Shirley v. State

57 S.E. 912, 1 Ga. App. 143, 1907 Ga. App. LEXIS 172

• Court: Court of Appeals of Georgia
• Decided: February 5, 1907
• Docket: 168, 169
• Status: Published

Opinion

Powell, J.

The defendant was indicted and convicted in Rabun superior court for the offense of disturbing public worship. It seems., from the evidence set out in the record, that services were held at “Old Tiger Church/’ in that county, on Christmas, day, and that the defendant, although he was described by the pastor of the church as “a scoffer at religion,” attended. The indictment, in substance, alleges, among other things, that'the defendant carried to the church a considerable quantity of intoxicating liquors, both within and without his person; and in corroboration of this the evidence disclosed that he appeared to be intoxicated, and that one of the brethren thought he smelled whisky on him. The defendant also stated to the preacher that he had just drunk some ginger ale, but as to what particular kind of ginger ale is brewed about Christmas times in the mountains of north Georgia, in which Eabun county is situated, the record is silent. However, it seems to have stimulated the defendant’s generosity, for the preacher testified: “Just before the services began, he took me out near the schoolhouse, where his fine Berkshire sow was lying in her bed, and showed her to me, and told me that he would give me one of her pigs.” Hpon going into the church the defendant first took his seat near the entrance, but as the services progressed he kept moving nearer and nearer to the pulpit. .When the singing began he joined in, and, as Longstreet in his “Georgia Scenes” says'of the singing of Ned Brace on his famous visit to Savannah, “he sang very loud, and, apparently, purposely to make a discord.” As the preacher proceeded with his sermon the defendant began to express his approbation, interrupting him several times to say, “Well, that is the best sermon I ever heard you preach.” Finally his zeal became so great that he went up into the pulpit and took hold of the preacher’s arm and continued to compliment the sermon. This naturalfy created some disturbance; indeed the preacher stated in his testimony :. “I was so much disturbed by him that I thought I would have to stop preaching, but I knew defendant was a scoffer at religion, and I determined that the devil, through him, should not break up the meeting, and so I kept on preaching notwithstanding his interruption.”

Hpon arraignment the defendant filed a plea in abatement, asserting that Anderson, one of the grand jurors who participated in finding the indictment against him was incompetent as a juror,, because he was not a citizen of Eabun county at the time of his service. The evidence taken upon the plea showed that Anderson had been living in Eabun county for two years prior to the term of the court at which he served. During the week immediately preceding the convening of the court, he had sold the lands on which he had been residing, with the intention of moving to Cornelia in Habersham county, and had loaded his household goods upon the train with a view of sending them there. His wife and smaller children had gone to her father’s home in Turnerville, which is also in Habersham county, but he and one son remained in Eabun county to look after the removal of a sawmill and some cattle. During the week in which court was in session he boarded at a hotel in Eabun county. After the adjournment of the court he went on to Cornelia, and his wife and children joined him there. There was certain other testimony admitted in behalf of the State, but, since objection was made to its introduction, in order to avoid going into the questions made by these objections, we will decide the case as if this testimony had been excluded. The jury found against the plea in abatement.

1. One of the qualifications of a grand juror is that he shall have resided in the county six months preceding the time of his service. The contention in this casé is that the grand juror was no longer a resident of Eabun county at the date of his service. Hnder the facts stated above, we do not think that the contention is well taken. Hnder the circumstances Anderson retained his domicile and legal residence in Eabun county until he succeeded in acquiring residence and domicile in Habersham county. It is true that his wife and a part of his children had gone to Turner-ville, in the latter county; however, this was not for the purpose of making their home at Turnerville, but for the purpose of visiting her father. The mere fact that the place at which they were visiting happened to be in the same county in which thereafter they took up their residence did not constitute that county the locus of the husband’s domicile pending such visit. The effect of the decisions in Hickson v. Brown, 92 Ga. 228, and of Collins v. Camp, 94 Ga. 460, when construed together, seems to make it clear that at the time of his service the juror was, as a matter of law, under the facts stated, a citizen of Eabun county.

2. We can not relieve the defendant of the effects of his untimely conviviality by holding that the verdict against him in the main case is unauthorized. Judgment affirmed.