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Connor vs. The State.

refused the demand of the prisoner, that he be arraigned on the bill of indictment."

The fifth ground was, that "the Court refused the arraignment as stated in the last ground, and permitted the trial to proceed after motion by the prisoner to exclude testimony from the jury until he was arraigned upon the bill of indictment."

[4.] I dispose of both of these two grounds in a word. There was no substantial difference between the presentment and the indictment. The rariance in the allegation of time, was not a matter of substance. Consequently, it made not the least practical difference to the prisoner, whether he was arraigned on the one or on the other.

The sixth ground was, that “the Court, after objection by the prisoner, permitted James T. Holeman to give testimony through an interpreter, the said James T. Holeman being upable to speak loud enough to be heard by the jury, on account of temporary weakness and debility—said testimony being communicated to the Court and jury by Col. George M. Dudley, he being called upon by the Court, after the witness had communicated it to him in a whisper."

If this ground be good, then the testimony of all persons speaking a strange language as well as of all persons who are mutes, is to be excluded. But we know, that the testimony of these persons, is not to be excluded. That is admitted.

I think that there is nothing in the ground
The seventh ground was, I believe, abandoned.

The eighth ground was, “ that the Court charged the jury, that if they believed from the evidence, the defendant took and carried away the negro, Seaborn, the property of Mark. ett, 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

Conner vs. The State.

theft. That if Holeman and Philips both be guilty, that does not help this defendant."

I can see no fault in this charge. Indeed, I believe, that this ground was also abandoned.

The ninth and last ground was, that "the jury found contrary to the evidence, and contrary to the weight of evidence.

I think they did not. I think they had an abundance of evidence to warrant their verdict.

The result is, that I think the Court below also did right, in overruling the motion for a new trial.

McDONALD, J., dissenting.

The plaintiff in error was indicted for simple larceny, and was convicted. He moved in arrest of judgment, and for a new trial. The presiding Judge in the Court below refused both motions, and the defendant below excepted. One of the grounds incorporated in one of the said motions was predicated on the following state of facts :

The plaintiff in error was presented for the offence by the grand jury, who charged it to have been committed in the year 1857. On this presentment the Solicitor General arraigned the prisoner, who pleaded not guilty. Afterwards the Solicitor General made out an indictment, charging the offence to have been committed in the year one thousand eight hundred and fifty-five, and transferred to it, without the consent of the prisoner or his counsel, the arraignment and plea made on the presentment, and refused to arraign the defendant on the indictment thus made out.

There was certainly no issue made up, in fact, between the State of Georgia and the prisoner on the indictment on which he was put on his trial. The Solicitor General had transferred and put on it an arraignment made on another accusation of the grand jury. It was not identical, for the offences are charged to have been committed in different

Conner Ag. The Siate,

years. It is said, that though a day and year must be alleged in every indictment, time is not material. It is true that the Solicitor General may generally prove a day different from that laid in the indictment, but still " the time must be stated with such certainty, that no doubt can be entertained as to the period really intended.” i Chitty's Cr. Law 218. It is therefore bad “to state the crime to be committed on the feast of St. Peter, because there are two feasts of that name, and both have additions to distinguish them. 1b. If the grand jury in England had charged a crime to have been committed on one of these feasts, could the attorney for the

make ont an indictment thereon, and insert the other, provided the statute law of that country was like our own?

The prisoner not having been arraigned on the indictment, he was deprived of a most important legal right, that of demurring to the indictment, pleading to the jurisdiction of the Court, in abatement, or of filing a special plea in bar. It certainly, according to my judgment, would have been a good plea that no accusation had ever been made against him by the grand jury, for the offence charged in the bill of indictment. Before the contrary can be held, it must be maintained, that if the attorney for the State have two indictments against the same prisoner for horse stealing, both found by the grand jury at the same term of the Court, one for stealing a horse in 1855 and the other for stealing a horse in 1857, he may sustain the latter by proof of the stealing in 1855, and the former by proof of the stealing in 1857. If an innocent person were thus accused, such a proceeding would be most oppressive, and might lead to his unjust conviction.

The grand jury in this case, accused the prisoner with having committed the offence in 1857. He was arraigned, and pleaded not guilty to the accusation, and when put on his trial, he finds himself charged by the Solicitor General with having committed an offence two years before, in re

Golden vs. The State.

spect to which there is no accusation of the grand jury, and to which he had never pleaded.

I cannot give my sanction to the proceeding, and think the judgment of the Court below ought to be reversed.

THOMAS GOLDEN, plaintiff in error, vs. The STATE OF GEOR

GIA, defendant in error.

[1.] When an escape by the prisoner is put in evidence by the State to raise

the presumption of conscious guilt, it is competent for the prisoner to rebut it by showing that it was attributable to the fear of serious personal injury

from the friends of the deceased, and not from a consciousness of guilt. [2.] It is not error in the Judge to say I " apprehend” the rule of law to be this

It being synonymous with understand, conceive, believe. [3.] To tell the jury, after charging the law in a criminal case, that they should

not differ from the Court on slight or trivial grounds, but should be "clearly

satisfied” that the Court was wrong before they did so, is objectionable. [4.] One may kill another against whom he entertains malice, and yet not be

guilty of murder. [5.] There can be no murder without malice, express or implied. A homicide may be reduced to manslaughter where no actual assault has

been committed on the person of the defendant; and where no attempt has

been made to commit a serious personal injury upon the accused. (6.) Drunkenness cannot excuse crime; modern decisions go so far as to hold

that drunkenness may be considered on the question whether the prisoner

was excited by passion or actuated by malice, in committing a homicide. [7.] To justify taking human life, the law makes no discrimination in favor of

a drunkard or a coward, or any particular individuol; but the circumstances must be such as to justify the fears of a reasonable man.

Murder, from Marion. Tried before Judge WORRILL, , March Term, 1858.

Thomas Golden was put upon his trial for the murder of Nicholas Jordan, and found guilty. Whereupon his counsel moved for a new trial upon the following grounds:

Golden Vs. The State.

Ist. Because the Court erred in refusing to let defendant prove by John Mathews, a witness who had been sworn for the State, that John Eidson said, on the evening of the homicide, that he was the whole cause of it.

2d. Because the Court erred in refusing to let the defendant prove by John Hanks, State's witness, that after he had arrested prisoner, one John Eidson made an attack on prisoner with a knife.

3d. Because the Court erred in its charge to the jury: “ You having heard the evidence and the argument, it becomes my duty to give you in charge the rules of the law, by which I apprehend you are to be governed in the decision of the case."

4th. Beause the Court erred in its charge to the jury,“that it is the right of the jury to differ with the Court in its construction of the law, but such difference should not be placed upon light and trivial grounds; you should be clearly satisfied that the Court is wrong before you do this.”

5th. Because the Court erred in charging the jury as follows: “ Though voluntary drunkenness is no excuse for the commission of a crime in a prosecution for murder, where the question is whether the act was done in a sudden heat of passion, intoxication is a circumstance proper for the consideration of the jury."

6th. Because the Court erred in refusing to charge the jury: “If they believe, from the evidence, that Golden killed Jordan through cowardice, alarm, or fear that great bodily harm or injury was about to be inflicted upon him, then he is guilty of neither murder nor manslaughter, but that he killed him in his own defence."

7th. Because the Court erred in refusing to charge the jury as requested by the prisoner's counsel," that a man may kill another against whom he has malice, and yet not be guilty of murder; therefore, if the jury believe, from the evidence, that Golden had malice against Jordan, and that Jordan pursued and sought a difficulty with him under such

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