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Stafford vs. The State of Georgia,

majority of the court, however, are of the opinion that the testimony of Ridgely, as to the confessions of the defendant, were admissible in evidence, and the judgment of the court below, in relation to that point in the case is, therefore, affirmed.

4. But we are all of the opinion that the court erred in failing to charge the jury, in view of the facts of the case, " that if a witness, knowingly and wilfully, swears falsely in a material matter, his testimony should be rejected entirely, unless it be corroborated by the facts and circumstances of the case, or other credible evidence:" Pierce vs. The State, 53 Georgia Reports, 365. In addition to the witness Purifoy being an accomplice in the crime with which the defendant was charged, he stood before the court and admitted that he had sworn, a few days previously, in the same court, on the trial of the same issue, to certain material facts involved in that issue; he then swears to an entirely different state of facts in relation to the same transaction. After the witness was sworn on the second trial of the issue between the state and the defendant, the court had before it judicial evidence that the witness had sworn falsely in relation to material facts, either upon the one trial or the other. Did he swear knowingly and wilfully false upon either trial, and which one? As the witness stood before the court, he was not entitled to any credit, under the law, in relation to the material facts about which he had falsely testified under oath at the first trial, unless the truth of his statement on the last trial was corroborated by the facts and circumstances of the case, or other credible evidence, and that was a question for the jury under a legal and appropriate charge of the court. When we take into consideration the statement of the witness, Purifoy, that he and the defendant were at Casey's house the night before the crime was committed, and pawned an axe for whisky, coupled with the fact that neither Casey nor his wife recognized the defendant, when brought before them, as being one of the parties who was there the night the wounds were inflicted, but did recognize Purifoy, and identified him, the evidence of

Thurmond vs. The State of Georgia.

Purifoy as to the defendant's being there, was a vital and material question in the case, so far as the defendant was concerued, and that depended entirely on the credibility of the witness, Purifoy, as no other witness but him proved the defendant was there. The charge of the court as given to the jury, did not comply with the requirement of the law applicable to the facts of the case, and although the request to charge was objectionable, still, it was the duty of the court to give the law applicable to the facts in charge to the jury, the more especially as attention was called to it by the defective request of the defendant. In our juilgment, in view of the facts as disclosed in the record of this case, the court should have charged the jury, that if they believed from the evidence that the witness, Purifoy, had, knowingly and wilfully, sworn falsely in a material matter in issue between the same parties, on the first trial of the case, then they should reject his testimony entirely, unless its truth was corroborated by the facts and circumstances of the case, or other credible evidence, and inasmuch as the court failed so to charge the jury, we reverse the judgment of the court below and order a new trial. The defendant may be guilty, or he may not be, but whether he is or not, he should be tried in accordance with the laws of the land, and it is our duty to see to it that he is so tried.

Let the judgment of the court below be reversed.

55 598 76 616

JOSEPH E. THURMOND, plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error.

1. When two defendants are indicted for an assault with intent to murder in

the same bill, and the first count charges both with the offense and then specifies the particular acts done by one, and the second count specifies the particular acts done by the other, on the same day and against the same person, and one is put on trial and found guilty of assault and battery, and a motion is made to arrest the judgment on the ground that the indictment is double.

Thurmond vs. The State of Georgia.

Held, that the objection is formal merely, and not good in arrest of judgment. 2. In such case the indorsement of “ true bill on the indictment applies to

both defendants. 3. Where one of the defendants only is on trial, a general verdict of guilty

applies to him, and is sufficiently certain without naming him as the de fendant who is on trial.

Criminal law. Indictment. Verdict. Before Judge RICE. Jackson Superior Court. August Term, 1875.

Reported in the opinion.

FLOYD & SILMAN; W. J. Pike, for plaintiff in error.

EMORY SPEER, solicitor general, for the state.

JACKSON, Judge.

The defendant, with one James R. Thurmond, was indicted for assault with intent to murder, and was found guilty of assault and battery. A motion to arrest the judgment was made upon various grounds disclosed in the record; all of which were overruled by the court, and error is assigned thereon for our review.

1. The indictment in the first count, after charging both defendants with the offense, proceeds to specify the acts only of James R. Thurmond, and the second count charges Joseph E. Thurmond with the offense, and specifies his acts. We regard the objection as formal. The jury well understood with what the defendant was charged ; he understood it perfectly; the second count makes a complete case against him, and if he objected to go to trial thereon he should have demurred. This he did not do; and the informality was cured by his failure to do so, especially after verdict.

2. It is objected that the indorsement of “true bill” on the back of the indictment is insufficient and uncertain, as it is not known to which of the two defendants it applies. We think to both, as both are nained in the indictment and charged with the offense.

3. It is further urged that the verdict is "guilty of assault

Thurmond vs. The State of Georgia.

and battery,” without naming the plaintiff in error. As the plaintiff in error was alone on trial, the verdict could apply to nobody else. We think the motion was properly overruled, as these three points are substantially all the grounds on which it rested, and there is not substancé enough in either of them to sustain it.

Judgment affirmed.

JOSEPH E. THURMOND, plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error.

1. This court will not control the court below in the exercise of its discretion

in refusing to grant a new trial where no error appears in the charge and

the evidence is conflicting, there being enough to sustain the verdict. 2. Although the solicitor general state to the jury that he will not insist on a

verdict of guilty of assault with intent to murder, but assault and battery only, it is not such error in the court to charge the law of assault with intent to murder as to require a new trial, if the verdict be only for assault and battery.

Criminal law. New trial. Charge of Court. Before Judge RICE. Jackson Superior Court. August Term, 1875.

A report of this case is unnecessary.

FLOYD & SILMAN; W. J. PIKE, for plaintiff in error.

EMORY SPEER, solicitor general, for the state.

JACKSON, Judge.

1. The evidence in this case is quite conflicting, but there is enough to sustain the verdict. This court will not therefore interfere.

2. All the errors of law alleged have been considered in the preceding case to arrest the judgment, except the charge of the court in respect to an assault with intent to murder, after the solicitor general had stated that he would only insist on a conviction for assault and battery. If the verdict had

Ponce et al. vs. Underwood et al.

been for an assault with intent to murder, there would be something in this assignment of error, because counsel for the defense might have been thrown off their guard and been prevented from arguing that charge in the indictment by the statement of the solicitor ; but as the verdict is only assault and battery, we cannot see how the defendant was hurt by this charge of the court.

Judgement affirmed.

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DIMAS R. Ponce et al., plaintiffs in error, vs. ADOLPHUS A.

UNDERWOOD et al., defendants in error.

55 601 76 403

1. The superior courts of this state have no jurisdiction to establish copies of

lost wills. 2. When a court transcends the limits prescribed for it by law, and assumes

to act where it has no jurisdiction, its adjudications will be utterly void either as an estoppel or otherwise,

Wills. Lost papers. Jurisdiction. Judgments. Before Judge POTTLE. Hancock Superior Court. October Term, 1875.

Reported in the decision.

J. T. JORDAN; JAMES A. HARBY, for plaintiffs in error.

M. W. LEWIS; C. W. DUBOSE; ORR & LEWIS, for defendants.

WARNER, Chief Justice.

This was a bill filed by the complainants against the defendants, praying for an account and relief in relation to certain described lands specified therein. The complainants claim under the last will and testament of Isabella Ponce, deceased, which they allege had been lost, and a copy thereof had been established in the superior court of Hancock county. and afterwards admitted to probate in the court of ordinary

VOL. LV. 39.

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