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No. 25.-JOSIAH HUDGINS, plaintiff in error vs. THE STATE OF GEORGIA, defendant in error.

[1.] A juror is not disqualified who has formed an opinion from mere rumour.

[2.] The 15th section of the 14th division of the Penal Code, allowing the State ten peremptory challenges, is constitutional and valid.

[3.] When the question is whether a homicide is felonious or justifiable, the opinion of a witness, as to the intention of the deceased in approaching the prisoner, is not evidence; aliter, as to any information which the witness may have communicated, whether true or false.

[4.] The 12th section of the 4th division of the Penal Code declares, that homicide is justifiable in self-defence, "against any persons who manifestly intend and endeavour, in a riotous and tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein." This clause of the act does not apply to a single individual, but contemplates the joint action of two or more persons.

[5.] This Court will rarely, if ever, control the discretion of a Circuit Judge, in granting or refusing a new trial in a criminal case because the finding is contrary to evidence; provided there was sufficient proof to warrant the verdict.

Indictment for Murder. From Monroe Superior Court. Tried before Judge FLOYD. September Term, 1846.

For the facts, see the opinion of the Supreme Court.

KING & GORDON, HARMAN, BATTLE & HARDEMAN, for the plaintiff in error.

MCCUNE, Solicitor General for the State.

Hudgins vs. The State of Georgia.

By the Court-LUMPKIN, J. delivering the opinion.

This is a writ of error to a judgment of the Superior Court of Monroe County. The plaintiff, Josiah Hudgins, was indicted for the murder of John Anderson. On the trial John Ross, one of the

tales jurors, being sworn upon his voire dire, under the Act of 1843, answered, "that he had not heard any part of the evidence given under oath, nor had he seen the crime committed, but had formed an opinion from rumour." Defendant's counsel moved to reject the juror, which motion was overruled, and the juror peremptorily challenged by the prisoner. And to this opinion of the Court the defendant excepted.

David Crawford, another of the panel, was then called, and having answered in the negative both of the interrogatories propounded by the Act of 1843, he was, by the permission of the Court, peremptorily challenged by the State. Whereupon the prisoner's counsel excepted.

The testimony having closed in behalf of the State, the defendant proposed to prove, by Anderson Hudgins, his son, that he (witness) said to his father, as the deceased approached the house where the homicide took place, "yonder comes John Anderson, and he will kill you." The Court refused to admit the latter portion of the answer, whereupon prisoner, by his counsel excepted.

The Court, in summing up, charged the jury, that to make homicide justifiable in self-defence, under the last clause of the 12th section of the 4th division of the Penal Code, that it required two or more persons to make the assault therein contemplated. To which construction of the statute the prisoner, by his counsel, excepted.

The jury having found the defendant guilty,'he moved for a new trial, on account of the alleged errors committed by the Court in the several matters hereinbefore recited, and upon the additional ground that the verdict was contrary to evidence. The application was refused, and thereupon defendant excepted.

The record presents the following questions for the decision of this Court:

[1.] First. Was there error in the Court below in overruling the

motion to exclude John Ross?

Second. In allowing the State peremptorily to challenge David Crawford.

Third. In rejecting a portion of the testimony of Anderson Hudgins.

Hudgins vs. The State of Georgia.

Fourth. In its charge to the jury upon the last clause of the 12th section of the 4th division of the Penal Code.

Fifth. In refusing the application for a second new trial.

First. This court is now called on, for the fourth time, solemnly to review and to declare the law prescribing the mode of selecting juries in criminal cases.

In Reynolds vs. The State of Georgia, 1 Kelly's R. 222, this Court held, that a juror who stated upon oath, in answer to the questions propounded to him by the statute, that he had formed and expressed an opinion from hearsay, was not an impartial juror. And of the rectitude of that opinion there can be no doubt in any legal mind. Such an answer constituted a principal cause of challenge under the Code of 1833, and so ruled by every Judge in the State, from the period of its adoption. Having decided that Reynolds must be tried under the Act of 1833, inasmuch as his alleged offence was committed before the passage of the Statute of 1843, we therefore could not do otherwise than pronounce that a disqualification, which was expressly declared to be so by the law under which the prisoner was tried.

The question again arose in the case of Kinchen P. Boon vs. The State, 1 Kelly's R. 618. There the juror answered in the negative the questions propounded by the Act of 1843. The prisoner proposed to put him upon triors for the purpose of proving by witnesses, that he was not indifferent, for the reason that he had formed and expressed an opinion from hearsay or report as to the guilt or innocence of the prisoner. This the Judge at the Circuit refused. After the most deliberate reflection, this Court come to the conclusion, that the Court below erred in denying this application. That if the prisoner could prove what he proposed, it would constitute presumptively at least, a disqualification, but that nevertheless, it was competent for the State to restore the juror to fairness and impartiality, if in the judgment of the triors, the opinion so formed and uttered, was not of that fixed and decided character, as would prevent the juror from weighing with candour the evidence produced on the trial, and rendering a verdict accordingly.

We had occasion to reconsider this point in the subsequent case of Warren J. Boon vs. The State of Georgia, 1 Kelly's R. 631, when we reiterated our abiding confidence in the soundness of the principle which we had adopted; and subsequent reflection, so far from producing distrust, has but stereotyped upon our minds the

Hudgins rs. The State of Georgia.

unerring truthfulness of the convictions upon which we acted; and did the present case fall within the rule then laid down, we should not for a moment hesitate or falter.

It is urged that a juror who answers both of the questions under the act of 1843 in the negative, is competent, unless something can be shown which will put the truth of one or both of those answers in issue. Concede, er gratia, that this is a correct interpretation of the statute, what is the second inquiry put to the juror? "Have you any bias or prejudice resting on your mind, either for or against the prisoner at the bar?" Consult the most approved lexicographers and standard writers in our language. Bias is defined to be, “any thing which turns a man to a particular course, propension, inclination." Prejudice is rendered, "prepossession, judgment formed before hand without examination." And is not that man, whose opinion is both preconceived and expressed, inclined already to that side? And is not some evidence necessary before these impressions can be removed and his mind restored to the straight line of indifference? Is it a perpendicular, ready to fall on either side, according as the weight of the proof may lodge?

The question is too plain for argument: he that runs may read, and the wayfarer need not err respecting this matter. The juror may think himself free from bias or prejudice because he harbours no grudge or personal ill wilk toward the accused; yet, if he has formed and expressed an opinion as to his guilt, upon the information of those perhaps who were eye and ear witnesses to the transaction, and in whose veracity the juror reposes the most implicit confidence, a mind thus pre-occupied has a bias resting on it, and he that doubts or disputes it, neither knows himself, nor whereof he affirms; and it would become the imperative duty of the triors thus to decide, and the presiding Judge so to instruct them. The Legislature never intended that any one should be forced upon the jury with an opinion so formed and expressed beforehand, on facts so well authenticated as would govern men's conduct in all the ordinary transactions of life; if they did, why grant to the prisoner and the State the privilege of putting such juror upon his trial in the manner pointed out by law, that is, according to the course of the Common Law, and to prove such juror incompetent, notwithstanding he so answered the questions propounded to him, as to render himself competent?

When triors are appointed it is the right either of the State or the defendant to show that the juror is incompetent, because he

Hudgins vs. The State of Georgia.

has formed and expressed an opinion from having seen the crime committed, or having heard some part of the evidence delivered on oath, or that he has prejudice or bias resting on his mind; that is, that his judgment has been made up and rendered beforehand, from the statements of those who were present, or from rumours, reports, or newspaper publications. And well might the Supreme Court of New York ask, in delivering its opinion in the case of the People vs. Mather, 4 Wend. R. 241, shall a grand-juror, who has patiently listened to all the evidence on which an indictment is found, or one who witnessed the commission of the offence, be rejected when called on to try the accused, and shall another be received without exception, who has formed his opinion on idle rumours and unauthenticated reports? Of those who entertain an opinion of the guilt of the accused before his trial, they that believe on the slightest evidence, or no evidence at all, manifest, in my judgment, a state of mind less prepared to receive and allow a fair defence, than those who believe on proof which furnishes prima facie evidence of guilt.

We have no controversy, therefore, with the Act of 1843. Give it its true and obvious construction and it entirely harmonizes with the great principles and well-established practice of the common law, whose provisions it expressly adopts. Nor are we aware that a contrary interpretation was ever put upon it, or its predecessor of 1833, by any of the eminent judges who have administered the penal laws of the State, since their passage. When, I would ask, was the application refused by the court to appoint triors to pass upon the competency of a juror under the Act of 1843, who had formed and expressed a decided opinion, founded upon what he considered an authentic source as to the guilt or innocence of the prisoner?

Should the General Assembly be dissatisfied with the mode of impaneling a jury, designated by the common law, and to which reference is made both in the Acts of 1833 and 1843, on account of the delay or inconvenience attending it, they have the right to refer the matter to the court perhaps, instead of triors. On motion of either party, any person who is called as a juror might be examined on oath to know whether he has formed and expressed any opinion, and the nature of that opinion, gr whether he is sensible of any bias or prejudice, allowing either party objecting to the juror, to introduce evidence in support of th objection, and if it shall appear to the court that the j

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