Fogarty was indicted in the superior court of Chatham county for an assault with intent to murder; to which indictment he pleaded not guilty. On the trial of the case the jury found a verdict of guilty; whereupon he made a motion for a new trial, upon forty-two grounds, which was overruled, and he excepted.
1. The first three grounds may be considered together. The 1st is, that the court held that an affidavit for a continuance should be made by the defendant himself; the 2d ground is, that the court held that when the affidavit for a continuance was made by another person than the de
2. The court also did right in refusing to continue the case on account of the absence of the witness Burns. It was insisted by the defendant that he could prove by Burns that he had epileptic fits on divers and sundry occasions. It was not contended that the fact of his having those fits in numerous other instances could not be established by other witnesses. Indeed, the record shows that numerous witnesses testified as to his epilepsy. The State did not seek to combat this, and did not offer any witnesses to show that the defendant was not afflicted with this dis
3. The 4th ground of the motion is, in substance, that the court refused to instruct the jury “that each juror should decide for himself, upon his oath, what his verdict should be, and that no juror should yield his deliberate conscientious convictions as to what his verdict should be, either at the instance of a fellow-juror or of the majority; and that no juror should yield his honest convictions for the sake of unanimity or to avert the disaster of a mistrial.” We think the court’s charge was sufficient upon this question when he charged the jury that “ each juror should decide for himself, upon his oath, as to what his verdict should be,” if indeed he should have instructed the jury upon that subject at all. The jurors are supposed to be intelligent, conscientious men; each takes the oath'prescribed by law, “ that he will give a true verdict according to the evidence ”; and he is presumed to understand the nature and effect of his obligation. Whether he can conscientiously yield his judgment to that of his fellow-jurors, is a question he must decide for himself. The charge requested was a virtual bid for a mistrial; for the effect would be to impress upon an obstinate juror never to yield to the argument or reasoning of his fellow-jurors. The daily experience of our lives shows that such a charge would be erroneous. How often are the fixed and conscientious convictions of a sensible man changed by reason and argument. How foolish and absurd does a man ap
This court, in the case of Smith vs. The State, 63 Ga. 170, held that “the jury are to act as a body, and should be charged as a body. The individual jurors are not to be addressed in the charge in a way to discourage mental harmony and concert. It is not incumbent upon the court to stimulate their individuality by charging at the prisoner’s written request, ‘that each juror must be satisfied for himself, from the evidence, of the guilt of the defendant, before he can lawfully agree to a verdict of guilty.’ ” We do not think, therefore, that the court erred in refusing the request set out in this ground of the motion.
4. The 5th, 6th, 7th, 8th, 10th, 11th, 12th, 13th and 14th grounds are as follows:
“ 5 th. Because the court erred in refusing to give in charge to the jury the following written request: ‘ The defendant should be acquitted unless the jury are satisfied beyond a reasonable doubt that the assault was not produced by mental disease.’
“ 6th. Because the court erred in refusing to give in charge to the jury the following written request: ‘ If the defendant commit an assault, knowing it to be wrong, when driven to it by an uncontrollable and irresistible impulse, arising not from natural passion but from an unsound condition of mind, he is not criminally responsible.’
“7th. Because the court erred in refusing to give in charge to the jury the following written request: ‘You must be satisfied beyond a reasonable doubt of the defendant’s mental capacity to commit the crime charged.’
“ 8th. Because the court erred in refusing to give in charge to the jury the following written request: ‘ If from the evidence in the case a reasonable doubt arises in youiPage 456minds as to the sanity or insanity of the defendant, he is entitled to the benefit of that doubt.’
“ 10th. Because the court erred in refusing to give in charge to the jury the following written request: " Though a total want of responsibility on account of insanity be not shown, yet if the prisoner’s mind was so far affected as to render him incapable of a deliberate premeditated assault with intent to murder, he cannot be convicted of assault with intent to murder.’
" 11th. Because the court erred in refusing to give in charge to the jury the following written request: " If you have any reasonable doubt that he was, at the time of the committing the alleged assault, of sound memory and discretion, it is your duty to give him the benefit of that doubt and acquit him.’
“12th. Because the court erred in refusing to give in charge to the jury the following written request: "If you find that the defendant is subject to fits of insanity, he may not inaptly be called an insane man.’
“13th. Because the court erred in refusing-to give in charge to the jury the following written request: " You may consider the mental and moral condition of the prisoner at the time of the alleged assault, for the purpose of determining whether or not he was capable of forming the deliberate intention unlawfully to take away the life of a fellow-creature. If you find from his condition, or from external circumstances capable of proof, that he was unable to form that deliberate intention, then there can be no express malice; and if you have a reasonable doubt of the existence of that deliberate intention, you are to give the benefit of that doubt to the prisoner.’
“ 14th. Because the court erred in refusing to give in charge to the jury the following written request: " You cannot imply malice unless you find that no considerable provocation appears, and in addition thereto, that ail the circumstances of the assault show an abandoned and malignant heart. If the assault can be attributed by you toPage 457his mental or moral nature, and if you find that his mental and moral condition is the result of epilepsy, then you should attribute it to that, rather than to an abandoned and malignant heart; because if you can give to an act one of two constructions, the one in favor of the prisoner’s innocence is the one that ought to be adopted.’ ”
The able and learned counsel for .the plaintiff in erroj asked leave of this court to review our former rulings on the subject of these requests. We declined, pending his argument, to allow him to do so, stating’that if upon consultation, we saw reason to doubt the soundness of the rulings he sought to review, we would allow him to review them in further argument. We have carefully considered these rulings, and see no reason to doubt their soundness and wisdom. We do not think the court erred in refusing to give in charge the foregoing requests.
5. The 9th ground of the motion is, that the court erred in refusing to give in charge to the jury the following written request: “ The defence that a prisoner was insane at the time the deed was done, must, under the law of Georgia, be made under the general issue.” As to what is proper pleading in a case is for the court and not for the jury, and it would be improper for the court to charge the jury upon that subject. Counsel for the plaintiff in error seeks to explain the action of the judge in not giving this request in charge, because of the fact that the case of Danforth vs. The State, Ga. 614, had not been published at the time of this trial. We have carefully read that decision, and do not find that any new doctrine on this subject was laid down therein. So far as we know, it has always been the practice in Georgia, where insanity at the time of the trial was insisted upon, to file a special plea to that effect, and to try such plea by a special jury. Code, §4299. See also Anderson vs. The State, 42 Ga. 9, 10, We do not think anything in the decision in Dmforth vs. The State, supra, would authorize the judge to give such a request as this in charge.
7. The 16th and 17th grounds are, that the verdict is contrary to law and to the evidence. We have carefully read the evidence as set out in the voluminous record of five hundred pages sent up to this court, and are fully satisfied that the verdict was not only authorized by the evidence, but really demanded by it. In brief, the record discloses that this defendant was prosecuted in the police court of the city of Savannah for disorderly conduct, and after his trial and conviction in that court, he with a com
The defence was, insanity at the time of the shooting. In order to prove this insanity, it was shown that the defendant was afflicted with epilepsy, that he had a great many attacks of this disease, running through a period of three years or more, that .he had been under treatment by physicians for this disease, not only in Savannah but in New York, and that some of his family were afflicted with the same disorder; but no witness except one testifies that his mind was so disordered that he did not know that it was wrong to commit this offence, and that he did not know that he deserved punishment for the commission of it. Nearly all the witnesses testified that he was like other boys, except at times when these convulsions were upon him and immediately afterwards; and we think an impartial mind, upon reading the whole testimony, would readily come to the conclusion that even if the court below had given the charges as requested by the defendant’s counsel, the jury would be obliged to find the verdict they did find. The charge of the court was able, fair and impartial ; the jury in their verdict violated none of the instructions given them by the court in his charge; and we therefore think that these two grounds are without merit.
8. The 18th, 19th, 20th, 21st, 22d, 23d, 24th, 25th and 26th grounds may be considered together. They complain of the action of the court in declaring the jurors mentioned therein competent jurors. Under the rulings of this court, we cannot consider these grounds of the motion. It appears from the record that all these j urors were put upon the court as a trior, and the court found that the jurors were competent. It has been repeatedly ruled by this court
9. The 27th, (the 28th ground was not approved by the judge) 29th, 30th, 31st, 32d, 33d and 34th grounds of the motion may be considered together. The error assigned in these grounds is, that the court had no right to ask the jurors any other questions upon their voir dire than those prescribed by the statute. We do not think there is any merit in these grounds. Whether the questions were propounded by the court before the jurors were put upon the court as a trior or not, does not make any difference, in our view of the law of the case. We have carefully read the questions propounded to the different jurors by the court., and all the questions propounded were either for the purpose of explaining the nature and meaning of the statutory questions, or to test the understanding which the jurors had of those questions when they made their answers thereto. We think the judge had a right — indeed it was his duty, when he observed that a juror did not understand the meaning of the statutory questions, — to explain the same to him, or to ask him questions which would satisfy the court as to whether or not the juror did understand the meaning thereof.
10. We think that the court had a right to explain to
11. The 35th ground complains of improper communications with the jury after they had been impanelled, in that two of the jurors, on the morning after they had been impanelled, were reading copies of the “Savannah Morning News,” a newspaper published in that city. The record discloses that the copies of the paper which the jurors were reading contained nothing about the case except the
12. The 36th ground is, “ that M. G. Helmken and J. S. Evans, two of the jury who tried the case, had formed and expressed an opinion concerning the guilt of the prisoner, and were not perfectly impartial between the State and the accused, but were prejudiced against him, although they had been put upon their voir dire.” In support of this ground, one Bodell testified, that he heard Helmken, before the trial, say that the defendant “ ought to be taken down to the canal bridge at the railroad and hung the same as the nigger.” Mr. Dale testified that he had known this v/itness, Bodell, for a number of years, and had always found him to be an industrious, truthful and honest man. One Monahan testified that he had heard Evans, the juror, say before the trial, that the defendant “ought to be hung, and if I were on his jury I would hang him.” The usual affidavits were made by counsel for the defendant, and by the defendant’s father, that they did not know of this until after the trial. In reply to this ground of the motion, these two jurors made affidavits. Helmken, in his affidavit, stated that he made the remark attributed to him by Bodell, but said that when he made it he was under the impression that the accused was not Thomas Fogarty, but his elder brother; that he had never known Thomas Fogarty, the defendant, and had never seen him until the morning of the trial; that the defendant’s older brother, whom he had before supposed was the accused, had had a difficulty in his store and had drawn a pistol or knife on one of his customers; that his answers upon the voir dire were true, that at the time he was accepted as a juror his
14. The 38th ground complains, in substance, that the court refused to charge the jury that notwithstanding any recommendation to mercy that they might think proper to make, the punishment would still require confinement in the penitentiary.” It appears from the record that the jury wrote a note to the judge and inquired whether they co'uld recommend to mercy or not. The judge caused them to be brought into court, and read them section 4656 of the code; and we think that even if it would have been proper to. give such instructions to the jury, the reading of that section was a substantial compliance with the request. That section says: In all cases where the term of punishment in the penitentiary is discretionary, the court shall determine that punishment, paying due respect to any recommendation which the jury might think proper to make in that régard.”
15. The 39th ground is as to newly-discovered evidence. This newly-discovered evidence was an affidavit of Dr. Whitcombe, of New York city, in which he says that he was the sole owner of a remedy for epilepsy as prepared by Dr. Root, that the defendant was for a few years previous a constant purchaser of this remedy, and was under the treatment prescribed in the use of the remedy; and that the result of his observation and experience for a long time had satisfied him that the loss of mental power is a natural and usual result of long continued epilepsy. This evidence, in our opinion, was entirely cumulative. Numerous witnesses testified at the trial that the defendant had had epilepsy for some years; and it was also testified at the trial that the loss of mental power is a natural and
The 40th ground is also as to newly-discovered evidence; which evidence consisted in an affidavit of Dr. E. A. Bartlett, of Albany, New York; and he testifies, in substance, that one Thomas Ryan, who was about sixty years of age, had been examined by him, and was suffering from a disease affecting his mind, and in his opinion would never recover; that he was mentally diseased. Mrs. Fogarty also made an affidavit that she is the mother of Thomas Fogarty, and is the sister of Thomas Ryan, of Albany, New York, and that she had been subject all her life to fainting spells, and that her mother, who is dead, was similarly affected.- She did not communicate this to counsel for the defendant until after the trial. Mrs. Kelly testifies that she knows Mrs. Fogarty, and has seen her often, and knows she is subject to fainting spells, and that she suffers from great nervousness, and has been so afflicted for many years. Counsel for the defendant make affidavit that they had no knowledge of these facts until after the trial.
We think the court did right in overruling this ground of the motion, for two reasons: (1) It was cumulative in its character. While it is true that no direct question was asked the witnesses about the affliction of Ryan or the defendant’s mother, yet questions were propounded to Dr. Waring and Dr. Duncan as to epilepsy being hereditary, these questions evidently showing that the subject was in the mind of the counsel asking them. (2) It does not appear that due diligence was exercised in obtaining this information. The defence in this case was insanity caused by epilepsy. It seems to us that when this defence is set up by counsel so able and experienced as the counsel for the defendant in this case, one of the first questions asked the defendant or his family would be, whether or not his
16. The dlst .ground is, that the defendant did not have a fair and impartial trial. It is urged by counsel in support of this ground, that the people were excited, that the newspapers had published inflammatory notices, and that the accounts published by them were false and misleading,; that' editorials had been written calling upon jurors to serve on the jury if summoned, and to do their duty and vindicate the law, etc. In reply to this, we cite the case of Cox vs. The State, 64 Ga. 403. In that case the court say: “With regard to public excitement and prejudice, we see nothing to take this case out of the general rule long since laid down here authoritatively, to the effect that these have ceased to be cause for a continuance. 24 Ga. 297; 48 Ga. 116; 60 Ga. 257. It seems quite immaterial that the means of stirring up the excitement and prejudice were inflammatory newspaper articles. Why should the condition of the popular mind be treated as more dangerous to the accused when wrought up against him by the press, than when inflamed to an equal degree by ’ any other agency ? Is the press, as such, to be recognized as a power which can retard the trial of persons accused of crime ? Newspapers are free to publish what they please, so that they keep clear of the law of libel, and if they succeed in impressing the public mind unduly against an alleged criminal, are the courts to wait for the storm they have raised to subside, though the presiding judge should be convinced that there is no real obstacle to obtaining an impartial jury and having a fair trial?” Besides, as we have said before, the evidence in this record not only authorized but demanded this verdict. In our opinion it was a most outrageous attempt at assassination; and while we sympathize with the defendant and .his family on account of the pun
17. The 42d ground is, that imprisonment in the penitentiary of Georgia, under its present system, would be to inflict on the defendant, afflicted as he is, cruel and unusual punishment. We do not see,-any merit in this ground. The law placed it in the discretion 6f the judge to sentence the defendant to the term of imprisonment imposed in this case, and we cannot undertake to say that this discretion was exercised with undue-severity. The people, in their wisdom-, through their legislature, have adopted the punitive system as it now exists; and it is not a subject for this court to criticise. While it is true the prisoner may be afflicted with epilepsy, there is no other place for him to receive punishment than the place prescribed in the sentence of the court. The defendant was guilty of a most outrageous and unprovoked violation of the penal laws of the State; and being guilty, he must suffer the consequences of his unbridled passion.
Judgment affirmed.