Georgia, W, 1820-1982, Undated

—

WATTS, Ludwell, white, hanged Jackson, Georgia, August 12, 1827.

August 20, 1982

Mr. Watt Espy

Capital Punishment Research Project
Law Library

Box 6205

University, Al.

Dear Sir:

I'm extremely sorry but I have been unable to confirm the information regarding the
death dates of Sam Greer and Bill Turner.

I telephoned the Probate Judge's office to inquire if the newspapers of the 1891
and the 1911 era were complete, but unfortunately the secretary was unable to
give me that information. (I was told the papers are not in order.) If you
need confirmation of these two dates perhaps Mr. Charles Risher could persuade a
member of the Butts County Historical Society to research the matter...

At the time of Mr. Watt's demise there was not a newspaper being published in the
county.

The two books that I checked concerning the date of the death of Ludwell Watts
differs.

In your letter, you gave the date as December 1826, therefore I am assuming that
you already have located the material which was written by Rev. George White and
recorded in his HISTORICAL COLLECTIONS OF GEORGIA.

"In 1826, Ludwell Watts was convicted of murder in this county, and was
sentenced to death, but was twice respited by the Governor, to afford the
Legislature an opportunity of considering the case. A bill for his pardon
was passed in the House, but rejected by the Senate. The last respite
extended to Friday, 14th December, 1826, on which day the Sheriff went to
the jail to carry the prisoner to execution, but he having procured arms,,
defied the officer, threatened to kill him if he entered the jail, and

it was not until three or four days afterwards that Watts gave up and was
hung."

In the book, HISTORY OF BUTTS COUNTY GEORGIA 1825-1976 compiled by Lois McMichael
for the William McIntosh Chapter of the Daughters of the American Revolution
the first mention of this gentleman occurs on page thirty-nine.

"It was in the log courthouse that the first murder trial of the county took
place in May, 1827: the State vs. Ludwell Watts of Monroe County for the

murder of Denton Daniel."

(According to the Monroe County history, Watts lived in Jasper County before moving
to Monroe County.)

On page ninety-one of the Butts County history, the following information is listed.
"May 26, 1827: The first murder trial in Butts County. The prisoner was present
and ‘after hearing evidence (the court) recommended prisoner be remained(sic) in

fail.” | ;

(This was probably a typographical error. It probably should read retained in jail.)

i engemeg : oe. ;
TYEES- DF WM her jae hanged ot Teenlire, Cay, for

Nabeigh fimo Btutirt, helughWC S757) is


/ 6 ¢ ¢ e .
Ce ounty ba. Bish (5 Vague, | t points fo
an undiscovered execution ih Jackson County

in the lafe spring of (872.

A new lead -

Augusta Constitutionalist 6-15-1874 171
commenting on the execution of John Watkins
at Lexington Ga. on 5/3! [72 says that he

had a brother who was hung there ‘some years

since’. Also that his father had been h ung
and that yet another brother had been hanged

Much might be saidin favor

‘intimate: acquaintance: with him, we:
have’ discovered the virtues which: rey
dornshis privaje life... Suffice it to a
the died. oniversally"lamentéd, beats
| who | knew him ; particularly” by those!
Ke lios mweretanimately acd asinted whit
ime AO oe Re Bot ay
Te? “may: Be admis Monsolatios, at
Biiiaigh™ our. friend’ is nO more, thes
murderer i is a prisoner, Ue sid dae
sed: ‘up his,arms and submitted tO, the’
“civil authority, » just: ‘in time to preve ay
“his, own déaih,. which the Litizens “oP
the | ‘place’ aad ‘the: ipcople in the vite
‘cinity 4 were’ ‘prepared ‘to ‘inflict: ‘upon i.
chim... He ig vow ins the. county. July :
waiting she awtul day Of trial. 3.

Ai

rary

AS

aoe wee

| of th
character-of : ‘Copt.uPerry.- wel?

o- Thowas Wellé, w who* ‘murdered Capt,
‘Perry, Noticed in ourdast, has been tried and

| found guilty. He

wae eotenced to be hung |

on the Z1at of October last,

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SS Sy SR EES

WELLS, Thomas, white, hanged Watkinsville, Gae,y

— Salem also was the scene of the county’s most interesting

~ment of industry and the expansion of other fields in the 1830s

See ey ee Ort one, Seah

betato.Zl, (820

en,

Kg oO 3 % ) EN OE et ‘ \ ct \ e. 2 \
{ ne. oe
SAS —

THE EARLY YEARS 21

stores, three offices, seven shops, a male and female academy, a

Methodist meeting house, and a tannery. The tannery was an

extensive operation which reportedly supplied much of the area
with leather.®”

murder case. When this mysterious incident was finally unfolded, ‘

a dead man had provided the evidence to convict his alleged

murderer. The case occurred in 1820 and involved two of Salem's

most prominent citizens, Thomas Wells and Peter Perry. The

two were supposed to be good friends, but Wells was very jealous

of his beautiful wife and apparently believed she might be having

an affair with Perry. Wells was not suspected, however, when

Perry was mysteriously murdered in August 1820. In fact there

were no suspects until Perry’s will was read the next month. In

his will Perry noted that he and Wells had exchanged several

abusive letters and that Wells had attempted to instigate a fight

with him. Perry said that he had not had an affair with Welis’s

wife and that he prayed Wells would soon realize this. But he :

indicated that should he be killed by Wells he wanted his friends

to prosecute him with utmost vigor. At the same time, Perry asked

that should Wells be convicted and condemned to death, he be

given as much time as possible to repent. In October the grand

jury found a true bill against Wells and the trial jury returned a

verdict of guilty. The judge sentenced Wells to be hanged later

that_same month, and the sentence presumably was carried” out.’”~
Certainly, the first few decades of Clarke County’s history

provided unusual as well as predictable events. There also were

many challenges for those who sought to develop the wilderness

and especially for those who sought to create a cultural and

educational center there. Progress was slow in some respects.

Transportation in the 1820s was still limited and difficult because

of poor roads. There were no banks and little capital available

for investment. The public buildings often required attention.

But on the whole the county had come far in a short time, and

important towns had developed at Athens, Watkinsville, and

Salem. The economic progress of the 1820s was impressive,

especially in Athens, and the foundation was laid for the develop-

and 1840s.

. VAS : ¢ \
th \ 2) £2. ») aS ee \e fa “ wee CD HKG , \


WEST, Ambrose, bien hanged Isabella, Georgia, Nov. 30, 1883.

ALBANY

| aerpery
ae

‘iitirepe Weet,, pl young. “sagt

: who, Bitted- Fim Monroe be et Bi

: pre Pday" : ‘morning bette ot
peat ent bitin 2 naiaetaegS

a few minutes bafore 12 o'clock.’ AU
12 o'clock everythiag was ‘In read.
| ness, and: Sheriff Holton told Ambrose)
West his time wes. up, ond: waked: it;
he had anything to. hayet Poxcord he’

Deputy Sherif Paul out thee
the drop fell,

The rope broke, wilh the rei
fell to the ground. When the Sherif

wan ia the city @hureday night | he
boughta good heal rope for phe ‘octtis,
sion, but it was ten and left in.

the train. He then got a rope that was
too amall for thre business (the best be
cyuld do, however),..and when the |
drop fell the siring broke. The Shariff

WEEKLY NEWS AND ADVERTISER,

Albany,

jswered, “No.” = “Did th fell: “hart,
fredt “Yes, it: jaseed
me all over. If theysée
te I wish they woald do

had been left at Poulan. Thia was ad-
justed, and the prisoner, after lying
ander the gallows for about an hour,
was conducted to the scaffold again.
During the time that the prisoner lay

upon the ground he had nothing to.

say, although as was evidently able
totelk, |

When esehining « was in readiness
for the second act prayer was offered |
by Rev. M. C, Knight, colored, by i in-

vitation of Kev. Carey. The prieoner
“| would talk to.no one except Bov.Carey.
| The? latter ‘aaked "Him after. he’ ae.
"1 Gonded the gollows the speed time if:

be wanted soything* to w

ee eae

see mew

came up with the hemp rope, which |


CHAPTER L.

Clarke County since Oconee was cut off from
it has never had a hanging. Some years ago a
negro was found guilty of the murder of Henry
Hunter and was sentenced to be hung, but
through the efforts of Rey. J. L. Stevens the sen-
tence was commuted to life imprisonment.

But long ago there was a peculiar case in which
Thomas Wells was convicted of the murder of
Peter Perry by evidence furnished by the mur-
dered man after his death.

It was in 1820 that Wells, who had a hand-
some wife, grew insanely jealous of Perry, sought
a difficulty with him and challenged him to a duel.

a

és D nee
te ed)

aes r?@

ee
pe

ie
af Lath ;
ere
cicted and was tried for murder before Judge
Clavton. The challenge sent Perry and threats
made by the accused were proven and the ac-
eusation of the dead man was sustained. Wells
was convicted of murder and was hung in Wat-
kinsville. Both of these men lived in Clarke
County and were prosperous and well-to-do,;;own-
ing both land and negroes.

The Collegiate Institute, alias the University
High School, alias Rock College, was built in
1859 and was designed for the Freshman and
Sophomore classes of the University. It was

‘oon seen that the Fresh and Sophs wouldn’t go
there—they said they would stay at home sooner

Perry declared his innocence of any Improper
conduct and his belief in the virtue of the lady
and refused to fight. Sometime afterwards Perry

and the murder was a mystery. On opening the
_ will of the murdered man it stated that he ex
pected every day to be assassinated by Thomas
Wells, who hated him without cause and he om:
joined his friends, whose names were there tex
corded, Mr. Thomas Hancock being one of them
to prosecute Wells for his murder. Wells’ ma a
ner on being arrested, the paper wadding fo nes
by the body, and his recently discharged shotgums
were all put in evidence at the trial. He was

=

—and the plan was changed so as to make it a
preparatory department of the University.

The school was opened the first year of the
war under Mr. Benjamin R. Carroll, of Charles-
ton, with Mr. L. H. Charbonnier as his assistant.
Mr. Carroll was a capable principal of great dig-
nity and with a deliberateness of speech that took
no note of the flight of time. Many sons of refu-
&ees and others from Charleston, Savannah and
Augusta, as well as the majority of the boys in
town, were sent there to be put under the ad-
Mirable control of these gentlemen. The boys

_Were formed into companies and instructed in
Military tactics by Captain Charbonnier, himself
a French soldier and a graduate of St. Cyr.
When the act of Congress was passed requiring

*OcgT


Death and the Supreme Court

272
and got off on Peters St. at the corner of McDaniel St. When I
cot off the bus at Peters St. and McDaniel St. I went to the Blue
Ribbon on McDaniel St. and got a pitcher of beer and drank it.
I left from there and went on up Peters St. on across Walker St.
to the liquor Store above the alley and went in the whiskey store
and had the gun in my front right pocket. I pulled it out and told
him to open the cash register and had the gun resting on the
counter with the gun in my hand. There was a white man behind
the counter and I hit my hand and the gun went off while I was

etting the money out of the cash register. The man hollered OH
when I shot him. I then run out of the store and turned back into

the alley... .

The statement went on to tell of the flight through alleys
and across yards, the cab ride to a “restaurant” where he lost
all his money, and the pawning of the pistol. With the money
from the gun, he bought a jacket, a pair of pants, and a pair of
shoes, and then he went home and took a bath. In a sudden
switch from this rambling, ungrammatical style, the statement
concluded: “I have made this statement freely and voluntarily
and understand from the officers present who have told me of
my rights that anything stated herein may be used against me
in any court of competent authority and do hereby agree to
such procedure and that this is the truth the whole truth and
nothing but the truth so help me GOD.” .

The state rested its case. The entire defense consisted of the
following statement by Aubry Williams: “The only thing I
know about this case is what the officers told me. I was on that
side of town that morning, and when I signed the papers I was
afraid. I did not do it and don’t know who did it.”

The jury was out less than one hour. Its verdict was fore-
gone: “We the jury find the defendant guilty.” Since there
was no recommendation of clemency, the sentence was also
foregone. The very next day, Judge Andrews intoned it out
in a voice of doom: Aubry Williams was to be taken from the
common jail of Fulton County to the Georgia State Prison in
Tatnall County and there to be electrocuted seven weeks

Portrait in Yellow and White 273

hence, on May 1, 1953, between the hours of 10:00 A.M. and
2:00 P.M.—“and may God have mercy on your soul.”

Within two weeks, Carter Goode filed a lengthy motion for
a new trial, alleging numerous errors during the conduct of
the trial. He argued, among other things, that Judge Andrews’
charge to the jury had been prejudicial, that Williams’ state-
ment of the crime should not have been used against him, and
that the amount of money missing from the cash register was
never established. But nothing was said about the yellow and
white tickets used to select the jury. Judge Andrews took the
motion under consideration.

A month after Williams’ motion was filed, the Supreme
Court of the United States heard argument in the Avery case,
and the following month it reached its decision. The use of
yellow and white tickets to choose jury panels violated the
Federal Constitution, and Avery was entitled to a new trial.
Mr. Justice Reed and, to some extent, Mr. Justice Frankfurter
based their opinions upon the small percentage of Negroes
who appeared on jury panels in Atlanta despite a twenty-five
per cent Negro population, but the five-man majority decided
the case squarely on the wse of the tickets and the opportunity
thus allowed for discrimination. The reasoning was clear. The
different colors were not accidental; they had a purpose. What
purpose, if not to make discrimination possible by the avoid-
ance of Negro names or the deliberate choice of white names?
And if Negroes were purposely excluded from the jury,
Avery, a Negro, was discriminated against because of his race
in violation of the Constitution. Once the tickets were used,
the burden was on the state to prove that no discrimination
had in fact been used.

On June 29, Goode filed in the Georgia trial court an
amendment to his motion for a new trial, but again nothing
was said of yellow and white tickets. The trial court overruled
the amended motion the same day it was filed.

Summer gave way to fall, and a chill crept into the Atlanta


. .

Death and the Supreme Court

7
jaily The railings of the cot which had offered Williams a wel-
come coolness against his skin during the heat of summer were
now almost turgid with the chill of the coming winter. Shadows
moved into the emptiness earlier in the afternoons. Williams
watched them and waited, glad to be alive. He read no books,
he wrote no letters, he lived no memories. He just waited. A
more intelligent man would have gone mad. The utter bore-
dom, combined with a certain suspense, the confinement, the
drab, gray surroundings all would have eaten away the senses
of someone with more awareness than Aubry Williams. But
Williams’ past had been on a par with this very type of exist-
ence. Bleak and useless, he had whittled away twenty-seven
years in waiting—often for nothing.

In mid-October the Georgia Supreme Court affirmed his
conviction, ruling that there was no error in any part of the
trial. The execution, which had been stayed during the appeal,
was reset for December 11.

And now, on the first day of December, over six months
after the Avery decision and almost nine months after the
Williams trial, Goode filed an “extraordinary motion for a new
trial” alleging for the first time that Williams’ constitutional
rights had been violated because of the use of yellow and
white tickets in the selection of the jury. This motion was
accompanied by two affidavits, one signed by Williams and
one by Goode. Williams declared that he did not raise the
objection earlier because he had no information as to how his
jury had been selected. Goode’s affidavit stated that prior to
trial he had not known the facts about the jury selection and
he could not have discovered them in the exercise of ordinary
diligence.

The motion was denied by the trial court, and again Goode
took the case to the Georgia Supreme Court. But soon after
the advent of the new year came the announcement that the
conviction would stand. The court said the very sequence of
events in the Avery case showed that Goode, contrary to his

Portrait in Yellow and White 275

rf

affidavit, could have discovered the facts if he had used due
diligence. Referring to the use of different colored tickets, the
court ruled: “Defendant in his motion sets forth a practice
which has been condemned by this court and the Supreme
Court of the United States. However, any question to be con-
sidered by this court must be raised at the time and in the
Manner required under the rules of law and practice and pro-
cedure in effect in the states... . When this defendant failed
to raise this question when the panel was put upon him, he
waived the question once and for all.” In other words, under
Georgia practice, certain objections had to be made at certain
times, or they were considered waived and could not there-
after be raised at all, By failing to object to the use of yellow
and white tickets prior to trial, Williams and his attorney had
lost the right to object at all.

Of course, there are sound reasons in the law for rules such
as this. If lawyers could raise objections at any stage they
cared to, they would simply save their contentions until long
after trial—after they had seen what the result would be—and
then raise all manner of objection which, if presented earlier,
might have stopped the proceedings in their tracks. Without
such rules, there would be no end to litigation. On the other
hand, some objections are so important and so basic to a man’s
constitutional rights that often he is allowed to raise them at
any time.

The Georgia Supreme Court chose to enforce its rules. An
objection of this type must be raised before trial or not at all.
Avery had raised it in time; Williams had not. Avery’s convic-
tion was reversed; Williams’ was affirmed. Williams would go
to his death.

There seemed to be only one other means of redress, and
Goode promptly filed his request for the Supreme Court of
the United States to hear the case. In his petition, he argued
that for him to have challenged the jury when it was “put
upon” Williams would have been premature and useless, be-


c

276 Death and the Supreme Court

cause “only when counsel for the state, having the first jury
challenge, ‘peremptorily challenged the one remaining Negro
juror was the end of the discriminatory process reached. In
other words, there were no Negroes on the panel which faced
Avery, and so he could object at any time, but pines eaete was
still one Negro on the panel which confronted Williams, the
discriminatory process was neither complete nor obvious, and
there was no point in objecting. Goode did not say, however,
why he had not objected after the final Negro juror was chal-
lenged. Perhaps his theory was that even an objection at that
time would have been too late, since the panel had already
been “put upon” Williams. . |

In any case, the Supreme Court, at its second session of the
term after its return from the summer of 1954, announced it
would hear arguments in the Williams case.

As was his usual custom, the clerk of the Supreme Court
wrote to the attorneys on both sides—Goode and the attorney
general of Georgia—informing them of the date of oral argu-
ment. In this case it was March 3. Less than three weeks prior
to that date an assistant attorney general of Georgia wrote the
clerk that in all probability Goode would not participate in
the oral argument. The clerk immediately wrote Goode and
asked him his plans. Goode replied: .

“At the present time, it does not appear that I will be able
to come to Washington to present oral argument in the above
case. I have little or nothing to add to the brief... .

“I am assuming that if events take such a turn that I am
able to come to Washington, I will be permitted to make a
short oral argument.”

The clerk showed the letter to Chief Justice Warren and,
as a result of their conference, wrote back to Goode:

“I have spoken to the Chief Justice about the oral argument
in this case and of the probability that you would not be

present. .
“He asked me to inform you that the Court would appreci-

LE EEE OIE EAE TRO ON ED Fra

(

Portrait in Yellow and White 277

ate your presenting oral argument if at all possible, particularly
in view of the fact that this is a capital case.”

Two days later Goode replied:

“T am in this position about this case: I originally entered
the case by appointment, before our General Assembly en-
acted legislation authorizing the payment of appointed counsel
from the treasury of Fulton County. This petitioner [Wil-
liams] has no money. His family have made contributions
which have in part paid actual expenses. At the present time,
they have only paid one-half the cost of printing the brief,
and in this situation, it appears that any expense connected
with a trip to Washington will be out-of-pocket to me.

“In addition, I am sole counsel in a suit in the Superior Court
of Polk County, Georgia, on the calendar of that court for
trial during the present week where my absence for any cause
will have the result that payment of temporary alimony to my
client will not be continued, which in turn, will have the result
that I will lose the client.

“T have appeared in the Supreme Court of Georgia twice in
this case and have pursued it thus far in the Supreme Court
of the United States at a considerable sacrifice. It has been my
intention to present oral argument if at all possible. In view of
the foregoing, however, it simply does not seem that I will be
able to. If I can try the case in Polk Superior Court tomorrow
(March 1st), there remains a possibility that I will be able to
appear before the Supreme Court. I do not, however, believe
such will be the case and for that reason, I cannot plan on
going to Washington.” '

This letter necessitated another conference between the
clerk and the Chief Justice. Obviously, someone would have
to be appointed to argue the case for Williams, and just as
obviously the argument would have to be put over until a later
date so that the appointed attorney would have time to be-
come acquainted with the facts and to submit his brief. The
Court decided to name Eugene Gressman, a Washington at-


270 @ Death and the Supreme Court

Williams was a little shelter from the heat of the sun known
affectionately and euphemistically by its habitués as Shy’s
Place. The name of its proprietor, Joe Shikaney, had been
shortened by some tortuous and inexplicable process over the
years to “Shy.” The establishment; to Shy, was a beer and
ae shop, and he loved it as a mother loves her child. To
Maggie Jones, who worked there, it was a beer joint. .

Maggie took the stand with sauce and flip. She explained
that on some day—she thought it was a Saturday but she could
not further identify the day, the month, or the year—her friend
Aubry Williams had come into Shy’s Place while she was
sweeping the floor and said, “Hey, Maggie,” and she said,
“Hey, Aubry,” and he said, “Lend me a quarter,” and she
laughed and said, “I haven’t got nothing,” and he pulled out a
big stack of money and said, “If I needed money I wouldn’t
be here.” The stack looked like five- and ten-dollar bills. She
said, “Give me a dollar to get some stockings,” and with that
Williams ran out the door.

“Shy” testified that one Saturday Aubry Williams shot dice
in the back of his beer and wine shop—and lost his shirt. Shy
had passed back and forth behind the players several times,
stopping only long enough to win about forty dollars from
Williams. Williams’ principal opponent in the game was a man
named Bell.

Bell swore that on some Saturday afternoon (“I don’t re-
member when that was; I don’t know the exact date now... .
I don’t remember what month it was. I think it was the Satur-
day afternoon that Mr. Furst was killed. . . .”), he had rolled
dice with Williams in the back of Shy’s Place, shooting about
twenty or thirty dollars a roll. Bell won over five hundred dol-
lars from Williams. When the game broke up, Williams was
so broke that Bell had to lend him ten dollars out of his win-
nings. Williams, said Bell, carried a pistol while they were
playing. _*

The pawnshop proprietor told how the defendant Williams

@ Portrait in Yellow and White 271

had entered his shop, shown him the Social Security card of
Irvin Washington, and pawned a pistol for fifteen dollars. The
proprietor said his records would show that the pistol Williams
pawned had the same serial number as the pistol in evidence
as State’s Exhibit 3.

A special agent of the Federal Bureau of Investigation as-
signed to the FBI Laboratory in Washington, D. C., identified
the .32 Colt revolver, its cartridge, and the bullet, all sent to
him by the Georgia police. He had run various tests and con-
cluded that the bullet could have been fired from the revolver
and cartridge. However, approximately two-thirds of the sides
of the bullet had been mutilated so that he could not make a
positive identification. The director of the Crime Laboratory
of the State of Georgia, who had performed an autopsy on
the body of Harry Furst, was similarly hazy about whether
the bullet he had taken from Furst’s body had been fired from
the pistol which Williams had pawned.

Goode objected when an officer in the robbery squad began
to testify about a statement Williams had given the police.
Goode pointed out that no one had shown what had happened
to Williams for the first hour and a half after his arrest, and
there was no evidence as to whether threats or offers had been
made during that period which induced him to give the state-
ment. But Judge Andrews overruled these objections, and the
officer related Williams’ oral statement and then presented a
Written statement which the defendant had made about seven

o’clock in the evening on the day of his arrest. The Written
statement read in part:

On two Saturdays ago I went to a mans house they call Cat Hill
who lives on Larchwood and Whatley. I got the gun off the bed
in the middle room. A man by the name of Junior Griffin, Willie
Bevins and Cat Hills was there. I left from there and went home.
I left home and went down there and got a bottle of beer, this
was somewhere in Dixie Hills. It was somewhere around about
9:00. I left from there and went on up the road and caught a
trolley. I caught the trolley at Battle Hill at the end of the line


218 Ga.

{2] 2. It appears from the petition
that the distress warrant was issued in
September, 1936, returnable to the Novem-
ber term of the superior court, and that
the counter affidavit was executed and ten-
dered in November, 1940, more than four
years later. With reference to the claimed
indebtedness for rent, the affiant in such
counter affidavit deposed only “that the sum
distrained for under the above-stated war-
rant was not due at the time of issuing
said warrant.” This averment was in sub-
stantially the same form as that considered
in Feagin v. McCowen, 115 Ga. 325, 41
S.E. 575, 576, as to which it was held, that,
in the absence of a demurrer specially pre-
senting the point that the counter affidavit
embraced no general denial of indebted-
ness for rent, any competent evidence tend-
ing to show that no such indebtedness ac-
tually existed was admissible in behalf of
the defendant. In the opinion it was said

_that if the counter affidavit, by reason of
not being in the precise form of the statute,
did not permit introduction of the evidence
to which objection was made, “the reply
is that its legal sufficiency in this respect
was not challenged by demurrer.” It is
true that in the present case a general de-
murrer to the petition for mandamus was
filed by the sheriff, who was the only party
defendant; but we do not think the sheriff
in his official capacity should be heard to
question the sufficiency of the counter afti-
davit, where it is not absolutely void, so
that he should not act at all under it. Un-
der the decision in Feagin v. McCowen,
supra, it would be sufficient to form an is-
sue as between the landlord and the tenant;
and if it has any formal defect so as to
render it subject to special demurrer, the
Jandlord and not the sheriff would be the
proper party to raise such objection. Un-
der the decision in Burt v. Crawford, supra,
as applied to the present allegations of
fact, it does not appear that the unusual
lapse of time (more than four years)
should be considered as a bar.

[3] 3. The Code, § 61-401, declares
that the landlord may distrain for rent “as
soon as the same is duc, or before due if
the tenant is seeking to remove his goods
from the premises.” Counscl for the sher-
iff contend that in view of this section the
plaintiff would not be entitled to the writ
of mandamus on the mere averment that
the sum distraincd for “was not due at
the time of issuing said warrant,” for the

15 SOUTH EASTERN REPORTER, 2d SERIES

reason that the landlord may have dis-
trained upon the ground that the tenant,
now the plaintiff, was secking to remove its
property from the premises. We cannot
sustain this contention. Construing the
provision last quoted in connection with §
61-404, providing the right to file a counter-
affidavit, we think the former section in-
tended that the rent should be treated as
due if the tenant is seeking to remove his
goods from the premises, and thus that the
counter affidavit in this case would be good
as against a general demurrer, no matter
upon which of the two prescribed grounds
the affidavit for distress warrant may have
been predicated. In Sturgis & Berry v.
Frost, supra, it was questioned whether
the tenant could defend at all by counter
affidavit where a warrant was issued before
the rent was due, on the ground that the
tenant was seeking to remove his goods
from the premises. It was apparently un-
necessary to decide the question in that
case. It is necessary here, and we decide
it in the affirmative.

[4] 4. The proviso as stated in § 61-
404 refers to the retaining of the possession
“of the property of the tenant levied on,”
and it is contended that the petition did not
state a cause of action, for the reason that
it nowhere alleges that any property of the
tenant was levied on. The Code, § 39-103,
declares that the officer making the levy
shall describe the property levied on, and
“the amount of the interest of defendant
therein.” The petition does allege that a
levy was made under the distress warrant.
It appears that only one person was named
as a defendant therein. While the rule is
different as to attachments (Tuells v. Tor-
ras, 113 Ga. 691(4), 39 S.E. 455, and as
to executions against several defendants
(Overby v. Hart, 68 Ga. 493(3) ), it has
been held in effect that where an execution
is issued upon a general judgment rendered
against one defendant only, the levy need
not recite anything as to ownership or in-
terest in the property. McKoy v. Edwards,
65 Ga. 328(2); Faircloth v. Taylor, 147
Ga. 787, 95 S.E. 689. The reason for such
ruling would apply as well to a distress
warrant. Since the petition does allege
that a levy was made, and shows that the
distress warrant issued against only one
person as tenant, in the absence of any-
thing to the contrary it should be assumed,
as between the petitioner and the sheriff,
that the officer performed his official duty

i)

WILLIAMS vy. STATE Ga. 219
15 8.¥.2d 219

and levied on the property of the defendant
in the distress. warrant, and did not commit
a trespass or other wrong by levying on
the property of a third person. Gibson v.
Robinson, 90 Ga. 756(4), 16 S.E. 969, 35
Am.St.Rep. 250; Griffin v. Wise, 115 Ga.
610(3), 41 S.E. 1003.

[5] 5. It is further contended that the
action was properly dismissed under the
tule that in order for a party to enforce
a private right by mandamus he must show
pecuniary loss for which he cannot be
compensated in damages. Atlantic Ice &
Coal Corporation v. Decatur, 154 Ga. 882
(2), 115 S.E. 912. If the allegations are
sufficient, as we think they are, to show
that the plaintiff has a legal defense to
the distress warrant, and in an effort to
assert such defense it has complied with
the law as to tendering a counter affidavit,
it would seem that the petition complies
fully with the rule invoked. Burt v. Craw-
ford, 180 Ga. 331, 179 S.E. 82; City of
Waycross v. Cullens, 190 Ga. 823, 10 S.E.
2d 920.

[6] 6. The petition for mandamus was
not subject to dismissal on the ground that
the landlord was not made a party. In
the present petition the plaintiff is not ask-
ing an adjudication against any right of
the landlord. It is merely seeking entry
into court, in order that it may subsequent-
ly litigate with the landlord in a proper
proceeding for that purpose. The case
falls within the principle ruled in Gullatt
v. Slaton, 189 Ga. 758, 8 S.E.2d 47, where
the decisions relied on by counsel for the
defendant are distinguished.

[7] 7. “All official duties should be
faithfully performed; and whenever, from
any cause, a defect of legal justice would
ensue from a failure or improper perform-
ance, the writ of mandamus may issue to
compel a due performance, if there shall
be no other specific legal remedy for the
legal rights.” Code, § 64-101. “To entitle
one to the writ of mandamus, it must ap-
pear that he has a clear legal right to have
performed the particular act which he
secks to have enforced.” City of Atlanta
ya Blackman Health Resort, Inc., 153 Ga.
SCS), 113 S.E. 545, 548; Phillips v. Head,
18S Ga. 511, 514, 4 S.E.2d 240. The peti-
tion in the instant case was sufficient to
how a clear Icgal right to have the coun-
wer affidavit accepted by the sheriff, and
thus stated a cause of action for manda-
mus. The court erred in sustaining the

general demurrer and dismissing the ac-
tion.

Judgment reversed.
All the Justices concur.

© « KEY NUMBER SYSTEM

WILLIAMS v. STATE,
No. 13572.

Supreme Court of Georgia.
May 19, 1941.

{. Criminal law €=1134(8)

On appeal from judgment denying extra-
ordinary motion for new trial, the case did
not come to Supreme Court as one to be de-
cided as a matter of law on the pleadings,
but the substantial question was whether
trial judge was authorized to find as he did
on the evidence, where motion was not dis-
posed of on inspection of allegations, but in-
stead the trial judge entertained motion for
purpose of investigating the facts and dis-
posed of motion after hearing evidence on
both sides.

2. Criminal law 1160

Where trial judge did not dispose of ex-
traordinary motion for new trial on inspec-
tion of allegations of motion, but entertained
motion for purpose of investigating the facts,
and disposed of motion after hearing evi-
dence on both sides, judge’s findings were
conclusive if supported by substantial evi-
dence.

3. Criminal law €=912

Any matter which could have been com-
plained of in original motion for new trial
would not constitute ground for extraordi-
nary motion for new trial, where all mat-
ters complained of in extraordinary motion
were well known to defendant or attorney of
defendant’s own choosing, or could have
been discovered by defendant or such attor-
ney in time to have been embodied in orig-
inal motion.

4. Criminal law ©=920

Evidence was insufficient to warrant
granting of extraordinary motion for new
trial on ground that defendant had been de-
nied benefit of counsel or “due process of
law” in that defendant’s counsel were un-

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were disturbed in their deliberations, and
that some member of said jury, whose
name to movant is unknown, opened the
door to said jury-room so that said jury
could discover the purpose of said demon-
stration on the part of the spectators, and
that said demonstration continued in the
presence of said jury until and after the

dloor of said jury room had again been

closed. That the hostility and feeling
against him was very pronounced, and
was obviously and clearly a demonstration
against movant, which was highly prejudi-
cial and inflammatory, having occurred as
alleged in the presence of said jury, which
movant alleges was calculated to and did
as a matter of fact cause bias and prejudice
in the minds of the jury against movant.
“Movant shows that although the forego-
ing circumstances occurred before and dur-
ing the trial as above set out, he did not
know and had no way of knowing, until
after the time for perfecting his motion
for a new trial had elapsed, of the full ex-
tent of the failure of appointed counsel to
provide for him the aid and assistance of
counsel to which he was entitled. Movant
did not know that such counsel utterly
lacked the energetic and effective devotion
to his cause that they owed him until the
subsequent acts and admissions of said
counsel, hereafter recited, showed unmis-
takably the true nature and quality of
the failure of said counsel was not due
to neglect and error of judgment, but to
an utterly abandoned attitude towards the
duty which they owed movant, * * *
and to the court, to furnish him with ef-
fective and energetic aid in his defense.
The subsequent acts and admissions of
counsel which movant contends charac-
terized their acts as furnishing only a
pretense of a defense, rather than the as-
sistance which movant was entitled to [are]
as follows :”

When movant applied for a commuta-
tion of sentence by the Governor, one of
said appointed counsel voluntarily appeared
before the Governor and testified in op-
position to clemency, and among other
things swore before the Governor: “Had I
been representing Williams and paid a fee,
I would have prosecuted the motion” (for
a new trial). One of said counsel testi-
fied before the Governor that there was evi-
dence introduced in the trial to which he
should have objected, and no objection
was interposed. One of said counsel signed
a formal petition opposing commutation
of sentence of movant, and made the writ-

15 SOUTH EASTERN REPORTER, 2d SERIES

ten statement: “I was appointed by the
late Judge Moseley to represent this de-
fendant. * * * TI feel that the man is
guilty of murder, and I sce no reason why
his sentence which the courts have imposed
should be interfered with by the execu-
tive department.” One of said counsel
violated a privileged communication at
the hearing before the Governor, by swear-
ing: “Norman Williams told me _ he
thought they were trying to arrest him,
and he shot his way out.”

“Movant shows that the utter failure
of appointed counsel to prepare the de-
fense, to move for continuance; to pro-
duce available witnesses on movant’s be-
half, to make even the most obvious ob-
jections to illegal, inflammatory, and pre-
judicial testimony offered by the State, to
make a timely motion for a mistrial, to
make an effective motion for a new trial,
together with the consent of said counsel
for the dismissal of the motion for new
trial, under the circumstances that show
that such lack of defense was not due to
inexperience or mistakes of judgment, but
to a total failure to discharge their duty
of providing energetic and. effective rep-
resentation, all point conclusively to the
fact that movant’s rights were utterly and
completely ignored, and thus no effective
representation provided for him. Movant

contends that his trial. conducted under -

the circumstance alleged, amounts to a
denial of due process under the fourteenth
amendment of the constitution of the
United States (Code, § 1-815); and that
the facts and circumstances of his trial,
as stated, show that movant has been de-
nied the privileges and benefit of counsel
guaranteed under the constitution of

Georgia (Code, § 2-105).”

The evidence for the movant included
certain affidavits one from movant him-
self, three from persons who deposed to
circumstances tending to show self-de-
fense, and one from the attorney’ who
had been appointed as leading counsel;
also letters, excerpts from testimony given
by the appointed attorneys in a clemency
hearing before the Governor, and other
documents. The evidence for the respond-
ent included affidavits from various of-
ficers, and jurors, other excerpts from
evidence of the attorneys as delivered in
said clemency hearing, and other docu-
ments. All of such evidence was admitted
without objection. The order denying the
motion expressly recited that the issues

WILLIAMS v. STATE 23
158.E.2d 219 Ga. 223

of fact were found against movant and in
favor of respondent.

Wm. S. Shelfer, of Atlanta, for plain-
tiff in error.

A. S. Skelton, Sol. Gen., of Hartwell,
Howard Gordon, Sol. Gen., of Daniels-
ville, Ellis G. Arnall, Atty. Gen., Duke
Davis, Asst. Atty. Gen., and C, E, Greg-
ory, Jr., of Decatur, for defendant in error.

BELL, Justice.

[1-3] The extraordinary motion for new
trial was not dismissed or otherwise dis-
posed of on inspection of its allegations.
On the contrary, the trial judge entertained
it for the purpose of investigating the facts,
and then, after hearing evidence on both
sides, passed an order finding the issues of
fact in favor of the respondent, and deny-
ing the motion. Thus, even if the allega-
tions themselves should be treated as stating
absolute cause for a new trial for the rea-
son that the movant was denied the benefit
of counsel and due process, or for other rea-
sons, still the case does not come to us as
one to be decided as a matter of law on the
pleadings, but the substantial question is
whether the judge was authorized to find as
he did on the evidence. The judge accepted
responsibility as a trior of the facts, and
his findings thereon if supported by sub-
stantial evidence are conclusive. Loyd v.
State, 151 Ga. 717, 108 S.E. 55. Putting
aside for the moment the contention as to
unfaithfulness and dereliction of duty on
the part of the appointed attorneys, let us
consider whether the evidence was such as
to demand a new trial on extraordinary mo-
tion, in the interest of justice, but entirely
apart from the constitutional right to the
benefit of counsel. The happenings in the
trial were of course known to the defend-
ant, even what he alleged in regard to dis-
order in the court-room and disturbance
of the jury. He shows this by the allega-
tions in his motion. A motion for a new
trial was filed by appointed counsel during
the term at which the movant was con.
victed. Before the motion was heard, em-
ployed counsel presumably of movant’s own
choosing enteréd the case, filed an amend-
Ment complaining specially of various mat-
ters, and brought the case to the Supreme
Court after such motion as amended was
overruled by the trial judge. Moreover, the
affidavit made by the movant in support of
his present motion shows that all of the
Matters of which he now complains, so far
a8 antecedent to the clemency hearing, were

well known to him, or could have been
discovered by him or his employed attorney,
pending his original motion; or, to say the
least, in so far as these matters were not
embraced in the original motion, the judge
hearing the instant motion was authorized
to find that they could by proper diligence
have been embodied therein. It does not
appear that movant was unable for any rea-
son to communicate freely with employed
counsel, that he did not know the contents
of his original motion, or that he was to
any extent ignorant or under any misap-
prehension as to his rights. No attack
whatever is made upon the skill, diligence
or faithfulness of such employed attorney.
In the circumstances, any matter which
could have been complained of in the orig-
inal motion for new trial would not consti-
tute ground for an extraordinary motion.
Frank v. State, 142 Ga. 741 (3, 4), 83 S.
E. 645; King v. State, 174 Ga. 432 (2), 163
S.E. 168. It is not only the law of Georgia,
but is a gencrally accepted principle, that
extraordinary motions for new trial can not
be based upon matters that were known
to the movant in time to have had them
stated in his original motion, or that could
have been discovered in time by proper
diligence. Malone v. Hopkins, 49 Ga. 221:
Toledo Scale Co. v. Computing Scale Co.,
261 U.S.S.Gt. 399, 43 S.Ct. 458 67 L.Ed.
719; 46 CJ. 243, § 216; 20 R.CLL. 289-291,
§ 72. Manifestly, the judge was authorized
to find that the evidence on which the
movant now relies was not newly dis-
covered; and more than this, he could have
found that none of it was true, in view of
the evidence of appointed counsel as to
statements made to them at the trial, when
they were seeking evidence favorable to the
accused.

[4] Coming now to the question whether
the conduct of the trial by appointed coun-
sel was such that the defendant really did
not have the benefit of counsel and was
thus deprived of a fundamental right in
violation of the fourteenth amendment of
the Federal constitution (Code, § 1-815),
and the guaranty of the constitution of
Georgia (article 1, § 1, par. 5; § 2-105),
we will say first that apparently most of the
matters of fact alleged in the extraordinary
motion were set forth therein, more for
the purpose of showing that the movant
was actually deprived of the benefit of
counsel, than with the intention of relying
upon them as constituting within themselves
sufficient basis for the motion. To relieve

“x

Ptivrearrye


PER ATH

290 Ga.

faithful to defendant during trial. Code, §
27-2002; Const.Ga. art. 1, § 1, par. 5; U.S.
C.A.Const. Amend, 14, § 1.
See Words and Phrases, Permanent
Edition, for all other definitions of
“Due Process of Law”.

Syllabus by the Court.

The defendant was convicted of mur-
der, and after affirmance of a judgment over-
ruling an ordinary motion for new trial and
after still other proceedings, he filed an ex-
traordinary motion for a new trial, present-
ing, among others, the contention that ap-
pointed counsel who represented him during
the trial had so failed in their duty to him
as attorneys that he had been deprived of
the benefit of counsel and denied due proc-
ess of law. The judge, after hearing evi-
dence both for and against the motion, found
the issues of fact against the movant and
denied the motion on all grounds. Held, that
the evidence did not demand a finding that
the accused had been denied the benefit of
counsel or due process of law, as contended ;
nor does it otherwise appear that the judge
abused his discretion in denying the mo-
tion,

—$$—$< ge

Error from Superior Court, Elbert
County; Clark Edwards, Jr., Judge.

Norman Williams was convicted for
murder. To review a judgment denying his
extraordinary motion for new trial, he
brings error.

Affirmed.

The exception is to a judgment denying
an extraordinary motion for a new trial.
The following facts appeared:

At the September term 1937, of the su-
perior court of Elbert County, Norman
Williams was indicted for the offense of
murder in the alleged killing of Lon Fort-
son by ‘shooting him with a pistol, the
date of the alleged offense being July 19,
1937. On the morning of September 13,
1937, two attorneys of the Elberton bar
were appointed to represent the accused,
he being unable to employ counsel. His
trial began on Thursday afternoon, Sep-
tember 16, and continued until Saturday
afternoon following, when the case was
finally submitted to the jury. The follow-
ing Monday morning the jury returned
a verdict finding the defendant guilty of
murder as charged, The verdict contained
no recommendation, and sentence of death
was imposed. Appointed counsel filed a

15 SOUTH EASTERN REPORTER, 2d SERIES

motion for new trial, but later withdrew
from the case after another attorney was
employed. The employed attorney pre-
pared an amendment to the motion and
prosecuted it to final determination; and
a judgment overruling the motion was af-
firmed by this court. Williams v. State,
186 Ga. 251,197 S.E. 838. After the de-
fendant was sentenced, the same employed
attorney filed a motion to set aside the
new sentence, because of alleged disqualifi-
cation of the then presiding judge, and for
other reasons not relating to the verdict.
This motion was overruled and again the
judgment was affirmed. Williams v. State,
187 Ga. 415, 1 S.E.2d 27. Later, the pres-
ent attorney was employed. He instituted
in behalf of the defendant and against the
sheriff of Fulton County, where the de-
fendant was then incarcerated, a petition
for the writ of habeas corpus, alleging
that the conviction was void for the rea-
son that the accused had been denied the
benefit’ of counsel and due process. The
trial judge overruled a demurrer, and
the respondent sheriff excepted; and this
judgment was reversed. Aldredge v. Wil-
liams, 188 Ga. 607, 4 S.E.2d 469.

On March 11, 1940, during the March
term of the superior court of Elbert Coun-
ty, Williams, through the same attorney
who had represented him in the habeas-
corpus case, presented to the judge an
extraordinary motion for new trial, in
which he gave a history of his case and
referred to all the foregoing decisions.
It appears that the first motion for new
trial, as filed during the term of his con-
viction, was overruled on December 6,
1937. In the present extraordinary mo-
tion the movant presented, among others,
the same contentions as were made in the
habeas-corpus case, to wit: that by rea-
son of certain alleged facts he had been
denied (1) due process of law, as guaran-
teed by the fourteenth amendment to the
Federal constitution (Code, § 1-815), and
(2) the benefit of counsel, as provided in
the constitution of the State (article 1, §
1, par. 5; § 2-105). After hearing evi-
dence both from movant and respondent,
the judge overruled the motion, and the
movant excepted. In such extraordinary
motion for a new trial, as amended, sub-
stantially the following allegations were
made: ?

Movant was indicted for the killing of

Lon Fortson. Movant being at that time
about twenty-three years of age, and be-

WILLIAMS vy. STATE Ga. 991
15 8.E.2d 219

ing unable to read or write or to em-
ploy counsel, and without friends or fam-
ily who were able to secure. counsel for
him, the trial judge appointed two named
attorneys to represent him upon his trial.
Said counsel made no preparation for the
trial of his case, made no motion for
a continuance in order to have time to pre-
pare the case, and allowed movant to be
placed on trial for his life after only one
conference with him. Movant was not guil-
ty of the offense charged against him, and
had six or seven witnesses whose testi-
mony, if believed by the jury, would have
resulted in movant’s acquittal. Said ap-
pointed counsel, although furnished with
the names of said witnesses, called none
of them to the witness stand and offered
only the unsworn statement of movant in
his defense. Had said witnesses been of-
fered by said counsel, they would have
given substantially the same testimony as
embodied in their affidavits attached here-
to, to wit, that said witnesses would have
sworn before the trial court, in substance,
that movant shot said Fortson in self-de-
fense; that said Fortson and his son were
both armed and advancing upon movant;
that movant did his best to escape, but
the deceased approached from one direc-
tion while the son of the deceased ap-
Proached from the opposite direction, thus
entrapping movant, who was endeavoring
to escape by running back and forth
through a small tenant-house. That the
evidence of said witnesses would have been
invaluable to his defense, in view of
the fact that the State was contending that
neither the deceased nor his son was
armed, and offered evidence to this effect,
when as a matter of fact both deceased
and his son were armed and advancing
upon movant in a threatening and menac-
ing manner. That during the trial two
named witnesses for the State were al-
lowed to make certain statements: (quoted
in the motion) of a highly inflammatory
and prejudicial nature against movant,
to which his counsel interposed no ob-
Jection, though had such testimony been
objected to the court would have exclud-
ed same, and had said counsel made a mo-
tion based on the illegal and prejudicial
evidence the court would under the law
have been compelled to declare a mistrial.
Appointed counsel thus allowed movant’s
rights to be totally and completely ig-
hored, and permitted the jury to become
Prejudiced and influenced against him be-
Cause of such illegal testimony, Said

a

appointed counsel madé no effort whatever
to obtain a new trial after movant’s con-
viction, although they did file a skeleton
motion for a new trial based only upon
the general grounds; that said appointed
counsel refused to amend the motion for
new trial, and advised the trial judge that
they would not argue the motion for a
new trial or urge it upon the judge, and
that in so far as they were concerned the
court could dismiss the motion for a new
trial. Said counsel also informed the court
that if it did not dismiss the motion for
a new trial, the court should strike the
names of said counsel from the skeleton
motion. That said appointed counsel, after
abandoning the motion for new trial, and
while other counsel were considering en-
tering the case, directed a joint letter to
such other counsel in an effort to discour-
age them from entering the case, and in-
formed them that there was no merit in
the motion for a new trial; that “We do
not contemplate filing an amended motion,
and we will be content to let the law take
its course,” and further, “We consider
that we have done all that is required of
us,” and that “We will depend upon Wil-
liams to be in charge of his own case
from now on so far as we are concerned.”

Movant shows that when the jury in
this case retired to consider their verdict,
they were not properly sequestered, and
were permitted to consider their verdict in
a room in the court-house that was not
private, for the reason that the door to
said room was nearly one-half glass, and
from the upper part of said door there
was a large triangular hole in said glass,
because of which the deliberations of the
jury were not private, as by law required;
and that said appointed attorneys, al-
though fully informed as to said proper
[improper] sequestration of the jury, failed
and neglected to call the matter to the
attention of the court, or to make any mo-
tion of any kind, and thus permitted the
jury to continue their deliberations under
said circumstances. Movant shows that
immediately after the jury had retired to
said jury room to begin their deliberations,
a spontaneous burst of applause arose from
the spectators in the court-room, and that
the spectators, some fifty or more in num-
ber, began celebrating by hilarity, loud
talking, and by generally milling and mov-
ing about the court-room, and movant
shows that the noise and confusion result-
ing from said demonstration was very loud
and profuse, so much so until said jury

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294 Ga.

possible misapprehension, however, we have
considered them from both viewpoints. In
so far as the allegations or the evidence in
reference to these matters may have tended
to show that movant was deprived of the
aid of counsel and thereby denied due proc-
ess of law, or may have been made or of-
fered for that purpose, we do not deem it
necessary to consider whether diligence or
lack of diligence on his part should have any
bearing whatever on the present inquiry ;
for, with respect to such constitutional
questions, we shall assume that they were
presented in a proper manner and within
sufficient time, regardless of the antecedent
proceedings, or delay from whatever cause.
Cf. Lowry v. Herndon, 182 Ga. 582, 186
S.E. 429; Herndon v. Lowry, 301 U.S. 242,
57 S.Ct. 732, 81 L.Ed. 1066; Brown v. Mis-
sissippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.
Ed. 682. The trial judge apparently acted
upon this assumption, and found on the evi-
dence that the movant did have the benefit
of counsel and was afforded due process
within the meaning of the State and Fed-
eral constitutions.

As to the complaints against the manner
in which the trial was conducted, the judge
trying the present motion was under the
evidence, authorized to find as follows:
(1) That notwithstanding the gravity of
the alleged offense, no intricate questions
of law or of fact were involved: that all
witnesses were present or easily accessible ;
and that a motion for continuance, if made,
would have been without merit. Code §
27-2002; Kelloy v. State, 151 Ga. 551, 107
S.E. 488; Harris v. State, 152 Ga. 193, 108
S.E. 777; Ivey v. State, 154 Ga. 63, 113 5.
E. 175; Cannady v. State, 190 Ga. 227 (2),
9 S.E.2d 241. (2) That the failure of
counsel to introduce the witnesses who it
is now claimed would have testified to facts
or circumstances indicating self-defense
was due to the fact that on inquiry by coun-
sel at the trial these same witnesses were
reluctant and virtually disclaimed knowl-
edge of any such facts or circumstances,
and that in the situation presented, counsel
deemed it wise to rely on the defendant’s
statement and thus secure the concluding
argument. Aldredge v. Williams, 188 Ga.
607, 609, 4 S.E.2d 469. (3) That, instead
of conferring with the accused, only once
and briefly, counsel conferred with him
several times, and more or less thoroughly.
(4) That the failure to object to the al-
leged illegal and prejudicial testimony was
due either to a belief, whether mistaken or
not, that objection would merely emphasize

45 SOUTH EASTERN REPORTER, 2d SERIES

a prejudicial fact which the jury probably
knew about already, or that failure to ob-
ject was a mere oversight, not of such
gravity as to leave the accused without
representation, (5) That the failure to
prosecute the first motion for new trial
vigorously, or the inclination not to prose-
cute it at all, resulted from conscientious
belief that no sufficient ground for a new
trial existed. See Fambles v. State, 97 Ga.
625, 25 S.E. 365. (6) That appointed
counsel, instead of attempting to discourage
other counsel from prosecuting the motion,
merely undertook to explain why they were
withdrawing from the case. The evidence
may have shown errors in judgment on
the part of counsel, but did not demand the
inference that they were unfaithful, or ap-
plied so little skill or diligence that the
movant was actually deprived of a consti-
tutional right. In Aldredge v. Williams,
188 Ga. 607, 610, 4 S.E.2d 469, 470, it was
said that “The attack upon one of the orig-
inal appointees of the court because of his
alleged conduct before the Governor in
opposing clemency is irrelevant, since this
relates to matters subsequent to and wholly
disconnected with the trial, or the motion
for new trial, or the former writ of error.”
Assuming now, however, that such conduct
of the attorney as shown in the instant
proceedings was relevant and material as
tending to support the basic contention that
the movant was in fact denied the benefit
of counsel, yet under the evidence as a
whole the trial judge was not bound to find
that the attorney was guilty of infidelity at
the time of the trial, or that he did not give
substantial aid in the movant’s defense.
Several witnesses testified that both of ap-
pointed counsel were men of good pro-
fessional and moral character, and that both
were well skilled in their profession, one
having been a member of the bar for about
eight years, and the other for about two
years, at the time of the trial.

In the present motion for new trial it
was alleged that one of the attorneys testi-
fied before the Governor that he would have
prosecuted the motion for new trial if he
had been paid a fee. On looking to the evi-
dence we find that the statement of the at-
torney was “Had I been representing Wil-
liams and paid a fee for the purpose of gain-
ing time, I would have prosecuted the mo-
tion”’ There is a material difference be-
tween the statements. Movant also com-
plained that one of the attorneys actually
signed a statement opposing clemency, and
in his testimony before the Governor vio-

WALDROP v. NOLA
15 S.E.2d 225 hae ; sea 225

lated the confidence of his former client
by quoting a-statement by the latter tend-
ing to show guilt. If such or similar state-
ments or matters could be taken as impeach-
ing a verdict conclusively and as a matter of
law, then it would be an easy matter for
an attorney, after his client has been con-
victed, to talk away the verdict, if only some
other attorney will file a motion for new
trial and make proper complaint. We do
not mean to indicate, however, that any-
thing of this nature was attempted in the
present case. As to personal appearance
before the Governor, the evidence author-
ized the inference that the attorneys did
not come voluntarily, but were invited to
do so by the Governor because of conten-
tions made in the application for clemency
tegarding the manner in which they had
conducted the trial. The hearing before the
Governor apparently developed a little heat;
and with respect to statements then made,
the judge could have inferred that the at-
torneys were goaded to some extent by the
charges against them. Even a husband and
wife may fall out after living together a
long time in harmony; and so with other
relations, such as partners, friends, broth-
ers, So, in view of all the evidence heard
and weighed by the trial judge, it cannot be
held by this court that statements made by
the attorneys or either of them at the hear-
ing before the Governor, including the al-
leged violation of confidence and plus even
the Previous recommendation of one of
them in reference to clemency, established
conclusively and as matter of law the con-
tention of movant as to both or either of
such attorneys that they were unfaithful
to him during the trial, or that their sery-
ices did not amount to aid or benefit of
counsel, in a constitutional sense; but un-
der the evidence as a whole the judge was
authorized to find against such contention
And this is true in reference to such finding
on the principal issue, regardless of wheth-
er the circumstances of the clemency hear-
eer have justified one of the attorneys
nN divulging to the Governor the former
Statement of the accused, and however im-
Proper the recommendation against clem-
¢ncy to his former client may have been.
at most, these circumstances were merely
ne on the issue as to former conduct
a attitude, and did not under all the evi-
ic ce a finding in movant’s favor
he e have carefully examined the author-
ies cited by counsel for movant, and do
not take issue with the general proposition
15 8.K.2d—15

that if appointed attorneys are so ignorant
negligent, or unfaithful that the accused was
virtually unrepresented, or did not in any
real or substantial sense have the aid of
counsel, he would be deprived of a funda-
mental constitutional right, and if convicted
might successfully complain that he had
been denied due process of law; but the
evidence here did not demand a finding that
such a state of facts existed with reference
to movant; and the judge did not otherwise
abuse his discretion in overruling the mo-
tion for new trial. This being true, the case
does not come within the rulings in the
cases cited by counsel for the plaintiff in
error, some of them being: Downer v.
Dunaway, 5 Cir., 53 F.2d 586; Missouri v.
Jones, 12 Mo.App. 93; People v. Schulman
299 Ill. 125, 132 N.E. 530, 24 A.L.R. 1022,
1025, note; Sanchez v. State, 199 Ind, 235,
157 N.E. 1; Brown y. Mississippi, 297 US.
278, 56 S.Ct. 461, 80 L.Ed. 682; Powell ee
Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.
158, 84 A.L.R. 527; Johnson v. Zerbst, 304
U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. See
also Fambles vy. State, 97 Ga. 625, 25 S.E
365; Aycock v. State, 188 Ga. 350 (10),
567, 4 S.E.2d 221; North Dakota v. Keller,
57 N.D. 645, 223 N.W. 698, 64 A.L.R 434,
436, note. é
Judgment affirmed.

All the Justices concur,

WALDROP et al. v. NOLAN et al.
No. 13734.

Supreme Court of Georgia,
May 17, 1941.

{. Venue ©=22(3)

Superior court of county in which cer-
tain heirs at law of deceased resided, but
not of the county in which administrator re-
sided, had no jurisdiction of an equity suit
by creditors of deceased's estate to recover
on claims due them, where no affirmative
relief was prayed against the heirs

2. Venue €>22(3)

Superior court of county in which re-
sided a former administrator who had been
removed, had no jurisdiction of equity suit

ye

Tttwveweitye


"Willard Webb...was found guilty,..Directly after the verdict had been announced, Judge N,.

A, Morris sentenced the negro to be executed Sept. 17...Soon after the sentence was pro=
nounced, Sheriff McKinney and three deputies placed the negro on the electric car and brought
him to Atlanta where he was put in the Fulton County jail for safe keeping until the date
fixed for his execution, .At the same time Sheriff McKinney and bhe deputies brought Alvin
Gibson to Atlanta to be confined in the tower. Gibson is the negro who is charged with
attempting to assault Mrs, Iberrn Hicks at her home in Marietta Tuesday evening," JOURNAL,
Atlanta, Ga., 8-11-1909 (1-6.) |

"A posse in automobiles, reinforced by Cobb county citizens on foot, with bloodhounds, while
Fulton county police officers are watching the county line, is searching the woods near
Vinings Station in Cobb éounty, for a negro, who criminally assaulted Mrs, Exy Brown, the
18-year-old daughter of Mrs, Humphreys, near that place at 9 o'clock Tuesday morning. The
assault took place near Brookmount, the old home place of Mrs, Lena Swift Huntley, of
Atlanta. The posse followed the negro as far as they could in the automobiles and when
the negro reached the jungle-like woods they left the machines with guards, and started ’
into the woods on foot. It is beliaved that the negro will be caught before night.
"The assault occurred within 50 yards of Mrs, Brown s home and 1 mile north of Vinings .
Station. rs. Brown had just left her home and started across the tracks of the Western
and Atlantic railroad, when a negro seized her from behind, The -negro was about 5 feet,
11 inches tall, and weight 160 pounds, He wore new overalls and a black hat. Before Mrs,
Brown could scream, the negro struck her and choked her before she could make any outcry.
The negro made his escape, and Mrs, Brown made her way home, A physician was called imme-
diately and is giving the young girl every assistance, The news of the attack was tele-
phoned to Vinings Station, to Marietta and Atlanta. A posse was organized and started in
pursuit,

‘ta posse of Marietta citizens, upon hearing the news left immediately for the scene of
assault in automobiles, making a -record run to the Humphreys! home, The Fulton county po-
lice were notified and being unable to cross the county line, were sent to the thattahoo-
chee River, Bloodhounds were put on the trail and are following a _— through a dense
wood, The posse is close behind the dogs and every effort is being made to apprehend

the negro, While Mrs, -Brown is not fatally injured, her condition is serious, and the
attack has stirred the county to white heat, é |

"The sheriff of Cobb County, in an automobile, accompanied by 6 deputies and a pak of
bloodhounds, left Vinings at 1 o'clock Tuesday afternooh for Smyrna, where it was re-
ported that a negro had been captured, The prisoner is said to answer every desrription
of the assailant. Smyrna officials telephoned the.sheriff that the negro had been cap-
tured while going through a field, The sheriff says that he will do everything in his
power to capture the negro, and it is feared that a serious clash may occurr between the
sheriff and his deputies and the posses, At 2 o clock the posses had spread out in every
direction and are determined to find the assailant," JOURNAL, Atlanta, Ga.y 7-20-1909 (1

, | 7

";,.Shortly after 7 o'clock Tuesday morning the assault was perpetrated, The first that

was known of it was when John Humphrey, a 15-year-old youth, ran breathlessly into the

store of M, J, Robinson at Vinings with the bloodstirring tidings on his lips. Within a

qureter of an hour Sheriff W. M, McKinney, of Cobb County, had been notified at Marietta, §
Within 5 minutes more the word had begun to spread over the whole countryside. On every _
road messengers sped forth carrying it. Men deserted their fields, dragged their plows |
“to the barn, and threw themselves across the backs of their mules and headed for Vinings. A
Within half an hour everyone knew it, every road had its sentinel, every mile of railroad
track its guard, and every woodpath its man and gun...Mrs..Exa Brown, a young matron 22= _
years-old, but seemingly almost a girl, She is one of. the daughters of Mrs, E..J,. Humphrey.
During 2: years past she has been in ill health, and since. Christmas she had heen almost
constantly under the care of physicians, At the time the crime was perpetrated, Mrs,

Brown s brother, Tom Humphrey, aged 30, and her brother-in-law, Tow Doyal of thessame age,
bhe mén of the family, were in a field a quarter of a mile from the house, working, The
mother was in Atlanta, where she had gone on Monday to spend a short while with another
daughter, Mrs, Ruby Saye, of 7 Crescent Ave, Mrs. Doyal, sister of Mrs. Brown, and the
younger Mrs, Humphrey, were alone at the house with their young children . The home of
the elder Mrs, Humphrey, where all were living, is the former country residence of Mrs,

Lena Swift Huntley, at Brookmont, a flag station on the W, and A, Railroad. The present
ocfupants moved into it jus t 2 weeks ago, The nearest house is a quarter of a mile away.

‘EBB, Willard, hanged at Marietta, Georgia, on February 19, 1910.

"Two weeks more of Life, thouzh the gallows is already building for him to hang next Fri-
day, are petitioned from Governor Brown by ‘Villard ebb, the Cob County negro, under sene
tence of death for criminal assault, Webb, it will be remembered, was convicted of an
assault committed upon a white woman of Cobb County last summer, A spotted dog played a
large part in his identification, Attorney Blair, of Marietta, representine “ebb, be-
lieves that he can prove a substantial alibi, It is said that. two white women, are willing
to take oath that they saw and recognized “ebb half an hour after the cfime is said to
have oocurred 73 miles away from the scene of it, The attorney hopes to show a case of
mistaken identity," JOURNAL, Atlanta, Ga., Feb. 2, 1910 (9/5.)

"Vinings, Ga., 2-5-1910-Twenty-five of the most prominent citizens of Vinings at an ine
Gignavion mass mecting at the. school house on Friday evening, Feb. ll, passed resolutions
condermning the actions of Gov. Joseph M. Brown in srantinz a 2 weks' respite to Villard
“ebb, the condemned negro who was to have hanzed yesterday in Marietta, Ga., for assault,
4 numben of speeches were made by some of the mosi prominent citizens," JOURNAL, Atlanta
Feb. 5, 1910 (5/h.) —— .

"Marietta, Ga., 2-18-1910-tillard Webb, the negro who was convicted at the March adjourned
term of Cobo Superior Court for criminal assault, was hanged in the Cobb Jail at 11:2h
oliclock today, Sheriff McKinney pulled the trigger, ‘’ebb was composed to the last and
walked to vhe gallows the collest man that witnessed the execttion, Webb was convicted
on-the statement of the assaulted party. ‘wo other white women swore to an alibi, Pub-
lic opinion was divided in regard to hig ~uilt. He was charged with assaulting a white
woman near Vinings. The prompt action of Sheriff Mc4inney saved possibleviolence at the
time, He was brought to Atlanta Jail, but has been in Marietta Jail for the last 2 months,
He mde thefollowing statement on the vallows: 'I am lad, cheerfully glad, before God

and before the people, and I would be glad if more people than is here now could hear

me, This is my last recucst on earth before man and beforesod and this is my last valk
with anybody, and I am dying in the truth and 1 am dying for something I don't know any
more about than a dead man, I am thankful I am not dying for crim. I am dying to give
satisfaction to the people. I am just as clear of ever committing a crime as any other man
in the world, There is not a man in the world more innocent than I am, I have not got

any prejudice against you people. I am dying just like the apostles of the Lord did, They
died when they were perfectly innocent, and I am dying the same way I thank you for all
your kindness.'" JOURNAL, Atlanta, Ga., 2-19-1910 (9-h.)

ee predictions that are being made on the streets of Marietta by many conservative citizens
of Cobb County come true, it matters little to Willard Webb, the nggro, who is on trial for
his life Wednesday in the Cobb County Superior Court, charged with a dastardly assault on
Mrs, Exa Brown, at her home, near Vining Station, July 20, whether he is sentenced to be
hanged by the neck.until he is dead or whether the jury determines that he is not guilty.
There is an undercurrent of sentiment in. Cobb County that suggests the final result will be
the same in either event and that should the negro escape death at the hands of the law, hhe
most severe penalty for his crime will be meted out to him by the angry populace, It was
freely talked on the streets that the crime was one of the darkest that hed ever sullied the
annals of Cobb County, that Mrs, Brown's identification of the negro was complete, full and
satisfactory, and that over and above all this, a chain of circumstances had been woven ar-
ound the case that would be strong enough to prove the negro's guilt even had his victim
failed in the identification....fhe court appointed for his attorneys D, ™ Blair, BE. He
Clay, J..E,.Moseley and Fred Morris, The state is represented by Solicitor General J, Be
Brooke, Charles H, Griffin, G. B. Gann of Marietta and W. M, Smith of Atlantaceess. Mrse
Brown, positively identified Webb as being her assailant, She also knew the negro s dog,
which played such an important role in the case, However, her identification of the dog was
not so positive as of the negro, The defense attempted to establish an alibi, and several
witneswes, some of whom are respectable white people, testified that they saw the negro in
Marietta on the morning the crime was committed at Vining. Such is the temper of many of
the people in Cobb County that even this alibi is criticised, and it has been remarked that
the attempted assault Wednesday morning by a negro on a well-known lady in Marietta was but
the logical outcome of such a position, The court has appointed about 20 special bailiffs
who will act as deputies to the ‘sheriff, and who are freely mingling with the crowd in the»
court room and on the street, These men will asSist Sheriff McKinney in keeping order and

in protecting the prisoner should the jury fail to convict him and a demonstration be made.
JevRAA ct, ~—JLFUAIF OF ES?

| ‘oe
WEAVER, Henry, hanged Blakley, Yeorgia, May 30, 1888,
; |

"Henry Weaver, the murderer who was hung here, yesterday, made an
attempt to escape on Tueday night and Wednesday morning. By some
means he secured a small suger and cut out a place about a foot

s quare in the floor of his cell with it, but he struck a sill

just at thés time which prevented his further progress. We are in-
clined to think that the possession of this auger was the secret

of the K¥X¥X desire for extension of time for Henry."

EARLY COUNTY NEWS, Blakley, GA, May 31, 1888 X® (3:3).

"THE AGONY IS OVER, AND HENRY WHAVER'S SOUL HAS BEEN LAUNCHED INTO
ETERNITY, As early as Tuesday afternoon the people began to flock
to Blakely to witness the hanging of Henry Weaver, KAM and by Wednesday
there were three or four thousand people here from the neighboring
towns and counties and the rural districts of Early, All ages, from
| the little babes to the hoary headed, of both colors and sexes,
were represented in this vast assemblage. On last Yaturday evening
Henry KX weaver, the murder of Miles West, having professed conver-
sion, was baptized in the jail yard with his shackles on, by Rev.
G. W. Johnson, colored, Henry stated that he had made peace with
God and was prepared to go. We hope he was right about it. On
Tuesday evening, some friends of the doomed man raised a small
purse of money for him and prevailed upon Col, W. A. Jordan, his
attorney, to go to Columbia and telegraph Governor Gordon, praying
a respite of fifteen days for him that a petition might be presented
in his behalf for a commutation from the death sentence to life im-
prisonment, the telegram being endorsed by a number of the promi-
nent citizens of our town, The hour being late when the telegram
was sent off, Col. Jordan was unable to get a reply that night so he
returned to Blakely at once, XKXXKRXKEXAKXK instructing a messenger
whom he left in Columbia, to bring the reply with vost haste
should a favorable answer come next morning, But the hopes of a
stay of execution were dodmed to disappointment, and as the hour
of noon drew near on Wednesday the final preparations for the
hanging were made complete, and no message having been received from
the Yovernor, Sheriff Black of Harly, and Sheriff Coleman, of Vlay,
put the prisoner in a carriage and surrounded by a strong guard
proceededto the gallows which had been erected in the eastern suburbs of
the town, The prisoner was accompanied by two ministers who staid
with him to the end. He was given an opportunity to talk but spent
all of his time in praying, both the ministers also praying for hin,
the exercises at the gallows being interspersed with singing. Henry
bade those around him good-bye, Sheriff Coleman tied his feet,
slipped the white cap over his head, and descended from the gallows,
weeb Sheriff Black cut the rope and the drop fell and Henry hung,
suspended in the air, There was considerable screaming among the
women just at this juncture and one or two of them fainted, we hear.
Dr, K Doster examined the hanged man and in 12 minuf$es his pulse
had ceased to bean, in 1); his heart and 19 minutes after the drop
fell he was cut down, Bailiff McGlammory put him in the coffin and
he was buried in the colored cemetery north of town, The vast crowd
in town conducted themselves in a very orderly manner and the two
marshals on duty, Capts. J. D, Jones and W, H, Stuckey had no great
deal of trouble in keeping things quiet, theouch there was a great
deal of drinking going on. It was by far the largest crowd we have
ever seen on the KEBK streets of Hakely, and though the majority of
them were negrores, there were a great many whites here, Well, it
is ell over now, and the majesty of the law has been vindicated, and

we trust that the awful fate which overtook Henry KE Weaver will serve
as a warning to those who witnessed hisexecution and prevent any of
them from taking human life. We are glad thet the attempt to have

him respited did not succeed, for uncertainty of the execution of

condemned criminals these days is having. a bad effect in our State.

The maudlin sympathy which is worked up nearly every time a criminal
is to be hun-, anywhere, now-a-days makes us tired, and we again re=

peat we are glad that the attempt to work up such a state of feeling
in Blakely failed of its>opurpose," |

EARLY COUNTY TIMES, Blakley, Georgia, May 31, 1888 (3/),)

fi

T:

black, hanged

Sed puna i ait?
een, 1b’ and. 4 @elock for the; double

pasientey oy
jon werreyovenntyerta en

= vanes rae
the geafold le taf pew
the--weat-end of the’ mr

eitireted eer ,
Cirectly. Uuaiok the :velt’ Of the, murderer,
~~ Wiaxlie, eiitag th’ ate lonely call could"

HO Far nia Rear et 7 48 Pa 7 a
heximer As’ they), ware! ‘used As the ‘come:

Ane 'thap dwrs pou whieh vies

will stand and-through srhich he wil fal.

to Geath: Bre nine feet above The ervuad.”
$e wit drop AVE 46.4:a0d there will be;
two (vet: of plack: rupe whieh wal bres >

: MG; s'onhor: haw not! ordered” che.

Gee "Wilt be it bad

are ont anequtieg. will

isgine has.not weakencd in the ‘wast. F
Ts Utronicle. called: on) hia fast Alters:
boon end fhe wie “se calm and composed -
os though nothing was 16. occur, Me has:
not the least reed of the awful d.ati.ne
te tg: BOON Theat. Me ts’ eo-excitet: and:
wirked Up over religion that te dupe not:
aivp to cutisiler te herrivie death, which
ta in wiore for Bint, ‘

“Iie esyo he ls tuady sty go wr tal 3 pie
parent to more bia Moker ane: ut ty hapee
the WA Pint,

Georgia, on February 8,

Augusta,

~~ OMS WeIhesIs4y. Klehe: ise has:
LO IOSEN & Nuticl to satiety his

‘or grank: @ Crop to quenct Pag meg
‘ed Jailer Collins that that wae nis task

“Neat and when ha oid eaten, he tenarke”’
» 2 to dalle Collie hat (dt eee his baat
Ae OU that ted net titend to nator’
rink Heat Ghd he haa etutk to bis word,
, ale rete. ta tat hbroakftust,, dinaes:: oY
supper yeuterday and woud ‘take nothing
tov drinks: He saye: hie spritual edviee.
told ‘hitn that Cheist fasted for forty days,
bad that he thought that it was the cast
he cyytd do te frat. forty houre. L iy
coWiggine has prong: faith in the words.
Hof Revs Goue? who has visited bin dally.
j BA thew hid eonvidtion, and by Dif Wirweoticns *
| the condemned Bia has abstalat from’:
food. ard ‘Urink: Sets over ada dette
PWigglai aati ht 1! tay all’:
OW, iggina nat nh bis eee} yreter ay Q
day; reading the Dip ctoery and atrene’’
pMively und hy feode Wppy on hie way de
+ Som thy yet

Shuriff, G'Connoe visited hl en ery alters
ROW ALD GIT ttn te tere,
thing he fancied he Wanted. - He told’ the
} An eit he wanted nothing. nity z;

Ais approtucgded that W titra wid te
"80, Weak strom fasting that he wit? be nie:
ahle to mount the scaffold unaided Roatays*
BEA Setrint tt le thaught he wilt hoid. -
I ep inder the Oxcltraneut .: i"
} The: death: watch Wan eet yeaterday to’
euaird the wurderer wath: tie hove. of. hia ‘
BGS MONG, ouQicie:

abbey: babe: Blone ie. ween metab over
diin ‘
TAY ATER Porter aePtes
asi Might: at the Yell ay parores ‘mintetery
inhithe tregro'e cell,
“ Wigwlte,jolnia in ihe binging atid Vatetia,
ol) dilentively (9 the prayers offered for a
Hit malpation., Ble alee -yaltetity the the
saytnug ol (he prayers and. Amplaged al:
i have mercy Upoty hime roe8oak ;

» Wiggebe has ‘requ sted (Tailor ‘Colina:
‘whe? has cirywted, oo kipily during hie Gare?
finement ta KO Upon, the- scanold with?
hun: The Jator why! has never witheswwd |
a bangin baa Kranred the request put he
sane | he wit ot mee the negru Bune os,

HME Me Medical ‘Sell «2 pludents’:

oie ativad the habgiiese oe

Sftord writ tee mee cucting | abt ‘Meteteaes et
tion of :the’ rope by owhien W ltgine wilh:
ww ih toriit beta teen: promlwac ee Lhe epg s
Ody. ba Turnkey: Crue aba waked
Ae, Pteventer Of Nie) After: ed boag-
hua teen cul downcibe reauiad wil: ben
tehen He Cascling asa. Madan asco

2 aeepeee ps oan,

1895 555


for the westees." JOURNAL, Atlanta, Georgia, 12 June, 191) (1/1.)
eid 2 e- eih ; ee ey - e-
".,eKing was killed on Dec. 12, 1913. He was out hunging quail when Wilburn came
upon him, and seizing the gum which hadbeen-laid aside by King, shot him to death
with it, According to the evidence at the trials Wilburn was unduly intimate with
Mrs. King, wife of the murdered man, and they had:for months prior to the killing
discussed his murder. King had $2,000 life instmance, It-was stated at the trial
that Mrs. King and Wilburn had agreed that Wilburn was to receive $600 of.this and in
the event of his prosecution he was to have the entire amount for his defense. i.
Feeling against Wilburn, who was employed as a farm hand- by King, was so intense in
Jones County that the prisoner was taken to the Bibb County jail in Macon’ for safe-, °
keeping and was kept there until a few days ago. Following Wilburn's conviction, ‘¢
Mrs. King was put on trial, but was acquitted.,.Wilburn's appeal to the governor #ax:
made by his attorneys, John R, Cooper and Robert Newman, was based upon his
contention that he was induced by Mrs, King to kill her husband; that he was domina~
ted almost to the point of hypnotism by the woman and that inasmuch as she had been
allowed to go free he should at least be given a life sentence instead of Ahnging."
JOURNAL, Atlanta, Gas, 6-11-191) (1-7.) va: ae duane -

\
>

mee es t t

78 SOUTHEASTERN 819; 81 SOUTHEASTERN 4hy

4 f ; Corte
WILBURN, Nyck, white, hanged at Gray, Jones County, Georgia, on June 12, 191).

w(shecial Dispatch to the Jqurnal) Eastman, Tae, June 13, 191-Nick Wilburn, who was
hanged in the jail at Gray, Gae, yesterday, 'was buried this afternoon in the. RBKEKBEX
cemetery of Poplar Springs Baptist Church, four miles from Eastman. The funeral was
conducted iby: Revs Alex W. Bealer. Jugt at-daylight the train bearing the body, the |
father and mother, and other relatives, arrived in Eastman. The casket was placed _.

in a one-horse wagon and the procession that would through the sleeping city was, ;

made up of two wagons and two'buggies. The body was. carried to the home of Jo, Fe
Wilburn, -a brother-of the déeadiman, Just across the road was. the home of Nick s

father, but the body could not be carried there on account of the presence of the old.
grandmother: ofthe dead boys. She is more than 100 years old and the. news of the boy's tra-
gic death has been kept from her, Qnly this morning she called £0 her son, and asked :
him how-Nick was getting along, Controlling his grief as best he could, he replied:

'Nick is-all right today, You.should not worry about hims' Mrs. J. We Wilburn, in

whose home the-dead body of Nick awaited the hour of the funeral, is a daughter of

Mrs. King." (ory ol Por_ rr.

JOURNAL, Atlanta, Ga., June 13, 191) (1¢2.) we ee -

o- |

"(Special Dispatch to the Journal.) Gray, Ga., June 12 = Ina practically deserted
village, Nick Wilburn was hanged this morning for the murder of James §. King, a

Jones county farmer, in December of aast year, The trap was sprung at 11:55 aeme
Although Wilburn's neck was broken, physicians did not pronounce him dead for
twenty-one minutes. The trap was sprung by Sheriff Roberts, who had remained in
seclusion throughout this morning. The sheriff did not appear until after the black
cap and noose had been adjusted by a former Sheriff, Re Ne Etheridge. He then

stepped from a room adjoining the death chamber, quickly sprung t.e trap, and fled,
unnerved by the ordeal, Wilburn's execution, the first in Jones County in twenty-
eight years. was witnessed only by county officials, att@nding physicians and re-
porters. Wilburn went to his death without a tremor, stating calmly just before the
trap was sprung that he had no statement to make, His body was turned over to re-
latives, but burial expenses will be raised from a fund raised this morning by popular
subscription when it became known that the young man's father, John Wilburn, had sold all
of his property and spent the proceeds in his son's defense, The aged man, broken in health
has announced that he will leave the county.

"The village of Gray was all bub deserted hours before the execution, Early this
morning whole families left town for the day. May of those who remained sought points as
far from the jail as possible to escape the piteous moans of the condemned man's par-
ents who spent the morning in his cell, Negroes, panic-stricken, congregated outside the
town limits, Wilburn's father and mother came to Gray early this morning and sought

an attorney who had been associatéd in the defense of their son, Until 10 o' clock

they clung desperately to the hope that something would prevent the execution, Wil-
burn was comforter for his parents who made little effort to restrain their grief.

"All last night Wilburn was under a death watch in fear that he would attempt to end

his wan life, When a relative this morning, however, rebuked him for not finding

some manner to save his family from the odium of having a member die on the scaffold, Wil-
burn replied that he had been forgiven for slaying King and he did not wish to die a
self-murderer, The name of Mis, Kate King, who was jointly indicted with Wilburn

for the murder of her husband and subsequently acquitted, was not mentioned today by

the condemned man,

Milburn killed King with the planter's own gun, and under circumstances which

attracted BKBHKIEX general interest throughout the south, It was at first thought

that King had committed suicide or been accidentally killed while hunting. Later
Wilburn and King's wife were arrested on a charge of murder, At their trial it was
brought out through Mrs, King's confession in open court that she and Wilburn had

been intimate, and it was charged by the state that they conspired to kill King and
obtain his insurance money. Wilburn later confessed to the authorities that this was sub-
AHEREANEXAXX stantially true, and that if he should be tried for the killing, the

entire amount would be used in his defense, Wilburn, convicted of King's murder ,

a ppealed to the state supreme court, which denied a new trial, The Georgia prison
commission refused to recommend that the death sentence be yaa oe rca
onment and yesterday Governor John M. Slaton declined to interfere withthe courseo

the lawe a King, who was tried for murder, was acquitted, and later left Georgia


he a SUP aH a Cian Cryp hse Toh ea ag a orig Se

ae

oN

XS
AWN

PEAR AN ET RR ope AMID R ete pba ate

ATANE

4
‘
y

580 Ga,

adducing affidavits respecting the resi-
dences, associates, means of knowledge,
character and credibility of the proposed
witnesses is not complied with. Overby
v. State, 183 Ga. 353, 360, 188 S.E. 520;
Sumner v. Sumner, 183 Ga. 400, 188 S.E.
515; Anderson v. State, 190 Ga. 455, 460,
9 S.E.2d 642.

[4] 4 The evidence and the defend-
ant’s statement conclusively established
that he did the alleged killing, and the
verdict finding him guilty of murder and
recommending mercy was authorized,

Judgment affirmed.

All the Justices concur,

Cp

Q WHITT vy. STATE.
No. 16152.

Supreme Court of Georgia.
April 14, 1948.

1. Homicide C250
Evidence sustained conviction for mur-
der of wife.

2. Criminal law €=—825(4)

Charge that jury were exclusive judges
of the evidence and of the eredibility of
witnesses was not improper because of
failure to charge further, without request,
that jury might consider the witnesses’
manner of testifying, their intelligence,
means and opportunitics of knowing facts,
nature of the facts to which they testify,
probability or improbability of their tes-
timony, interest and want of interest,

3. Criminal law ©=922(2)

Failure to charge law relating to con-
flicting evidence and credibility of witnesses
is not ground for new trial, in absence
of appropriate request.

4. Criminal law C1178

Ground of amended motion for new
trial, not argued or insisted upon, would be
treated as abandoned,

47 SOUTH EASTERN REPORTER, 2d SERIES ~

5. Criminal law €=828

Where defendant objected to certain
testimony as relating to events too remote
from offense and court in overruling motion
to strike told jury that the testimony could
be considered in relation to time conver-
sation took place to determine whether it
had any connection with event involved,
failure to charge the law regarding remote-
ness of facts testified to the crime charged
was not error, in absence of timely written
request,

6. Criminal law C801

Preliminary instructions to jury at
time of overruling motions relating to evi-
dence are not untimely or improper,

Syllabus by the Court.

1. The evidence was sufficient to au-
thorize the verdict.

2. Without an appropriate request,
the omission of the trial judge to charge
the law relating to conflicting evidence
and the credibility of witnesses is not cause
for new trial.

3. Where, upon the admission of
testimony which was objected to on the
ground of being remote, the trial judge
instructed the jury under what circum-
stances it should be given consideration or
disregarded, it was not error to fail, with-
out request, to charge further upon this

subject,
—_———_@—___—

Error from Superior Court, Fulton
County; Bond Almand, Judge.

Sam Whitt was convicted of murder
and he brings error,

Affirmed.

The accused was convicted of the mur-
der of his wife and sentenced to electro-
cution. To the overruling of his amended
motion for new trial, exceptions are
brought to this court.

The evidence showed that the accused
and his wife were living separate. She
and her small baby were living with her
parents. On the night of the homicide
he was visiting his wife and baby, Her
father, mother, and brother were in the
house but in adjoining rooms at the time
of the shooting. No one but the accused,

WRHITT v. STATE Ga. 581
Cite as 47 8.F.2d 580 .

his wife, and baby were in the room when
the homicide occurred. She was shot three

times with a pistol and died instantly. She,

was unarmed. The mother immediately
went into the room and saw the accused
going down the steps.

Another witness testified that at the time.

of the shooting he was sitting in an auto-
mobile near the front of the house; that
he saw a man, standing in the door, shoot
a woman who was leaning back on the
arm of a chair, and when she fell he shot
her twice more,

In the defendant’s statement he said
that his wife’s father came in and “acted
as if he wanted to start something,” and
then the brother came in and told him to
go, “and Wwhen he said that he leveled the
shot gun down on me and when he did that
I seen my life was in danger and I reached
my pistol and took a shot and my wife
walked across it and when it snapped it
hit her and I guess when I saw her I guess
I got excited and shot it some more.” .

Gordon A. Smith, Alton T. Milam, E. B.
Judge and James Glen Lamar, all of At-
lanta, for plaintiff in error.

Paul Webb, Sol. Gen., and William
Hall, both of Atlanta, Eugene Cook, Atty.
Gen., and Margaret Hartson, of Atlanta,
for defendant in error,

ATKINSON, Justice (after stating the
foregoing facts).

[1] 1. The evidence was sufficient to
authorize the verdict.

[2,3] 2. The first ground of the
amended motion alleges error, in that the
judge charged the jury, “You are made by
law the exclusive judges of the evidence
and of the credibility of the witnesses ;”
and that this was confusing without further
charging that they may consider the wit-
nesses’ manner of testifying, their intelli-
gence, means and opportunities of knowing
facts, nature of the facts to which they
testify, probability or improbability of
their testimony, interest and want of in-
terest. There is no merit in this ground.
Without an appropriate request, the omis-

sion of the trial judge to charge the law
relating to conflicting evidence and the
credibility of witnesses is not cause for
a new trial. Lewis v. State, 125 Ga. 48(1),
53 S.E. 816; Darden y. State, 171 Ga.
160(6), 155 S.E. 38; Herndon vy. State,
45 Ga.App. 360(6), 164 S.E. 478; Berry
v. State, 70 Ga.App. 112, 27 S.E.2d 563.

[4-6] 3. The second ground of the
amended motion, not being argued or in-
sisted on, will be treated as abandoned.
By the third ground error is asserted, “Be-
cause the court erred in failing to charge
the principle of law regarding the re-
moteness of the facts testified to the crime
charged.” A State’s witness testified: “I
saw Sam Whitt, the defendant. * * * I
saw him along just before Christmas last
year. I saw he and his wife * * *
they were fussing. Sam jerked Margaret
around and said, ‘Margaret, you don’t
know how close you come to meeting your
death, * * *’” The attorney for the
accused stated: “I respectfully submit any
conversation had that remote from the
alleged crime, which was in March, that
is not material to the issue, and I ask the

' court that it be stricken out.” To which

the court said: “I think it is going to be
a matter the jury has got to pass on,
whether they will consider that. Gentle-
men, you may consider this testimony in
relation to the time this conversation took
place and determine in your own mind
whether it had any connection with the
particular event for which he is on trial
now. I will leave that entirely in your
hands to determine. If you don’t think
it had any connection with it, any reason-
able relationship, why, you disregard it.”
In view of the foregoing instructions to
the jury given at the time of the admission
of the testimony, it was not error, in the
absence of a timely written request, to fail
to charge the jury further what considera-
tion, if any, should be given this evidence.
Such preliminary instructions are not un-
timely or improper. Bryant vy. State, 191
Ga. 686(12), 13 S.E.2d 820,
Judgment affirmed.

All the Justices concur,

‘yoerTq Sues *LLIHM fi

QT6T=9T=g (uoqqng) dS *ey *oatTe £Zz


»

290, Death and the Supreme Court

motion for new trial, and apparently concluded therefrom that
this court should reverse the trial court because that discretion was

* .

not exercised in the way the Supreme Court would have exercised
it. We know and respect the universally recognized rule that the
exercise of discretion never authorizes a violation or defiance of
law. in this case, as pointed out to us, that law is that the question
sought to be raised must be raised before trial and not otherwise.

Not in recognition of any jurisdiction of the Supreme Court
to influence or in any manner to interfere with the functioning
of this court on strictly State questions, but solely for the purpose
of completing the record in this court in a case that was first de-
cided by us in 1953, and to avoid further delay, we state that our
opinion in Williams v. State, 210 Ga. 665 (82 S. E. 2d 217), is
supported by sound and unchallenged law, conforms with the
State and Federal Constitutions, and stands as the judgment of all
seven of the Justices of this Court.

Judgment of affirmance rendered May 10, 1954, adhered to.
All the Justices concur.

This remarkable document not only told the Supreme Court
to mind its own business but virtually told it to go to hell.

The statement in the opinion that the Supreme Court had
recognized its own lack of jurisdiction was directly contrary
to what Justice Frankfurter had actually ruled: namely, that
the Supreme Court had jurisdiction but chose not to exercise
it. And the statement by the Georgia court that it was acting
“to avoid further delay” seemed to Gressman particularly cal-
lous in view of the irredeemable effect upon Williams of rush-
ing the case along. No mention at all was made in the opinion
of the fact that the procedure used to select Williams’ jury
violated the Constitution. And there was only the most oblique
reference to the various types of motions which the Georgia
courts had discretion to grant.

Goode and Gressman immediately set in motion the proce-
dure for having the Supreme Court of the United States again
review the case. Their petition for certiorari told the Supreme
Court that the Georgia court in effect had refused to review
its prior decision and instead “openly flouts the jurisdiction

Portrait in Yellow and White i

and authority of this Court.” Such a “flat defiance of this
Court’s ruling,” they said, “raises a most basic question as to
the supremacy of this Court over state courts on issues arising
out of the federal Constitution.” They asked the Supreme
Court to take jurisdiction and reverse the conviction.

Perhaps to the layman, the Supreme Court’s duty seems
clear; perhaps the quandary in which the Justices found them-
selves seems more verbal than real. But a quandary it really
was. Only soul-searching of the deepest sort could produce an
answer.

On one side, of course, was the indisputable fact that the
Williams jury had been selected in violation of the Constitu-
tion, and that the failure to raise the point at the outset of the
trial was not the fault of Williams himself; if the Walliams
jury had been “challenged” as the Avery jury had been, this
conviction would have been reversed summarily. There was
the further fact that the Georgia court had blatantly chal-
lenged the authority of the Supreme Court and could be said
to have “reconsidered” its prior decision only under the most
liberal interpretation of that word. And then, too, there was
the fact of death—the inescapable, brooding presence of the
penalty—which permeated even the legalistic arguments about
“jurisdiction” and “discretion” and “extraordinary motions”
and the like.

But on the other side was the stark realization that in order
to reverse this conviction, the Supreme Court had to make
liars out of the learned judges of Georgia’s highest court.
Those judges had now stated unequivocally that as a matter
of state law, an objection to the jury panel “must be raised
before trial and not otherwise.” If the objection is raised after
trial, the Georgia courts cannot even consider the objection;
they have no power at all to grant relief. Williams had not
raised his objection before trial. The Supreme Court, if it re-
versed the conviction, would be saying in effect that the state-
ment of the Georgia court was not true, that the Georgia


288 | Death and the Supreme Court
the extraordinary situation. The difference between capital and
non-capital offenses is the basis of differentiation in law in diverse
ways in which the distinction becomes relevant.... We think that
rderly procedure requires a remand to the State Supreme Court
for reconsideration of the case. Fair regard for the principles
which the Georgia courts have enforced in numerous cases and
for the constitutional commands binding on all courts compels us
to reject the assumption that the courts of Georgia would allow
this man to go to his death as the result of a conviction secured
from a jury which the State admits was unconstitutionally im-

paneled.

Justices Reed, Clark, and Minton dissented, each of them
joining in two separate opinions—one written by Clark and one
by Minton. All three men wanted to dismiss the writ of certio-
rari as improvidently granted and thus leave the Georgia courts
to their own devices. Justice Clark’s opinion was the most re-
proachful. He began, “To borrow a phrase from Mr. Justice
Holmes, the opinion of the Court “just won’t wash.’” He said
that the majority had misinterpreted Georgia law, Georgia
allowed late objections only to individual jurors and not to an
entire jury panel. There was no attempt by Georgia to “evade”
the Supreme Court’s jurisdiction. And regardless of what the
Georgia law was or what the Georgia court had done, Goode
had never proven that he had used “due diligence” in discover-
ing and raising the point about the jury panel in the first place.
Minton’s briefer dissent was based entirely upon his interpre-
tation of Georgia law.

And so it was that the Williams case, through a seldom used
procedure, was sent back to the Georgia court for another
round. The Supreme Court accomplished this result by pick-
ing up a point barely mentioned at the end of Gressman’s
brief, looking for itself at the Georgia Jaw, and reaching its
own middle ground, short of outright affirmance or reversal.

Two weeks after the Supreme Court’s decision, the state
attorney general, Eugene Cook, filed a brief in the Georgia
court asking it to reaffirm its original decision. He said that

€ &
Portrait in Yellow and White @..,

the Supreme Court Justices had misinterpreted what had been
told them during oral argument. Leverett had not meant that
Williams’ constitutional rights had been violated, but rather
that if Williams had raised the issue in time, he would have
been entitled to a reversal. Since Williams had not raised the
issue in time, he had “waived” it. And a right which is waived
is not subject to being “denied.” Cook also argued that the
Supreme Court had completely garbled the Georgia law; there
were important differences between the types of motions which
the Georgia courts allowed to be filed late in the case and those
which were always denied.

Without calling for further briefs, and without hearing oral
argument, Georgia’s highest court, less than a month later,
reached its decision. The brief opinion, rendered in the stifling
heat of Georgia’s mid-July, was perhaps the most sharply
worded document ever issued in the court’s history. In its
entirety, the opinion read as follows:

By the Court:

Duckworth, Chief Justice. “The powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.”
Constitution of the United States, roth Amendment; Code Sec.
1-810. Even though executives and legislators, not being consti-
tutional lawyers, might often overstep the foregoing unambiguous
constitutional prohibition of Federal invasion of State jurisdiction,
there can never be an acceptable excuse for judicial failure to
strictly observe it. This Court bows to the Supreme Court on all
Federal questions of law, but we will not supinely surrender
sovereign powers of this State. In this case the opinion of the
majority of that court recognizes that this court decided the case
according to established rules of law, and that no Federal jurisdic-
tion existed which would authorize that court to render a judg-
ment either affirming or reversing the judgment of this court,
which are the only judgments by that court that this court can
constitutionally recognize.

The Supreme Court undertakes to remand the case for further
consideration, and in its opinion has pointed to Georgia law vest-
ing in the trial judge discretion in ruling upon an extraordinary


y

286 Death and the Supreme Court

in the personal domain of Mr. Justice Frankfurter. A rather
slow starter, he calmly launches into an extended discussion of
the facts, problems, and issues involved. As he progresses, he
warms to his subject. His body stiffens; his voice becomes
vibrant, raspy, and even strident; his thin lips quiver, and the
blood vessels stand out on his head. His chair begins to vibrate
like a Relaxacizor, as he bobs and weaves in tune to the de-
livery. He is incensed at the dissenters, protective toward the
majority, and stricken by the delicacy of the questions pre-
sented and by the balance required to be drawn between the
competing rights. It is always a fine performance. And it comes
from the heart.

On this Monday in June, the Chief Justice nodded to Frank-
furter, and the seventy-three-year-old Justice delivered the
majority opinion for the Court. He recounted all of the facts
leading up to the present posture of the case, including the
letters which had passed back and forth between Goode and
the clerk of the Supreme Court. He pointed out that the State
of Georgia, through its assistant attorney general, had con-
ceded “with commendable regard for its responsibility” that
the use of yellow and white tickets violated the Constitution.
The only remaining question, said the Justice, was whether the
Supreme Court had jurisdiction to review the decision of the
Georgia court.

If Georgia invariably prohibited the raising of constitutional
questions at late stages of the case, said Justice Frankfurter,
that would end the matter. The Supreme Court could do noth-
ing further. But a state cannot cut off the Supreme Court’s
jurisdiction by allowing constitutional questions to be raised
late in some cases and not in others; it cannot allow its courts
discretion to decide these questions in some instances and then
arbitrarily refuse to consider them in others. The Justice then
proceeded into a discussion of the law of Georgia, in an effort
to determine whether motions such as Goode had submitted
for Williams after trial were ever granted in that state. Frank-

Portrait in Yellow and White 207

furter’s written opinion cited thirty-four decisions by the
Georgia Supreme Court. These decisions, while not entirely
consistent, added up to the fact that while Georgia did not
favor motions which raised questions at late stages of the case,
such motions were granted on occasion. Or to put it another
way, the Georgia courts did not invariably deny such motions,
they had discretion to grant them or not as they saw fit. “We
conclude,” wrote Justice Frankfurter, ‘that the trial court and
the State Supreme Court declined to grant Williams’ motion
though possessed of power to do so under state law.” There-
fore, the Supreme Court of the United States had jurisdiction
to decide the constitutional issue raised by Williams.

Those listening to Frankfurter’s rendition relaxed. It seemed
clear that the Supreme Court, having gotten over the proce-
dural barrier in the case, would reverse. They were startled to
hear the Justice's next sentence: “But the fact that we have
jurisdiction does not compel us to exercise it.”

There was precedent, he said, for simply returning the case
to the Georgia court for further consideration. After all, the
state’s representative had not conceded to the Georgia court,
as he had to the Supreme Court, that Williams’ constitutional
rights had been violated, and the Georgia court might well
want to reconsider its decision in the light of the assistant
attorney general’s admission.

Frankfurter’s opinion concluded with a highly unusual para-
graph. It acknowledged that a “death” case was in a class by
itself—a case that may call for special consideration and special
treatment. And the Justice virtually pleaded with the Georgia
court not to allow Williams to go to his death. Wrote Frank-
furter:

The facts of this case are extraordinary, particularly in view of
the use of yellow and white tickets by a judge of the Fulton
County Superior Court almost a year after the State’s own Su-
preme Court had condemned the practice in the Avery case. That
life is at stake is of course another important factor in creating


292: } Death and the Supreme Court

courts really have discretion to grant or deny objections to
jury panels even when made after trial, and that the Supreme
Court therefore had jurisdiction to decide the case on its
merits. A proper respect for the delicate balance between the
state and Federal systems was inextricably involved in what-
ever the Supreme Court now decided to do.

On January 16, 1956, the Supreme Court turned its other
cheek. It issued an order which read: “No. 328 Misc. Williams
v. Georgia. Supreme Court of Georgia. Certiorari denied.”
These words, which Williams probably could not even under-
stand, meant that the Supreme Court was refusing to hear the
case further. It thus bowed to the interpretation of state law
rendered by the Georgia Supreme Court.

Gressman was horrified. Fully aware both of the technical
problems involved and of the delicate balance between state
and Federal jurisdiction which the Supreme Court must con-
stantly attempt to maintain, he nevertheless could not bring
himself to concede that Williams would be executed in the
face of what Gressman considered an illegal jury panel.

He set in motion several courses of action.

First, he and Goode wrote a “petition for rehearing,” asking
that the Supreme Court reconsider its decision and decide the
case on the merits. This the Supreme Court refused to do.
However, Marvin Griffin, the colorful, compassionate Gover-
nor of Georgia, granted a thirty-day reprieve so that all ave-
nues of appeal could be exhausted. Gressman next urged
Goode to file in Georgia a “petition for a writ of habeas cor-
pus” which, if granted, would have allowed Goode to argue
the illegality of Williams’ detention because of the white and
yellow tickets. Under rather complicated rulings by the
Supreme Court, a Federal district judge may sometimes grant
a writ of habeas corpus even after the Supreme Court has re-
fused to act, if constitutional issues are involved. Gressman,
in order to spur his cohort on, arranged to place at Goode’s
disposal the services of Morris Abram, an attorney with the

"MY diecamerennetiemsinss Sk 92S PAE et I
hadi 3 E c

Portrait in Yellow and White ~93

American Civil Liberties Union. Goode said that he would
prepare the necessary petition immediately.

But on March 28, 1956, Goode wrote to the staff counsel
of the American Civil Liberties Union in New York:

After much research and some soul-searching, I have reached
the conclusion that any further efforts in behalf of Williams would
be of no benefit to him and almost surely be detrimental to me.
Williams, of course, is in a situation where nothing that is done
can be of detriment to him. Upon this conclusion, I went to the
Georgia State Prison at Reidsville, Georgia, and told Williams of
my conclusion. While he is most anxious that anything be done
which might save his life, he has recognized that when the Su-
preme Court failed to do anything for him on the last petition
for certiorari, he was pretty well through. I had prepared a peti-
tion for writ of habeas corpus, and arranged with the United
States Judge for the Southern District of Georgia to present it
today, but after conferring with my client advised the judge and
the Assistant Attorney General who has been in charge of the case
for the state of Georgia that the petition would not be presented.

Two factors compelled the decision, first the law, as in Jugiro
v. Brush, 140 U.S. 291, Wood v. Brush, 140 U.S. 278, Darr v.
Burford, 339 U.S. 200, and Brown v. Allen, 344 U.S. 443.

The second factor was the feeling that from this point on i
would be putting myself in a position to receive a rather well-
founded accusation of seeking to obstruct the processes of the
Georgia courts by frivolous proceedings.

I am most grateful for your offer of assistance, but believe that
our efforts will be better spent in other and more hopeful causes.
I am forwarding copies of this letter to Messrs. Abram and Gress-
man.

Copies of the letter were received at the American Civil
Liberties Union and by Gressman two days later, March 30.

On the same day, Williams was taken from his cell at the
Georgia State Prison at Reidsville and marched down a short
corridor to a smallish, rectangular room. He was strapped
into the electric chair and blindfolded. There was a brief pause
before the executioner threw the switch. Williams almost spun
in his seat, restrained only by the straps. In a few moments the

0 aR tiie 95 ion +

—— RTE TTI TOS


Aegina

ar tata |

g
é

-

I

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i
"

sister, who took charge of the body

Florida for

it back to her home in

:

pel were with the condemned man
during the last hour. of his itfe. They
were: Rev, J. W. Holley, principal
et thie Albany Bible end Manual
Training ‘Inatitule, Rey. Dan Mosely
and” Rev. JorYan Merritt. Rev. J.
W. Holley delivered « prayer that
was anid by those present to be one
of the miost beautiful prtitions to
the Throne of Grace that: they had
_ When asked by Shoriff Tarver ‘if
he had anything to say before the
sentence of the court was carried |
into effect, the condemned man re-
plied that he desired to ‘thank
Messrs. Tarver and Davis, sheriff

; “mnt far their kind-

Training Institute, Rev. Dan Meaety
and Rev. Joan Merritt. ter, Jf.
4, theties Gafivered a prayer that

i

fast
it

$

THE HERALD, Albany, Georgia, 1-15-1915, page one,

"NEGRO HANGED IN DOUGHERTY JAIL THIS MORNING¢ RANSOM WILLIAMS PAYS PENALTY
FOR CRIME OF CRIMINAL ASSAULT; Ransom Williams, a Florida negro, con-
victed of a criminal assault in Calhoun county, and tried here on a
whange of venue, was hanged in the Dougherty jail this moming. The
trap was sprung at 10:55 o'clock and the negro's neck was broken when
he fell. There was not a quiver of his body after the drop and he was
pronounced dead in a few minutes. Only a few persons, fifteen or twenty at
the outside, witnessed the hanging. These had been given special per-
mits by Sheriff Tarver to be present. The execution took place in the
small corridor at the head of the stairs, where a trap door was pro-
vided for the purpose when the jail was built. The body dropped through
this trap door and remained suspended between the ceiling end BREXRX¥HX¥
the first floor, Within six minutes after the trap door was sprung
three physicians, Drs. W. L. Davis, W. W. Bacon and C, E, Newell, had
pronounced him dead. The only relative of the prisoner who KKKXANERN
attended the hanging was his sister, who took charge of the body after
the execution snd will carry it back to her home in Florida for burial.
Three colored ministers of the gospel were with the condemned man during
the last hour of his life, They were: Rev. J. W., Holley, principal of
the Albany Bible and Manual Training Institute, Rev. Dan Moseley and
Rev. Jordan Merritt. Rev. J. W. Holley delivered 9 prayer that was said
by those present to be one of the most beautiful petitions to the Throne
of Grace that they had ever heard, When asked by Sheriff Tarver if he
had anything to say before the sentence of thecourt was carried into
effect, the condemned man replied thst he desired to thank Messrs.
Tarver and Davis, Sheriff and Deputy Sheriff, for their kindness to
him, He did not refer to t e crime of which he was convicted, but
said he had made peace with his Maker and was going to rest. No one
present knew who sprung the trap, as both Sheriff +arver and Deputy
Sheriff J, H. Davis were together at the time it was sprung. The hanging
sttracted a large crowd# of the curious to the jail, and many of them
witnessed the execution in part through a rear window, the body
appearing in view as it dropped through the trap. Though it was a
disagreeable duty they had to BRRKKAMXXSKKEXKKK perform, Sheriff Tarver
and Yeputy Sheriff Davis deserve credit for the manner in which it
was performed, the execution going through from beginning to end
without the slightest hitch." HERALD, Albany, Ga., Jan. 15, 1915 (1)

} Ain 7 camahie st — ma st . Pome RE are cam cua Baar tea 2 RS Ae ee
Wa Ray aie a ie chet ee, a hay CUBED A a a ty

26 SOUTH EASTERN REPORTER, 2d SERIES WILLIAMS v. STATE Ga 927

ae 926 Ga.
2 26 S.E.2d 926

es aan

WILLIAMS v. STATE,
No. 14603.

Supreme Court of Georgia.
Sept. 9, 1943.

1. Criminal law €=784(1)

A charge on circumstantial evidence is
required only when the case is wholly de-
pendent thereon.

2. Criminal law €=814(17)

In murder prosecution, failure to
charge that to warrant a conviction on cir-
cumstantial evidence the proved facts must
be consistent with the hypothesis of guilt
and must exclude every reasonable hypothe-
sis save that of guilt was not error, where
the state relied on circumstantial evidence
and accused’s confessions.

3. Criminal law €=824(5)

That charge omitted an instruction as
to weight to be given to accused’s confes-
sions was not prejudicial, in absence of a
request therefor. Code, § 38-420.

4. Homicide €=250
Evidence supported conviction of mur-

der.
pe a acer

Error from Superior Court, Laurens
County; R. Earl Camp, Judge.

Robert Williams was convicted of mur-
der, and he brings error.

Affirmed.

Robert Williams was indicted for the
murder of Zennie Lee Holland Williams.
They were husband and wife, but had sepa-
rated. On the night of the killing the de-
ceased was at the home of her uncle.
After she and her aunt had gone to bed, a
fire started in the basement of the house.
They got out of bed and went down to put
out the fire. The deceased was throwing
the burning sacks from under the house.
The aunt testified that while standing near
by, she heard a gun fire. She heard the
deceased cry out, “Oh, Robert.” The wit-
ness did not see the defendant, but con-
cluded from what the deceased said that it
was Robert Williams, the defendant; for
she said that the defendant and deceased
had separated, she having told the witness
that he stabbed and beat her. The sheriff
and a bailiff testified that upon arresting the

defendant he voluntarily confessed to them
that he shot his wife, and told them where
he got the gun and where to find it, and
took them to where he had thrown it after
the shooting, and found it for them.

The accused made the following statement
on the trial: “Well, that week before she
left my house, she wanted me to move from
Mr. Herbert Fordham’s to town, and I re-
fused to do it. The next morning Mr,
Walter Fordham’s boy came to get me to
help him shuck and shell some corn, and I
went and helped him shuck and shell some
corn, and Mr. Herbert said he wouldn’t
need me that afternoon, that he was going
to Rentz. When I got home that evening
she was gone, and she took her clothes and
$29 I had saved up in a suit-case. I got
Mr. Fordham to take me to her mother’s,
to see her, and her mother said she hadn’t
seen her; and I went to her uncle’s, and She
was there, and I went in and talked to her
uncle a few minutes, and I said I wanted to
see her, and he called her, and I asked her

about the money and she said she left it at.

home. But it wasn’t there. And I asked
her about my dog, and she said it was out
doors, and I talked to her again about the
money, and she still wouldn’t give me any
satisfaction. I worked the next week, and
that Saturday I left Mr. Herbert Fordham’s
and went home and stayed until Sunday.
It had been worrying me. I went to Mr.
Allgood’s and bought me a pint of liquor,
and drank it to get it off of my mind. I
went to Mr. Fordham’s and borrowed his
gun and got one shell, and she was going
out to the well, and I shot and throwed the
gun down and was coming on toward town.”

He was convicted, without a recom-
mendation. Ile moved for a new trial, on
the general grounds, and on two grounds
as follows: (1) “The court erred in fail-
ing to charge the jury without request that
all admissions should be scanned with care,
and all confessions of guilt should be re-
ceived with great caution. A confession
alone, uncorroborated by other evidence,
will not justify a conviction.” (2) “The
court omitted to charge the jury that to
warrant a conviction on circumstantial evi-
dence, the proved facts must not only be
consistent with the hypothesis of guilt, but
must exclude every reasonable hypothesis
save that of the guilt of the accused; the
error assigned being that the State relied
for conviction on circumstantial evidence
and confessions made by the defendant

while under arrest.” To the overruling of
his motion, the defendant excepted.

M. H. Blackshear, of Dublin, for plaintiff
in error.

James F. Nelson, Sol. Gen., of Dublin,
T. Grady Head, Atty. Gen., and L Cc.
Groves, Asst. Atty. Gen., for defendant in
error.

Syllabus Opinion by the Court.

GRICE, Justice.

[1,2] 1. A charge to the jury on cir-
cumstantial evidence is required only when
the case is wholly dependent thereon, No-
bles v. State, 127 Ga. 212(5), 56 S.E. 125;
Hegwood v. State, 138 Ga. 274, 75 S.E. 138;
Brannon v. State, 140 Ga. 787(7), 788, 80
S.E. 7; Clark v. State, 142 Ga. 601(4), 602,

Ww

83 S.E. 223; Hicks v. State, 146 Ga. 221(4),
91 S.E. 57.

[3,4] 2. That the charge omits an in-
struction as to the weight to be given to
confessions, Code, § 38-420, is not cause for
new trial, in the absence of a request there-
for. Walker v. State, 118 Ga. 34(3), 44
S.E. 850; Roberson v. State, 135 Ga. 654,
70 S.E. 175; Lindsay v. State, 138 Ga. 818
(6), 76 S.E. 369; Smith v. State, 139 Ga.
230(2), 76 S.E. 1016; Millen y. State, 175
Ga. 283(4), 165 S.E. 226. The special
grounds of the motion being without merit,
and the verdict supported by the evidence,
and having received the approval of the
judge, the judgment refusing the new trial
is

Affirmed.

All the Justices concur.

° 4 KEY NUMBER SYSTEM
is

ENS6T“EZ-OT (SUEMe]) UOSTLy OYeIY ETSiceN peqnoosyzosTe SoZ SHoRTQ *4deqou “SWVITIIM

A new one —

Wesley Walker legally hanged at

Colquitt Ga. on b-(9-1872 for murder.
A neqro. No further details.
Per The Augusta Constitutionalist 6-28-72 1+1

? LEWES Watson 6 or.
" MABELLA YesTeras¥.

He Said Be was Ready te Ge--Twe

0S@ OFF AT

stered | asiratgbef orward av'l earnes!
weener, He confes-ed to having kill-
ed Jack Curry, butanid that Curry bad
brutally beaten his (Watsor’s) wife
ascithrestened nis life several times,
anbunder the pressure of the iidignits
aol theihreats he had shot Curry. He
sacdbe pad sought che Lord for for:
@iveness ind tad fouid if sad was no!
abaid tt die Darieg the reporter's
curveran jon with him, two of Wat:
son's oe cro friends cam? ia to sheve
nin. Oveof them auplied the lather
ta vis bs ml and the other use. the ra-

‘he. Tas job paving been cucanlered,
Rev. Jordan Merritt, the doomed

rr

TIDE TO TM GALLOWS.
As the procession moved down the:
‘Oauway, in tront aud vehined ihe wag. |
m bearing the prisoner, two or there
vucdred yarda in either direction, was
Curious audeagerthoung sou seem. |
‘ag toaprreclate the solemults of the
igeaston, while oLhera were joking aid
‘aughing as if they were doing aome |
hing more pleasant tian following a
nan to tre scene of an ignosainious
feath.

AT THE GALLOWS,

The procession arrived at the plave
wf execution at 11:15. The «pot on:
Thich the gallows stood is a baif mile
West of the court house, about one

“man's spiritaal adviser, was admitted
Sand made earuest inquiry of tie pris-
-on-r nate his hopes of heaven, which

nomena | weee answered in the same mumer As
Lewis Watson, co'ored, publicly ex- bh: al exprebsatl: himself to the re-
Pialed te crime of murder at.Isabelia, PO of  Atthis juncture the prison-
W orth county, last Friday, by yielding  @°'8 burial «uit was brought in which
up his own life on the gallows. |e at onve proceeded to don, talking

aundred yards from the public road }
ind ina hollow which made a natural ;
amphitheatre, Around was an open
diuewoods with now and then « stubby
ylack-jack oak, which In no way + fect |
“a the view from either direetion
Around the gallows # rops had been |
stretched, and Into this clrele the pria |

Theasand People Witmess the Exz-
eusiou—Se-mee at the Galiows.

At 4:45 o'clock that moruing
a Ngws axpD ADVERTISER reporter
lft for the scene of the execution by
the B. & W traia, having purchased a
iticket for {sabella station.

Arriving there jast as the dawn was
| breaking, he climbed out into the
| murky atmosphere, ana having sur-
| Veyed the situation, and having been
} uvpleasantly impressed with the cold
, arid chverlea3 appearaace of the still
‘Sleeping village, desided no: to step
‘there just theu, aod suiting the action
‘tothe thought, sprang upon the train
: just 4s it Was moving off and went on
‘dowa to Sumner. Here the
 firat man ‘he met was
Editor Allen, of the Worth Local,

/ who took him ion hand and extended

him eyery courtesy for two hours or

, More, Or until the west bound way-

‘Brean Neisou cams in and placing a

he while to those in the cell. Che cell
was very dark, and the prisoner was

given light to dress by by matches

fricken and held by those around him

“anit the arrival of a vary xickly lamp,

whose ba'eful glare made the glvom of
he ce!l nore oppressive.

At 10:45, Watson having completed
us tollet, SoerlifF Cox entered the cell |
wel read the death warrant, which the
orisouer heard without the quiver of a
‘puse.e, A delay of twenty minutes
shen envayd, when Deputy Sheriff

fradelet on the prison-r's left wrist led
alin out of the jill and forth from the
fail yard. Atthe gate of the Jsil yard
e001 a two-horse wagon fo which was
De prisoner's coMn, A dense throng
empoiel of two thousand people, of
youn races littleand biz, old and young,

ompanied with many contortions of

doer with hia spiritual adviser, the
sheriff ant deputy sheriff, tne phyai-
sians, the guards and newapaper rep.
vesentatives only were admitted. As
390n as the guards had bee placed
regnd the inclosure, the prisoner with
Meputy Sheriff Nelson mounted the
scaffold and Watson commenced to_
make a statement which was no
statement at all, bat a
ervid religious exhortation, ac-

sody and face. He did not allude once
© the crime for which he was about two
ile, except to entreat his hearers to be
rarticular and let his case be a warn-
‘ng to them, and blessing the Lord for
he peace of beart which he felt. He
‘ontinued thus for a half rv hour,
when he was made to deacend from the
‘eaffolu, aod then Rev. Jordan Merritt
ff-red up an aloquent praser for the
weifare Of th? prisoner’a soul and for
she souls of the entire gatherlag.

Mood srowod the gate and walted with
eager curlosity the a; pearance of the
Jommed man, At 11:03 Sheriff Cox,
Deputy Sheil Nelson, the reporcer
sad the prisoner got into the Wrgon on
che seat of which sat wwo white farm-

Chis was followed by the slinging of
uymn in which a large number joined,
and then the sheriff puta bleck gown
an the prisoner, who then shook handa
with every one in the Inclosure and with
several outside. The cuff was then
‘aken from his wrist, and followed by

freigut came along, when dreading a
'O ve miles drive to Isabella through
» the cold, the reporter boarded that
i train aod returned to Isabella station.
On bovrd were a large nomber ot

), Persons from the lover section of the

_— ‘ teln tt avity of 18. Kigh- che Sheriff and Deputy Sheriff. ha aa-
ihe inty, 2n route to witness the execu- ; on ie ead oan lng — cae ‘ended = poy with hr unfrltering
ton. Arriving at the . ; ‘ie om a step for Lhe last time. He was given
' porter a soa oat oe the re “Hes grid ety Kins then took postition bay vilege of another short talk.
pany. wi k , in com- whbid the wagon ang then cominenced which was but a renewal of the prev-
Dany wi-h severa gentlemen from Ty he ova exhortation, whlch he chomed by

Ty, among them Happy Jim Fora and

nanking Sheriff Cox and the People of
i Depary Sheriff Gree: Neleon, proceed-

PIoL bey rs Gallows, isabella for the kindness of their treat-

od {0 foct ic to [sabelia Court House, a “ (ne vie ton ek ‘nee = Sor tien Und bene _ Recaro’
distance ot three miles. Arriving there =“ O# 8S, In trout aad vehind the wag- raed Behind bim, adja the noose

0 bearioy (se praoncr, two or three

tie repo-ter lroamediate} roceended
yP fo died yacds in either direction, was

investiy te a box o: potted ham, a
Sranll ploce of cheese, some crackers, | Uogerus aul eiger beeen
Ss hivhne washed down with 9 glass | | ag & eprrectate the aniem alty of the
0. glaze” ale, this be'ny the Ouly bey-| | wammbon, while cher were joxiag aud

erage omaluable. A stale ot supa | | atighing aa it they ware doing some-
. s
cane followed this re, ast, and while en-

/ WIAg@ More Peasant than following a
Koved it “chawlig” it, he Tal against an = ae vires ignorainlous |
Ship - : ° } so Ls . !
Shor (ox and was Immediacely tak-) | eae

ind placed the black Cap over his head.
he two officers then descended from
he seaffold and Sherif Cox then walk
“Og round to the east side of tie seas.
‘old: 7 ed out:

“TL #3 up, Lowts.”

= yo, everybody,” ssid the
‘foomed* nan, and then as quick as
‘hought, Sheriff Cox putled the niger
“he trap gave way, tha rope ‘
“here was a dull thud, 2 few horrified

On tothe jail where rhe domed man | At THE DalLLows, ¢xciamations from tha crowd, and the
Was watng, The procession arrived at the place wdy of Lewis Watton huag suspended

Bein sdienite 1 - of rkeeu toa avileis The “pot on et ween heaveo and earth, convulsive-
_ elie et tothe prison -r’s cell, white a. ae ss ‘ve his body contorted two
the reporter subjccced Watson to a Peisie tae aatioms stood Is a haif mite | aM and then bs ® *

West ef che eoueg house, about ove
searnbraud yarite from the public road |
‘eon @ hoOowW whieh made a natural |
aa hithe yore Around was an open |
deeWoud. with now and then stubby
‘tw ohe dae ak wth de nis Sn

WEEKLY NEWS AND ADVERTISER, Albany, Georgia, Dec, 13, 1890.

a

Vim ber yj interrogations, which he en-
seered i iasiranyhee ‘ward an-l earnest


der he bore a spiendiu repptavion. me
came to Worth county “from North
Carolina three yeats ago, and was pre-
paring to return to his hRative tice
when he became involve | inthe trouble
weich ended with his life.

The guard was composed of men 1)
acknowlelged grir, and an aitempte: |
rescue of the prisoner wou'd have oi
sulted disastruusly tothe parson ma “|

it.
i Snoritt Cox discharged the unpleas- |
ant obligation: «.f the execution —_ |
the calm courage for which he is noted. |

Nhe reporter returned trom the cpene
of the execution by way ot Willing-
ham, where, owing toa considerable
delay in the evening train, he was per-
mitted to look over Alford & ime
bizsaw mill. he ‘imbder for this mi!
is being hau'ed over their tramway
seven miles. his plant ard its ay-
purtenances ls one of the most yalnahble
in Georgia. ‘Lo the Mesars. Altord and

to Manager Johnson, the reporter ts
indebted for many c»urtesies. ‘

AS & result of thia trouble y te
Watson's wite a whipping, striking her
in the tace with a hoe handle.

The progieners of the mill hearing

— troub per ween the pe basalt
offered to separate them ving one
of them a house in a er quarter,
provided they would keep apart and
sliow no intercourse between thelr
families.

Watson accepted the proposed peace
offering and moved his family. But
he seemed to brood over his troubte
and his passions overcame him to auch
an extent that on the night of the 26tb
of September he sought the quarter
where Curry lived, carrying with him
& shut gun Joaded with buckshot.

As he neared the quarter he station-
ed himself in the pathway along
which Curry was obliged to go as he
Went to his work. As the asgas<in’s
victim drew nigh Watson raised his
$10 and fired. Curry, expecting such
an attack, had his shotgun on his
shoulder and as he felt the lead driy-
ing into his vitals he leveled his weap-
on and fired at the fugitive.

Che shots brouzht parties from the
quarter near by who found Carry
prostrate fram his wound, but e¢tii!
alive. They carried himto his house
whete he soon died, but on his death
bed told of the murderous assault made
on him by Watson.

He was shot in the side, the full force
of the shot being nearer the front of
the body than the back and after his
death thirty-eight buck shot were
picked from the wound.

Watson claimed on trial that Curry
shot first and that be simply shot tu
self-defense, but as Watson’s wound
was in the back he necessarily received
it while ranning and atter he had shot
Curry,

Watson was tried before J udge Bow-
er, the court apprlated lawyers for hia
defense, he was given atull, fair end
impartial trai! and the jury broughtina
verdict of guilty. Tue sentence of that
verdict was carried out and Jack
Curry’s murder has been atoned
With the life ot his assassin.

NOTES.

With the exception of a few tears
shed during his first exhortatioa
on the gallows, Watson did not
beiray the slightest nervousness. Even
a6 he stood with the noose around his
neck he was as calin as if no thought
of his frightful doom had ever ovcur-
red to him.

He waa not an unpleasant-looking
negro either, but the cOutrary bore
the appearance of a good negro, and It
ig said, that up to the time of the mur-
der he bore a spleadid reputation. He!
csme to Worth county from North i
Carolina three years ago, and was pre- |
paring to return to fils native home |
when he became involve | in the trouble |
wich ended with his life.

The guard was composed of men of |

t Par 5 es — as i i or mae

erlinnmindend vets



r*

WELLS, white, hanged Atlanta, Gae, 7-21-1902 - CONTINNED.

OXXK
of’ Frederic Pierce, a blind man, who lived with his wife and family at 76 Yonge St.,
Wells was this morning hanged, The fact that Pierce was a blind man had much to do with
the sentencing of Wells. The crime was committed about 5 o'clock on the afternoon of
February lst, and within half a block of police headquarters. Wells was a wood yard
man, and had for a number of years been supplying Perce with wood and coal, For some
time before the killing Pierce had been trading elsewhere, and when Wells met him on
the street, hes topped him, The men stopped on the corner of Decatur and Pratt
streets, where they stopped for some time, Pierce was accompanied by two of his sons,
one about 1); and the other about 11 years of ages Wells asked Pierce why he had stopped
purchasing wood and coal from him and this brought on a difficulty, in which it is said
that Pierce struck Wells in the head with a stick, Wells had, in his infancy, been
struck in the head by a drunken relative, and his skull had been fractured in three
places, so much so that there was still an indentation in his head, The blow which
pierce struck him seemed to craze him. Wells walked off a few steps and put his hand
to his head. His hand felt moist and he looked at it. It was covered with blood from
the blow struck him by Pierce. Then he lost all self-possession, He rushed at Pierce
with an open knife in his hand, and before anyone could interfere he had stabbed the
blind man in the back, Pierce fell to the sidewalk ina dying condition. His small
gon seized the stick with which the blind man walked and attacked Wells, dealing him
several severe blows before he could be stopped, Wells made no effort to escape, and
was arrested and taken to police headquarters, where he was incarcerated. Pierce was
at once taken to the Grady hospital, where, despite all efforts made to save his life,
he died on the night of February 2nd. The coroner's jury found that Pierce came to his
death at the hands of Wells, and recommended that he be held for murder, He was
qyndicted by the grand jury for the murder, and on trial was found guilty and sentenced
to be hanged, His case was appealad to the supreme court, but that highest tribunal
decided against him and affirmed the decision of the lower court, refusing tog rant a
new trial. Wells was again taken before Judge Candler and was sentenced to hang on
July 2lst. A few days ago the matter was taken before the pardon board, in an effort to
have Wells! sentence commuted to life imprisonment, but on last Thursday the pardon
board decided adversey to Wells! petition, and Governor Candler, when appealed to,
refused to overrule the decision of the pardon board.

“FUNERAL THIS AFTERNOON .
"After Wells' body was cut down it was removed to the undertaking establishment of
Hilburn & Poole, East Hunter street, where the body was prepared for burial, This
afternoon the funeral will take place at the Nancy Creek Primitive Baptist Church, 15
miles north of Atlanta, and the last chapter in the tragedy that saddened two families
and shocked Atlanta will | then be written, Both the slayer and the man killed were
married men, and each had six children living. Only the immediate family are attending
the burial this afternoon , About the undertaking establishment policemen had to be
stationed to keep back the curious crowd of morbid spectators," JOURNAL, Atlanta,
Georgia, July 21, 1912 (1*7) Photograph of Wells, Pierce and Pierce's son on this page.

Sentenced to hang ".,.received his sentence coolly, his head bowed..." JOURNAL, Atlanta,
June 23, 1902 (7/2e)

— . ates a laa
ppp ae

been made and six children had been left without a father. Wells faced death as
bravely as ever man has, All the morning he was smiling and happy. He slept well
last night, though only for about 6 hours. Rising early, he had his breakfast a 7
o'clock. fie did not eat much, All during the morning friends called. He had a
pleasant word for each and shook hands with ally telling them to meet him hereafter,
Shortly before 9 o'clock Mrs, Wells and four of the children, together with other,
relatives, called at the Tower, For more than an hour they were with the husband and
father, The oldest son did not come. He sent word that he could not bear: to say
farewell, They talked and wept together for a long time, and Mrs, Lizzie Henry,
Wells' eldest daughter, offrered up a‘ prayer Wd# as #H# was never before heard in those
prison walls, ‘Oh, God, save father's soul today,' prayed the hearbreaking daughter,
and those who heard had to turn away to weep, All said goodby and the wife was the
last to leave, and again and again she embraced her husband and left at last, weeping
bitterly, An hour afterwards Mrs, Wells returned to say goodby again, She remained
with him only ten minutes then and left for home to await the news of her husband's
death, There was one friend who did not have the opportunity of telling Wells goodbye, :
Willie Biggers, who was a cellmate of the dead man from the: time of the killing of Simp-
son until the death watch was placed on Wells is today himself on trial for his life,
He was unable to get to see his friend, The two had cheered one another during the
lonely hours of confinement. Of different ages and from different walks of life, the
two had come to love one another strongly, meeting on the common ground of law, one a
convicted and the other an accused murderer, * Not being able to see ‘ells, Baggers wrote
him a farewell letter, The dead man gave it to his wife as the only legacy he had to
leave, and to her it is a sacred one. : AA ae 6
aries ! "PRERARING FOR EXECUTION. .
"Preparation for the hanging began early at the jail, From the time Wells arose, until
thé officials cemased to admit visitors, there was a constant stream of people, who
wished to see the condemned man. ‘Many were friends and wanted to say goodbye, while
the great majority were those there from curiosity. In front of the Tower gathered a
‘crwod so that pdlice officers had-to-be sent for the clear the street. Among the many
to call on Wells there «was not one more welcome than an old negro whom Wells had known
al} his life,* The old time slavery darky, Uncle Richard, had told him stories when -he
was a boye The ld negro is a preacher and had prayed for Wells yesterday and today. —
This morning he remained with him un til he was led to the execution room, but could
not accompany him there by reason of the court erder, though Wells had begged that he
bé allowed to go. At a quarter to-9 o'clock, “ells was shaved and took a bath, He then
put on‘his burial clothes, a simple black suit, furnished by the county. Aftér
dressing he was carried to the-condemned cell, which is on the 5th floor, immediately
next to the death chamber. There he prayed and sang with the jail chaplain until time
for the execution, After his flamily had all told him goodbye and only a short time
pefofe he mounted the gallows, Wells was seen by a Journal representative, The man was
s miling and chatted pleasantly for some time, Asked if there was anything he wished to
sqay, Wells replied: 'Yes,:< I should like to tell all my friends goodbye, I can't,
of course, do this, so tell them.for me through the paper. Tell them all I hope they
will meet me in heaven.+ I am feeling better.today than I have in weeks, Somehow all
my burdens appear to have been lifted. It has been mighty easy since I made my peace
with God, Tell everybody I say meet me in heaven,' |
: : "PIF ABS WITH PRISONERS, ae
"Yesterday, Wells' last day on earth,-was spent in receiving visitors and in religious
worship. Mrs,«Wells and a number of the family were with himthe greater part of the '
day. Mrs. Wells was present at the religious seyvices, held on the first floor of the
jail at 2:30 ofclock when Wellscin a dramatic and emotional freney called ypon the
prisoners present to repent and be saved, Influenced by the appeal of the murderer’, t
who stood on the brink of the gravecand pleaded-with the other prisoners, a number of
the men present. went forward and gave their hands-to the preacher in &oken of a de-
sire to be saved. Among the number was Millard Lee, the murderer of beautiful Lilla
Suttles, who was also under sentence-to die today on the gallows,.but whose neck was |
saved by the case “being appealed to the supreme court, Lee appeared greatly affected
and the tears fell freely from his eyes as he took his seat again among the other
prisonerse e@a0eee * , |
, "BrORY OF THE CRIME.
"The crime for which “ R, Wells paid the death sentence was one of a peculiarly re-
WAX volting character, despite its somewhat extenuating circumstances, For the murder

Seems gee

ei
| tcknowledgement of Wells, ' 48 tho”

i

Urged by’ sume hellish fiend, in’ Jess
than. threegwreke Fav {hereontest is. by:

Bi intteneaked arith alls thetFadecrous

z ab se tha toi boiling Malice could sug:

i

i Bester, Dig. pharges, and “abuse ‘as
“my might: “6 e expected, drew a a reply from
Uap Perry, SA ter “these ‘correspon,

sence hag” proceeded to vSlickt an ex.

stent, ss of’, the. Jbartwof. Wells, RS, to.
thteaten’the @ Mos Serious % cons: quen-
ces to Capt.’ Perry, “eithek. Wishing to
gleave him Without evidedce in.case of
“4. private dssassination® 7 Ors TQ. ‘deprive:

his Rimily of. their, Feputation, or.

dreading the Fesentment: of a etriasd

of Pefry’e whorit He knew to Be a“fe

‘Soltite man, whose nametin the course
of. the; “Correspondence. chee had; used:
with. Bredt.deal of, freedom, &, ‘Who.

_ts at.thig time absent, or Tater: from,

jAlk-there-reasons together; he had re:
‘solved sto: ‘destroy. all his” lettersto
iCapee Po ands for. this purpgse dethand.-
0 GFihint allsthe- sletterg- -ol- -thes-cor-:

* Enen, v7 ells alied a blow at, me Read-
of Capt. Bi With thes clon “which
| brought him to, he vor, and” ‘before

him three’ wounds with his’ eh, two:
in the breast, One of which was plan.

‘cing, the other penetrated’ his” chest.
| find one tnor near his loins» supposed

“distance of" 3d or 40 yardsalone the:
anhe. *
street, in. which , distance. he. gave.

he could. retaver,. Wells. -Had given

to have been as deen. ag the Jength . of
the. Weapor. | Capt Ps then succeeded |
in rising,. and attempted - lon escape,
butt. Wells, to make sure his. ‘design,
held to his back from’ the house’to the

hire’ Six ‘other., wottds three, in: zhis.
head and. heck;' “and: three i in: the back.
These in.his® back. entered” his’: chest

‘and penetrated" his.  laogs.” Af this.
(tinge, the cries of his, | ily, and. his
‘Own cries~.ch.. Taurdery Rad: jbrought
some of tha. citizeas't6: hig" ass stance ;:

| (fowsthere: were. none. .near’ hfe house:

' but females, . wha, ga. the Wwhele,'s 29 «:

| Sassination. ig) When asheyn Were, about’
tosintertere, the. ASsassinudrew.. trom.
hi 8 gide'one of his pistolsvand" bound’
himself with ‘po'oath zthiat® he. would,

ckillany.. ‘Manswha should . attempt; 0;
‘preéxent himé from? Sexecnting.: ahis dees).
La. Eni thts! sitiiation the, Mdtter ‘tested. sign-upba, the Victims By: Ahis, ime;
: “Until the 29th-of> August whew: Wells: ; howeversthe, e partics.were Visengageds
“cdme to-the hoiise: ol Capt: By: armed. and apts Featigsited inte the. arms:
Witlt-d@ shot Sin aff thtes: large’. pis- of Mr. Jewi Haass, snd. exclaimed, :
tols; all Well changed) i bhoad., dirk. AB am~a i cead | “rane” ae W hile ithe
recently groin ob. both-Cdges,:3.ur ibis ou. Wasiapouting fcomshismuth,
10 inches long. 4. large green, hickory land Hoseivand the hicesugh's ‘of catty :
‘club; and two large pocket. “knives! vas upOR him. the blood’ ‘thirsty: hve
Thus’ Well e4uipped: for the execution : walked" round bint, and eRulted i Ie yf
‘of his’ diabolical eerighs he.-entered tog.dang the work htt. sod, eae
the house df, Capt. Buwhom hie found cal,” fayche, called BU Cane nh
inthe frot toni with hig family in: was: thety: aupported: back: coisa: house ,

‘Fespondedte, which’ Was. tefused,

DANS ‘Aye Pe
the act of tocking his hild to, sleep whetevhe. expired’ Jnolestith hact
ina ‘thal, = Wells, Nail gun ii ag Migutes.” His Jase” word S. AG, ‘his. ielend

S297) pee:

ae barafnurdeveds. bug: deine
demanded tHe. Papers 3. but. Capt. PL WEregt) : 1

Arerens cofe the Undueiise- Wells..de-. merce takeane fankl “5 Sunt
Signed:.to make. of.them, 5 infornied. c' oars $8
hich that. he® could, Not. ‘deliver them. st98: dong. he: breathed vc aut, his. aukio

Yea hoses ™ gice.
up. “Upon thie Tecciptol this answer, ‘Piaisea.toi that God to whose. s
he stepped. Kack,far-. s€dough.: AOwmake

hel hadig devoted, ihe la Jactex,, ae ak
sAl Fe. Bas ¥, Sure age Ray eo Ser Ake |
“sure his putpose, presented: his, un, pt os : 3
and with’ vengelul itddnesg attempee-t | roy Bt secins osc ubeannn HERE |
to discharge its bootents intothe body’ sbrongghtiwit Hiceds Mi ableicol weaastl
of Capt. Py but: to | the. astonishment Bihar ac Shot gence tae Se
| of : “tfie Furious tiger it missed ‘fire, hosningue eultaipne in they arde
Capte: Pehftér the? ‘murder fpanetidm.
mie Balilic, thteatsiagaiast: Mre2R.: ‘and.
‘the fa mily.e: thatihis.design-wasl thyigs-*
sadsiqate’ the? whole" famijy; lopJat: ma
tha? pheads of sited PCy se Nee yh. ad *

as Val ae Bu nity Eb ae as,

< eeee Ss

ee.

- +

——

a

Pw,


a

“ SaLbii, (Clark Codnty, Geo.

W ELL3, Thomas, white, hanged Clarke

) Scfit. 2, !
+ SHORRID MURDER. |

- Upon every important subject, the
public: mind is aptto receive. impres-

sigs, cisher favorable’ or unfavora:
ble, ss the evidence of the: cise may
be. true or: carherwWine. :

“The ‘citizehs » of Salem therefore
‘deem ‘itexpedient | to’ ‘lay’ before’ the
public,” Without any comnfent, ’ the |
circumstances: of the murder. ‘which
Has lately taken. place in that village.
—a murder unparalleled in its nature, |
horriblein its* perpetration, hellish in
its designs atid highly important in its
consequences to society.

The statement is founded chiefly
-unon the conlessiGn of the murderer,
“atcer his apprehension. Previous’to:
the’ commencement ‘of the onfor:u-
nate dispute, “which evetituated in the
| assassination of Cupt. Péter Perry, by.
Thomas Wells, there had existed be-
tween themthe fanst intimate friend: 5
ship, which continued writil the month
ol Jue last when Wells instigated by
‘some false suspicions, commenced
‘an abusive c¢mmunication, which ‘he
, contintied to. .the most unmanty,. ex:
tent.*? In. the course. of the” dispute,.
| which was. carried. on “thie hy.” in wri |
ting,; Perry; was ‘chat ged s with the com. |
| iniasion of? trimes of no ,ordinary +
magnitudes: | He? ‘constantly. avowed:
his: innocence, , and’: srather, than’ Tose:
the. friendship of. Wells, proposed — to"
take, upon himsélf”: any, trouble” to ¢on”

“vince his aécuser that’ ivihe® “charges. al.

e''ai+e'-

Bate NC
Mov.

' ments, | which was a
Ober means “of. priaging,

Co, 4: Ga,

: Id.|
Bat, nothing. aon
le Weilsy: excepts:

) ANE “nowled gees|
urage sok - ce fused. SAGEr,

to’ in
een fesor eat re

_egneiliation ai beh re or
hyain,: W ells: was: edato® persist

wangrese! ve Pat

he’ him?
Died eve Ae “gira
‘Perty) oncinvitation He |
oWellsi in: the ihe we: \
dv". to: gt : ae, he? peat
pea es are oe eohece HOG
pier sae de Hae py eels.

rr. ani hey un re fuel oW ells
reed that the un jede
shoul whe : Laban asl 33g ement ‘

ce that, as

Bs a

erro
aout hel
vechis ayy P te had done, |}
Years grract:a the (agro wel
TE? ay ‘had siiftered sor} tor
‘and xhat! he ¢, SOTFY

as
-
oe
=
°
a
c

sirgand thay, BE ae
vgo-have: happence hat .
Lt: may be ad: nea .t

=
a
3
=
2
=
*S

1821.

a
a i

, 3 ae ae ¢
che'did ‘ant pretend papicion®s.: Buty

hose> BU"?!

gon for. eee eectinG
Pile grew (0
mu ma

oe

ge

ede

Portrait in Yellow and White

A shot! It seemed incredible.

Broad daylight on a Saturday morning, and Peters Street,
winding its way through a busy commercial area near down-
town Atlanta, teemed with shoppers. Cars and trucks roared
along the four open lanes or backed carefully into the metered
zones bordering the curbs or simply double-parked while pas-
sengers, with surreptitious glances here and there, hurried in
and out of shops. Pedestrians crowded the sidewalks, made
difficult for walking by surfaces of imperfectly fitted, octa-
gonally-shaped cement blocks, and children scurried from
sidewalk to street and back in a flanking maneuver around
their envious and wistful elders.

At the precise moment of the shot, the sidewalk in front of
Simon’s Liquor Store was miraculously clear, like a sudden
silence at a crowded party, but beyond the walk a ton-and-a-
half Chevrolet truck was being angled into the curb. The four
stovewood peddlers in the truck—Mr. Derrick, his son, and
two helpers—looked up unbelievingly. Their penumbral ex-
periences, without excess or intensity, had left them totally
unprepared for a pistol shot in the daylight of a downtown
street.

When they all looked up, the inside of Simon’s Liquor
Store was plainly visible. The building was only thirty feet
across, its entire front fagade taken up with two large, square
windows that flanked glass double doors. An unpaved, clut-
tered alley, no wider than a truck, skirted one side of the

Portrait in Yellow and White 259

store, Jacobs’ Department Store bordered the other. They saw }
a single room with innocuously plastered walls ringed on three
sides by rows of shelves carrying whisky and wine. A counter
ran from front to back, its only ornament a cash register at =
the far end. :

Two men stood, one on each side of the counter—a white man Fy
whom one of the peddlers recognized as the manager, Harry a |
Furst, and a Negro. The Negro wore brown khaki pants with i
large pockets on the sides. He held a pistol in one hand and |
was reaching toward the cash register with the other. As th
Negro scooped cut the contents of the drawer, Furst bega
sliding down behind the counter, gasping in protest and pai
and fright as he went.

The men in the truck were too astonished to react. But next a
door, Sidney Jacobs came to life like a threshing machine. He °
heard the “explosion” from the back of his department store, =
ran out to the sidewalk, looked in at his neighbor just in time @; §
to see the Negro with his hand in the cash register, and rahe.
back into his own store. The dutiful audience of stovewood g!
peddlers in the truck continued to watch as the Negro finished ag &
rifling the register. They saw him swing around and dash out
to the sidewalk. He turned right, passing directly beside the Y
truck, and turned immediately to his right again, and into ee
alley. Pon

The elder Derrick came to life to the extent of hopping out c+ } |
of his truck and squinting at the figure retreating in a peculiarsy | |
fashion up the alley. Jacobs ran out of his department store~~|
for the second time, screaming “Stop that man.” Since no one ei
seemed to be taking this plea very seriously, he entered thaw
liquor store and looked at Furst behind the counter. Jacobs! P ‘|
was too excited to tell whether the liquor dealer was aliveo |. |
or dead; all he comprehended was the blood on Furst’s chestyat .- H
just above the stomach. Jacobs yelled, “Mr. Furst,” but got |
no answer.

Almost at once, Jacobs was joined by a breathless Seymour

a)

eB SB

o4tn

a pe ee ee ee ee ee 2 beta ne otro lags ORE Be GEE! SOBER, CTE: » Milnes 508, 23 eet
od = 4 ge tse2s pore a

,.


> @
“

60 Death and the Supreme Court

7 ts Sic the owner of the liquor store, who had seen the
compotion from a block away. Jacobs hardly had time to
observe superfluously that Furst had been shot when Zim-
merman, thinking he might apprehend the thief, dashed out of
the store and up the alley for a short distance. He caught a
glimpse of a fleeing figure but immediately lost the on
Jacobs, left behind, pulled the burglar alarm.

In the meantime, the thief, confused, frightened, his senses
all converged on the one thought of escape, was running with
a peculiar effort, part skip, part stride. He covered the length
of the alley in seconds and dashed out into Walker Street,
where a car careened to avoid hitting him. He cut diagonally
across to a filling station and passed within four feet of a mer-
chant who was standing on the sidewalk. The merchant had
seen people run through the alley before and paid no par-
ticular attention until he noticed that this man was holding
a pistol in his right hand. He watched the man turn into
Loew’s Alley.

Loew’s Alley began its tortuous, unpaved route beside the
filling station. What had been a busy commercial area with
thriving streets abruptly sloped off by way of this alley to
become a borough of small, wooden, unpainted, dilapidated
Negro houses, each surrounded by a cluttered and forsaken
yard. On one barren plot stood a broken chair, listing badly
to one side and nostalgically rocking in the gentle wind, while
on another lay three tires rotting in the dirt. Bedraggled
roosters squawked and strutted from one side of the alley to
the other, seemingly homeless and yet perfectly at ease. Tin
cans and broken glass littered the area, and a screen door hung
loose from a post.

This was the path which the thief chose, dodging past the
debris, scattering the roosters, trying to gauge his footing on
the craggy, hard-mud surface. But he was still daceaansty
out in the open. As soon as he could, he abandoned the alley.

An elderly railroad worker standing on the back porch of

Portrait in Yellow and White 261

his house on Trenholm Street saw the thief running toward
his house. The thief, his face pinched with fear, slowed to. a
fast walk, not unlike the disjointed swagger of afoot facer
near the end of a marathon. He jumped a ditch and skirted the
house.

Two men and a girl were standing across Trenholm Street,
chatting amiably in the noon sun, when they saw the Negro
approaching. Something about his appearance suggested to the
girl that she ask him what he was doing, but then she noticed
fe handle of a pistol sticking out of his right trousers pocket,
and she decided not to bother him. He passed between two
houses in the direction of Hills Avenue.

The thief emerged on Hills Avenue and turned right, loping
along the sidewalk. As he came into view of Number 317, a
single-story frame house with a screen porch across its front,
he was observed casually by a Swift & Company employee
who sat on the porch. The interloper turned left beside an
abandoned church and disappeared in the direction of Mc.
Daniel Street.

The character of the neighborhood was changing. The
houses, though still small, were more individualistic and styl-
ized, and some were newly painted. A few blocks away was a
better-class Negro development with two-story, four-family
stucco houses, and still farther along behind Northside Drive
were four Negro colleges.

The thief approached McDaniel Street on a line between
Aunt Fanny’s Bargain Store and McCord’s Sandwich Shop.
The latter was a tiny whitewashed affair with a counter, two
booths, and the inevitable Coca-Cola signs in the window.
Willie McCord, the proprietor, relaxed and rangy, generally
bestowed his slow smile and inert speech on customers from
a stool beside the ice-cream receptacle. On this particular
morning, however, Willie had roused himself and was taking 4
smoke out back of his shop when he saw the thief approach
from Hills Avenue and watched him pass within a few cet oF


gegee

830 Ga, 51 SOUTH EASTERN

Steed, was cut and bleeding at the time
he entered the taxicab, this ground of the
motion is without merit.

5. The fourth ground of the amended
motion assigns error upon the following
excerpt from the charge of the court:
“Gentlemen, if from a consideration of
the evidence submitted to you and from
a consideration of the defendant’s state-
ment, giving it such weight and credit
as you think it is entitled to receive, and
applying thereto the law as given you in
charge by the court, you believe beyond
a reasonable doubt that the defendant,
A. C. Williams, in the County of Fulton,
at any time before this bill of indictment
was returned into this court by the grand
jurors named therein, killed the person
named in the indictment by cutting, stab-
bing, and wounding him with some sharp
instrument to the grand jurors unknown,
that at the time of the killing, the defen-
dant was in no danger from the person
killed, that the person killed was not
committing or attempting to commit a
serious personal injury on the defendant,
and that the circumstances surrounding
the killing were not such as to justify the
belief that the deceased intended, en-
deavored, or was about to commit a
serious personal injury on the person
of the defendant, but that the killing
was intentional, unlawful, with malice
aforethought, cither express or implied,
and without justification or mitigation,
as charged, then and in that event the
jury would be authorized to find the de-
fendant guilty of the crime of murder.”
It is insisted that this charge was incorrect
as applicd to the facts shown by the evi-
dence, and was harmful and_ prejudicial
to the movant, tended to confuse and mis-
lead the jury, and injected into this case
an issue not authorized by the evidence,
and was inapplicable and placed a burden
on movant not authorized by the law or
by the facts, in that there was no con-
tention by the movant that at the time
of the homicide the movant was in danger

REPORTER, 2d SERIES

from the deceased nor that the deceased
was committing or attempting to commit
any serious personal injury on the defen-
dant, nor that the circumstances sur-
rounding the death of the deceased were
such as to justify the belief that the
deceased intended, endeavored, or was
about to commit a serious personal injury
on the defendant’s person.

[7] It is true that in this case the
defendant did not rely upon the defense
of justifiable homicide, but contended that
he was elsewhere and not present at the
time any assault was made upon the de-
ceased, if one was made; and that he
made no assault upon the deceased, had
nothing to do with bringing about his
death, and did not even know about it
until informed by the officers at the time
of his arrest.

It is insisted, not that the charge did
not embody a correct statement of the
principles of law dealt with, but that it
was not applicable to the present case.
The charge here complained of is not
erroneous for any reason assigned. It
does not place a burden on the defendant
not authorized by the law or the facts,
but gave him the benefit of the defense
of justifiable homicide although it was not
insisted upon, This court has held a num-
ber of times that it is not error for the
court to charge the law of justifiable
homicide in the trial of a person for
murder, where he defends upon the
grounds that he was not the person who
committed the crime and was not present
at the time of its commission; and we so
hold in this case, no injury to the accused
being shown as a result thereof. Williams
v. State, 199 Ga. 504(9), 34 S.E.2d 854;
Ward v. State, 184 Ga. 566(2), 191 S.E.
916; Geer v. State, 184 Ga. 805, 193
S.E. 776; Walton v. State, 190 Ga. 746
(4), 10 S.E.2d 755; Claybourn vy. State,
190 Ga. 861, 870, 11 S.E.2d 23,

Judgment affirmed.
All the Justices concur,

“ORIEN a So Me RON Come EN ASE Nepemase te Ui

JONES v.

STATE Ga, 831

Cite as 51 S.E.2d 831

JONES v. STATE.
No. 16507.

Supreme Court of Georgia,
Feb. 15, 1949.

1. Criminal law €=736(2)

Where deputy sheriff testified without
contradiction that confession was volun-
tarily made except defendant’s statement
to jury that he had made statement because
“they scared us”, state made prima facic
showing as to voluntary character of the
confession and whether confession was
made under alleged previous undue influ-
ence of sheriff still operating on defend-
ant’s mind was question of fact for jury,
and not a matter of law for court to be
resolved by excluding confession from
evidence.

2. Criminal law G=1144(14)

Where question as to whether defend-
ant’s confession was voluntarily made was
one of fact for jury, and there was no
exception to trial court’s charge, which
was not contained in record, it would be
presumed that jury were fully instructed
on principles of law applicable to confes-
sions as evidence.

Syllabus by the Court

The evidence authorized the verdict.

a

Error from Superior Court, Floyd Coun-
ty; H. E. Nichols, Judge.

Horace Jones was convicted of robbery
by open force and violence, and he brings
error.

Affirmed.

M, G. Hicks, of Rome, for plaintiff in
error.

E. J. Clower, Sol. Gen., of Rome, Eugene
Cook, Atty. Gen., and J. R. Parham, Asst.
Atty. Gen., for defendant in error.

CANDLER, Justice.

[1,2] Horace Jones and George
Chubbs, Jr., were separately indicted for
the offense of robbery by open force and
violence upon the person of Sam Young,

3y agreement they were tried jointly.
The jury returned a verdict of guilty and
fixed the punishment at confinement for a
minimum and maximum of five years.
Thereafter Jones filed a motion for new
trial, based on the general grounds only,
which motion was overruled and he ex-
cepted. The only question presented by
the writ of error is whether the written
confession made by Jones and introduced
by the State has probative value. If so,
then it is not insisted that the evidence
was insufficient to authorize the verdict.
Counsel for the plaintiff in error contends
that, because the alleged confession was
obtained by the use of force and intimida-
tion, it should have been excluded, and
that without such confession there was no
evidence of guilt; and that the evidence
was therefore contrary to law in that it
depended upon evidence which had no pro-
bative value. On this question the record
shows that the alleged robbery was inves-
tigated by C. M. Caldwell, a county po-
liceman, and Frank Russell, a deputy
sheriff. Caldwell testified that in the
course of his investigation he talked to
Jones and Chubbs and that he said to
Jones, “T told him that he’d been lying all
day and he was going to tell the truth
now.” Based on this alleged threat, it is
contended that the confession was inad-
missible. But the record shows that the
confession was not made to Caldwell, but
to Deputy Sheriff Russell. Russell testi-
fied that the confession was freely and
voluntarily made to him, and there is noth-
ing to controvert this testimony, except
the statement of Jones to the jury, in
which he said that he made the statement
because “they scared us.” On the testi-
mony of Russell the State made a prima
facie showing as to the voluntary charac-
ter of the confession, and it then became
admissible as evidence. Whether the con-
fession was made under the alleged pre-
vious undue influences of Caldwell still
operating on his mind, was not a matter
of law for the court, to be resolved by ex-
cluding it from evidence, but was a ques-
tion of fact for determination by the jury.
Pines v. State, 21 Ga. 227; Valentine v.
State, 77 Ga. 470(3); Jackson v. State,

‘epicttheninan:

278 127 SOUTHEASTERN REPORTER <2 Se.

5. Overruling demurrer to petition not erro-
neous.
The trial judge did not err in overruling the
demurrer to the petition.

Error from Superior Court, Terrell Coun-
ty; M. C. Edwards, Judge pro hac vice.

Action by R. R: Marlin, trustee in bank-
ruptcy, against T. E. Jennings and others.
Judgment for plaintiff, and defendant nam-
ed brings error. Affirmed.

F. M. Jennings died leaving a will, in
which R. H. Jennings was nominated as ex-
ecutor. The will was duly probated on Oc-
tober 12, 1921, in Terrell county, and the
executor qualified and proceeded to admin-
ister the estate. R. W. Jennings, a son of the
testator, was given an equal interest in the
estate with the other children of the testa-
tor, subject to a life estate of their mother.
On November 3, 1922, R. W. Jennings, in
consideration of $1, executed a warranty
deed to his brother, T. E. Jennings, purport-
ing to convey the property devised to him
by the testator. On December 7, 1922, R. W.
Jennings was adjudged a bankrupt, and R.
R. Marlin was appointed trustee for his
estate in bankruptcy. After the adjudica-
tion in bankruptcy the wife of the testator
died. On January 4, 1923, the trustee in
bankruptcy instituted an equitable suit in
the superior court of Terrell county against
the bankrupt and his two brothers, R. H.
and T. E. Jennings.

The petition alleged all that is stated
above, and further: That R. W. and R. H.
Jennings are residents of Terrell county, and
T. E. Jennings is a resident of Crisp coun-
ty, Ga.; that the deed executed by R. W.
Jennings to T. E, Jennings was without any
consideration, and made at a time when R.
W. Jennings was insolvent, and known to
be so by T. E. Jennings (or he had reasonable
cause to know), and for the purpose of hin-
dering, delaying, and defrauding the cred-
itors of R. W. Jennings; that the executor
now holds for the purpose of administration
and distribution that portion of the estate
which the deed purported to convey to T. E.
Jennings, and unless the executor is enjoin-
ed from making distribution of such portion
to T. E. Jennings or other persons who might
elaim under the deed, and unless T. E. Jen-
nings is enjoined from selling, conveying, or
transferring such interest, irreparable injury
will result to petitioner as the representative
of the creditors of the bankrupt. The pray-
ers were: (a) For cancellation of the deed;
(b) for injunction to prevent the executor
from turning over the share of R. W. Jen-
nings to T. E. Jennings or to any other per-
son than to petitioner; (c) that the right of
possession of the property be decreed to be
vested in petitioner; (d) that T. E. Jennings

ferring, or in any other manner disposing of
the undivided interest which the deed pur-
ported to convey to him; (e) for general re-
lief.

T. E. Jennings filed a demurrer which al-
leged:

EM That the allegations contained in the
bill show that this court is without jurisdiction
as to this defendant, who is a resident of the
county of Crisp, said state, and a nonresident
of the county of Terrell. That no substantial
relief is sought or prayed for against any de-
fendant in said action, who is a resident of the
county of Terrell; and, further, that said bill
is not brought for the purpose of staying any
pending suit or litigation in Terrell county.
(2) Further that the allegations contained in
the bill are insufficient to authorize the recov-
ery sought.”

The demurrer was overruled, and the de-
murrant excepted; the ground of exception
being that the judgment was contrary to law,
because :

“The petition discloses that no substantial
relief is prayed against any of the parties de-
fendant who reside in the county of Terrell,
and that T. E. Jennings is a resident of the
county of Crisp; that R. W. Jennings, one of
the defendants in Terrell county, is alleged to
be a bankrupt, and, while a grantor of the deed
sought to be set aside, that he has no interest
in the pending litigation; and that R. H. Jen-
nings, while a resident of the county of Terrell.
as an executor, is sought to be enjoined from
paying out funds in his hands, and that the
substantial relief sought is against T. E. Jen-
nings, a nonresident of the county of Terrell.”

H. A. Wilkinson, of Dawson, for plaintiff
in error.

W. B. Parks, of Dawson, for defendant in
error.

the Justices concur.

‘WILLIAMS v. STATE. (No. 4649.)
(Supreme Court of Georgia. March 11, 1925.)

(Syllabus by Editorial Staff.)

1. Homicide €==169(3) — Admitting evidence
that, about one week before homicide, wit-
ness heard screams and implorings of victim,
held without error.

In prosecution for wife murder, there was
no error in permitting state witness to testify
that, about week before fire, which destroyed
house and victim, she heard screams and &
woman begging a man not to hurt her; wit-
ness testifying that to best of her knowledge
voices she heard were those of accused and his

be restrained from selling, conveying, trans-

wife.

@=—>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ATKINSON, J. Judgment: affirmed. Al .

Ga.) SIMMONS v. REALTY INV. CO. 279
(127 8.E.)

2. Criminal law €==1075, 1077—Bill of excep-
tions In capital case not dismissed for failure
to pay costs or file pauper affidavit.

In capital case, in which extreme penalty
was imposed, bill of exceptions will not be dis-
missed for failure to pay costs or file pauper
affidavit, but costs will be collected from plain-
tif in error and his attorneys, under Supreme
Court rules 14 and 15 (Civ. Code 1910, §§
6232, 6233).

Error from Superior Court, Jones County;
James B. Park, Judge.

Alex Williams was convicted of murder,
and he brings error. Affirmed.

J. CG. Barron, of Gray, and W. W. Burgess,
of Ft. Lauderdale, Fla., for plaintiff in error.

Jos. B. Duke, Sol. Gen., of Eatonton, Doyle
Campbell and A. Y. Clement, both of Monti-
cello, Geo. M. Napier, Atty. Gen., and T. R.
Gress, Asst. Atty. Gen., for the State.

BECK, P. J. 1. The plaintiff in error was
tried and convicted of the offense of murder.
The decedent was his wife. On the night of
the alleged homicide the house in which the
accused and the decedent lived was de-
stroyed by fire. The body of a woman, heavy
with child, was found in the débris of the
burnt house. The body had been so badly
burned that her features were not recogniz-
able, but there was evidence tending to show
that the body of the woman found partially
charred was that of the decedent.

[1] On the trial of the case a witness for
the stute was allowed, over the objection of
counsel for the accused, to testify that, just
about a week before the fire which destroyed
the house, she heard screams and holloing,
and a woman begging a man not to hurt
her, and “heard him quarreling.” She heard
the woman say, “Don’t hit me; don’t kill
me;” and she heard the nian say, “You talk
too much.” The witness testified that she
bad heard the man and woman talk before,
that she knew them, and that to the best of
her knowledge the voices that she heard
were those of the accused and his wife. To
the admission of this testimony timely ob-
jections were made, on the grounds that “the
evidence was irrelevant, inadmissible, and
of no probative value; that, before evidence
of a previous quarrel would be admissible
against the defendant, some connection must
be shown between the previous quarrel and
the offense for which the defendant was in-
dicted; * * * that isolated and uncon-
nected quarrels were inadmissible against
the defendant.” The objections were over-
ruled, and upon this ruling the defendant as-
signed error in his motion for a new trial.

There is no merit in this exception. This
case differs in its facts from that of Miller
v. State, 158 Ga. 697, 124 S. BE. 195. In that

husband and wife, which the stgte offered to
prove, related to happenings that had taken
place years before the homicide, and it was
held that under the circumstances such tes-
timony was inadmissible, as jt tended to
throw no light upon the issue being tried.
And stress was laid upon the fact, in the
Miller Case, that:

“The evidence objected to was not shown
to be acts of cruelty or ill treatment upon the
part of the husband towards the wife, and
nothing was shown as to the character of the
‘row’ or ‘fuss’ between the husband and wife,
so that it could be determined that those trans-
actions had any relevancy on the questions at
issue.”

In the present case, the scyeams of the
wife, imploring the husband not to hit her
and not to kill her, were heard only about a
week before the homicide. The evidence was
clearly admissible, it being a question for the
jury to decide whether the voices which the
witness heard were actually the voices of the
accused and his wife.

2. The evidence authorized the jury to
find that there was sufficient proof of the
corpus delicti, and to return a verdict of
guilty against the defendant.

{2] 3. This being a capital case, in which
the extreme penalty has been imposed, the
bill of exceptions will not be dismissed for
failure to pay the costs or fije the proper
pauper affidavit; but it is directed that the
costs be collected from the plajntiff in error
and his attorneys, in accordance with the
provisions of rules 14 and 15 of this court, as
contained in sections 6232 and 6233 of the
Code. The clerk of this court is directed to
notify counsel for plaintiff in error of this de-
cision, and, upon their failure to pay the
costs within 15 days, let the clerk issue ex-
ecution therefor in accordance with the rules
cited above.

Judgment affirmed. |

All the Justices concur; GILBERT, J., in
the judgment.

|

SIMMONS v. REALTY INV. CO.
(No. 4458.)

(Supreme Court of Georgia. March 11, 1925.)

(Sullabus by the Court.)

1. Execution €=>192—Special pleading held un-
necessary in claim case to show fraud in hus-
band’s deed to wife.

On the trial of a statutory claim to land un-
der Civil Code 1910, § 5157, interposed to re-
sist the levy of a distress warrant upon certain
described land as the property of a husband, it
is not necessary, in order to show fraud in a
deed from the husband to the wife (claimant),

case the evidence of difficulties between the

to have special pleadings for that purpose.

@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indoxes

UNIVERSITY OF F2A3AMA

=
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“*GZ6T-STHS (SouloP) IS°¥D *oeTe SHOPTQ fxOTV “SHVITTIA F

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tas

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SWA

840 Ga. 197 SOUTH EASTERN REPORTER
twice—like that. The first time I believe i
that. was carrying a pistol that d
Ply sane him; and the next time he shot, that he was bck akouch Ng Petar ioed
oe Fortson grabbed his side like this [in- search him, I didn’t see him with istol
pelea and fell a to the ground, or make any effort to find it. I roe
rman continued to shoot. * * * sa idn’ if
ne ued y that he didn’t have a knif
a bid aoe didn’t say anything when usually carried a knife in: paren i
oe ri s ooting, and the only remark would swear that he didn’t have a pistol ‘and
tags ie say wan ~ was going to shoot he didn’t carry one, and if he had had
rd “f ole works. * * Immediately I would have known it. * * * Th iol
= e e ~ shot, Lon Fortson was cut- that Norman Williams came to m Seen
ee - rs is a sina . * * Norman one afternoon was when he had broke El.
— « about the same time that Fortson bert County jail, and he come th h i
. . guess, because it was all done in less stayed about five minutes. He eld ec
eles feantonse acirty meg there had broke jail. The next time I polars
erndon [son of the deceased] was on the evenin i i
e. g of this shooting.
i ba eae begs have ha he escaped from the Brooks Canny tate
nim. own Norman Wil- I had heard he was i y
liams around eight years. I had never had there in the eee ek On aa
) age with him personally at all. came to my house on this afternoon n .
hand deat wie aie after he had es- Herndon Fortson, son of the d d,
aia. codices nt Rare gang = testified that he heard a shot or wn aied
tiered fee ee ag Hotameter was shot by the defendant as the witness
sr edna cx, hers pia eg Hoyt Wil. started toward his own car. Dallas Fort>
: AVETS. W- son, son of th i
a. and Head Williams and Ophelia went to the atangecrs erage eg ek
ag saw him shoot me, and my son, little taken after being sh rid . cage bes
Hag ruare. os it. as Ruth Black also “was rational.” es mee sce’ he fais
shoot me. ese children’ were to di ‘ ee
M ; e, that h ; i
de to nai a are from shooting Mr. he was, peng! dati e sate
“ee =“ 2 : ey had hold of him when I said, ‘Yes, Iam.’ He told ih gone
titer te my tao a — have any- Williams shot him, * * * He uaid chat
i Beg sfetaiee “ ~- me im he walked up to Tom’s from the bottoms to
tie shot heed that EL a ssi have Tom come and help him haul hay the
he wie lace a Adler i red obs; nee aot ne and that he didn’t get to the
and turned on Lon Fortson, he said, ‘I am oe Bagunes ee ae shoodng*
going to shoot the whole works.’ I hadn’t shot him. H ‘d a itd ss
done anything before he shot me. He didn’t mouth o N ae * = ieee lar ie br
say anything to Lon Fortson. He never fied: “The See Or 2 one
: ge ad of Nor-

spoke bef i

Le aabong a hs — Sage man Williams being there was my little boy

Sine a fark ina shite a through ee house and he told me that
’ orman was fixing to shoot Mr. Fortson.

Lon Fortson. I said, ‘Bo : T ae Tom Norm
. ; y, don’t do that,’
and he turned and shot me and then turned ides hes ores * : * one
: Norman

and shot Lon Fortson. The children didn’t ;
write held of him ar gna ied started ; Tron cake Uciceeh Hee a ne - ee
hen I come out first they had hold of ¢ idn’ t pou
== is, Hoyt Williams, Harrison Wil- Bas td pheuidiage- elegy
ot a“ a ne and Ophelia missed him the first time haber peer
a aby Ru ack, too. * * i i i
ae reason [Fortson] didn’t shoot Williams Prmmbeesiy ered at pecan og . :
is he didn’t have anything to shoot with, works, and I left gs . ig alae
and he didn’t carry anything. As to wheth- anything to Niesunek Willi a tigt be
er I know that he didn’t have anything, I have a hoe after Soa ak 4 aie —
nein ~ that he didn’t, and I would swear didn’t see Mr. Lon Fortso2 ie pra
: at he =n t, because I never saw him with on or threaten him with waything y wee
peta acter are carrying — and I I have known Norman Williams since right
, ehadone. Henever after he killed his brother, * * *
i a ain As to swearing positively five or six years. I remember when Nor.
y own knowledge whether Lon Fortson man Williams was in jail at Elberton.

ats a

i eae me Hed oy ,
pee aun edt CPE ewe YUP POS oe ed

WILLIAMS v. STATE
197 S.E.

After he broke jail some two or three
months, he come by the house one day.
That was before he was sent to Brooks
County. He didn’t come back to our house
from the Brooks County gang until he done
this shooting. * * * I remember him
making some statements to me oF in my
presence about Mr. Lon Fortson. It was on
the road close to his mother’s when I was
coming from town. That was before he
was put in jail and before he was sent to
Brooks County. He thought Mr. Fortson
was trying to have him turned up once,
and he seen Mr. Fortson down in the mead-
ow, and he said Mr. Fortson was doing
something or other, and that he would get
him for it, for turning him up or trying to
have him caught.”

Lee Self, nine years of age, testified: “T
went to the back door, and I seen Norman
Williams, and he had a gun pointed around
the corner of the house at Mr. Fortson.
Harrison and Hoyt Williams, Norman’s
brothers, one about my size and one bigger
than me, was begging Norman not to shoot
Mr. Fortson, and I begged him. Then I
turned around and went in the house and

told my mother * * * and she ran and 4
told Daddy. * * * Daddy jumped out in

Ga. gat

hoe or anything of the kind.” Frank Wil-
kins, testified: - “I saw Norman Williams in
about an hour after the shooting and about
a mile from it in the public road.” He
asked the witness if he knew Lon Fortson,
Herndon Fortson, and Tom Self; and upon
being told that the witness did, “he said,
‘T shot all three’ of them a while ago.’ He
said the reason he shot them was he thought
they was going to capture him—he thought
they was trying to arrest him. He never
said anything about Tom Self trying to hit
him with a hoe, or about Herndon Fortson
trying to shoot him with a pistol, but said
he thought they was trying to capture him.
He said that he shot all three of them. He
said he was shooting to try to kill them all,
but he knowed old Tom Self was going to
die. * * He said they came in on him,
and he had to shoot. He said that Mr.
Fortson came in the back, and Herndon
came in the front, and that he had to shoot.
* * * T know that he said he shot to kill.

* * JT asked him what did he shoot
them with. I said, ‘Did you shoot them
with a shotgun?’ He said, ‘No, a pistol.’

“He said, ‘Here is what I shot them with,’

nd he pulled out a pistol.”
The defendant made a lengthy statement

the yard, and told him not to do that, and to the jury, material parts of which are as
Norman jumped out from Harrison and follows: “By the time I escaped from the

Hoyt and shot Daddy with a pistol. He
shot him twice through the chest, and once

Brooks County chain-gang and came home
to see my brother, I hadn’t heard from

in the shoulder. I didn’t see but the first either party.” After he had been home
shot, because I ran. I didn’t see my Daddy about two weeks, while his mother was

with a hoe trying to do anything to Nor-
I didn’t see Mr. Lon Fortson get the witness, at whose house the homicide

man.

away from the house, Mrs. Self [wife of

shot. As soon as Norman shot my Daddy occurred] came in and sat down on the

one time, I ran. * * * At the time he
was shot, he didn’t have a hoe or strike at

side of the bed, and he explained to her
why he had “come back here.” He re-

anybody. * * * Herndon Fortson didn’t peatedly drank liquor, and visited the home
try to come in the front door. * * *® of the Selfs. Self told him, “I could stay

When Norman shot the first time, he was around the house, and that I wasn’t obliged

on the outside of the house.” Robert Fort-
son testified that Norman Williams [the de-

to, but not to let any one see me, because
he didn’t want any one to see me there at

fendant] came to his house with a shotgun all, which he said to be sure not to let Lon
and pistol about 8:30 on the night after the see me. He said, “You know he tried to
shooting, and the defendant then said: “I report you last year, and I don’t know what
am in trouble.” “And he went on and told he is liable to'do”” Ona visit at the house

me that he had shot Lon Fortson and his
son and Mr. Self. He said the reason he

of the Selfs one night, the deceased came
in, and the defendant got back behind the

shot them they fooled him in the house— door. The defendant “stayed in the woods
Mr. Self did, and when he got in the house, * * * most all the time except when it
he said, Mr. Lon came in the back door, was raining, because I was dodging the law,
and his son came in the front door. That of course.” Before the homicide he had
was Mr. Lon’s son. And they rushed in on met the deceased in the road or path, and
him, and he thought they was trying to the deceased said, “You have been hanging
capture him, and he shot them. He didn’t around there a right smart.” “And I told
say anything about cither of them were try- him it didn’t amount to anything. He said,

ing to do anything to him with a pistol or a

197 S.E.—53%

‘That is my hands up there on the place.’

I a a

a it Mahi Mic

sasrtitsi

858 Ga.

S.E. 733, this court is without jurisdiction
to entertain, at the instance of the State,
a petition for certiorari to the Court of
Appeals in a criminal case.

Writ of Certiorari dismissed.

All the Justices concur.

© © KEY NUMBER SYSTEM

sums

297 Ga. 582

63 SOUTH EASTERN REPORTER, 2d SERIES

legally adjudged to be an insane person,
is incapable of being legally served with
a petition for divorce”. When subscquent-
ly tried in the lower court, the sole ques-
tion for determination was whether Mrs.
Chambers was sane or insane at the time
she was served with the petition for divorce.
There was ample evidence to sustain the
jury’s verdict finding her insane when
served, and accordingly the trial judge did
not err in overruling the motion for new
trial based upon the general grounds.

Judgment affirmed. Fi
All the Justices concur.

RS. ; S
CHAMBERS v. CHAMBE e Woe
No. 17356. C i .<
Supreme Court of Georgia. ae oanr& 4 aS —
Feb. 13, 1951. \\ $
Petition in equity by Irene Chambers, by
next friend, against John E. Chambers to
set aside a judgment for divorce a a
tested divorce suit. e
defendant in uncon su | erite.

jury returned a verdict favorable to plain-
tiff and to review a judgment of the Superior
Court, Fulton County, Virlyn B. Moore, J.,
overruling defendant’s motion for a new
trial, defendant brought error. The Supreme
Court, Atkinson, P. J., held that the evidence
sustained jury's verdict finding that plaintiff
was insane when served with husband’s pe-
tition for divorce.
Judgment affirmed.

Insane persons C2

In proceeding by wife through her
next friend to set aside divorce decree
obtained by husband in uncontested divorce
suit, evidence sustained jury’s verdict find-
ing that wife was insane when served with
petition for divorce.

——

Howard, Tiller & Howard, Atlanta, for
plaintiff in error.

Martin McFarland, Atlanta, for defend-
ant in error.

Syllabus Opinion by the Court.

ATKINSON, Presiding Justice.

The case was previously before this court.
Chambers v. Chambers, 206 Ga. 796, 58 S.
F.2d 814. It was there held: “A person

No. (7361.

Supreme Court of Georgia.
Feb. 14, 1951.

Williams was convicted in the Superior
Court, Clinch County, BE R. Smith, J., of
rape, and he brought error. The Supreme
Court, Wyatt, J., held that the verdict was
authorized by the evidence.

Affirmed.

1. Rape €=51(1)
Conviction for rape was sustained by
evidence.

2. Criminal law €=828

In rape prosecution, where no evi-
dence tending to support defense of alibi
was offered except statement of defendant,
if it be conceded that his statement was
sufficient to raise defense, and it was shown
that defendant had been arrested one and
one-half hours after alleged commission
of crime and within one mile of scene of
crime, trial court did not err in failing
to charge law of alibi, in absence of any
written request to do so. Code, § 38-122.

————_—>—__—

Gibson & Maddox, Douglas, for plaintiff

who is non compos mentis, though not in error.

Cite as 63 S.E.2d 359

Edward Parrish, Sol. Gen., Adel, R. G.

HOLMES v. WALKER . Ga. 359
207 Ga. 582
HOLMES v. WALKER.

Dickerson, Valdosta, Eugene Cook, Atty.
Gen., J. R. Parham, Asst. Atty. Gen., for
defendant in error.

Syllabus Opinion by the Court.
WYATT, Justice.

{1] 1. The plaintiff in error was con-
victed in the court below of rape. The only
reference to the general grounds of the mo-
tion for new trial contained in the brief
of the plaintiff in error is the following:
“Counsel for the plaintiff in error strenu-
ously insist upon each and every ground
of the general grounds of the motion for
new trial.” It is sufficient to say, the ver-
dict was authorized by the evidence.

{2} 2. The only question raised by the
amended motion for new trial was a com-
plaint that the trial judge failed to charge
the law of alibi without any written re-
quest to do so. “Alibi, as a defense, in-
volves the impossibility of the accused’s
presence at the scene of the offense at the
time of its commission; and the range of
the evidence, in respect to time and place,
must be such as reasonably to exclude the
possibility of presence.” Code, § 38-122.
Where there is no evidence of alibi except
the statement of the defendant, it is not
error to fail to charge the law of alibi in
the absence of a timely. written request.
Barrett v. State, 32 Ga.App. 30, 122 S.E.
645, and cases there cited. Conceding, but
not deciding, that the statement of the de-
fendant was sufficient to raise the defense
of alibi, the evidence of the sheriff, who
arrested the defendant, in no way supported
the defense of alibi, and no other evidence
tending to do so was offered. The sheriff
arrested the defendant about one and one-
half hours after the alleged commission of
the crime and about one mile from the
scene of the crime. Certainly this testi-
mony in no way “involves the impossibility
of the accused’s presence at the scene of
the offense at the time of its commission”.
It follows, thegjjudgment denying the new
trial was not error.

Judgment affirmed.

All the Justices concur.

No. 17320.

Supreme Court of Georgia.
Feb. 14, 1951.

Lee Holmes sued O. R. Walker to avoid
paying part of purchase price of stock of
merchandise and fixtures on ground of
claimed shortage in quantity of goods, where-
in the defendant filed a cross-action for bal-
ance of the purchase money, including attor-
ney’s fees. A judgment dismissing the peti-
tion and in favor of defendant on his cross-
action was entered in the Superior Court,
Washington County, R. H. Humphrey, J.,
and the plaintiff brought error. The Su-
preme Court, Duckworth, C. J., held that
petition was properly dismissed as alleging
no grounds for the relief sought.

Judgment affirmed.

1. Sales €=38(7)
Vendor and purchaser €=33

Equity will grant no relief in favor of
one who buys land when he fails to exer-
cise any diligence for his protection and as-
serts that he blindly relied on representa-
tions of seller as to matters of which he
could have informed himself, and the same
is true in purchase of stock and merchan-
dise and fixtures. Code, § 37-211.

2. Sales €=>130(2)

A petition seeking to avoid paying part
of purchase price of stock of merchandise
and fixtures bought in 1948, which alleged
that, although buyer had full opportunity
to ascertain for himself the quantity of
the goods, he failed to do so and blindly
relied on seller’s representations, went into
possession, selling and replacing merchan-
dise until June, 1950, and then for first
time made a claim of shortage, caused in
part by bad condition of adding machine
on which quantity was calculated, alleged
no grounds for the relief sought. Code, §
37-211. :

3. Set-off and counterclaim €=41

Whee buyer sought to avoid paying
part of purchase price of stock of merchan-
dise and fixtures based on claim of short-
age in quantity of goods, seller could main-
tain cross-action for balance of purchase

) peqnocrzzoete *g9z fyoeTq §°9 eTUMTP *SWVITIIM

T8100:

*1S6T *S¢ APW (AQUNOD YOUTTO) ®

are Shapes.

a

888 Ga.
by law (Code, §§ 68-302, 68-9908), there

being some evidence, circumstantial in
nature, of such unlawful operation of the
vehicle.

[3] 3. The evidence involved the of-
fense of involuntaty manslaughter in the
commission of a lawful act without due
caution and circumspection, and the court
erred in failing. to charge the law applicable
to this offense.

4. Under the foregoing rulings, it was
error to refuse a new’ trial. :

Judgment reversed.

All the Justices concur except JEN-
KINS and GRICE, JJ., who dissent.

WILLIAMS v. STATE.
No. 12250.

Supreme Court of Georgia.
June 17, 1938,

Syllabus by Editorial Staff.

1. Homicide €=250

Evidence held to sustain conviction of
murder.

2. Criminal law €=369(3)

In murder prosecution, court properly
refused to allow witness for state on cross-
examination to answer questions concerning
whether he had ever been in trouble, and
whether he had escaped from chain gang,
where defendant's counsel then stated that
he was not trying to impeach witness.

3. Criminal law G>1064!,

Where ground in motion for new trial is
legally insufficient or otherwise without mer-
it, as distinguished from containing an er-
roneous statement of fact, trial court should
overrule and not disapprove such ground,

197 SOUTH EASTERN REPORTER

,out merit where they merely stated that
court erred in admitting certain quoted or
stated testimony of witnesses, and wholly
failed to show what, if any, objections were
made to such admission, or that there was
any motion to exclude any of evidence.

5. Criminal law €=1064(4)

A portion of ground of motion for new
trial in murder prosecution complaining that
trial court erred in not permitting defend-
ant to prove on cross-examination that
state’s witness had been a fugitive from jus-
tice, in so far as it related to exclusion of
defendant’s testimony, was insufficient in
failing to show name of witness or witness-
es, or a proper tender of testimony with a
“pertinent question.”

6. Criminal law €>1064(6)

A ground of motion for new trial, in
murder prosecution, that court impliedly ex-
pressed opinion by its action in allowing
state to prove that defendant had previously
killed his brother, had broken jail, and was
a fugitive from the chain gang, was insuffi-
cient in failing to show that defendant made
any objection to admission of that testimo-
ny, and in failing to set forth particular
testimony and particular rulings.

7. Criminal law €>1064(6)

A ground of motion for new trial, In ©

murder prosecution, that court impliedly ex-
pressed an opinion concerning defendant's
guilt or innocence by challenging question
asked one of state’s witnesses concerning
whether he had been a fugitive from justice,
and in not challenging a like question asked
by the state concerning defendant, was in-
sufficient in failing to set forth particular
testimony and rulings, or to show that de-
fendant made any objection to admission of
testimony for state.

8. Criminal law €=656(8)

The mere challenging by court of ques-
tion asked one of state’s witnesses by de-
fendant concerning whether he had been &
fugitive from justice, without challenging
a like question asked by state concerning de-

but order designating such ground as “dis- fendant, could not be taken as an implied
approved and disallowed” will not work a re expression of opinion concerning defendant's
versal where ground shows on its face, or guilt or innocence.

when construed in connection with additional

facts set forth in judge’s certificate, that it 9 Criminal law ©>939(3)

is without merit.

Where witnesses under subpena attend

trial but are not examined, motion for new

4. Criminal law @>1064(4)

trial on ground of newly discovered evidence

4 Grounds of motion for new trial In mur- from such witnesses is properly refused, e%
er prosecution were insufficient and with- pecially where there is no showing concern-

Pua erszy

OEE pata ARR RSP

WILLIAMS v. STATE ; Ga. 839
: 197 S.E.

ing why such evidence could not have been
discovered and used in trial.

10. Criminal law €=958(3)

A motion for new trial in murder prose-
cution on ground of newly discovered evi-
dence from witnesses who were present in
court during trial under subpena by defend-
ant was properly refused, where there was
no affidavit concerning absence of knowl-
edge or diligence by counsel who _ repre-
sented defendant through trial, and it ap-
peared that witnesses were consulted by
such counsel who in argument stated that
they had not put up witnesses because they
wanted right to open and conclude argu-
ment.

‘

11. Criminal law €=954(1)

Where there was no merit in any of
grounds of motion for new trial in murder
prosecution, trial court properly refused new
trial as to all of grounds, even if disapprov-
ed grounds had been considered and over-
ruled instead of disapproved.

RUSSELL, C. J., dissenting in part.

——___+—_—

Error from Superior Court, Elbert Coun-
ty; Berry T. Moseley, Judge.

Norman Williams was found guilty of
murder, and he brings error.

Affirmed.

Statement of Facts by JENKINS, Jus-
tice:

Norman Williams was found guilty, with-
out recommendation, of the murder of Lon
N. Fortson by shooting him with a pistol.
Upon the motion for new trial the judge
entered an order “that said motion for new
trial be and the same is overruled on all the
grounds approved by the court in the orig-
inal motion for new trial and amendment
thereto, and a new trial refused’ and deni-
ed.” The order approving and disapproving
the particular special grounds was as fol-
lows: “The recitals of facts contained in
the Ist ground of the amendment to the
original motion: for new trial is approved
as true and correct. * * * The recital
of facts contained in the 2nd, 3rd, 4th, 5th,
and 6th grounds of the amendment to the
original motion for new trial are disapprov-
ed and disallowed by the court, and shall
not constitute a part of the record in the
above-stated case, for the reasons: (1)
said grounds are incomplete; (2) the testi-
mony was admitted by the court without ob-

jections on the part of the movant or his
counsel * * *; (3) that no ruling of the
court was invoked as to the admission of
such testimony, and no ruling was had or
made by the court relative thereto, on
which error can be assigned. The recitals
of fact in the 7th ground of the amend-
ment to the original motion for new trial
[are] disallowed and disapproved, because
(1) said ground is incomplete; (2) that the
witnesses were present in court at and
during the trial of the case * * * under
subpoena of the defendant; (3) the names
of the associates of each of the witnesses
upon whose newly discovered evidence a
new trial is sought is not given therein and
in the affidavits accompanying said ground;
(4) and that no affidavit is attached to said
ground 7, of defendant’s counsel [repre-
senting him in the trial], that they or either
of them did not know of the existence of
such testimony at and during the trial of
said case, and thereafter.” As to the 7th
ground the solicitor-general made a counter-
showing by affidavit, as shown in the opin-
ion infra.

The defendant offered no evidence, and
relied only upon his statement to the jury.
Three physicians testified as to the death of
the deceased from a bullet wound, in which
the bullet pierced the liver, gall-bladder,
stomach, and transverse colon. Tom Self
testified that he, his wife, several of her
relatives, and others were present at his
house on the place of the deceased about
5 o’clock in July, 1937, when the defendant
came there; that the son of the deceased
had come to sce the witness about insur-
ance, and they were sitting at the front of
the house, when his wife said: “Get out
there on the back. Norman Williams is
fixing to shoot Mr. Fortson in the back. I
went out there through the house, * * +
and Norman Williams was standing at the
corner of the house, * * * and Fortson
was around here [indicating]. I jumped
out the back door, and I grabbed at him,
and I said, ‘Don’t do that.’ And when I
done that—I had hold of him, my boy and
-his brothers, Ruth Black had hold of him,
and he pulled backwards, and made a spring
from amongst them. I was about four feet
off, and he shot me through here [indicat-
ing wound to the jury]. He shot me one
time, and then he turned and shot Mr. Lon
Fortson. After he was shot, Mr. Fortson
starte | like he was going across the field
from the house, and that would put Mr.
Fortson’s right side towards Norman Wil-
liams. * * * He shot at Mr. Fortson


Mniasutic te (0 Chief. 2p rine


WEBB, hanged Marietta, Ga., 2-19-1910 = Continued,

Mrs. Brown had crossed the tracks of the railroad in front of the house, to a point in
the woods on the slope of a steep hill, just a few yards beyond the railroad, but hidden
from the house and from every other quarter, While there she heard a noise. It proved
to be a dog and she thought no more of it, As she started back to the house a big heavy
negro seized her and choked her, swearing to kill her if she made a sound, Mrs, Brown
told a JOURNAL reporter of the affair later in the afternoon, She believes that she

must have fainted from the terror of the moment, ‘hen she revived, she says, she had
presence of mind enough to search the negro for points of identification, The brute
backed down the hill, she says, for about 50 yards, vowing as he went, that if she
screamed or told he would come back and kill her, Then he turned and ran, and she
screamed, Jer scream was heard by her sister at the house, and relief came at once,

Dr. Cox was called from Atlanta and Dr, Pace from Smyrna, Dr, Cox, coming in an automoe
bile and making a record run, brought the elder Mrs, Humpkrey and Mrs, Saye, Mrs. Brown
gave the JOURNAL representative the following clear description of the negro, which she
says she she has s een before on @ or 3 occasions, shose name she has never heard, but
whom she declares she will know immediately if she ever sees him again, Blacks, with a
stubby moustache, face bears no marks, probably about 5 feet 11 inches tall, weight esti-
mated between 175 and 180 pounds, apparently between 30 and 32 years old, At the time
Mrs. Brown saw him, he was wearing a shirt that might once have been white, but was

grimy with filfth, perspiration and dust. ‘he shirt was orn considerably, and was torn

a little down the front. He had his sleeves robled up to his elbows. The shirt had no
collar on it, being fitted with the ordinary collar band, Lt was open at the throat at
the time, He wore blue overalls that were apparently in good condition as to wear, The
overalls were dirty, however, seemingly more with earth than with grease, The were fitted
with an apron coming up to the negro s chest. The negro was wearing an old felt hat,
black, pulled down on the side, The dog that was with the negro is also described by
Mrs, Brown as a shaggy half-grown puppy, probably a mixed setter breed. 44 was white
mainly, but was spotted with big yellow spotse.." JOURNAL, 7-21-1909 (1) Photo of scene
of attack on page one,

"Sheriff W. M. McKinney, of Cobb county, and 3 deputies held off a large crowd of deter-=
mined men early Wednesday afternoon and brought to the Fulton County Towner Willard Webb,
a negro, whom Mrs, Exy Brown of Vinings Station, positively identified as the man who
criminally assaulted her, The sheriff brought the negro in in an automobile, and lodged
him in the tower for safe-keepinge.»»elt appears that the sheriff and his posse tracked
the negro to Marietta Tuesday afternoon, There they lost him, for he had managed to
change his clothes, The sheriff, however, found a pair of overalls that he had worn when
he assaulted Mrs, Brown, The sheriff and his posse found the negro in Marietta early
Wednesday afternoon, They took him back to the rown home and before Mrs, Brown, ‘fe is
the man,' she cried, without hesitation, Fully20 other negroes who had been taken hefore
her she had failed to identify.,.Webb meets Mrs, Brown s description perfectly, He is
about 6 feet tall, weighs nearly 200 pounds and is very black, He deniés that he is the
guilty man, but the sheriff says that his manner as well as his description indicates

his guilt," JOURNAL, 7-22-1909 (3)7)é


¥
¢
s,
a

¥

ey

pt HONE Cty

256 Ga.

WILLIAMSON et al. v. WILLIAMSON.
No. 8863.

168 SOUTH EASTERN REPORTER

Seed Co., 145 Ga. 559(5), 89 8. E. 486. The
ruling in Ramsey v. Ramsey, 174 Ga. 605(5),
163 S. E. 193, applies “where both parties in-
troduce evidence,” Simmons v. Brannen, 155
Ga. 494, 496, 117 S. E. 318, 319, cited as au-

Supreme Court of Georgia.
Feb. 21, 1933.

Syllabus by Hditorial Staff.

4, Witnesses €>139(8).
In suit for land, plaintiff eould not tes-

tify to conversations and transactions with
deceased common grantor’ tending to show
execution of deed to plaintiff’s intestate ante-
dating defendant’s deed (Civ. Code 1910, §
5858, par. 1).
2. Trial €=25(3). . ;

In civil case, defendant introducing no
evidence is entitled to opening and conclusion
of argument. :

Error from Superior Court, Dodge Coun-
ty; R. Earl Camp, Judge.

Suit by M. M. Williamson and others
against J. G. Williamson. Judgment for de-
fendant, plaintiffs’ motion for a new trial
sas overruled, and plaintiffs bring error.

Affirmed.

Lawson & Ware and H. F, Lawson, all of
Hawkinsville, and Russell Ross, of Eastman,
for plaintiffs in error. :

J. H. Milner and Will Ed. Smith, both of
Eastman, for defendant in error,

Syllabus Opinion by the Court.

ATKINSON, Justice.

[1] 1. Under the Civil Code, § 5858, par. 1,
in an action of complaint for land, the oppo-
site party to the grantee of a deed from a de-
ceased person is not competent to testify in
his own behalf to conversations and transac-
tions with such deceased person affecting ad-
versely the title conveyed by the deed. Hen-
drick vy. Daniel, 119 Ga. 358, 46 S. E. 438. Ac-
cordingly, in an action of complaint for land,
the defendant, J. Gould Williamson, being
the immediate grantee of A. G. Williamson,
since deceased (the alleged common grantor),
J. F. Williamson, one of the plaintiffs, was

incompetent to testify in his own behalf as to
conversations and transactions with A. G.
Williamson, since deceased, tending to show
the execution and delivery of a prior deed by
A. G. Williamson to a different person under
whom the plaintiffs claim as sole heirs at

law.

[2] 2. When the defendant in a civil case
introduces no evidence, he is entitled to the

thority in the Ramsey Case.

3. The verdict for the defendant was au-

thorized by the evidence, and the judge did
not err in overruling the plaintiffs’ motion

for a new trial.

Judgment affirmed.
All the Justices concur,

WELCH v. STATE.
No. 9011.

Supreme Court of Georgia.
Feb. 17, 1933.

Syllabus by Editorial Staff.

{. Homicide €=309(3).

Refused charge that involuntary man-
slaughter is unintentional killing in commmis-
sion of unlawful act, or lawful act, which
might produce killing, in unlawful manner,
held not authorized under evidence.

2. Homicide €=309(3). :
In murder prosecution, evidence and ac

cused’s statements held not to require charg
ing statutory definition of manslaughter (Pen.
Code 1910, § 64). -

3. Criminal law €>829(18). :

In murder prosecution, instruction on
reasonable doubt held not reversible error be-
cause failing to charge that accused’s state
ment can raise reasonable doubt, in view of
instruction on accused’s right to make state-
ment, and in view of accused’s statement.

Charge that reasonable doubt is doubt

which. has some reasonable foundation,
and which grows out of “the evidence,
want of evidence, or proven circumstanc-
es in the case,” was not reversible ‘error
as against contention that it failed to in-
struct, and negatived the idea, that reas
sonable doubt can arise from defendant's
statement, in view of additional instruc-
tion, given in connection with this charges
in the language of the Code, as to the
right of accused to make a statement, and
in view of accused's statement, which cone
tained no denial or explanation of, or ref-
erence to, several facts, indicating accus-
ed’s guilt, shown by uncontradicted evi-

i 3 fc.
opening and conclusion of the argument Senin
Newsome y. Harrell, 146 Ga. 139(2), 90 S. E.

855: Moore y. Carey, 116 Ga. 28(5),

258; Willett Seed Co. vy. Kirkeby-Gundestrup

42 8. FE. 4. Homicide C250. ,
Evidence sustained murder a

€=—For other cases see same topic and KEY NUMLER in all Key

“Number Digests and Indexes

AOE ERROR

168 S.B, 7

Error from Superior Court, Early County;
Cc. W. Worrill, Judge.

Lawrence Welch was convicted of murder,
and he brings error.
Affirmed.

Jas. W. Bonner and Wm. Lowrey Stone,
both of Blakely, for plaintiff in error.

B. T. Castellow, Sol. Gen., of Cuthbert,
3ond Almand, of Atlanta, and Geo. M. Na-
pier, Atty. Gen., and T. R. Gress, Asst. Atty.
Gen., for the State.

Syllabus Opinion by the Court.
ATKINSON, Justice.

The indictment charged Lawrence Welch
with murder for the killing of Luch [Lucy ?]
Welch by shooting her with a gun and by
striking and beating her with a gun and with
some instrument of a description unknown
to the grand jurors. The uncontradicted evi-
dence showed that the deceased was the wife
of the defendant and sister of the wife of
Shedrick Sheppard, and that the homicide
occurred on Monday night after dark at the
dwelling of Sheppard, where Lucy, the de-
ceased, intended to spend the night. Shep-
pard, as witness for the state, testified, in
part, as follows: “Lawrence Welch came to
our “house * * * called outside. I told
him to come in, but he said he didn’t have
time, and he called his wife to the door.
* * * JT said, ‘Lucy, open the door.’ She
unlatched the door, and Lawrence come in,
and * * * he had a shotgun under his
overalls, and he pulled it out. It was a
single-barrel shotgun, and when he pulled it
out from under his overalls, he said to Lu-
cy, ‘What, kind of word did you send me by
Frank? ‘I sent no word,’ she said. Then he
told her to come on and go home. * * *
Lucy said she would go home tomorrow.
Lawrence said, ‘I am going to carry you or
your dam dead body with me to-night.’ Then
Lucy got up from the pallet and came and
fat on the bed with me. I told Lawrence
not to start any fuss in my house, and Law-
rence said that he was not going to start
any fuss. I told Lawrence. that Lucy was
*fraid to go home with him, because he had
the gun. Lawrence then said he would give
me the gun and two shells; but I was afraid
to go to him, because he had the gun cocked.
Then he went up and grabbed Lucy, and my
wife hollered, and Lucy grabbed me and I
*natched her away from him. I hollered at
lawrence. He had the gun cocked, And
Lawrence shot. Lucy ran to the kitchen door,
—_ when I got there I saw her fall out of the
kitchen on her face. She got up and turned
and went around the house. When she got
to the front of the house I heard the gun go
on fcain. I went to the front, and Lawrence

elch was Standing up over Lucy with his
fun in his hand. Lucy was lying on the
round, and he was beating her over the

168 S.E.—17

head with the shotgun, and saying, ‘I have
been telling you this a long time,’ I got be-
hind the barn, and when he got through
beating her I asked him if he had killed her,
and he said, ‘Yes [with an oath], I done what
I wanted to do.’ He then went away with
the gun.. Lucy Welch did not have any
weapon, and was not trying fo hurt him in
any way. I don’t know how long Lucy lived
after she fell on the ground, but I went ‘in
the house and dressed and came out, and she
was still struggling. I then went to a white
iady’s house to get her to eqll the sheriff.
When I got back home she was dead.
* * * T have two shots that come out of
the porch floor. There were six shots in all,
and two of them went in her body. All six
shots were buckshot. The whole load of the
first shot fired went into Lucy Welch’s body,
and they did not go through but I have the
wadding. The load struck her in the left side.
Yes, sir, that is the gun that Lawrence Welch
shot that night. It is bent now, but was not
bent when he shot it. I did not sce it again
from the time Lawrence shot it until Mr. Sid
Howell, the sheriff, had it. It is a number
12 gauge single-barrel gun with a hammer on
it. The buckshot struck her upder the right
arm and went through her. From the way
she fell, she was falling on her knees.” On
cross-examination, the witness testified, in
part: “He was about 8 feet fram Luey when
he shot the first time. I saw the wound on
her after the first shot. It made a hole
about as big as your fist in her left side. The
second shot hit her under the right armpit.
He told my wife about ten minutes before
he shot that he was not going to hurt Lucy.
I found the empty shell on the inside of the
house, on the west side. There were two
shots fired, but I did not find the other shell.”

The sheriff, S. W. Howell, for the state,
testified in part: “I saw the body of Lucy
Welch at Shedrick Sheppard’s house under
a little peach-tree, and she was dead when I
got there. She was lying pn her face,
stretched out on the ground. J noticed that
her head was beat in on the back of the head.
She had been struck on the back of her head
and hit hard enough to crack the skull. I
saw a shotgun wound under her right arm
where a whole load of shot went in. It was
made with a shotgun, but I could not tell
what size shot. I saw another wound in the
right side, according to my recpllection, and
her entrails were out in front. Shedrick
Sheppard told me how it happened. I -then
went to look for Lawrence Welch. I tracked
him and got to his house about the same time
he did. I throwed my lights on him, and he
throwed his hands up and said he wasn’t go-
ing torun. His gun was standing up against
a tree near the porch about thyee feet from
the house. * * * Fle told me the gun was
against a tree, and that he wanted to put on
his shoes and eat supper. Yeg, that is the

UMINERS TY

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ah

258 Ga 168 SOUTH EASTERN REPORTER
turned a verdict of guilty. The
hen as it is now, and there The jury retur
a Bip Re Seon. x the barrel of the gun. defendant’s —- a Bs ee cael
> he general grounds and o
* de no threats or inducements the g
e ‘aa Pete a statement of the killing. I grounds, was overruled, and he excepted

asked him how it happened and why was the [1] 1. The written request to charge, “in.
gun-barrel bent. He said he beat her over J oiintary manslaughter shall consist in the
the head with it and bent the gun-barrel over killing of a human being without any inten-
her head. He said, ‘I went in and Lucy was tion to do so, but in the commission of an un-
sitting on the pallet, * * * and Shedrick j,\¢4) act, or lawful act, which might pro-
was sitting on the bed, and I asked Lucy to duce such a consequence, in an unlawful man-
come on and go home, and Lucy said that she ner,” was not properly adjusted to the ease as
was not going, and that she was scared that 11 onted by the evidence and the prisoner’s
I had the gun.’ He said yg! os nano statement, and its refusal was not erroneous.
; 2 te
petogfase rag orgie pees , that Tavienee [2] 2. Manslaughter was not involved in
eheowen the gun on her, and she went running the case, and the judge did not err - —_
over to Shedrick, and he shot. He said — me a ees clipe becca age on rl
idn’t know whether he hit her or not. the unlawful ki ing are,
- at fost he reloaded the gun with a “pe po gts Rey ages aa patents
i and Emmer and Lu- and without any }
pete cas at ane, and as he walked whatever, which may be voluntary, —*
pe ae a corner of the house he shot Lucy sudden heat of passion, or involuntary, in the
pais that she fell, and he walked up over commission of an unlawful act, or a lawful
mer oa beat her over the head with a shot- act without due caution and cireumspection.
pened I told Lawrence that he had told me Pen. Code 1910, § 64.

— re ee gw are aeons [3] 8. The court charged the glob Bod
hiss hg be CS ” reasonable doubt of the law does not meal
ta being hee, poate or kit BO a fanciful or captious [capricious?] doubt, it
The defendant made two statements before does not mean a doubt arbitrarily exeated
the jury. In the first he stated, in part: “I jn the mind of a juror for the gine A
walked up to the door and hailed, and Shed- finding an excuse to acquit; oak : metas
rick said, ‘Who is that? and Shedrick told goybt which has some reasona Pigee 09
me to come in, and I walked in, and she was ypon which to rest, it means a doubt o Fag
lying down on a pallet, and Shedrick and his jpinded, reasonable man and garet tine.
wits was in the bed, and I walked in, and My honestly in search after the trut pa ~~
old lady commenced to fussing at me, and I goubt grows out of the thee eh poe
said, ‘didn’t come for any fuss; I am not 80- dence, or proven circumstances . odin -
ing to bother you,’ and Shedrick said, ‘She ae In connection with this ne ee -
scared of you because you have got that gun’; go instructed the jury in the nt wg 2 ger
and I said, ‘If you believe that I am going to Code as to the right of the eae an = —
bother you I will give the gun to Shedrick,’ 4g statement before the jury. — —
and I was‘holding the gun for him to take, additional instruction, the ae aie * oS
ad she said, ‘I am not scared of it,’ and I defendant’s statement before le jury, re
had the gun in my left hand, the barrel stand- ee no ee waatiek pt ah
j he ence to the second shot,
wa Ss ee ee ones re n, or the confession to the sheriff, as showa
eee g cts gees rok pe pes xe ba i the uncontradicted evidence, the foregoing
ge eign eT ar Aa en. haan on pei was not cause for reversal on =.
hig seat went there to get my old lady to ground as contended, ae oS a ates
‘ idn’ ve i i . the jury that a reasona
aes palace Linge bra pic the defendant’s statement; that such
eng apg beige 8 eh the charge negatives the idea that a ———
eae 2 id, in art: “When Mr. Howell doubt can arise from defendant’s ee a
a s oa ‘ss I said, ‘I was In this connection see Golatt v. State, 130 ger
nite poe | for you,’ and he said, ‘I 18 (2), 60 S. E. 107, holding: “No ae
ae vata you, * * * , I said, ‘Wait a manslaughter was involved in — ees
rae! chan I haven't eat any supper, and evidence showed a higaae eee —
1 een ee. ad as ane pin are death was caused by an
ee eas ee ite and ee accident not involving criminal cerns age
papi oae| we walked to where the gun was on = ~~ bias saree hod eS ee.
ing ‘ , and he wanted murder. was, > ;
pana Rad ahi gio I said, ‘I don’t ful to him, or requiring a eg tghaiara
ie ’ and he wanted to know if I had some- court said to the ag a a cane
thing, and I said, ‘No,’ and he didn’t say manslaughter | in the > + + hee
any more to me, and we come on to town.” manslaughter. See, also, g A

BEAN v. BARRON , Ga. 259
168 8.E.

88 Ga. 731 (4), 16 8. E. 64; Jordan v. State, 3. Appeal and error €=933(1).

130 Ga. 406 (2), 60 S. E. 1063. A request is

Where order refusing new trial did not

made to review and overrule the rulings re- conclusively show that trial judge failed to

ferred to in the two cases last cited, and in

decide fact issues necessarily involved, he

all others preceding and subsequent to those was presumed to have made findings thereon.

decisions, “in so far as they hold that it is
not error to fail to refer to the prisoner’s
statement when charging upon the doctrine
of reasonable doubt.” In view of the sub-
stance of the prisoner’s statement in this
case, the principle contended for in this re-
quest, if tenable, would not be cause for a re-
versal. All the Justices do not concur in the
view that the former decisions of this court

should be overruled.

[4] 4. The evidence was sufficient to sup-
port the verdict, and there was no error in

refusing a new trial.
Judgment affirmed.
All the Justices concur.

BEAN et al. v. BARRON.
No. 8949.

Supreme Court of Georgia.
Jan. 138, 1933.

On Rehearing March 4, 1933.
Syllabus by Editorial Staff.

I. Jury G>110(1).

Unless parties knowing, or having rea-
sonable grounds to suspect, jurors on list fur-
nished them are disqualified, call attention to
fact, disqualification is waived.

2. Attorney and client G=104.

Rule imputing agent’s knowledge to prin-
cipal under certain circumstances applies to
attorney-client relationship.

Rule is that the law imputes to the prin-
cipal, and charges him with, all notice or
knowledge relating to the subject-matter
of the agency which the agent acquires or
obtains while acting’as such agent and
within the scope of his authority, or which
he may previously have acquired, and
which he then had in mind, or which he
had acquired so recently as to reasonably
warrant the assumption that he still re-
tained it; provided that such notice or
knowledge will not be imputed where it
is such as it is the agent’s duty not to
disclose, and where the agent’s relations
to the subject-matter, or his previous con-
duct, render it uncertain that he will not
disclose it, and where the person claiming
the benefit of the notice, or those whom
he represents, colluded with the agent to

cheat or defraud the principal.
——

4. Appeal and error G=1015(1).

Trial court’s findings on fact issues rais-
ed on motion for new trial, supported by some
evidence, held conclusive.

5. Courts €=99(2).

Judgment overruling demurrer raising
statute of frauds, not excepted to, became law
of case; hence court properly overruled
ground for new trial which soyght again to
invoke statute.

RUSSELL, C. J., dissenting.

Error from Superior Court, Jefferson Coun-
ty; R. N. Hardeman, Judge.

Suit by Mrs. L. O. Barron against B. C.
Bean and others, Judgment for plaintiff, de-
fendants’ motion for a new trial was overrul-
ed, and defendants bring error.

Affirmed.

The order overruling the motion for a new
trial was as follows: “While there are various
grounds of a motion for, new trial presented
by way of amendment, in my opinion the
grant or refusal of a motion turns upon the
alleged relationship of jurors. Surely it is
not necessary nor would the court undertake,
to pass upon the credibility of the witnesses,
pro and con, touching this ground of the mo-
tion. The court gives full credence, both to
counsel and to the other witnesses making

‘ affidavits with reference to relationship and

knowledge of relationship. The court can
readily understand that a man may know a
thing, and for the time being overlook it al-
.together, and it did not occur to him that a
certain party is related. The court has often
had this personal experience. After a careful
review of all the record in the case, I can
find nothing harmful to the movant: and the
evidence, though conflicting, authorizes the
verdict. For the above reasons the motion
is overruled and a new trial refused.”

The other essential facts sufficiently appear
in the syllabus.

N. J. Smith, of Louisville, Roy V. Harris,
of Augusta, and G. M. Nottingham, of Macon,
for plaintiffs in error. ; ;

R. G. Price, Phillips & Abbot, and M. C.
Barwick, all of Louisville, and Geo. ©. Evans,
and Eyans & Evans, all of Sandersville, for
defendant in error,

Syllabus Opinion by the Court.

BELL, Justice.

{1} 1. “When parties are furnished with a
list of the jury, it is their duty, if they know

>For other cases see same topic and KEY NUMBER in all Key Number Digests and Indexes

VOAVERSGED Yor OF A ARARRA

‘

4

Katy an SF


“pee We,
won,

Oconee
WELLS, Thomas, white, hanged Watkinsville, EXA#KH Co,, Ga., probably 10-21-1820,

"Clarke County since Oconee was cut off from it has never had a hanging, Some years
ago a negro was found guilty of the murder of Henry Hunter and was sentenced to be
hung, but through the efforts of Rev. Je L. Stevens the sentence was commuted to life
imprisonment.

"But long ago there was a peculiar case in which Thomas Wells was convicted of the
murder of Peter Perry by evidence furnished by the murdered man after his death.

"It was in 1820 that Wells, who had a handsome wife, grew insanely jealous of Perry,
sought a difficulty with him and challenged him to a duel, Perry declared his
innocence of any improper conduct and his belief in the virtue of the lady and ree
fused to fight. Sometime afterwards Perry was found one morning in his garden

dead from a shotgun wound. No one had seen the difficulty and the murder was a
mysterye On opening the will of the murdered man, it stated that he expected

every day to be assassinated by Thomas Wells, who hated him without cause and he
enjoined his friends, whose names were there recorded, Mr. Thémas Hancock being one
of them, the prosecute Wells for his murder, Wells’ manner on being arrested, the
paper wadding found by the body, and his recently discharged shotgun were all put
in evidence at the trial, He was indicted and tried for murder before Judge
Clayton. The challenge sent Perry and threats made by the accused were proven and
the a ccusation of the dead man was sustained, Wells was convicted of murder and
was hung in Watkinsville. Both of these men lived in Clarke County and were pros=-
perous and well-to-do, owning both land and negroes,"

ANNALS OF ATHENS, GEORGIA, by Augustus Longstreet Hulls copyright, 1978, by Mary

Be Warren; Danielsville, Gas: Heritage Papers, pp 378=379

EE —— att Pe Be

Slaves WILLIAM and LITTLE WILLIAM

Hanged, Savannah, Gaey July 2h; 1829,

"The two slaves, Witliam and little William, the property
of Joseph Stiles, Esquire, were yesterday executed in the
rear Of the jail (at Savannah, Ga.) pursuant to sentence
for the murder of Mahlon Dickinson, the overseer of Mr.
Stiles' plantation at Green 4+sland, = GEORGIAN, Savannah,
Gas, July 25, 1829," COURIER, Charleston, 7-27-1829(2/h.'
WA KAXKE

"Savannah, July 3 <The driver William and the boy William
were yesterday tried before the inferior Court for the

murder of Mr, Dickinson, overseer of Mr, Stiles, at the
nierkattion at eens ie eat by Cs 3a . ere

The attached account of heir crime establishes
That ‘Little Willianr’ was 5 juvenile.

§

oe
& “a
iw
ae
agg
Be ks
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oh
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be
ae
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blows withan ate
age, named Jani,

) “fe luw advanced Sn ke
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ibiy evening — Sav

} buried 4 1e brad — Thelthreesy

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 Heeratched


an Bin

WILKINSON, George, black, hanged Waynesboro, GA November 22, 1918

, of his wife, Gover ior Dorsey having |

i refused ‘to igrant | his petition for
clemency. Attorneys for Polk made’
a plea of insanity and a commission
was appointed by| the governor to
make an He ea eation. which re-.
sulted in. the report to the effect
that Polk is}/sane.| j.. - | :
;1 George Wilkinson; of Burke, was
| hanged Friday) Governor Dorsey re-
fusing to grant. clemency in this
case, His brother, Henry Wilkinson,
| who is sentenced | te 3

‘game: crime, hag bee :
| pite of two weeks: pending

\ | eSeeee gh: investigation. °"*.

Co PBT! fo paw
COHaute Ge

// [22 / ae

CS~7 )


je

wae vernor: Dorsey Thursday: respited
rod Jo “Polk, of Milledgeville, who was a
stenced. to be hanged: Priday for the f- 2)

tenced to be hanged: Priday for the
murder of. his ‘wife’ in' 1910, and; George
Wilkinson, a: negro,2: of." rfaynesboro,
who -was:also. gentenced ‘to be. hanged

~

for, the. murder of, amother. ne-.
Erideyiney were respited: patil, Octo-

at es
wv tad

qe area

} po ° , “4K < 3 ty ; etd Fie: :
. per % 18. + RRS at aa * A ea St, 2a py gt ote ee, 7 he ey. @ er © : >

: . f .  ccguinathatee bet cwnnenn eee Me ea = ema : yes sot
r 3 ae ate ~

Clemency Refused T wo.

The prison co
Flag mmission
clinéd to grant the appiiseee” de-

commutation of Ge for/Q|_, )
Tecommended the orse Wilkinson, but Y HITE

Harry Walkinson: | The W

OH aveta, GA


WILLIAMS, Charles, black, hanged at Bainbridge, Georgia, on 8-3-1917.

“ft
if

fs
+i hoe

ade the judgement of the Superior Court of Decatur County, This June 37th 1917.
i. .
W. M. Harrel?, Judge S.C. A. C.

State of Georgia, Conviction of Murder In Decatur Superior Caurt.

--vs- During the November Term 1916.

weOharley Williams.  ) Whereas at the November Term 1916 of the Superior Court of Decatur Coun-
: y, on the 23rd day of November 1916 you Charley Williams was put upon trial for the offense of
urder in the killing of Willie Edwardes alias Minnow Edwards, and Whereas the jury empannelled

®.

‘e try the issue formed upon the indictment against you by your plea of not guilty entered thereon

ving returned a verdiot of guilty against you without any reccommendation of mercy, and without ©

y reccommendation that you be punished by confienment in the penitentiary, and Whereas, in esid

t = em of said Court sentence of death by hanging was imposed upon you by the Court, in which the
) a q xeoutions was fixed to be done on the 329th day of Dacembar 1916 between 10 A. M. amd i P.M.
. ‘And whereas the sentence was not executed by reason of the fact that supersedeas was granted upon
your filing a motion for a new trial and Carrying the case to the Supreme Court, and whereas, the
, | upreme Court affirmed said sentence, and remittur from.said Supreme Court has been filed in the
aa fice of the Clerk of the Superior Court of Decatur County whereby said original sentence hag be
ie me come final, and the same is now standing in full force. It is now considered ordered and adjudged 7
os that the Sheriff, 5. W. Martin, of Decatur County, or any of his lawful Deputies be andthey are
ide eneby commanded to do execution of said original sentence of death against you on the 3rd day of
17, anit 1917, between the hours of ten oclock A. M. ami 8 oclock P. M. upon a gallows erected in the
3 ul of Decatur County, or at some other place designated by theOrdinary of said County, by hanging.
4 — by the neck until you are dead. The Sheriff or his daputiae are hereby required to do execu- 7
thon of enid sentence according to the terms provisions and directions of the same as originally mp
pox passed, and thie shall be hia or their warrant for so doing. Ordered and done in vacation at Bainkt
and:

nut J counsel being present.


ef
t

5 SOAR

as a misdemeanor. This the 23rd day of November 1916.

BE, Jd. Willis, Foreman.

Indictment for Murder, In Decatur Superior Court, Nov Term 1916.

oe

_ys- | \ Verdict of Guilty.
)
)

‘Charley Williams. You, Charley Williams, having been indicted by the Grand yury of the
eo Superior Court of Decatur County, at the November Term 1916, for the
‘offense of the Murder of one Yillie Edwards, alias Minnow Edwards, in said County, and
having been placed on trial at the said term of said Court for the said offense, and the
jury empannelled to try the issue formed upon said indictment by your plea of not guilty
thereon, having returned a verdict of Guilty against you without any reccommendation of
mercy, and without any reccommendation that you be punished by confinement in the Peniten-
tiary for life. It is thereore ordered, considered, and adjudged, by the Court, that you
poe by S. W. Martin the Sheriff of necatur County, oF his lawful Deputies, taken from the
‘bar of this Court to the common jail of said County and there safely kept, until the agth
‘day of December 1916, on which date, between the hours of 10 Oclock A. M. and One Oclock
iP. M. you shall be privately hanged, by the neck, until you are dead, upon a gallows erec-
ted in said jail or at some place designated by the Ordinary of said County. It is further
ordered that such relatives of said Charley Williams as may be designated by him be per-
mitted to attend him at such execution, and that his body be given to whom he may choose
rand direct, if guch person or persons 80 designated by him shall want or desire to claim
Fthe same, otherwise that his remains be buried at the expense of the County. It is further

tattend the execution and pronounce when death of said Charely Williams supervenes. it as
furtherm ordered that the said Sheriff summon and deputize a sufficient guard to carry in-

to execution this sentence. It is further ordered that such Clergymen and friends as said
ECharley Williams may desire be permitted to attend and witness his execution. May God Have

(Mercy on your Soul. This the 23rd day of November 1916.

ae : E. E. Cox. Judge S. C. A. C.

- The Court then took a recess until Friday morning November 24th 1916.
FPRIDAY, November 24th 1916.
C a. The Honorable Superior Court of Decatur County, met according to law, His Honor
pr Cox, Judge of said Court then and there presiding.
pthe ®.. ) Indictment for Assault wit: int MD to Murder. &
i ee J \ :

2. eR ee RnR RRR KAA FT TAA Wee


te FALE TEE TY ENE RE See Bh lat ae a 1 ch atid BR te ee are.

WD Tap seen ste ok

198 = Ga.

to be applied to judgment, was not an abuse
of discretion,

—_—__——.

R. L. Dawson, Ludowici, for plaintiff in
error.

R. L. Carr, Glennville, for defendant in
error.

Syllabus Opinion by the Court.
HAWKINS, Justice.

Mrs. Pauline Overstreet Swindell filed
her petition for temporary and permanent
alimony for herself and minor child,
against John E. Swindell, Jr., in Chatham
Superior Court, on February 19, 1944. The
defendant acknowledged service of the pe-
tition and process, and agreed for the case
to be tried at the first term of court. The
case was tried at the June term, 1944, anda
verdict in favor of the plaintiff was ren-
dered by the jury on June 28, 1944, award-
ing to the plaintiff $30 per month for her
support and $30 per month for the support
of the named minor child of the parties.
No judgment or decree was entered at that
term of court, or within four days there
after; but on July 30, 1945, without any
application, petition, notice, hearing, or evi-
dence—apparently on the court’s own mo-
tion—a decree was entered nunc pro tune
as of June 28, 1944, the date of the verdict,
making the verdict of the jury the order,
judgment and decree of the court. In Sep-
tember, 1951, the plaintiff brought a rule
for contempt against the defendant for fail-
ing to pay the permanent alimony as re-
quired by the decree. To this rule the de-
fendant filed his answer, in which he ad-
mitted that a verdict had been rendered in
the alimony proceeding as alleged, but de-
nied that any decree was rendered therein
by the court at the term at which the ver-
dict was returned, or within five days there-
after, and alleged that he had never been
served with any petition or notice that the
plaintiff intended to apply for one at a later
date, and that no petition was ever filed by
the plaintiff asking for a decree and judg-
ment nunc pro tunc. To the judgment
holding him in contempt the defendant ex-
cepted, contending that the decree for ali-

69 SOUTH EASTERN REPORTER, 2d SERIES

mony was void because entered nunc pro
tunc without any application, petition, no-
tice, hearing, or evidence, and that the evi-
dence introduced on the hearing was insuf-
ficient to support a judgment holding the
defendant in contempt of court. Held:

{1-3] 1. While a court is without pow-
er to punish a husband for contempt for
failure to pay alimony awarded by a void
judgment or decree, Allen v. Baker, 188
Ga. 696, 4 S.E.2d 642, and while Code, §
110-302 provides that the party in whose
favor a verdict shall be rendered, or his at-
torney, shall be allowed to enter and sign
up a judgment thereon at any time within
four days after the adjournment of the
court at which such verdict was rendered,
even though a judgment and decree for ali-
mony may not be entered on a verdict at
the proper time, every court has the inher-
ent power—and it is the court’s duty—to
correct its own records to make them speak
the truth. Seay v. Treadwell, 43 Ga. 564;
‘Whittle v. Jones, 198 Ga. 538, 32 S.E.2d 94.
Where based solely on the record, and
without the necessity for the introduction
of extrinsic evidence, the court may, on its
own motion and without notice, enter such
judgment and decree nunc pro tune at a
later date; and since such entry simply
perfects the record, as between the parties
it relates back to the time when it should
have been entered, although a different rule
would apply to sureties, intervening bona
fide purchasers, or innocent third parties.
Code, §§ 24-104(6), 81-1201; Walden v.
Walden, 128 Ga. 126, 57 S.E. 323; Kelsoe
v. Hill, 58 Ga. 364; Sloan v. Cooper, 54
Ga. 486(4); Vaughn v. Fitzgerald, 112 Ga.
517, 37 S.E. 752; Scarborough v. Mer-'
chants & Farmers Bank, 131 Ga. 590, 62
S.E. 1040; Chapman v. Chattooga Oil Mill
Co., 22 Ga.App. 446, 96 S.E. 579. The de-
cree attacked was not void for the reason
assigned.

[4] (a) While in the cases of Kelsoe
v. Hill, 58 Ga. 364, and Chapman v. Chat-
tooga Oil Co., 22 Ga.App. 446, 96 S.E. 579,
supra, reference is made to the fact that
there was proper application or motion and
notice before entry of a judgment nunc pro
tunc, and while in Walden v. Walden, 128

WILLIAMS
Cite as 69S
Ga. 126, 133, 57 S.E. 323, supra, reference
is made to the fact that no question was
raised as to the regularity of the motion to
enter the judgment nunc pro tunc, or as to
whether notice was given, and while in
Millis v. Millis, 165 Ga. 233, 242, 140 S.E.
503, 507, a case wherein the entry of such
a judgment depended upon an investigation
to be made by the trial judge as to the
facts, it was said that “Certainly, the bet-
ter practice would be to file a motion for
the grant of such nunc pro tunc judgment,
and give to the opposite party notice of
such motion and an opportunity to be
heard”—none of these cases holds that a
formal application or motion and notice to
the opposite party is essential where the
judgment to be entered is based solely on
the record; and we hold that a judgment
nunc pro tunc, which is based solely upon
the record, without the necessity for the in-
troduction of any extrinsic evidence, and
which would follow from the record as a
matter of course, may be entered by the
court on its own motion and to make its
record complete, and without application or
motion and notice to the opposite parties.
Scarborough v. Merchants & Farmers
Bank, 131 Ga. 590, 592, 62 S.E. 1040, supra.

[5] 2. On the hearing of the case, the
trial judge found. that there was due and
unpaid a balance of $2,099 as permanent
alimony for the support of the minor child
of the parties. The plaintiff testified that,
while all temporary alimony had been paid,
only $660 had been paid on the permanent
alimony decree since the rendition of the
verdict, and that this had not been volun-
tarily paid by the defendant, but as the re-
sult of two criminal warrants for abandon-
ment sworn out by her against the defend-
ant. While the defendant testified that he
had contributed everything he was finan-
cially able to pay to the support of the
plaintiff and the child, and his health was

vy. STATE Ga. = =199
.E.2d 199

to handle all dealings with the plaintiff—
the defendant was present before the trial
judge, who had an opportunity to observe
him and his apparent physical condition,
and he gave no facts as to what his earn-
ings had been or as to his earning ability.
It appeared that he had since remarried,
had a wife and two children, and was liv-
ing with his mother at the time of the trial.
Under these facts, we cannot hold that
the trial judge abused his discretion in ad-
judging the defendant in contempt, and
ordering that he might purge himself by
paying $250 in cash, an additional stated
amount as attorney’s fees, and $50 per
month for the support of the child, $30 of
which would be applied to the current ali-
mony coming due at the time of payment,
and the balance of $20 to be applied to said
judgment. Townsend v. Townsend, 205
Ga. 82, 52 S.E.2d 324; Whaley v. Whaley,
208 Ga. 323, 66 S.E.2d 722.

Judgment affirmed.
All the Justices concur.

208 Ga. 704
WILLIAMS v. STATE.

No. 17735.

Supreme Court of Georgia.
Feb. 18, 1952.

Murder prosecution wherein the Superior
Court, Richmond County, F. Frederick Ken-
nedy, J., rendered a judgment of convic-
tion, and defendant brought error. The Su-
preme Court, Hawkins, J., held that evidence
was admissible, which tended to show ill-
treatment and eruelty on defendant’s part
toward his wife shortly before the uxoricide,
for the purpose of showing malice and mo-
tive and to rebut the presumption of the

very bad; that he had spent six months improbability of a husband murdering his

of the past twelve months in the Veterans
Hospital, during about two or three months
of which time “I drew a small amount for
some help I rendered in said hospital,” and
that he had lived with his father on a farm
most of the time since the separation and
had depended on his father and his promise

wife.
Affirmed.

1. Homicide C159, 166(2)

On trial of one charged with murder
of his wife, evidence was admissible, which
tended to show ill-treatment and cruelty on

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294 Death and the Supreme Court

current was turned off, and it was all over for Aubry Lee
Williams. The Sovereign State of Georgia had exacted its
due, and Harry Furst was avenged.

Suppose the question of the yellow and white tickets had
been raised prior to Williams’ trial as it was in Avery’s. Would
it really have made any difference to Williams? Would he not
have been retried, reconvicted, and then finally executed any-
way? We have no way of knowing, except perhaps by the
example of Avery himself. Avery, who also had been sen-
tenced to death, was allowed to plead guilty after the Supreme

Court reversed his conviction. He received a sentence of
twenty years, and he sits today in a Georgia prison.
Tickets are still used to select juries in Atlanta. But they

are all the same color now. The yellow tickets died with
Aubry Williams.


WATSON, Lewis, black, hanged at Isabella, Gass» on 12-

Encsaeanrgy te
—e

te ee a

‘ bas i iE

SeaSR

eusion—ecmes at the Galiows.

Lewis Watson, co'ored, publicly ex-
Piated te crime of aaurder at. Ieabeiia,
Worth county, last Friday, by yielding
ap his own life oa the gallows.

B At 4:45 o'clock ‘that moruing

a News axp ADVERTisgg reporter
left for the scene of the execution by
\ the B. & W tralia, having purchased a
ticket for [sabella station.

Arriving there jast as the dawn was
breaking, he climbed out into the
murky atmosphere, and having sar-!
veyed the situation, and having been
} uvpleasantly Impressed with the cold
and chrerieas appearaace of the still
‘Sleeping village, desided no: to atup
' there Just theu, aod suiting the action
‘tothe thought, Sprang upon the train
;Just as it was moving off and went on

‘dewa to = Sumner. Here the

‘ firat man be met was
Editor Allen, of the Worth Local,
‘who took him io hand aad extended

‘him every courtesy for two hours or

, More, or until the west bound way-

freigut cane along, when dreading a

'O ue miles drive to Isabella through |

the cold, the reporter boarded that

itrala sud returaed to Isabella station.|
On bowrd were a large nomber ot
1, Persous from the lower section of the
b,) Covinty, 2n route to witness the execu-
thot, Arriving at the station, the re-

porter 8 epped out avain and in com-
g * pany wich several gentlemen from Ty
T7, among thew Happy Jim Ford and

i Depaty Sheriff Green, Neleon, proceed-

x ' ed to fort icto [sabelia Court House, a
distance of three miles, Arriving there

the repo-ter lramediately Proceeded to

investly te a box o; potted ham, a

seanll pice of Chasse, some crackers,

whioh ob: washod down with & glass

e: Kluge ale, thls be'ng the oaly boy-

CrAge otmalnable. A stalk of sugar

cane foil wed this revast, and while en-

Roget it. “chawlog” it, he ran against

Stor (ox and was immediaely tak-

en ty the jail where the deomod man |
WAS Watng, |

Being worittad tothe prison or’s cell,
the reporter subjccced Watson to a

anor a4 interrug stious, which he en-|
ssered | ins. canhet orward an'l earnest |

WEEKLY NEWS AND ADVERTISER, Albany, Georgia, Dec. 13,

{LRWOS Watson GWwusG OFF AT
' -BMABELLA YEsTeRo iY.

He Said Re was. Mendy te Vo—Twe) ;

a ot yoquntnad Land mado earnest inquiry of tie pris

mee Her,
ed Jack Curry, butsaid that Curry had
bretally beaten his (Watsor*s) wile
awd thre tened ais life seversl thmes,
anelunder the pressara of the fidignits
aeltheihreats hebal shot Curry. Ge
waacdhe tad sought che Lor! for for;
giveness ind tad fouid tt aad was not
ateaid otis Daricy the reporter's
curversa ion wirh him, two of Wat;
sorta te seo friends came fa to sing
nin Oveof them atplied the lather
ta vie bs: ml aad the other use. the ra.
‘ge. Tas job having been cu:aple'ed,
‘Rev. Jordan Merritt, the doome
‘man's spiritual adviser, was admit

on-¢ a9 W hia hopes of heaven, which
were ausweret fn the same muuner a
“brhalexoress-l htaself to the re-
-po -r Atthla juncture the prison-
_@°'8 burial «ult was boughs in which
he at unve proceeled to don, talking.
‘he while to Chose in the cell. Che cell]
was very slack, and the prisuner was
Lalven Nght to drees by by matches
Ickheu and beld by chose around him
“‘norittthe arrival of a vary rkickly limp,
whose ba'eful glare made the g'vom of
he ce!l tuore oppre-sive.

At 10:45, Watson baving completed
U- tolles, Soertif Cox entered the cell
ened read the death warrant, which the
seleouer heard without the quiver of a
‘nus.e. Adelay of twenty minutes
shen cnvuvd, when Deputy Sheriff
‘Hrean Nelo cams in anid piecing a
acelct on the prison-r's left wrist led
alin out of the jail and forth fram the
fall yard. At the gate of the j.il yard
al a two-hurte wagon fo which was
Dre prisoner's cofln, A deuse throng
wrnposed of two thousand peuple, of
seth races little aml bi, old and young,
Mord around the gate and walted with
eager curlowity the ay pearance of the
foamed man. At 11:03 Sheriff Cox,
Deputy Nheriil Nelson, the reporter
thd the prisoner got Into the Wrgon on
the peat of which wit wo white farm-
ste da the wnpacity o ess. Eigh-
‘oon pivked men bracing Wiel ester
“Bes wet whut guna then took soaltion

sehind the wagon and theu commenced |-

he:
Tipe Te) TA" Gattows,
AS the proveaston moved down the
‘Oabway, in tront aad vehind the Wag-
ah Bearley ihe Pleoner, two cr three
 undized ywcds in either direction, waa
' safous ant eiger throng su:u + seea-
| AR aprrectate the ssiomulty of the
| Meabbon, whiie uo hers vere jogiag aud
| aughing as it they ware doing some-
MING more ploacant than following a
aan to tie scene uf an ignoiinious
| death.
| at TUE UaLLows,
The pr wesston arrived at the Place

4 orkeea tur at cis The “pot on
Thiol cae watiows eto isa hail mile
West GF she escaet house, about one |
medent yards from the public road
nh wh Ow whhel made a natural
SHON we APrd was an Open

Wowwou, with now and thea. stubby

ted My ater se Geo St On Se pe or

|

‘ suadred yarda in ether drection, wae;
“\Vcurious aud eager thounZs sou:

5-1890.

‘Oaiway, in front aged oehind isa wage |
m bearicy Ube prisonor, bwo or there

mares

‘ag toaprrectate the selemulty of the
rvasion, whiie oLhera were jodiag aid
‘aughing as if they ware dolny some
hing more pleasant tian following a
nan to tre scene of an ignosainious
feath.

aT THE GALLOWS,
The precession arrived at the place 4
wf execu‘ton at 1:14. The «pot on!
which tae gallows stool is a half mile
West of the court house, about one
aundred yards from the public road |
sad in a hollow which made a natural
amphitheatre, Around was an open
dtuewoods with now and then « stubby
black-jsck oak, which In no wav « fect-
sd the view from either directlun
Around the gallows » rop» had beun
stretched, and Into this circle the pria
wer with hia spiritual adviaxr, the
sheriff an! deputy sheriff, tne phyal-

slans, the guards and newapaper rep.)
vesentatives Oaly were almitted. As
2900 a3 the guards hal beeu pleomd

od the inclosure, the prisoner with .
Oty Sheriff Nelson mounted the!
d and Watson commenced to
make a statement which was no
statement at all, but a
ervid — religious exhortation,  ac-
-ompanied with many contortions of
sody and face. He did not allude once
@ the crime for which he was about to
ile, except to entreat his hearers to be
varticular and let his case be a warn-
‘ag to them, and blessing the Lord for
he peace of beart which he felt. He
‘Ontioued thus for a half rv hour,
when be was made to deacend from the
scaffold, aod —_ Rov. Jordan Merritt
fered up an aloquent praser for the
weifare of ths prisoner’s soul and fur
che: souls of the entire thering.
Chis was filiowed by the elaging of
ymin in which a large qumber: joined,
and then the sheriff pat a bleck gown
2m the prisoner, who then shook handa
with every one in the luclosure and with
several outside. The cuff was thea
takea from his wrist, and followed by
the Bheriff and Deputy Sheriff. ho as-
‘ended the scaffold with an uofrlcering
step fer the last dime.
che vilege of another short talk,

nankfag Sheriff Cox and the People of
:gabella fur the kinduess of their treat.

ment of Lim whlfe tn jal. sheriff
Jox ‘then tled hts feet ‘togvther, his
tacdéOehtod bim, adja the noose |

ind placed the black cap over his head.
@ CWO officers then descended from
he scaffold und Sheriff Cox then walk-
‘ti round to the egat side of tire weal
old: 7 “Nad out:

“DQ Ed aup, Lowts,””
+ di everybody,”

suspendad
vee end earth, convulsive:


er he Dore a Apieadiu reyptation. me
‘ane to Worth county "from North
Caralipa three yeats 3Z0, ore was pre-
paring to return to his ative nee
wheu he became involve 1 Inthe trouble
wich ended with his life. |

The guard was composed of men ot |
acknowlelged grir, and an aitempted |
rescue of the priaoner wou'd have re-
autted disattrously to the parson mak-

+6.

 Shetitt Cox discharged the unpleas-

ion:«f the execution with>
ant obligat -ahietd

2 calm courage for which he
7 Ihe repre tabarnall froin the scene |
of the execution by way ot Willing-
ham, where, owing to a considerable
delay in the evening train, he was per-
mitted to look over Alford & Sloan's
bizsaw mill. The ‘imd2r for this mill
is being hau'ed over their tramway
seven miles. This plant ard its ay-
purtenances ls onc of the most valnahle
in (ieorgia. ‘Co the Mesers. Altord anid

to Manager Johnion, the reporter ts
indebted for many courtesies. ‘

ey tived q
vomited In treable betwres thelr wives,
A¢ & resait of this trouble O gAve
‘Watson's wite a whipping, K ber
in the tace with a hoe haodi«.

The rietora of the mill hearing
of the trouble between the two famtifer
offered to ¢eparate them hy giviag one
of them a house in a er quarter, |
provided they would keep apart and
allow mo Intercourse between thelr

famllies..

Watson socepted the proposed pnace
offering and moved hie family. But
he seemed to brood over his trouble
and his passions overcame him to such
an extent that oo the night of the 26tb
of September he sought the quarter
where Curry lived, carrying with him
a shut gun loaded with buckshot.

As he neared the quarter he station-
ed himself in the pathway along
which Curry was obliged to go as he
went to his work. As the asgas-in'’s
victim drew nigh Watson ralasd his
$10 and fired. Curry, expecting such
an attack, had his shotgun on his
shoulder anlas te felt che lead driv-
ing into his vicala he leveled bis weap-
on and tired at the fugitive.

‘Che shots brouzht parties from the
quarter near by who fouud Carry
prostrate fram his wound, but till}
alive. They carried himto his house
where he soon died, but on his death
bed told of the murderous assault made
on him by Watson.

He was shot in the side, the full foroe
of the shot being nearer the front of
the body than tne back and after his
death thirty-eight buck shot were
picked from the wound.

Watsoo claimed on trial that Curry
shot first and that be simply ehot tn
self-Jefense, but as Watson’s wound
was in the back he necessarily received
it while ranu{ng and aiter he had shot)
Curry. -

Watson was tried before Judge Bow-
er, the court apprlated lawyers for hia
defense, he was given atull, fair end
impartial trai! and the jury brought ina
verdict of guilty. Tue sentence of that |
verdict was carried out and Jack
Curry’s murder has bsen atoned
with the life of his assasain.

NOTES.

With the exception of a few taara
shed during his first exhortatio.
on the gallows, Watson did not
betray the slightest nervousness, Even
a6 he stood with the noose around his
avck he waa as cali as if no thought
of his frightful doom had ever occur.
| red to him. ‘

He was not an unpleasant-luoking
‘negro either, but the coctrary bore
the appearance of a good negro, and It
ig said, that up to the time of the mur-

der he bore a spleadid reputation. He
csine to Worth county from North
Carolina three years azo, and was pre-
paring to return to tis native home
wheu he became iurolve | ia the trouble
wich ended with his life.

The guard was composed of men ot
Yee t- o. 8 Pa a |

enlanm inden ne

SASTERN 39
WELLS, #7. R., White, hanged at Atlanta, Georgia, on July 21, 1902.
"avlanta, July 21, 1902-% R. Wells was hanged in the execution chamber of the Tower this
méyning shortly after 11 o'clock by Sheriff Nelms, for the killing of Frederick Pierce, a
blind man, last February. Wells met his fate calmly and gave the prison officials abso-
lutely no trouble, For several days before the time for the execution he had expressed a
desire that the ordeal might be finished as quickly as possible, When he saw that there.
was no chance for him to receive a respite or a pardon, the condemned man frequently said
he did not care how soon the execution took places Wells, some time beforehis conviction |
on the charge of murder, professed conversion am was baptized in a bath tub at the Towers
The crime for which he was hanged was decidedly out of the ordinary. He met Pierce on the
street and had a conversation with him that finally becamea dispute, Wells, who was the
proprietor of a small wood yard on Pratt Street, asked Pierce why he did not patronize
him, , While dicussing this the difficulty arose, Pierce struck at Wells with a stick and
is said to have knocked him down, Wells then started away, but on finding that he was
bleeding on the head from the blow given him by the blind man, returned and stabbed him |
in the back, Pierce died thenext day. The blind man was being guided by his little son,
who, when he saw that his father had been attacked, took the stick and struck Wells, The
little fellow was beating his father's assailant when persons nearby came to his assistance, "
DAILY NEWS, Pensacola, Florida, 7-22-1902 (1-.)

"We Re Wells was hanged this morning and the murder of Frederic Pierce, the blind man,
is avenged, The death trap fell at 11:06 o'clock, and his neck was broken by the fall,
but for 15 minutes the heart beats of the dying man could be felt. He mounted the
gallows game to the core and died without a struggles At 11:21, when the county phy=
sician had pronounced him dead, the body was cut down, The execution by order of the:
court was private and was witnessed by only the sheriff and his deputies, a minister —
of the gospel, two physicians, an undertaker and P, C. Coker, a brother-in-law of Wells.
By reason of the absence from the city of Judge John S, Candler, who sentenced “ells to
die, the man's dying request that certain friends bg admitted, was denied, The judge
issued an order to admit only relatives and such friends as Wells requested to be pre-
sent, the friends having to be approved by the court, The court was absent and the
sheriff therefore did not admit any one, Frank Hilburn, the undertaker, who took
charge of the body, was admitted as a deputy sheriff, It was only a minute or two bee
fore 11 o'clock, when Wells was led from the condemned cell to the death chamber, In
his ‘cell he had just held religious services with Reve Je S. Goodwin, the jail chaplain,
and Uncle Richard, an old-time slavery negro, who had known the condemned man all his
life. Wells had told them, as he had told all who had seen him, he was ready to die. He
entered the execution room without a quiver and mounted the steps leading to the gallows
alone, He carried himself erect and took his stand on the trap without being told or
shown. In the.death chamber were Sheriff Nelms, Jailor Fain, Deputy Sheriff Chastain,
Dr. We Ce Fisher, the county physician, Dr. C. E. Hall, the United States physician for
prisoners at the Tower; Reve J. Se Goodwin, Frank Hilburn and P,._C. Coker, Wells
faced this little band and Dr. Nelme read the death sentence, ‘And may God have mercy
on your soul,' echoed through the corridors, as the sentence was complete, Jailor
Fain stepped forward and bound the man's hands behind him and tied his ankles together,
Deputy Chastain adjusted tie rope about his neck, Sheriff Nelms then:called to wells
40 say anything he cared to, 'I am going to a better land,* spoke Wells, clearly and
without a tremor, The sheriff then stepped forward and said: 'Wells, this is a sad
duty for me, Look once more on the beautiful sunlight, before you leaves' Wells
¢urned his face towards the sun and a smile overspread his face, ‘We will all have to
follow you some day,’ spoke the sheriff, And Wells, still smiling and looking towards
heave, replied 'I will meet you there,' Sheriff Nelms then adjusted the black cap
on the still smiling face and stepped back towards the trigger that springs the trape
"Good-bye, old fellgw,.good-bye,' said the sheriff, And as Wells echoed the koodbye'
ghrough the black cap, the button was pushed and the trap doors fell, There waS a drop
of 5 feet. The body was jerked upward by the force of the fall and then remained
motionless, The neck had been bpoken but life still remained in the motionless forme

eee ee

For fifteen minutes the doctor felt the pulse beats as they grew fainter and fainter.
At the end of that time he pronounced him dead and the body was cyt down. The haw

had been satisfied, the crime for which Wells was hanged had been avenged. A Widow had


ty, by Thomas Wells, there:had

Magnitude.» He
and/Father: than

ersiat in the dispute, if he woild | |

and ‘invitation, he “would “niet

‘Wells mide the
. atigwlag acknowledgment hat he had bewu
; ta an error; that.as he had no friend to whom: he

ti communicate \his suspicions, ‘they. had
@ him to act as he hau done, that ie “Lad
them to’ grow to such) a height that. he

vee all the Diet hart a
hight #e expected, drewea réply. froiti
Poa aan eon Wl
Ro mich An extent, on the part) of: Wells,
at the most ‘serious on wences to

HE oa arty 46 leate him without

vate Absassination:; of).to f

heir reputation § or" dread’
aentment Bal rep of: Pérry'a, whom
“Lia wham ii Prove in the
ortyi e he had Used with a
yaad who is'et this time ab-
one  togettier, he

tom} was not
id the blewd which he

AAD: nded chie topre ¥e
me Watderer, aber his apprehention—
be the commencement of t a ubfortuaale eg

ed Ia the assassinatio’ of

which has: been

= dhould be the

But ‘let it be;

Of @ martyr th Mu dere de | THE FEVER
Ne + | Port: that the Fem

renilted: in the a
‘curted.-—-One ofth
our Jast, died 'y gta

ae

sity, “and deepe

| former.

esscntal nrecautiogn

hitnsclf satisheid,” "
the City Authorities
the subject will reg
hy whith that ing
be secderd tous,

di Vhevatvescan
Yeral Ry a asa oe bi.

thd ma “i wt

Stren

N.

into ex
ina po
tmorni

Me prepared: L640)

hou: cammissioned.f
here in an open boat’
dohtisun, North. Curafi
Be RM

| Bora, President. of
in consechienee of Uh
a au-Prihce, , declaring.
ye | Shingtés, aa also wailasy

oP MnUE ANE het of tlie abt

A} gid he Si} edad 4
“oTHtte ja fo he & gh
P| bany inthe state of F

t hi cP WB fete oe

| Year int. pate . ck
one, ower Gatco.
O- | Citivens, tndiscriminat
= Sruly patriotic
hellish: ‘Mistinguished. ¢
My OY | verul. of -Portu
‘ Pahiene’. connected : wi
) 8 Fey tron
} pa po a i
ft, Of: Wells, | panied lished commander, ‘captain |
ord, to it} Hoyous ace By | ines
ant & fseveral p
- : «who cbii
* [the services of themselves ‘care

dn for cXamibation 09, Tugs .
rris} urd after a paticutine |

‘A

3000, "on th
: | facts which:
of bis dlabol
the Company) was intuxions:
fy 5 Ont to work, and made:
wn 12 meri ts e. yrttpr ooiabdane nin ht
Pea | % the offices of thé diys Heri
, 40 make of the ; fn went in and Ordered tne to go cutto work phe week fe
Bons 4 wus insolent, “aud: @ ill refused ‘the olicckahen}"
be ot is fh struck him (as. one Witness tested) with his Ast.
on ey pat as he ae Bs yeak ; aad wherw andy
‘path “of j struck bim-scveral times jix ix OWN room withis
Dates cane, The man thea went down tthe wharf ty
‘ ene lat hoe work. A- new. Uifficulty here ‘wroec, from
and” before. he | the obstinacy of the soldier ; the officer aguint Bog:
ged pe ysis his Cane ; but not being able to eee /\ S
come his. chee Ghd perverseness,. he ordered}? 7. Sidbhio tee
is chest; abd one | him’ fo be tuken ‘into the water and ducked} jbe.| 6¢t t-rthe heart-rem
Geen.as deep | Was docked three mes before be was brought on. che night of the 20
tw les nd meen ing agtk Wee SERS The walls of Theat
| Hole, and confined thete ung oext day. Weds poo ee ‘on
; | Desday he was unwell and lathe Deetor's hanes scene of galery and
‘Thursday, he wes on duty,, aid agaiti Qrunk Erk
day. morning: he, was on porade, aid apparently At
andj intoxicated, and ut S0’clock he was laced under .t of
gusrd, and 90 kept until t o'clock, when he died #4-~ ricer eS
rid Sebald ‘he: made no. complaints! of [OUT Fence pdt
pain, bat appeared half drunk and traay. No se fa ¢
rlabs. bruizes - were) discovered on his body after d hy
death. The withieants gencrully agreed that the’ ain
deceased was u hard trinker, and bad bech intox- 0
Picated: ost “of Bi forthe fortnight prece- }rare. b
ding his death. The. f eging by the otticer was con
Ustifiable’ end itiwal:: ani the facta in this ale 1)
aif: chst: no smill degree of blaine upon the OM. |...
ere.

cattscs; his dronkertirss woul

{carried him of en OND
Jbot these with, the [oul

ithout renewing | he wilt
were med, operas ts

he which fo


te on 4
WELLS, Thomas, probably hange

> aga ome a

ie ss * iene,
? Wek

’ *, $5 ae he ;
eit a Te

eS RAE | > Wai 4
A ORME WA Bae Sea a

P Sauce! iiede

al ge ° PTrK
ton ake teat

eS we

a ae

*

f . \ ‘ ; {
Beek. AM ta Wea
THE EARLY YEARS

stores, three offices, seven shops
Methodist meeting house, and
extensive operation which re
with leather,”

» a male and female academy, a
a tannery: The tannery was an
portedly supplied much of the area

Salem_also. was the scene of the county’s most interesting
-murder case. When this mysterious incident was finally unfolded,
a dead man had provided the evidence to convict his alleged
murderer. The case occurred in 1820 and involved two of Salem's
most prominent citizens, Thomas Wells and Peter Perry. The
two were supposed to be good friends, but Wells was very jealous
of his beautiful wife and apparently believed she might be having
an affair with Perry. Wells was not suspected, however, when
Perry was mysteriously murdered in August 1820. In fact there
were no suspects until Perry’s will was read. the next month. In
his will Perry noted: that he and Wells had exchanged several
abusive letters and that Wells had attempted to instigate a hight

with him. Perry said that he had not had an affair with Wells’s

wife and that he prayed Wells would soon realize this. But he

indicated that should he be killed by Wells he wanted his friends
to prosecute him with utmost vigor. At the same time, Perry asked
that should Wells be convicted and condemned to death, he be
given as much time as possible to repent. In October the grand
jury found a true bill against Wells and the trial jury returned a

verdict of guilty. The judge sentenced Wells to be hanged later

that same month, and the sentence presuiiably” Was éarried out?

Certainly, the first few decades of Clarke County’s history
provided unusual as well as predictable events. There also were
many challenges for those who sought to develop the wilderness
and especially for those who sought to create a cultural and
educational center there. Progress was slow in some respects.
Transportation in the 1820s was still limited and difficult because
of poor roads. There were no banks and little capital available
for investment. The public buildings often required attention.
But on the whole the county had come far in a short time, and
Important towns had developed at Athens, Watkinsville, and
Salem. The economic progress of the 1820s was impressive,
especially in Athens, and the foundation was laid for the develop-

ment of industry and the expansion of other fields in the 1830s
and 1840s.

afryind ape ee
caspase ate sai nad

Clarke County, Gae, 1820 or 1821

j

em me see

ee ' ws
ad é : gee
fe iy tate
ty e ot
be ee woe
. ei ed
yoo OR OR nee
Te Re we
rt Ae pO my
F en ee ae
h* 2 ey ‘ iy.
i vs
rd ; >
iso “% v
fer * whe ee a
fi
& *.
or
t es


Slaves WILLIAM and LITTLE WILLIAM, black, hanged Savannah, Ga., on July 2), 1829,

"(From our correspondent) Office of the Savannah REPUBLICAN, T ursday, June 25, X8Ax®
1829 = 12 AM, ATROCIOUS MURDER - Mahlon Dickinson, the overseer of Joseph Stiles,
Eso., was on the 5th instant murdered on Green +sland, 17 miles from this city, by
three negroes belonging to Mr. S. The circumstances attending this murder, as far as
they have Kaauxk#aNexK transpired, are, that Mr, Dickinson being in the field, was
attacked by a boy about 16 years of age, who struck him on the head several blows
with an axes a girl of the same age, named Jane, being present at the time and
assisting him with a hoe = a fellow advanced in years, who was acting in the capacity
of advanced driver, was at the distance of 100 feet from the scene, and as soon as he
ascertained that Mr. Dickinson had been despatched, came up and assisted in burying
the body in the marsh, about 200 feet from the spot where the murder was committed,
These particulars are from the acknowledgement of the negroes themselves, who
pointed out the place where they had buried the bodies, The three murderers have
been arrested and lodged in jail, An examination before a Special Court of Magis-
trates will take place this evening." COURIER, Cyarleston, SC, June 27, 1829 (2/h.)


< eee Mm

“st

ryt b he tf

ar

$28 Ga

51 SOUTH EASTERN REPORTER, 2d SERIES

Cook, Atty. Gen., and E. L, Reagan and line of authorities cited by the defendant,

W. V. Rice, Asst. Attys. Gen., for defend-

ant in error.

HAWKINS, Justice (after stating the

foregoing facts).

1. It is contended by counsel that the
conviction of the defendant rested solely

upon circumstantial evidence, and that the
evidence adduced on the trial does not ex-
clude the possibility of some one other
than the defendant having attacked and
killed the deceased, after the difficulty
with the defendant and after he entered
the cab of the witness McDaniel, and while
being carried to the hospital. The con-
viction of the defendant is not dependent
wholly upon circumstantial evidence, al-
though as to some features of the case
circumstantial evidence must be relied
upon. There is direct evidence by the wit-
ness McDaniel that the defendant did as-
sault the deceased; that he was on top
of him, beating, striking him, and that
immediately after the attack ceased, upon
the appeal by the witness to the defendant,
the deceased was cut and bleeding; and the
testimony of Fair was to the effect that the
deceased came to his death as the result
of internal hemorrhage produced by stab
wounds which he described, there being
seventeen such wounds in all upon the body
of the deceased. It is reasonably inferable
from the testimony of the witness Mc-
Daniel that the deceased died while in
his taxicab, and on the way to the hospital
following the attack by the defendant, for
the deceased had stated in reply to a ques-
tion by the witness as to whether he was
hurt, “I can’t hardly catch my breath;”
and this witness further testified that as he
speeded up the deceased “began to fall
like that, and I asked him again, was he
hurt, and he never did say anything else
from that to the hospital.”

[1-3] As pointed out by this court in
Dunson v. State, 202 Ga. 515, 521, 43 S.E.
2d 504, it is not necessary, in order to sus-
tain a verdict of conviction, that the evi-
dence exclude every possibility or every
inference that may be drawn from the
proved facts, but only necessary to exclude
reasonable inferences and reasonable hypo-
theses. We are not unmindful of that

such as Bell v. State, 93 Ga. 557, 19 S.E.
244, and Williams y. State, 113 Ga. 721, 39
S.E. 487, and many others, which hold
that, where the circumstantial evidence
relied upon raises only a suspicion of guilt,
it is not sufficient, but those cases are not
applicable here. In the Bell case the de-
fendant was charged with arson, and there
was no direct evidence that he was about
the premises at the time the fire originated,
while in the instant case there is direct
evidence that the defendant assaulted and
beat the deceased, and that immediately
following the assault the deceased was cut
and bleeding. In the Williams case there
was no direct evidence of any assault made
by the defendant upon the deceased. The
other cases cited might also be distin-
guished, but we denot deem it necessary to
deal with each of them, for the reason
that in the instant case there is direct
evidence of an assault by the defendant
on the deceased; of the deceased being
cut and bleeding immediately following
this assault, and that he died as a result
of internal hemorrhage produced by the
stab wounds found on his body; and to
accept the hypothesis or draw the inference
that the deceased might possibly have been
assaulted, wounded, and killed by some
one else after the assault by the defendant,
and while being carried in the cab to the
hospital would, in effect, be requiring the
State to show that it was impossible for
the offense to have been committed by
anybody other than the defendant, and to
exclude the bare possibility that it might
have been done by some one else. No such
burden rests upon the State, but it is
only required that, where circumstantial
evidence alone is relied upon, it exclude
every other “reasonable” hypothesis save
that of the guilt of the accused. Wrisper
v. State, 193 Ga. 157, 164, 17 S.E.2d 714.
There was sufficient evidence to authorize
the verdict, and the general grounds of the
motion for a new trial were properly over-
ruled.

[4] 2. In the first ground of the amend-
ed motion for a new trial error is assigned
because the court permitted the State’s wit-
ness McDaniel, a taxi driver, to testify:
“At the time they were on the porch,

WILLIAMS v, STATE Ga, 829
Cite us 51 N.1.2d 825

Steed was saying, ‘Oh, Lord,’” this witness
having testified immediately prior thereto
as follows: “After he ran up the street,
Steed ran up on a porch, and this boy
ran up on the porch behind him. I started
driving behind them, and before I got to
them Steed had done run out in the street
off the porch.” Counsel for the defendant
made the following objection: “Your
Honor, we want to object to that. We
don’t know exactly whether this defendant
was present or not at the time this state-
ment was made.” This ground of the mo-
tion further recites that after this objec-
tion, the following occurred: “By the
Court: Q. ‘Where was A. C. Williams at
the time you say Steed was hollering?’
A. ‘Right behind him’ The Court: ‘I
overtule the objection.’” To state the ob-
jection made by counsel, and what occurred
following the objection, is to answer this
assignment of error. The objection urged
was that it was not disclosed that the state-
ment of the deceased was in the presence
of the defendant. The question propound-
ed by the court and the answer of the wit-
ness thereto show conclusively that it
was in the presence of the defendant. The
overruling of this objection under these
circumstances shows no error.

[5] 3. The assignment of error in the
second special ground is as follows: “Be-
cause the court erred on direct examination
of State witness, Alex McDaniel, in per-
mitting the solicitor to ask and witness
to answer, over timely objection of mov-
ant’s counsel, as follows: Q. ‘Did you
ever hear anything said with reference
to anegro girl?’ A. ‘Yes, sir’: Q: “Tell
what that was?’ Mr. Morgan: ‘Your
Honor, we object unless it was in the
presence of the defendant; and we fur-
ther object on the ground that he testified
that the man broke and ran, and he would
not necessarily be in the presence of de-
fendant. The witness had just testified:
‘There wasn’t anything said between A.
C. Williams, and Steed immediately before
Steed broke and ran before this defend-
ant followed him.’ Movant's counsel ob-
jected, and the court ruled. ‘I overrule the
objection” ” While in answer to the ques-
tion, “Did you ever hear anything said

with reference to a negro girl?” the wit-
ness answered, “Yes, sir,” the objection
was to the question which followed, “Tell
what that was.” This ground of the mo-
tion does not disclose what the answer of
the witness was to the question objected
to, but so far as appears this line of ques-
tioning was abandoned following the ob-
jection by counsel. What, if anything, was
said, by whom it was said, where and
when it was said, does not appear. This
ground, therefore, shows no error. Turner
vy. Duncan, 152 Ga. 54(1), 108 SE, 532-

[6] 4. In the third ground of the
amended motion error is assigned as fol-
lows: “Because on redirect examination
of Alex McDaniel, the court erred in
permitting the solicitor, over timely ob-
jection of movant’s counsel and motion for
mistrial and to reprimand the solicitor,
to ask the witness the following ques-
tions: Q. ‘Now, Alex, at the time you
put Jeriah Steed in the taxicab, what
was said in reference to Jeriah Steed
being cut? What did he say about being
cut?) Mr. Morgan: ‘Your Honor, the
solicitor has asked the question in regard
to a man being cut, and there is no evi-
dence that anybody was cut at this time.
I make a motion for a mistrial, and move
the court to reprimand the solicitor.’
The Court: ‘I overrule the motion and
decline to reprimand the solicitor. How-
ever, there is no evidence at this time to
show how long the statements were made
after any alleged difficulty.’ ” The ob-
jection urged was not well taken. Prior
to the question here propounded, this same
witness had testified on direct examina-
tion: “I told A. C. Williams, the defen-
dant, to stop beating him, and he got up
and went around the corner, When Steed
got up, he was cut and I saw the blood
running down the back. I took him to
the hospital.” The court did not err in
failing to declare a mistrial or in failing
to reprimand the solicitor-general, for the
basis upon which the mistrial and repri-
mand were requested was that “there is
no evidence that anybody was cut at this
time.” Evidence having already been ad-
mitted from this same witness on direct
‘examination that the deceased, Jeriah


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[2,3] (a) There is no merit in the first
contention, The lender, as one of the
legatees, and the present representative
of the estate are the only parties to the
cause. The petition affirmatively shows
that there are other creditors of the cstate,
and it does not appear how any consent
given by the legatecs for a former rep-
resentative to borrow moncy, though it
might be binding or work an estoppel as
against them if sct up with proper plead-
ings and parties, could bind creditors of
the estate or authorize a recovery against
the present representative in a suit having
the character of the present one. O'Kelly
vy. McGinnis, supra. The creditors, as
well as Iegatees, have a right to have the
estate legally administered by the exccutor.
Upon this theory of the plaintiff's case,
the petition fails to state a cause of action.

[4-7] (b) Assuming that the allegations
of the petition are sufficient to show that
the plaintiff became subrogated to the
rights of the United States respecting its
claim for estate taxes, it will be conceded
that the subrogee, because of such, ac-
quired no greater rights than the United
States originally had, and that she was
subject to the same limitations concerning
the enforcement of those rights. Ilarrison
v. Citizens & Southern Nat. Bank, 185
Ga. 556, 195 S.E. 750. And, as here,
where the rights of other creditors are in-
volved, as we have previously pointed out
in this opinion, the representative of an
estate has no authority to enlarge upon
the rights and limitations of the subrogee
even by consent of the legatces. That
the allegations of the petition affirmatively
show that the plaintiff's right to recover the
amount advanced by her is barred by Fed-
eral limitations, is one attack which the de-
murrer makes upon it and which was sus-
tained by the trial judge. Since a subrogee
takes the place of the creditor to whose
rights he stands subrogated, it necessarily
follows in the present case that, if the right
of the United States to bring proceedings

51 SOUTH EASTERN REPORTER, 2d SERIES

to collect the tax here in question, had it
not been paid by the subrogee, was barred
when the present suit was filed, then the
subrogee’s right to sue for the recovery
of the amount advanced by her for that
purpose is likewise barred, Concerning
this the petition shows that Mr. Hurt died
January 9, 1926. For the purpose of de-
termining the amount of estate tax due
the United States, the executor of his
estate was required to file a verified return
showing, among other things, the asscts
of the estate within fifteen months after
his death. 26 U.S.C.A. § 821(b). Con-
struing the petition most strongly against
the pleader, as we must do, it will be pre-
sumed in the present, case that the executor
obeyed this mandate of the law and per-
formed his duty, Clements v. Hollings-
worth, 202 Ga. 684, 44 S.E.2d 381, and
this presumption is strengthened by an al-
legation in the petition that the $2,000 ad-
vaneed by the plaintiff was the amount
of estate tax due the United States by the
decedent’s estate. With certain exceptions
not material here, the United States had
five years from the date the executor’s
return was filed in which to bring pro-
ceedings for the collection of this tax.
43 U.S.Stat. at Large, 310, § 310(a).  Un-
questionably, the allegations of the petition
show that the right of the United States
to bring proceedings for the collection of
the tax in question would have been barred,
had it retained its claim for the same
until the present suit was brought on May
27, 1948, and the same rule of limitation,
being applicable to the plaintiff as a sub-
rogee of the United States, likewise hars
her right to maintain the present action,

For the reasons stated above, the plain-
tiffs right to bring the present suit was
barred by limitations, and such being true,
the judgment complained of is not errone-
ous.

Judgment affirmed.

All the Justices concur,

+
BoP

eens SE ARAM ht SORE REE SNS BETES

WILLIAMS v. STATE Ga. 825
Cite as 51 S.E.2d 825

WILLIAMS v. STATE. Oo
No. 16460.

Supreme Court of Georgia,
Feb, 17, 1949.

{. Criminal law €=552(3)

Evidence, in order to be sufficient
to sustain conviction, need not exclude
every possibility or every inference other
than guilt that may be drawn from proved
facts, but it is only necessary to exclude
reasonable inferences and reasonable hy-
potheses.

2. Criminal law €=552(3)

State need not show that it was im-
passible for offense to have been com-
mitted by anybody other than defendant
and need not exclude bare possibility that
offense might have been committed by
someone else, and, where circumstantial
evidence alone is relied upon, state need
only exclude every other “reasonable” hy-
pothesis save that of guilt.

3. Homicide €=250

Direct evidence that defendant as-
saulted and beat victim, that victim was cut
and bleeding immediately after the assault,
and that victim died as a result of in-
ternal hemorrhage produced by _ stab
wounds found on his body, sustained con-
viction of murder.

4. Criminal law €=415(7)

In murder prosecution, where taxi
driver had testified that accused pursued
victim down the street and up on porch
and that, while on porch, victim was
saying, “Oh, Lord,” and, in answer to
question by court, driver stated that at
that time accused was right behind victim,
permitting the driver to testify as to what
victim had been saying was not improper
on the ground that it was not disclosed
that statement of victim was in presence
of accused.

5. Criminal law €>1064(4)

Where assignment of error in special
ground of motion for new trial was based
upon alleged erroneous admission, over
objection, of testimony respecting some-
thing that had been said, but ground of

51 S.B.2d—52%

motion did not disclose answer of witness,
or what if anything was said, by whom it
was said, or where and when it was said,
ground did not show any error,

6. Criminal law €=706

Where taxicab driver had testified on
direct examination that homicide victim
was cut and that driver saw blood running
down the back, and on redirect examina-
tion driver was permitted to testify over
objection respecting what victim had said
while in taxicab about being cut, refusal
to declare a mistrial or to reprimand so-
licitor on the ground that there was no evi-

dence that anybody had been cut was not
error.

7. Homicide €=297

In murder prosecution, instruction on
defense of justifiable homicide was not
improper though accused had not relied
upon such defense and had contended, ra-
ther, that he was not present at time of
fatal assault and that he had nothing to
do with bringing about victim’s death.

Syllabus by the Court.

1. The evidence was sufficient to au-
thorize the verdict of guilty, and the court
did not err in overruling the general
grounds of the motion for a new trial.

2-4. The court did not err in its rul-
ing on the admission of evidence, as com-
plained of in grounds 1, 2, and 3 of the
amended motion for a new trial, and as
dealt with in the 2nd, 3rd, and 4th divisions
of the opinion.

5. “Where, in the trial of a person
for murder, the State proves the killing
as alleged in the indictment, and the ac-
cused defends upon the grounds that he was
not the person who committed the crime,
and was not present at the time of its
commission, it is not reversible error for
the court to charge the law of justifiable
homicide, where no injury to the accused
is shown as a result thereof.” Williams

v. State, 199 Ga. 504(9), 34 S.E.2d. 854.

or oe

Error from Superior Court, Fulton
County; E. E. Andrews, Judge.

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826 Ga. 51 SOUTH EASTERN REPORTER, 2d SERIES

A. C. Williams was convicted of murder,
and he brings error.

Affirmed.

A. C, Williams was convicted of murder-
ing Jeriah Steed, without a recommenda-
tion to the mercy of the court, and sen-
tenced to death by electrocution. The
exceptions are to the overruling of a mo-
tion for a new trial based upon the usual
general grounds and four special grounds
complaining of certain rulings on the ad-
mission of evidence and an excerpt from
the charge of the court.

The evidence adduced upon the trial of
the case discloses substantially the follow-
ing: The defendant and his girl friend,
Annie Stewart, of about two weeks’ ac-
quaintance, were at a restaurant on Gray
and Simpson Streets on the night of the
homicide, and Jeriah Steed, the deceased,
was there also. Steed, in the presence
of the defendant, without any apparent
objection on his part, made a date with
Annie to carry her to a night club later on
that night, and was coming to her house
for her.

The defendant and Annie Stewart left
the restaurant together to go to Annie’s
home, and on their way Annie and the
defendant engaged in an argument, ac-
cording to Annic’s testimony because of
her talking with Steed, and according to
the defendant’s statement because of his
not having the sixteen dollars he was sup-
posed to give her, and because of certain
opprobrious words used by her. The de-
fendant gave her a_ beating, blacked her
eyes, and burst her lip.

After they got to her home, the defend-
ant left, and in about twenty minutes Steed,
the deceased, came to her home ina taxicab
operated by Alex McDaniel, and according
to the testimony of both McDaniel and
Annie Stewart, the taxicab stopped at the
curb right in front of the porch and door-
way of the Annie Stewart home.

Steed got out of the taxicab, and told
McDaniel, the driver, to wait for him;
and just after he walked up on the porch,
and the door was opened by Annie Stewart,
and he asked her if she was going with
him, and she replied that because of the

face was swollen and discolored, and she
could not go, the defendant came up from
across the street to the porch, and said
to Steed, “Hello, buddy,” or something
like that, and Steed broke and ran with
the defendant right behind him. Steed
started to the taxicab to get in, but he
ran on by the car with the defendant
chasing him. McDaniel started driving
the taxicab behind them. Steed ran about
three blocks with the defendant still chas-
ing him; Steed ran up on a porch, with
the defendant still chasing him up on the
porch, and Steed was hollering, “Oh, Lord,
oh Lord, open the door, Mama.” Steed
turned and tripped and fell off the porch,
and the defendant was on top of Steed
beating him. McDaniel hollered at the
defendant to keep him from killing Stecd,
and told him to stop beating Steed, and
the defendant got up and went around
the corner. When Steed got up he was
cut and blood was running down his back,
and he was groaning, and McDaniel asked
him if the defendant had stuck him, and
Steed did not answer and he could not
speak until after he got in the car, as
he was out of breath. Steed then said,
take him home, but McDaniel told him he
needed to go to the hospital the way he
was bleeding, and Steed then told him to
take him on to the hospital, and later
he said, “Hurry on to the hospital,” and
Steed then answered in response to the
question if he was hurt that he could hard-
ly catch his breath, and began to fall,
and he never did say anything else from
there to the hospital. Steed had not been
cut or did not have any blood on him when
he first put Steed out of the taxicab at
Annie Stewart’s home.

The wounds on the deceased were prto-
duced on the night of April 3, and Otto
Fair, undertaker, testiicd: That he saw
the body of Jeriah Steed on April 4 and
he was dead at the time; that he em-
balmed the deceased and found one wound
in the left chest, eight in the back, and
one in the right shoulder, two in the left
shoulder, two in the left side around the
sixth rib, and two in the right side around
the same sixth rib; that seventeen wounds
in all were found on the body of the de-

, f e
beating administered by the defendant, her ceased; that they were stab wounds, som

ie SY ATE i lly PERM NG AP eR eee

WILLIAM

S v. STATE Ga. 27

Cite as 51 S.E.2d 825

superficial; that, in probing the wounds
he thought probably caused death, he found
that the wound in the chest caused Steed
to suffer internal hemorrhage, the stab
punctured near his heart and lungs; that
the internal hemorrhage was the cause of
his death; and that from said examination
the instrument used was a_ small blade
knife, a sharp instrument.

The witness, Annie Stewart, testified
that she saw McDaniel in the taxicab when
Steed came up to her door on the porch.
Steed asked her about the date, and she
told him she could not go as “A. C.” (the
defendant) had beat her. up and caused
her face to swell; and at this time she saw
“A. C.” coming up to the porch, and she
slammed the door shut, as she thought “A.
C.” was coming to beat her up again. She
did not claim to see anything that happened
after that.

Homicide Officer J. E. Helms _ testified
that he investigated the death of Jeriah
Steed on or about April 3, and that he
and his co-officer arrested the defendant, A.
C, Williams, at 11 Woodward Avenue;
that the defendant was in the upstairs hall-
way packing a suitcase. He said nothing
about going to Church. The defendant
told officers that he had not been on Jones
Avenue or that side of town at all that
night. He denied knowing Annie Stewart,
and he denied knowing anything about
what had happened. Later the defendant
did tell the officers that he had been in a
cafe that night in company with Annie
Mae Stewart, and that he carried her home.
Officers testified that the defendant
changed his story twice, and finally admit-
ted that he was over there on that side
of town.

The defendant made the following state-
ment: “Well, gentlemen of the jury and
judge, your honor, and the court, I have
this to say: I had been going with Annie
Stewart for better than two weeks. I and
her were engaged to be married, and this
defendant which is dead, I knowed noth-
ing of only by secing him through a
friend of hers, and my friend came to
where I was that night. She was supposed
to have dinner ready when I came from
work. I called her and she was not there,

and her niece told me I would find her
on Gray Street, and I did. I was supposed
to give her $16 to get glasses and shoes,
and I did not have that money, and that
brought about the dispute, the beating
proposition. She told me she was not going
with no one but me, and I was working
hard to support her as far as a poor boy
was able.

“The dead man had not give me any
trouble at all, and I haven’t give him none.
All I can say, as far as this man being
killed, I know nothing of his death, no
more than what the officers told me when
they arrested me at home that Sunday.
I was getting ready to go to church when
they arrested me. When I taken her
home from the cafe, she had been drinking.
She was just about drunk when she called
me something that she had no business,
when I slapped her down in the street.
I did slap her because she put me down
lower than a man ought to go, and that is
what caused the dispute between us. No
man figured in the scrap, only Inez [An-
nie?] said that if she did not get the money
from me she would get it from him after
she told me she was not going with me.
I taken her home about 1 o’clock; I know
exactly what time it was. I was not
drinking, and I started off her porch and
she called me, and I turned back, and she
said, ‘Come back in the morning after your
clothes.’ I said, ‘I won’t be over here
tomorrow;’ and I left and went up on the
left-hand side, going towards Gray Street,
and I went down Simpson and Mangum
and spent the night with some friends of
mine. The next morning I arrived at my
home and detectives came in. They asked
me my name and I told them. If I had
been guilty of a crime, I would not have
been at home; they would have had to be
looking for me until now. But knowing
nothing of the killing, I was not expecting
any trouble. I goes home and gets ready
to go to church to serve my God. That is
all I have got to say, and I thank the
court.”

Frank A. Bowers and Hubert C. Mor-
gan, both of Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Wm. Hall, and
Chas. O. Murphy, all of Atlanta, Eugene

on me ae RE


Williams, James; no age or race given; alleged murderer;
captured and arrested in Thomas Co., GA, on 14. Dec., 1850.

Augusta Constitutionalist, Sun., £5: Dec, 1650

"The supposed murderer, James Williams, was pursued bt two
public-spirited citizens of Thomas County, and overtaken at
Hamburg, S.C. He was brought over yesterday morning to this
city, after an examination of the evidence in the case, before
Richard Allen, Esq. Williams was fully committed to jail

where he is now safely lodged.

This man is a desperado well known to the Police of this city,
and was engaged in a bloody row about three months ago ina
part of our city known as Florenceville, in which several
persons, himself among the number, were wounded."

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200 = Ga. 69 SOUTH EASTERN

his part towards her shortly before homi-
cide, for purpose of showing malice and
motive and to rebut presumption of improb-
ability of a husband murdering his wife.

2. Criminal Law €=517(1), 938(1)

A confession by one charged with
crime, wherein he frecly and voluntarily
acknowledged himself to be guilty of offense
charged, was admissible in evidence both
before grand jury and on trial of one thus
accused, and new trial in homicide prose-
cution could not be predicated upon ground
of newly discovered evidence to effect that
investigating officer for State, who testified
before grand jury, had obtained written
confession from defendant and had it in his
possession at time he testified and referred
to the contents and admissions of guilt in
said confession while before grand jury.

—___>___—

B. Hf. Barton, Joseph E. DeWitt, Jr.,
Augusta, for plaintiff in error.

George Hains, Sol. Gen., Augusta, Eugene
Cook, Atty, Gen., Rubye G. Jackson, Atlan-
ta, for defendant in error.

Syllabus Opinion by the Court.
HAWKINS, Justice.

Clifton Williams was indicted in Rich-
mond Superior Court for the murder of his
wife, Dorothy Mae Williams, on April 6,
1951. Tle was convicted without recom-
mendation, and to the judgment overruling
his motion for a new trial he excepts. Held:

(1] 1. The first and second grounds
of the amended motion for a new trial com-
plain of the admission over objection of
certain testimony of named witnesses rel-
ative to the forcible administration of creo-
line to his wife by the defendant on March
12, 1951, whereby she becamve ill and was
carried to the hospital; the admission of
this testimony being assigned as error be-
cause it was an effort to put the defendant’s
character in issue, and to create in the
minds of the jury the impression that the
accused was of a violent temper, an aggres-
sive nature, and eager to inflict a personal

REPORTER, 2d SERIES

injury. These grounds are without merit.
On the trial of one charged with the murder
of his wife, evidence is admissible which
tends to show ill-treatment and cruelty on
his part towards her shortly before the
homicide, for the purpose of showing ma-
lice and motive and to rebut the presump-
tion of improbability of a husband murder-
ing his wife. Ienderson v. State, 120 Ga.
504, 506(2), 48 S.E. 167; Roberts v. State,
123 Ga. 146(5), 51 S.E. 374; Josey v. State,
137 Ga. 769, 74 S.E. 282; Coleman v. State,
141 Ga. 737(3), 82 S.E. 227; Cobb v. State,
185 Ga. 462, 464(4), 195 S.E. 758; Parker
v. State, 197 Ga. 340(4), 29 S.E.2d, 61.

[2] 2. While an indictment based upon
the testimony of the defendant himself
which he is compelled to. give before the
grand jury might be abated when timely
and properly attacked upon that ground,
Jenkins v. State, 65 Ga.App. 16, 14 S.E.2d
594; Bradford v. Mills, 208 Ga. 198, 66
S.E.2d 58, these decisions have no applica-
tion to the present case, wherein the de-
fendant in ground three of the amended
motion seeks a new trial upon the ground
of newly discovered evidence, to the effect
that the investigating officer for the State
who testified before the grand jury had ob-
tained a written confession from the de-
fendant and had it in his possession at the
time he testified and referred to the con-
tents and admissions of guilt in the said
confession while before the grand jury.
A confession by one charged with crime,
wherein he freely and voluntarily acknowl-
edges himself to be guilty of the offense
charged, is admissible in evidence both
before the grand jury and on the trial of
the one thus accused. Claybourn y. State,
190 Ga. 861, 11 S.E2d 23; Mangum v.
State, 201 Ga. 519(2), 40 S.E.2d 423; Me-
Clung v. State, 206 Ga. 421(2), 57 S.E.2d
559; 42 C.J.S., Indictments and Informa-
tions, § 24(2), p. 868. This ground of the
motion is without merit.

3. The general grounds of the motion
for a new trial are expressly abandoned.

Judgment affirmed.

All the Justices concur,

208 Ga. 729

a will brought a proceeding for probate
a will in solemn form, and F.

filed a caveat thereto. : corgia ! res
Floyd County, J. H. Paschall, J., entered 123 Ga. 643, 51 S.E. 573; Brooks v. Raw

ave 6 Oe eit
judgment for propounder, and the urea lings, 138 Ga. 310, 75 S.E. 157: Piery ant
brought error and propounder filed a cross- Mis. CoX. hase Ke. OE Send

Ga. 201

SCARBROUGH v. COOK
Cite as 69 S.B.2d 201
ing of a demurrer to the caveat was not a

final judgment, and the judgment that the
caveat alleged a good defense became the
law of the case.

[1] 2. The evidence offered by the

caveator was sufficient to sustain the al-
ie caveat and—if believed

BROOME v. SHROPSHIRE.

SHROPSHIRE v. BROOME.
Nos. 17693, 17695.

Supreme Court of Georgia.
meh. 18, 10 legations of tl be

s executor under by the jury—would have been sufficient to
eho of support a verdict, and the court erred in
M. Broome, directing the verdict in favor of the pro-

i Si org « Electric Co.
The Superior Court, pounder. Sims v. Georgia R. & Electri ;

Forrest H. Shropshire,

bill alleging error. The Supreme Court,

Duckw t ] ] ffe Ga. 455 112 S.E. 462; Lawrence Vv. Bos-
uckworth C. Sas held that evidence 0 ered ’

a. 600-118 S.E..45; Sewell v.
by caveator was sufficient to sustain allega- a a oor ok 8 te
i ¢ refore directing ver- n 7 a. ,

tions of caveat and there une
dict in favor of propounder was error and [2] 3. In the cross-bill, the eeeion
that there wasweno error in overruling mo- +s without merit, since hie conct dnl 0

tion to strike paragraph (4) Of cata ee rr in overruling the motion to strike para-

ey es e
ground that it sought to construe will since alee (a) of the ewvbat on en eae ak
i i y that there was a é
allegations therein were

it sought to construe the will—the allega-
mistake of fact.

i y istake of
i i being that there was a mis
y ain bill and af- tons ‘ eae :
ae ey acre te. fact, and there being no prayet for con
ee struction of the will but merely one to re-
a . : fuse probate. . .
In, prokate - procemiise, = = Judgment reversed on the main bill
fered by caveator was sufficient to sustain and affirmed on the crocs-bill.
allegations of caveat and if believed by “ “
jury would have been sufficient to support
verdict and therefore directing verdict in
favor of propounder was error.

All the Justices concur.

° t KEY NUMBER SYSTEM
2. Wills €=284 s
Where paragraph (4) of caveat alleged

that there was a mistake of fact, overruling
propounder’s motion to strike that para- niin a0
graph on ground that it sought to construe SCARBROUGH Vv. COOK.
will was not error. No. 17736.

Supreme Court of Georgia.

‘Hicks & Culbert, Maddox & Maddox, yeb. 1) 1902

oe goal nee James F. Cook sued J. A. Scarbrough, ad-

Dudley B. Magruder, Jr., Wright, Rog- minietrator de bonis non with = sa —
ers, Magruder & Hoyt, Rome, for defend- nexed of the estate of F, M. Seat rou, ie
ae ereer ceased, to enjoin the — henied - ee
order from the court of ordinary, of a tre .
of land allegedly including 7.2 — <x
ing to plaintiff. The Superior Court, ie
ton County, Virlyn B. Moore, J., overrulec

Syllabus Opinion by the Court.

DUCKWORTH, Chief Justice. ; rule
i ‘Ss general demurrer to the petition,
1. On the former appearance of this gofendant'’s general demurrer 0 oe _
case in this court, Shropshire v. Broome, and defendant brought error, mie diagtont
207 Ga. 313, 61 S E.2d 284, the bill of ex- Court held that the pinnate ° Bae —
c oti ns W as dismissed because the overrul- tion showed that plaintiff had a :
eptions wa

69 S.FE.2d—1214

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WATTS, Ludwell, white, hanged at Jackson, Gaey DeCe 5 18276

"A SINGULAR CASE, = Ludwell Watts, convicted of murder in Butts County and sentenced
to suffer death, had been twice respited by the Executive, to afford the Legisla=
ture an opportunity of considering his case, A bill for his pardon, it will be
recollected, was passed in the House and rejected by the Senate. The last respite
extended to Friday last, on which day the Sheriff went to the jail to carry his
prisoner to execution = but Watts having procured arms, defied the officer, threate
ening to kill him if he entered the jail - and this sta te things remained at four
o'clock of .the day on which he should have been executed,"

COURIER, C,arleston, SC, December 22, 1827 (2/5-)

"From Macon, Georgia, MESSENGER, June 5, 1827: We learn from the communication
of the last Telegraph that a citizen of Butts County by the name of Denton Daniel
was murdered on May 22. The following are the particulars so far as we have
learned them: While returning from hunting with Mr, Iudwell Watts, they drank
freely at a store, and afterwards on their way home, commenced 2 quarrel, Watts
was heard to swear would blow Daniel's brains outs, Soon after the report
of Watt's musket ee a and also the discharge of Daniel's rifle, Daniel
was found dead, with a charge of buckshot in his head, Watts attended the
inquest, and finding himself charged with the crime, attempted to escape, but
was secured, On the 26th ult., three of the friends of the deceased started to
Forsyth to employ counsel against Watts, While eer. the Towaliga, the
batte.u in which they were upset, and Mr, Egbert P, Damiel ( a brother of the
deceased ), and Mr. Scott were drowned,"

THE COURIER, Charleston, S. C., 6~11~-1827 )2<5/)


op

WATTS, Ludwell, white, hanged at Jackson, Butts Co., Gaey erase, 1827.

August 20, 1982

Mr. Watt Espy
Capital Punishment Research Project
Law Library
Box 6205
University, Al.

Dear Sir:

I'm extremely sorry but I have been unable to confirm the information regarding the
death dates of Sam |Greer and Bill Turner.

I telephoned the Probate Judge's office to inquire if the newspapers of the 1891
and the 1911 era were complete, but unfortunately the secretary was unable to
give me that information. (I was told the papers are not in order.) If you

nib eee

need confirmation of these two dates perhaps Mr. Charles Risher could persuade a

member of the Butt

At the time of Mr.
county.

The two books that
differs.

$ County Historical Society to research the matter.

Watt's demise there was not a newspaper being published in the

I checked concerning the date of the death of Ludweil Watts

In your letter, you gave the date as December 1826, therefore I am assuming that
you already have located the material which. was written by Rev. George White and

recorded in his HI

"In 1826, Ludwe
sentenced to de
Legislature an
was passed in t
extended to Fri
the jail: to car
defied the offi
it was not unti
hung."

In the book, HISTO
for the William Mc
the first mention

“It was inothe 41
place in May, l

STORICAL COLLECTIONS OF GEORGIA.

Ll Watts was convicted of murder in this county, and was
ath, but was twice respited by the Governor, to afford the
opportunity of considering the case. A bill for his pardon
he House, but rejected by the Senate. The last respite
day, 14th December, 1826, on which day the Sheriff went to
ry the prisoner to execution, but he having procured arms,,
cer, threatened to kill him if he entered the jail, and

1 three or four days afterwards that Watts gave up and was

RY OF BUTTS COUNTY GEORGIA 1825-1976 compiled by Lois McMichael

Intosh Chapter of the Daughters of the American Revolution

of this gentleman occurs on page thirty-nine.

og courthouse that the first murder trial of the county took

827: the State vs. Ludwell Watts of Monroe County for the

murder of Denton Daniel."

(According to the Monroe County history, Watts lived in Jasper County before moving

to Monroe County. )
On page ninety-one
"May 26, 1827:
and ‘after hear

Rot

(This was probably

©

of the Butts County history, the following information is listed.
The first murder trial in Butts County. The prisoner was present
ing evidence (the court) recommended prisoner be remained(sic) in

a typographical error. It probably should read retained in jail.)


avin) Bebe SS

Imuediately, beneatt
foiléwing story.

"The facts were

the previous quotation, in parenthesis and in italics was the

brought out at the hearing on the 28th of May. Two men, each

with a gun, were walking westward in a road leading to the Ocmulgee River,

both quarreling

and one cursing the other. A shot was heard and one of the

two was found dead in the road. Various witnesses testified, and aithough
the evidence against the murderer was circumstantial, he was sentenced to be
hanged on August 12th following."

A few days before the execution the sheriff resigned and Samuel’ Clay was
appointed in his place.

"Tradition states that execution was public and great crowds came from

various sections to witness it.

It took place in the vicinity of where

Indian Springs Street runs into Third Street. A story is told that at
the appointed time when the sheriff went to the cell for the prisoner, he
was confronted with a pistol. An effort was made to smoke him out, but

without avail.
the prisoner.

Finally a friend from another county asked to speak to

He said, "Lud, don't you know me? We used to play together, steal

apples together, and have lots of fun in the oid days, and I have come all
the way to see you hanged, and here you act like this. Come out of there ana
be hung like a decent fellow. All this crowd is out here to see you and it

is the biggest day in your life.

Come on out and be hung like a man.'

The prisoner came out and was hanged. He was buried behind his house in
Monroe County just over the line from Butts."

According to the information on page ninety -four the: D.AsR. found a’ ButtscCounty

folder on. filetat/t
contained the follc

"Comptroller Geng
November Term lf
of Ludwell Watts

the State Archives with a number of loose pages. One sheet

wwing data.

sral's Office Georgia Milledgeville 1st Nov. 1827...
B27: Ordered that Samuel Clay be allowed $73.44 for the dieting
s and executing the said Watts. .... January Term 1828:

Ordered that Edward Butler be allowed $38.24 for fending Ludwell Watts in the

prison of Butts

County from 22nd May 1827 until the 12th day of August 1827."

Therefore, there is a strong possibility that Rev. White's COLLECTIONS listed the

incorrect date and

that Mr. Watts did not barricade himself in the jail-for three

or four days but only for a few hours.

It would appear that Mr. Ludwell Watts died August 12, 1827.

Please have someone check at the Georgia State Archives to make sure that the date
given in the book is not a typographical error.

aye

You might wish to contact the D.A.R for verification of background "story" regarding

Ludwell Watts.

I have no idea of their source.

If Rev. White was correct in the fact that the legislature considered granting a
pardon to Mr. Watts, and IF those records survived the Civil War and other various
diasters perhaps they might provide a clue as to the correct year. (According to

C. H. Smith's SCHOOL HISTORY OF GEORGIA the records were safely hidden away when

the Union army pass
UNFINISHED STATE™

ed through Milledgeville, but Hal Alexis Steed*in his book, GEORGIA:
claims that some of the records were captured.)


‘Electrocuted, Ga. State Prison (Muscogee Oo,) on August 11,

sie ghee

Pe er ae Te

PRT LORR IS * *

1961, for rape of -23-year-old-woman~in 9th month of preg-
nacye Went to her house while looking for a place to hide
from police, Knocked on back door and asked for yard work.
Then drew pistol, forced inside, made her undress and raped
Identified by victim at police.station, Made confession.
At trial maintained unable to complete act of intercourseée
Appealed and affirmed (121 SOUTHEASTERN (2nd} 20

spo Ket A AGRA A AES AER «°
PSA AT DARE I
LRN LO SISA LALLA GL

en eas ‘


ed

gees’ |

| WHITE, Henry -- - oe Sy |
Hanged, -Columbus, Gay June hy 1897. —
See large card

BIRMINGHAM DAILY NEWS, Birmingham, Ala.,

AG SE FAT

as a thd i ca had
ned | ne pmentis) iife, aad
to persas i to burt or

onroe es hy night. Ike contin.
urge | depenknt
througho mi f

the animosity of

the |b
‘weapo i with ? hteh | to.4e |
ly “we 4 rot ‘ ay “fie 7

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Fata ma Doras gain“ 4d pe ag!

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AI led one. ‘of the

| i pal |converay
mivation of hig.
dite peritent,

pean @'|

hed § he was talk-

told Ike Mathis
to be sOme grave
somebody didn’t

gnentis) life, and
lett Tr to hurt: or


then sent off fora well rope, but
, | about the.-time thia arrived some one |
3} came up with the hemp rope, which |
had been left at Poulan. Thia was ad-
' justed, and the prisoner, after lying
-| ander the gallows for about an hour,
}} Was conducted to the scaffold again.
During the time that the prisoner lay |
upon the ground he had’ nothing to
say, although he. was evidently able
[to telk,  -
} When everything » was in readiness
for the second act prayer was- offered
by Rev. M. C. Knight, colored, by in-
= Cg eS vitation of Rev. Carey. The prieoner
Ver w the you a. _] would talk to. no one except Rev. Carey.
: whe. Filed x, manecy: =< : : The: latter saked him, after. “he as:
oa gee | Gended the gollows the second time if:
: ’ | be wanted anything, to: which! hé-aie'
>} swered, “No.” § “Did th
e pyour” “Yes, _it Jatved m
Fae: all over. . It

ib fe at this Bits ace
| fost ab, and tt mn

‘es : got A ied . m and i Z ‘‘.
‘oity Friday - ‘morsing, and c pied
iain ow the train to ind ~
| Bere b waa met. a guars 2 bd

| Soe tgp by raed samaeted 4

tt ‘journey “earth, 8 rat held reli-

‘asoended, Alter fervent prayer hed
been offered for. the doomed man, he.
ascended the gallows. with the Sheriff
a few minutes before 12 o'clock. Al
12 o’clock everything was In readi-
ness, and’ Sheriff Holton told Ambr one.
West his time was up, end waked if.
he had anything to ssy, He: ro. he
did not. The Sheriff then ree
death sontense,. the. a +
drawn over the ¢odu
and at fifteen minutes after 12. o'clock
Depety Sheriff Paul cut the #PPO | pad
the drop fell, z

The rope broke, and the prinsnes:
fell to the ground. When the Sheriff
was in the city @hursday night he
boughts good heagp rope for the ‘OCCEis,
sion, but it was f@rgotten and leftin.
the train. He then got a rope that was
too small for thre business (the best he
could do, however),.and when fue
drop fell the string broke. The Sheriff

ALBANY WEEKLY NEWS AND ADVERTISER, Albany,


ntis) Ife, and
ir to (hort of

| Ike leontin-

quarte)
poner

dd a cksow_ place}:
} 4 Billups

alled lone ‘of the
nd ¥ act he was talk-
snd tolk Ike Meibte

im Monroe had
c sens 8) life, and,
i Jatter to |hurt or

wry oe Pe a)

on


so eeO @ Death and the Supreme Court

ee yas a twenty-seven-year- old, light-skinned Negro with
scarg running diagonally across a tine) sullen face. A small
mustache cluttered his lip. He was of medium height and
medium build—essentially a nondescript man, ne: weak
nor strong, neither intelligent nor stupid. He was the anti-
thesis of his address, for he lived on Penelope Street.

His record was eventful but disreputable. He had been ar-
rested at least fifteen times between 1942 and the Furst shoot-
ing in October, 1952, although he had worked during the
war years for the navy and war departments and for the Civil
Service Administration. In fact, he had already spent about
six and a half years of his life in prison. His crimes included
such diversified and far-flung operations as larceny, reckless
driving, and wife-beating. No, Aubry Williams was no hero,
even to his wife, and his barren existence would have passed
largely unnoticed had he not become involved, quite uninten-
tionally and through the most haphazard of circumstances,
in a legal tangle involving the Constitution itself.

Four months passed after his arrest. Christmas and the new
year came and went, and Williams sat passively in jail, awaiting
trial. Finally, on February 18, 1953, the jury panels which
would serve in Atlanta’s civil and criminal cases during the
week of March g were chosen. A regular ritual accompanied
the selection of panels.

The ritual took place in the courtroom of the presiding
judge—in this instance Judge Jesse M. Wood, a short man in
his early eighties; a man of medium build and of bright blue
eyes. His courtroom was on the fourth floor of the Fulton
County courthouse in downtown Atlanta. The judge’s dais
was raised but a few inches off the floor, so that those in the
last of the eight rows of spectator benches could see him only
by raising themselves in their seats and peering over the heads
in front of them. The ceiling of the courtroom was high and
the acoustics poor. The tone of the room was mahogany, with
heavy wooden tables, seats, benches, and jury box filling

eo.

most of the available space. The flags of the United States and
Georgia stood solemnly and unrifled behind the bench, on
either side of a framed portrait of a former judge.

But the most striking feature of the courtroom was its
green lamps. They stood everywhere—on either end of the
bench, on the clerk’s desk, in double pairs at the counsel tables
—like monstrous green toadstools. Undoubtedly relics of the
days when an object’s beauty was gauged by its sensational
effect, these lamps had all the gaiety of giant eyeshades, and
they turned everything above chin level into an eerie verdure.

A small wooden box with two compartments stood on one
of the counsel tables. Judge Wood successively drew from one
compartment more than a hundred and twenty tickets, each
containing the name of a citizen of the State of Georgia. These
tickets had been made up by jury commissioners from Atlan-
ta’s tax records.

White tickets were used for the names of white citizens,
and yellow tickets for the names of Negroes.

The judge handed each ticket to a deputy sheriff, who in
turn gave it to the deputy clerk for listing on a long sheet.
The tickets were then returned to the judge, who placed them
in the box’s second compartment. Some time later, the petit
jurors whose names had been listed were summoned to the
courtroom and questioned. After a number were excused, the
remaining ones were organized into panels, six of which were
assigned to the criminal calendar. Four of the one hundred
and twenty jurors thus selected were Negroes.

On March 9, the day before Williams’ trial and over five
hundred miles away, the Supreme Court of the United States
was taking action in another Atlanta case involving a Negro
named James Avery, a strong handsome young man with as
unsavory a past as Williams’. His trial for rape revealed that
while drunk, he had gone to the home of a white woman who
was alone with several small children, dragged her out into
the yard, and forcibly had intercourse with her while she

Portrait in Yellow and White 5


ae, ad Death and the Supreme Court

screarned and struggled. Her fourteen-year- -old son and a man
had “come upon them w hile Avery still had the woman on the
ground, and Avery h had gotten up and run. Arrested that same
night, he had been positively identified by the woman as her
assailant. Avery was convicted of rape by a jury chosen in
precisely the same manner as the jury in the Williams case,
except that no Negroes at all turned up on the panels. Prior
to trial, Avery’s attorney had objected to the impaneling of
the jury on the ground that the use of yellow and white tick-
ets to distinguish Negro from white jurors violated Avery's
rights under the Equal Protection Clauses of the Georgia
and Federal Constitutions. The Georgia Supreme Court, with
one judge concurring and two dissenting, condemned the use
of yellow and white tickets but held that there was no con-
stitutional violation because the officials who had drawn the
tickets testified that no actual discrimination had been prac-
ticed. Now the United States Supreme Court, on the day be-
fore Williams’ trial was to begin, announced that it would
hear argument in the Avery case.

The trial of Aubry Williams lasted one day. Since Williams
had no money, the court appointed Carter Goode, an Atlanta
attorney, to defend him. Goode was a thick-set man of one
hundred and eighty pounds with a firm voice that left no doubt
of his southern origins. A graduate of the Woodrow Wilson
College of Law in Atlanta, he was just turning forty at the
time of his appointment.

The first order of business was to select a jury from the
various panels already drawn. Forty-eight jurors (again in-
cluding the four Negroes) were “put upon” Williams—that
is, tentatively chosen as the group from which his jurors
would be selected.

They were again questioned. Thirteen, including three of
the Negroes, were eliminated by the judge “for cause.” All
of the remaining jurors were technically competent, from the
court’s viewpoint, to try Williams. But the state and defense

Portrait in Yellow and White e.

counsel were allowed a number of peremptory challenges
that is, vetoes without the necessity of stating a eG
as soon as the name of the one remaining Negro juror was
called, the state exercised 1s first peremptory challenge and
eliminated him from the list. Williams’ jury thus evolved into
an all-white group of twelve Georgians. Williams’ attorney,
Carter Goode, made no objection to the selection, drawing,
or empaneling of the jury.

Twenty-three witnesses testified for the state, and Williams
appeared briefly, though unsworn, in his own behalf. Keeping
a firm hand on the proceedings was E. E. Andrews, whose
official title was “Judge, Fulton Superior Court, Atlanta Judi-
cial Circuit.” He was a temperamental and fiery man; his short,
fat body exuded boundless energy and an overpowering con-
fidence. In his late fifties and with hair already grey, this
judge left no doubt as to who was in charge of the taal. He
sat like a robust Buddha on a dais in a courtroom which,
except for a few less toadstool lamps and a different judge’s
portrait, was virtually a replica of the one where the jury
panels had been drawn.

The first witness was Mrs. Furst, who briefly identified her
late husband as the victim of the shooting. She was not cross-
examined.

Mr. Derrick, the stovewood peddler, nervously took the
stand and told how he had witnessed the crime. But he said
he could make no identification because when the man who
had done the shooting ran out of the store, “he had his arm
over his face.” He was just “a medium-built skinny fellow”
who “kind of crow-hopped as he went down towards Walker
Street.” Derrick’s son could not identify Williams either (“it
has been such a long time . . .”); one of the two workers
with the Derricks told the same story; and Mr. Jacobs, the
department store owner, testified that he saw the killer but
could not identify him “because of the shock of it.” The mer-
chant who had stood by the filling station said he too could


a 202 (a e and the Supreme Court
the syadwich shop. On McDaniel Street the thief disappeared.

Titus, from Simon’s Liquor Store to McDaniel Street six
blocks away, the thief’s circuitous route of escape on this
bright, busy Saturday morning in October, 1952 had been
literally cluttered with witnesses.

By now, an ambulance had arrived to carry away to a
funeral home the remains of Harry Furst. In death he looked
pathetic. He was only five foot five and in his early sixties.
His horn-rimmed glasses sat askew on his nose, and his parti-
ally bald head gleamed white in the sun. He left behind a wife
and two children.

Detectives had converged on the scene and were asking
questions. They wanted to know from Zimmerman how much
money was missing, so the liquor store owner extracted the
tape from the cash register and began calculating. He had
only casually checked the register earlier that morning, be-
cause the job of making an actual acount was normally saved
for Thursdays and Mondays, and this was only Saturday. But
by comparing what was now in the register with what had
been there on the previous Thursday, and by adding the
amounts shown on the tape, he estimated that $868.73 had
been stolen.

That same Saturday afternoon, sometime between one and
three o’clock, the proprietor of a pawnshop on Decatur Street
in Atlanta was confronted by a man who wanted to pawn a
.32 Colt revolver. The proprietor asked for identification,
was shown a Social Security card bearing the name of Irvin
Washington, and made a fifteen-dollar loan on the pistol.
When the man had left, the proprietor inspected the revolver
and found one shell missing. With that suspicious turn of mind
begotten by years of trading, the pawnbroker called the
police. Two detectives arrived and took possession of the re-
volver. At the Atlanta Police Station, sufficient comparisons
were made to establish a tentative relationship between the
revolver and the Furst killing, and soon the revolver, with a

a eal

Portrait in Yellow and White 263

Western .32 shell found in the liquor store, and the bullet
taken from Furst’s body were all mailed for further tests to the
Federal Bureau of Investigation in Washington.

Eighteen days passed with no new developments in the case
except the offer of a reward by the Liquor Dealers’ Protective
Association.

Then, at 6:26 on the morning of October 17, a Negro
named Aubry Lee Williams was brought into the Atlanta
Police Station and booked.

The details of his arrest are not know, but a Social Security
card bearing the name Irvin Washington was found in his
trousers. Five members of the police department talked to
him in jail, and in short order Williams admitted he had par-
ticipated in the robbery of Simon’s Liquor Store. However,
he placed the blame for the actual shooting on a man named
Robinson who was already in jail on another charge. When
the police confronted Williams with Robinson, Williams ad-
mitted that Robinson had not been involved and that he him-
self was entirely responsible for the shooting. He claimed that
during the holdup he had held the pistol in his hand but had
rested his hand on the counter; when he leaned over to scoop
the cash out of the register, the pistol had gone off accident-
ally.

Four days after his arrest, Williams was indicted for murder,
the charge being that on October 4, 1952, he “did unlawfully,
with malice aforethought, kill and murder one Harry Furst,
by then and there shooting him with a pistol, contrary to the
law of [Georgia], the good order, peace, and dignity thereof.”

Every story, real or fictional, should have a hero. This is
a rule of writing, of the stage, and of common sense when
people’s emotions are at stake. We are most stirred when clear
good is pitted against clear evil, and when right and wrong are
easily discernible. But only a social psychologist could have
found in Aubry Williams’ sordid, twisted career the seeds of
virtue. Certainly his appearance offered nothing of interest.


2687 Death and the Supreme Court

. not identify Williams; “... I didn’t see him in the face be-
chuse it didn’t excite me until I saw the gun and I didn’t notice
him.”

The testimony of Mr. Zimmerman, who ran the liquor store
and who had seen the thief only fleetingly, was concerned
principally with the amount of money which had been stolen.
Goode objected strenuously on the ground that the cash
register tapes had not been checked immediately prior to the
shooting, but Judge Andrews allowed the testimony and the
tapes to be introduced into evidence.

Thus, the first six witnesses who had seen the killer of
Harry Furst all failed to identify Aubry Williams, lounging
at the defense table with a cocky smile. He kept looking at
Mrs. Furst, who remained at the prosecution table through-
out the proceedings, until finally Judge Andrews told him to
keep his eyes to the front.

Now Williams’ luck failed. The elderly railroad worker
took the stand and told about the man he had observed first
from his back porch. He had never seen the man before but
would know him if he saw him again. Had he seen him again?
The witness leaned forward and pointed at Williams. “I see
him sitting over there.”

Goode rose in wrath to cross-examine. He brought out that
the witness had been at least twenty-five feet away from the
man he was identifying as Williams, that he had no idea where
the man had been coming from, that other people cut across
his back yard from time to time, that he had no idea what kind
of a pistol the man had held, and that he had not spoken to
the man or tried to stop him. Pressed as to whether he could
really be sure he had seen Williams, the witness at first could
only reply, “if he wasn’t the man he looks like the man and
he had to be a man because he couldn’t have been a woman.”
But then, gathering his strength, he stoutly asserted, “I see
him now. I see him over there now.”

The girl and one of the two men who had stood chatting

Portrait in Yellow and White 269

in front of the railroad worker’s house each took the witness
chair in turn. The girl said she could not identify the man she
had seen, but her companion stated flatly, as he nodded at
Williams, that the man he had seen “was the same man who
sits over there at the table today.”

The Swift & Company employee could add little to the
prosecution’s case, nor could Willie McCord, the sandwich
man. Willie admitted that some time after the Saturday of the
shooting, the police had brought a Negro to his back fence,
and that the Negro had confessed to the crime, but Willie
could not say whether Aubry Williams was the man he had
seen. Goode objected to references to a confession, but Judge
Andrews overruled the objection, subject to the confession be-
ing “connected up” by the police officers later.

There then appeared an important link in the state’s chain
of evidence in the person of one Harris, who had been a taxi
driver on the day Furst was killed. Harris had been parked in
a driveway at the corner of Maher and Fair Streets at about
eleven o’clock in the morning when a man approached
Harris’s taxi and asked if he was going “into town’’—meaning
the mid-downtown section of Atlanta. Harris said he was,
and the man asked if he could have a lift, since he wanted to
get a haircut and a shave. He said his sister knew he was in
town, and he wanted to get cleaned up before he visited her;
he was from Florida. Harris told the man he could ride with
him, and the two of them apparently understood this to mean
a free ride, since the rider did not offer, and Harris did not
demand, a fare. Harris deposited his passenger in front of a
café on Decatur Street.

Harris definitely identified Aubry Williams as his passenger.
And he pointed out, under careful questioning from the prose-
cutor, that the intersection where he had picked up Williams
was only about four blocks from Willie McCord’s sandwich
shop on McDaniel Street.

Near the café on Decatur Street where Harris had left


842 Ga. 197 SOUTH EASTERN REPORTER
He said, ‘You have been down there after on me with’ the hoe,’ and he never said
these women, and they are my hands, and anything, and I asked him a half-dozen
you will have to leave them, and the best times plumb back across the yard from the
thing you can do is to stay away from down ast side of the house, which when I was
there; and if you don’t, there is liable to be looking under the house I could see two
trouble.” I said, ‘If that is the way you fellows standing under the house. The
feel about it—you are drinking—I don’t house was that low at the front and that
want to have any trouble.’” He further high at the back, and I seen two fellows
stated that Self had informed him that the when I raised up and started off. That is
deceased said that “he didn’t want me hang- when Tom come at me with the hoe. * *
ing around over there. Tom told me that I asked him some half-dozen times not to
himself, and his wife had told me that [the come on me with the hoe, and he kept com-
deceased] was jealous;” that the little Self ing, and I shot him through the shoulder.
boy told him that the deceased “said that he I tried to make him drop the hoe, and he
had made one report that I was there three wouldn’t, and I shot him twice more
times to the sheriff, and the sheriff hadn’t through the body as fast as I could shoot
caught me, and that he wasn’t going to tell twice more * * * before he dropped
him another dam thing;” and that the de- the hoe. * * * When the shooting took
ceased had said, “I have told Tom [Self] place they: [the women and children] all
to keep him out from down here, and it run and left, which I did myself; I’ run
looks like Tom don’t want to help me out.” through the house after Self fell, because
He said, “It is going to be too bad.” That Mr. Lon: (the deceased) was headed back
was what the deceased was telling Tom’s that way, and I didn’t want to get back up
wife. with him, and I went through the house
As to the incidents leading up to the and out the front door.” Also, that when
homicide, the defendant stated that he had Herndon Fortson came toward the defend-
been at the house of Tom Self for some ant, and wouldn’t stop when the defendant
time, with his two little brothers, Self, his asked him, and reached for a gun in the
family, and some visitors, when Herndon car, the defendant shot him, “and I run
Fortson (son of the deceased) drove up in around the house to get behind the house
a car; that the defendant “got back behind to keep him from shooting me;” that the
the house to keep him from seeing me so deceased had been to the front, and went
plain, * * * and I stayed there some- to the back, “and when he come out in
thing like five or ten minutes; and while view of the house, and reached back and
they was in the house talking, I kept around got his gun, I shot him, and he grabbed the
back of the house, which I saw Mr. Lon side of the gun, and he walked on off to-
Fortson [the deceased] coming from to- wards the barn and into the woods.” After
wards the barn up to the side of the corner the defendant’s capture by officers several
uf the house where I was standing, * * * days later, “during the time coming up the
and I didn’t want him to see me at all, and road, they asked me the cause I had to
I turned around, and he went to the front shoot Mr. Fortson and Mr. Self and Hern-
door and was talking to Tom’s wife, * * don. I said, ‘I don’t know exactly” I
and I got down on my knees and looked said, ‘They was trying to kill me. All I
under the house to see where they was at Can tell you about it either was, and I
and see whether they was coming around would state one was coming on me with a
that way and leave, because Mr. Lon had hoe and one with a gun.’ I said, ‘I don’t
told me that he didn’t want me hanging know what they meant.’ One of them said,
around there. * * * When I raised up ‘Didn’t you escape from Brooks County ?”
and looked up, Tom Self had come out the I said, ‘Yes.’ He said, ‘Were they trying
door and picked up the hoe by the side of to arrest you?’ I said, ‘I don’t know. I
the house which he had been chopping cot- can’t swear what they were trying to do.’”
ton with that morning, and had set his hoe nage
by the corner of the house by the side of A. S. Johnson, of Atlanta, for plaintiff in
the door. When I raised up, he had the ‘!TO!
hoe drawed back on me. There wasn’t any-. A. S. Skelton, Sol. Gen., of Hartwell, J.
thing I could do. I turned around and T. Sisk, of Elberton, E. J. Clower, of At-
backed on off. He didn’t say anything, and lanta, M. J. Yeomans, Atty. Gen., and

I didn’t say anything right then. I backed Ellis G. Arnall, Asst. Atty. Gen., for the
on back, and I told him, ‘Tom, don’t come State. ” '

Ch gerne ia race! our) alae tT Te)
alt) iat rete opt Raker) eee uh

WILLIAMS v. STATE Ga. 843
197 8.E. ;

part of ground 6, complaining that the court
erred in “not allowing movant to prove that
the State’s witness, on cross-examination,
had been a fugitive from justice;” that
“these questions might not have been rele-
vant,* * * but inasmuch as the court al-
[2] 2. With respect to the first (the only towed the witnesses to tell of [the ee
approved) special ground of the motion for ant] having been into other crimes, an ai
new trial, the court did not err in refusing to allowing the movant to prove ke 0 enses
allow a witness for the State, on cross-eX- against the State’s witnesses, unchallenge :
amination by the defendant, to answer showed to the jury that there was partia ity
questions as to whether the witness had “ev- being used by the court,” in so far as this
er been in trouble,” and whether he had es- ground related to the exclusion of testimony
caped from the chain-gang, where counsel {or the defendant, was wholly insufficient,
for the defendant then stated to the court, where it failed to show the name ur the wit
“I am not trying to impeach him,” and the ness or witnesses, or a proper tender a e
relevancy of such testimony was not other- testimony with a “pertinent question. ; un
wise made to appear. ter v. State, 148 Ga. 566, 97 S.E. 52 ans
emt ig offered Cit.; Allen v. Kessler, 120 Ga. 319, 47 S.E.
[3] 3. “When an amendment is ofer6" 900; Griffin v. Henderson, 117 Ga. 382 (2,
to a motion for a new trial, it is the better 3) ty Se Pid: City of Atlanta: eas
practice to allow the amendment and over- Haiti Rexott'153 Ga, 499 (6), 505 (2), 113
rule the motion, if no ground in the origin- SE. 545 ’
al or amended motion is meritorious. But a vet. .
refusal to allow an amendment to a motion 16.) 5. Ground 4 is that “the court
for a new trial will not work a reversal of erred in impliedly expressing an opinion an
the judgment, when the tgendment offered the jury by its actings and doings in allow-
did not contain a meritorious ground. ing the State to prove, unchallenged, duit
Walker v. State, 125 Ga. 30, 53 SE. 807; * °* movant had previously killed his broth-
Lester v. Savannah Guano Co., 94 Ga. 710, er, had broken jail, and was at the time BF
20 S.E. 1. Where a ground in a motion 11¢ killing a fugitive from the chain-gang,
for a new trial is legally insufficient OF all of which were other crimes not connect-
is otherwise without merit, as distinguished ed with this one in any way. Reference is
from containing an erroneous statement of prayed to testimony of Tom Self and Mrs.
fact, while the proper Practice 1 For ihe Tom Self in brief of evidence hereto attach-
trial judge to overrule and not disapprove eq” Ground 5 is that “the court erred _
such a ground, his order designating the impliedly expressing an opinion as tot e
same as “disapproved and disallowed will guilt or innocence of the Senuaue
not work a reversal, where such a ground in challenging the question aiheed tk Wit-
shows on its face, or when construed in con- ness, when defendant sought to prove by
nection with additional facts set forth in the asking the witness, Tom Self, at his (Tom
judge’s certificate, that it is without merit. Self’s) having been a fugitive from justice,
or having been guilty of crime in Elbert

t chal-
admission of evidence which fails to state County or some ied Laweper — oe .
that it was admitted over objection urged lenging a like ques - ee ig eet
before the court, and the specific grounds of to movant having wie hge ts ae se
objection that were then stated to the court, re eps 3 sod tang ome fed the ory
tion for decision.” -y ted :
does not eects (4), 173 S.E. to believe that the court was ee
ergy Fluker v. State, 184 Ga. 809 (4), pressing an pore that See wholly files
c ’ : ’ . » . . ass
, eS. dingly, grounds Ground 4 is without merit, 1n “tbe
2 yas opr peety! of dis sintion to show that the defendant made any peed
aa insufficient and without merit, where tion to the admission of = peang a fad>
‘hey aely set forth that the court erred in pea bea ieee cured pan See P ——
itti i ted testimony ¢X y & yt
igre Ser Telly ‘railed i show to prove unchallenged, besides a penind rs
cia. fa " objections were made to such forth the particular paneer! = sat
es i i hich are only generally
issi that there was any motion to rulings, which : ; ferre
pen area the evidence. The remaining to. Ground 5 is also deficient, in that it fails

Syllabus Opinion by the Court.

JENKINS, Justice.

[1] 1. The evidence authorized the ver-
dict finding the defendant guilty of murder.

[4, 5] 4. “An assignment of error on


844 Ga. 197 SOUTH EASTERN REPORTER

to set forth the particular testimony and rul- ed grounds had been considered and over-
ings, and fails to show that the defendant ruled instead of disapproved.

made any objection to the admission of the — Judgment affirmed.

testimony for the State. Nor does the de-
fendant therein except to the exclusion of
the testimony which he sought to introduce.
The mere “challenging” by the court of the
question asked by the defendant of a witness
for the State, without “challenging” a like
question asked by the State, could not in any
event be taken as “impliedly expressing an

opinion as to the guilt or innocence of the

accused.”

All the Justices concur, except RUSSELL,
C. J., who dissents from the ruling in head-
note 2.

[9,10] 6. Where witnesses under sub-

poena by a party attend a trial, but are not GEORGIA POWER CO. v. MOODY.

examined, a motion for new trial on the No. 12315.

ground of newly discovered evidence from

such witnesses is properly refused, especial-
ly where there is no showing as to why the
alleged newly discovered evidence could not Judges €=45
have been discovered and used in the trial,’ A judge whose sister’s husband was a
since, “by interrogation of them, defendant stockholder in a corporation which was a
or his counsel could have ascertained what party to suit was thereby disqualified from
they knew as well before as after the trial.” presiding, notwithstanding death of his sis-
McAfee v. State, 31 Ga. 411 (6), 420; Hall ter, where she left children, issue of mar-
v. State, 117 Ga. 263 (2), 43 S.E. 718; riage, who were living at time of trial.
Rounsaville v. State, 163 Ga. 391 (2), 397,

136 S.E. 276. As to ground 7 of the motion, Syllabus by the Court.

it appears, both from this ground with the Where a judge is disqualified to preside
accompanying affidavits and from the certif- im a case because the husband of the judge's
icate of the judge, that while there was an_ sister is a stockholder in a corporation which
affidavit by the present counsel for the de- is a party (Georgia Power Co. v. Watts, 184
fendant and by the defendant that they “did Ga. 135, 190 S.E. 654, 110 A.L.R. 465), the
not know of the evidence set out in [this] disqualification of the judge by affinity to
ground * * * before the trial of the the stockholder is not removed upon the
case,” and that “the same could not have death of his sister, if she left children, issue
been discovered by the exercise of ordinary of the marriage, who were in life at te
diligence,” there was no such afhdavit as to time of the trial.

absence of knowledge or diligence by the

two attorneys who represented the defend-

ant through the trial. It furthermore ap- Certified Questions from Court of Ap-
pears without dispute, both from the certifi-  peals,
cate of the judge and the counter-showin 5 .
of the solicitor peucral that all of the és Suit between the Georgia Power aac
nesses referred to in the newly discovered pany and Lillie Moody, wherein the ae
evidence were present in court * * * dur- of Appeals requested instruction from the
ing the trial * * * under subpoena by the Supreme Court upon two questions relating
defendant,” and without dispute from the $0 . Sercuenetnnces under which a judge
counter-showing of the solicitor-general would be disqualified,
that these witnesses were “consulted with by _‘Imstruction given.

* * * counsel for the defendant,” who in J. B. Moore, of Baxley, and MacDougald,

arguments to the jury stated that “they had Troutman & Arkwright, of Atlanta, for
not put up the witnesses * * * because plaintiff.

they wanted the right to open and conclude
the argument in said case.”

Supreme Court of Georgia.
June 22, 1938.

Ulmer & Dowell, of Savannah, for de-
fendant.

{11] 7. There being no merit in any of
the grounds of the motion for new trial, the © JONES, Judge.
judge did not err in refusing a new trialas | The Court of Appeals requested instruc-
to all of the grounds, even if the disapprov- tion from the Supreme Court upon the fol-

i]

cs ast s Fee bate) thr us Sek
BRE es CT ata PEL NB E e

GEORGIA POWER co. v. MOODY ; Ga. 845
197 S.E.

j is j d the general rule and held

i ions: “Where a judge is judge followe ¢
eine ee stockholder in a cor- the juror incompetent, because —
a mie i death of the blood rela- affinity, created by his marriage, 2 _
ea sud e (who was matried to a dissolved by the death se en eae
pone Ider ng ae whom the judge’s appeal the Supreme Court “ Be oe tl
‘aie hip by affinity to the stockholder “Affinity is a principal groun S ‘i
pare oe ae f the blood relative was the either to the array or to the polls, an it
Pek dee # he stockholder was her continues if there be es = the aiabkr al

i i ffnity citing a case from New Jersey, one
basal ea acon hdc North Carolina, and one from England.
i “The state having set up the incompctency
(2) “Is the judge after the death of the of the juror, carried the burden of proving
s

sister, so related to her husbat i
qualify the judge a abe aprts ely to proving affirmatively that the deceased
arising after the neat ‘+ ag kinbund wife left issue.” In the instant case it ap-
wae ee coer = — peared affirmatively that the deceased wife
ma ee ee left living issue. Until the Miller decision
In Georgia Power Co. v. Watts, 184 Ga. is reversed, it is conclusive of the issue.
135, 190 S.E. 654, 110 A.L.R. 465, it was The only distinction counsel makes between
decided that a judge is disqualified to try 2 the Miller Case and the case at bar, is that
case in which his brother-in-law is a ene ss former wai 's criminal, while the latter
holder in the defendant corporation. is a civil, case, and t at t e children i
aor certified to this court differs from Miller Case had an interest in the good
that case in this: The judge’s sister yame of the relative who was charged with
through whom he was a graced tO murder, The ruling in the Miller Case was
the stockholder, was dead when the cas€ ot based on the quantum of interest,
was tried, but left atl eg! a. on the degree of relationship between the
d, the stockholder in the ¢€- juror and the accused. the three ca
SEE ee peatiion: The last-mentioned ace to uphold the ruling of the Supreme
decision having ruled that before the wife’s Court, two were civil cases. The case a
death the judge was so related to the stock- parks y, Citizens Bank, 40 Ga.App. 523, 150
holder by affinity as to disqualify him from sf, 438, followed the Miller Case. Tn?
trying the case, the question now is age 2 the Parks Case the trial fete’: ate was
the death of the stockholder’s wife, the the niece of a Cc. Varne oe, who marric
judge’s sister, removes the ee a stockholder in the plaintif tank: C. c.
j in Maine has gone so far as tO Varnedoe died before the case came to
ea re alate by affinity is not lost trial, but was survived by his widow and
on the dissolution of the marriage, any their two children.
more than a blood relation is sone! - In view of the foregoing, we are ot the
h it is derived. o.% ; i 3 the
Se er sala of trmnrnage, once Hires Spiaiee Ee Ain, euasaknestog ot te
ful, by death agree “a Sie sister, where she left Se + — mee
the issuc; an i . riage surviving at the time 0 e trial.
So huenid operation to aire ie Scbpnaes Therefore, in reply to the specific questions
affinity.” Spear v. Robinson, 29 Me. 931, propounded, we rule that the first of the
545. _ two should be ad ping ee oi
ral rule is that the husband 1s and that the second, on the sa :
“dieu oy affinity to the blood relatives of facts, should be answered in the affirma
the wife, and the wife is likewise related tive.

he blood relatives of the husband. This ; ; on
relationship by affinity is dissolved by the Justices BELL, JENKINS, and GR

death of either party to the marriage which and Judge Ne ead OTe TAMES
created the affinity provided the Chea eas twhe srelided Lips ager oe
issue living. In Miller ve \ © Y
rie of Ga. 653, 657 25 S.E. 366, the trial qualified Justices), concur.
’ = J ’


Cee Oe eet ae ees a ee oped

26 Ga. 1 SOUTH EASTERN REPORTER, 2d SERIES

Gals

x
:

€

that this instruction applied to a written
question that they would have before them,
to wit, “Did Mr. R. F. Wardlaw enter into
an agreement to deed fifty acres of land
to Mrs. L. C. Wardlaw in consideration
of the amount she has spent in improving
the property?” There were other written
questions before the jury as to which,
not the reasonable doubt test was ap-
plicable, but the simple preponderance of
evidence rule. For instance, “Did Mrs. 1
C. Wardlaw go into possession of the fifty
acres sued for?” That question had nothing
to do with the making of the parol con-
tract. There were also questions of which
the same observation could be made. So,
the presiding judge was right in charging
generally the preponderance of evidence
rule, and in charging, with direct reference
to the issue as to whether or not a parol
contract concerning land had been made,
the reasonable doubt rule. In the instant
case the jury were not called on to select
one part of the charge to the exclusion of
the other, or to decide between conflicts
therein. When the issue is parol contract
or not parol contract, concerning the pur-
chase of lands, the burden, it is true, is not
as to that particular issue carried by a mere
preponderance of the evidence, but even
the use in that immediate connection of
the words, “by a preponderance of the evi-
dence,” has been approved when tke court
went further and charged the jury that
the complainant must prove “by a pre-
ponderance of the evidence, clearly and
strongly and so satisfactorily as to leave
no reasonable doubt,” ete. Gordon v.
Spellman, 148 Ga. 394(3), 96 S.E. 1006;
Farr v. West, 152 Ga. 595(3), 110. S.E.
724. There is no merit in this ground of
the motion.

[4] 4. It is insisted by the plaintiff
in error that the evidence does not support
the answers returned by the jury to the
questions which the court propounded. His
contention is that a different contract from
that alleged was proved. It is alleged in
the original petition “that plaintiff and
defendant, R. F. Wardlaw, then (after
signing the memorandum) in a few days
stepped off where the front corners were
to be and then the back line was to be
far enough back to contain the fifty acrcs
agreed upon.” In the first amendment to
the petition it was averred that at that
time “all front corners of the fifty acres
were established, and acting in accordance
with said corners the defendant R. F.
Wardlaw and plaintiffs in about a week

%

after contract was made did establish all
corners, and in pursuance to this establish-
ment of corners did on the ——— day of
May, 1933, have same surveyed,” etc.
The second amendment contains among
other allegations the following: “That im-
mediately after the execution of this deed
and the memorandum all parties went into
possession of their respective interests in
the land which was going to each under
contract. Mrs. L. C. Wardlaw going into
possession of fifty acres, the boundaries
of which had been agreed upon by her
and R. F. Wardlaw, and R. F. Wardlaw
going into possession of the remainder of
the land which went to him under the
contract.” Also, “and the representation
of R. F. Wardlaw that he would execute
deed as a matter of form as soon as
the metes and bounds could be determined
(boundaries as a whole agreed upon)
* * *” Plaintiff in error’s insistence is
that the allegations of paragraph 6, quoted
above, represent that the parties in a few
days stepped off where the front corners
were to be, etc., whereas the testimony of
L. C. Wardlaw was that he and his brother
located the corners of the fifty acres that
morning. We have examined the testi-
mony of L. C. Wardlaw, and, taken as
a whole, it proves that the identical con-
tract which was pleaded was entered into;
and on the pivotal issue in the case he is
supported by the testimony of Dewitt
Wardlaw, and the whole is consistent with
the case as pleaded. Nor can we agree
with counsel that the nature of the pos-
session shown by Mrs. Wardlaw is  in-
sufficient. The insistence is that there was

stayed on” as they had been. Neely v.
Sheppard, 185 Ga. 771, 196 S.E. 452, is
relied on. The distinguishing feature of
that case is that the person who was
relying on an alleged oral contract to
purchase was the tenant, entered the pos-
session as a tenant, and remained in posses-
sion as a tenant. There is nothing of that
kind found in the instant case. Previously,
Mr. Wardlaw was the owner, and he and
Mrs. Wardlaw resided on this fifty acres.
The possession was his, not hers. When
the memorandum was made, having by
absolute deed parted with title, what had
been his possession of the fifty acres
ceased, and if the testimony is to be be-

WILLIAMS v. STATE
1S.E.2d : On 27

lieved, her possession began. That there-
after the husband continued to reside with
her on this fifty acres did not, under the
facts appearing in this record, make that
possession his possession. See Knorr v.
Raymond, 73 Ga. 749(3); Powell on Ac-
tions for Land, §§ 294, 358.

The verdict is supported by the evi-
dence.

Judgment affirmed.
All the Justices concur.

w
© E KEY NUMBER SYSTEM
T

WILLIAMS v. STATE.
No. 12510.

Supreme Court of Georgia.
Jan. 11, 1939.

1. Criminal law €=304(17)

The Supreme Court could take judicial
cognizance of identity of judge of superior
court of Elbert county.

2. Criminal law G>1182

The Supreme Court will not pass or
questions presented by bill of exceptions
when it affirmatively appears that, ever it
judgment were reversed, plaintiff in error
would derive no benefit from adjudication.

3. Criminal law €>1134(3)

The Supreme Court would not deter-
mine whether judge fixing date of electrocu-
tion of defendant was incompetent to act
because he had been attorney for state iz
proceeding against defendant where suck
judge was no longer judge of superior court
and new date for execution would be fixed
by another judge.

4. Constitutional law €=46(2)

Allegation that statute violates Consti-
tution providing for separation of legislative,
judicial and executive powers does not pre
sent question for judicial determination be-
cause of failure to point out wherein the
statute is repugnant to Constitution. Const.
art. 1, § 1, par. 23.

5. Statutes C=141(2), 161(1)

Statute regarding sentences to electrocu-
tion and execution of such sentences does
not violate Constitution prohibiting the
amendment or repeal of a law by mere ref-

erence to its title. Laws 1937-38, Ex.Sess.,
ve 330, 331, §§ 1-3; Const. art. 3, § 7, par.
7.

6. Statutes C>156, I6I(I)

Constitutional. provision prohibiting the
repeal of statute by mere reference to its ti-
tle has no application to repeals by implica-
tion but applies only to express repeals.
Const. art. 3, § 7, par. 17.

Syllabus by the Court.

1. “This court will in no case undertake
to pass upon questions presented by a bill
of exceptions, when it aflirmatively appears
that, even if the judgment of the court be-
low were reversed, the plaintiff in error
would derive no benefit from the adjudica-
tion.” Davis v. Mayor and Council of Jas-
per, 119 Ga. 57 (1), 45 S.E. 724.

2. An allegation that “house bill 64 (act
of February 16, 1938, Ga.L.Ex.Sess.1937-
1938, pp. 330, 331) is unconstitutional, null
and void, for the same is violative of the
provision of the constitution of the State of
Georgia, article 1, section 1, paragraph 23,
as follows: ‘The legislative, judicial, and
executive powers shall forever remain sep-
arate and distinct, and no person discharg-
ing the duties of one, shall at the same time
exercise the functions of either of the oth
ers, except as herein provided,’” presents no
question for judicial determination, since It
fails to point out wherein the act is repug-
nant to an¢ in conflict with the constitu-
tional provision. Rose Theatre, ine., vy. Lilly
185 Ga. 53 (2), 193 $.E. 866; Wright y. Can-
non, 185 Ga. 363, 364, 195 S.F. 168, and cit.

3. The act of February 16, 19388 (Ga.L.
Ex.Sess.1937-1938, pp. 330, 331), entitled “An
act to provide that in all cases in which a de-
fendant is sentenced to electrocution the
trial judge must direct that the sentence he
executed by the State Board of Penal Ad-
ministration; to provide an effective date
for this act; and for other purposes,” and
being as follows: “Section 1. In all cases
in which the defendant is sentenced to be
electrocuted it shall be the duty of the trial
judge, in passing sentence, to direct that the
defendant be delivered to the State Board
of Penal Administration for electrocution at
such penal institution as may be designated
by the said board. However, no executions
shall be held at the old prison farm in Bald-
win County. Section 2. This act shall take
effect immediately upon its passage and ap-
proval. Section 3. All laws and parts of
laws in conflict with this act be and the

saan ORS

2 ey ga nc EH NE eg OP

it

prio te re la

¥
bad

i? 4313

ivaie

Msistsdsibdhsiats eau ehasaat

“TH EASTERN REPORTER, 2d SERIES
28 Ga. 1 SOUTH EASTERN REPO

same are hereby repealed,” is not unconstitu- out recommendation. a pies ae
tional as violative of article 3, section 7, par- visions of the Code, 3 ue 7 =p
agraph 17 of the constitution of the State of the defendant was sentenced by ante "
i ia (Code, § 2-1817), to the effect that T. Moseley, judge of the me ce grey
“No ve or section of the Code, shall be to be electrocuted Pe oe i.
amended or repealed by mere reference to Thereafter and in due ty cea
its title, or to the number of the section of prosecuted a writ of error 04 hi pee
ma Code, but the amending, or repealing anda judgment of ee ee te oe
at I SE PP ea = ba = gt Wi cog teene passed,
ee vad si gato an aus suites Marshall L. Allison (who had been
ere a “i een above-quoted act and appointed judge of the superior court is
oe he statvhe law of this State, Elbert County to fill the vacancy caused
= age aan of death and their by the death of Judge peng dC oi a.
a cabot to work a repeal of the coe paighayhows te at ——
° a . . . : e - or e x
— is weer a eal at sharetsiave imposed on the defendant, to
a wit, July 15, 1938, and further provided in
i i ; ieee sr that the execution take place
i ot ot OE ecighs ike the walls of the State Penitentiary
he ee ee 201 (3), 67 S.E. 656; in Tattnall County, Georgia, or ry oat
aia Falls Power Co. v. Foster, 143 Ga, in said sae as the a pote ne
688 (3), 85 S.E. 835; Berry v. State, 153 Ga. Administration may en : gs eae eee
‘ 3. 669, 35 A.L.R. 370; Dur- fendant filed a motion to set aside é
1 2 ae tab 1), 144 SE. 109. tence, on various grounds. This motion
bes pate, oat oe ee ; was overruled, and exceptions are taken
thereto.

the constitution has no application to re-

4. The motion to set aside the sentence
fixing a new date for the execution of the
sentence of death theretofore imposed upon [1-6] 1. One of the reasons urged why
the defendant, which further pease: bv the seateaue ines imposed upon the de-
conformity with the act of Feaen Ss fendaiit should .. set eatle de that, Judge
1938, supra, that the execution take page Aibsan was disqualified a act n is
“within the walls of the State —_ connection it is altered that ai the time ‘
bs Eatbanh County, Goores, “— Laat the former appearance of the cae eS
in said State as the State Board ss t this: court, Judge Aliant was .
Administration may designate,” is, with the coasacl tax the. Shake st Georgia, ast ‘ee
exception of the grounds passed on in the watt cies [Department af tawi ear
above headnotes, based upon identical tric’ secl-aresined sa the Sagpeme Cott
grounds urged and ats Age >. of Georgia against your petitioner while
the case of Benton vy. State, lor Ga. +O Sum accieast atiorney-gene
S.E. 749, and is controlled ee to the Siete oe Georgia, which petitioner alleges
defendant by the rulings there stated. disqualifies him’ ta ead “tase. ‘It is no
necessary to pass upon the merits of this
ground of the motion. The se gree ty

Error from Superior Court, Elbert Coun- Judge Allison in his order for the —

: 1 i ; q ~ p > ~ °-re-
ty; Marshall L, Allison, Judge. tion of the sentence of electrocution ‘ i
- tofore imposed by Judge Moseley (Ju y 15,
1938) has passed. It will therefore be

———

Norman Williams was convicted of mur-
der, and he brings error.

necessary for the judge of the superior

atiaiee. court of Elbert County to fix a new date.

A. S. Johnson, of Atlanta, for ptaintiff This court will take tS

1r0} e Clark Edwards, an
in error. of the fact that Judge Clark Edwards,

5. Ske ol. Gen., of Hartwell, not Judge Allison, is now judge of the
ri ening Gen., Ellis G. Arnall, superior court of Elbert re ote
Asst. Atty. Gen., and E. ys Clower, of At- Shumans, 80 eran rn 7 2 7

; : i py: YW, ’ za, 720, Dy our,
a ee oo aes. McAlpin, 122 Ga. 616, 50
SE. 388; Linthicum v. Trust Company of
Georgia, 36 Ga.App. 423, 425, 136 S.E. 813;
Bacon y, Howard, 19 Ga.App. 660(4), 91

REID, Chief Justice.
The defendant was indicted for murder.
The jury returned a verdict of guilty, with-

FLUKER v. STATE : Ga. 29
158.E.2d

S.E. 1066), and that Judge Edwards, and

~

of superior courts in another circuit, did not

not Judge Allison, will have to fix a new invalidate sentence. Code 1933, § 24-2613. .

date for the execution of the sentence.
Therefore a decision upon the merits of
the question thus presented, even if in
favor of the defendant, would be of no
benefit to him. This court will therefore
decline to go into the question. See Baird
v. Atlanta, 131 Ga. 451, 62 S.E. 525; Davis
vi Jasper, - 119 "Gas “57(1); 452 SF. 27242
Bigham v. Yundt, 158 Ga. 600, 123 S.E.
870; Garlington v. Davison, 122 Ga. 677,
50 S.E. 667; Tabor v. Hipp, 136 Ga. 123,
70 S.E. 886, Ann.Cas.1912C, 246; Turner
v. Hill, 17 Ga.App. 257, 86 S.E. 460; Kit-
chens v. State, 4 Ga.App. 440, 61 S.E. 736;
Arnold v. Arnold, 180 Ga. 560(1), 179 S.E.
715. The remaining sheadnotes require no

elaboration.
Judgment affirmed.
All the Justices concur.

w
© E Key NUMDER SYSTEM
Tt

FLUKER v. STATE.
No. 12497.

Supreme Court of Georgia,
Jan. 11, 1939.

»
o

!. Criminal law €=304(17)

The Supreme Court judicially recogniz-
ed that James C. Davis was judge of su-
perior courts of Stone Mountain circuit and
not of Atlanta Judicial circuit.

2. Judges €=29

Jurisdiction of judges of superior courts
is coextensive with limits of state and they
may act in circuits other than their own

when authorized by law. Code 1933, § 24-
2613.

3. Criminal law €=977(2)

The signing of sentence by judge who
was presiding upon bench of superior court
at time of sentencing was valid, notwith-
standing he was judge of superior court of
another circuit. Code 1933, § 24-2613.

4. Criminal law =995(1)

That judge presiding on bench of supe-
rior court at time of sentencing followed his
Signature on sentence with initials of At-
lanta judicial circuit, whereas he was judge

—_—->._—_.

Error fom Superior Court, Fulton Coun-
ty; Paul S. Etheridge, Judge.

O. V. Fluker was convicted of murder,
and he brings error.

Affirmed.

R. G. Turner, of Atlanta, for plaintiff
in error.

John A. Boykin, Sol. Gen., J. Walter
LeCraw, and E. A. Stephens, all of At-
lanta, M. J. Yeomans, Atty. Gen., Ellis
G. Arnall, Asst. Atty. Gen., and E. J.
Clower, of Atlanta, for defendant in error.

Syllabus Opinion by the Court.
REID, Chief Justice.

[1-4] 1. The defendant was convicted
of murder. By reason of his prosecution
of a writ of error to this court the date
set for his death by electrocution passed;
and after the remittitur of this court af-
firming the judgment of the trial court
was sent down, a new date was fixed for
the carrying out of the sentence of the
court originally imposed upon him. The
defendant made a motion to vacate this
sentence on various grounds, and_ brings
the present writ of error complaining of
the overruling of the same. The order
and sentence fixing a new date, referred
to above, was signed: “James C. Davis,
Judge Superior Court A. J. CC.’ While
this court will judicially recognize that
James C. Davis is judge of the superior
courts of the Stone Mountain Circuit, and
not of the Atlanta Judicial circuit (Wil-
liams v. State, 187 Ga. —, 1 S.E.2d 27,
and citations, this day decided), yet since
“The jurisdiction of the judges of the
superior courts is coextensive with the
limits of this State, and they may act in
circuits other than their own when author-
ized by law” (Code, § 24-2613), and it ap-
pears from the certificate of the judge
who overruled the motion to vacate the
sentence that “James C. Davis was pre-
siding upon the bench in Fulton superior
court at the time of the said resentencing
of O. V. Fluker on June 23, 1938,” the
passing and signing of the sentence by
Judge Davis was valid (Bone v. State, 86
Ga. 108(2), 12 S.E. 205; Burge v. Man-
gum, 134 Ga. 307, 67 S.E. 857; Pendergrass
v. Duke, 144 Ga. 839, 88 S.E. 198; Daniels


WEEKS, William

“ty o
Lepfiel Be affee- iP Levter.. Me | ee Lota ewe cCeny plie sore? on

acaba
GED pe ET ee

Lhe Lrta ares Y eh hee thasctoai ste a (lew es Saw tuto —

[beg loeud te ra a as oo haljeed: tern arta
oe CZ lLestrrcascd, Wei kha rey Laban, fates Lose ML

(T ca orn than ayy roted . Acted Of fison Kiheldl pull aD, Leda! C aA
Mosshots, sted. ‘ited! le Wr an Ae Arttogki, Kou a a he cube CO 1uge A

eecsteseed by S Pee Ler shatl heed. Shere0 het Litre ry.

I py) Mca, wa LillB Led, ae hp se Pci

of a ay, Philo LEE ul. ne loti eee Chie

D es Asset ay Liaicwamasshl OP / y Zs Vs Cals hikes . :

Phe Z Lz Carnet 4 Gallas a eT Leas Deter ¢ Zs Te lags ae
Sieg Ler Lit Ze (owes! heer Lb Gileei VA Cal Zines. [oe
Leet Lath sad me SH aw. pied Ap Ao S Dur poo;

ae vind Dare (2 mati den SQSET!


~

256 HISTORICAL COLLECTIONS oF GEORGIA,

16 prisoner to execution, but le having procured arms, defied the officer, threat-
sted ‘o kill him if he entered the jail, and it was not until three or four days

afterwards that Watts gave up and was hung,

Qa Major Ward's plantation there are three mounds, with embankments, rm-
ning tothe River Oemulgee. These mounds were excavated a few years ago,
atid. a variety of Indian implements found.

CAMDEN COUNTY.

CAMDEN COUNTY. 287

GeneraL Ler, a Revolutionary officer, and author of the * * Memoirs
of the War in the Nouthern De partment of the United States,” died
on this island. In the Sveainah Republican of 12—, a writer says:

‘LT yesterday witnessed {he interment of another of those patriots that ou:
country, ‘in Congress assembled, so fre: juently speak of, but so little assist, ]
have seen the body of General Lee receive all the honours that eould be viven
by feeling hearts, from those, wha will be forgotien eunt rs when no

’ nT ee while the tie Gg Fag, han ahi tine SENN
longer serviceable, witil it is foo Jate to benent the lary re-

wards or a just acknowledement of their edie H from ‘Dutie ce-

sangiad cane
Whether to meef, in Janey, his old companion in arms, ‘in the house that he had

cv
=
a)

ness hou se, the property of one of our Revolution: ary

“Inhabited, or fo call back scenes of better times, led him here. I did uo inquire ;

Tus county was formerly embraced in the Parishes of St. Tho-
mas and St. Mary’ s; but in 1777 these were formed j mto the County

f Camden 1, and named after the Earl of Ca aniden, the fearless cham-
ee of Colonial rights. -Part taken from W ayne, 1805; part added
to Wayne, 1808.

The streams of most importance are, ihe St. Mary's , (Thlathlo-
Eger 2a ») Indian name, signifying rotten fish, St. Ila, and Little
St. Ila. ‘

Jrrrenson, the seat of justicc,is situated on the south side of St.Illa
River. It is 25 miles from St. Mary’s, 28 from Brunswick, and 50
from Darien.

St. Mary’s is beautifull y situated on the north side of the St. Mary’s
River, nine miles from, and in Sight of the ocean. It has a fine har-
bour, being accessible to the larcest vessels.

Centre ville} is a place of considerable business,

Coleraine is 45 miles aboy e St. Mary’s.

Burnt Fort is on the st. Ila.

Ex. ‘tract from ithe Census of 1850 Ate ellings, 400; families, 400;
white males, 1,028; white females &, 1041: ce colowrel males, 3 3:
free coloured females, 1. ‘Total free population, 2 0723; shaves; 4,246 ; ;
deaths, 61; farms, 235; manufacturing estal lish iitnts: _: “value of

real estate, $694,712; value of personal estate, $1,843, 166.

Among the early settlers of this county were, [zxry Osporne,
Tatmace Ifanz, Jawes Armstrona, Jacon W EED, Hexry W RIGHT,
Joun Frexainc, Jamurs W OODLAND, noms SriProk D, Likcire
Bry ANT Wm. Reppy, Hucu Brown, Jonn Kiva.

Cumberland is the most impertent—of the islands. The Indian
name of Cumberland Island was Missoc. The fame was changed,
when Oglethorpe visited it, at the request of an Indian chief who had
received some kindness from the Duke of Cumberland, to that of
Cumberland.

but heard that he came an invalid—that Mr. Shaw and family streye all in their
rh the oil wasex; pended, they

power to keep the lamp of Jife hurnine. and althe
sUll blew the gentle breath of atlection and a{tention, to preserve the wick alive.
Conimodore Henley superintended the last sad duties, aptains Elion, Fineh, Madi-
son, Licutenants Fitzhugh aad Richie, of the navy, and Mr. 7, yman, of the army,
were pall-bearers, As the procession moved, the swords of the two first crossed
the me inan’s breast—they were in {heir seabbards: for jyjs heart beat 10 more,
and Tthoneht they said, ‘rest in peace.’ The'other officer ot theay y, and

eaittain: aie ot the army, followed. Vhe marines of the Ulex) 3] hay John
Adams and brig Saranae formed the wuatrd aud a baad from_enr army assiste I,
A Mr. Taylor performed the last eoremwi, dates, The sieht uf a : ne train of
A t &
sailors, cleanly dressed. their respect) Geporuuent, and raneh but j Tenendeut
? J > Lt L J

‘looks, interested my feelings; and leaning agaiust a fine live oak, a was iimme-
tely absorbed in contemplation. J pointed to the procession : ; they were march-

ing over the field where onee a fine orange orehard iodiched An duvader of our
country had desfroye. lit. xe muiralCockburn had been there, ‘the dast af hisy ame,’

and a far greater seou: ‘geo mankind thaw the locusts of Afriea: Inveluntarily [
turned to embrace the verierable Dut sturdy aimonarely that supported me: for it
promised such things never should be see A volley of musketry over. the
grave of Gencral Lee aron sed me, and with folded arms LE retraced my sfojpis,
while the howling of the minute-guns from the John Adams echoed th rough the

woods.” ‘

On the north end of the island, or rather on Litile ( tunberland, is
a light-house sixty feet high, with a revoly ine sieht which can be seen
at sea iwenty miles. Duueeness, formerly General Greene's pro-

perty, is on this island.

On the ee of January, 1815, the British effected a landing on
Cumberland Island, in two divisions, with nineteen barges, assisted:
by two look- out boats, and flanked by two gun barges. At first they
showed a disposition tewards the bay; but ase tanh that the
Americans were prepared to receive them: they ch: mged their course,
and took the Plum Orchard passage, kecping Cumberland close


HISTO. 1, COLLECTIONS OF GEORGIA.

“‘Jonn Forrn,
Natuan Winning,

_ Evwarp Warrers,
Joun StTernens,
Freverick Francis
Mosus Davis,

“STARLING JORDAN,
Parrick Dickey,
ZECHARIAT. WIMBERLY,
Strernen Lan,
Bexgamtn WARREN,
Soromoy Davis, -

’

\

i BUTTS: COUNTY. Pets,
t

BUTS COUN EY:

Tins county was hud out from Monroe and Henry in 1825.
Length, 17 m.; 13m. in breadth’; area square miles, 221. Named
after C apeein Samuel Butts, who lost his life im the battle of Cha-
libbee, on the 27th of January, I-14.

The Ocmu! eee flows along the easfern borders of this county,
The small streams are Tussahaw, Yellow Water, Sandy Creek, ee
&e. as.

‘he face of the country is level. ‘The gray lands prevail, and are

oS

Joux Gray, ARTHUR WALKER, |
Francis Hancock, Amos Davis, \ Se
DLEAsanT GOODALL, : \ Jacop Lawr,
Wape Kirts, \ Aten Brows, SLY Ey
Daniet Locan, : Josrrn ALLDAY,.
Myrick Davis, \Jamrs Doves, >’
Joun Rorerrs, Lanpman Asnpury,
—___—Rosert Doverass, Sen, 7 CHARLES, Geiser, a
Jesse ScrRuccs,— : Joun Howe tt, | a
Ilrxsry Mitts, Bop Canr; ie \
JoserH Moore, James Moore, \\
© Anos WuITEHEAD, Jonn WimiTriean, | | |
Joun Ronixsoy, Jonn Sarpy, bua:
EzekteL BRUMFIELD, Tuomas Opow,
Jacos Snarre, Wiiram Hopns, ”
CLEMENT YAaRboRovcny, Joux Tuomas, Sen.,
James Hunt, Wituiam Youre, ~
Barnaby Lams, Jonx TILuMay,. !

Sern SLockums, Carrs Wnhitrgean,

Lewis Ilouns, Ropert Cape.

nong some papers loaned us by the late Major Twig eos, we found
Blow? ing, the insertion of which we believe will be | interesting to
riends in Burke

urn of the First Battalion of Burke County Minti, agreeable to order, with
resent situation and rank, with the number of effective men in cach Company,
the number of arms, shot-bagqs, ie? ug gui -horns. for the year 1792.

| No. of No. of — Shot-Bags,
stains, : Ist Lieut. 2d:Licut, Men. “Arms, &e.
| White....Hopkin Dye....John MeGomery. ta abs Stake, ie Od
Watson....Lark Robinson, . Martin Martine. .... 2 Sere IOS ce 30
ee a Wills. Davies:.:. Henry Dryants,7;; 3. r {. RPer | Serene. 30 :
Pa vane co. Wane Martin, BasiPGray oo. Rese Geaea se ct aac ge 1
Rilbeé......: Lemuel Laster... John: Tredwelly 2, 484... pe Sei 27
Biiford. 3. 22 Nich. Strevles, John. McCarroll... 24:92. ...2.6B8.0. 5: 68
Edwards. .:John Roberts. ...John Wright... 2.0... +] ee Eee is
foursey.... Wain. Parrimore. John Salter... apeti 20
bh Thompson. linn Thompson. Wm, Dunn.,....-. Oi<t fens 15, .Trrris
Mfaithews, ..d0hn Fryar .....Mich’l MeCormick..§2. 2. 0... 44 241
Williams...James Rawles:..Aaron Justice...... ee Of .0 25 21

Tuo. Lewis.

admirably suited for cott (Gliese - oe

Jackson is the county site, 55 m. N. W. of Milledgeville.
Dublin is eight pie. from Jackson.

Lofton’s Store, 7 m. from Jackson. ¥ é
The vi ian ae are situated upon the waters of Sandy Creek. i
They have a Ingh reputation, and are much resorted to. :
Ieextract from the Census, 1350 -—Dwellings, 6423 families, 642 ; :
white males, 1,888; white females, 1,792; free coloured males, 2; i
free coloured females, 1; tofal free population, 3,083 5 shives, 2,805 ; } <
deaths, 55; farms, 391; manufactiuing. establishments, 113 value of
real estate, $717,112; value of personal estate, 31,955,752. =

The climate is salubrious. Among the instances of longevity are,
Mrs. McMicuarr, who died at 100; Mr. Burriz, over 80; FE. Price, Bos aa
a Revolutionary soldicr, 79; Roserr Grier, %0; Wma. Foster, 105.

Early settlers, —A. MeCirnvoy, Jesse Dot ny, Samert Crarkn.
Tos. Ropinson, Col. Z. Prunus, Joun Trennenr, ITowELt Ye Ws,
Thos. Berory, A. Woopwarp, Wa. Barcrast Janes TTarwnrss, An-
ver Bankston, Joux McMicuacn, ——+_ McCorp, and ethers, mostly
from South Carolina, and the upper counties of Georgia.

Plante is Factory is situated at the seven islands en the Ocmulece
River. Capital, 550,000, Water power siad to be unsurpassed by

any in Georgia

|
Aliscellauroyg.

ln 1826, Lupwreii Warrs was convicted of murder in this county, and was
sentenced to death, but was {wice respited by the Governor, io aiferd the Le-
gislature an oppartanity - of ‘considering his case. A Lill for his pardon was
last respite extended to

passed inthe House, but rejected by the Senate. Th .
went to the jail to carry ae

Friday, 14th December, 1826, on which day the Shen

if

HISTORICAL’ COLLECTIONS OF GEORGIA, by Rev. George White, M. Ae; New York: Pudney & Russell, 185h. a

Immediately beneath the previous quotatton, in parenthesis and in italics was the
following story.

"The facts were brought out at the hearing on the 28th of May. Two men, each
with a gun, were walking westward in a road leading to the Ocmulgee River,
both quarreling and one cursing the other. A shot was heard and one of the
two was found dead in the road. Various witnesses testified, and although

the evidence against the murderer was circumstantial, he was sentenced to be
hanged on August 12th following."

A few days before the execution the sheriff resigned and Samuel~Clay’ was - >
appointed in his place.

"Tradition states that execution was public and great crowds came from
various sections to witness it. It took place in the vicinity of where
Indian Springs Street runs into Third Street. A story is told that at
the appointed time when the sheriff went to the cell for the prisoner, he
was confronted with a pistol. An effort was made to smoke him out, but
without avail. Finally a friend from another county asked to speak to
the prisoner.

He said, "Lud, don't you know me? We used to play together, steal « .
apples tosebiites and have lots of fun in the old days, and I have come all
the way to see you hanged, and here you act like this. Come out of there and
be hung like a decent fellow. All this crowd is out here to see you and it
is the biggest day in your life. Come on out and be hung like a man.'

The prisoner came out and was hanged. He was buried behind his house in
Monroe County just over the line from Butts."

According to the information on page ninety -four the::D.AsR. founda »ButtsSeCounty
folder on.file*at’the’ State Archives with a number of loose pages. One sheet 722
contained the following data.

"Controller General's Office Georgia Milledgeville 1st Nov. 1827... .
November Term 1827: Ordered that Samuel Clay be allowed $73.44 for the dieting
of Ludwell Watts and executing the said Watts. .... January Term 1828:
Ordered that Edward Butler be allowed $38.24 for fending Ludwell Watts in the
prison of Butts County from 22nd May 1827 until the 12th day of August 1827."

Therefore, there is a strong possibility that Rev. White's COLLECTIONS listed the
incorrect date and that Mr. Watts did not barricade himself.in the-jail-for three
or four days but only for a few hours.

It would appear that Mr. Ludwell Watts died August 12, 1827.

Please have someone check at the Georgia State Archives to make sure that the date
given in the book is not a typographical error.

xne
You might wish to contact the D.A.R for verification of, background
Ludwell Watts. I have no idea of their source.

‘story" regarding

W

If Rev. White was correct in the fact that the legislature considered granting a
pardon to Mr. Watts, and IF those records survived the Civil War and other various |
disasters perhaps they might provide a clue as to the correct year, (According to |
C. H. Smith's SCHOOL HISTORY OF GEORGIA the records were safely hidden :away when
the Union army passed through Milledgeville, but Hal Alexis Steed*in his book, GEORGIA:
UNFINISHED STATE”: claims that some of the records were captured.)

espana

Memo, Dec. 71 SOUTHEASTERN 139
WITHROW, John, hanged at Blue Ridge, Georgia, on June 10, 1911.

"Blue Ridge, Ga., June 10, 1911 = Smiling as the blackcap went over his face, John Withrow,
the young Fannin County man, convicted of shooting his wife to death, stretched out his
hands toward the 3,000 people before him, cried 'Thank God, I am ready to go,' andrequested
Deputy Sheriff Cook the spring the trigger, and plunged through the trap to his death
yesterday afternoon, Withrow was. composed and in the best of spirits, He came from his
cell smiling and smoking, Before being. taken on the callows he made the statement that. he
killed his wife and that it was accidental, but he was willing and glad to give up his life
for taking hers, He said that whisky had brought him to the place, pointing to.the gallows,
and said: 'Boys and men, ouit whisky, quit gambline. If it had not been for whisky, I
would not have been here and,the sallows would not have been prepared for me, I have nver
known much about religion and Christianity, but I have made my peace with God and am

ready to go.' He. called his father-in-law and begged his forriveness and said for his mo-j
ther to raise the children.and to try t© raise them richt. He was put on the trap door
after prayer and the knot was adjusted. He was tried before Judge N. A. Morris at the
October term of 1910, Fannin County Superior Court, found guilty and sentenced to be
hanged the following Novanber, The trial was oneof thegreatest lezal battles in the
history of Fannin County, His attorneys made a motion for a new trial, the motion was
overruled and it went to the supreme court. Pending the action of the supreme court,
Withrow was confined in the Atlanta prison, which which he escaped with four others, but
was later recaptured, The supreme court refusing him a new trial, he was brought back

to BlueRidge and resentenced to be hanged," JOURNAL, Atlanta, Ga., 6-10-1911 (l=5&%6)

"Forced. to serious reflection by the scenes surrounding the execution of John Withrow, the
Fannin Countywife-murderer, JudgeNewtonMorris, of that circuit, who was a visitor at the
capitol Monday morning has expressed the intention of framing a bill and having it presented
to the legislature at the coming session , providing that henceforth all executions

in Georgia shall tafe place quietly, privately, without any more ceremony than is absolutely
necessary, at the state prison farm. He may or may not suggest that electrocution be sub-
stituted for hanging, The former change is the thing he regards as essential, Withrow was
made little less than a hero if, it is stated, by certain elements of the population at

Blue Ridge, and those elements by no means the least respectable in the community. Withrow,
it is said, was prayed over and cried over and shouted over by people who were sure he was
going as straight to heaven as a sinless baby, that it eventually had its effect on public
sentiment, says Judge Morris, and thouugh the actual hanging was in private, it is stated,
there was $hrst a procession in which ‘ithrow rode in a hack, smoking a cigar, and waving
goodbye to his admiring friends, while other good people in the vehicle sang an inspiring
hymn, the purpose of which was that Withrow was on his way to 'glory.' Judge Morris is in-
clined to believe that the effect of such scemes on the public is not beneficial and be-
lieves that a considerable reform could be wrought by hlis bill he proposes to introduce,"
JOURNAL, Atlanta, 6-12-1911 (1l-1.)

"As a touching farewell gift to his aged and broken-hearted mother, John 'Vithrow, the
young man who was executed at Blue Ridge last week for killing his wife, insisted on having
photographs made of himself as he was to stand on the gallows, with the rope around his
neck and the black cap adjusted, He had a numbew_of other pictures made also in less gnue-
some poses, and the dying injunction he laiid on the photographer was that copies of all of
them be presented to his mother. So far as can be learned, ‘ithrow was the first man exe-
cuted in Georgia, or anywhere else for that matter, who ever made such a request, He faced
the photographer's lens with the same smile he later exhibited in the presenceof the hang-
man, and died perfectly content so far as could be judged from his demeanor and statements.
Just prior to having the pictures made he dictated to the court stenographer a long state-
ment, which he said he wanted published, confessing his crime, attributing it to drunken-
ness and assuring all his friends that he was going straight to heavep{" JOURNAL, June

13, 1911 (6/L&5e)

Photograph, page one, column two, JOURNAL, Atlanta, )-12-1911. Article, column five same
says: "John J, Withrow, Jr., Fannin County man who figured in the recent senstational escape
of four prisoners from the Futton Tower, is turned Bown by the supreme court and a get
‘ ‘ : in t i ight ’ : t the time
no new trial,...Withrow was considerably in the Limelight several months ago a :
of the sensational Fulton County jail delivery. ith other prisoners, all charged with


serious offenses, Withrow broke jail and was at 1 ;
id ' 3 arge for 2 days, “owever,. h s ti
“Oe bg sion fT Se surrendered to 2 farmers, asking that Rett etre in tanec
reward whicn had been offered for his captures He then ret 1d tot ai
t 3 urned to th i
ye shale sem In jail again, Withrow declared that he is innocent of the cae rai
tl ‘ e firmly believed that he would be given a new trial, and for that réason ‘he h dq :
been willing to surrender himself after his escape..." “

"Blue Ridge, Ga., July 16, 1910-According to information received here today, which was
delayed by damage to,telephonewires, Mrs. Carrie ithrow, who lives near Mineral Bluff,
Gas, was shot and killed on the night of July llth. John Withrow, her husband, and Thomas
Fortner are in jail, charged with the woman's death. According to information from Mineral
. Bluff, Mrs, Withrow went to gather some wood in a grove about 100 yards from her home, and
was fired on from the house, A shotgun and a pistol were used, it is alleged, the pistol
shots taking effect and killing her instantly. A small child, who was with her at the time,
escaped injury. It is reported that John Withrow, the husband, wet to Mineral Bluff on
the morning of the day of the killing, became intoxicated, it is alleged, and is said to
have done the shooting." JOURNAL, Avlanta, Gae, 7-16-1910 (9+7,)

"Blue Ridge, Gas, Oct, 20, 1910-Fannin County's court house was taxed to its utmost
capacity today as hundreds of men and women crowded into it tp hear the evidence in

the trial. of John Withrow, who is on trial for his life, for the murder of his wife on
July 1).of the present year, John Withrow lived, in sdjoining houses with is father, and
on the evening of July 1): was alleged to have been drinking, When both families were at
supper, three shots ran out. Mrs, Withrow, the mother of John Withrow, ran out into

the yard, saying she heard someone calling her, and saying she was shot. Mrs, Withrow,
Sr., rushed up through a corn patch to find that John Withrow's wife had been shot to
death, SKK Six panels of jurymen were gone through with before a jury was secured,"

JOURNAL, Atlanta, GA, Oct, 20, 1910 (2/7.) .

Abdo dig jeurank 116-1910 64) Het (veo ke Yau


WHITE, Henry .

White, 4.19-yedr-old white resident of Columbus, Ga., was the son
of Js A. White, an elderly Shoekaker who was well-known in Coluhbus
because -of an inclination to run for public office, Always on a
laborticket, the elder White had run twice for Mayor of Columbus,
once for Sheriff of Muscogge County, and once for President of the
United States, He became convinced that he was being persecuted by
KE the Columbus police and on the morning of Oct. 1h, 1896, he and
Henry braced EXSKKEL¥8E with whiskey and armed with Winchesters

set forth to kill the entire membership of the police department,
They shot and killed the first two officers they encountered and

' when two others, attracted by the gunfire, arrived, they killed one
of them and wounded the others, The Whites returned home and were

Shortly surrounded by the surviving members of the department, In
the exchange of punfire 9 J. A, White was killed but Nenry managed
to escape fran the house, He was captured shortly aftarwards and

laced on trial for his part in the triple murder, Convicted of
killing one of the officers » William Jackson, and Sentenced to

death, he was hanged in Columbus on June 1, 189%,

BIRMINGHAM DAILY NEWS, Birmingham, Ala. #-l-1897

WHITMAN, Bud, black, hanged at Athens, Georgia, 11-5-1909,

"WHITMAN PAYS DEATH PENALTY: NEGRO CONFESSED TO THE KILLING

OF VONDERAU KENNON. = Athens, Ga., Nov. 5-(Special)}-8ud Whitman, color-
ed, was hanged this morning for the murder of young farmer

Vonderau Kennon, He confessed to the crime before being

executed. The body of the dead man was found just thirty-one days

ago." CONSTITUTION, Atlanta, Georgia, Nov. 6, 1909 (2:1.)

XWXAKXAMX ET RXXAM XRXEKXMAK LAX ARAKA TL KAXMKAKKX NAR XE AWK OALK EX KX KKK XM KON
BR

"WHITMAN TO PAY THE DEATH PENALTY - NEGRO WAS CONVICTED OF THE
MURDER OF VONDERAU KENNON. - Athens, Ge., Nov. = (Special.)-
BudmWhitman, colored, under sentence of death for the murder of
young Vondereu Kennon in this city on September 25 and then throwing
his body in the Oconee river, decided this morning to talk a
little. Yp to this time he has denied any knowledge
whatever of the killing. He is to be hanged tomorrow morning unless
steps should be taken to get him a repireve. He now says

thet a white man did the killing. He says that a man who

traveled around with Gypsies and who was seen with Kennon
that afternoon and that night this man got him and Sam)

Osborne to take Kénnon and himself across the river. hen

they got across the river justabove the old Check factory

the two white men got out of the buggy. This Gypsy

treveler was standing with his hand on Kennon's should and

suddenly struck him with a weight and killed him. He then
paid “Whitman andOsborne to carry the body down to the river

and throw it in. “hitman says the man threatened to kill
him and Osborne if thgy ever told it and that was the reason he has
denied it so far, The officers place no credence in
Whitman's statement, but will look into it thoroughly.
Sheriff Jackson went down to Washineton, Ga., this afternoon to see
Sam Osborne, who is serving a life sentence in the peni-

tentiary." CONSTITUTION, Atlante, Ga., 11-5-1909 (3:))

of Death and the Supreme Court

slightly and cleared his throat. He spoke in a slow, persistent,
methodical way; once he began pursuing his subject, Leverett
had as much chance of shaking him loose as a possum has of
unclamping a bulldog from his throat.

Warren drew attention to the argument in Leverett’s brief
that no discrimination had been practiced. Wasnt if. true,
asked Warren, that precisely the same system of yellow and
white tickets had been used to select the Williams jury as had
been condemned by the Supreme Court in the Avery case?

Yes, admitted Leverett; basically the same system had been
used.

And wasn’t it further true, Warren pursued, that the Su-
preme Court had held that the use of yellow and white tickets
was itself a constitutional violation, regardless of whether
actual discrimination was proven?

Well, replied Leverett, the Avery opinion did refer to the
fact that no Negroes appeared on the jury lists, whereas here
four Negroes turned up.

True, said Warren, but wasn’t the Avery opinion based
upon the opportunity which yellow and white tickets afforded
for discrimination rather than upon proof of discrimination it-
self, and therefore it was the system of selection which was
unconstitutional?

Yes, conceded Leverett, the opinion seemed to rest on that
ground.

Warren went doggedly on. Doesn’t it follow, then, that
there was a violation of the Constitution in Williams’ case,
since exactly the same system of yellow and white tickets had
been used to select the jury?

Leverett protested that constitutional rights must be asserted;
here, Williams had waived, or forfeited, his constitutional
rights by failing to assert them at the proper time.

Warren said he appreciated that argument. But what he was
trying to get at was this: regardless of whether the rights were

Portrait in Yellow and White 281

properly asserted, didn’t the method of jury selection violate
the Constitution under the Avery decision?

Leverett hesitated. He knew it was an important question,
and he knew he had been maneuvered into a position where
there was only one answer. Pointing out again that Williams’
constitutional objections had not been properly asserted, he
agreed that had they been properly asserted, they would have
been valid.

Warren leaned back in his seat and reassumed his inexpres-
sive pose. He had obtained an admission that the Williams jury
had been unconstitutionally impaneled. The important, the
vital remaining question was whether the constitutional issue
had been properly raised. If it had not, the Supreme Court had
no jurisdiction over the matter and was powerless to act.

To probe a man’s mind is surely a hazardous business. We
know so little. Warren’s expression was set, carved, tight. It
said that for him the case was over. If so, was Leverett’s admis-
sion really the deciding factor for Warren, or had he been
unalterably set on his course before the argument began? It is
like asking whether you would have liked a book quite so
much if you had not heard in advance that it was a great book.
We suspect the answer, but we do not know. We grope and
feel among the pathways of the mind, but can we really come
to a legitimate conclusion about it? Looking at Warren, one
could as easily see in that stolid face a cold, unfeeling, narrow
consciousness as one could detect a gentleness and warmth,
and yet the man could not be two people. Or could he? How
do we account for the way his mind functioned and how it
reached the results it did? Although less intellectual than
Frankfurter, Warren surely was more difficult to explain.
Everything about Frankfurter’s past, his religion, his contacts,
his appearance, his perceptions cried out for the paths he fol-
lowed. But Warren could have gone either way. Some say that
his father’s murder had a profound effect upon him. It may

~eogsenencarmn

284 % Death and the Supremte Court

}

tones and with a slight accent that barely betrayed his Ken-
tucky upbringing. Next was Mr. Justice Frankfurter, the Vien-
nese immigrant with the extraordinary memory; the man of
many questions. Small and quick, he epitomized the law he
expounded. He passed to Mr. Justice Douglas, the contro-
versial world traveler and book writer. Still a young man—he
was only forty-one when appointed to the Court—his face was
misleading. He looked like a weather-beaten cowpoke, a rather
naive Midwesterner, but this exterior concealed a brilliant, im-
patient mind. Like a sphinx farther along the table was Mr.
Justice Burton of Ohio. Quiet, dignified, attentive Burton,
never vituperative, never rankled, a study in judicial tempera-
ment. Next senior was Mr. Justice Clark, the kindly former
Attorney General. Gray and relaxed, he sat listening with his
head slightly to one side and, when it was his turn, spoke softly
and with some hesitation. Then the bulldog, Mr. Justice Min-
ton, whose face, as rough and as stony as craggy cliffs, belied a
keen love of baseball and a delightful sense of humor. And
finally the tall, attractive, freshman associate, Mr. Justice Har-
lan, whose grandfather had sat at a similar table and thrashed
out similar constitutional problems long before the Supreme
Court moved from the Capitol to its spacious new quarters.

The vote was taken in reverse order, the junior associate
voting first. The theory is that by voting in this order, the
newer associates are not overawed or intimidated by their
seniors. Actually, of course, the voting is little more than a for-
mality, since each Justice generally has made his position clear
by the time the vote is taken. Moreover, the vote is only tenta-
tive; each Justice will in effect vote again when he approves or
disapproves the written opinion, and even then he may change
his mind any time up until the decision is actually rendered
from the bench.

To its newest members, perhaps the most surprising thing
about the Court is- that it acts less as one institution than as
nine. Each Justice is a temple unto himself, and only on occa-

Portrait in Yellow and White 285

sion is there a real effort toward an accommodation of views.
Unlike jurors in a criminal trial, who must agree or be dis-
missed, the Justices can and do maintain their own individual
positions as long as they like, no matter how arbitrary, no mat-
ter how ill-founded these positions may seem to their brethren.
The Court could easily have grown up differently, with the
chief emphasis on joint action and with individual views subju-
gated to the group will, but from the beginning it was felt that
the strength of the Court lay in its nine independent judg-
ments, independently expressed, no matter how diverse, no
matter how obstinate.

This independence manifests itself at conference. On a diffi-
cult case the gentle flow of the discussion can quickly turn to
argument, and the argument to sharp defiance. On ‘occasion,
things are said which had better been left to intuition.

As the result of the Court’s conference on Aprils, Mr,
Justice Frankfurter was assigned by the Chief Justice to write
for the majority. Justices Clark and Minton began working on
their own opinions. All in all, it took seven weeks for the vari-
ous views to be put in writing, printed, circulated among the
Justices, approved or disapproved, re-edited, and reprinted.

On June 6, 1955, the Justices filed to their places, and the
ritual of delivering opinions began.

For some reason buried in history, the Supreme Court ren-
ders its decisions not only in print but verbally. Mondays are
decision days, and spectators flock to hear as well as see the
learned judges expostulate the law.

As each case is reached, the Chief Justice turns and nods to
the author of the majority opinion. The Justice nods back and
is on his own. He can read his entire written opinion, as was
usually the custom with now retired Justice Burton; he can
give a brief synopsis of the facts and law, as Mr. Justice Doug-
las generally does, or he can render in effect an entirely new
opinion which sometimes exceeds in length and complexities
what he has written. This last method lies almost exclusively

D8 Oaaeer ss sions 6 cameo


278 Death and the Supreme Court

torney, to present the argument on Williams’ behalf. Oral
argument was reset for April 18, allowing Gressman five
weeks’ preparation.

Gressman thus had the pleasure of arguing before the Court
on his thirty-eighth birthday. A Phi Beta Kappa from the
undergraduate and law schools of the University of Michigan,
Gresmnan was no stranger to the Supreme Court. For five
years, from 1943 until 1948, he had served as the only law
clerk to Mr. Justice Murphy and in that capacity had partici-
pated in the Willie Francis case involving the faulty electric
chair. Since leaving the Court, Gressman had coauthored a
standard text on Supreme Court practice. He was a dark young
man, quite thin, and younger looking than his actual age. He
spoke quietly, precisely, without anger and without any real
flair. One tended to listen to him because he sounded as if what
he had to say was important. In the Williams case, he had real
problems.

It may come as a shock to many, but the Supreme Court
does a0 have jurisdiction to decide all constitutional issues
presented to it. In a case coming from a state court, the issue
must be raised at the proper stage of the proceedings as estab-
lished by state law. Of course, a state cannot be arbitrary or
discriminatory in applying its rules, but assuming that the rule
is applied fairly, the Supreme Court simply has no power to
decide an issue which the state court declares was improperly
raised. The saving grace, however, is that when a constitu-
tional issue is presented, the Supreme Court itself decides
whether the state rules have been equitably and fairly applied
and thus whether the issue is properly before it.

Goode had largely ignored this jurisdictional problem. His
brief went straight to the use of yellow and white tickets and
presented the case as a parallel to Avery’s. But the attorney
general of Georgia, Eugene Cooke, argued in his brief that the
Supreme Court was without jurisdiction because the constitu-
tional issue had not been raised in time; and in any event, he

©

added, the appearance of Negroes on the jury lists rebutted
any presumption of discrimination even though it so hap-
pened that none appeared among the twelve jurors who tried
Williams.

Gressman realized that his principal problem was the juris-
dictional one. He had to convince the Court that it had juris-
diction and could decide the case on its merits. Otherwise, the
Court would simply dismiss the writ of certiorari as “improvi-
dently granted”—that is, admit that it had no power to decide
the constitutional question and that it should never have agreed
to hear the case in the first place. This is a more common
occurrence than laymen may suspect.

Portrait in Yellow and White

Gressman faced up to this dilemma by arguing two princi-
pal points. First, for Williams to have asserted his rights prior
to trial would have been a futile gesture. The entire procedure
in the Georgia courts at that time, including the continued use
of yellow and white tickets after the Supreme Court of
Georgia had condemned them, demonstrated that the constitu-
tional objection would have been ignored. The law does not
require the faithful observance of futile gestures. Secondly, in
a Capital case a constitutional right should not be considered
waived unless for substantial and compelling reasons—reasons
which were wholly lacking in this case.

The oral argument was held on April 18, 1955. Gressman
spoke for one hour and in his deliberate way ticked off the
points in his favor. The attorney general of Georgia sent two
of his assistants, E. Freeman Leverett and Robert H. Hall, to
argue on behalf of the state. Leverett was in his late twenties
and Hall in his early thirties, and both glowed with the confi-
dence and attractiveness of youth. They divided their time
between them. Without rancor, they struck again and again
at the theme that no properly raised constitutional issue was
before the Court.

The Chief Justice sat silent for much of the argument. But
toward the end of Leverett’s presentation he leaned forward


282 Death and the Supreme Court

well have, but who could have said in advance qwhat effect it
would have? That Warren would become a champion of lib-
eral causes and that he would allow little to stand in the way
of just results as he saw them was more obvious after the fact
than before.

The argument was held on a Monday. On the following
Saturday, the Court met for its regular conference to act on
the week’s business.

Tucked into the back recesses of the Supreme Court Build-
ing is an awesome, chandeliered room seldom seen by the
public. It is the room where the conferences of the Court are
held, where the cases are discussed, the votes taken and tenta-
tive results reached. Perhaps by objective standards the room
is not awesome at all, rectangularly angled as it is into the east
corner of the building, with windows overlooking an unex-
ceptional view of street and homes. But this room brooks no
objectivity; it is a subjective room, a personality room. Al-
though quiet, it is a room with a purpose. It breathes sup-
pressed controversy from the pores of every stiff-backed chair,
ranged around the black oblong table like nine jealous show
dogs. At one end of the room is a fireplace and a mantelpiece,
commanded by a grave portrait of John Marshall, staring with
candor upon the scene he has wrought. Next to the fireplace
is the entrance to the office serving the Chief Justice’s law
clerks, so that when tempers rise during the sacrosanct confer-
ences, the gist of the argument filters through to fascinated
ears. On the opposite side of the room is an entrance, normally
unused, which leads to the Chief Justice’s office. But the main
exit from the room is through a corridor which empties into
the hallway behind the courtroom. The corridor is used in
part as a robing room. Thus, the Justices, when they leave the
bench, stride across the hallway and into the corridor where
they leave their robes with their messengers, and from there
go either directly into the conference room, into the office of
the Chief Justice’s two secretaries, or out into the hallway to

Portrait in Yellow and White 253

their own offices. But for most of each week, the conference
room is deserted. It seems to be lying in wait for great events.
Like the ballroom of a country club, it sits lonely for most of
the week only to burst into life on the weekends. Today, con-
ferences begin on Friday and only on occasion run over into
Saturday, but in 1955, Saturday was conference day, and the
ordeal usually lasted the full day.

A negligible amount of ceremony accompanies these meet-
ings. No matter in what recriminations the day ends, it begins
in decorum and fellowship, as the Justices shake hands, each
with the other, as they enter and take their seats. They have
been preceded by their messengers, who have rolled carts into
place behind the chairs. The carts contain the petitions for
certiorari and other briefs and papers upon which the Court
will vote during its conference. When all the Justices have
arrived, everyone else leaves the room, and the doors are
closed. No secretary, no law clerk, no clerk of court, no mes-
senger is allowed to enter after the session has begun, and if
some urgent message has to be relayed in or out, the junior
associate in point of service—at the time of the Williams case,
Mr. Justice Harlan—must leave the conference table and shuffle
to the door like a page boy. This duty had been particularly
hard on Mr. Justice Minton, who walked with difficulty on a
bad leg, and he had happily turned the chore over to John M.
Harlan when the new Justice took his seat exactly three weeks
before the Williams argument.

The Chief Justice led the discussion, taking each case in
turn, summarizing the salient facts and arguments, expressing
his own views of the applicable law, and then turning the dis-
cussion over to the next senior Justice, Mr. Justice Black of
Alabama. After eighteen years on the Court, Black looked
tanned and fit as the result of his regular tennis matches with
friends and law clerks. His eyes reflected determination and an
iron spirit. The discussion passed to bald and gaunt Mr. Jus-
tice Reed. Sitting low in his swivel chair, he spoke in moderate


WILLLaMs, Pringle, ty elec.

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