Wiley, Parish & Co. vs. Kelseys, Halsted and others.

contained entries which were not on the original fi. fa. and said entries were erroneously placed on the said established fi. fa.

Which motion the Court sustained, and ordered the fi. fu. of. plaintiffs to be set aside as absolutely null and void, and the money in the hands of Sheriff to be paid to the fi. fas. in favor of the defendants, according to their priority. To which decision counsel for plaintiffs excepted, and have assigned error thereon.

POWERS & WHITTLE, and HINES, for plaintiffs in error.

KILLEN, WARREN and GILES, for defendants in error.

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

The facts of this case are briefly as follows: At the October Term of Houston Superior Court, in the year 1846, it was ordered and adjudged by the Court, upon the evidence of the plaintiffs' counsel, and an inspection of the record, that the Clerk had issued an execution upon a judgment rendered in favor of L. M. Wiley, Parish & Co. vs. T. & S. Williams, through mistake, for the sum of $753 95, instead of the sum of $1753 95; and it was farther ordered and adjudged by the Court, that the execu-· tion so erroneously issued, be and the same is hereby cancelled and annulled, and that the Clerk forthwith issue a fi. fa. for the correct amount of the judgment, nunc pro tunc; and, also, that the late Sheriff, George M. Duncan, do enter upon said fi. fa. so to be issued, any levy or payment which may have been made or received upon the execution erroneously issued as aforesaid.

The execution so issued in accordance with the judgment of the Court, has claimed money in the Court below, and has once been before this Court, when it was adjudged not to have been a dormant execution.

At the last term of the Court, the execution established by the judgment of the Court, as before stated, was placed in the Sheriff's hands, to claim money arising from the sale of the defendants' property, when a motion was made to set it aside, upon the ground that an execution, alleged to have been the original

Wiley, Parish & Co. vs. Kelseys. Halsted and others.

execution, was produced in Court, which had been issued for the correct amount, and was dormant under the law, and the Court sustained the motion, and set aside the fi. fa. so.issued in accordance with the judgment of the Court, made at October Term, 1846. The only question involved is, whether the judgment of the Court, rendered in October, 1846, can be attacked and set aside in this collateral manner.

The only effect of the evidence offered is, to show that the Court was mistaken as to the facts when the judgment was rendered in 1846, and that the judgment was erroneous. In other words, the evidence now offered expressly contradicts the judgment rendered in 1846. The judgment rendered in 1846 declares, that the execution issued for the wrong amount. The evidence now offered is for the purpose of showing that there was no mistake, and that the execution was originally issued for the correct amount, and to prove that fact, a paper is offered which is said to be the original execution.

Admit the paper offered in evidence to be the original execution, and what effect can it have as evidence? The judgment of the Court, in 1846, declares it to be cancelled and annulled; and so long as that judgment remains unreversed, it is difficult to perceive upon what legal principle it can be contradicted, and especially how it can be contradicted by offering a paper in evidence, which, by the judgment of a Court of competent jurisdiction, has been adjudged to have been cancelled and annulled.

Although the judgment may have been erroneous, yet it is conclusive as to the facts which it purports to decide-it being the act of a Court having competent jurisdiction over the subject matter-it cannot be contradicted or attacked, in the manner proposed in the Court below. Stark vs. Woodward, 1 Nott & McCord's Rep. 329. Lyles vs. Brown, Harper's Law Rep. 31. Geyer vs. Aguilar, 7 Tenn. Rep. 691. Sims & Wise vs. Slocum, 8 Cranch, 298. 1 Cond. Rep. U. S. 541. We are of the opinion the Court below erred in its judgment, in allowing the judgment rendered in 1846, establishing the execution, to be impeached, colatterally, by the evidence offered for that purpose. Let the judgment of the Court below be reversed.

Bishop vs. The State of Georgia.

No. 26.-BRINKLEY BISHOP, plaintiff in error, vs. THE STATE OF GEORGIA, defendant.

[1] A witness may be interrogated as to the state of his feelings toward a party, in order to show the bias under which he testifies; it is not admissible, however, to inquire into the cause of his hostility.

[2] When the dispute is as to localities, a diagram, drawn in accordance with the testimony of a witness, may be submitted to the Jury without having been first exhibited to the witness whose evidence it contradicts.

[3.] A new trial will not be granted, in consequence of the admission of illegal testimony, where such testimony was suffered to go to the Jury without objection, either on its introduction or in the argument of the case.

[4.] The affidavit of a Juror will not be received to impeach his verdict. [5.] When a Juror is put upon triqrs, it is not proper for counsel to ask him any other questions than those propounded by the Act of 1843.

[6.] Where the offence has been recently committed, and the party accused imprisoned during the whole time which has intervened between his arrest and trial, it is good cause of continuance in a capital case, at the first term after the bill is found, that the defendant cannot come safely to trial on account of the excitement existing in the public mind against him. And the affidavit of the prisoner, when made and filed in terms of the law, cannot be contradicted or traversed, either by a cross examination or aliunde proof. [7.] It is ground for a new trial, if one of the Jurors, before the trial, makes declarations which clearly indicate that he is not above all exception, and that his opinion is not a hypothetical one-dependent upon the whole proof -but formed, exclusively, in reference to the evidence which shall be adduced on the part of the prosecution.

Indictment for murder, in Bibb Superior Court. Tried before Judge STARK, January Term, 1850.

The defendant was indicted at the January Term, 1850, of Bibb Superior Court, for the killing of one Turner Smith, on the eighth day of December, 1849. The cause came on for trial at the same term of the Court, when the defendant moved the Court for a continuance of his cause, upon the ground stated in his written affidavit, to wit: "That he cannot go safely to trial, because such is the excitement in the public mind, and so excited is public feeling against him, as he has been informed and believes, that he has more to fear, and does fear that he cannot obtain a VOL IX 16

Bishop rs. The State of Georgia.

fair trial." In answer to questions propounded by the State on a cross examination, defendant stated, that he made the statement, contained in his affidavit, from information received from persons while he was in jail; that he had been confined in jail since the 8th day of December; that he remembered the names of but two persons who gave him information on the subject. One was Patrick Cunningham, who told him the day before, "that there was a heavy weight against him." The other was Hezekiah McKinney, who told him sometime after his confinement, "that public opinion was against him." Defendant farther stated, that he did dot know that any one had stated to him that public opinion was so excited that he could not have justice done him.

The Court overruled the motion for a continuance, and ordered the trial to proceed.

In the progress of the trial, John P. Lamar was introduced as a witness by the defendant. Upon his cross-examination, in answer to a question propounded by the State, witness stated that "he was not on friendly terms with Turner Smith, the deceased." Counsel for the defendant then proposed to ask the witness as to the reasons of his hostility to the deceased, which was overruled by the Court.

Richard Bassett, a witness for the defendant, testified as to the localities of the place at which, and the relative situation of the parties at the time the killing was perpetrated.

By way of rebuttal to the testimony of Bassett, the State introduced a "diagram," based upon the testimony of

a witness for the State, without having first submitted the diagram to Bassett-said diagram being at variance with the testimony of Bassett as to the place and position of the parties at the time the killing was done.

The Jury returned a verdict of guilty, with a recommendation of the prisoner to the mercy of the Court.

Counsel for the defendant then moved the Court for a new trial, upon several grounds, of which the decision of this Court renders it only necessary to state the following:

1st. Because the Court refused to allow counsel for prisoner

Bishop vs. The State of Georgia.

to ask John P. Lamar why he was unfriendly to the deceased, after the counsel for the State had been permitted to ask him if he was unfriendly.

2d. Because the Court allowed a diagram to go in evidence to contradict the testimony of Bassett, which was not exhibited to Bassett.

3d. Because David Smith, Jr. one of the Jurors who tried the cause, was induced to agree to the verdict by the persuasion of his fellows, by misrepresenting to said Juror the effect of the verdict rendered, he being assured by some of his fellows that a general verdict of "guilty, with a recommendation to the mercy of the Court," would authorize the Court to commute the punishment from death to imprisonment in the penitentiary.

4th. Because the Court erred in refusing the counsel for prisoner the right to examine the Juror when put upon triors.

5th. Because the Court erred in refusing to grant a continuance of his cause to the prisoner, upon the grounds stated in his affidavit,as to the excitement existing in the public mind against him."

6th. Because Madison Malsby, one of the Jurors who tried said cause, was biased and prejudiced against the defendant; and so far prejudiced, as to be unable to do justice to the defendant.

Upon the hearing of the motion for a new trial, the defendant submitted the affidavit of David Smith, Jr. in which he stated that he was induced to agree to the verdict for the reasons stated in the third ground taken in the motion.

Defendant also submitted the affidavits of Henry B. Page, James B. Cooper and Zachariah Holloman, who stated, "that they heard Madison Malsby, one of the Jurors who tried the cause, on the Saturday before he was impanneled on the Jury, say that if he was on the Jury, he would hang Bishop and burn Smith (who was also indicted, but not put upon his trial.)

Counsel for the State then submitted the affidavit of Madison Malsby, the Juror, in which he stated, "that in a conversation with Page, Cooper and another individual by the name of Keel, on the Saturday previous to the trial, he said that if such testimo