Johnson v. State

26 Ga. 611

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

McDonald, J.

delivering the opinion.

[1.] The first ruling of the Court below to which exception is taken, is the refusal of the presiding Judge to compel the Attorney General to elect on which of the two counts in the indictment he would put the defendant on his trial. If the two offences charged against the prisoner may be joined in the same indictment, the appeal was to the discretion of the Court — the exercise of which, public justice seldom calls for, and this Court will not control. If the two counts were improperly joined, the indictment might have been demurred to, and the exception, therefore, comes too late at the trial.

The two counts were very properly joined in one indictment. They are founded on the same act of the defendant.

If the shooting was with malice, he was guilty of the crime charged in the first count; if it was without malice, but not in self-defence, he was guilty under the second count.

[2.] It is difficult to conjecture the reason of the request of the Court to charge the jury, that “ there must be proof that the pistol was loaded with balls, as charged in the second count, otherwise, the prisoner could not be convicted under that count,” as there was evidence that the pistol was loaded with powder and balls. But the Act does not require that proof should be made that the pistol was loaded with balls, With what it was loaded was not an issuable ,fact, and the instructions ought not to have been given.

The assignment of error that the Court commented on the evidence, is not certified to by the Court, and we will not express an opinion on it. I will remark, however, that there can be no objection to the presiding Judge’s summing up to the jury, the evidence on both sides of a cause, and submitting the points distinctly to the consideration of the jury, to which the testimony applies, taking care to express no opinion as to what had been proven, so as to avoid what the statute was intended to guard against — the power of the Court’s influence with the jury upon the facts.

[3.] The last request made of the Court to charge the jury, by the counsel for the defendant, ought to have been refused. There is no evidence in the record that the prosecutor followed the defendant out of the yard into the street and assaulted him. But if this had been true, it depended on the nature of the assault, whether the defendant ought to have been acquitted on both counts.

Judgment affirmed.