Conner v. State

25 Ga. 515

• Court: Supreme Court of Georgia
• Decided: June 15, 1858
• Status: Published

Opinions

By the■ Court.

Lumpkin, J.

delivering the opinion.

Overruling as we do, all the grounds in the writ of error, we deem it necessary to notice particularly a few of them only.

The first is, as to the taking down of the testimony as required by law in cases of felony. The old rule was, and we hold it to be the true practice in such cases, to read over carefully to each witness, the testimony as taken down by the amanuensis. If it be correct very well; otherwise let it be made so. If a disagreement takes place, in the course of the-trial between counsel or in the jury box, let the witness be recalled if within reach — not to testify anew, but to repeat the evidence given in while under examination subject of course to the recollection of the jury. If the witness has left and: cannot be recalled, then read from the written testimony as taken down : It is the next best proof, to that given by the witness on the stand. The non-observance of these directions may or may not be sufficient to require a new trial, according to the peculiar circumstances of the case — ordinarily it is not a good ground of itself.

[2.] As to the multifarious objections to the special presentment and indictment, jointly and separately, it is enough to say, they all come too late. But suppose they did not ; and moreover that it be true that an impossible day is alleged in the presentment, as the time when the offence was committed. Have not all the Courts both in England and in this country, settled it so long ago, that the memory of man runneth not to the contrary, that while some day must be stated, any other may be proven ? Who does not see, that if it be immaterial to prove the day as charged, that no day or an impossible day will do just as well ?

But it will be replied, that it never was decided, but that the time charged must be before the accusation is preferred. And I concede this tobe so, at least for the purposes of the argument. But let us look at the reason of the thing. Suppose-the day be laid subsequent to the finding of the grand jury; it is the same in effect as stating an impossible day, as the fortieth of May, andyf it be correct that any day within the statute of limitations and before indictment found will suffice, it is quite clear that no day, or one that is impossible, will do just as well. But we fall back upon the position that this and all kindred objections came too late.

[3.] As to the objection, that the panel of jurors, were summoned partly by bailiffs, the record discloses no facts touching this point except what appears in the motion for a new trial, which was disallowed by the Court. It is truethat the law requires that jurors shall be summoned by the Sheriff or his deputy; and if the Sheriff be interested then by the coroner or some other person appointed by the Court If the bailiffs in this case acted, under the authority of the Sheriff, they were his deputies pro hue vice.

[4th.] If the witness, James T. Holeman was unable from his physical condition to speak loud enough to be heard by the Court and jury, there can be no reason why his answers should not be communicated by Col. Dudley, an attorney of the Court, in the presence and hearing of the witness.

[5.] The Court charged the jury that if they believed from Jjjhe evidence the defendant took and carried away the negro, Seaborn, the property of Markett, from the 26th Court Ground, or any other place in Sumter county, with intent to steal said negro, the defendant is guilty, that it made no difference whether others aided and assisted or not, if the defendant actually perpetrated the theft; that if Holeman and Phillips, both be guilty, that does not help this defendant.

It is objected to this charge, that it is inapplicable to the the case, and calculated to mislead the jury. The point taken by the prisoner being, that if the jury believe the crime to have been committed and completed by others before the property was received by the prisoner, then he was only an accessory.

We have examined the testimony carefully and think the Court was fully justified in giving the charge which it did: The counsel for the accused had the right to insist upon his view of the law as applicable to the evidence. And for any thing that appears he was-permitted to do So. All he complains of is, that the proposition laid down by the Court, the soundness of which is not and cannot be controverted, was calculated to withdraw the mind of the jury from the defence which, he set up for the protection of his client. To my mind it is clear that both positions can stand together. The crime may have been completed as to Holeman and Phillips when they carried off tho negro, from the custody of his owner, and stilL Conner have been a principal. If his account of the transaction can be relied on, such was the truth of this case. Be this as it may, the Court charged nothing that was not law j and law, too, applicable to the facts proven.

* If the confessions of the defendant be true, he not only stole the negro, but afterwards drowned him. He is not only guilty of larceny, but of murder also.

Judgment affirmed.