he went to arrest him, without provocation;" thereupon, the Court charged the triors, " that the mere formation of an opinion did not disqualify a Juror, but that such opinion must be both formed and expressed, and must be fixed and decided; and that if not so fixed and decided, it did not disqualify him."

To this charge the defendant excepted.

During the impannelling the Jury, very many of the Jurors called were put before triors; and the Court, in all such cases, charged the triors, as the law, that the mere formation of an opinion did not disqualify a Juror; but that it must be both formed and expressed, and fixed and decided, to amount to a disqualification; and to each and every of such charges defendant excepted.

During the progress of said trial and the taking of the evidence therein, it wa3 proposed to prove the deceased, at the time of said killing, was the Deputy Sheriff of said County of Muscogee, and had a warrant against the defendant, and to give in evidence said warrant. To all and every part of which evidence, and to the admissibility of said warrant in evidence, the defendant, by his Counsel, objected; which objection was over-ruled, and defendant excepted.

The Counsel for the prisoner asked the Court to charge the Jury, that they were the judges of the law as well as of the facts in criminal cases.

In answer to this application, the Court replied, " that he would, if not objected to, read what the Supreme Court had said upon that subject, which was as plain as any thing he could say." And therefore, no objection being made, the Court read from the case of The State vs. Holder, (5 Ga. R. 445,) the following words—giving no other or further charge in answer to said application: " We only say, that it is the right and duty of the Court to declare the law in criminal cases, as well as in civil; and that it is, at the same time, the right of the Jury to judge of the law as well as of the facts in criminal cases." To which refusal to charge and charge given, defendant excepted.

Objection was made to the verdict being received, on the ground that the indictment had not been read to tb.3 Jury or submitted to the Counsel. The Court over-ruled the objection, and defendant excepted.

On these several exceptions, error has been assigned.

Wellborn and H. Holt, for plaintiff.

McDougald & Ramsey, for defendant.

By the Court.—Lumpkin, J. delivering the opinion.

The first error complained of in this case is, that the Court over-ruled the motion for the continuance of the cause. The application was based upon three grounds—1st. The absence of the late Judge Colquitt, one of the prisoner's Counsel. 2dly. The excitement of the public mind which would not admit of an impartial trial; and 3dly. The non-attendance of the witness, Finley.

Was the showing sufficient to entitle the defendant to a postponement of his trial?

As it respects the absence of Counsel, upon whom the prisoner, as he alleges, mainly relied for his successful defence, on account of his great powers as a criminal advocate, a the showing is defective in this: Mr. Wright fails to state, and for the reason, no doubt, that he could not conscientiously, that he expected to have the benefit of his services at the next term of the Court, he did swear that he hoped ho would recover, so that he might have his aid. So we all did. But it was hoping against hope, from the known character of his disease. The absence of Counsel, when resisted, is a ground of continuance not favored by the Courts; and especially as in this case, when the accused was defended by two of the most distinguished members of the bar. Had Judge Colquitt been taken suddenly ill, leaving no time or opportunity for his place to be supplied by others, the case would have been different.

As to the excited state of the public feeling, it will be remembered that the true bill was found against the defendant in June. he was then arraigned, and waived a copy of the indictment and list of witnesses. The killing had taken place the February before. And when put upon his trial in January, 1855, he asks a continuance, not so much on account of the excitement resulting from the offence with which he wascharged, but because of the newspaper agitation of the subject, occasioned by his subsequent escape and re-capture; and he assigns, as an apology for this last act, his love of life and liberty.

While we readily concede that this was a very natural step on his part, we apprehend it would bo a most dangerous doctrine to establish, that a party should invoke his own misconduct and the consequences necessarily resulting therefrom, as a reason for the indulgence which he seeks. Popular excitement has never been made the ground for a continuance, except at the first term; and...