Miller v. State

25 S.E. 366, 97 Ga. 653

• Court: Supreme Court of Georgia
• Decided: January 20, 1896
• Status: Published

Opinion

Lumpkin, Justice.

1. The evidence in this case discloses the perpetration of a terrible assassination. "W1 H. Poberts was shot and killed in- his own house, at night, while sitting by his fireside in the presence of his family. Two persons, the plaintiff in error, Clabe Miller, and another, were indicted for the murder.

The material question at issue upon the trial of Miller was one of identity — whether or not he was one of the persons who actually committed, or participated in, the homicide. A daughter of the deceased testified at the trial that on the night of the killing she recognized the accused as one of her father’s assailants. It was shown that on a previous occasion, when the circumstances were such as to render it incumbent on her to disclose what she knew as to the identity of the person, or persons, by whom her father was murdered, she remained silent. This fact, unexplained, would undoubtedly have left her credibility open to attack; and the court therefore very properly allowed her to testify that she had maintained silence on the previous occasion referred to, because she was advised to do so. Indeed, it appears that her father, before dying from the wounds inflicted upon him, had enjoined her to pursue this course.

2. At the trial, one Johnson, after he had qualified and had been accepted by both the State and the accused as a juror, stated that his first wife, who was dead, was a second cousin of the accused. The court, over the objection of the latter, directed that the juror go off for cause. It did not appear whether or not the deceased wife left issue. Under these facts, the court erred in holding that the juror was incompetent. The general rule is, that relationship by aifinity is dissolved by the death of either party to the marriage which created the aifinity, provided the deceased party left no issue living. Thompson & Merriam on Juries, p. 181, Dearmond et al. v. Dearmond, 10 Ind. 191. “Affinity is a principal ground of challenge, either to the array or to the polls, and it continues if there be issue of the marriage.” Vannoy v. Givens, 3 Zab. 201. See, also, Cain v. Ingham, 7 Cow. 478, and note at the bottom of page 479. The State, having set np the incompetency of the juror, earned the burden of proving that the former relationship between him and the accused was still subsisting, by proving affirmatively that the deceased wife left issue. State v. Shaw, 3 Ired. Law, 534, and authorities there cited.

3. The main ground upon which we rest our judgment granting a new trial in this case is stated in the third headnote. We have directed the reporter to set forth the evidence which we there ruled was improperly admitted. A perusal of it will show that it ought to have been rejected, and the note in question sufficiently discloses the correctness of our judgment in holding it inadmissible.

Judgment reversed.