Georgia, K-L, 1884-1996, Undated

‘22

There was the mark By M

of the murderer written WAS at
distracting n
plainly on his et Rall
1950, heading
; Road, Ernest C
hand for all to see unrolling like «
sleeper cab reli
r and turned on
drowsily.

Crosby look«
“Eight-thirty,”
the floor. A v
Winston Salem
from home.

Behind the h
Crosby drew t
instead of pass
lights off and

Maness rub!
It registered a
bled. “Now w

“Better stop
bounced onto
Cops must do

Maness roll
window. The
his range of °
meet Crosby,
in uniform. C
off shotgun sl
to them.

Maness wa:
lowed.

Crosby wai
disdain and v
shotgun raisec
reply and a
barrel, splittin

George “Born to Lose” Kersey- 4 H
Note tattoo marks on his hands.

Sheriff Bi

Crowder e

tw the mark

rer written

tinly on his

»r all to see

to Lose” Kersey.
rks on his hands.

By MARTIN ZIMMERMAN

WAS a truck driver’s kind of night. Too early for
distracting moonlight, but with just enough dampness in
the air to give the motor a full-throated, contented roar.

Thirteen miles south of Savannah, Georgia on March 8,

1950, heading north toward Dead Man’s Curve on Ogeechee
Road, Ernest Crosby lit a cigarette and watched the highway
unrolling like a spool of black ribbon. Behind him in the
sleeper cab relief driver J. F. Maness yawned prodigiously
and turned on his side. “What time is it?” he mumbled
drowsily.

Crosby looked at his wristwatch in the light of the dash.
“Bight-thirty,” he said, and pressed the accelerator toward
the floor. A wife and two children awaited his arrival in
Winston Salem, North Carolina, and he was still a long way
from home.

Behind the huge produce van an automobile honked loudly.
Crosby drew to the right and the car pulled alongside. But
instead of passing as expected the driver switched his head-
lights off and on while his horn blasted racuously.

Maness rubbed his eyes and peered at the speedometer.
It registered a steady 45 mph. “Too fast, Ernest,” he grum-
bled. “Now we have a couple of cops on our tail.”

“Better stop, I guess.” Crosby nudged his air brakes and
bounced onto the road shoulder. “That’s a 1950 Buick, pal.
Cops must do all right for themselves around here.”

Maness rolled over on his stomach and peered out the
window. The Buick had stopped back of the truck, beyond
his range of vision. But he could see two men coming to
meet Crosby, who had climbed from the cab. Neither was
in uniform. One, however, a tall red-head, carried a sawed-

off shotgun slung in the crook of his arm. Crosby listened -

to them.

Maness was unable to hear the conversation which fol-
lowed.

Crosby waited a while, then suddenly turned his back in
disdain and walked away. As he did so, the man with the
shotgun raised his weapon and shouted loudly. Crosby didn’t
reply and a burst of fire suddenly belched from the gun
barrel, splitting the night silence with a shattering roar.

Sheriff Bill Harris looks on as Detective Robert
Crowder examines gun.that spelled doom for trucker.

qs

Maness, the relief driver had courage, but he was not a
fool. He couldn’t help Crosby who was face down on the
seat, sprawled half in and half out of the truck. And so
he lay in his bunk until the Buick pulled around them and
vanished into the night.

Still alive, the young trucker was fast losing consciousness
when his helper dragged him from beneath the wheel. “No
cops,” he murmured weakly. “Jt was a stickup. I wish I'd
given them all the money I have

His voice trailed off as Maness leaped onto the highway
and wildly flagged an approaching car. “Get an ambulance
out here right away,” he pleaded. “A man has just been shot!”

One hour later, Ernest Crosby lay in Savannah’s Warren
A. Candler hospital, several hundred miles from the Carolina
home he would never see again. Doctors were administering
blood plasma to keep him alive, but death was only a matter
of time. Shotgun pellets had pierced his intestines in at least
fifteen places; the best that medical science had to offer
was inadequate.

At police headquarters, Maness was telling his story to
Sheriff Bill Harris and Sergeant Thomas J. Mahoney, chief
of Chatam County’s homicide squad.

“I don’t know who they were,” he said.
with the gun had red hair.”

“It isn’t too late to have road blocks put up,” Sheriff
Harris decided. “This is just a hunch, but that Buick might
belong to Waldo Spence, sports writer for the Savannah
Free Press. He phoned in this morning to report his car
missing.”

“A red headed killer,” Mahoney mused. “That should
narrow our list of suspects somewhat. Think you could
recognize him again?”

“I -don’t know,” Maness said uncertainly.
a very good look.”

Mahoney stood up decisively.
rogue’s gallery of known hoodlums.
picture of your redhead in there.” .

State Police patrol cars had already been alerted: to watch
for Spence’s missing Buick and the sheriff was confident it
would soon be found. “That car is plenty hot,” he said.
“They’re bound to ditch it before long. Maybe we'll have
luck with fingerprints when it’s found.”

At the crime scene, County detectives J. H. Johnston and
Robert P. Crowder, working under the direction of Chief
W. F. Chapman, searched vainly for some clue which would
identify the gunmen. Crosby’s big truck was still parked on
the road shoulder. But any tire markings which might have
been left by the murder car had been obliterated by the dozens

“But the one

“I didn’t get

“J'll introduce you to our
Maybe you'll find a

of curious motorists who who had been attracted to the scene

by the sensational shooting.
“Not even an empty shotgun shell,” Crowder grumbled.
“They shot an unarmed man in the back and got away clean.”
County officers were in charge of proceedings since the
attack had occurred beyond the city limits. A short time

‘later Savannah police cut themselves in on the deal when a

phone call was received from a Price Street resident at 9:45
p.M. Patrolmen L. H. Lucas and R. E. Oglesby investigated.

“Pm scared,” the man said bluntly, after admitting the
officers to his home. ‘We just heard a radio report about
some truck driver being shot by two men in a new Buick.”

Lucas eyed him calmly. “What does that have to do with

ou?”

“Plenty,” the Price Street man said, shaking his head
worriedly. “About an hour ago Bill Tolley—that’s my wife’s
brother—came to the house with two fellows in a new Buick.
All three were plenty drunk, and as soon as they got
inside they began asking for money so they could get out
of the state.” (Continued on page 30)

23


2 SHOALS ATOMS Ti A a psf ee hy

Ss Nad aL ek Ue aa

|This jury, composed ‘of T. M. Red,

QUINCY NEGRO SLAIN
IN THIS CO., IS BELIEF

‘

Peed

, NEAR PINE PARK ON LAST
WEDNESDAY: .

Officers of this county, and “from
Gadsden county, Fla., Thursday were
engaged in solving a new murder case

well-to-do and highly-respected Quin-
cy negro, jras murdered in this county
by a negro whose name has not been
learned. Ls

Stephens’ body was found in a
rather secluded spot in a creek near
Pine Park Wednesday, and a coroner’s
jury returned a Verdict that he had
been murdered. The body was pos-
itively identified Thursday morning
by Deputy Sheriff Long, of Quincy,
and Quincy negroes, as that of Steph?
ens. - . ;

Deputy Long says that Stephens
was lured away from Quincy last.
Saturday by a negro for the purpose
of robbery and the theft of his auto-
mobile, which he had -in. taxi service.
Stephens formerly was engaged as
lan engineer for a fullers-earth “con- |
cern in Gadsden county and he had |
some money and considerable prop-
erty. He is said ‘to have carried a
considerable sum of money on his
person most of the time,

In searching for the car, a 1927
model Ford Fordor. sedan, motor
number 14,643,687, with 1928 Florida
license number 161-425-C, and the
alleged murderer, the officers are
working on the theory that he is a
resident of this section.

The slain negro’s body was discov-
ered Wednesday by unsuspecting ne-
gro children, who passed near the
spot, and Coroner J, Bentley empan-
elled a jury to investigate the case.

foreman, C, A. Knight, A. N. Gunter,
S. J. Jordan, L. C. Parrish and I,
Bryant, returned the following ver-
dict:

“We, the jury sworn to hold an in-
quest over the body of an unidentified

near where the Brumby eréek bridge
on the lower Pine Park and Cairo road
eoesses, eaid ereck, find that he was
killed by a gun-shot wound and a lick

BODY WAS FOUND IN A CREEK|_

negro man, found in Jack Hall branch, |}.

‘in which they believe John Stephens, a + \idiueiahaiie

on head, and that the same was murs}
der by an unknown party or partiea’*> ~~

EDMOND KELLY WILL |
| GIVEUP LIFE TODAY

“Sx,

— |
ee

GRADY COUNTY NEGRO bel BE
ELECTROCUTED FRIDAY‘
MORNING.

Edmond Kelly, Grady county negro,

| KELLY, Edmond, black, 28,. electrocuted Georgia (Grady County) on February 21, 1930.

\h
S

negro in this cou
1928, will pay wit
state’s electric chai
this, Friday morning.

~ cution. 4

convicted of murder in Su

perior Court | :
ere on October 3ist, 1928, for the) Pedder

Fia., |

LO~ i Ys
‘ne of a well-to-do Quine
piles nty on July

iy at Milledgeville

in jail
Kelly, who has been in A |
ce : beer days after the crime was |

to Milledgeville,
committed, was taken D. Perkins,;

esday by Sheriff D. Sy |
am Dendtion J. A. Aldridge and ae
Clark and he will remain in pa sd
cell at the state farm there un 1 eng
goes to the chair this morning. _
exact hour of the execution has not)

sin

i in in
<swbeen set. The officers will remain

il j Xe- 1

Milledgeville until just after the e |
\
Kelly, according to officers, has re |
tually confessed to murdering his vi “|
tim, John Stephens, his motive pera
’ |
robbery and the theft of Stephen sj

Counsel for the negro was aPp-|

car. eis |

i t and appea
ointed by the cour |
prea to the Supreme Court in —
to make certain that the laws were!

h his life in “oe A// of GO

here i

cee A countian that has_ever paid

complied with in every respec

trial.
Kelly will be

preme penalty for a crime.

t in the}

the second Grady |
the su-
Another |

}
|

i
\
t

negro was electrocuted a few sound
‘ |

ago.


LACY, Will, black, elec. Ga. SP (Cook) 5-21-1937

in Chair ‘On F; tiday

AR ae PS el

ite ror pis oe ane
will "Lacy, €8 “eeliterited ‘to

the; electric’ halt, to} die. on] Friday

Ward, Mr. 'B. ‘8s ' Wetherington: and!
Mr. Owen “Anglin: “The négrowas: in
good spirits and appeared” to; ‘believe
ithat something would. ttn "up to
saves ble, Iie "aasliss da seal cade

‘before: wheni ' he “was ‘carried Mieré! ADEL NEWS,
‘However, pa ’ ‘dg being: made t ‘to) Adel, Ga.,
porte his ° and “he Ma i, l
ere that if he had to gé.heé ‘had just
88 ‘goon, ‘have., dt oye: r ‘with'\when: ‘he
egot there as. ies al ‘tantil Fridéy. ‘He,
conversed ‘with: a: white, man’ ‘from
Columbus whole, ‘ale
crime én Friday’ plac
that, they had: Sear urea
| ADEL NEWS,
Adel, Ga.,

Mey 28, 1937.


Will Lacy. to, Die a
In Chair On 1 Friday

will ‘Lacy,’ the” negro seiiterited ‘to
the : electric chair to; die on Friday
of this. week was‘ carried. to Milledge-
ville Tuesday by | ‘Deputy. rigs ‘Sheriff
Ward, Mr. B. S.° -Wetherington and
Mr. Owen Anglin. ° “The “negro, was in
good spirits and appeared: to. ‘believe
: that something would tutn — ‘up to
save’ his life again: as was, ‘the’: case
before when he was, carried ‘there.
However, no ‘effort is’ being: made: ‘to
‘have his sentence’ ‘commuted and he
| will probably" ‘be electrocuted. “Will
| said that if he had to go he had just
“as soon. ‘have. ito er ‘with ‘when che
«got there as to Wait until Friday. He
conversed with. a white . man” ‘from
Columbus ‘who, is to die for a heinous
crime én Friday’ also and both stated
| that they had been praying ' rand’ Will
= him that” they could Peay to-

avi

| ‘On Last F tiday Mor |

He esis Bt A =,

iy

Friday. . Reports say. that. he — was
calm’ and read, his: Bible: just. before
going tothe chait; AS. he was being
strapped in: the ‘chair. ihe’. rmniiered
that he. acted: in, self. defense. se

wa who. vgs two. negro’ ‘women:
at Lenox nearly. ‘two. vears: ago; was!
electrocuted »" vat Milledgeville glast

ADEL NEWS,
Adel, Ga.,

May 31,

1937

ADEL NEWS,

Adel,

Fics

1937.

1966 - CAPITAL PUNISHMENT IN MICHIGAN ___ 33

_M. Péré informed me that he had released the youngest son of
Achiganaga, aged about thirteen or fourteen years, that he might
make known to their nation, and to the Sauteurs who were at Nocké
and in the neighborhood, the reason why the French had arrested
his father and brothers.12 M. Péré bade him assure the savages
that “if any one wished to complain of what he had done, he would
wait for them with a firm step;” for he considered himself in a
condition to set them at defiance, having found at Kiaonan eighteen
Frenchmen who had wintered there. However, no one opposed
his design.

On the 25th, at break of day, M. Péré embarked at the Saut, with
four good men whom I gave him, to go and mect the prisoners. He
had left them four leagues from there, under a guard of twelve
Frenchmen, and at two o'clock in the afternoon they arrived. I had
prepared a room in my house for the prisoners, in which they were
placed under a strong guard, and were not allowed to converse with
any one.

On the. 26th, I commenced proceedings; and this, sir, is the
course I pursued. I gave notice to ali the chiefs and elders to appear
at the council which I had appointed, and ‘gave to Folle-Avoine the
privilege of selecting two of his relatives to support his interests;
and to the other prisoners I made the same offer.

The council being assembled, I sent for Folle-Avoine to be inter-
rogated, and caused his answers to be written; and afterwards they
were read to him, and inquiry made whether they were not, word
for word, what he had said. He was then removed from the council

The Noké (Noquet) are one of the most difficult tribes in the Upper
Lakes to understand. Jean Nicolet located them on the shores of Lake
Superior in 1634; by the 1720’s, at the time of Pierre Charlevoix’s journey,
they were at Bay de Noquet, near modern Escanaba. Charlevoix_ mentions
that linguistically they were almost the same as the Sauteurs. The tribe’s
disa rance has never been satisfactorily explained. Frederick Hodge sug-
pes that they were absorbed by the Sauteurs; John Swanton suggested
that the Noquet were actually the Menominee, or became absorbed by the
Menominee. For Nicolet, see Reuben G. Thwaites (ed.), The Jesuit Rela-
tions and Allied Documents (73 vols.; of Cleveland: Burrows Bros., 1896-
1901), XVIII, 231-33. Charlevoix is quoted in Frederick Hodge, Handbook
of American Indians (2 vols., Bureau of American Ethnology, Bulletin No.
30; Washington, D. C.: Smithsonian Institution, 1907, 1912), I, 804, 842.

ohn Swanton, The Indian Tribes of North America (Bureau of American
thnology, Bulletin No. 145; Washington, D. C.: Smithsonian Institution,
1952), pp. 548-49.

Fe ae

‘ 3 estch


LAMAR, James, black, hanged at Darien, Ga., June 30, 1893.

"Darien, Ga., June 30. - (Special.) - James Lamar, colored, was hanged
here today. At 10:55 Lamar was photographed, being anxious to send his
picture to his family. At 11 o'clock the sheriff called to tell him that
everything was ready and he went upon the gallows. Lamar Bad nothing to
say and the black cap wos adjusted, The benediction was pronounced and
the drop fell at 11:10 o'clock. At 11:22 o'clock the doctor pronounced
him dead. The body was then cut down and placed in a pine coffin. Before
the cap was put over his face Lamar raised his right hand to heaven
several times, Only the officers, the preachers, newspaper men, his attor-
ney and a few friends saw the hanging although a great crowd had gathered.
The sallws was enclosed so thst no outsiders could see in. Just before he
left the cell he wrosé the following letter to Sheriff Bailey:
"tIn Jail, Darien, Ga., June 30. - Mr. Thomas A, Bailey. Dear sir: I
write to let you know how much I like you. I hope the Lord will bless you
and that you may not get madm with me. You have treated meas kind as you
could. The Lord will bless you. Please don't think hard of me. You have
feeling for me, but the law holds you to your duty and promise. You are a
good man and I hope that after my death you will give up the office. You
are a merciful man and God will bless you for your kindness to me some day.
Mr. Bailey, don't think hard of me, if you please, sir. fs? James Lamar,'
"STORY OF LAMAR'S CRIME.
"On November 22nd, 1892, James Lamar, of Laurens County, and Archie Bird,
of Montgomery County, both coloed railhands, evidently in the friendliest
spirit, agreed to try their luck in company with a party of Darien negroes
at the favorite game of 'skin.' After playing some time Lamar claimed that
Bird owed him 50 cents, but Bird denied it and refused to pay him on being
asked for it. This riled Lamar and he again demanded that the money be
returned to him, which Bird positively refused to do. On this refusal
Lamar pulled his revolver and shot at him three times. At the second shot,
Bird fell to the ground mortally wounded, but Lamar was not satisfied. He
had two more cartridges in his revolver, and demon like, he shot them into
the body of the helpless victim and fled. Lamar was pursued by Sheriff
Bailey, caught and at the last term of court tried and found guilty of mur-
der. Judee Falligant presided at the trial and sentenced him to death."

CONSTITUTION, Atlanta, Ga., July 1, 1893 (2:3).

LEWI3, Marshall, black,
THE FLORIDA TIMES-UNION (Jacksonville) hanged Nashville, Ga

Saturday, 10 July 1909, Page 1. 7/9/1909

‘HAD HARD TIME
IN HANGING NEGRO

-ZIRST TIME THE NOOSE SLIPPED
: WITHOUT. EXECUTION.

‘

; Negro Was Finally Killed By Strang-

: lation After Remaining on Gal-
lows Seventeen Minutes.

| Nashville, Ga. July 9--That the hane-
; Man's none [ta bungtesome and rer tiess
‘ made of execution sas cicarty demonrtrut.
ed here today ahen Marshail !ewte. coi-
)ored, waa ted back on the crudely con.
atructed xaliowe, bimxi flowing from his
‘ meuth and ging for water. after Bteriff
‘LL Cc. Avera bad epmin rhe trap and the
: body had Gropped a wet. -
i ‘The eecyad attempt proved unsuccesaful
in break! the condemned mans neck,
death reaultfag in Afteen minules from
: ation.
sag ftom ty shot and xEilied Cliffora Ruther-
‘ ferd. aseistant pvstmaater at Lenog, Ge,

\ Are 2
feened his culit
By Subilshing a sketch eof his life he
| corned. sufficient money to pay for the
, treaspertation of his budy te his home at
‘Qakfield, Ga. He was above the average
ot Ye race in intelligence,
The few spectators whe witnenes the
i spectacte were risthty affected my the
arucsorrances The drop of ax feet atretoh-
ed (Re cottan Mm m) thet the man's feet
tonched the earth. He was cut doan aru
with the ahi of. one man nreunted ine

t
| scaffoid a eeceod time. fie taked cauher-

wat.

Nashville, Ga., July 9 -- That the
hangman's noose is a bunglesome and
merciless mode of execution was Clearly
demonstrated here today when Marshall
Lewis, colored, was led back on the
crudwly constructed gallows, blood
flowing from his mouth and begging for
water, after Sheriff L. C. Avera had
sprung the trap and the body had dropped
six feet.

The second attempt proved unsuccessful
in breaking the condemned man's neck,
death resulting in fifteen minutes from
strangulation.

Lewis shot and killed Clifford
Rutherford, assistant postmaster at Lenox,
Ga., April 12.

He confessed his guilt.

By publishing a sketch of his life he
earned sufficient money to pay for the
transportation of his body to his home at
Oakfield, Ga. He was above the average of
his race in intelligence.

The few spectators who witnessed the
spectacle were rightly affected by the
gruesomeness. The drop of six feet stretchec
the cotton rope so that the man's feet
touched the earth. He was cut down and
with the aid of one man mounted the
scaffold a second time. He talked
coherently.


LEWIS, Marshall, black, hanged at Nashville, Georgia, on July 9, 1909,

"Nashville, Ga, July 10, 1909-Marshall Lewis, the negro who shot and killed Clifford
Rutherford at Lenox, Ga., in April, was executed at Nashville yesterday by Sheriff N. L.
C, Avera, at ll o ' clock. Ke confessed his guilt, professed religion, and gave the
usual warning to his race, By publishing a sketch of his life he earned sufficient
money to pay for transporation of his body to his home at Oakfield, Ga,

"The trap was sprung at 11 o'clock, The first attempt to break his neck was a failure
and he was led back up the steps and dropped the second time, As he walked upstairs,
blood streamed from his mouth and he begged for water,

"His neck was not broken the second time and he strangled to death in about fifteen
minutes.

"Lewis shot and killed Clifford Rutherford, a young white man and the assistant post-
master at Lenox, the morning of April 26 last. Mr, Rutherford and others were on the
trail of someone who had burglarized stores at Lenox during the early morning hours,
and coming up on Lewis in the waiting room of the depot, Rutherford was shot down
without an opportunity to defend himself," JOURNAL, Atlanta, Ga., July 10, 1909 (h-3.)

"Valdosta, Gae, l-26-Clifford Rutherford, Assistant Postmaster at Lenox, was shot
and killed at i, o'clock this morning by a supposed negro burglar, who had robbed
the postoffice, two stores and the bank, Rutherford and J, E. Sears went to the
depot waiting room to arrest the burglar, Rutherford struck a match to look in
the room, when a mulatto standing inside of the door fired twict, Both bullets
enteked Rutherford's head, causing death an hour later, The negro then ran and
was fired upon by Sears and S, F, Kinard, but without effect, Chief Nampier
carried dogs from this city and Sheriff Avera, of Berrien, had his dogs on the
scene, but they could not get a trail, The murderer left his old clothes in the

wadting room, having put on some he had stolen, The old clothing appeared to
be fhose of a mulatto from Cordele who ran a pressing club there last week, and
who is suspected of burglaries and killing, A supposed accomplice is under
arrest," JOURNAL, Atlanta, GA, l-26-1909 (11-1, )

"Valdosta, GA, April 26-a negro named Marshall Lewis was arrested at Adel this af-
ternoon, charged with the murder of assistant Postmaster Rutherford of Tennox, He
confessed the c rime and implicated a white man, but refsued to give his name," Jour-=
nal, Atlanta, 4-27-1909 (2=3,)

"Savannah, Gae, April 28, 1909 - Marshall Lewis, the negro who has confessed to
having killed clifford Rutherford, assistant postmaster at Lenox, Gas, and who was
brought here for safekeeping, is taking life eas? in Chatham County Jail, He got
here yesterday afternoon, and was taken at once to jail, He refused to talk to
newspaper men or even to see them, He says he is going to spend his time praying
until the hour of his trial, ‘while coming to Savannah, Tewis would talk with all the
negroes he met en route, but would not even hold conversation with the officer who
had him in charge, Deputy Sheriff E, B, Washington, of Lowndes County, brought the
negro to Savannah, and he says he is the most cold-blooged and meanest man he has
ever come into contact with, While enroute to Savannah, Lewis swapped his fine
Stetson hat to another negro for a very commplace one because, he said,

he would not have use for fine hats where_he would spend the next few months,"

Yournal, Atlanta, Gas, April 29, 1909 (2.)


L&wIs, Robert, white, Ranged Atlanta, Fulton Co., Ga., 3-1-1899

acne
‘GURL

EWS AN THE TOWER:
HAYNES'S MURDERER DEAD

In the midst of the work of preparation
for the execution Dr. Stephenson, the
Tower chaplain, hastily left the building.
He looked pale, and as he Arew his over-
coat around him he said:

“{ will not witness the execution. I am
sick. Dr. Vaughan will be with Lewis at
the last moment.”

With a Oy af “Time,” “Water” and “Wife” Upon tis Lips He
Fell Through the Death Trap,

it had been reported by Jail officials that
Lewis had declined to have Dr. Stephenson
with him, as the doctor had been very |
candid with htm about his approaching
death. The minister said, however, that
Lewis wanted him, and that he only retired
on account pf hig iliness.

Miss Sue Hollaway, the ex-police matron.

ANGUISH OF THE MAN'S ies

The Cendemaéd Wan Hoped to the ia
and Feared the Gallows,

“en cere nanan tent

SCENES AT TOWER DURING EXECUTION

Body Will Be Buried at Westview This
Morning—The Execution Was
Witnessed by Only Eight
People—The Story of
the Crime.

With a cry for a few more moments of
Ute, for a drink of cold water and for. his
wife to come to him with her prayers,
Robert Lewis fell through the Geath-trap
in the Tower yesterday morning at seven-
teen minutes past ll o'clock, and in
aighteen fninutes afterwards his body was

cut down and turned over to the under-

taker.

The murderer of Charles Haynes had
hoped against hope until the end, and, af-
fer a restless night, he saw the last day
af bis earthly existence dawn through
clouds and rain, a sombre light entering
his cell as gloomy &s his own dark soul.
To his lawyers he had exclaimed:

“No hope?’

To the executioners he had said as he
atared about him:

“Have I no friend? Are you going to
kill me?”

Upon the floor of his cell he had writhed,
while incoherent words fel!
blanched pe.

Then the officers entered his cell and to |
him was read the death warrant The |

condemned mag acted as one in @ trance.
It had deen predicted that -hts great fear
of sents would cause him

to grow 6u

et

from his |

of death would cause him to grow 80
weak and faint as to make it necessary for
the officers to carry him bodily upon the
gcaffold; but he walked steadily and
stepped upon the scaffold without an ap-
parent termor. Yet, it {s sald by the few
who witnessed the execution that the fear

of death showed itself by the strange
glitter in hig eyes. Ww Ax
While the gallows was doing ts \

awful and solemn duty to avenge the mur-
der of Charles Haynes, by taking « life |
for a life in the top floor of the Tower, a
litUe woman rocked herself to and fro and
ecreamed with hysteria as & kindly lady
tried to corvfort her in & room on the first
floor of the prison. Mrs. Lewis had in-
sisted upon being as near her husband as
possible when he was hanged. She had
spent the night at the Tower, and she was
with him in his cell early yesterday morn-
ing. Only a few moments before the exe-
cution, and when all was in readiness to
remove ‘Lewis from his cell into the’
execution room, Mrs. Lewis sprang from
her chair and exclaimed:

er must #06 him alive one more time. Oh, Y
tell them to let me see him just once . \<
more."’ x

Her request was Quickly delivered to
Deputy Sherif Shropshire, who was super-
intending the hanging. and the deputy :
gaid: ‘Tell her to come quickly and see \
her husband a few moments.”

Outside a dozen policemen on horseback
and on foot were waiting in the cold dris-
giing rain, but there was no need of their

services, for not more than twenty negro
men and boys and half as many white men
gtood on the sidewalk gazing at the Tower
vith morbid curtosity.

Gcenes Within the Tower.

Within the Tower everything was con- f
ducted quietly and with order, and a#
much kindness 48 possible shown the pris-

oner. In the Tower office the arrange- :
ments were made with the undertaker. it me.
was understood . that the Masons, out of

sympathy to the wife, would see that the t
man was not turned over to a medical col- ‘
lege, and that he was decently buried. H


who is now stationed at the Tower, talked
and prayed with Mra. Lewis during the
morning. . e.

A few persons were allowed to see Lewis
before the execution, and every one who
went into Marderer’s Row exclaimed as he
“J wish I hadn't seen that poor fellow.”
There was something pitiful in Lewis's
abject fear. He hed reached a state of
mental imbecility that had been superin-
duced by fright; but this was what served
to nerve him some at the last trying
moment. It was mental numbness born of

Re carried out.

Night before last Lewis had a hope that
yesterday would not be his day of death.
The board of pardons had met and re-
opened his case, and at a late hour had
adjourned with the intention of reaching 4&
decision the next morning. Lewis's attor-
neys, Arminius. Wright and L. C. Hopieina,
were before the board for the last time
yesterday, and they made the final effort
of a jong and faithful fight to save their
client's Nfe: The decision was that there
would be no interference, From the ¢ap-
ital to the Tower the two attorneys went,
and they were admitted to Lewis's cell...
“Can you give me any hope?” Lewis
asked as he> clutched convulsively at @

anar ane wir mane
L, pvie acta upon the floor and crawled
‘about like @ wild animal on his hands and

‘vain to get him to talk, but they could
aiahi no intelligible replies to: their ques-
tions. At 10 o'clock they wkhdrew.

Reporting on Lewis's -eondition, . the
‘ @eath-watch who was last with Lewis said
the prisoner had slept some during the
early morning hours. A . goed breakfast
was sent to him. He only-drank & cup of
coffee, which nauseated him. = aaa

The Death Warrant Read.

At half-past 10 o'clock Deputy Sheriff
Shropshire, Deputy Sheriff Tye, with Dep-
uties Chastain, Fain. ‘Gtleland walk-

ed into Lewis's cell, atid the
rant was read

Lewis stared at the officers and asked:

“Are you going to kill me?”

“We will. have to execute the judgment
of the law,” he was told.

,“Haven't,I gota friend, just one friend.
to help me?” exclaimed Lewis, with trem-
bling tps.’ Si Beanie

“We are all your friends, Lewis,” replied
Deputy Shropshire. ‘““‘We would not hurt
you tf we could help it, but we are only
here as officers of the law.’’

The. man's hands were pinioned, and he
sald;

“Let me beg you not to tle my legs. 7
will promise not to kick nor try to get
loose. Don’t tie my legs, please.’’

From the cell. in Murderer’s Row the
condemned man was taken. He walked
through the door with a steady step, and
went up the stairway leading to the scaf-
fold without assistance.

In the.execution room were the five depu-
ties and‘Dre. Charles J. Vaughn ana L. J.
Blanton, and Rev. BE. L. Vaughan. Only
these eight persons witnessed the hanging.

How Lewis Acted on the Gallows:.

Just as he reached the gallows, Lewte
turned to one of the physicians and asked

“Doctor, can't you geove me something to
help me?’ * . ;

As nothing of the kind could be done no
reply was made.

The minister offered prayer and read por-
tions, of the Bible. He then turned, end
‘facing Lewta, asked: Z

“Do you trust in the blood of Jesus
Christ?"

“Yes, I took to Him for forgiveness and
salvation.” wasthe reply. = ##=§=§= ~

The noose was adjusted and Lewis j00k-

ed about him wiidly and sald:
“Don’t be in a hurry. Give me a few


Metro<State

SECTION D

THE ATLANTA CONSTITUTION

KakkK

THURSDAY, MARCH 22, 1990

Mike Mears
Plans to press appeals

FIT TO DIE?

Competency test set for man who wants to be executed Friday

By David Goldberg
Staff writer

JACKSON, Ga. — A Superior
Court judge Wednesday granted
a motion by the state to have a
death-row prisoner awaiting ex-
ecution examined by a psychi-
atrist.

Larry Lonchar, convicted in
the murders of three people, has
said he wants the state to pro-
ceed with his execution Friday.

He would be the 15th person
electrocuted since Georgia re-
sumed executions in 1983.

But Mary Beth Westmore-
land, senior assistant attorney
general, requested during a
Wednesday afternoon hearing
before Judge William Craig that
the inmate undergo psychologi-
cal tests.

The judge has not granted a
stay of the execution, which is
scheduled for 2 p.m. Friday at

the Georgia Diagnostic and Clas-
sification Center near Jackson.
The 11th-hour legal maneuver-
ing is likely to continue down to
the wire.

If the judge decides that Lon-
char is competent, then attorney
Mike Mears said he plans to ap-
peal to the Georgia Supreme
Court, and then to the U.S. Su-
preme Court.

Lonchar, 38, who was led to
and from the courtroom in mana-

cles and shackles, seemed impa-
tient at times with the pro-
ceedings.

When the judge asked him
whether he supported efforts on
his behalf, he replied, “No, Your
Honor, I strongly oppose it.”

The judge later asked Lon-
char why he wanted to die.

“Why? ... There are many
reasons. I don’t believe I have to

Please see LONCHAR, D4 >

Larry Lonchar
Opposes efforts to save him


_ the elder Smith’s girlfriend, Mar-

LVIICKG:

Judge

approves
exam

> Continued from D1

explain those reasons, I have
been sentenced to death, and |
_ ask the court to Carry it,out.”

Despite Lonchar’s wish to
proceed with his death sentence,
awyers want to appeal.

On Tuesday the Georgia Su-
preme Court dismissed an earlier

/ appeal filed on Lonchar’s behalf

' by Mr, Mears, saying his argu-
ments should first. be heard by
Judge Craig's court.

In granting Lonchar’s wish to
be executed, the state would be
helping the convicted murderer
fulfill his desire to commit sui-
cide, Mr. Mears said.

Lonchar, a Jonesboro resi-
dent, was sentenced to death in

_ June 1987 for murdering three
people in north DeKalb County.
He was convicted of the Oct. 13,
1986, killings of Charles Wayne
Smith, 54; his son, Wayne, 24: and

garet Sweat, 45, of Gainesville, at
the Smiths’ condominium.
The Smiths were shot to
death, and Ms, Sweat, who died at
. & hospital, was Stabbed 20 times
and shot, § es
Mr. Smith’s son, Charles
“Rick” - Smith, then 30, was
wounded but survived by playing
dead.
One of the victims had man-
aged to dial 911, and jurors heard

the emergency service’s tape re-
cording of the woman crying,
“Please, Larry, please,” as she
was stabbed in the throat and
chest.

' Thé Associated Press contrib:
-Uted to this article.

ad


Killer’s death warrant challenged

By Rhonda Cook
STAFF WRITER

A DeKalb County judge on
Tuesday is to hear arguments
that one of his colleagues should
not have signed the death war-
rant setting the execution of
murde~er Larry Lonchar for
next week.

Meanwhile, Lonchar’s law-
yer, John Matteson, has said he
plans ‘to file a separate action
early next week to allow the con-
demned man to be an organ do-
nor. But electrocution, the only
legal execution method in Geor-
gia, would make his organs use-
less for transplanting.

Lawyer Mike Mears, acting
on behalf of Lonchar’s brother,
argues that sentencing Judge
Robert Castellani should have

The Atlanta Journal / The. Atlanta |

disqualified himself from the
case because an “appearance of
impropriety” was created when
the judge visited the condemned
man before his scheduled execu-
tion in 1993.

Mears is scheduled to argue
his challenge before DeKalb
Judge Robert Mallis on Tuesday.

Lonchar, 43, is to be put to
death Friday for-a 1986 triple
murder over a $10,000 sports

gambling debt. He came within
32 minutes of electrocution in
1993, but that execution was
stopped after. Lonchar —an-
nounced that he wanted to appeal
his sentence.

Six hours before Tonehar de-
cided to stop his execution, he
visited with Castellani for about
20 minutes, according to court
document

shine chee ee NSE! AIS BARS VST

Constitution i$

CIO Saturday, June 17, 1995 sxnnes

Mears argues that Castellani
violated Lonchar’s rights by
meeting him without the in-
mate’s lawyer. Mears said the ac-
tion angered Lonchar’s relatives,
because their visit with him was
interrupted by the judge.

“In context of the dramatic
events of that evening — Mr.
Lonchar’s last-minute change of
course and the immediate deteri-
oration of his mental condition —
the meeting raises serious ques-
tions about Judge Castellani’s in-
dependence and impartiality as
well as the propriety of his ac-
tions in this case,” Mears wrote.

John Petry, chief assistant
district attorney for DeKalb
County, responds that Mears has
no right to interfere in the case
and that Castellani’s visit had no
bearing on his setting the execu-
tion date.


~

Killer sentenced

to electric chair
wants no delay
in his execution
By Rhonda Cook
STAFF WRITER --

Larry Grant Lonchar, who is

scheduled to be executed Friday,
is the first Georgia death row In-

mate to use the legal system to —

fight to die rather than to avoid
the electric chair.

His choice of death instead of
life in prison has brought some
unusual twists to the case.

. Last week, Lonchar said that
Mickey Mantle’s liver transplant
had inspired him to consult with
Dr. Jack Kevorkian — some-
times called “Doctor Death” —
to see if the execution could be
conducted in a way.that would al-
low Lonchar’s organs to be har-
vested for transplant.

But Georgia law specifies or-
gan-destroying electrocution as
the only approved method of exe-
cution.

“Mr. Lonchar wishes to say
.. that he was convicted at a fair
trial before a fair tribunal and
fairly sentenced for a crime in
fact he committed,’ Matteson
wrote to board Chairman Wayne
Garner. “Mr. Lonchar asks that
none grant pardon but God.”

Board spokesman Mike Light
said the board would probably |
decide Monday if it will ignore
the lawyer’s letter and consider
.Lonchar’s case.

Another lawyer, representing
‘one of Lonchar’s brothers, is try-
ing to stop the execution by ac-
cusing a judge of improperly
sentencing Lonchar to death.

Mike Mears has asked that
DeKalb County Judge Robert
Castellani’s sentencing order be
vacated, saying Castellani should

_ not-have visited Lonchar, with-

Atlanta lawyer John Matte- —

son, who is representing Lon-
char, has asked that the state

Board of Pardons and Paroles |

not hold a hearing it usually
would conduct before an execu-
‘tion — a hearing that could result
‘in a delay or commutation of the
sentence.

Const TUT on

a

GA

out Lonchar’s attorney being
present, hours before his previ-
ously scheduled — and halted —
execution in 1993.

DeKalb County Superior
Court Judge Robert Mallis has
scheduled a hearing at Mears’

request for Tuesday.

Lonchar is to be executed at 3
p.m. Friday for the 1986 murders
of Wayne Smith, 54; his son, Ste-
ven Smith, 24; and the older
man’s girlfriend, Margaret
Sweat, 45, over a $10,000 sports

bet Lonchar owed them.

If he is executed, he will be

the third person electrocuted in

Georgia this year.

Vi

6/15/15


By

his second execution date in le

__ The state Supreme Court refused to
“~stop today’s 3 p.m. execution, so Lon-
"ichar’s attorneys said they would appeal
" in federal court today.

“T’m tired of playing these games,”

1¢ wants to be executed tod

“-<--Lonchar said Tuesday.

aa courts deny them [appeals] all. I prefer
» to just go ahead and die.”

. Until Friday, Lonchar has never ap- -

- pealed

__ Larry Grant Lonchar today fades
yall _and Margaret Sweat; 45, in a dispute
| overa

same nouncing plansto appeal.

nchar’ “live until next spring,

# :
dren who would be Possible benefac-
_ tors if he donated his organs.

Flint Judicial Circuit Superior
Court Judge Byron Smith on Monday
lifted the temporary stay — imposed 75
minutes before last Friday’s scheduled
3 p.m. execution, saying Lonchar only

_Wanted tovehange the method of exe-
- cution.  ~ Ske ys? isn

gt wasn’t.surprised,” Lonchar said.
Two years ago, a similar scenario
played out at the Georgia Diagnostic
cand Classification Center, the prison

“I hope the

is death sentence for murder-
ing Wayne Smith, 54, Steve Smith, 24,
$10,000 gambling debt Lonchar
Consequently, he was able to

owed.

_ -Lonchar said Friday he wanted to
after the 1996

Georgia General Assembly has a that -h uses Death Row inmates. Lon-
‘Chance to change the method of execu- char sto ped his execution 32 minutes
tion from electrocution to lethal injec- beforehan, by, saying he wanted to ap--

tion so that he could donate his organs.
. John Matteson, the attorney who
initially agreed to help Lonchar get his
death*wish, said visitors to the prison
have shown Lonchar Pictures of chil-

peal. Thé appeal-was never filed and six

months : later Lonchar again started

pushing for his own execution,
But onsTuesday, Lonchar changed!

his -mind-again. He said he would ask

a wsTitre tied

[Attar te CA

OlaxsllFGe

ay, but OKs appeals

lawyers and Capital punishment oppo-
nents to end efforts to Stop his execu-

tion and “let me go.”

“They keep on throwing up this how
many lives we can save. That’s all ]
heard yesterday,” he said. “They say

- ‘Larry, think of the other death row in-

mates. Think of the families.’ Some-
one’s lying. I’m trying to help every-
body. I would like to die knowing I
made a difference.” _

Matteson ‘said Lonchar has signed
documents authorizing him to take the
appeals to the federal courts and he will
continue to push Lonchar’s appeal be-
cause he was confused by Lonchar’s
vacillation on whether to fight his
death.

“I don’t know what he wants so J
have to go the conservative way,” Mat-
teson said.


JEWS

icra Thursday, June 22, 1995.83

Killer restates death wish, chides

kin for letting ‘lawyers use you’

By Rhonda Cook
STAFF WRITER

Forsyth — Brought to court
in leg irons and handcuffs, con-
demned killer Larry Grant Lon-
char on Wednesday restated his
wish to die in the Georgia elec-
tric chair, and a Superior Court
judge refused to stop the exe-

cution.

But a law-
yer represent-
ing 'Lonchar’s
oldest brother,
Milan, said he
would contin-
ue fighting the
electrocution

now set for | :
Friday. His 1986
appeal and a
reaquest<for a Larry Lonchar
Stay were filed with the state Su-
preme Court on Wednesday.
After a 45-minute hearing at
the 99-year-old Monroe County
Courthouse, Flint Circuit Judge
Byron Smith said Milan Lonchar

Jr. did not have legal authority to
request a psychological evalua-
tion for the condemned man.

Lonchar is not appealing his
death sentence for a 1986 De-
Kalb County triple murder, so
his brother sought to have him
declared incompetent. Lonchar’s
sister has unsuccessfully at-
tempted a similar legal move.

Lonchar came within 32 min-
utes of electrocution in 1993, but
the execution was called off
when he said he would appeal his
sentence for murdering Wayne
Smith, 54; Steven Smith, 24; and
the older. man’s girlfriend, Mar-
garet Sweat, 45, over a $10,000
gambling debt. The appeal was
never filed, so the new execution
date was set.

On Wednesday, state Depart-
ment of Corrections officials de-
nied a request by Rick Smith,
who was shot by Lonchar’s part-
ner during the attack and sur-
vived, to witness the execution of

the man who killed his father and
brother.

(ei saastoes

93%

In court, the Lonchar broth-
ers sat within easy reach of each
other. But the two ignored each
other until the final minutes,
when attorney Mike Mears, rep-
resenting Milan Lonchar, asked
the judge if the siblings Baas
shake hands.

Milan Lonchar grasped: cn
brother’s right hand in both of
his, only to be chastised for try-
ing to stop the execution. “You
need to stop letting these lawyers
use you,” Larry Lonchar said.

Mears argued that a psycho-
logical evaluation was needed
because Lonchar had. .“‘flip-
flopped” on the issue of appeal-
ing his sentence.

“Come on, Mr. Mears. Let’s
stop this,’ Lonchar said.

The judge then spoke directly
to Lonchar.

‘It has been clear to mé that
you want to proceed with your
execution,” the judge ‘said.
“Looking you in the eye, is ‘that
what you want to do?”

“Yes, sir,” Lonchar said, 7


Saturday, June 24, 1995

The Atlanta Journal
The Atlanta Constitution

kkk

ERIK S. LESSER / Staff
Larry Lonchar, condemned to die in Georgia’s electric chair, is escorted from the Butts County court-
house Friday after Superior Court Judge Byron Smith granted a stay of execution with an hour to spare.

Lonchar stops death by challenging methoa

fyi a?

By Rhonda Cook
STAFF WRITER

so age

Jackson — A day after he publicly vowed not to
fight his execution and said he belonged in hell;
Larry Grant Lonchar stopped his voluntary walk te
the electric chair by deciding Friday to challengs
the state’s method of execution.

Superior Court Judge Byron Smith halted Lact
char’s execution about 75 minutes before the 43-
year-old convicted killer was to be put to death for re
1986 triple murder.

In a last-minute appeal filed after Lonchar
talked with death penalty opponents, Lonchar
claimed that the state’s sole method of execution yi-
olates the U.S. Constitution’s protection from cruél
and unusual punishment because it does not allow
the condemned man.to donate his organs, thereby
helping “‘society at the same time as he forfeits hig
life.”

The U.S. Supreme Court has already ruled”
other cases that electrocution is not cruel and un:
usual punishment.

Friday, the judge noted that Lonchar had an:
nounced in court just two days earlier that he was
competent ahd wanted to be executed. The judge
read aloud each claim filed in the appeal, asking
Lonchar to agree with each section. Lonchar at firs’
muttered, “I don’t believe it,” then, prompted by
lawyers at his side, answered the judge,“‘Yes, sir.”

The judge said a week remains on the death war
rant setting Lonchar’s execution, so the electrocu
tion could go forward if the judge decides to lift th:
stay.

In 1993, Lonchar stopped his execution 32 min
utes before he was scheduled to die by saying bh:
wanted to appeal his case, but that challenge wa:
never filed.

Be
A reason to delay: Larry Lonchar changes his mind
and his legal tactics in an effort to get approval for dona
tion of a condemned killer’s organs. Cc


“ware MON., JUNE 18, 1990 Che Atlanta Journal AND CONSTITUTION

___INSIDE GEORGI’S DEATH ROW
Lonchar says he’ll have ‘ast laugh’ on day of execution

By Rhonda Cook
Staff writer f-

Larry Grant Lonchar still wants to die. It is his
way of striking back, he Says, at those death penalty
f advocates who think his execution will do some
good.

“They’re doing me a favor,” Lonchar said. “All
those people will be out there laughing. They aren’t
getting the last laugh. I’m getting the last laugh. If
they really wanted to punish me, they’d keep me
alive.”

Convicted of the 1986 murder of two men and a
woman in DeKalb County, Lonchar has told the
courts he does not want to appeal his death sen-
tence, a position he maintained in a recent inter-
view on death row.

“What is there to live for? The rest of my life in
prison?” Lonchar said. “I’d rather die. I know what
the rest of my life in prison would be: suffering ev-
ery day. Nobody’s happy in prison.”

Yet his sister, Christina Lonchar Kellogg of Bat-
tle Creek, Mich., and anti-capital punishment
groups have several times won Stays for him. Ms.
Kellogg says her brother is mentally ill and that he
is seeking a state-assisted suicide by refusing to
challenge his death sentence.

Wratetadatatataly .

W.A. Bridges Jr./Staft
. Alphonso Morgan, convicted in 1976 of the murder of a Richmond Coun man, is serving life without arole.
Lonchar says he plans to refuse to see his family y g P
once his next execution date is Set. The last time, he

sae ye went through hell, arguing and hollering | ‘This is what society wants’

and crying. It was an awful rough time. Next time

they set it, I’m not going to do it. It’s too hard ai How much of a deterrent is the death penalty? Here’s what men who have faced the penalty say:
them, and it’s too hard on me.” = “I wouldn't say it would stop people from m “It’s just revenge, but this is whgt society
Lonchar spends his time on death row reading having crime because crime hasn't stopped. Of wants... and the politicians are going to go
newspapers, watching television and waiting to win course it would have stopped me if I had . With what the public wants. I can understand
the lottery. He said he has friends in Michigan, Cal- known about it. If! had known this thing [the that. But people don’t realize if they r eally want _
ifornia and Florida who play the numbers he picks death penalty] existed, I would have done revenge, don t kill us because when I die, my
each week. something else. I didn’t know nothing about a suffering S over. If they really want r evenge...
“That is my hope [to win the lottery},” Lonchar death penalty.” have life without parole. If you keep me
said. “I know if I ever won, I'd go home. They don’t : ; alive, Pm 8oing to be hurting like you are. But.
kill rich people. But if I got out, I’d die anyway be- Alphonso Morgan, convicted in 1976 of the + asan inmate, I’m opposed to life without
Cause the victim’s family would kill me. Richmond County murder of James Gray; his parole. : ;
When Lonchar murdered Charles Wayne sentence recently was commuted to life in Larry Grant Lonchar, convicted of killing two

Smith, 54; his son, Steven Wayne Smith, 24; and the Prison without parole.
older man’s girlfriend, Margaret Sweat, 45, he was
a paroled armed robber from Michigan with a .
lengthy criminal record dating back to his teens. didn’t happen the way they told it. They aren’t even

—— en He slit Ms. Sweat’s throat as she frantically tele- close to what happened.
W.A. Bridges Jr/Staft phoned for help.

men and a woman in DeKalb County in.1986,

.

a

«*
Lonchar conceded that he is responsible for
But I was there and that much of his current circumstance.

makes me just as guilty.” “T’ve been killing myself the last 25 years, and
Larry Grant Lonchar talks with an inmate. Lonchar Police said Lonchar owed the elder Smith at An attorney for Lonchar’s sister says itis likely I'm sorry for the last 25 years,” he said. “All these
Spends his time on death row reading newspapers, least $10,000 in gambling debts. a new trial would show Lonchar did not Kill those _ times | did Crime, it wasn’t for the money. I just
watching television 2nd Waiting to win a lottery. Friends “I know why those people died and they didn’t people but he would still be sentenced to prison for hurt myself more. | always wanted to get caught
In Michigan, California and Florida buy him tickets. die over a $10,000 debt,” Lonchar said. “It sure life for his involvement in the armed robbery, Why else would | commit crin

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ty officer told him. “I’m sorry, we simply
couldn’t get them stopped. They hit that
barricade like an army tank.”

“It’s a tough break,” Mahoney agreed
heavily. “But if they stick with that
Buick a while longer some patrol car is
bound to run them down.”

After crashing the blockade, however,
the big car with its murderous occupants
dropped completely from sight. Nor was
it heard from until morning when police
in Warrenton, Virginia, far to the north,
reported the machine had been abandoned
and burned. “There isn’t enough left for
the junk man,”. Mahoney was informed.
“The license number is distinguishable,
but that’s about ‘all. They must have satu-
rated the whole thing with gasoline and
touched it off.”

Found in the fire ravaged machine were
a knife, hacksaw and rifle. But the shot-
gun was missing. Evidently it had been
disposed of elsewhere.

This was a serious blow, mitigated
somewhat by the timely arrival of a tele-
gram which identified the wanted men
from their fingerprints as George Kersey
of Stillmore, Georgia and Thomas Lynch,
Clinton, South Carolina. Both had pre-
vious records for car stealing, robbery
and arson,

“Exactly what we want them for,” Sher-
iff Harris mused. “Plus murder. But where
are they now?”

“One guess is as good as another,”
Crowder opined. “I’m betting someone
will report a stolen car before very long.”

Chief Chapman and Sergeant Mahoney
disagreed. “The average criminal lacks in-
telligence and initiative,” the detective
chief explained. “Usually they follow a
set pattern and repeat themselves in both
the type of crime committed and their
efforts to escape detection.

“I think we'll find this pair close to their
home towns,” Chief Chapman declared.
“So far as they know we haven’t identified
the men who shot Crosby. That’s why they
burned the Buick in Virginia—to throw us
off the trail. I'll bet my reputation they’ve
already doubled back and are holed up in
Clinton or Stillmore.”

“If not, we'll try Spartanburg,” Ma-
honey said. “That’s the town Lynch said
he liked so well.”

The manhunt got underway quietly,
with Carolina and Georgia officers work-
ing inconspicuously as possible so as not
to alarm the fugitives. If Lynch and Ker-
sey continued to believe their connection
with the Crosby case was unknown, they
might become careless enough to emerge
from hiding.

Savannah police, meanwhile, began the
task of accumulating sufficient ‘evidence to
warrant a conviction if and when the
culprits were apprehended and brought to
trial. Mug photos of both Lynch and
Kersey were obtained and shown to Bill
Tolley. He promptly identified them as
his companions on the fatal night. Maness,
Crosby’s relief driver, also recognized the
two men and fingered Red Lynch as the
triggerman of the pair.

There was nothing to do but wait;
Clinton and Stillmore officers were in the
field and everything depended upon their
efforts. But though the search was diligent,
they failed to flush their quarry in any of
their usual haunts.

Spartanburg police were also alert. Every
patrolman on every beat was familiar
with the description of the wanted men.
And shortly before midnight the pair was
spotted and kept under surveillance until a
squad car filled with detectives had been
summoned to the scene.

Completely surrounded before they
could offer any resistance, both men sub-
mitted méckly to arresting officers. Taken
to. the police station they continued to

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deny any knowledg
prolonged questio
finally that the evi
overwhelming, Red
mitted his guilt.

“Sure, I shot 1
sullenly. “The gu
When I told him i
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guess I showed him

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didn’t do!”

Despite this subi
Officers regarded K
the gang. It was |
Savannah trip, stok
and selected Crbést
their abortive holdi

Both men, howe
onerate Stretch Hil
in their various cr
nocent,” Kersey sai
thought we were <
Charlies and decide
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degree murder aga
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CONTINUED FROM PAGE 23

“Was one a red-head?” Ogelsby asked
quickly. ,

“Yeah, one did have red hair. Tall, well
built. guy. The other was more chunky,
and he had tattooed ‘Born To Lose’ on
the back of his right hand. You know,
like the song.”

“Born to lose, huh? Do you know their
names?” ‘

“No, sir. Anyhow, Bill didn’t seem to
know what it was all about. In fact, he
went in the room and laid down while
my wife and I tried to ‘get-these other two
out of the house. They were talking sort
of wild, said they’d shot a man tonight.
I thought it was a lot of drunken bragging,
but when I helped them in the Buick
I saw a shotgun and three gallons of
whisky on the back seat. So I didn’t know
what to do. When this flash came over
the radio I phoned the police.”

“Is your brother-in-law still here?”

“Yep. He’s-in the front room on the
couch.”

“Okay, we’ll put a man out here to stand
guard just in case they do come back,”
Lucas promised, and looked for the phone.
“Right now I want to make a call.”

Advised of this startling development,
Sergeant Mahoney and County Detective
T. J. Dooley rushed to the Price Street
residence and placed Bill Tolley under
arrest. As they prepared to leave, Ma-
honey noticed two unwashed cups stacked
in the sink.

“Who drank out of those?” he asked
quickly. “The men who were here?”

“Why, yes.” The householder smiled
sheepishly. “They asked for black coffee.”

“And left their fingerprints, I hope.” He
turned to Dooley. “Put a piece of string
through the handles of those cups and
brig them along. Sometimes little things
like this solve a big murder.”

Returning to headquarters, the sergeant
turned Tolley over to a police physician.
After that he ordered a dragnet thrown
over the entire city. ;

“I suspect these fellows are still in Sa-
vannah,” Mahoney told his men. “If neces-
sary, we'll scrape this town cleaner than
a scalded pig. One way or another, they
must be found.”

Patrols were sent out immediately and
the coffee cups went to identification ex-
perts. As soon as Bill Tolley was able to
comprehend what was going on Mahoney
had ‘him hauled up for questioning.

Unfortunately, the man knew very little.
He had met his two companions in a
Savannah bar sometime during the after-
noon and the trio continued their spree
together. But Bill passed out and crawled
in the back seat of the Buick to sleep it
off. He swore he knew abselutely nothing
of the subsequent holdup attempt and fatal
shooting.

“Me, I just followed that jug of corn
liquor,” he mumbled. “I didn’t do nobody
any harm.”

“Were you with these men when they
stole the Buick?”

“Stole the Buick?” Tolley’s eyes widened.
“Why, George said it belonged to him.”

“George who?”

“Just. George, that’s all. George and
Red.”

“All right, Bill, so you were out drinking
with two men you'd never seen before.
Were they from Savannah? They must
have told you something!”

Tolley nodded vaguely. “Yeah, sure.
George was a Georgia boy. Not from
Savannah, though. And Red, he came
from Carolina.” °°:

s

-” ,
DM ak

Crosby’s relief driver was brought in,
but failed to identify Tolley as one of
the holdup men. Nor had he been able
to select the killer from photographs
placed at his disposal. After this failure
the still bleary-eyed suspect was placed
in a cell for the night.

On the following day Bill Tolley, thor-
oughly frightened, was also pathetically
eager to cooperate in every way. possible.
“You just gotta find George and Red,”
he pleaded. “They'll tell you I didn’t do
anything wrong.”

A number of suspects had been dredged
up during the night and Mahoney and
Sheriff Harris had him look them over. In
the morning lineup were red heads and
bald heads and heads of every size and
description. But the right Red was not
among them.

ao “You met these men in a bar,” Mahoney
reminded Tolley when this attempt had
i out. “Do you remember which
ar?”

Bill shook his head. “Maybe if we drive
around a bit it’ll come back to me,” he
suggested hopefully.

They drove around for several dis-
heartening hours, poking into one tap-
room after another. But Tolley’s sluggish
memory was not stimulated until he
noticed a broken neon sign hanging askew
over one cafe. “This place seems sort
of familiar,” he said then. “I’m not sure,
though.”

They went inside and Mahoney stepped
up to the bar and flashed his badge.
“Were you on duty yesterday afternoon
and evening?”

The barman looked at the badge and
frowned. “Yes, sir, I was. Anything
wrong?”

“Just a murder, that’s all.” The ser-
geant jerked a thumb in Tolley’s direction.
“We're trying to help this chap remember.
Do you recall if he came in here yester-
day afternoon or early evening with two
companions? One was a red-head.”

“Why, sure,” the barkeep smiled. “The
third guy was born to lose. Had it tattooed
on his right hand. Nothing but trouble
all his life, to hear him talk.”

“That’s the one I want!” Mahoney.
couldn’t’ keep the eagerness out of his
voice. “You don’t know their names, by
any chance? Or where they live?”

“Can’t help you out, Sarge, I’m sorry.
I did hear the red-head say that Spartan-
burg is the best damn town to live in, if
that means anything.”

“Spartanburg?” Mahoney _ frowned
thoughtfully. “Maybe it does mean some-
thing, at that; Spartanburg is in South
Carolina; and. we have reason to believe
the red-head is a Carolina boy.”

Driving back to headquarters, Sheriff
Harris said, “Spartanburg police might
be able to give us a line on this man,

Tom. They may even be heading that“

way, providing they left Savannah and
got through our roadblocks.”

From his office Harris contacted the
chief. of detectives in Spartanburg and
advised him of what had occurred. Officers
there, however, were unacquainted with a
red headed hoodlum who might have grad-
uated to murder. :

There was no way to determine what
course the fugitives would take or which
by-roads they might travel in order to
elude pursuing officers. But if they held
their course to the north the men would
pass through Laurens County; and Sheriff
C. W: Weir immediately ordered road-
blocks erected on all major highways
under his jurisdiction.

At midnight the phone in Mahoney’s
office rang shrilly. The sergeant picked
up the receiver and found Sheriff Weir
on the line.

“Your men ran through a blockade on
the Spartanburg road,” the Laurens Coun-

@ hoy

anc

This is the f
cess Plan—t
Success in y
business that
couples cred
from the limi
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It gives th:
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er was brought in,
Tolley as one of
- had he been able
from photographs

After this failure
suspect was placed

iy Bill Tolley, thor-
is also pathetically
every way possible.
George and Red,”
tell you I didn’t do

ts had been dredged
and Mahoney and
look them over. In
vere red heads and
; of every size and
right Red was not

in a bar,” Mahoney
n this attempt had
»u remember which

“Maybe if we drive
ne back to me,” he

id for several dis-
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But Tolley’s sluggish
stimulated until he
1 sign hanging askew
is place seems sort
then. “I’m not sure,

nd Mahoney stepped
flashed his badge.
yesterday afternoon

d at the badge and
I was. Anything

iat’s all.” The ser-
in Tolley’s direction.
this chap remember.
same in here yester-
ly evening with two
s a red-head.”

irkeep smiled. “The
lose. Had it tattooed
Nothing but trouble
m. talk.”

I want!” Mahoney
agerness out of his
iow their names, by
e they live?”

it, Sarge, I’m sorry.
ad say that Spartan-
a town to live in, if

Mahoney frowned
it does mean some-
anburg is in South
ve reason to believe
lina boy.”

ieadquarters, Sheriff
nburg police might
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en be heading that”

left Savannah and
{blocks.”

{arris contacted the
in Spartanburg and
ad occurred. Officers
unacquainted with a
vho might have grad-

to determine what
vould take or which
travel in order to
s. But if they held
orth the men would
County; and Sheriff
ately ordered road-
ill major highways

hone in Mahoney’s
The sergeant picked
found Sheriff Weir

ough a blockade on
" the Laurens Coun-

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deny any knowledge of the crime. Under
prolonged questioning, and convinced
finally that the evidence against him was
overwhelming, Red Lynch broke and ad-
mitted his guilt.

“Sure, I shot that trucker,” he said
sullenly. “The guy was too smart, see.
When I told him it was a stickup he just
turned and started to walk away. But I
guess I showed him it wasn’t a bluff!”

Asked about the missing shotgun, Lynch
said this had been thrown into a creek
near Charlestown. He described the exact
locale and the weapon was later recovered.

Returned to Savannah, Kersey was
greeted by newspapermen who were curi-
ous about the unusual tattoo which
adorned his right hand. Smiling wryly,
the 27-year-old Georgia boy said, “I reckon
I’m just bound to lose, that’s all. Look at
me now—going to trial for a shooting I
didn’t do!”

Despite this subtle plea for sympathy,
officers regarded Kersey as the brains of
the gang. It was he who suggested their
Savannah trip, stole and drove the Buick
and selected Crésby’s produce truck for
their abortive holdup attempt.

Both men, however, were quick to ex-
onerate Stretch Hillyer of any complicity
in their various crimes. “The guy is in-
nocent,” Kersey said contemptuously. “He
thought we were a couple of good time
Charlies and decided to tag along. After
he passed out we put him on-the back
seat and then went looking for someone
to heist.”

On April 20, twelve days after the shoot-
ing, Ernest Crosby succumbed to his
wounds. Solicitor General Andrew J.
Ryan, Jr. immediately filed charges of first
degree murder against the unhappy pair
while at the same time exonerating Bill

Tolley and permitting him to go free. But
Lynch, as if suddenly realizing the seri-
ousness of his predicament, now begged
for a chance to clear himself and tell the
true story of what had occurred.

“It was all Kersey’s fault,” he insisted
volubly, after being brought into Ma-
honey’s office. “You can’t send a man to
the chair for something he didn’t know
anything about.”

Mahoney studied the boastful statement
previously made by this same man. “Didn’t
you shoot Crosby because he walked away

. when you tried to hold him up?”

Lynch was sweating profusely now, run-
ning nervous fingers through his thinning
red hair. “You gotta believe me, Sarge,”
he mumbled. “George was driving that
car because I couldn’t even see straight.
I don’t remember him: stopping the truck,
but all of a sudden he shoved the shotgun
at me and said I should get out. and tell
the guy to hand over his money. So I
did—and-when he turned around to walk
away the gun went off. Why, I didn’t
even know I’d shot anybody until George
helped me back in the car and said ‘Red,
you just killed a man!”

Mahoney was unimpressed, but he had
Kersey brought in and showed him the
statement made by his partner in crime.
Bound to Lose George was cautious. “Red
knew what he was doing,” he said finally.
“But I do believe the shooting was acci-
dental. Right after he shot I heard him
say, ‘Durn if it didn’t slip for me that,
time.’ ”

“It doesn’t really matter,” the sergeant
told him. “Your job will be to convince
a jury, not me. But you can amend your
statement if you like.” .

On May 10, 1950, Thomas Lynch went
on trial for his life in Chatam County

Superior Court, Judge Mel Price presiding.
Justice moved swiftly on this occasion.
Called into session at 10 A.M., a jury had
been selected and all testimony taken by
1:30 P.M.

Lynch did not deny his part in the crime,
but blamed the shooting on the fact that
he was drunk and his trigger finger slipped.
Ryan, however, emphasized the fact that
drunkenness is no excuse; if it were, any-
one could plan a crime, take two drinks
and then get away with it on a plea of
intoxication.

The jury filed out and returned one
hour and forty minutes later. Their verdict
was guilty as charged, with no recommend-
ation for mercy.

George “Born to Lose” Kersey stood
before the bar of justice on the following
day. He admitted driving the death car
but insisted that he was innocent so far
as the actual shooting was concerned.
Prosecutor Ryan scotched this fast.

“When two persons conspire to com-
mit a crime, in: this case robbery,” he
pointed out, “they are equally responsible
for any other crime which may result
from the conspiracy.”

Biting his lips nervously, Kersey waited
for the verdict. But if he had been shaken
by the speed with which his companion
was convicted, he was even more appalled
when the jury required only twenty min-
utes of deliberation to declare him equally
guilty.

With the verdicts in, Judge Price, for
the first time in four years, simultaneously
sentenced two defendants to the electric
chair.

The name Bill Tolley is fictitious. It is
employed in this story to protect an inno-
cent person.—EDITOR.

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Tih Mi Me oF AS

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262 Ga.
in the stomach right here . As ro
sce those shots there that went in my es
and there is shots right down there in a
stomach. * * * When they winner
was on the rock wall right ete
was the load that hit me; ard I oe
my gun out of the automobile, anc mee
screen door slammed, and James pe mae
in the house after that started. W ‘se
shot, I dropped my little girl there sir
erabbed my shot gun and shot some .
them before they got in the house; anc
when I shot, the little girl ran to tne iar
porch, and I ran up there to get her, ae
1 don’t know, it was scary times arounc
there, and I shot in the house. A don’t
know whether I stuck the gun in there
or was standing off or not. I was =
scared I snatched out the screen, and
said, ‘Mrs. Riley, don’t you shoot me any
more; I didn’t come here to have a
trouble; I came here to talk to idee :
and get some kind of an agreement a rn
the children;’ and I ran back out to si
porch, and I didn’t have time to get id
little gir * * * I don’t know w hel a
{ knocked the window out, I was so scare
| don’t know exactly what I done, and Mrs.
Riley was saying, ‘Blow him in two, James,
‘ust like that; so I was standing out there,

and just as I started, when they was fac-
ing me, just like that, I started to stoop
just like that to get my little girl, and ; ame
told them not to shoot any more as

33 SOUTH EASTERN REPORTER, 2d SERIES

to call her by her given name; best -
the night that the defendant hen -

have caught the defendant’s wife anc .
witness together, the witness had teste
the defendant’s car into the yard, ~
started home in his own automobile, anc
discovered that he was about to have a
flat tire; that he returned to the defend-
ant’s home for the purpose of forces oF
a tire pump, and after he got into the —
and while the defendant's wife was on a
porch, the defendant came out and wat,
“Damn vou, you came to see my wife;”
that the ‘defendant cut him, and the witness
hit the defendant and caught his arm, that
there was never anything improper between
the. defendant’s wife and the witness, but
that the defendant did accuse him of being
intimate with the defendant’s wife.

J. C. Knox, of Monroe, for plaintiff in

error.

D. M. Pollock, Sol. Gen., of Monroe, T.
Grady Head, Atty. Gen., and Paul H. Field,
of Atlanta, for defendant in error.

Syllabus Opinion by the Court

WYATT, Justice.

[1] ° 4.°-Phe verdict of the jury was
amply authorized by the evidence.

[2] 2. The first three grounds of the
nded motion for a new trial, being
numbered four, five, and six, complain of

usa © iz juc ge exc lude
lid *t want to have any trouble, and that the efuse lo the t jal J 1 to
didn é € € € f

shot came out of the window and hit me

indicati I seen the :
seht here (indicating), and net areata erage
i fire, and I shot where the permitting the witness for the

reckon that) objection of defendant's counsel, to testily

blaze from the
blaze of the fire was, and |

is the load that hit the boy or when
fell; and when he fell the last words he
said was, ‘I told you all you ought not to

shoot like this;’ those were his last words

testimony. In each of these grounds this

statement occurs: “The court erred in

as follows.” It does not appear im sae
amended motion or elsewhere in the recor’
what objections were offered to the ae
mony contained in these grounds of the

i i This “ng true nothin
1 Mrs Riley and them began to holloing, amended motion, his being true, g
and t Ss. i $ ty

and I said, ‘I
any more;

is cision. See
ain't going to shoot up there is presented to this court for decision
; “12 sen. 187. Ce
‘ou brought it on yourselves; Clifton v. State, 187 Ga.

502(3), 2 S.E.2d

a € : nan V ¢ EE 1 ad. os 63
| lidn t want to e any ou en 02 No m N Millan Ga 36.
C h Ave 1 t ye whe I ]

9s

came down here, and
: ?
to my automobile.

The defendant then related details as : Contest of Geoce ee a

i ing 1 a: ile, his drivin
his getting into the automobil

to Walnut Grove, and his being taken to a
hospital, and stated that he learned of the [3] 3.

*° * * Thobbled (4), 107 S.E. 325; Hardy v. Hardy, 149

7 7 5. - Edenfield v-
Ga. 371(3), 100 S.E. 101; Ec enfield _v.
Brinson, 149 Ga. 377(4), 100 S.E. 373;

143 Ga. 733, 735(2), 85 S.E. 920.

Grounds numbered seven and

ey afte € e i r WwW
i : > entere cig » amended motion for a ne
death of James Riley after he entered th ight of the an

hospital.

Curtis Bowen, a witness for the State,
testified that he had never had any mutenate
relations with the defendant's wife; that Prot,
knew the defendant’s wife well enough James

he

trial complain because the trial court did
not declare a mistrial, without any motion
therefor by counsel for the plaintift ‘
error, because the “father of the deceased,

Riley, who was. sitting with the

LAMAR

Cite as 33 S.E.2d 263

solicitor-general, suddenly stood up in the
courtroom, looking toward defendant's
counsel in a menacing manner, with one
hand in his pocket as if to draw a weapon.”
After this occurrence, the trial judge or-
dered the sheriff to evict the father from
the courtroom and instructed the jury to
disregard the occurrence. Under these
circumstances, no error appears from what
occurred. Sce Hendrix v. State, 173 Ga.
+19, 420, 160 S.E. 614, and cit.

[4] 4. Ground numbered nine of the
amended motion for a new trial complains
of the following excerpt from the charge
of the court: “One cannot create an
emergency which renders it necessary for
another to defend himself and then take
advantage of such effort of such other
person to.do so;” the contention being that
there was no evidence to authorize the
charge on this subject, and that the
charge had the effect of intimating to the
the jury that the defendant had created
an emergency, which he took advantage of
in shooting the deceased. The statement
of facts following this syllabus opinion
shows very clearly that there is no merit
in this contention. See, in this connection,
Daniel v. State, 187 Ga. 411(1), 1 S.E.
2d 6.

Judgment affirmed.

All the Justices concur.

w
© § KEY NUMBER SYSTEM
T

LAMAR v. STATE,
No. 15049.

Supreme Court of Georgia.
Jan. 6, 1945,

Rehearing Denied Feb. 17, 1945.

Stipulations Cl4(tl)

Where Solicitor General declined ac-
cused’s offer to plead guilty to murder on
condition that accused receive recommen-

thereupon accused agreed to stipulation of
facts including every clement necessary
to prove crime charged, expressly stating
desire to go to jury on question of punish-
ment only, and made confession of guilt,
only question accused was entitled to have

\ following
dation of mercy and a life sentence, and ‘

v. STATE Ga. 963
submitted to jury was that of punishment,
including proper definition of crime
charged. Code, § 26-1005.

Syllabus by the Court.

Where the solicitor-general declines the
offer of one indicted for murder to plead
guilty on condition that the accused shall
receive a recommendation of mercy and a
life sentence, and thereupon the defendant
agrees to a stipulation of facts, including
every element necessary to prove the crime
as charged, expressly stating his desire to
go to the jury on the question of punish-
ment only, and makes a confession contain-
ing a plenary admission of guilt, the only
question he is entitled to have submitted to
the jury is the one of punishment, includ-
ing a proper definition of the crime

charged.

_———_>—_—

Error from Superior Court, Bibb Coun-
ty; Chester A. Byars, Judge.

Nathaniel Lamar was convicted of mur-
der without a recommendation, and he
brings error.

Affirmed.

Nathaniel Lamar and David Watkins
were indicted for murder. The defend-
ant Lamar was convicted, without a rec-
ommendation; and he was sentenced to
death by clectrocution. He moved for
a new trial upon the general grounds, and
by amendment added two special grounds,
as follows: “One. * * * The court,
notwithstanding the plea of not guilty to
the indictment, erroncously failed — to

charge the jury that they would have the
right to acquit the defendant. Two. The
court erred in charging the jury as. fol-
lows: ‘Now, gentlemen of the jury, there
has been admitted in evidence a statement,
a statement as made and agreed to by the
State’s attorney and the defendant's at-
torneys, which is admitted to be the true
facts of the case, and which you will
consider as evidence in this case.” The
trial court overruled the motion for a new
trial; the exception is to this judgment.

When the case was called for trial, the
happened: — Solicitor-General:

‘May it please the court, the defendant has
proposed to the solicitor-general that he
would enter a plea of guilty, provided the
solicitor-general would recommend — that
the defendant be recommended for mercy;
this the solicitor declined. The defendant
therefore stands mute on arraignment, but

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264 Ga.
upon trial will make his full and plenary
confession, and ask the jury to recommend
him to the mercy of the court. There-
fore, the court instructed the solicitor-gen-
eral to enter the plea of not guilty.” After
the solicitor-general had made an opening
statement to the jury, the following oc-
curred:

Defendant’s attorney: “At this point the
defendant offers to make a statement in
which he will make a full and plenary
confession of the guilt of the crime
charged, as alleged in the indictment, and
further of the material charges made by
the solicitor-general in the statement of
what the State expects to prove. In so
doing, we obviated the necessity for fur-
ther introduction of evidence by the State
to prove these allegations. Upon so do-
ing, further, we object to the introduction
by the State of such evidence.”

_ Solicitor-General: “The position of
State’s counsel, as I started to say about it
in the statement, is that the question of
punishment in murder cases is entirely
one for the jury. It is not the business of
State’s counsel to assume the responsibili-
ty of fixing that punishment. In fact, I
don’t think it lies in his power to do it;
he would in any event only be permitted
to make a recommendation to the jury
about it. In this case, in all of its aspects,
State’s counsel doesn’t feel it incumbent
on him to make any recommendation to this
jury at all in the defendant’s favor, but
puts it squarely up to the jury trying the
case as to the question of what punishment
should be meted out. For this reason we
construe what my friend’s answer is,
standing mute; it is a question of guilt
or innocence. Certainly this jury is en-
titled to know the gross aspects of this
case and weigh it themselves, and for such
reason as seems to them to be adequate to
determine what the punishment should be.
We don’t know of any other way to handle
it, sir, except to make out our case before
this jury.”

The Court: “You don’t agree to Iet the
defendant make a statement to the jury
and admit all that has been said by the
State and shift the responsibility to the
jury as fixing the punishment ?”

Solicitor-General: “Well, now, what
has been said by me to this jury has not
been reported.”

The Court: “He says he will admit that.”

33 SOUTH EASTERN REPORTER, 2d SERIES

Solicitor-General: “I think the only fair
thing for the jury is, let them hear the
evidence.”

The Court: “All right.”

Defendant’s attorney: “I understand
your Honor ruled on that? I didn’t know.”

The Court: “The defendant objects to
it, that they be permitted to introduce the
evidence.”

Defendant’s attorney: “Now, may I
make this statement: May it be understood
by the court and by the solicitor-general
that this objection goes to each witness and
to all of the testimony, so there will be
no necessity for my bothering the court
and the solicitor by repeating that objec-
tion.”

The embalmer who handled the body
of the deceased was then introduced by
the State, and he simply testified as to
the nature and extent or ule Wounds wn.cn
caused death. The court then recessed
for lunch, and upon reconvening the fol-
lowing occurred: Solicitor-General: “We
have reached a stipulation, if your Honor
please, which we have completed for your
honor, and our understanding is that our
stipulation, along with the evidence of Mr.
Stewart which has been introduced will
not require any further introduction of any
evidence for the State. We have done this
to shorten the trial and get the issue to
the jury. That would constitute the evi-
dence, except your honor will observe that
the State may introduce some evidence in
rebuttal to the defendant’s statement, evi-
dence to establish admissions which would
not conflict with this agreement and which
would contradict his statement. In other
words, it must be material to this case.”
Thereupon the following stipulation was
submitted to the court:

“The following is a statement of the
facts of the case as made by the solicitor-
general as an opening statement: Mrs. J.
J. Connell was an elderly lady about sixty-
seven or sixty-eight years of age, and she
was an aunt of Mr. Jesse Bush. Mr. Bush
was operating a place of business known as
the Green Lawn Grill, which is located on
the north side of the Columbus road and
on the corner where the new Columbus
road comes into the old Columbus road.
Mrs. Connell was the housekeeper and she
lived in the residence occupied by herself
and Mr. Jesse Bush and Mrs. Jesse Bush.
This residence was located about three-

LAMAR v. STATE Ga. 265
Cite as 33 S.F.2d 263 :

quarters of a block from the place of busi-
ness known as the Green Lawn Grill, which
was a restaurant. Both the residence and
the place of business are outside the City
of Macon, but they are both in Bibb Coun-
ty and all that territory around them is in
Bibb County. Mr. and Mrs. Bush opened
up this place of business in June, 1939, and
they have been operating it continuously
since then. Mrs. Connell did little or no
work about the matter of conducting the
place of business; she stayed at home and
Inooked after the affairs around the house.

“The defendant, Nathaniel Lamar,
started working [with] Mr. and Mrs. Bush
about December, 1639, and he has been
working for them ever since, up to the
night of Thursday, December 2, 1943, the
night of the homicide. At one time dur-
ing that period he served some time in the
army of the United States for a period of
about six or seven months. The codefend-
ant, David Watkins, started to work for
Mr. and Mrs. Bush at a much later period.
Nathaniel Lamar, at the time of the homi-
cide, December 2 or 3, 1943, the cate de-
pending upon whether or not the komicide
took place before or after midnight, had
worked himself up to the position of cook
in the Green Lawn Grill. David Watkins
was a waiter in this grill. On or about
December 21, 1942, David Watkins sepa-
rated himself from his employment at the
Green Lawn Grill and he kas not been
employed there since. However, Mr. and
Mrs. Bush both knew that David Watkins
and Nathaniel Lamar were still associating
with each other.

“On the night of December 2, 1943,
Nathaniel Lamar was not on duty at the
Green Lawn Grill. He received orders to
report for induction into the United
States army on Monday or Tuesday of the
next week, and he was given a leave of
absence from his duties at the Green Lawn
Grill for the whole day of Thursday. It
was the custom of Mrs. Connell to keep
all of the lights burning at the residence
until Mr. and Mrs. Bush closed up the
place of business and came home. Early
in the evening of December 2, 1943, and
until about eleven o’clock of that evening,
Mr. Jesse Bush was in touch with Mrs.
Connell, at the residence, and he saw noth-
ing to indicate that anything was other
than usual. However, he decided to send
a maid by the name of Esther Redding
over there and have her deliver some pro-
visions for the family and some feed for

33 S.E.2d—1714

the dogs and chickens, and he told her to
wait until Mr. and Mrs. Bush had closed
the place of business. She went over there
about ten or fifteen minutes after twelve
o’clock, and she found, when she got there,
that the side door, on the new Columbus
road side was not locked, and she opened
that door and she was met in the face with
fumes from a fire, and she saw that the
lights were still burning in the house and
she did not see Mrs. Connell. She im-
mediately returned to the place of business
and reported what she had found, and
Mr. Bush went up there immediately and
found that it was difficult to enter the
house because of the smoke; however, he
did go into the house, and he did find out
that the smoke was coming from a fire
in the bedroom of Mrs. Connell. With
the assistance of the maid and of Mrs.
Bush, he got water and put this fire out.
The fire was burning the bed of Mrs. Con-
nell in her bedroom. After this fire had
been put out, Mr. Bush discovered that he
could not breathe very well in the at-
mosphere, although the smoke had been
cleared out. Further investigation, by Mr.
Bush, and by the officers who were called
in later, revealed that the gas heater in
Mrs. Connell’s room in the house and an-
other gas heater in the front bedroom had
been turned on, that is to say, that the
valves were open and the gas was escaping,
but this was Butane gas, and it is heavier
than air and this Butane gas had made a
layer of gas on the floor, but fortunately
it had been discovered before this layer of
gas built itself up to the point where the
fire was burning on the bed; otherwise
there would have been an explosion and the
entire house would have been consumed
very quickly.

“Nathaniel Lamar knew that Mr. Bush
had an arrangement with Mrs. Connell
whereby Mrs. Connell kept certain amounts
of money for the operation of the business,
because, from time to time, it has been nec-
essary for Mr. or Mrs. Bush to send Na-
thaniel Lamar up to the house to get
change for the operation of the business.
Sometimes a customer would present a
large bill, like a $100 bill or maybe a $20
bill, and somebody had to be sent up to
the house to get change. Sometimes and
especially late at night, it might be nec-
essary to send up to the house to even get
change for a $5 bill. Nathaniel Lamar
had been sent up there many times for this

purpose.

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°66 Ga. 33 SOUTH EASTERN REPORTER, 2a SERIES

“Some time about Thanksgiving in 1943,
Mrs. Connell had made a fruit cake. She
had promised some of this fruit cake to
Nathaniel Lamar, and she had some of the
fruit cake left at the time she was killed.
Nathaniel Lamar and David Watkins were
good friends and close associates while
they both worked at the place of business
of Mr. and Mrs. Bush. After Watkins had
been dismissed or separated himself from
this place of business, about December,
1942, they still remained good friends, and
Lamar went out with Watkins at various
times, and Watkins called up frequently at
the place of business and made engage-
ments for him and Lamar to go off to-
gether after Lamar had finished his work
at the Green Lawn Grill. Neither of them
had any legitimate business at the Green
Lawn Grill on the night of December 2,
1943, or at any time during that night. Of-
ficers of the sheriff’s office of Bibb County
received a report of the homicide about
12:30 on the night of December 2, 1943,
and they went out to the place of business
of Mr. and Mrs. Bush, and they saw the
body of Mrs. Connell in her bedroom, and
they got certain information out here
from Mr. and Mrs. Bush and from
the negro maid, Esther Redding. They
then made a search for the whereabouts of
Nathaniel Lamar and David Watkins.
They found them at the storehouse and
dance hall operated by a negro man named
Strickland, the place being known as
‘Strick’s Place.’ They were there with a
girl named Emma Lattimore, who is a Sis-
ter of Nathaniel Lamar. There was a
taxicab in front of the place and they
found that the negro girl, Emma Latti-
more, had in her purse $840 in money and
a 38-caliber pistol; they found in the taxi-
cab $170 in money and $51 behind the seat
in the taxicab. They found $5 (one $5
bill) on the ground by the side of the taxi-
cab; all of this, with the $840 found in
the purse of Emma Lattimore, constituted
the gross sum of $1066. They took the
girl, Emma Lattimore, and Nathaniel La-
mar and David Watkins into custody and
carried them to the City Hall in Macon.
The negro girl could not account for the
presence of this pistol in her purse or for
the presence of this large sum of money
in her purse, except that she said, and will
now testify, that David Watkins, while she
was sitting next to him in the taxicab,
slipped something into her purse and said,
‘Please keep it, it will be safe;’ she will
testify that she thought it was a small

bottle of liquor or something to that effect.
Officers from the sheriff's, office later
searched the home of Nathaniel Lamar in
Unionville, which is a negro settlement
just outside of the City of Macon, and
found a tin box containing $855 in money.
He had $17 on his person,

“Officer J. C. Smith, of the Bureau of
Investigation of the Macon police depart-
ment, found a fingerprint on the frame of
the door leading from the hall into the
dining room in the home where Mr. and
Mrs. Bush lived with Mrs. Connell. This
fingerprint was made in blood. Officer
Smith also found a fingerprint on a gas
heater inthe bedroom of Mr. and Mrs.
Bush, made in blood, and that is identified
as the fingerprint of Nathaniel Lamar.
The metal pipe, which was part of the fan
stand and which was recovered by officers
from the sheriff’s office, was found stained
with what has been definitely determined
by Mr. Smith as human blood. Stains
were found on the coat and trousers and
shirt and handkerchief found on the per-
son of Nathaniel Lamar, and these were
subjected to chemical examination by Mr.
Smith and they were found to have been
caused by human blood. Stains were found
on the coat, trousers, and shoes of David
Watkins, and they were found to have
been caused by human blood. Red stains
were found on the 38-caliber pistol found
in the purse of Emma Lattimore, and
these were subjected to chemical examina-
tion by Mr. Smith, and they were found to
have been made by human blood. There
was human hair on the piece of metal pipe,
and there was human hair and blood on the
circular base of the fan stand, and there
was hair of the same texture on it. The
embalmer found that Mrs. Connell had
been beaten and cut with blunt and sharp
instruments, and his testimony is in the
record and no further reference need be
made here.

“After Nathaniel Lamar and David Wat-
kins had been arrested, they freely and
frankly told the officers about their partici-
pation in this matter. Nathaniel Lamar
said that they had been planning this thing
for about thirty days and that on Thurs-
day, December 2, he telephoned the aunt
of David Watkins, whois a woman named
Mary Frye, who is a cook and maid work-
ing for Mr. Ben Goldman on Hill Crest
Avenuc in Macon, and told her to tell
David to be sure to get in touch with him
that night; he said that David Watkins

LAMAR vy. STATE Ga. y
Cite as 33 S.K.2d 263 267

did get in touch with him, and that they
went out together, and that he told David
Watkins that Mrs, Connell had promised
him some fruit cake, and that he would go
up to the house and ask her to give him
the fruit cake which she had promised him,
and that she would admit him to the house,
and that what David Watkins needed to do
was to stand on the outside and keep watch
and whistle to him if anybody approached ;
he said that he went to the house, and he
told Mrs. Connell that he had come for his
fruit cake, and that she went with him to
the kitchen and she got out the fruit cake
and was slicing it; and that he, Nathaniel
Lamar, picked up the fan stand and struck
her over the head with it, and that the base
of it fell off and that he continued to
strike her three or four more times; that
he found the keys that Mrs. Connell usual-
ly carried on her person on the dining-
room table, and that he went in and un-
locked the drawer of the desk and opened
the drawer and got out the money; in the
meantime, he said that David Watkins
came in, and he hit the old lady too, and
then they both dragged her from the
kitchen into her bedroom, and then David
Watkins, at his suggestion, lighted a paper
and set fire to the bed, and then he turned
on the gas in both rooms with the idea of
destroying the building and with the idea
of destroying the evidence; that he and
David Watkins then left the building, Wat-
kins carrying the money, and they went
to the home of Lamar and they divided
the money, as best they could, and then
they went down to Alemita’s place and
struck up with Emma Lattimore, and pet-
suaded her to go with them to the Cotton
Club on Broadway; he said that they
stayed at the Cotton Club a while and
bought some beer, and then they went in
a taxicab to Fat Jack’s place in East Ma-
con and they bought some sandwiches and
beer at Fat Jack’s place, and went to
Strick’s place in Unionville, where they
were arrested. David Watkins told the
officers about the same thing, except that
he said that he did not help Nathaniel La-
mar drag the body of Mrs. Connell from
the kitchen to the bedroom; he said that
Nathaniel Lamar did that by himself. Tle
said that it was not his idea to burn up the
place, but he admitted that he lighted the
paper and put it under the bed at the sug-
gestion of Lamar.

“Georgia, Bibb County; In the Superior
Court of said County. In this case, coun-

sel for the prisoner agree that the above
and foregoing facts stated by the solicitor-
general in the opening statement of the
case, after a jury had been selected, is a
statement of the facts of the case which
can be substantiated by witnesses for the
State.

“We ask for the privilege of allowing the
defendant to make a statement about the
matter, which will be a full and plenary
confession of his guilt, with the privilege
extended to the solicitor-general to rebut
this statement in any particular where it
conflicts with the above and foregoing
statement or with reference to any other
conflicting material question of fact, it be-
ing the desire of the counscl to submit this
case to the jury purely on the question of
punishment.

“This agreement is made, both by counse!
for the defendant and the solicitor-general,
for the purpose of submitting this case to
the jury on the question of punishment.
This January 17, 1944. (Signed by the
defendant’s counsel and the solicitor-gen-
eral.)

“Georgia, Bibb County; In the Superior
Court of said county.

“The foregoing stipulation and agrec-
ment made by counsel for the defendant,
and by the solicitor-general representing
the State, in the case of The State vs. Na-
thaniel Lamar, Indictment No. 4170, Bibb
Superior Court, December Term, 1943, is
hereby approved by the court. Let the
same be read in evidence as part of the
evidence in said case, which, with the
statement of the defendant and other oral
evidence introduced, will constitute the
brief of evidence in said case, this stipula-
tion to be considered as part of the evi-
dence and the facts referred to in the
statement of facts upon which the stipula-
tion is based to also be considered as part
of the evidence.

“In open court, this 17th day of Janu-
ary, 1944.” (Signed by the presiding
judge.)

The defendant then made his statement
to the jury, in which he made a full and
complete confession of guilt. The State
thereafter offered testimony in rebuttal of
some minor details of fact contained in the
defendant’s statement. The court thereup-
on charged the jury, and the verdict above
indicated was returned.

S. G. Jones, of Macon, for plaintiff in
error.

we © ones sere vemene

maya yarswri &


adn Lethe Dine /O/5-

RD, Will, hanged at Talbotton, Gae, March 2, 1900.

“Special Dispatch to The Journal.) Talbotton, Gae, March 2, = Will Leonard, the
double murderer, who was convicted at the last term of the. TalbotSuperior Court,

for the murder of his wife and mother-in-law, was executed here today at 11 o'clock,
The gallows was MMMMXMMXAKAWEXKKEKEXK erected about 300 yards from the jaile When
Leonard was brought out of the jail cell, where he had been confined since his arrest,
fully 3,000 negroes had gathered, Leonard 4## addressed the negroes in a cool, calm
voice, Among other things he said: 'I have but a short time to live but am fully pre-
pared to die, I feel like my sins are all forgiven and am going to heaven. I have
forgiven my enemies and made my peace with God. I have no unkind feeling toward
anyonee' He advised his people not to do as he had done. He then told the sheriff he
was ready to go. Surrounded by the officers and guards he was marched to the gallows,
At the gallows prayers were offered by two colored ministers and at 11:01 the cap was
adjusted and at 11:02 the sheriff pulled the lever and the hanging was complete, His
neck was broken by the fall, but his struggling did not cease for 22 minutes, At
11:2) he was pronounced dead by the attending physician and his body was cut down and
delievered to his relatives for burial," JOURNAL, Atlanta, Georgia, Mar, 2, 1900 (1:5).

"(Special Dispatch to The Journal.) Falbotton, Ga.,y Feb. 12. =- Judge W. B. Butt convened a
speical term of Talbot superior court here last week ans sentenced Will Leonard to be
hanged on March 2d, next. Will Leonard, on the night of the 2lth of December, murdered his
wife and her mother at this place, using an axe as the weapon, Some time before the crime
was committed, on account of his cruel treatment, his wife left him and went to live with
her mother, Leonard then moved out to centerville, 6 miles from Talbotton, On the evening
before he killed the women just before dark he went to the house of a negro and knocked
the negro in the head with an axe and robbed him of a dollar and forty cents; he then went
on his way to the house of Frances Dean and arrived there about 9 o'clock, Francs!
house was a two-room cabin and Nora, his wife, was sleeping in one room and Frances and
her children in the other, Both rooms had outside doors and a G&NHREXXWXAGAKXMaKHSS
connecting door between. Leonard burst open the door entering Nora's room with an axes
this aroused the inmates of the house and Nora fled to her mother's room, Frances was
sleeping on a bed near the door and as she rose from her bed Leonard struck her with the
axe, splitting her head open from the crown to the mouth. In the meantime Nora had es-
caped from the house and flew toward a neighbor's house when he overtook her and cut her
down about 100 yards fromthe house. He struk her on the head and then cut her across the
face several times, After murdering the two women he fled from the county. The citizens
here, both white and black, felt outraged, as Frances Dean was an old time negro woman,
EKIKEXANAXMAAXKMAARRXAMARMA working and had the friendship of the community.
Nora was an industrious young woman and well thought of, Sheriff Richards and Deputy
Sheriff Murphy made every effort to catch Leonard from the first, as there was no doubt of
his guilt. His hat was found in the house and near the body of Nora was found a 4MiK
shirt with a cuff button ZK in it which was identified as the property of Will Leonard,
but with all of Sheriff Richards' @@™@ zeal, it seemed impossible to catch him, and all
trace of him was last until last August a negro boy from this county went to west Point
to work and met Leonard who was driving for one of the factories, That night this negro
boy left West Point and walked to Talbotton and told Sheriff Richards he had seen Will
Leonard, Seputy Murphy was immediately sent after him, but in the meantime Leonard had
escaped to Alabama, A few days after this he was arrested in Opelika, Ala., and Deputy
Murphy went again for him and there in the jail at Opelika he confessed his crime to Depu-
ty Murphy. Leonard was tried at the last September term of Talbot superior court with
Solicitor S. Pe Gilbert and J, J. Bull representing the state, while the defende was
represented by H, Je Lawrence, Persons McGehee and A. Je Perryman, In the statement
Leonard only said, 'Gentlemen, have mercy on me,' and none of the facts named in his con-
fession were denied and previous threats to take the life of his wife were proven. The
jury promptly returned a verdict of guilty. An appeal was taken to the supreme court and
there the judgment @ of the lower court was affirmed," JOURNAL, Atlanta, Georgia, Miia

February 12, 1900 (5/3 = woodcut likeness of Leonard.)

ad

“


LEE, Walter, black, hanged Savannah, GA August 3, 1923

NEGRO IN SAVANNAH
“». HANGED FOR ASSAULT

-* Savannah, Ga., Ausust 3.— Walter
- colored, was hanged here this
morning following his conviction of
the crime of assault upon a Savannah
. woman. The crime wss committed on

‘ June 18. Lee was given & quick
 ttial and convicted. here was no

appeal.

ja hortly after Dee's arrest & mob
. attempted to break open Chatham jail
and take the prisone:. This was un-
| guceessful. Lee, who was about 19
> years old, said he wat innocent. The
. victim, however, positively identified
ithe man.

CONSTITUTION, Atlanta, GA August 4, 1923
v

p4,ci.


LEE, Banged Atlanta, Georgia, October 30, 1903 = CONTINUED.

murdered girl.

"The first trial was to determine Lee's sanity, and lasted for two days. On the morning
of June 18th, the jury, after being out for 12 hours, entered with a verdict which de-
clared Millard Lee to have been of sound mind at the time of the murder. During the pro-
gress of this trial, and all the subsequent trials of the young murderer, the sight of
his aged father, whose invalid condition made it impossible for him to stand for even an
instant creatied much sympathy, Immediately after the first insanity trial the murder
case was called and after two days Lee was found guilty of murder in the first degree and
was sentenced to die on July 21st, the day on which W. B. Wells was hanged for the murder
of Franklin Pierce, a blind man. The case was carried to the supreme dourt which
affirmed the decision of the lower court, and then the attorneys for the murderer de=-
manded a trial on the charge that Lee was insane at that time and had become so since the
time he was convicted on the murder charge. Governor Terrell granted a respite and

Lee was tried for snsanity. Twelve men declared him to be of sane mind, At this

trial Solicitor Hill filed a demurrer which stated that one of the physicians who testi-
fied that Lee was insane had sworn to the same thing on the former trial. On this ground
the demurrer was sustained and the case carried to the sapreme court again. The judg-
ment of Judge Roan was reversed in this instance and a new trial ordered. At this insanity
trial Lee was again declared to be ferfectly sane. Again the case was appealed to the
supreme court, and the decision which that higher tribunal handed down yesterday sealed the
doom of the young murderer and sent him to the gal lows this morning to pay with his life
tor the awful crime he had committed, Sim times since his committment of the murder he hd
been respi ed by Governor Terrell, awaiting new trials and action on the part of the
supreme court. Every court, however, declared him to be sane and to have committed the
murder. For this crime he was executed on the gallows this morning in the Tower, Dyrihg
his incarceration in the Tower, Lee professed Christianity and spent much of his time
reading his Bible and praying. His haggard mnshaven face, his downcast eyes and

furrowed forehead lead many to believe that the young man was not of sound mind, but at
could never be proven to the satisfaction of a jury of 12 good men and true. According
to the jailors, Millard Lee made an ideal prisoner, never once giving the slightest
trouble. Only once did he show anger or dissatisfaction during his incarceration.

That was when, only a short time ag@ he made an attack on Joe Jordan, a well known young
attorney, who passed his cell door, Lee scratched him a few times, but no damage was
done.X

JOURNAL, Atlanta, Georgia, October 30, 1903 (1:6, 7 & 8). Photographs of both Lee and
Miss Suttles on page onée

Convicted and sentenced to hang: JOURNAL, June 25, 1902 (1:7.)
Trial, headline: "Witnessess all swear to Lee's low mind," JOURNAL, 6-24-1902 (3:1)
"MILLARD LEE'S TRIAL FOR MURDER BEGINS," JOURNAL, 6=23-1902 (1:1.)

"GIRL MURDERED IN CHURCH BY INSANELY JEALOUS MAN," JOURNAL, Atlanta, 5-26-1902 (1/1-3.)


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404 Ga.

37 SOUTH EASTERN REPORTER, 2d SERIES

construction and use of such building as a county in which bill of exceptions was sued

wholesale grocery warchouse, since the re-
sult would be the same, regardless of the
validity or invalidity of such a permit.

Judgment affirmed on the main bill of
exceptions,

All the Justices concur, except WYATT,
J., dissenting; JENKINS, P. J., concur-
ting specially, for the reasons stated in
division 4 of the opinion in Rushing v.
Thigpen, supra.

Cross bill dismissed.

All the Justices concur.

© & KEY NUMBER SYSTEM

aunmse

SOUTH SIDE ATLANTA BANK.v.
ANDERSON et al.
No. 15385.

Supreme Court of Georgia.
Feb. 20, 1946.

1. Exceptions, bill of €=58(1)

out, as was her attorney, in order to give
Supreme Court jurisdiction, it was neces-
sary that such party or her counsel be per-
sonally served with a copy of bill of excep-
tions or that service be waived or acknowl-
edged, no facts existing which would au-
thorize perfection of service otherwise.

Code, § 6-911, subds. 1, 2.

5. Exceptions, bill of C=58(4)

Where only evidence as to service of
bill of exceptions upon an indispensable
party to error proceeding was affidavit of
counsel for plaintiff in error reciting that
affiant left an unnamed document at office
of counsel of record for defendant in error,
service was insufficient, and writ of error
was dismissed. Code, § 6-911, subds. 1, 2.

nd

Error from Superior Court, Fulton Coun-
ty; Edgar E. Pomeroy, Judge.

Action by Evelyn Anderson against her
husband for divorce and permanent alimony
wherein a receiver was appointed for funds
in the South Side Atlanta Bank due to de-
fendant husband. To review an order di-
recting bank to transfer such funds to cred-

Service of a copy of bill of exceptions it of receiver, bank brings error.

upon opposite party or his attorney must be
personal except where opposite party is the
State or where opposite party does not re-
side in county in which bill of exceptions is
sued out and attorney for opposite party is
absent from county of his residence, in
which case service may be perfected by

leaving a copy of bill of exceptions at resi-
Code, § 6-911,

dence of such attorney.
subds. 1, 2,

2. Exceptions, bill of €=58(1)

Service of bill of exceptions or due and
legal waiver or acknowledgment of service
is essential to give Supreme Court jurisdic-
tion of writ of error. Code, § 6-911, subds.

1, 2.
3. Divorce C180

In error proceedings by bank to review
an order in a divorce case directing bank to
transfer funds deposited to credit of defend-
ant husband to a receiver, plaintiff wife, be-
ing interested in sustaining the judgment in
question, was properly made a party de-

fendant in the bill of exceptions.

4. Exceptions, bill of C=53(1)

Writ of error dismissed.

Drennan & Brannon, of Atlanta, for
plaintiff in error.

Thos. J. Lewis, of Atlanta, for defend-
ants in error. ‘

Syllabus Opinion by the Court.

DUCKWORTH, Justice.

1. “Within 10 days after the bill of ex-
ceptions shall be signed and certified, the
party plaintiff therein shall serve a copy
thereof upon the opposite party or his at-
torney, and if there shall be several parties
with different attorneys, upon cach, with a
return of such service (or acknowledgment
of service) indorsed upon or annexed to
such bill of exceptions; and they alone
are partics defendant in the appellate
court who arc thus served. In cases where
such party is the state, or where such op-
posite party docs not reside in the county
where such bill of exceptions is sued out,
and such bill of exceptions cannot be served
personally upon the attorney of such op-
posite party by reason of his absence from

Where indispensable party defendant the county of his residence, service may be
in bill of, exceptions was a resident of perfected by leaving a copy of such bill

LEWIS v. STATE
Cite as 37 S.B.2d 405 Ga. 405

of exceptions at the residence of such at-
torney.” Code, § 6-911, subds. 1, 2.

[1] 2. Except in the two instances
mentioned in the preceding headnote, the
service of a copy of ghe bill of exceptions
must be personal. Anderson v. Albany &
Northern Railway Co., 123 Ga. 318, 51 S.E.
342; Lyons v. Winter, 129 Ga. 416 (1), 59
S.E. 270; Morgan v. Greenberg, 48 Ga.
App. 498(1), 173 S.E. 236,

[2] 3. “Service of the bill of excep-
tions, or due and legal waiver or acknowl-
edgment of service, is essential to give this
court jurisdiction of the cause.” Izlar v.
Central of Georgia R. Co., 162 Ga. 558, 134
S.E. 315; Warnock v. Woodard, 183 Ga.
367, 188 S.E, 336.

[3-5] 4. In an action for divorce and
permanent alimony a receiver was appoint-
ed by the court for funds in a bank due to
the defendant and the bank restrained from
paying out such funds until the further or-
der of the court. Thereafter, upon petition
by the receiver and a hearing, the court or-
dered the bank to transfer such funds to
the credit of the receiver. In a bill of ex-
ceptions brought to this court the bank as-
signs error upon such order, naming as par-
ties defendant the plaintiff wife, the re-
ceiver, and the husband, a nonresident not
represented by counsel, a supersedeas being
granted by the court until the case shall
have been passed upon by this court. The
only evidence as to service upon the resi-
dent defendants is an affidavit attached to
the bill of exceptions in which counsel for
the bank deposes that “he has this day
(within ten days after the date of the sign-
ing of the bill of exceptions] served a copy
of the bill of exceptions attached hereto,
personally, upon W. O. Slate, the receiver,
and left at office of Thomas J. Lewis,
counsel of record for the plaintiff, Mrs.
Evelyn Anderson (the two resident defend-
ants in error), the same being served on
November 7th, 1945." Held: The plain-
aff wife, being interested in sustaining the
judgment in question, was properly made a
party defendant in the bill of exceptions,
but it was also necessary, to give this
court jurisdiction, that she or her counsel
be personally served with a copy of such
bill of exceptions or that service be waived
or acknowledged, no facts existing which
would authorize perfection of service other-
wise. The only evidence as to service
being the aforementioned affidavit of coun-
sel for the plaintiff in error, showing that

service was attempted upon an indispensable
party in this court, the plaintiff wife, by
leaving at the office of her counsel some
unnamed document or paper, even if such
recital be construed to mean that a copy of
the bill of exceptions was left at the office
of such counsel, this would not, under the
above-stated principles of Jaw, constitute
legal service, and, accordingly, the writ of
error must, on motion, be dismissed.
Writ of error dismissed.

All the Justices concur,

w
© E Key NUMBER SYSTEM
Tt

LEWIS v. STATE.
No. 15400.

Supreme Court of Georgia.
Feb. 21, 1946,

1. Criminal law €=778(11)
: Evidence in rape prosecution author-
ized instruction on flight.

2. Criminal law €=759(5), 778(1 1)

Instruction charging that jury could
draw an inference of guilt from proof of
flight if they determined that flight was
proven and was due to a sense of guilt, but
that they could not draw an inference ad-
verse to defendant if flight was for other
reasons, was not erroncous as argumenta-
tive, misleading, confusing or as an ex-
pression of an opinion of court.

Syllabus by the Court.

The instruction to the jury on the sub-
ject of flight was authorized by the evi-
dence, and stated a correct principle of
law.

ca anv

Error from Superior Court, Fulton Coun-
ty; Bond Almand, Judge. ;

Leon Lewis was convicted of rape, and he
brings error,

Affirmed.

Leon Lewis was tried and convicted on
an indictment charging him with rape. He
filed a motion for new trial on the usual
general grounds, and later filed an amend-
ment to his motion, containing one special

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State postpones
Lonchar exect 100 —
for mental test ;

By David Goldberg
Staff Writer

The Department of Correc-
tions agreed Thursday to post-
pone the execution of convicted
murderer Larry Lonchar, who
was to have to gone to the electric
chair at 2 p.m. today, until after a
hearing on his mental competen-
cy early next week. '

The state attorney general’s
office requested the delay in or-
der to allow time for a doctor to
finish his psychiatric evaluation
of Lonchar, who was condemned
to die for a 1986 triple murder in
DeKalb County, according to
Mary Beth Westmoreland, the as-
sistant attorney general handling
the case.

Butts County Superior Court Tele,
Judge William H. Craig isexpect- — tite
ed to reconvene a hearing Tues- gan Wednesday in Jackson, ‘but
day to decide whether Lonchar, the judge declared a recess while,
who says he wants to no further the state has its own psychiatrist
appeals and is ready to die, is evaluate Lonchar, who was previ-
mentally competent to make that. ously examined by a doctor hired
decision. by attorneys working on his be-

Attorneys for Lonchar’s rela- half. The examination began
tives and anti-death penalty Thursday, but the doctor was un-
groups contend Lonchar is se- able to come to firm conclusions
verely disturbed and should not and requested more time, Ms.
be allowed to waive his appeal Westmoreland said.
rights.

The competency hearing be- Please see LONCHAR, ES >

_ Larry Lonchar
Another hearing set Tuesday


—

Larry Lonchar
Petitinn says he’s suicidal.

Clemency petition says condemned man
was abused in ‘horrifying’ childhood

By Bill Montgomery
Staff writer

Coridemned murderer Larry
Lonchar was a witness to and vic-
tim of parental brutality during
his childhood, and is seeking a
state-assisted suicide, according
to his attorneys and relatives,
who on Monday asked the state
Board of Pardons and Paroles to
commute Lonchar’s death
sentence.

The board met for 50 minutes
in a closed-door session with anti-
death-penalty lawyers and rela-
tives of Lonchar, who says he
wants a speedy execution for a
1986 triple murder in DeKalb

| !

County. The five-member panel
has commuted only two of 19
death sentences since Georgia
passed its current capital punish-
ment law in 1973.

But action by the board, which
alone has clemency power under
Georgia law, may be rendered
moot by a mental competency
proceeding in Butts County Supe-
rior Court expected to resume to-
day. Judge William Craig post-
poned the hearing begun last
week to allow Lonchar, 38, to be
examined by state-appointed psy-
chiatrists. A defense psychiatrist
says Lonchar has a 25-year-histo-

Plaase see LONCHAR, D2 >

Cra sriferearl, [Fc Ar) 14, 79 |

SO CD oe 23)

5-27-79


Dawe wy ns ee ws . _

—_

Lonchar: Clemency petition presented

> Continued from D1 F a prisoner was taken from Lonchar Jr., all of Battle Creek,
eath row at the Georgia Diagnos- Mich. . |
ry of mente) illness. tic and Classification Center neat ;

“Larry Lonchar wa raised bY Jacks Monda edica In an sneh-thick clemency P&
abusive and nopelessly alcoholic College of pes ¢ Augusta for tition, filled with affidavits Te |
grents, 1 ho e presence and at day 0 further tests, $2 Cor counting g-drinking parents,
hose ha h experience a rections D part - pok cman of frequen instanc s of th father | |

; a

most norrifying infancy and .ado- Andy Bowen. “we want to make peating his W}
lescence, said the clemency Pe sure that he nad the best possible

tition ‘

The B ttle Crees; Mich., 1@- evaluates can be vem Mr. rently in the depths of a profoun
tive was convicted 4 d sentenced Neither Michae Mears who depress} , and has become sul
to ries W ie Sth Lane of represents Lonchar sister cidal.

<teven W emit oa aie Christina nar Kellogé; nor “Before allow? se Larry Lon
id ’ if 7 e parole bo qd chairman Wayne char to fore s all to h ip him to
older man’s £1" riend, Margare’ Sn would discuss the meeting commit sulct , th poard must
weat, 49: DeKalb County Those attending reportedly 10 evaluate his mo tions and de
condominiunt Poe said Lon cluded Mrs. Kellogg, th con: liberat whether to encourage
char owed the elder Smith at demned inmate’s father, Milan V. Larry's omie-destruction: «> Mr.

Tanct $10,000 in gambling debts. Lonchar Sr


I

Lonchar:

> Continued from E1

Plans for execution continue

The department has until er man’s
March 30 to execute Lonchar be- Sweat, 45, at a DeKalb

from a judge, Mr. Bowen said.

Smith, 54; his 24-year-old son

th
Steven Wayne Smith; and the old- _, Smith.,

_ 92? flo
PETER aR Fre : 3/2 3 / ve

girlfriend, Margaret


PUT ION

it s no

AUT
tays Lonchar execution

i Court — would ial
day §

The Gq
Tuesd ed*the exécution |
uf Larry Ig neha, “convicted of |.’
killing thréipeople ‘in DeKalb
County in”T986, so-his sister

could appeal the case to the U.S.
Supreme Court.
Lonchar has:refused to ap-
peal his death sentence, but his
sister, Christina Lonchar Kel-
Alc meses of Battle Creek, Mich., and
ante -capital punishment groups
nN have fought to keep him alive,

Oeane that he is not compe-

Qe to d he wants to die.
Ms. Kel Gis as asked the U.S.

Q our ci ourt'to hear her ap-
Nae to

Nc brother alive.
A Deal County Superior
a Court judge’ Tast week issued a
( death ft setting Lon-

char’s ecttion for between
N duly i9 and 17.

%, 4%
i> er a“

aqonntr


Tuesday, December 5, 1995

.

ASSOCIATED PRESS

WASHINGTON — Hearing the
case of a Georgia death-row inmate
who wants to donate his organs
after execution, the Supreme Court
considered yesterday whether
some last-minute appeals can be
dismissed as an abuse of the pro-

cess.

The appeal in federal court by
Larry Grant Lonchar, a convicted
triple-killer, should be heard, his

lawyer said, even though the in-

mate resisted earlier appeals by
relatives on his behalf and filed his
appeal only when his execution was
imminent.

athe’ =~

THE SAN DIEGO UNION-TRIBUNE Vor, vege CA
High court asked to decide if last-minute appeals are frivolous

Mary Beth Westmoreland, assis-
tant Georgia attorney general, said
the justices can dismiss such an
appeal even though it is Lonchar’s
first trip to federal court. “He’s had
his chance,” Westmoreland said.

Lonchar doesn’t really want to
have his conviction and death sen-
tence overturned, Westmoreland

said. She said he seeks a delay in
hopes a state law will be enacted
allowing execution by injection in-
stead of electrocution so his organs
could be donated. :

Lonchar’s lawyer, Donald B.
Verrilli Jr., said the motive should
be irrelevant if an inmate raises
legitimate grounds for appeal.

“What if the motive really is to
make a laughing stock out of the
federal courts?” asked Chief Justice
William H. Rehnquist.

The Constitution gives state in-
mates the right to seek federal
court help if they claim state prose-
cutions in some way violated their
federally protected rights. Howev-
er, the court ruled in 1991 that

repeated federal appeals generally
must be dismissed as an abuse of
the system.

Lonchar’s case asks whether an
inmate’s first federal appeal can be
dismissed as abusive. The Supreme
Court delayed Lonchar’s execution
until it issues a decision, expected
by July. :

Justice Antonin Scalia asked Ver-
rilli whether an inmate’s appeal
should be heard even if he waits to
file “until the last minute, one min-
ute before his execution?”

Yes}said Verrilli, who noted that
federal law sets no time limit on
filing federal appeals of state court
convictions. Further, he said the
appeals by Lonchar's relatives

should not lessen Lonchar’s o\
right to appeal.

Westmoreland asserted Lo
char’s appeal was not a true fir
federal appeal because of the pre\
ous efforts by his relatives and b
cause of his motive in seeking
delay in execution.

But Justice Stephen G. Brey.
said Westmoreland was in effe
asking the justices to create a ne
ground for dismissal.

Lonchar was convicted of killi:
three people over a $10,000 ga:
bling debt.

He told police to shoot him wh:
he was arrested in 1986 and :
fused to help his lawyer in his ov
defense.

Should we give in to Lonchar and send

-pheumonia and anything else you -
could think of, and she took pills

him.” That is the derision of

“«Yeah. His conta didn’t love.

. murdering three people over a.

choice from the burn-’em crowd
whenever the question of a mur-
derer’s mental health comes up.
You can all but hear the scoff-
ing now, as his attorney argues
that Larry Lonchar isn’t mentally
competent to waive appeals that
would postpone and just might
vacate his death sentence for

é. gambling debt. A Butts County Su-

perior Court has found Lonchar
competent to go for the Big Burn.

; The Georgia Supreme Courti is re-

: viewing.

“ype

Lonchar’s legal competence i is
sharply at issue, but there is no
dispute over the facts of his life,
and they are a horror story. One
of Lonchar’s brothers, Paul, has

© filed an affidavit,:Take a deep

- breath.

Paul -Lonchar: “My mother

was sick a lot with nerves and

- ing us and going after us .

all the time.” She had four dress-
er drawers full of pill bottles and
took the pills with vodka.

“Us five Lonchar children
slept in the basement. It was hard
and cold and dark down there .

I know [Larry] was like me in his
not wanting to be upstairs. There
was only so many situations you’d
find upstairs: my mother drunk,
passed out and my father gone..
my father coming home drunk
and finding my mother drunk and
beating her up; or my father see-
. The
way it went when my father got a-
hold of you and the drink had got
a-hold -of him, he’d grab you by
the shoulder or a bunch of hair..
He’d have already rolled his belt
around his: other hand with the
buckle hanging out.”

“A real. big fight between

{mother and father] usually got at

ee

TA LLL ELA LOLS

exaaaa SUN., APRIL 1, 1990

The Atlanta Journal AND CONSTITUTION

least me and Larry out of the
basement to make sure my father
didn’t kill my mother. I'd say may-
be once a week we'd have to
check on them.”

One.time “my mother was in a
bathrobe. He must have picked
her up out of bed. Her feet was
bare. My father was holding her
by the shoulders real hard. Her:

face was already messed up. He

had on these great big huge work
boots and he was stomping on her
feet with the heels.of his work
boots... My father had to hold my
mother up by the shoulders to

keep stompi
wouldn’t ho g be co ore.”

““When *I\ was ‘abo
old and Larty was a
were down inthe basement leep-
ing... We woke up to this eb mmo-
tioa in Caris’ 3 bed. Tiers was my
mother, buck naked, having sex
with the next ne bp bor Ray.
She was screami hollering
so much that she didnt even hear
Larry-saying her-nayhe .., Larry
just shrunk dpwn.y er e€ COv-
ers. So did I. That hap da few
more times. I don’ ety why she
had to do it in the basement with
us there. It was like = was trying
to punish us.”

Their mother was in- and out
of mental hospi/als. Paul remem-
bers, “Larry w t with me once or

twice. Some visits she didn’t know |

us. Other/visifs she knew:who we
were but sh¢ couldn’t talk nor:
mal. Sh d sHake and scream fo,

her et’

boat 12 fears |
, we

him to ithe chaie?.

Larry hardly said a word,. just
watched. My mother was always
strapped to a bed shaking.”

“My parents got divorced
when I was maybe 15 and Larry
was maybe 13. Even though they
were terrible together and they
hated each other and they made
each other hate us, Larry could
not understand why they had to
get divorced. He wanted for us all
to be a family and for them to stay
together. [But by then my mother
had] got so paranoid she was al-
ways thinking someone was trying
td kill her... She was already tell-
ing [Larry] she knew he was going

die, the police were going to

ill him or someone at school or
omething.” .

No one has killed Larry yet,

but he is trying to get Georgia — to

get you and me — to do it.

Motherlove. Fatherlove. 0: -

Mr. Teepen is editor of The
Constitution’s editorial pages.

2 33: The Atlanta Journal WEEKEND The Atlanta Constitution

SATURDAY, JUNE 27, 1987,,..,

‘Victims’ kin, jury hear pleas for convicted murderer’s life

By Fran Hesser
Staff Writer

The father of convicted triple-
murderer Larry Lonchar pleaded
for his son’s life Friday, painting a
picture of a troubled youth, dis-
traught over the breakup of his par-
ents’ marriage and his mother’s
drinking problems.

The testimony in DeKalb County
Superior Court was too much for
the families of Lonchar’s victims —
Charles Wayne Smith, his younger

Son, Steven and his girlfriend, Mar-
-Baret Sweat — as they watched de-

fense attorney Cal Leipold try to
spare Lonchar the death penalty
during the sentencing portion of the
trial.

“I would love to have my son
live,” Lonchar’s father, Milan Lon-
char, of Michigan, told the seven-
woman, five-man jury.

“T'd like to see my father and
brother too,” muttered Charles
“Rick” Smith, whose life was saved
during the triple murders when he
played dead after he also was shot
on Oct. 13, 1986.

“I can't bear to hear that man

beg for life,” sobbed Miss Sweat’s
daughter, Wanda Sweat, after Lei-
pold asked the jury not to sentence
his client to death.

One of the more electrifying
moments of the trial had come
when Miss Sweat’s pleas for mercy
were played on a tape recording
made as she called police for help.
Her voice could be heard in the
background begging “Please, please
Larry,” as prosecutors said Lonchar
stabbed her in the throat 17 times
and three times in the chest.

“Miss Sweat didn’t have any-

body to beg for her life. She begged
him,” Assistant District Attorney
Jim Richter told the jurors in urg-
ing the death penalty for Lonchar.
“Can you imagine the utter horror
in the last minutes of that woman’s
life as she stared into Larry’s eyes
... and he stabbed her?”

He recalled the slayings of the
Smiths, who he said were killed as
they lay ‘“hog-tied, defenseless,
pieces of meat on the floor,” killed
in a “cold-blooded ruthless execu-
tion that violates every kind of rule
that we hold in our society.

“The world is not going to miss
Larry Lonchar,” Richter concluded.
“This world would be better off
without him here.”

“Don’t take this man’s life,” Lei-

pold countered, asking the jury to
“put him in the prison system for
the rest of his life, but don’t take
his life.

“If we kill Larry Lonchar the
horror continues.”

The jury took less than two
hours Thursday night to find the de-
fendant guilty. Lonchar, 35, was
convicted of three counts of murder

and one count of aggravated
assault.

Mitchell Willard Wells. also
charged with murder in the case.
will be tried next week. court offi-
cials said.

Gambling paraphernalia found
in the Smiths’ apartment indicated
someone named “Larry” had run up
$10,290 in gambling debts betting on
college and professional football
games. Notes in Lonchar’s apart-
ment apparently also indicated he
owed someone $10,300, said Assis-
tant District Attorney John Petrey
in closing arguments.


LUBY, Christopher C., hanged Blakeley, Ga., 2-18-1898,

"Mr. Black is making 911 necessary preparations for the execution
of ©, C. Luby, which takes place tomorrow (Friday) in the event the
Governor does not interfere. The gallows is being erected just in
the rear of the jail, where they hanging will take place privately."
BLAKLEY OBSERVER, Blakley, GA, Feb. 17, 1898.

"CHRIS LUBY HANGED, THE WIFE-MURDERER PAYS THE PENALTY FOR HIS
CRIME. - Christopher C, Luby, sentenced at the April term, 1897,
of Early Superior 6ourt to be hung for the murder of his wife, was
executed on last Firday in the presence of about 25 people. Luby's
attorneys made a strong effory to save his neck, but the Supreme
court and the pardoning board both saw fit to confirm the verdict
of the jury. lbuby was a man of superb physique and wonderful
nerve, and he maintained a calm and stubbolm demeanor until the
last. Rev. J. W. Arnold, the Methodist pastor, and Mr. W. T. Mauna,
a friend of Luby's, remained in the cell with him nearly all the
morning. Luby discussed freely the situation with them and at one
time remarked to the minister that 'If I am not ready to go I am in a
bad row for stumps.' He appeared to be in a jolly mood at times and
cracked several jokes during the morning. At half past 10 o'clock
Sheriff Black sent for a barber and had Luby's hair and beard
trimmed, and after donning his new suit of ®K clothes, he presented a
remarkably fine KKK appearance, At five minutes to twelve o'clock
Luby drank a lemonade and was then marched to the scaffold which
had been erected in an EEK enclosure just in the rear of the jail
yard, He mounted the scaffold with the Sheriff without a tremor,
and on being asked if he wished to say anything, made the folowing
brief statement: 'There are some things I could say, but there is
no need of it. All I can say is that I am ready to go and want you
all to get ready to go too, I want you 911 to promise me you will
get ready to go, How many are there here who will promise me to try to
prepare to go, and stick to the promise? (Several in the crowd
made him the promise.) The reason I ask fhis is because I would be
glad to leave you all in that mind, I am not guilty of killing my
wife. Now, brother Arnold, I dill ask you to come up and pray with
me.' The pastor ascended the scaffold and offered up a brief and
heartfelt prayer for the doomed man. The Sheriff then adjusted the
rope around his neck, tied his hands and feet and placed the black
cap over his head, He then shook hands with Luby and descended
from the scaffold and took hold the the rope which threw the trap,
and said 'Good-bye Chris,' and Luby replied 'Good-bye Eddie,! and at
nine minutes past twelve o'clock the drop fell. Luby's neck was not BS
broken and he died of strangulation. At twenty minutes past twelve
3% the doctors pronounced him dead and at twenty-seven minutes past
twelve the lifeless body was cut down and placed in a coffin and
taken to the Pauper Farm for interment, having no friends or rela-
tives present who wished to take charge of his body."
TH= PEOPLES VOICE, Blakely, Georgia, February 2), 1898 (1:1.)

is sought in
‘Berrien killing

Maw’ s live-in girl friend —
“was shot to death 1 in 88.

The Associated Press

" NASHVILLE, Ga. _ piece :
-, tors Tuesday argued for the death
penalty: for William Earl Lynd,
‘who was convicted of murder in.
the 1988 shooting death of his
_ live-in girlfriend. > -
A Berrien County jury delib-

F ‘erated three hours and 20° min-
~ utes before returning a guilty ver- _
- dict Monday in the Dec.. 23, 1988,

death of Virginia ‘“Ginger’’ Moore,
26. Lynd, 35, of Nashville, also —

was convicted of nenDie with

intent to harm.
' Testimony began Buesday in
the trial’s sentencing phase. —
During the trial, Lynd’s broth- —

ex, Greg: Lynd, testified: — while

the jury was excused — that his
brother had told him he killed Ms.
- Moore in self-defense. |

But. Superior Court Judge
W.D. “Jack” Knight agreed with
- the prosecution’s objection. that
~ the brother’s testimony was. hear- A

Oo and inadmissible.

William Earl: Lynd also has.
her charged with murder in
_ Ohio. He is accused in the death
of Detroit schoolteacher Leslie J.
Sea 42, who was shot on an.
Ohio interstate highway two date
after Ms. Moore was killed.

_ Lynd,.a former Ohio resident,

“t was identified as being in the
: area when Ms. Starkey was shot. —

- Ballisties tests show the .32- ealic
nee pistol used in Ms. Moore’s —

: shooting was the same weapo .
4 see in Ms. Starkey’ S Saye | ol

ia did not Woe

was able to see that she.had been concealed from my view by Ja sort of
natural arbor formed by some wild grape vines. As she made this remark,
she rmushéd out into, the road chosely followed by Brummage.. They both
rushed toward me, and retreating I pulled out my pistol and warned them ..

back, and at the same time hegan backing, closely pressed by her. I then,

on the impulse of the moment and in self=protettiog raised my pistol and
fired the only two balls in it at the man, By this time the woman had
caught hold of me and I knocked her to her knees, As she fell she twined .
her arms around my knees and shrew me down, They both then struck me, he
using the limb of a tree. The limb soon broke and taking my pistol from’.
me, he snapped it at my head several times, Finding it useless, he dropped
-fit and went to hunt another cudgel. I did not think till then that TI saw
him commence to reel and stagger around in a circle and at Last ‘fall. «My

. wife then said 'You have killed him,' I started on a run to the house,
- when she called me back and brought my pistol to me, following me home
Arriving at home I discovered we were both covered with’ blood, ‘Changing our
clothes as soon as possiblel took the bloody garmentsoff to the woods -and
hid them, packed my valise and started to leave. When my wife’ saw my in- —
tention, she begged and pleaded that I should not leave and said we | j
could cover up the traces and she would never say anythihg about it. I de=
cided to remain, went back to the house, and from there to where I hid the
clothes, and got them and buried’ them. Returning to the house,l found my
wife gone again. - I saw herm going toward the place of encounter,! Ic
immediately started after her, but she had arrived at the spot before I
overtook her and she had gone through his pbckets. She on ly had a'ikn ife in
her hands, and thisrI took from her and threw as far into the swamp as © -
“possible, and pulled the now dead body of the man about six feet into the
bushes, we went batk to the house then. The next morn ing (Sunday) my wife
proposed: to go to town, and I allowed K&a#ERXRUYXRAAMEX FRRX SHAK AX KMXABE RAKE
SHK AAS SK XX BABE A KAKA KXA KY WAR XABUAKS ASME XH XA XXAA XABM XKKKAXWBKRXKXAXNKXX ~

her to g6, giving her money to defray expenses, though I am almost confident
sheihad got some off theodead body, She promised me she would keep silent
on the matter,, but. when she got there she in’ formed on me and I am now soon
to pay the penalty of my crime,'
"He added.in a melancholy: way. that he did not intend £6 kill the man and that
he did mt more through fright and self-defense, He said the ministers ‘
visibed him and were very kind to him and he was alwéys gladto see them,

but he went to the ord for comfort in direct prayer. When asked if he >
did notconsider the penalty too severe he sadly replied: 'Thag’is not for me
to say if I have been legally tried and con demned. I must suffer the penalty
as.best. Ircan.’,:In reply. to Geadbyes and God be with you,' he echoed a
hearty ‘Amen,'!" . 9 S “he
CONSTITUTION, Atlanta, phengi ss July 12, 188) (5:5) - Sent by Michael Rade
let.

Eien moO ¥ (
g

See 60 SE 578
LYLES, Harry Tai hanged at Waycross, Georgia, on June 23, 1908,

"Waycross, Ga., June 23, Harry E, Lyles paid the penalty for the murder of his wife and
child at 12:50 o clock this afternoon, The condemned man was interviewed this morning
and asked for a last statement. He said he had nothing further to say than that he had
already told on the stand in 2 trials, that the death of his wife and baby was an acci-
dent. He said he had been wronged by some people, who, by their evidence, convicted him
of a crime of which he wasnot guilty, but that he bore no malice, Lyles was extremely
nervous this morning, He said that he was unsually nervous in the morning and that his
condition was not due to the approach of death, Prayer was held with him this morning
by Rev, We He Suggs, pastor of the First Baptist Church, who a short time ago received
him into church fellowship, The gallows on which Lyles met_death was erected in May
when the execution was to have taken place, The drop was 74 feet. The execution was
witnessed by Drs. Js Le Walker, F, C. Folks and M, M, Johnson, The knot was tied by
Sheriff Woodard and the drop pulled by him, Deputy Sheriff F, M, Young cut the body
down and it was turned over to the undertaker's to be prepared for burial, The funeral

will take place at Lott cemetery tomorrow at 9:30 o'clock, The expenses of the funeral

will be borne by populak subscription, Iyles was 27 years of age in March, He was a
native of Cleveland, Ohio, He lost his parents when he was very young and came south
at the age of 15 years. On January 26, 1907, he shotand killed his wife and baby, He
was tried for life twice, the first trial resulting in a mistrial and the second in

_ conviction," JOURNAL, Atlanta, GA 6-23-1908 (3+).

"Waycross, June 26 = Judge J. L. Sweat, former counsel of Harry Lyles who was hanged
Tuesday for the murder of his wife and child, returned last night, He issued a statement
today in reference to the case, He reviews the case and says the defense's theory of
accidental killing is borne out by the condemned man's antemortem statement, He char-

ses that those respons&ble for Lyles' execution are guilty of judicial murder, He

tases the charge upon the ,fact that Lyles satisfied Rev. W. H. Scruggs, pastor of the
First Baptist Church, that his conversion was genuine and if it were, he would not have
gone into eternity with a lie on kis lips." JOURNAL, Atlanta, 6-26-1908 (1-2.)

‘(Special Dispatch to The Journal) Waycross, Ga.,‘May 18, 1907-Harry B, Lyle was

yesterday convicted of murdering his wife, Hula Lyle, and his h-months-old baby. He was
sentenced to be hanged Friday, June 21st, between the hours of 10 a.m, and 2 p.m, This
is the first death sentence that has been passed in the court house of Ware Countyfor

17 years. Asked if he had anything to say, Lyle replied: 'Nothing, only that I'm not
euilty.' The case was given to the jury at one minute to three o'clock yesterday
afternoon, It was a few minutes before five when the jury’ filed in their places.

The Lyle jury stood on the first ballot, eight for convictionand four for a recommendation
to mercy. The second ballot resultdd in a unamimous verdict of guilty without
recommendation, The defesse has made a motion for a new trial which will be argued
June 15th, In making their motion for a new trial attorneys for Lyle stated that al-
though Lyle has been convicted, he ‘is not’ guilty; that from the first there has been

a determined effort to railroad him to the gallows regardless of Aaw and the truth of
the case and that having a supreme court of appeals and superior courts in this

state, Colonel Osborne succeeded in establishing acourt of error here this week as a
result of which by keeping from the jury all that part of the evidence ofthe state's
witnesses favorable to Lyle and the persistent misrepresentation and misstatement

of the facts made by him in his concluding argument with the appeal made for a verdict
without recommendation, he succeeded in obtaining the verdict which was rendered, but
which will be set aside and as public sentiment is ‘rapidly changing in favor of Lyle,

in the end of justice will prevail and he will be acquitted," JOURNAL, Atlanta, GA

May 18, 1907 (1)/3&h.)

"Waycross, Gaey April 25, 1907-All the evidence in the case of Henry lyles, charged
with the murder of his wife and baby, was in by o'clock yesterday, Afrguments of
attorneys aommenced immediately. Hon, John W, Bennett, solichtor for this circuit,

opened for the state, followed by J. L. Sweat and John _T. Myers for phe defendant

Mr. Myerd commebnced his argument this morning. The closing argument state
is now being made by We W. lambdin, who has assisted Solicitor Bennett in the prosecution.

8, SE 966
KITCHENS, Robert, Black, 16, hanged Sandersville, Gae, June 2, 1916.

"Robert Kitchens, a negro whose death sentence for murder was taken to the United
States Supreme Court by his lawyer, John R. Cooper, of Macon, on the ground that he
was denied a fair trial in that no negro was a member of the jury that convicted
him, and whose appeal on this ground was overruled, has now brought to the state Bix
HBHX prison commission, through Attorney Cooper, an application for commutation

of sentence to life imprisonment.

"Henry Brantley, a white man, was killed in Washington county early in 191). Three
negroes, including Robert Kitchens, were tried for his murder. Robert Kitchens was
found guilty and sentenced to be hanged, His brother Ed Kitchens was found guilty
also and has already been hanged. His cousin, William Kitchens, was convicted and
given a life sentence, which he is serving.

"In his application for commutation of sentence, Attorney Cooper lays stress on

the negro's youth, claiming he was only about fourteen years old at the time of the
killing of Brantley, and declares the worst the negro can be guilty of is mans-
laughter, claiming that the negro's brother fired the fatal shot."' JOURNAL, A&xXaKxA

OBAKEIAZ Atlanta, GA, 3-1-1916 (12/3.) ©


8), SE 966
KITCHENS, Robert, Black, 16, hanged Sandersville, Gae, June 2, 1916.

"Robert Kitchens, a negro whose death sentence for murder was taken to the United
States Supreme Court by his lawyer, John R. Cooper, of Macon, on the ground that he
was denied a fair trial in that no negro was a member of the jury that convicted
him, and whose appeal on this ground was overruled, has now brought to the state peAX
RBH prison commission, through Attorney Cooper, an application for commutation

of sentence to life imprisonment,

"Henry Brantley, a white man, was killed in Washington county early in 191). Three
negroes, including Robert Kitchens, were tried for his murder, Robert Kitchens was
found guilty and sentenced to be hanged, His brother Ed Kitchens was found guilty
also and has already been hanged. His cousin, William Kitchens, was convicted and
given a life sentence, which he is serving.

"In his application for commutation of sentence, Attorney Cooper lays stress on

the negro's youth, claiming he was only about fourteen years old at the time of the
killing of Brantley, and declares the worst the negro can be guilty of is mans-
laughter, claiming that the negro's brother fired the fatal shot," JOURNAL, K#XAKKX
GBSHELAX Atlanta, GA, 3-1-1916 (12/3.)


KITCHINS, Robert, black, hanged Sandersville, Washington Co., GA, June 2, 1916.
Transcription of 3x5 card:

“(Special Dispatch to The Journal)-Sandersville, Ga., June 2, 1916.-Robert Kitchens, a
negro, was hanged in the jail yard here at 10:15. Death was pronounced in 11 minutes. His neck
was broken by the fall. Kitchins walked up the stairs to the scaffold calm and composed and
unassisted. He made a statement just before the trap was sprung, stating he was sorry he and his
brother killed Overseer Brantley three years ago and blamed his downfall on his own relatives
who led him to believe it would be right to kill Brantley who had reprimanded a cousin of his.
Kitchens’ brother was hanged two years ago for the same crime.”-Atlanta Journal, Atlanta, GA,
6/2/1916 (22/1).

He 2s as Oe he ae ahs fe hs ee ie He of eae Ae ale fe he as fe aft oR oe ahs ie os as he fs oe os he fe os oe Oke ek is he eg 2 obs is hehe fe fe a ae fe he hee oo ae oe eo Ko

“...the murder, two years ago, of Henry Brantley, a farmer...Mr. John R. Cooper, attorney
of Macon...said Mr. Brantley had struck a young sister of Kitchens...” Atlanta Journal, Atlanta,
GA, 5/29/1916 (4/4).

AB Ae A He fe A he he ee Hie ae 2c ie 2c ae 2k he aie ale fe he fe fe ofc ofe ofe fe ale oft oe ht fe aft fe 9 oft fe ofc aK ae 9k Oke fe oe fe oA a oie ft ic fe oie oe 2k fe oe ie 9 Oi fe 2 ye fe 9 aie ak fe ok oie 9 oe ok oe

“Sandersville, 4/21/1916-...Secretly brought from Augusta late Thursday afternoon by
Deputy Sheriff Englishy to be resentenced by Judge R. W. Hardeman here this morning. The date
of the hanging will be May 19...He has been confined in the Richmond County Jail for several
months for safekeeping...” Atlanta Journal, Atlanta, GA, 4/21/1916 (18/1).

He Re OK ee a Oe he ae ie He Be ie Re eB ee Ae he ie ee ais Ae he Oe 2 2s 9s ie ee Se 26 He ais ie Hk ie Ok ie Ae he ie ae oe aie ahs aR ae ie i OR aie aie ee eo oie oe oR OK OR

KING, Thomas, III, hanged Jefferson, Camden Cosy Gae Mey v, GIS

"Re King = I followed through court records, but never actually found that the hange-
ing took place, He and his three sons, John, Hiram, and George, and a son-in-law,
Wm, Rouse and Simeon Rouse were all charged with the murder of two and the attempted
murder of 3 people, They had intendéd to kill King's daughter and her husband, On
13 April 1835 King was sentenced to be hanged on 8 May, He wrote his will on 13
April, However, in Nov, a true bill is found against Thomas King II, In April,
1836, a case of State vs Thomas King III = property to be sold for court costs, Mrs,
King named as exeéutrix, In April 1837 = 'The following criminal cases were cone
tinued, the Prisoners having made their escape from the jail of the munty,' Again
Thomas King is charged with murder, and in another case = assault with attempt to
murdereeePlease don't aske me to explain the above = I found nothing after this,

I looked several years beyond, but the records must have not been in courthouse,"
Ltr. 27 Auge 1982 from Mrs. Je We (Eloise) Baley, Pe 0. Box 398, St. Marys,

GA 31556,

James G. Ledbetter, Ph.D./Commissioner

ATL 8 TUS hy LT mn Wey ir. 4 ‘ —e Hen 4 & . ~ ~ y +)
LANGSTON, Henry, Jr., bl, hanged Madison, GA 5/12/1922

Vital Records Service, Room 217-H

47 TRINITY AVENUE, S.W. / ATLANTA, GEORGIA 30334-1202

Date: SEPTEMBER 5, 1991

TO WHOM IT MAY CONCERN:
RE: Death Certificate of

Name: HENRY LANGSTON JR.

Date of Death: 5-12-22

Place of Death: MORGAN CO.,GA.
This is to certify that a search of the state death index has been conducted
for the years 1921 through 1923 , and no death certificate was located
for the above-named individual on the basis of the information furnished. If
this information is needed for proof of death, I suggest that you contact the

agency requiring the proof to determine what other evidence will be accepted
in the absence of a death certificate.

Sincerely,

MAD RQ :
Michael R. Lavoie
State Registrar & Custodian of Records

Vital Records Service & Health Statistics
(404) 656-7456

MRL/tw

SEAL

(5/88 - 2)

AN EQUAL OPPORTUNITY EMPLOYER


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GEORGIA DEPARMENT OF HUMAN RESOURCES
VITAL RECORDS SERVICE
se a mame ge , Room 217-H, 47 Trinity Ave., SW
vA Atlanta, Georgia 30334

Thank vou for vour inquiry regarding a Vital Record. We have indicated the service rendered
or the additional information needed below.

[] Your request did not provide sufficient information to search the records. Please
complete the applicable section of the reverse side and return with the appropriate
fee or voucher receipt.

[] Georgia Law provides for the issuance of certified copies of birth records ONLY to

(1) the person whose record is registered, (2) either parent whose name is listed on

the certificate, (3) the legal representative of the person whose birth is registered,

Y (4) the Superior Court upon its order, and (5) any governmental agency, State or Federal,

provided such certificate shall be needed for official purposes. Relationship to the

registrant MUST be stated. Please complete the applicable section of the reverse
side and return with the appropriate fee.

[] You failed to submit the fee required by law for a search of the records. The fee is
$3.00 for the search, if the record is located, one copy will be furnished without
additional cost. Additional copies of the same persons’ record is $1.00 if requested
at the time of vour original request. Please complete the applicable section on the
reverse side and return with the appropriate fee.

[] The fee for one wallet size is $4.00. Additional copies of the same persons' record
is $4.00 if requested at the time of vour original request. If you desire one full size
(includes parents names) and one wallet size for the same person, the fee will be $7.00.

[] The fee submitted is in excess of the amount required by law. The fee is $3.00 for
the search; if the record is located, one will be furnished without additional cost. The
fee for one full copy (includes parents names), and one wallet size will be $7.00.
Additional copies of the same type copy requested for the same person at the same
time are $1.00. Please complete the applicable section on the reverse side and return
with the appropriate fee.

[] Money Order is incorrectly completed. Money Orders must be made pavable to
GEORGIA DEPARTMENT OF HUMAN RESOURCES. Money Orders with erasures
or alterations are not acceptable.

[] The fee for UNLIMITED SEARCH up to 10 vears is $10.00.

he State of Georgia did not begin filing birth or death records until 1919. If a delaved
record hus not been filed, there will not be a record on file in this office.

Fulton County Health Department began recording birth and death records in 1896
for persons born in Fulton County only. You may write to Vital Records Custodian,
Fulton County Health Department, 99 Butler Street, Atlanta, Georgia 30303. The
fee is $3.00.

[] You mailed us the Customer's Receipt for the money order. Please send the Monev
Order with the enclosed application.

[] Census request must be submitted to: Bureau of the Census, 1600 North Walnut Street,
Pittsburg, Kansas 66762.


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LINCH, Flem, black, hanged Jackson, GA July 25, 1924 &
McDOWELL, Evans, black, hanged Jackson, GA July 25, 1924.

2ND NEGRO HANGS
ON MURDER COUNT -
IN BUTTS. COUNTY

Jackson, Ga., duly 2.—F lem .
Linch, Jasper: county negro, — was)
hanged in the Butts county jailyard |
here this morning as an accomplice
in the murder and robbery of C. A.
Pittinan, well-known tarmer and me--
chant, on July 21, 1925.

Evans McDowell, confessed princi-
pal in the crime, was hanged here
last December. Linch denied his guilt
to the last. Pittman, who also acted
as ferryman and lived in his store,
near the Ocmulgee river bank in this
county, was called from his home,
slain and robbed and his body thrown
into the river, from which it was re-
covered some time later.

Cane TA

|

Mem Linch, a negro sentenced fo)
hang on Friday in Butts county, lost |
his last chacne for life. when Gover- |
nor Clifford Walker, Friday morning, |
refused to interfere, with the carry-
ing out of the science: of the court.
Linch was convicted ‘of the murder
of a white ferryman.

CONSTITUTION, Atlanta, GA July 26, 1924, pi2,c6


™ — os

364 @ LEWIS v. THE STATE. (10;
lutely required a verdict of guilty. Even in the Tight of the
statement made by the accused, the killing was a deliberate as.
sassination with scarcely a mitigating circumstance attending
the deed.

2. The main ground relied on by plaintiff in error is the one
relating to the newly discovered evidence upon the suvject of
insanity. The joint affidavit in support of this ground, signed
by seven witnesses, recites as follows: “That they [affiants]
know and are well acquainted with Robert Lewis, defendant in
the above-stated case, that they have known him for a number
of years, and that they have been for a long time and are now
of the opinion that the said Lewis has been and now is of un.
sound mind, and that he was of unsound mind at the time he
killed foreman Haynes, of the Prudential building, for which
killing he is now under sentenee of death. Deponents further
say that they have good and sufficient reason for their belief in
the insanity of the said Lewis, they frequently having seen evi-
dences of it in their associations with the said Lewis for a long
time before and up to the time of the homicide.” There also
appears in the record an affidavit executed by counsel for the
accused, to the effect that after his appointment by the court to
defend the accused, the latter refused to talk about the case un-
til a very short while before he was placed on trial, and that
the attorney had no knowledge of or means of discovering the
evidence shown to exist by the affidavit attached to the motion,
and that affiant believes the newly discovered evidence shown
to the court to be material, and that the verdict of the jury
would have been different had it been submitted tothem. The
conclusive reply to this ground in the motion is, that, had the
evidence as contained in the affidavit been offered, it would not
have been adiissible, for the reason that it does not appear
the witnesses were experts, and they do not relate a single fact
upon which their opinion of the insanity of the accused is based.
Besides this, the affidavit does not indicate what opinion the
Witnesses had as to the extent of the unsoundness of mind with
which they think the accused was afflicted: whether or not it

]

was of such a nature as to render him irresponsible for the com-

mission of a crime,

VG.)

“his motion for a new trial being overruled, he excepted.

OCTOBER TERM, 1898. 865

This ease is controlled by the decisions of this court in Gra-

‘ ee ham v. State, 102 Ga. 650, and Battle v. State, 105 Ga.

Judgment affirmed. Little and Fish, JJ., concurring. The

a Sa other three Justices absent.

JONES v. THE STATE.

Where in the trial of one charged with the offense of rape it os potti
: b4 re , . , = fs age
that the female alleged to have been ravished was over ten years 0 Age,
but of immature years, it was not error to charge, in effect, that the jury,
: — } yearn: r - » , > per-
+n determining her capacity to consent to carnal knowledge of her pe
oD . e
son, might consider her physical and mental dey elopment.
There being evidence to support the verdict and the trial judge being a
: 7 i j 7 5 i . > 4 rla -
isfied therewith, this court must affirm his judgment refusing a new t
Lumpkin, P. J., and Livre, J., dissenting.
Submitted December 19, 1898.— Decided February 1, 1599.

i efore » Hart. Jones superior
Indictment for rape. Before Judge Hart. p

eourt. October term, 1898.

John R. Cooper, for plaintiff in error.
H. G. Lewis, solicitor-general, contra.
Fis, J. Fletcher Jones was convicted of rape; and upen
nie n
the motion for a new trial complaint is made of the patil
} ~ .. tiene, urpe  - Ratiwa 1e
ing parts of the judge’s charge to the Jury, viz.: Betw sot
! ; ee i
ages of ten and fourteen, it would depend entirely ae
illustrate : abitation
physical and mental development. To illustrate: cohabita “°
i 3 * ten years W be rape. 1e
with a female under the age of ten years w ould > Zi a
could not give her consent to the act of cohabitation; betwee

, ee oe en
the ages of ten and fourteen she can consent, if she 1s capa a
: - . : ier
: ‘2 AY BY }
of consenting; if her mental and physical des elopment is aa
bs is 1 > cohabitation with
that she is incapable of consenting, then her coha

a person would be rape. If her physical and mental de-

velopment was such that she could not consent, and you deen
find from the evicence that he cohabited with her, then such
offense would be rape. You will look to the yee
e person t ave been assauitec
zoundings, the age of the person alleged to have é ;

> > a e
- her conduct then and there, her conduct then and since,

ROBERT LEWIS.
He Was Hanged in the Tower Vesterday for the Murder of Charles

Haynes.

Cates

of the Tower. The elevator was not run-
ning, having Leen out of order ever since
the first day the Tower was occupied. It
wae with the greatest difficulty that the
four men bore the stretcher down the long
stairway. It is very narrow and at some
places the body had to be turned over to
other men to allow it to pass.

As the body passed through the outer
door of the prison to the street, Mrs. Lewis.
hearing the opening and the closing of the
door, ran out of Miss Hollaway’s room into
the front office. Here shé saw the body
through a window ag it was being placed tn
the hearse. Her grief became frantic and
-uncentrollable. As soon as possicie she
was taken away from the window.

The body of Lewis cemained at Under-
taker Patterson's last night. This morning
{t will be taken from there to Westview,
where it will be intersed in a lot bought
especially for the occasion.

Mrs, Lewis had taken up the idea that her |
husband's body would be turned over to a |
medical college, and it was an act of kind
people that provided ao lot in Westview, as
' much for her sake ag any other.

The Story of the Crime.

On the 2th of July, 1898, Robert Lewis
stood at 6 o'clock in the afternoon near the
corner of Néerth Forsyth and Walton streets.
He was but a few feet away from a gate-
way feading into a yard around the Pru-
dential building, which was then being
erected. He was there about half an hour
waiting for the men within the inclosure to

quit work.

Charles B, Haynes, one of the foremen on
the building, came out of the galeway. He
had a@ wife and two little children waiting
for htm at his home, corner of Hampton
and Emmett streets. He had worked hard
all day and he was hustening homeward
for rest and happiness in hig little fumilly
circle, ; SSA a eet oie

Without a word of warning Lewis stepped
in front of Haynes and fired a pistol bullet
into his heart. .

The assassination had been committed be-
cause Haynes had discharged Lewis, es the
latter was not thought to Le a competent
workman.

Lewis was arrested by two policemen and
locke@ up at the pole barracks. He made
no effort to escupe and acted as if he had

was transefrred to the wer, where he re-
mained until he was taken to the cuurt-
house for trial. The gnly piea made in Ms
defense was a story about Haynes having
insuited nis wite and made insulting re-
marks about her. The jury brougnt in a
verdict of murder and he was sentenced to
be hanged. An appeal was taken when a
motion for a new triak Wag refused and the
verdict of {he lower court was sustained.
Lewis's sanity was questioned and an ef-
fort Was made to save his life by an ap-
peal tW the board of pardons. Tuis failed.
Three times was his day of execution
named, tnere being one postponement on
account ef the appeal to the supreme court,
and another when a reprieve was granted

dons to act on the case,

There was possibly never a man condemn-
ed to death more filled with fear of the gal-
lows than Lewis. His fright at times was

when the gallows was being built tor
his execution made him appear as a man
with the delirium tremens.

All Dark in Murderer’s Row.

Last night there were no lights 11 Mur-
derers’ row, that section of the Tower upon
the fifth floor which has been set apart
for the work of avenging the spilling of
human blood. The row was in utter dark-
ness, and from the street below the very
shadows of the gloomy pall seemed hov-
ering over the place.

Flanaghn, who spent some time in the
row, is cowering in a cell in the Decatur
jail; Bankston, charged with the murder
of Policeman Ponder, was removed from the
row a few days before the hanging of Lew-
is, as an act of humanity, as he fretted un-
der his confinement in one of the mur-
derers’ cells.

So the east wing of the fifth floor of the
Tower wag empty last night ahd no light
was kept burning. .

The life that was made to atone for a life,
the anguished soul that feared to face the
grim gallows, the haggard face, paled with
fright, the despair, the horror, the utter

woe which were crowded into one tortured
brain, all went out with the click of the
death trigger, and jeft Murderers’ row to
tts terrible. memories.and its gloomy shad-

ows. - : :

been drinking, soon after his arrest. He

to give an opportunity ior tne board of par- ;

:
|
|

terrible to behold, and the noises made ;


+ a

362 OCTOBER TERM, 1898 {10°
ad

ing sold, had passed from him to anybody. Neither dominisn
nor custody of the liquor had passed from him. Had by any
rasualty the whisky bargained for been destroyed before there
had been a complete separation of it from its bulky condition,
undoubtedly the loss would have fallen upon the vendor in this
case, and not upon the vendee. Even if the evidence author-
ized the conclusion that there had been a contract of sale, the
circumstances manifestly indicated that the parties contem-
plated a cash transaction, and that actual delivery should be
had before the sale was complete. There was nothing what-
ever in the testimony authorizing the inference that there could
possibly have been any other intention of the parties to the con-
tract. The testimony simply makes out a case, if any at ail,
of an attempt by the accused to unlawfully sell whisky, aud of
his being intercepted while engaged in preparing the article tor
delivery, and before he had committed the crime with which
he is charged. Even if there is such an offense known to our
law as an attempt to illegally sell intoxicating liquors, the ac-
cused was neither charged with, nor convicted of, such an of-
fense. For the above reasons we think there was error in the
charge complained of; and that the verdict was without evi-
dence to sustain it.
Judgment reversed. All the Justices concurring.

LEWIS v. THE STATE.

1. The evidence sustained the verdict of guilty.

There was no error in overruling the motion for a new trial upon the
ground of newly discovered evidence relating to the insanity of the ac-
cused, when the only testimony in support of such ground was the afli-
davits of witnesses that they had known the accused fora number of years,
and had been for a long time, and are now, of the opinion that he has
been, is now, and was at the time of the killing, of unsound mind; it net
appearing that any of the affiants were experts on the subject testified
about, and no facts being related by them upon which their opinions
were based.

bo

Argued January 16,— Decided January 51, 1899.

Indictment for murder. Before Judge: Candler. Fulton
superior court. November 4, 1898.

Ga.) OCTOBER TERM, 1898. > Bt

Arminius Wright, for plaintiffin error. J. Mf. Terrell, attor

3 ney-general, and C.D. Hill, solicitor-general, contra.

Lewis, J. Robert Lewis was tried in Fulton superior court,
on an issue formed by a plea of not guilty to an indictment

‘charging him with the murder of Charlie Haynes. It appears

that the accused was an employee engaged in work on a build-
ing in the city of Atlanta, under the immediate supervision of
Charlie Haynes, another employee under the contractor hay-
ing charge of the work. Haynes made a complaint to the con-
tractor that Lewis was not doing his work properly; where-
upon Haynes was directed to pay him off and discharge him,
which was done. Ina day or two afterwards the accused made
his appearance upon the streets at or near the building, and as

~ soon as Haynes came from the building, the accused shot him

without notice or warning, the wound resulting in almost in-
stant death. The accused introduced no testimony, but made

-a statement to the effect that Haynes had no cause for discharg-
mg him; that he told Haynes at the time, he had a wife and

wo children, and they were dependent on him for support,
ind asked that he might continue his work. Haynes replied
‘na boisterous manner, cursed him, and alluded to his wife as
the “scarlet wife” the accused was keeping. The accused pro-
‘ested against the language of Haynes, and stated that his wife
was as innocent a woman as there was in the world; and
Haynes replied that if he compared that “scarlet” with his
wife he would kill him, and the accused went off and got pre-
pared. He went back tothe building that evening to get some
money with the view of returning to his home in the moun-
tains, and met, with Haynes, and not knowing but that Haynes
was ready for him, he concluded it was the best time then for
him to kill him. The jury returned a verdict of guilty. A
motion for a new trial was made upon the general grounds that
the verdict was contrary to law and the evidence; and on the
further ground of newly discovered evidence, as shown by the
joint affidavit of several affiants, attached to and made a part of
the motion. The motion was overruled, and the accused ex-
cepted.

1. The testimony in this case not only authorized but abso-

*66QI-NI-E SeTazcep Sequetyy SpeSuey *qyzeqoy SsTMay

Organ Offer Halts Execution

AP 23 Jun 95 17:29 EDT V0085

Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

JACKSON, Ga. (AP) -- About an hour before his date with the electric
chair on Friday, a killer’s newfound desire to become an organ donor
won him a delay.

Larry Lonchar, who killed three people over a gambling debt, was
granted a stay while his lawyers challenged electrocution as cruel and
unusual. He wants a different method, perhaps lethal injection, so he
can donate his organs.

However, lethal injection would not necessarily make Lonchar’s
organs usable.

"It would be marginal, but that would not be the best way to do it
Said Dr. James Burdick, a professor of surgery at Johns Hopkins Medica}
Institution in Baltimore.

Butts County Superior Court Judge Byron Smith, who granted the stay
of the scheduled 3 p.m. execution at 1:45 p.m., said at a hearing that
he would decide the issue by Tuesday. He also said he wanted to
consider whether Lonchar was manipulating the courts.

The judge questioned Lonchar at length about whether he understood
the request for a delay. |

"My life is nothing. I’m not afraid of dying. If I can make my life
a little worthwhile, then I’d like to," Lonchar told the judge.

Lonchar, who once vowed never to appeal, changed his mind two years
ago about 30 minutes before a scheduled execution. He said his tearful
father persuaded him to appeal.

Lonchar still could be executed next week if Smith lifts the stay.
non execution order allows him to be put to death anytime before noon

xt Friday.

Lonchar, 43, was convicted in the 1987 murders of Wayne Smith, 54;
Smith’s son, Steven, 24; and Smith’s girlfriend, Margaret Sweat, 45,
over a $10,000 gambiing debt he owed them.

Lonchar had raised the possibility of donating his organs last week,
but changed his mind because he didn’t want to delay the execution. At
his hearing Friday, he said his lawyers browbeat him into signing the
petition.

In an interview Thursday, he said he was ready to die and planned no
appeals.

"I hope there’s a heaven and hell and I will be in hell where I
belong."

oe
’ .
,

Victim Cannot Watch Execution
AP 21 Jun 95 17:15 EDT V0715
( , Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

ATLANTA (AP) -- An inmate scheduled to die in the electric chair for
three killings lost a bid Wednesday to invite a survivor of the attack
to witness the execution.

In denying Larry Lonchar’s request, the Corrections Department said
it does not want to open the door for crime victims and relatives of
murder victims to watch executions.

"I'm very disappointed in that decision," said the survivor, Rick
Smith, who was shot three times in the 1986 attack that killed his
father, his brother and Smith’s father’s girlfriend.

Lonchar, 43, admitted he carried out the killings over a $10,000
sports gambling debt he owed the victims. He wants to die as scheduled
on Friday.

Last week, Smith asked to be selected as one of the state’s
witnesses at the execution. While Smith was waiting for a reply,
Lonchar named him as one of the five witnesses he’s allowed. Lonchar
has not said why he made the gesture.

Corrections Commissioner Allen Ault rejected the request, saying the
department has a responsibility to carry out executions "in as
dignified and efficient manner as possible" and to maintain public and

; prison safety.

( “We are not concerned that Rick Smith will behave inappropriately,
but there is concern about setting a precedent for the future,” added
Vicki Gavalas, Corrections Department spokeswoman.

And state Attorney General Michael Bowers said the law allows a
condemned person to name only attorneys, clergy, relatives or friends
as witnesses.

Lonchar‘s attorney, John Matteson did not return calls asking if he
would appeal the decision.

Lonchar asked in 1990 to be put to death as quickly as possible, but
his execution was postponed several times, mostly because of appeals
filed by a sister who contended that he was mentally ill and that the
state was trying to assist in his suicide.

Thirty-two minutes before he was to be executed two years ago,
Lonchar requested and received an appeal. Now, however, he said he is
determined to die.

To avoid any delays, he even gave up an attempt to change the method
of execution. He wanted a method that would not damage his organs and
render them useless for transplant.

His brother, Milan, is still trying to stop the execution, but his
arguments were rejected in court Tuesday and Wednesday.


ae pre

AN INTERVIEW WITH LARRY LONCHAR

‘Capital punishment,
it’s the easy way out

One hour before Larry Grant
Lonchar was to be executed, he
began to waver from his decision
not to appeal his death sentence
for a triple murder in 1986. In a
25-minute call to Reporter
Rhonda Cook, Lonchar, his voice

showing emotion, talked about

his life and confronting death.
These are some of his comments:

“I’m sitting here all shaved
bald head and my leg shaved just
waiting to die. I wasn’t even
thinking about it [appealing the
execution] until seeing my dad
crying on the floor and my broth-
er. They had to help them out. I
caused this pain to them. Even
the judge, he come visit me today
and he said it’s even bothering
him. ... I just hurt because I’ve
caused all this pain. That’s why I
chose to do this because I can’t
live with the pain. I hurt.

“... I’m supposed to be
scared, but I’m not scared and
that’s not normal. I slept good
last night and I ate and that’s not
normal. I just called my sister
and my brother, and that’s all
that means anything to me is my
family. My dad was on the floor
crying and begging me.

“They’re doing me a favor.
By killing me, my pain’s ending.
The Smith family, Wanda Sweat,
they are continuing. I wasn’t
even thinking about changing my
mind until I see how much I’m
hurting my family. But I owe it to
their families. ... I owe it to the
Sweats because it’s what they
want. I know how much I love my
mama, dad and brothers and I
know if someone did that to them
I would want revenge too. It’s
just human nature. ...

“Maybe I shouldn’t take this
easy way out because I deserve

to suffer for what I’ve done. ...
Why do you think Gary Gilmore
and about 25 other people have
done this? Because it’s the easy
way out. Maybe I shouldn’t take
the easy way out. This is what I
deserve, to suffer and suffer and
suffer.

“T’d just look so foolish [if he
stopped the execution]. People
would say ‘Ah, he just got scared
and he couldn’t go through with
| aa

“The abusive family, that’s
not true. The lawyers exaggerat-
ed that. Our family was close. My
mama had five children. How
many nights she’s had to get up
and change diapers. She never
missed a conference at school
with the teachers. She worked
day after day to keep the house
clean and the clothes clean —
and this is my thanks to my
mama and dad. That’s what hurts
me so much, to be like this. I was
a newspaper boy, a Little Lea-
guer, Cb Scouter and when my
family jell anart I fell apart.
Even aii the crimes. I just did
things to make sure I got caught
so I could be punished. Even in
this, | dropped my glasses at the
scene oi the crime. I said, ‘Larry
pick them up.’ I walked right by
them because I wanted to get
caught. Because that’s all I’ve
been doing for 27 years is pun-
ishing myself because I hate my-
self so much.

“Capital punishment, it’s the
easy way out. I don’t deserve
that. I’m tired of suffering day in
and day out. Doing time doesn’t
bother me. I’m suffering because
I know what I’ve done and I know
what I’ve done with my life. I’m
sorry. Maybe it’s best I coun-
tinue suffering.

ConsnTunN we


Ga. Killer Wins Execution Stay
AP 29 Jun 95 21:27 EDT V0335
Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,

broadcast or otherwise distributed without the prior written authority
of the Associated Press.

JACKSON, Ga. (AP) -~ A convicted killer who was minutes away from
execution Thursday won a stay while he appeals for a method that may
allow him to donate his organs.

Larry Lonchar wants to receive a lethal injection instead of dying
in the electric chair, though experts say his organs might still be
rendered unusable. He wants his execution delayed long enough for the
Legislature to change the law to permit another method of execution.

"I believe that death row inmates should be given the option after
thelr appeals to be put to sleep and donate organs,” Lonchar said at a
hearing Wednesday.

Lonchar had eaten his last meal and had his head and ankle shaved
when the U.S. Supreme Court stayed the execution. He was never seated
in the electric chair because officials were awaiting word, said Mike
Hobbs, a deputy state attorney general.

Lonchar, who insisted for years he wanted his execution carried out,
was convicted in 1986 of killing three people over a $10,000 gambling
debt.

Wayne Smith, 54, and his son, Steve Smith, 24, were found handcuffed
and shot to death. Margaret Sweat, 45, was shot as well, and her
attackers slashed her throat when she called police.

Another of Smith's sons was shot but survived. His request to
witness Lonchar’s execution was refused.

Lonchar, who once vowed never to appeal, changed his mind two years
ago about 30 minutes before execution. He said his tearful father
persuaded him, but the appeal was never actually filed and the warrant
expired.

The Supreme Court will conduct a full hearing on Lonchar’s request,

but probably not before October, state Attorney General Michael Bowers
said.

Georgia Execution To Proceed
AP 29 Jun 95 15:09 EDT V0117
Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

ATLANTA (AP) -- The state rescheduled Larry Lonchar’s execution for
7 p.m. Thursday after the 11th U.S. Circuit Court of Appeals lifted a
stay issued by a lower court.

Attorney General Michael Bowers had asked the appeals court to
overturn U.S. District Judge Jack Camp’s temporary stay, which had
halted Lonchar’s scheduled execution Wednesday.

Lonchar, convicted of a 1986 triple murder, has abused the appeal
process "and is entitled to no relief," Bowers said.

Loncha la coneicted, triple murderer
he electric chair by announcing a last-

1e 23, the [ parunent of Correc-

in 1986 whonl) oe nee
year-old son, Steven Sr
Sweat, 45. ee :

WW ae: 4 Wn ee A AFF olal


Lonchar execution may

be Wednesday; stay lifted

ATLANTA —A judge who
halted convicted killer Larry
Lonchar’s execution hours
before it was to take place last
week lifted the stay on Monday.
State officials rescheduled the
execution for Wednesday. A
defense attorney said he would
jaunch a new appeal.
| Lonchar had been scheduled
to die last Friday for murdering
three people in 1986.
| Superior Court Judge Byron
Smith of Butts County stopped
the execution when Lonchar,
who had vowed he would not
appeal, sought a stay to argue
the state’s method of execution
should be switched to lethal
injection to allow him to donate
his organs.

State law requires the use of
the electric chair. Changing the
process would require an act of
the Legislature, which does not
meet again until January.

In revoking the stay of
execution Monday, Smith said he
concluded the appeal was “a
product of his counsel’s
last-minute manipulation to
avoid execution.”

“T expected it,” said Lonchar’s
attorney, John Matteson, who
said he will appeal.

Lonchar, 43, was convicted of
the DeKalb County murders of
Wayne Smith, 54; Smith’s son,
Steven, 24; and Wayne Smith’s
girlfriend, Margaret Sweat, 45,
over a $10,000 gambling debt.

| ED GER- Ew) GQ OIRER


sxseax Friday, June 23, 1995 DS

LOCAL NEWS

The Atlanta Journal / The Atlanta Constitution

‘T’m a cold-blooded |
killer, Lonchar says

By Rhonda Cook
STAFF WRITER

Wayne and Steve Smith’s fa-
tal mistake was to be disre-
spectful to Larry Grant
Lonchar.

“These people died over
words,” Lonchar said in an in-
terview Thursday. “They disre-
spected me.”

Lonchar is
scheduled to be
executed at 3
p.m. today for
killing Wayne
Smith, 54, son
Steve Smith, 24,
and the older tia
man’s girl- Lonchar
friend, Margaret Sweat, 45, in
1986.

Another member of the
Smith family, Rick, was shot
and left for dead on the floor of
the bedroom where he had been
sleeping when Lonchar and an-
other man, Mitchell Wells,
came to the DeKalb County

condominium. Rick Smith

asked to witness Lonchar’s exe-
cution, but state Department of
Corrections officials denied his
request.

If Lonchar is executed as
scheduled, he will be the 21st
person executed in Georgia

since 1983 and the third this.

year. He would be the first to go
voluntarily to Georgia’s electric
chair.

“T don’t want anybody to re-
member me,” Lonchar said
Thursday. “I’m not scared. I
won’t miss this society. It’s only
going to get worse. I’m a cold-
blooded killer and I don’t de-
serve any compassion.”

Lonchar continued to insist

Thursday that he is mentally

competent to be executed and
that he does not plan to fight his
death sentence.

Lonchar’s oldest brother,
Milan, has asked the courts to
stop the execution and to order
a psychiatric evaluation of his
brother. The request was pend-
ing Thursday. :

In the interview Thursday,
Lonchar described the killings
in detail. He said he owed the
Smiths $10,000 for a gambling
debt and that Steve Smith made
threats about what would hap-
pen if Lonchar did not repay the
money quickly.

On Oct. 13, 1986, Lonchar
said, he and Wells went to. Rick
Smith’s condominium. Wells

~ went into a bedroom while Lon-

char stayed in the living .room
with the father and son.

Lonchar said he shot Steve
Smith and then Wayne Smith. A

- moment later he heard three or

four shots from a bedroom
where Rick Smith was sleeping.
Sweat then came into the living
room and Lonchar shot her
twice, then fired one more bul-
let into each of the two men ly-
ing on the floor.

Lonchar said he went out-
side for a moment to listen for
police sirens. He heard Sweat
on the telephone calling for
help when he came back inside,
“which surprised me because I
thought everyone was dead. All
my guns were empty,” so he cut
her throat, Lonchar said.

Now, Lonchar says he can-
not think of what to say to make
up for the killings. “I can’t be-
lieve I did this ... to some hu-
man beings,” he said.


496 Ga. 61 SOUTH EASTERN REPORTER, 2d SERIES

3. Homicide €=250
In prosecution for muracr, evidence
was sufficient to authorize conviction,

——_>—_——_

Edward J. Goodwin, Savannah, for
plaintiff in error.

Andrew J. Ryan, Jr., Sol. Gen., Sylvan
A. Garfunkel, and Hermann W. Coolidge,
Asst. Sols. Gen., all of Savannah, Eugene
Cook, Atty. Gen., Robert E. Andrews,
Asst. Atty. Gen., for defendant in error.

Syllabus Opinion by the Court

HAWKINS, Justice.

1. George Kersey, Thomas Lynch, and
Atticus Brown were jointly indicted in
Chatham Superior Court for the murder
of Edward Crosby by shooting him with a
shotgun. On his separate trial, Thomas
Lynch was convicted without a recom-
mendation of mercy, and sentenced to elec-
trocution. His motion for a new trial,
based on the usual general grounds and
eight special grounds, was overruled, and
to this judgment he excepts. The evidence
in behalf of the State, together with the
defendant's statement, discloses: that the
defendant and the other persons named in
the indictment had been drinking heavily
on the occasion in question, and had very
little money; that they had entered into an
agreement to rob someone in order to se-
cure additional money; that they drove out
on the Ogeechee Road in Chatham County
and parked beside the road until they saw
the truck being driven by the deceased ap-
proaching, whereupon Kersey drove their
car alongside the truck, ordered the driver
to stop, to get out and come to the rear of
the truck; that when the driver, Edward
Crosby, approached the rear of the truck,
the defendant Lynch got out of the car
with the shotgun in his hands to assist in
the robbery of Crosby, and according to
the defendant’s statement to the jury on
the trial: “I got out the car with the gun;
Kersey and this boy came back towards the

automobile parked behind the truck, and in
some way or other, I don’t know whether I
did it or not, the hammer was back on the
gun, and I was trying to get the hammer
down off the gun; as well as I remember,
I was trying to get the hammer down and
it wouldn’t go down, and in a few minutes
the gun went off; it wasn’t pointed at any-
one especially; I didn’t have a guard or
nothing on it; Kersey said ‘Let’s go, Red,
you done shot somebody’; we turned
around and Kerscy had got in the car to
drive off.” The undisputed evidence dis
closes that Edward Crosby died from th:
shotgun wound thus inflicted. Held:

[1] 1. “Where the evidence shows,
and it is admitted in the defendant’s state
ment, that the homicide occurred by the
discharge of a gun held by the accused and
used in an attempt to rob the deceased,
even if the discharge of the gun was unin
tentional, the offense is murder; and in no
view of such facts does it involve hom
cide by accident or involuntary man
slaughter.” Ford v. State, 202 Ga. 599(3),
44 S.E.2d 263, 264. See also Solesbee v
State, 204 Ga. 16(3\, 48 S.E.2d 834, an!
cases there cited.

(2] 2. Applying the principle an
nounced in the preceding headnote to the
facts of this case, neither homicide by ac
cident nor involuntary manslaughter in the
commission of an unlawful act was involv
ed, and the trial court did not err in refus
ing to give in charge to the jury the prin
ciples of law contained in the written "
quest to charge relative to the homicide by
accident and involuntary manslaughter, a*
complained of in grounds 1 through 8 of
the amended motion for a new trial.

[3] 3. There was ample evidence !
authorize the verdict, which has the a?
proval of the trial judge, and the judgmert
refusing a new trial on the genera!
grounds will not be disturbed. Mays *
State, 207 Ga. 143, 60 S.E.2d 769.

Judgment affirmed.
All the Justices concur.

BARRON v. DARDEN Ga. 497
Cite as 61 8.E.2d 497

207 Ga, 350
BARRON et al. v. DARDEN et al.
No. 17244.

Supreme Court of Georgia.
Oct. 11, 1950,

Mrs. Effie ©. Barron and another brought
action against Mrs. Doris Darden, and oth-
ers, to secure reformation of a deed. The
Superior Court, Upson County, Chester A.
Kyars, J., entered judgment for defendants
after sustaining a general demurrer and
plaintiffs brought error. The Supreme
Court, Wyatt, J., held that where deed in
qnestion was executed over 22 years before
sult, and was placed on public record over
20 years before suit, and in intervening pe-
tlod, both principals to deed, the only per-
fons Who would have known the true inten-
tlons of parties, had died, and name of scriv-
ener Was not alleged nor was it alleged that
he was alive or availalie as a witness, and
the land had been transferred to other par-
ties, and no sufficient reason was given why
the mistake was not discovered sooner, plain-
uif's claim was barred by laches.
Affirmed,

'. Equity <=69

In determining whether there has been
laches, various things are to be considered,
notably duration of delay in asserting claim,
tuficicncy of excuse offered in extenuation
of delay, whether plaintiff acquiesced in
assertion or operation of corresponding ad-
verse claim, character of evidence by which
Paintiff's right is sought to be established,
whether during delay evidence of matters
in dispute have been lost or have become
obscured or conditions have so changed as to
tender enforcement of right inequitable, and
whether third parties have acquired inter-

ten

ning rights,

2 Reformation of Instruments ¢=32

: In action to secure reformation of a
“eed, where deed was executed over 22
years before suit and placed on public rec-
ends over 20 years before suit, and in in-
bea ning period both principals to deed had
“ed, and land had been transferred to oth-
*t parties, and no sufficient reason was
fiven why mistake was not discovered
“ner, when those most familiar with
‘ansaction were still available to testify,
Paintif’s claim was barred by laches.

61S. E.2a—32

Crawley & Crawley, Thomaston, for
plaintiffs in error.

Salter & Mahler, Thomaston, for defend-
ants in error.

Syllabus Opinion by the Court

WYATT, Justice.

Mrs. Effie C. Barron and A. V. Barron
brought suit against Mrs. Doris Darden,
Mrs. J. C. Newton, Mrs. Ivaline Newton
Dunaway, and Tom Dunaway, seeking the
reformation of a deed executed by M. W.
Barron to Mrs. Alma Newton conveying
certain described real property. Both M.
W. Barron and Mrs. Alma Newton, the
original parties to the deed, have died.
Mrs. Effie C. Barron is the wife of M.
W. Barron and a lIegatee under his will,
and A. V. Barron is the son of M. W. Bar-
ron, and the grantee in a deed from Mrs.
Effie C. Barron to certain real property
she received under the will of M. W. Bar-
ron. The defendants except Tom Duna-
way, are the children and all the heirs of
Mrs. Alma Newton. The petition alleges
that there has been no administration of
the estate of Mrs. Alma Newton, nor has
there been a legal representative appoint-
ed. ‘The petition further alleges: that on
July 20, 1927, M. W. Barron exccuted a
deed to a tract of land to Mrs. Alma New-
ton, the deed here sought to be reformed;
that when the deed was drawn, it was un-
derstood that the tract should front 190
feet along a named public road, but: “By
accident or mistake, however, the deed was
so drawn as to include a frontage of 210
feet on the said public road. The land be-
ing described as running, ‘thence west to
the line of the Old Blalock place, a dis-
tance of one hundred and ninety (190)
fect.” While the line of the old Blalock
place is 210 feet from the point of meas-
urement. By insertion of the above-quot-
ed words, ‘Thence west to the old Blalock
place, a distance of 190 fect,’ the deed as
made conveyed 210 feet, which 210 feet
included a twenty-foot strip, part of which
was being used as a way of egress and in-
gress to other propertics of M. W. Barron,
and now other properties of A. V. Barron.
This twenty-foot strip was by express

wwtiw~wee ~re

>
rs

fy

:
3


a NAR iat

Tae

AiR Te es Bi ae

i ears kere RFE ape a a EO Sip

492 Ga.

2. The court did not err in refusing
the defendant’s motion for a directed ver-
dict.

3. Asa new trial is granted, no ruling
is made on the sufficiency of the evidence.

4. The court did not err, as com-
plained of in the cross-bill of exceptions,
in excluding evidence of the petitioner.

—_——_>__—

Mrs, Ethel T. Paris, as administratrix
of the estate of her deceased husband, U. E.
Paris, filed in Bartow Superior Court,
against Ray Paris, an equitable petition
secking injunctive relief, and to compel the
delivery of described notes, security deeds,
and Icases, which were alleged to have
been delivered to the defendant, a son of
the intestate, not as a gift, but for safe-
keeping only, at a time just before the death
of the intestate. The prayers, besides for
process and rule nisi, were: that the de-
fendant be enjoined from collecting any
funds due on the evidences of indebtedness,
and from disposing of any of the docu-
ments; that the petitioner recover the docu-
ments in her representative capacity, so
that the funds could be collected and ad-
ministered; and that the petitioner be
granted general equitable relief. The peti-
tion was not demurred to. In his answer
the defendant denied that the documents
had been delivered to him for safekeeping
only, and averred that they had been given
to him by his father as an absolute gift.

The defendant, who was called for cross-
examination, testified in part: “I am next to
the oldest child of my father, U. E. Paris,
who died December 21, 1948. * * * At
the time my father died I had in my posses-
sion * * * [one of the contracts in
question]. He turned them over to me
about the middle of November. No, he
did not endorse any of them to me. He did
not sign his name. No, he did not take
them to a lawyer and give them to me and
have them transferred. As to how I con-
tend, then, that he gave them to me—he
gave them to me and said when any of them
came due I could collect. No, he never
said anything about endorsements. He
never said anything about transferring or

61 SOUTH EASTERN REPORTER, 2d SERIES

signing them. * * * He just told me
he wanted to give them to me and handed
them over. * * * T knew he was go-
ing [to the hospital] for a serious opera-
tion.”

Dupont McPhail testified for the peti-
tioner: “I heard Mr. Paris make some
statements in December just before he
died, * * * with reference to notes
turned over to Ray Paris. * * * He
said he left papers with his son, Ray Paris,
on account of so much confusion at home;
so many children around. I said, ‘Did you
endorse the papers to Ray?’ and he said,
‘T did not. It was not my intention. I
gave them to him purely for safckeeping,’”

Mrs. Dupont McPhail testified for the
petitioner: “As tq whether I had a con-
versation with Mr. Paris the last time we
visited him, * * * we had two conver-
sations with him on Sunday before the oper-
ation on Monday. * * * Mr, Paris
made a statement as to why he turned the
notes over to Ray Paris. He said he had
been sick for about a year, and that he
went to the hospital as an emergency and
he had turned the notes over to Ray be-
cause the house was open; it was never
locked. Ile said he gave them to Ray be-
cause he was afraid the house might catch
on fire.”

Hugh Cowan testified for the defendant:
“Mr. Paris was in his yard; he lived next
door, * * * He came over and sat
down in Ray’s living room. He pulled an
envelope out of his bosom and gave it to
Ray. * * * He said, ‘Ray, here are
some papers I want you to have. When
they come due you can collect them.”

Mrs. Ray Paris testified for the defend-
ant: that one afternoon in November, 1948,
she was in the kitchen and heard Mr. Paris
say: ‘Ray, I have some papers here and I
want to give them to you.” She did not
hear the entire conversation or see Mr.
Paris hand the papers to his son.

At the conclusion of the testimony, the
court overruled a motion by counsel for the
defendant for a directed verdict. The jury
returned a verdict in favor of the petitioner.
The defendant’s motion for new trial was
overruled, and he excepted.

titi

KERSEY v. STATE Ga 493
Cite as 61 S.E.2d 493

The petitioner filed a cross-bill of ex-
ceptions, assigning error on the exclusion
of evidence in her own behalf to the effect
that her husband stated to her shortly be-
fore taking the papers to his son, that he
was delivering them for safekeeping and
not as a gift.

Ingram & Tull, Cartersville, for plain-
tiff in error.

J. L. Davis, Cartersville, for defendants
in error.

ATKINSON, Presiding Justice (after
Stating the foregoing facts).

1, Special grounds 1, 2, and 4 of the
amended motion for new trial complain
that the court erred in permitting Mr. and
Mrs. McPhail to testify regarding state-
ments made by the father that the papers
were delivered to the defendant for safe-
keeping, and not as an outright gift to him,
and in charging that the evidence was ad-
mitted for a limited purpose.

“The delivery of personal property by a
parent into the exclusive possession of a
child living separate from the parent shall
create a presumption of a gift to the child.
This presumption may be rebutted by evi-
dence of an actual contract of lending, or
by circumstances from which such a con-
tract may be inferred.” Code, § 48-105.

[1] “Declarations of the donor made
after the time of the alleged gift, and while
the donee was in possession, are not ad-
missible to disprove the gift, although
other declarations admitting the gift are
in evidence for the donee.” Porter v. Allen,
54 Ga. 623(6); Blalock v. Miland, 87 Ga.
573(5), 13 S.E, 551; Ogden v. Dodge
County, 97 Ga. 461, 464, 25 S.E. 321; Deal
v. Mosley, 147 Ga. 523(2), 94 S.E. 1013;
Higgins v. Trentham, 186 Ga. 264(1), 197
S.E. 862; Miller v. Everett, 192 Ga. 26(4),
14 S.E.2d 449; Gullatt v. Thompson, 57
Ga.App. 669(3), 196 S.E. 107. Counsel for
the defendant insist that the evidence ob-
jected to constituted self-serving declara-
tions by the deceased, and was hearsay and
Prejudicial.

[2] The testimony objected to was ad-
Mitted for the purpose of throwing light

on the circumstances surrounding the de-
livery of the papers. Under the above au-
thorities the evidence was not admissible
for any purpose, and the court erred in ad-
mitting the testimony objected to, and in
instructing the jury that it was admitted
for a limited purpose.

(3] 2. Special ground 3 complains that
the court erred in refusing to direct a ver-
dict for the defendant. The evidence
showing that there was an issue of fact as
to whether the intestate intended to make
a gift, the court did not err in such refusal.

3. As a new trial will be granted, no
ruling is made on the sufficiency of the
evidence to support the verdict.

{4] 4 The court did not err, as com-
plained of in the cross-bill of exceptions,
in excluding evidence of the petitioner to
the effect that her husband stated to her
shortly before taking the papers to his son,
that he was delivering them for safekeep-
ing and not as a gift.

Judgment reversed on the main bill of
exceptions; cross-bill of exceptions af-
firmed.

All the Justices concur.

fire

207 Ga. 326
KERSEY v. STATE. &
No. 17227.

Supreme Court of Georgia.
Oct. 10, 1950.

George Kersey was convicted in the Supe-
rior Court, Chatham County, M. Price, J.,
of murder and defendant brought error. The
Supreme Court, Hawkins, J., held that the
evidence sustained the conviction.

Affirmed.

!. Criminal law €=889

In murder prosecution, where jury re-
turned a verdict “We, the jury, find the
defendant of first degree murder”, trial
court did not err in directing jury to

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494 Ga.

retire and reconsider their verdict, since
trial court had authority to require an in-
complete verdict to be made complete be-
fore receiving it.

2. Criminal law €=824(1)

In murder prosecution, in absence of
an appropriate request to do so, trial court
did not err in failing to charge jury as to
rules of law as to principals in first and
second degree. Code, § 26-501.

3. Criminal law C828

In murder prosecution, in absence of
a timely written request, trial court did not
err in failing to charge jury upon subject
of confessions or incriminatory admissions,

4. Criminal law €=826, 829(12)

In murder prosecution, where trial
court fully instructed jury as to presump-
tion of innocence, burden resting upon state
to establish defendant’s guilt beyond a rea-
sonable doubt and as to duty of jury to
acquit defendant unless satisfied of his
guilt beyond a reasonable doubt, in absence
of a timely request therefor, failure to in-
struct jury in language of statute as to
sufficiency of evidence to sustain a convic-
tion, was not error. Code, § 38-110.

5. Criminal law €=822(11)

In murder prosecution, a part of an
instruction charging that law presumed
every homicide to be malicious, was not
error, in view of fact that excerpt was tak-
en out of context, and charges immediately
preceding and following charge in question
were proper.

6. Homicide C250
Evidence sustained conviction for mur-
der.

—_——_>—__—

James N. Rahal, Savannah, for plaintiff
in error.

Andrew J. Ryan, Jr., Sol. Gen., Sylvan
A. Garfunkel, Asst. Sol. Gen., and Her-
mann W. Coolidge, Asst. Sol. Gen., all of
Savannah, Eugene Cook, Atty. Gen., Rob-
ert E. Andrews, Asst. Atty. Gen., for de-
fendant in error,

61 SOUTH EASTERN REPORTER, 2d SERIES

Syllabus Opinion by the Court.
HAWKINS, Justice.

This is a companion case to that of
Lynch v. State, Ga.Sup., 61 S.E.2d 495.
The evidence and the defendant’s statement
disclose an agreement between the defend-
ant, George Kersey, and one Thomas Lynch
to rob someone in order to replenish their
diminishing funds; and, as stated in the
brief of counsel for the plaintiff in error,
the record discloses that the defendant
Kersey, along with Lynch, rode out on the
Ogeechee Road, near Dead Man’s Curve,
in Chatham County, Georgia, and stopped
a truck coming towards Savannah, and
told the truck driver (the deceased) to get
out of the truck and. come to the rear of
the truck because it was a hold-up. The
driver got out of his truck and came al-
most to the rear of his truck, when Thomas
Lynch, the other defendant, came towards
this defendant and the driver of the truck
with a shotgun, and as soon as the truck
driver saw the gun he attempted to get
back in his truck and was shot by Thomas
Lynch. The defendant, George Kersey,
on his separate trial, was convicted of mur-
der without a recommendation of mercy,
and to the judgment overruling his motion
for new trial as amended, he excepted
Held:

[1] 1. Conceding, but not deciding,
that the first verdict presented by the jury
that “We, the jury, find the defendant of
first degree murder,” was null and void, as
contended by the movant in the fourth
ground of his motion for a new trial, the
trial court did not err in directing the jury
to retire and reconsider their verdict, for
“The court may require an incomplete ver
dict to be made complete before receiving
it.” Cook v. State, 26 Ga. 593(5). See
also Turbaville v. State, 58 Ga. 545(3);
Mangham v. State, 87 Ga. 549, 13 S.E. 558;
Smith v. Pilcher, 130 Ga. 350, 60 S.E. 100.
Groves v. State, 162 Ga. 161, 132 S.F. 769;
Weaver v. State, 50 Ga.App. 178(3), 17/
S.E. 349; Campbell v. State, 50 Ga.App
171, 177 S.E. 517.

[2] 2. The trial court, having fully
instructed the jury as to the law of con

i
‘
i

LYNCH v. STATE Ga. = 495
Cite as G1 S.E.2d 405

spiracy, did not err in failing to charge the
jury the rules of law as to principals in
the first and second degree. in the language
of the Code, § 26-501, in the absence of
an appropriate request so to do. See Pow-
cell v. State, 179 Ga, 401(8), 176 S.E. 29.
The fifth ground of the motion for a new
trial, complaining of such failure, is with-
out merit,

{3} 3. The sixth ground, complaining
because the trial court failed to instruct
the jury as to the law of admissions and
confessions, is likewise without merit for,
in the absence of a timely written request,
it is not error for the trial court to fail
to charge the jury upon the subject of
confessions or incriminatory admissions.
Phillips v. State, 206 Ga. 418(2), 57 S.E.2d
555,

(4] 4. The trial court having fully in-
structed the jury as to the presumption of
innocence thrown around the defendant by
the law, as to the burden resting on the
State to establish the defendant’s guilt be-
yond a reasonable doubt, and as to the duty
of the jury to acquit the defendant un-
less satisfied of his guilt beyond a reason-
able doubt, failure to instruct the jury in
the language of the Code, § 38-110, in the
absence of a timely request therefor, as
complained of in the seventh ground of the
motion for a new trial, was not erroneous.
Skinner v. State, 98 Ga. 127(2), 26 S.E.
475; Fort v. State, 31 Ga.App. 525, 121
S.E. 128; Bell v. State, 148 Ga. 352, 96
S.E. 861; Paramore v. State, 161 Ga. 166
(6), 129 S.E. 772; Nash v. State, 126 Ga.
S49, 55 S.E. 405; Albritton v. State, 175
Ga. 891(2), 166 S.E. 643.

(5] 5. The eighth ground of the mo-
tion for a new trial, complaining that the
court erroneously expressed an opinion in
stating to the jury in its charge that the
law presumes every homicide to be malici-
ous, is without merit. The very short ex-
cerpt from the charge here complained of
is taken out of its context and, when con-
sidered in connection with what immediate-
ly precedes and follows it, is not subject
to the exception taken. The charge as
given is in almost the identical language

held to be proper in Mattox v. State, 181
Ga. 361(4), 182 S.E. 11, and Thompson v.
State, 191 Ga. 222(7), 11 S.E.2d 795.

[6] 6. The ninth ground of the mo-
tion for a new trial is merely an amplifica-
tion of the first, second, and third (the gen-
eral) grounds, There was ample evidence
to support the verdict, which has the ap-
proval of the trial judge, and the judgment
refusing a new trial on these grounds will
not be disturbed. Mays v. State, 207 Ga.
143, 60 S.E.2d 769; Lynch v. State, supra.

Judgment affirmed.

All the Justices concur,

© & KEY NUMBER SYSTEM

4~ans

207 Ga. 325
LYNCH v. STATE.
No. 17226.

Supreme Court of Georgia.
Oct. 10, 1950.

Thomas Lynch was convicted in the Supe-
rior Court, Chatham County, M. Price, J., of
murder, and to review a judgment overrul-
ing his motion for new trial he brought er-
ror. The Supreme Court, Hawkins, J., held
that the trial court did not err in refusing to
give in charge to jury, principles of law
relative to homicide by accident and invol-
untary manslaughter and that there was
sufficient evidence to authorize conviction.

Judgment affirmed.

1. Homicide €>18(5)

Where homicide occurred by dis-
charge of gun held by accused, used in an
attempt to rob deceased, even if discharge
of gun was unintentional, offense was
murder.

2. Homicide €=304, 309(3)

Where homicide occurred by dis-
charge of gun held by accused and used in
attempt to rob deceased, refusal to give in
charge to jury principles of law relative to
homicide by accident and involuntary man-
slaughter was not error.

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494 Ga.

retire and reconsider their verdict, since
trial court had authority to require an in-
complete verdict to be made complete be-
fore receiving it.

2. Criminal law C=824(1)

In murder prosecution, in absence of
an appropriate request to do so, trial court
did not err in failing to charge jury as to
rules of law as to principals in first and
second degree. Code, § 26-501.

3. Criminal law 828

In murder prosecution, in absence of
a timely written request, trial court did not
err in failing to charge jury upon subject
of confessions or incriminatory admissions.

4. Criminal law €=826, 829(12)

In murder prosecution, where trial
court fully instructed jury as to presump-
tion of innocence, burden resting upon state
to establish defendant’s guilt beyond a rea-
sonable doubt and as to duty of jury to
acquit defendant unless satisfied of his
guilt beyond a reasonable doubt, in absence
of a timely request therefor, failure to in-
struct jury in language of statute as to
sufficiency of evidence to sustain a convic-
tion, was not error. Code, § 38-110.

5. Criminal law €=822(11)

In murder prosecution, a part of an
instruction charging that law presumed
every homicide to be malicious, was not
error, in view of fact that excerpt was tak-
en out of context, and charges immediately
preceding and following charge in question
were proper.

6. Homicide C250
Evidence sustained conviction for mur-
der.
————_>——_——.

James N. Rahal, Savannah, for plaintiff
in error.

Andrew J. Ryan, Jr., Sol. Gen., Sylvan
A. Garfunkel, Asst. Sol. Gen., and Her-
mann W. Coolidge, Asst. Sol. Gen., all of
Savannah, Eugene Cook, Atty. Gen., Rob-
ert E. Andrews, Asst. Atty. Gen., for de-
fendant in error.

61 SOUTH EASTERN REPORTER, 2d SERIES

Syllabus Opinion by the Court.

HAWKINS, Justice.

This is a companion case to that of
Lynch v. State, Ga.Sup., 61 S.E.2d 495,
The evidence and the defendant’s statement
disclose an agreement between the defend-
ant, George Kersey, and one Thomas Lynch
to rob someone in order to replenish their
diminishing funds; and, as stated in the
brief of counsel for the plaintiff in error,
the record discloses that the defendant
Kersey, along with Lynch, rode out on the
Ogeechee Road, near Dead Man’s Curve,
in Chatham County, Georgia, and stopped
a truck coming towards Savannah, and
told the truck driver (the deceased) to get
out of the truck and come to the rear of
the truck because it was a hold-up. The
driver got out of his truck and came al-
most to the rear of his truck, when Thomas
Lynch, the other defendant, came towards
this defendant and the driver of the truck
with a shotgun, and as soon as the truck
driver saw the gun he attempted to get
back in his truck and was shot by Thomas
Lynch. The defendant, George Kersey,
on his separate trial, was convicted of mur-
der without a recommendation of mercy,
and to the judgment overruling his motion
for new trial as amended, he excepted.
Held:

[1] 1. Conceding, but not deciding,
that the first verdict presented by the jury
that “We, the jury, find the defendant of
first degree murder,” was null and void, as
contended by the movant in the fourth
ground of his motion for a new trial, the
trial court did not err in directing the jury
to retire and reconsider their verdict, for
“The court may require an incomplete ver-
dict to be made complete before receiving
it.” Cook vy. State, 26 Ga. 593(5). See
also Turbaville v. State, 58 Ga. 545(3);
Mangham v. State, 87 Ga. 549, 13 S.E. 558;
Smith v. Pilcher, 130 Ga. 350, 60 S.F. 1000,
Groves v. State, 162 Ga. 161, 132 S.E. 769:
Weaver v. State, 50 Ga.App. 178(3), 177
S.E. 349; Campbell v. State, 50 Ga.App.
171, 177 S.E. 517.

(2] 2. The trial court, having fully
instructed the jury as to the law of con-

i
:
i
i

LYNCH v. STATE Ga. 495

v

Cite as 61 S.K.2d 495

spiracy, did not err in failing to charge the
jury the rules of law as to principals in
the first and second degree in the language
of the Code, § 26-501, in the absence of
an appropriate request so to do. See Pow-
ell v. State, 179 Ga, 401(8), 176 S.E. 29.
The fifth ground of the motion for a new
trial, complaining of such failure, is with-
out merit.

(3] 3. The sixth ground, complaining
because the trial court failed to instruct
the jury as to the law of admissions and
confessions, is likewise without merit for,
in the absence of a timely written request,
it is not error for the trial court to fail
to charge the jury upon the subject of
confessions or incriminatory admissions.
Phillips v. Qtate, 206 Ga. 418(2), 57 S.E.2d
555.

[4] 4. The trial court having fully in-
structed the jury as to the presumption of
innocence thrown around the defendant by
the law, as to the burden resting on the
State to establish the defendant’s guilt be-
yond a reasonable doubt, and as to the duty
of the jury to acquit the defendant un-
less satisfied of his guilt beyond a reason-
able doubt, failure to instruct the jury in
the language of the Code, § 38-110, in the
absence of a timely request therefor, as
complained of in the seventh ground of the
motion for a new trial, was not erroneous,
Skinner v. State, 98 Ga. 127(2), 26 S.E.
475; Fort v. State, 31 Ga.App. 525, 121
S.E. 128; Bell v. State, 148 Ga. 352, 96
S.E. 861; Paramore vy. State, 161 Ga. 166
(6), 129 S.E. 772; Nash v. State, 126 Ga.
549, 55 S.E. 405; Albritton v. State, 175
Ga. 891(2), 166 S.E. 643.

[5] 5. The eighth ground of the mo-
tion for a new trial, complaining that the
court erroneously expressed an opinion in
Stating to the jury in its charge that the
law presumes every homicide to be malici-
ous, is without merit. The very short ex-
cerpt from the charge here complained of
's taken out of its context and, when con-
sidered in connection with what immediate-
ly precedes and follows it, is not subject
to the exception taken, The charge as
f!ven is in almost the identical language

held to be proper in Mattox v. State, 181
Ga. 361(4), 182 S.E. 11, and Thompson vy.
State, 191 Ga. 222(7), 11 S.E.2d 795.

[6] 6. The ninth ground of the mo-
tion for a new trial is merely an amplifica-
tion of the first, second, and third (the gen-
eral) grounds. There was ample evidence
to support the verdict, which has the ap-
proval of the trial judge, and the judgment
refusing a new trial on these grounds will
not be disturbed. Mays v. State, 207 Ga.
143, 60 S.E.2d 769; Lynch v. State, supra.

Judgment affirmed.

All the Justices concur.

")
© & Key NUMBER SYSTEM
Tt

207 Ga. 825
LYNCH v. STATE.
No. 17226.

Supreme Court of Georgia.
Oct. 10, 1950.

Thomas Lynch was convicted in the Supe-
rior Court, Chatham County, M. Price, J., of
murder, and to review a judgment overrul-
ing his motion for new trial he brought er-
ror. The Supreme Court, Hawkins, J., held
that the trial court did not err in refusing to
give in charge to jury, principles of law
relative to homicide by accident and invol-
untary manslaughter and that there was
sufficient evidence to authorize conviction.

Judgment affirmed,

1. Homicide €>18(5)

Where homicide occurred by dis-
charge of gun held by accused, used in an
attempt to rob deceased, even if discharge
of gun was unintentional, offense was
murder.

2. Homicide €=304, 309(3)

Where homicide occurred by dis-
charge of gun held by accused and used in
attempt to rob deceased, refusal to give in
charge to jury principles of law relative to
homicide by accident and involuntary man-
slaughter was not error.

Wwt tw ew ee wee

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wea deen ates ee ee

226 Ga.

clusion of confessions of principal in first
degree adduced to show his guilt.

8. Criminal law €=786(2)

Where defendant’s counsel stated to
court that defendant desired to make a
statement not under oath to jury and re-
quested court to instruct defendant in his
rights, and court thereupon told defendant
that he could make a statement to court or
any member of jury as to what defendant
wanted jury to know about case and that it
was incumbent upon defendant to tell them,
court did not err for the use of the word
“incumbent”. Code, § 38-415.

9. Criminal law ©=867

Where defendant, as a princinal in
second degree, was jointly indicted for
murder with another as a principal in first
degree, that solicitor general read to jury
an alleged confession of principal in first
degree which contained certain inflamma-
tory statements was not ground for a mis-
trial.

10. Courts C=97(5)

The Supreme Court of Georgia fol-
lows, as binding precedent, adjudications of
Supreme Court of United States with ref-
erence to construction of the Federal Con-

stitution or a statute enacted in pursuance

thereof.

11. Constitutional law C=221

Equal protection of the law, with re-
spect to a negro defendant, docs not require
that there shall be a mixed jury, and it is
not necessary that negroes actually serve
on jury that tries negro defendant, pro-
vided there is no systematic and arbitrary
exclusion of negroes from jury list solely
because of their race or color. U.S.C.A.
Const. Amend. 14.

12. Jury C63

The constitutional and statutory de-
mand for a jury list composed of upright
and intelligent men does not require that
every person possessing qualifications for
jury service shall be included in jury list.
Code, § 59-106.

(3. Jury C65

The number of names to be placed in
jury box is a matter within judgment of
members of jury commissioners. Code, §
59-106.

14. Constitutional law C=221
That list of names furnished jury com-
missioners from tax digest listed blacks and

3 SOUTH EASTERN REPORTER, 2d SERIES

whites separately was immaterial in deter-
mining whether negro defendant was de-
nied equal protection by reason of system-
atic elimination of negroes from jury serv-
ice, in view of statute requiring that tax
returns of negroes and whites be made out
separately on tax digest for purpose of
aiding in identifying taxpayers so that tax
officials might better locate any tax de-
faulter. Code, §§ 59-106, 92-6307; U.S.
C.A.Const. Amend. 14.

15. Constitutional law €=221

A showing that negroes composed 42
per centum of population of county but
that only 44 of the 2,493 names in jury box,
or 18 per centum, were negroes, in ab-
sence of showing as to how many of the
negroes qualified for jury duty fell within
one of the 17 occupations exempt from jury
duty or percentage of upright and intelli-
gent white men whose names were not in
jury box, did not establish a denial of equal
protection to a negro defendant on the
ground that there was a systematic exclu-
sion of negroes from jury. Code, §§ 59-
106, 59-112; U.S.C.A.Const. Amend. 14.

16. Criminal law €=304(2)

That there is more illiteracy among
negroes than among whites in Bibb county
is common knowledge.

17. Criminal law ©=304(2)

Court refused to declare, as being
against common knowledge, that among the
negroes of Georgia there is as large a per-
centage of those who possess qualifications
for jury service laid down by Code, as
among the white population. Code, § 59-
106.

18. Constitutional law C221

That no negro juror-had ever served
on jury during incumbency of solicitor gen-
eral, even though some had been drawn,
because all those drawn had been excused
by the exercise of peremptory challenges by
solicitor general did not establish denial of
equal protection of law to a negro defend-
ant accused of murder. Code, § 59-805; U.
S.C.A.Const. Amend. 14.

19. Jury C135

A “peremptory challenge” is an arbi-
trary and capricious species of challenge
to a certain number of jurors without
showing any cause. Code, § 59-805.

See Words and Phrases, Vermanent

Edition, for all other definitions of

“Peremptory Challenge”.

WATKINS y. STATE. Ga. 327
Cite as 33 S.E.2d 325 : as

20. Constitutional law C221

An attorney in a cause, in exercising
his right to peremptory challenges, may
strike from panel a number of jurors for
any reason, or for no reason, without re-
gard to the equal protection clause of the
Federal Constitution. Code, § 59-805; U.
S.C.A.Const. Amend. 14,

21. Jury C=!

_ Jury service is not a right or a privi-
lege, but is a burden which state summons
certain of its citizens to bear. Code, § 59-
106.

22. Jury ©=33(1), 38, 42

A jury is not required to be truly rep-
resentative of community, but must be com-
posed of a limited number of those who are

upright and intelligent. Code, § 59-106.

23. Homicide 250

Evidence authorized conviction of
murder.

Syllabus by the Court.

1. That ground of the motion for new
trial which complains that the court erred
in overruling the challenge to the array of
jurors, is, for the reasons stated in division
6 of this opinion, ruled adversely to the con-
tention of the movant.

2. <A confession otherwise admissible
is not rendered inadmissible because: made
to an officer immediatcly after his saying to
the accused that it was always best to tell
the truth.

3. On the trial of a person shown to
be a principal in the second degree, evi-
dence showing the guilt of the principal in
the first degree, including a confession
made by the latter, is admissible for the
purpose of showing the guilt of the prin-
cipal.

(a) Evidence that is relevant can not
be kept from the jury by a waiver of proof
on that point, or by an admission of the
fact.

4. Defendant’s counsel having ad-
dressed the trial judge, stating that the ac-
cused desired to make a statement to the
jury and requesting that the court instruct
him in his rights, it affords no sufficient
cause for the grant of a new trial that the
court, in responding to the request so made,
informed the prisoner that he could make
a statement to the court or to any mem-
ber of the jury, and that it was “incumbent”
upon the accused to tell them.

5. A new trial will not be granted
because of the refusal of the court to de-
clare a mistrial, the motion therefor being
based on the fact that the solicitor-general
over objection was reading to the jury an
alleged confession of the alleged principal
in the first degree, which contained cer-
tain inflammatory statements. The person
on trial was jointly indicted and the proof
tended to show him a principal in the sec-
ond degree.

6. A challenge to the array of jurors
was made by a negro about to be tried on
a criminal charge, the ground of challenge
being, that he was being deprived of sub-
stantial rights under the fourteenth amend-
ment to the constitution of the United
States and the civil liberties act, for that no
member of his race would be put upon him
as a juror, there being the names of only 44
negroes out of a total of 2493 names in the
jury box, although there are out of a total
population in. the county of 83,783, negroes
to the number of 35,536, a substantial por-
tion of whom are literate, and are upright
and intelligent men well qualified to serve
as jurors, there being a manifest intention
on the part of the otncials of the county to
prevent members of the negro race from
serving on juries.

Held: The trial judge, acting as trior,
was authorized to find under the evidence
that there had been no deliberate and sys-
tematic action by the officials to keep the
names of negroes out of the jury box or to
keep them from serving on juries, and no
denial of any right of the accused under
said amendment or said civil liberties act.

7. The evidence fully authorized the
verdict.

pee

Error from Superior Court, Bibb Coun-
ty; Chester A. Byars, Judge.

David Watkins was convicted of mur-
der, and he brings error.

Affirmed.

The plaintiff in error, David Watkins,
was jointly indicted with Nathaniel Lamar
for the murder of Mrs, Connell. A chal-
lenge to the array. of jurors was filed as
follows:

“This defendant is a negro and has becn
indicted and is going on trial for the mur-
der of a white woman. This defendant
respectfully says that by virtue of the con-
tinued, deliberate, and systematic activity
of the officials of Bibb County, Georgia,


ee

268 Ga.

Chas. H. Garrett, Sol. Gen., of Macon,
T. Grady Head, Atty.Gen., and Victor Da-
vidson, Asst.Atty.Gen., for defendant in
error.

WYATT, Justice.

The plaintiff in error did not enter a
formal plea of not guilty, but by direction
of the court the plea was entered by the
solicitor general. No question is raised
as to the correctness of this procedure. It
will be noted that counsel for the defend-
ant in the court below said, “At this point
the defendant offers to make a statement
in which he will make a full and plenary
confession of the guilt of the crime
charged,” and thereupon objected to the
State offering any testimony as to the de-
fendant’s guilt. Thereafter he entered in-
to a stipulation containing all the facts nec-
essary to constitute the crime charged.
The stipulation, among other things, con-
tained the language, “We ask for the privi-
lege of allowing the defendant to-make a
statement about the matter, which will be
a full and plenary confession of guilt “g
and the further language, “it being the de-
sire of counsel to submit this case to the
jury purely on the question of punishment.”
Thereafter the defendant in his statement
to the jury did make a full and plenary con-
fession of his guilt. He ended his state-
ment with this language, “I am begging
you twelve good white men to let me live
and pay for what I did with a sentence
for life in the penitentiary.”

The punishment for murder is death
unless the jury recommends mercy, in
which case the punishment is confinement
in the penitentiary for life. The Code, §
26-1005.

“The jury may, without any reason ex-
cept their own wish, spare the life of one
who is convicted of a capital felony.” Bar-
ficld v. State, 179 Ga. 293, 297, 175 S.E.
582, 584. See also Hill v. State, 72 Ga.
131; Thomas v. State, 89 Ga. 479, 15 S.E.
537; Taylor v. State, 105 Ga. 746, 781,
31 S.E. 764; Hackett v. State, 108 Ga.
40 (2), 33 S.E. 842; McCrary v. State, 137
Ga. 784(4), 74 S.E. 536.

We hold that under all of the circum-
stances of the instant case, the only ques-
tion submitted to the jury by the defendant
in the court below was whether his punish-
ment should be death or life imprisonment.

33 SOUTH EASTERN REPORTER, 2d SERIES

He admitted the crime and asked for noth-
ing better than life imprisonment. He
stipulated the facts in order to prevent the
personal appearance of the witnesses
against him, and therein expressed his de-
sire to go to the jury on the question of
punishment only. He was, therefore, en-
titled to have the question he made, to wit,
death or life imprisonment, submitted to
the jury. No exception was taken to the
charge on murder or malice, nor is it con-
tended that the law on the question of
punishment was not correctly given.

This court in Manchester v. State, 171
Ga. 121 (2), 155 S.E. 11, 12, said: “Where
the solicitor general declines the offer of
one indicted for murder to plead guilty on
the condition that the accused shall re-
ceive a recommendation of mercy and a
life sentence, it is incumbent upon the
state, in the absence of a confession con-
taining a plenary admission of guilt, to
prove all the essential facts in support of
the allegations of the indictment. It was
therefore not error, upon announcement
of counsel that the defendant ‘stands mute
on arraignment, and atthe proper time he
will make his confession and ask the jury
to recommend him to the mercy of the
court,’ for the judge to require the state
to prove every essential allegation in the
indictment and to instruct the jury on the
issue of the defendant’s guilt, the law of
murder, presumption of innocence, malice,
deliberation, and the defendant’s  state-
ment.”

In the instant case there was “a confes-
sion containing a plenary admission of
guilt.”

It follows that there is no merit in any
of the contentions made by the plaintiff in
error, and there was no error in overruling
his motion for a new trial.

Judgment affirmed.

All the Justices concur, ATKINSON, J.,
specially.

ATKINSON, Justice (concurring speci-
ally).

Inasmuch as there is no evidence in the
record which tends to establish any justi-
fication for the homicide, and nothing ap-
pears therein to indicate that the accused
was not competent to commit a crime, I
concur in the judgment.

MULLIGAN vy. WINGARD Ga. 269
Cite as 33 S.E.2d 269

MULLIGAN et al. v. WINGARD et al.
No. 14992.

Supreme Court of Georgia,
Feb. 7, 1945.

Rehearing Denied March 8, 195.

{. Appeal and error €=23

The Supreme Court must consider
questions of its jurisdiction, if doubtful,
even on its own motion.

2. Courts €=217(8, 2!)

A statutory proceeding to annul an or-
der of adoption is not an “equity case” and
does not involve an “extraordinary rem-
edy” or other matter placing jurisdiction
in the Supreme Court on review, and hence
the case must be transferred to the Court
of Appeals. Ga.Code Ann. § 74-416;
Const. art. 6, § 2, par. 5.

See Words and Phrases, Permanent
Edition, for all other definitions of
“Equity Case” and “Extraordinary Reme-
dy”.

ge
Error from Superior Court, Richmond
County; A. L. Franklin, Judge.

Petition by Samuel H. Mulligan and oth-
ers to set aside an order of adoption and
for other relief, to which the adopted
child, through her guardian, Horace A.
Wingard, filed an answer. To review a
judgment denying the relief sought, peti-
tioners bring error.

Case transferred to the Court of Ap-
peals, :

For opinion of Court of Appeals, see 34
S.E.2d 305.

C. Wesley Killebrew and W. K. Miller,
both of Augusta, for plaintiffs in error.

Hammond, Kennedy & Yow, of Augusta,
for defendants in error.

Syllabus Opinion by the Court
BELL, Chief Justice.

[1] 1. It is the duty of this court to
consider questions of its jurisdiction, even
upon its own motion, in all cases in which
there may be any doubt as to the existence
of such jurisdiction. Dobbs v. Federal De-
a Insurance Corp., 187 Ga. 569, 1 S.E.2d

72.

2. Section 13 of the act of March 27,
1941, amending and revising the laws as to
adoption of children, provides as follows:

If at any time after the adoption the

adopting parents fail faithfully to perform
their obligations to the child, or if within
seven years after his final adoption a child
develops feeble-mindedness, epilepsy, in-
sanity or venereal diseases as a result of
conditions existing prior to his adoption
and of which the adopting parents had no
knowledge or information, or for other
good cause shown unto the court, a peti-
tion setting forth such facts may be filed
by any person or public or private agency,
showing good cause therefor, in the court
which entered the final decree of adoption,
and if such conditions are provided
[proved?] to the satisfaction of the court,
the adoption may be declared null and void.
The court shall thereupon make proper
disposition of the child by commitment to
an appropriate State institution as provided
by the laws of the State of Georgia, or
provide for the disposition of the child as
may be to his best interest and to that of
the State.” Ga.L.1941, p. 300; Ga.Code
Ann., 1943 Cumulative Supp. § 74-416.

[2] 3. In the instant case, a petition
was filed under the foregoing section by
relatives of an adoptive parent after his
death, praying that the order of adoption
be set aside and annulled, and adjudged
null and void for alleged defects in the
adoption proceedings, and praying also for
a decree that the child was not legally
adopted, that her name was not changed,
and that she is not the heir at law of such
deceased, and, further, that the court make
such disposition of the said child as is con-
templated by the foregoing section. The
child through its guardian filed an answer,
in which she denied the alleged defects in
the adoption proceedings, made affirmative
allegations as to some additional facts, and
prayed to be “hence discharged.” The trial
resulted in a judgment denying the relief
sought, the petitioner excepted, and the
writ of error was returned to the Supreme
Court. Held, that the case is a statutory
proceeding to set aside a judgment, and is
not an equity case. Nor does it involve an
extraordinary remedy or other matter plac-
ing jurisdiction. in the Supreme Court.
Const. art. 6, § 2, par. 5; Code, § 2-3005;
Burkhalter v. Virginia-Carolina Chemical
Co., 170 Ga. 237, 152 S.E. 98; Spence v.
Miller, 176 Ga. 96, 167 S.E. 188; Metho-
dist Episcopal Church, South, Inc., v. Dec-
ell, 187 Ga. 526, 1 S.E.2d 432; Lofton v.
Carroll County Board of Education, 195
Ga. 689, 25 S.E.2d 293.

pees wee tomes

had

Wayryasouw2s 2


talib:

Wei dhs Lama

ae

eceanetetinncts

294 Ga,

[5] 4. The ground of caveat dealing
with monomania is as follows: “The tes-
tator at the time of the execution of the
will, and up to the time of his death, was
under the influence of an insane delusion
in relation to the caveatrix, his only
daughter, that his daughter hated him and
was making scandalous and uncomplimen-
tary remarks against him and was plotting
against his life, and she and her son, Da-
vis Aultman, were threaténing his life and
wanted to kill him; that said insane de-
lusion had no foundation in fact, but tes-
tator was wholly incapable of being rea-
soned out of said delusion. Under said
delusion he was most unnatural, harsh,
and offensive towards caveatrix, his only
child; * * * he drove her from his
home and refused to speak to her or have
anything to do with her, and ¥. Mee
on several occasions tried to bring about
financial embarrassment and ruin to Ccave-
atrix, and without cause or reason vio-
lently abused her and threatened to strike
her.” We are satisfied that the allegations
of this ground of the caveat were good as
against the demurrers, general and _ spe-
cial. Compare Dibble v. Currier, 142 Ga.
855, 83:S.E.‘ 949, Ann.Cas.1916C, 1; Hall
v. Burpee, 176 Ga. 270, 168 S.E. 39,

[6] 5. The first amendment to the ca-
veat begins with the statement that cave-
atrix “amends her caveat so that the same
when amended shall read as follows.” The
preceding statement of facts contains this
amendment, and also so much of the pro-
pounders’ demurrer as attacked a portion
of paragraph one thereof. That portion
of said amendment which charges that said
attitude, disposition, and feeling by her
father towards caveatrix was caused by
representations, devices, or conduct on the
part of Dannie Odom Davis, his wife, the
exact words or conduct used by said Dan-
nie Odom Davis being unknown to the
caveatrix,” etc.; and that “said will was
executed as the result of the fraudulent
practices of his wife, Dannie Odom Da-
vis, and she thereby accomplished her
fraudulent scheme and purpose and caused
caveatrix to be disinherited,” etc., were de-
murred to on the ground that conclusions
only were stated, with no accompanying
allegations of fact. The contention of the
demurrants as to these grounds of the ca-
veat must be sustained. They should have
been stricken. Pennington v. Perry, 156
Ga. 103, 118 S.E. 710; Jones v. Robinson,

33 SOUTH EASTERN REPORTER, 2d SERIES

172 Ga. 746, 158 S.E. 752; Peavey v.
Crawford, 182 Ga. 782, 187 S.E. 13, 107
A.L.R. 828.

[7] But it is argued that the error is
harmless, because the judge did not give in
charge to the jury any law applicable to
those particular grounds, while charging
them fully as to the law governing the
other grounds, and that he thus practically
withdrew them from the consideration of
the jury. The argument is not convincing.
They were not stricken, nor, so far as this
record shows, were they formally aban-
doned, nor were the jury instructed that
they were not to consider these grounds.
They remained as part of the pleadings and
were sent out with the jury. In one part
of the judge’s charge, in referring to the
fact that the caveatrix had assumed the
burden of proof and admitted a prima fa-
cie case, he said: “Prima facie means
without anything additional, and she took
over what the law says is the burden of
proof, that is, to establish by preponder-
ance of the evidence one or more of the
grounds of the case.” .To establish one or
more of the grounds of the caveatrix’ case
could mean nothing more nor less than to
establish one or more of the grounds of
her caveat as amended.

In another part, the judge instructed the
jury as follows: “There is the original
amendment, marked amendment No. 1,
which includes the original petition filed
in the court of ordinary, then you will find
other amendments made to this paper.
There you will have out with you—I be-
lieve I have in this collection of papers
here the original petition filed in the court
of ordinary—all of these papers will be
out with you and you have a right to ex-
amine them if you sce fit to do so.” Thus,
instead of eliminating from the considera-
tion of the jury these four grounds, he in-
directly called their attention to them. The
error, therefore, was not cured or ren-
dered harmless.

[8,9] 6. During the progress of the
trial, the propounders tendered their plea
of estoppel against said caveatrix, and the
same was allowed.

Said plea of estoppel alleged that, by
and on account of divers business transac-
tions between the caveatrix and the testa-
tor, certain gifts and other considerations
received by the caveatrix, to her advantage
and benefit, from the testator, at and dur-
ing a time when the caveatrix claimed, un-

WATKIN

Cite as 33

S v. STATE : $
3 S.E.2d 325 Ga, 325

der her caveat, that the testator was la-

boring under a monomania toward, and as
to, the caveatrix; and the propounders by

said plea of estoppel claimed that the ca-
veatrix was estopped by her said acts from

asserting said alleged monomania as a

ground of caveat against the will of the
testator, the caveatrix having dealt with
the testator as a sane person and to her
advantage and gain during the alleged ex-
istence of such alleged monomania. To
this plea of estoppel, the caveatrix filed her
demurrer on the ground that such plea of
estoppel did not constitute a defense as a
matter of law, the demurrer was sustained,
and the plea of estoppel was disallowed by
the court. ;
There was no error in this ruling. While
the averments set up in this plea afford
facts which, if proved, might be used as
admissions against the caveatrix, or to call
for explanation on her part, they are not
sufficient to operate as an estoppel. For
one thing, the test of mental capacity is
usually, not what was the condition of the
mind over a series of years, but what was
it at the moment the testamentary paper
was executed. Hillyer v. Ellis, 171 Ga.
300, 155 S.E. 180; Hill v. Deal, 185 Ga.
42, 193 S.E. 858; Scott v. Gibson, 194 Ga.
503, 504, 22 S.E.2d 51. There is nothing
necessarily inconsistent in having various
business dealings with a person on a num-
ber of occasions and at different times, and
in caveating an application to probate the
will on the ground that at the moment the
will was executed he was laboring under a
delusion as to the conduct of the heir
which affected the disposition that he un-
dertook to make of his property. A per-
son may be afflicted with monomania and
laboring under a mistake of fact as to the
conduct of an heir, and still be legally
competent to transact business and to enter
into contracts. There is nothing in the
case of Hutchins vy. Hutchins, 48 App.D.C.
495, relied on by the plaintiffs in error, to
cause us to rule to the contrary, nor does
any prior decision of this court cited by
counsel constrain us to that end.

[10] 7. Whether or not the grounds
of the motion for new trial, or any of
them, were meritorious, will not be decid-
ed, since the error as to rulings on the
pleadings, hereinbefore pointed out ren-
dered the trial before the jury nugatory.

Judgment reversed. .

All the Justices concur.

WATKINS v. STATE. WY
No. 15050.

Supreme Court of Georgia.
Feb. 8, 1945.

Rehearing Denied March 7, 1945.

1. Criminal law <=918(3)

The overruling of defendant’s chal-
lenge to array of jurors on ground that de-
fendant, a negro, was being deprived of his
rights under the Civil Liberties Act in that
no member of his race would serve on

re eres require a new trial. 8 U.S.

2. Criminal law €=520(2)

Officer’s statement to defendant that it
was always best to tell the truth did not
render defendant’s confession, made im-
mediately thereafter and otherwise admis-
sible, incompetent.

3. Homicide €=29

Where two persons are jointly indict-
ed for murder, each may be convicted
upon evidence showing that he was either
the perpetrator of crime or was present
aiding and abetting the other in its com-
mission.

4. Homicide > 142(3)

One indicted for murder as a principal
can be convicted on evidence proving him
guilty as a principal in the second depree if
facts be such that act by which crime Was
perpetrated, on established principles éf
law, will be imputed to him as committed
by himself through agency of another, and
in such case, distinction of degree s im-
material. ;

5. Criminal law C528

In prosecution for murder, where de-
fendant was alleged to be a principal in
second degree, confessions of principal in
first degree were admissible to prove guilt
of principal in first degree, which guilt was
an element in case against defendant.

6. Stipulations ©=14(7)
Relevant evidence cannot be kept from

jury by a waiver of proof on that point
or by an admission of the facts.

7. Criminal law ©=528

That defendant, who was accused of
murder as a principal in the second degree
admitted in open court the guilt of alleged
principal in first degree did not require ex-


pont

328 Ga.

this defendant has been and is being de-
prived of his rights under the 14th amend-
ment of the constitution of the United
States and civil liberties act of the United
States as embodied in section [title] 8,
paragraph [section] 44 of the U...S;-Code
Ann., in that by said activity of said of-
ficials, (a) no member of his race will be
put upon him as a juror; and (b) despite
the fact that of the total population of Bibb
County, Georgia, which was 83,783, in the
year 1940 there were 35,536 negroes, [and]
in the jury box of said county from which
this array was drawn there were a total
of 2493 names, of which only 44 were ne-
groes.

“Defendant says that this is true, de-
spite the fact that a substantial proportion
of the negro population of Bibb County,
Georgia, is literate and are upright and
intelligent men, well qualified to serve as
jurors; and that the action of the officials
of said county manifests their intention by
systematic activity to prevent members of
the negro race serving on juries, all of
which is in violation of the laws of the
United States, and particularly of the 14th
amendment to the constitution of the
United States, and * * * paragraph [sec-
tion] 44 of article 8 of the United States
Code, and which concerted action deprives
this defendant of a substantial right which
is guarantecd to him by the constitution
and laws of Georgia and of the United
States.”

A response was filed thereto as follows:

“1. There has been no continued, de-
liberate, and systematic acts of the of-
ficials of Bibb County, Georgia, to keep
negroes out of the jury box of Bibb Coun-
ty or to keep them from serving on juries
in Bibb County. On the contrary, the jury
commissioners of Bibb County have pro-
ceeded under section 59-106 of the Code of
1933 of this State to make up a list of ju-
rors from the tax books of the county and
to select these jurors, who will necessarily
constitute a small proportion of our popu-
lation and of our taxpayers, on the basis
of uprightness and intelligence. This is
the standard which the law raises and this
is the standard which has been followed by
the jury commissioners of Bibb County.

“2 No official of Bibb County has in-
terfered with this proper and constitutional
process in selecting jurors. The solicitor-
general has announced that he will not try
any case with a mixed jury of negroes and

white people in Bibb superior court, if that:

33 SOUTH EASTERN REPORTER, 2d SERIES

can be avoided. The only thing the solici-
tor-general has done, however, about this
matter is to exercise his peremptory chal-
lenge given him by law under Code, sec-
tion 59-805 of the Code of 1933. He has
not influenced any jury commissioner or
any other public official, and he has not
sought to do so. These peremptory chal-
lenges are subject to exercise by counsel
for [either] party in a criminal case with-
out any excuse or justification whatever;
however, the solicitor-general has, in pub-
lic speeches, to both white and colored
citizens, endeavored to justify his exercise
of the peremptory challenge as to negro
jurors by stating that in his judgment we
have not reached the point in the social af-
fairs of the State of Georgia, which would
make it possible for negro jurors and white
jurors to work together and possibly to eat
together and sleep together and conserve
the ends of justice. It is respectfully sub-
mitted that this is a sound observation of
our social conditions at the present time.

“Wherefore, it is prayed that all issues
of fact under the original challenge to
the array of jurors, and all other challenges
that may be filed to any additional array,
may be submitted to the trial judge for de-
termination, without the intervention of a
jury. The State of Georgia also prays
that all challenges to the array be over-
ruled and denied.”

At the conclusion of said heading, the
trial judge overruled the traverse.

A deputy sheriff, on being called to the
scene of the occurrence, and being in-
formed that Nathaniel Lamar and Da-
vid Watkins knew that Mrs. Connell
kept money, and that it would be well to
look for them, testified that he and an-
other officer found Lamar and Watkins at
a negro juke joint, in a taxicab. With
them was Lamar’s sister, Emma Lattimore.
These officers found on them and in the
taxicab something over one thousand dol-
lars. They went to Lamar’s home and
found enough to make a total of $1938.
Deputy sheriff Gibson testified that he
questioned the defendant Watkins, and
that the latter admitted that he and La-
mar planned for thirty days to get the
money at the home of Mr, Bush, for whom
they had been working at a grill run by
Bush. Mrs. Connell was Mr. Bush’s aunt
and resided with him. Watkins said to
Gibson that he did not do anything to Mrs.
Connell, but that Lamar did. While Gib-
son was talking to and questioning the de-

eae

WATKINS v. STATE Ga.
Cite as 33 S.E.2d 325 : $29

fendant, officer Robertson came to the door
and stated that Lamar had_ confessed.
Lamar and Watkins were then brought to-
gether. Lamar said that he planned the
affair and asked Watkins to go with him.
Both boys then told what happened, La-
mar said he hit her over the head with
a blunt instrument, and that Watkins stood
by the road and watched.

Later, both Lamar and Watkins made
confessions, and signed them, in the pres-
ence of four deputy sheriffs. Lamar con-
fessed that he knocked Mrs. Connell down
with a piece of electric fan, and then
searched her room and found the money;
and that then Watkins came in.

Watkins in his confession stated that
he and Lamar went to the home of Mr.
Bush, and finding him there, they waited
for him to go back to his place of busi-
ness. After Lamar was in the house for
about ten minutes, he came to the door and
called Watkins in. Watkins found the
woman’s body on the floor in the kitchen.
He then struck her once with the handle of
the pistol, and then Lamar dragged her
into her bedroom. Lamar put paper under
the bed and Watkins lit the paper. Wat-
kins said that he did not sce Lamar hit
the woman, and that he used a different
instrument from that used by Lamar.

The jury found the defendant guilty.
He made a motion for new trial on the
general grounds and the following special
grounds:

1. Because the overruling of the mov-
ant’s challenge to the array was contrary
to law and without evidence to support it.

2. (a) Because the alleged confessions
testified to by the witness Gibson were not
freely and voluntarily made. (b) Because
all testimony as to confessions or state-
ments made by Lamar after the arrest were
inadmissible as against the movant. (c)
Because any statements of Lamar or vari-
ance with a statement of Watkins, made
after the arrest, were inadmissible against
Watkins; the movant contending that said
evidence was material, prejudicial, and
hurtful to him because the evidence in sub-
stance amounted to a confession of guilt by
the movant, and because said evidence was
inflammatory and resulted in his convic-
tion.

3. Because the confession made by La-
mar in the presence of the solicitor-gener-
al and four others, over the objection of
the movant, was matcrial, prejudicial, and

33 S.E.2d—2114%4

harmful to him, for the reason that, if
believed, it necessitated a verdict of guilty.

4 and 5. Because during the trial the
defendant’s counsel having requested the
court to instruct the defendant as to his
rights in making his statement, the judge
instructed the defendant in the presence of
the jury as follows: “You are being
charged with the offense of murder. You
are not under oath and you can make your
statement to the court or any member of
the jury what you want the jury to know
about this case. It is incumbent upon you
to tell them. Speak out loud now so they
can hear what you have to say and make
any statement regarding this case that you
desire.” The movant contends in this
ground that he was required to tell the
jury anything about the transaction in
question, whereas in Jaw and in fact there
was no requirement of any kind on him
to make any statement of any kind or to
tell the jury anything, and that said in-

struction placed upon the movant a greater

burden than the law places upon him, and
deprived him .of a,substantial right; and

‘that the court failed to instruct the defend-

ant or the jury that if the defendant did
not make a statement. of any kind, it could
not be considered as harmful to his case.

6. Because the court, over the objection
of the movant, admitted in evidence an in-
flammatory statement in the alleged con-
fession of Lamar with respect to charges
brought by Lamar, a convicted and admit-
ted murderer, against an innocent woman;
the movant contending that by such admis-
sion of the inflammatory evidence the court
failed to remove from the jury the preju-
dicial effect thereof.

7. Because the court refused to give the
following request to charge: “If you
believe that, while this prisoner was under
arrest, he was advised by a deputy sheriff
of this county that it would be better for
him to tell the truth, and that he made a
confession after having been given this
advice, you will not consider such confes-
sion against this defendant.”

The trial judge overruled the motion.
The plaintiff in error excepted to the over-
ruling of his challenge to the array, and to
the refusal to grant him a new trial.

W. C. Turpin, Jr. and S. G. Jones, both
of Macon, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, T.

Grady Head, Atty. Gen., and Maud Saun-
ders, of Atlanta, for defendant in error.

Mee

4


In talking to a relative Lewis was warning him against ever getting in jail
and, in doing so, said: 'You have often heard people sayKatie. bar the bor,
But, you don't know what that means until you get in here. When you come
in hereKatie bars the door and you can't get out until they ar.e ready to
turn you out, so don't you ever get in,' At 10 o'clock Father Boydhouse
called and had a talk with Lewis who said he was still strong in the faith
despite the fact that less than an hour after being baptized on the ay
before he said that he did not have any faith in the Catholic religion

and only allowed Father Boydhouse to baptise him to please him after doing
so much for him. The crowd of relatives - and negro preachers about the
jail broke up the conversation between Father Boydhouse and Lewis, and

then several negroes offered prayer, one of which was beautiful and appro-
priate being altogether free from the rant and singing prayer of the average
negro. When several of the preachers had prayed a female relative of Lewis
began chanting and swaying from one side to the other as she grew more and
more excited, At moments during her chant, the other negroes, including
Lewis, would chime inwith such expressions as: 'Oh, yes. Amen,! etc,
Seeing that the negroes about the cell door were being wrought up to a

high pitch of excitement, Sheriff Westcott went to the cell and, unlocking
it, told Lewis to come out, which he did promptly at 11:37.

"Lewis was escorted into the jail office, where those who had been admitted
awaited him. Here he was met by Father Bpydhouse who niticed that Lewis
seemed completely carried away with the negro preachers who had collected
about him and in order to know whether he still clung to the Catholic

| faith he told him that if he believed in the Catholic pelaeres no other

preacher must accompany him to the gallows. Lewis replied that there was
but one God. Father Boydhouse told Lewis that was not the question. What.

' he wanted to know was did he still cling to the Catholic faith. Lewis

a

evaded the question and said somethin about his brothers (meaning the
negro preachers) being present and that he wnted them to be with him. The

conversation between the priest and the condemned negro lasted about 5 or

6 minutes during which the priest tried to get L wis to state positively
whether or not he renounced the Catholic religion, but the negro would not
make a positive answer until Father Boydhouse told him that if the negro
preachers went out to the gallows, he could not, as a Catholic priest, go
too, and he would be glad if he would say plainly yes or no. Lewis would
hot say either but replied that he wanted the negro preachers to accompany
him and to pray with him on the gallows, and if the priest wanted to, he
could go to, but the priest declined and as he was apout to turn away y
Lewis said : 'I begs to be be excused.' Father Boydhouse house shook hands
and bid Lewis goodbye in a pleasant affable manner, although the negro's

actions must have been trying to his patience,

“When the conversation between Father Boydhouse and Lewis ended, he was es-
corted to the gallows in the: jail yard by Sheriff Westcott, JailerBirdsong
and other assistants followed by relatives and the few others who had been
admitted. When Lewis started up the.steps to the gallows, he almost ran but
stumbted when half way up. He soon recovered himself, however, and climbed
the remainder of the way with an elastic step. When he had taken a position
on the edge of the trap door he looked aroundat the small crowd, and in more
serious tones than he had yet been heard to give expression to, said: !This
is hard.'In a few minutes after reaching the gallows platform one of he
preachers who had accompanied Lewis began praying and as soon as he conclu-
dedanother took it until five of them had prayed. Lewis then prayed after
which,one of the preachers started a song in which Lewis joined lustily.
When this was finished a negro preacher beban a half prayer, half song, that
began: 'He packed his valise in South Carolina and then came over to Georgia.'
This prayer was interrupted by another sonb by Lewis, which he concluded at
11:52. He then stepped to one side and told the crowd that a day was coming
when it would be known who had told the truth and who had not. He stepped
baék on the trap and looking about him, hid everyone present goodbye.
Looking over to the southeast corner of the enclosure and seeing R. A.

Nisbet, he said: 'Goodbye, Mr. Nisbet.' Lewis remained quiet for a moment
and then burst out in a cle

ar, strong voice, singing: 'SWeat Like Drops of


LEWIS, black, hanged Macon, ote 1893 -~ Continued.
h

Blood Ban Down.! He concluded the song at 11:59 when the noose and black
cap were adjusted. After the black cap was over his face, Lewis cried outs
'Is you ready, Mr. Westcott?! Upon receiving an affirmative reply he said:
"Goodbyee! The Sheriff held out hi hand and told Lewis goodbye. Stepping
around to the lever and placing his hand on it, the sheriff paused a moment,
and then, with a quick movement, the trap was sprung just as the courthouse
clock began striking the hour of twelve. The drop was 5 feet and although
Lewis weighed 190 pounds, there was only a slight jar, but no noise, so well
and carefully had everything been arranged. After the body shot through the
drop, it hung about 3 feet from the ground. So well had the rope been
stretched and greased that the body remained facing the way that Lewis

stood on the trap. It was plainly evident to all that death was absolutely
painless as there were but a few quivénings of the frame, occasioned by the
contraction of muscles. In about 10 minutes after the trap was sprung,

Drs. Barron, Ferguson and Worsham steppeé up and felt the pulse. In 6 min-
utes they pronounced the pulse stoppede In exactly ten and one half minutes
from the time of the drop they pronounced the man dead. He was allowed to
hang until 12:30 whem he was cut down by Deputy Sheriff Lee Herrington and
placed in the coffin. With the exception of the tongue protruding slighly
from the mouth, the features were perfectly natural. They eyes were closede
There was ohly a slight swelling about the neck. When the physicians made
an examination of the neck tt was found to be completely dislocatedeec.

The remains were then turned over to Lewis' relatives, who will ship to
Reynolds, Taylor County, this morning, where the burial will take plee
tomorroWeeeeQn the outside of the jail, about 3,000 people, 99 percent of
whom were black, had congregated and did not leave until Undertaker
Keating's wagon came out with the remainsk and even then a great many re-
mained. By night, however, all were gone, havind dopped off one at a

time." TELEGRAPH, Macon, GA, April 1, 1893, page 5.


_

LEWIS, Louis, black, hanged Macon, Ga., May 31, 1893.

"Louis Lewis, the murderer of his wife, 1 Melinda Lewis, was yesterday taken
from his cell in Bibb county jail and hanged by the neck in the jail yard
until he was deada The hanging was. the execution of the sentence pronoun-
ced on Lewis by Judge Bartlett last month, and every detail was conducted
according to the law. After being changed to the downstairs cell on the
afternoon before, Lewis scemed to grow nervous, and all through the neight
was restless and could not sleep, though it was evident he tried to do so,
About 8 o'clock he undressed and prepared for the night, but €ould not go
to sleep, and finally gave it up as an impossibility. He then began talk-
ing to those about him, telling them of the life he had led and the narrow
escapes from. death he had had. He admonished all people to never carry a
pistol and s aid that every colored man that had one now should sell it
even if he could not get but $1-.for it. He said that he had been near
death.threé,times before, ‘On one occasion he was playing fards with*ano-
ther negro and the two got to disputing over a nickel. Theyarese and went
to fighting, when the other negro shot him, and he cut the other negroes
thorat almost from ear to eare The shot that struck him glanced from his
breast bone and consequently did not injure him. Another time, he said, he
had been playing wards all day one Sunday, and after the game broke up
that afternoon he went home, but just as he entered his gate a heavy rain
and thunder storm arose. He ran into the house and while in there the
lightnight ran up and down his arm. The other inmmtes of the room, seeing
how the lightning was playing around him, left the room, but he seemed
bound by some strange spell and could not leave. The lightning ran up and
down his arm,.and he thought every moment that he would be killed. Still
another time, he said, was after he shot his wife and had-run away. Bail-
iff Ben Wilder, who was afterwar’s killed by Willie Bell, found him in the
woods near Columbus, and when he KAN Wan, Wilder ran after him and shot at
him nine times, The last time he shot he was within 5 feet of him. He
then stopped and told Mr. Wilder that. he could beat him to death out there
in the woods if he wanted to, but that if he (Wilder) would go and leave
him alone, he would not mo&est him. As Wilder had shot away all of his
ammantion he left him alone until he could go to Columbus and get more, wher
he took up the trail again. Each of these instances, Lewis said, were
warnings to him, but he did not heed them, and kept up his wild career un-
til he was brought to jail a little over Lito years agOe

"During the night Lewis told: many storfes about nugerous aifticuities he
had thad, one of which was that he whipped nine armed men at one time with
his bare fists. (20 this way he spent the night, talking whenever he could

~get_anybody to listen to him and when he could not , walking up anc down his

cell, praying and muttering to himself. At 5330 o'clock yesterday morning
Lewis dressed himself and announced fhhat he was ready to receive those of = |
his kindred andfriéends who might call. Breakfast of ham and eggs. was
served to him at 7 o'clock but he refushed to touch it. At 8 o'clock he
requested that he be taken into the cage where he formerly was, to take a
last farewell of his old apsociates and that some of them might pray for
him, .His request was granted and-for more than a h hour he was allowed to |
remain in the corridor of the cage where a nymber of others had béen allowed

-to be with him. After an affectionate greeting he requested Nim Kerce,

Henry Gallery, Ae P. Bope, the blind forger, and Amos Hollinshead to pray
for him and the s scene that followeed is one *bhat cannot be described, The
crooning chant of some, the singing of others, and the mournful prayers,
all withapparently so much feeling that whak& would have seemed like
mockery at almost any other time now caused a feeling of sadness to creep
over theface of the few spectators present and no doubt aroused-for the time
being a slight touch of sympathy, if not actual doubt of guilt, for the
poor wretch who had only a few more hours to live. After Lewis "had remained
with his old companions as long as Jailer Birdsong thought it well that he
should, he ws put back in his cell 6n the first floor where numerous rela-
tives And several negro preachers saw and talked with hin.


is sie as ease

wel FT htt if

wwe

406 Ga

ground. Defendant excepts to the order
denying his motion for new trial, In his
brief he abandons the general grounds and
insists on the special ground.

J. O.'Ewing and Wesley R. Asinof, both
of Atlanta, for plaintiff in error.

ft. E. Andrews, Sol. Gen., Durwood Ts
Pye and J. R. Parham, all of Atlanta, Eu-
gene Cook, Atty. Gen., and Daniel Duke,
Asst. Atty. Gen., for defendant in error.

HEAD, Justice. ‘

The special ground of the motion for
new trial is based on defendant’s objec-
tions to the following charge of the court:
“I charge you that flight, if any, and simt-
lar acts, if proven, from which an infer-
ence of guilt may be drawn, may be consid-
ered by the jury, but flight is subject to ex-
planation; the weight to be given to it, of
whether the jury will draw an inference of
consciousness of guilt or not, is for the
jury. It is for the jury to determine wheth-
er the flight of the defendant, if such has
been proven, was due to a sense of guilt or
to other reasons. If from other reasons,
no inference hurtful to the defendant must
be drawn by the jury.” His objections to
this charge are that it was argumentative,
misleading, and confusing in that, as mov-
ant contends, there was no evidence in be-
half of the State tending to prove that he
fied from the scene of the crime; and that
the charge was erroneous as being an ex-
pression of opinion by the court, in assum-
ing that the defendant had fled from the
scene of the crime, without charging the
jury that in order to consider such charge
it would be first necessary to find that the
defendant had fled from the scene of the
crime.

[1,2] This court on several occasions
has approved instructions almost identical
with that given in the present case on the
subject of flight. See Lester v. State, 155
Ga. 882, 885, 118 S.E. 674; Smith v. State,
167 Ga. 544, 546, 146 S.E. 121; Lancaster
v. State, 168 Ga. 470, 476, 148 S.E. 139;
Luke v. State, 183 Ga. 302, 304, 188 S.E.
542, In two of the foregoing cases, the
court had under consideration the specific
objection that the language intimated an

37 SOUTH EASTERN REPORTER, 2d SERIES

opinion by the court that there was evidence
of flight, and it was held that such instruc-
tion did not intimate such an opinion. See
Smith v. State, supra; Luke v. State, su-
pra. While a similar instruction was crit-
icized by this court in Fountain v. State,
149 Ga. 519, 528, 101 S.E. 294, 298, one ob-
jection made in that case was that the facts
did not warrant a charge on flight, and this
court made a finding on the facts as fol-
lows: “It appears that the accused, after
the homicide and until his arrest, was no
further from the scene than a few hundred
yards, nor was he apparently making any
effort to flee.” (Italics supplied.)

The record in the present case shows
that the defendant in his statement made
the following remarks: “She, told the of-
ficers I tried to attack her, and I started to
run. I got as far as this white frame on
this wall and saw some bushes. When I
started to run and go into the bushes I saw,
I ran into a bank and fell.”

W. M. Miller, a policeman who investi-
gated the case, stated as follows with refer-
ence to the flight of the defendant: “He
[defendant] backed the car approximately
twenty feet. I put the radio car in re-
verse and blocked him. * * * When
the defendant backed the car up and tricd to
get away, I was close to the fender.
* * * JT could not say definitely what
the defendant did after I blocked his auto-
mobile, because I started to the woman on
the ground. * * * At that time I heard
my partner or someone running up Angier
Avenue and run by me. At that ‘time I
noticed a racket in tlie underbrush of
bushes to my right. I immediately jumped
out of the car and had to come around the
left side to get in the street. At that point
I noticed the defendant running out of the
bushes between the street light and myself,
and my partner ran between me and him
and caught him. That was the second time
he tried to get away.”

Under the evidence, the court was au-
thorized to instruct the jury on the sub-
ject of flight, and the charge was not ef-
roneous for any reason assigned.

Judgment affirmed.
All the Justices concur.

oa

BACH v. PHILLIPS Ga. 407
Cite as 37 S.E.2d 407

BACH v. PHILLIPS.

No. 15331.
Supreme Co of Georgia.
Feb. 19, 1946.

Divorce €=302

A petition to have an award of custody
of minor child to divorced husband set
aside was demurrable where petitioner vol-
untarily signed an acknowledgment of serv-
ice and waiver of process with respect to a
suit for divorce that had not even been pre-
pared, and then left the state for several
months and made no investigation whatever
as to the contents of the suit as later filed,
even though petitioner must have known
that the custody of the child would be a
proper matter for determination in case of
divorce. Code, §§ 30-127, 37-219, 37-220,
110-170.

Syllabus by the Court.

1. “Equity will interfere to set aside
a judgment of a court having jurisdiction
only where the party had a good defense
of which he was entirely ignorant, or where
he was prevented from making it by fraud
or accident, or the act of the adverse party,
unmixed with fraud or negligence on his
part.” Code, § 37-220.

2. A wife voluntarily signed an ac-
knowledgment of service and waiver of
process with respect to a suit for divorce
that was later to be prepared and filed
against her by her husband, and after hav-
ing signed such acknowledgment and waiv-
er, left the State and made no investigation
whatever as to the contents of the suit aS
later filed. The suit, as later prepared and
filed by the husband, sought not only a di-
vorce but also custody of the minor child
of the parties, and judgment was rendered
accordingly as to both matters in favor of
the husband. The wife thereafter filed a
suit in equity to set aside the judgment in
so far as it awarded custody of the child to
the father, alleging that the acknowledg-
ment of service and waiver of process were
made with the express understanding be-
tween the parties that only the question of
divorce would be determined in such suit,
and that the custody of the child was not
to be included therein; but that (as further
alleged) the husband thereafter breached
this agreement and fraudulently sought and
obtained a judgment awarding custody of
the child to him in connection with the di-
vorce decree. [eld, that the petition show-

ed such negligence on the part of the wife
in failing to acquaint herself with the con-
tents of the suit as to bar her right to the
equitable relief sought, and that the court
did not err in dismissing the petition on
general demurrer.

Error from Superior Court, Bibb Coun-
ty; Mallory C. Atkinson, Judge.

Petition in equity by Mrs. Alice K. Bach
against Charles H. Phillips to set aside
so much of a divorce decree previously ob-
tained by Charles H. Phillips from petition-
er, as awarded the custody of their minor
child to the father, Charles H. Phillips.
To review a dismissal of the petition on
general demurrer, petitioner brings error.

Judgment affirmed.

In October, 1944, Charles H. Phillips ob-
tained in Bibb superior court a decree of
divorce from his wife, Mrs. Alice K. Phil-
lips, and in the same decree he was awarded
custody of their minor child. The wife ac-
knowledged service of his petition for di-
vorce, waived process, and agreed for the
case to be tried at the first term; such
waiver and agreement having been signed
before the suit for divorce was filed.
Shortly thereafter, Mrs. Phillips left the
State of Georgia, and after the divorce, she
married again, her present name being Mrs.
Alice K. Bach.

In July, 1945, Mrs. Bach filed the present
petition in equity, in Bibb Superior Court,
seeking to set aside so much of the decree
as awarded the custody of the child to the
father. The petition was dismissed on gen-
eral demurrer, and Mrs, Bach excepted.

The petition alleged substantially the
following: Petitioner and defendant were
intermarried in due form of law on Febru-
ary 17, 1938, and lived together as husband
and wife until June 15, 1944, at which time
they separated, At the time of the separa-
tion there was, as the issue of the marriage,
one male child, Charles A. Phillips, age
about two and one-half years, who was in
the custody and control of pelitioner’s par-
ents, Mr. and Mrs. A, C. Kitchens, of Gray,
Georgia, in Jones County.

The child was placed with petitioner’s
parents at the instance and request of peti-
tioner, with the full knowledge and consent
of defendant, and with the express under-
standing that such custody by petitioner’s
parents would not be disturbed in any way
by said defendant.

HAPTER op SES

ith ah


ee

Court cotisidering prisoners’ right to challenge state convictions
| | g

Assoc.ated Press

WASHINGTON The
Supreme Court today used the
unusual case of a Georgia death
row inmate’s last-minute appeal
to debate setting new limits on
state prisoners’ right to challenge
their convictions in federal court.

The lawyer for convicted triple-
killer Larry Grant Lonchar said
he should be allowed to pursue his
appeal, even though Lonchar filed
it as his execution was being pre-

pared and had resisted relatives’ |

earlier appeals on his behalf. —
Georgia prosecutor Mary Beth
Westmoreland insisted such an
appeal can be dismissed even
though it was Lonchar’s first trip
to federal court.
| __ “He's had his chance” to pursue
his appeal earlier, Westmoreland
said.
The Constitution gives state
inmates the right to seek federal
court help if they claim their state
prosecutions in some way violated
their federally protected rights.
However, the court ruled in 1991
that repeated federal appeals gen-
erally must be dismissed as an

abuse of the system.

Lonchar’s case asks whether
an inmate's first federal appeal
can be dismissed as abusive. The
Supreme Court delayed Lonchar’s
execution until it issues a decision,

expected by July.

Lonchar’s lawyer, Donald B..

Verrilli Jr., said the earlier appeals
filed by the inmate's relatives
should not be held against him,
nor should Lonchar’s motive in

going to federal court for the first
time last June.

Lonchar said he wanted to
delay the execution in hopes that a
new law would be enacted allow-
ing him to be executed by injection
instead of electrocution so his
organs could be donated.

‘“What if the motive really is to
make a laughingstock out of the
federal courts?” asked Chief
Justice William H. Rehnquist.

Justice Antonin Scalia asked
Verrilli whether an inmate’s
appeal should be heard even if he

waits to file “until the last minute,
one minute before his execution?”

Yes, said Verrilli, who noted
that federal law sets no time limit
on filing federal appeals of state
court convictions.

Westmoreland asserted
Lonchar’s appeal was not a true
first federal appeal because of the
previous efforts by his relatives
and because of his motive in seek-
ing a delay in execution.

(nn) ‘4UL owvede, req Se] #fz1


Ps

Survivor of shooting

wants to see killer die

Request to view Friday execution considered

By Rhonda Cook
STAFF WRITER

The sole survivor of a 1986 shooting
spree that left his father, brother and a 45-
year-old woman dead wants to watch the
man convicted of their murders executed
for the crimes.

State Department of Corrections offi-
cials said Monday they are considering al-
lowing Rick Smith, who was shot three
times in the attack, to witness the execution
this week of Larry Grant Lonchar.

“T was their eyes from the very begin-
ning of this ordeal,” Smith said. “Since I’ve
been their eyes throughout all this, don’t
take them [his eyes] from me now.”

Lonchar is scheduled to die Friday for
murdering Wayne Smith, 54; Steven Smith,
24; and the older man’s girlfriend, Margaret
Sweat, over a $10,000 debt.

Smith could be the first victim or rela-
tive of a murder victim in Georgia to wit-
ness an electrocution since executions were
resumed in 1983.

DOC spokeswoman Vicki Gavalas said
victims and relatives have not been allowed
to witness electrocutions in the past in order
“to preserve the dignity” with which the
death penalty is imposed. Smith’s request
may be approved because he is a survivor of
the crime, rather than a relative of a murder
victim.

If Lonchar is executed as scheduled; he
will be the third person electrocuted in
Georgia this year and the 21st since 1983.
Lonchar, 43, has not appealed his case and

says he would rather die than spend his life
in prison. On Monday, his attorney said he
would not authorize a delay in the execution.
to pursue legal action over his desire to do-
nate organs.

In 1993, Lonchar came within 32 min-
utes of electrocution. That execution was
stopped after he announced that he wanted
to appeal his sentence. |

Today, DeKalb County Judge Robert
Mallis will hear complaints filed by Lon-
char’s older brother, Milan, that the judge
who signed Lonchar’s death warrant should
have recused himself because he visited the
convicted killer at prison shortly before his
scheduled execution in 1993.

“When they finally execute this guy,
Americans will be able to sleep easier,”
Rick Smith said. ‘“The man’s not crazy. The
man just knows the system too well. What
gives him the right to decide when he dies?”

Smith came to the graves of his father
and his brother to talk about the execution
and the events of Oct. 13, 1986. The two are
buried side-by-side on a hill that slopes to a
duck pond in a Norcross cemetery.

“It’s not going to be anything pretty,”
Smith said about the pending electrocution.
“T’m not looking forward to this. But I can at
least come to their graves and tell my broth-
er and my father that he’s on the way up to
see them before he heads back down to hell.
It’s a part of my rehealing program and I
can then finally shut the door on it.”

=

‘Organ donation would be an inmate first B4

“T was their eyes from the very beginning of this ordeal.”
RICK SMITH

_ Tuesday, June 20, 1995

_ The Atlanta Journal
The Atlanta Constitution

wk kk ok


Condemned inmate wants to donate organs

Kevorkian on case: L.
Lonchar wants a death that
won't ruin his organs.

By Rhonda Cook
STAFF WRITER

A condemned Georgia killer sched-
uled to die next week has asked Dr. Jack
Kevorkian, also known as “Dr.:Death,” to
recommend ways of execution that will
allow organ donations afterward so “oth-
er people could live.”

“We’re talking about saving at least
three lives and maybe six” if Larry Grant
Lonchar’s organs can be harvested for
donation, Kevorkian said. “What’s going
to be gained by frying this guy?”

Attorney John Matteson got Lonchar’s
permission Thursday to file court papers
asking to conduct the execution in a way
that would not damage his organs.

But Georgia law prescribes that con-
demned killers die by electrocution,
which destroys internal organs and ren-
ders them useless for transplant.

“The state has no discretion over how

“The most
important fact is
other people
could live.”

LARRY LONCHAR

the death penalty is imposed,” said Depu-
ty Attorney General Mike Hobbs. “As far
as the state is concerned in this particular
case, we expect the death penalty to be
administered in accordance with the law,
and that’s by electrocution.”

Lonchar is scheduled to die at 3 p.m.
June 23 for the 1986 DeKalb County mur-
ders of Wayne Smith, 54; his 24-year-old
son, Steven Smith; and the older man’s
girlfriend, Margaret Sweat, 45. Lonchar
has refused to challenge his death sen-
tence, saying he would rather die now
than spend years on death row.

Two years ago, Lonchar came within
32 minutes of dying in the electric chair
before halting the execution by announc-
ing he wanted to appeal his sentence.

“What's going
to be gained
by frying
this guy?”

DR. JACK KEVORKIAN

In a letter to The Atlanta-Journal Con-
stitution this week, Lonchar cited publici-
ty on the shortage of organs in news ac-
counts of baseball legend Mickey Man-
tle’s liver transplant as support for his
decison to become a donor.

“Why can’t Death Row inmates, once
their appeals are denied, be given the op-
‘tion of dying by execution or donating our
organs?” Lonchar wrote. “Either way we
are dead, so it’s not like we are avoiding
our death sentences. The most important
fact is other people could live.”

Kevorkian, who for years has advocat-
ed taking organs from the condemned be-
fore execution, said no state has allow
life-supporting organs to be removed
from condemned inmates.

The controversial Michigan patholo-
gist, who has attended more than 20 sui-
cides and faces murder charges in some
of the deaths, said two kidneys and a liver
could be harvested “immediately after
death” if Lonchar were executed by le-
thal injection, which is not allowed in
Georgia.

He said Lonchar’s lungs and his heart
also could be saved if he were anesthe-
tized “like a brain-dead person” and the
organs removed while he was still alive.’

Although the American Medical Asso-
ciation says it is unethical for doctors to
participate in an execution, Kevorkian
said he knows at least two “pre-eminent
surgeons in the transplant field” who
could do the procedure.

In Georgia, taking a life is considered
murder unless it is a state-sanctioned ex-
ecution. State law makes it a crime to of-
fer to assist a suicide.

“This has never had anything to do
with suicide,” Matteson said. “If someone
knows they are going to be executed, why
not do it in a way that would permit six
people’s lives to be saved? This is nuts.”


i*

— 7 _
BY Tuesday June 20, 1995 xxxxax LOCAL NEWS The Atlanta Journal / The Atlanta Constitution

Heath row inmate
doesn’t want wish
fo result in delay

rete.
By. Marla Jo Brickman
STAFF WRITER

* If Larry Lonchar gets his
wish to donate his organs after
jhis: scheduled execution Friday,
‘the would be the first inmate on
‘death row to do so.
‘According to Joel Newman,
with the United Network of Or-
pees

ae

gan Sharing (UNOS), “several

other death row inmates have ex-
pressed wishes to be organ do-
nors, but none have gone ahead
to actually donate their organs.”

‘That’s because methods of
execution, such as electrocution
or lethal injection, and the time
period involved before a prison-
er is declared dead make the or-
gans unusable for transplan-
tation.

In standard organ donations,
the donor is declared brain dead
but organ functions are main-
tained artificially until the or-

gans can be harvested.

Lonchar, who is slated to die
by electrocution — required un-
der Georgia law — said last week
he would like to donate his or-

ans if an alternative method of
xecution would be allowed.

But John Matteson, a lawyer
consulting with Lonchar, said on
Monday the condemned man had
decided not to delay his execu-
tion by asking the courts to allow
him to be an organ donor. He has
previously said he would rather
be executed than spend his life
on death row.

Lonchar’s attorneys had
talked with Michigan pathologist
Jack Kevorkian, who has helped
several people commit suicide,
about finding a way Lonchar
could donate his organs. Kevor-
kian said he knew of two doctors
in the Southeast who would par-
ticipate in Lonchar’s case.

But, in addition to the legal
hurdles facing Lonchar, the
American Medical Association’s
code of medical ethics might
prove an obstacle. The code says
that a physician, as a member of
a profession dedicated to pre-

serving life when there is hope of
doing so, should not be a partici-
pant in a legally authorized exe-
cution.

Doctors can certify death but
only after the prisoner has been
declared dead by someone else,
the ethics code says. That’s be-
cause if death does not occur, the
doctor is then put in a situation
where he or she has to advise on
administering death.

“Tt is the standard among
transplant surgeons that few if
any would want any involvement

s execution nears, donor chance fading

in the transplant process from an
executed prisoner,” said
Newman.

However, it is possible to har-
vest nonvascular tissues, such as
bone, skin, eye and heart valves
for up to 12 hours after death.

UNOS knows of one case
where an inmate donated those
tissues. The inmate, Thelma Bar-
field, who poisoned four people,
was executed in North Carolina
by lethal injection of barbitu-
rates and muscle relaxants in the
mid-1980s.

LoweHar hag GASP hh) u/14)) 996

te exetite
Lone char

| By Rhonda Cook e
Staff writer

A DeKalb odunty Nidge signed
a new death warrant.Tuesday for
Larry Grant Lonchar, whose sis-
ter is trying to save him from
Georgia’s electric’:chair even
though he says he wants to die.

Under terms of the warrant,
the Depart-—
ment of Correc-
tions ~ has
scheduled - his
execution for 7
p.m. May 18.

The  war- |
rant signed. by. |’
DeKalb County:
Superior Court
Judge meee
. Castellani - ale ca
lows Lonchar to be ‘execuited as
- late as noon May 25 if thé electro-

2 cution is, not carried: out at the

scheduled time... “4.

Lonchar, sentenced to die in
DeKalb County for three 1986
‘murders, has stopped his ap-
peals, but his Sister, Christina
Lonchar Kellogg of Battle Creek,
Mich., and. death penalty oppo-

inents ‘have tried to Stop the exe-
cution. es,

Lonchar was convicted 4 in the

October 1986 murders of Charles
Wayne Smith, 54; his son Steven
Wayne Smith, 24, and the elder
“Smith’s girlfriend,’ Margaret
Sweat, 45, at their DeKalb County
condominium. Police said Lon-
char owed the elder Smith at
least $10,000 in gambling debts.

kkkk« WEDNESDAY, MAY 9, 1990

THE ATLANTA CONSTITUTION


Death Row Man In Kidney Battle
AP 14 Mar 96 11:44 EST VO0017
Copyright 1996 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Death Row Man In Kidney Battle

ATLANTA (AP) -- State officials are blocking a convicted murderer's
request to donate a kidney to a retired detective who helped put him on
death row because they fear the inmate may be toying with the man.

Larry Lonchar wants to donate a kidney to Melvin Ferguson, the
60-year-old retired chief of detectives who helped tie Lonchar to a
1986 triple slaying. Lonchar’s lawyer, John Matteson, threatened
Wednesday to sue to try to force the state to allow the tests to
determine if Lonchar’s kidney is compatible with Ferguson.

The state won’t allow the test because it doesn’t want Ferguson to
be disappointed if Lonchar changes his mind and because Lonchar is too
dangerous to take to a hospital for transplant surgery, Corrections
Department Commissioner Wayne Garner said.

"This trickster has a bad history of changing his mind about
serious, life-and-death events," Garner said. "How horrible it would be
for a dying man to find that his supposed donor changed his mind at the
last moment."

That’s a matter between Lonchar and Ferguson, not the state,
Matteson said.

"We're not talking about an exotic medical procedure, just a simple
blood test," to check compatibility, Matteson said. "Here’s someone
who’s dedicated 30 years to law enforcement and they’re telling this
loyal employee to go stick it. This is trashy."

Lonchar has frustrated state authorities for years with his
on-again, off-again desire to be executed. Twice, he’s received a stay
minutes or hours before his scheduled execution. The U.S. Supreme Court

now is considering his demand that he be killed in a way that preserves
his organs for donation.

Georgia electrocutes inmates, which ruins their organs for
transplant. Lonchar would not have to dié to give a kidney to Ferguson.
Ferguson, whose kidneys were damaged during heart surgery, said he

read about the appeal and decided to contact Lonchar’s attorney.

"I knew we had the same blood type through the police investigation"
of the three murders, Ferguson said. "A transplant would give me a new
attitude and strength."

Ferguson and Matteson say they don’t understand the state’s
reluctance, since another death-row inmate has donated a kidney.

“This is not a precedent-setting case; I don’t understand it,"

Ferguson said. "I served the government for 30 years and now I’m asking
the government to do something for me."


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Court Allows Death-Row Appeal
AP 1 Apr 96 15:51 EST V0648
Copyright 1996 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press. 5 .

Court Allows Death-Row Appeal

WASHINGTON (AP) -> The Supreme Court refused Monday to set a time
limit for state death-row inmates to file their first federal appeals,
saying even last-minute appeals generally cannot be dismissed for being
filed too late, o } |

The court unanimously set aside an order that would have allowed the
execution of a Georgia triple killer although his first federal appeal
had not yet been heard,

However, Larry Grant Lonchar’s lawyer said Monday his client now
wants to drop the appeal. "He‘s advised me that he wants the district
court ... case dropped and he wants to go ahead and be executed," said
lawyer John Matteson. Bt ae ain ae

Lonchar filed the appeal last June as his execution was being
prepared. He had resisted relatives’ earlier appeals on his behalf, but
said he finally decided to appeal in hopes the state would change its
execution method from electrocution to lethal injection in the belief
that would let him donate hig organs after death. |

Georgia lawmakers did not enact such legislation in their session |
that ended last month. eae ee

Justice Stephen G. Breyer wrote for the court that the delay and
Lonchar‘’s motive were. not adequate reasons to deny him a hearing on his
first federal appeal, called a petition for a writ of habeas corpus.

Such appeals allege that a state court prosecution violated a

defendant's rights as protected by the U.S. Constitution.

“Dismissal of a first habeas petition is a particularly serious
matter, for that dismissal denies the petitioner the protections of the —
Great Writ entirely, risking injury to an important interest in human
liberty," Breyer wrote. _ nee :

“The fact that LoncHar filed his petition at the ‘eleventh hour’
does not lead to a different conclusion," he added.

Late appeals can be dismissed if prosecutors show the delay
prejudiced their ability to respond, But Breyer noted there was no such
finding in Lonchar’s case. ae ;

His opinion was joined by Justices John Paul Stevens, Sandra Day
O'Connor, David H. Souter and Ruth Bader Ginsburg.

Chief Justice William H. Rehnquist and Justices Antonin Scalia,
Anthony M. Kennedy and Clarence Thomas agreed that the lower court
order in Lonchar’s case should be set aside. | | |

But Rehnquist wrote for the four that in some casés, “abusive delay
and manipulation" should be considered grounds for denying an
application to delay execution, even in an inmate’s first federal
appeal. ane ass gui (arian adh Rye ce,

The Supreme Court ruled in 1991 that repeated federal appeals
generally must be dismissed as an abuse of the system. But current
federal law sets no time limit for filing federal appeals,

Legislation now in. a House-Senate conference committee would set a
one-year deadline, Breyer said it would be inappropriate for the courts
to change the rules instead of allowing Congress to address the issue.

/

f ' nc heute ae g
¥ PRACR Te ee em BE

Lonchar was convicted in 1986 of killing Wayne Smith, Steve Smith
and: Margaret Sweat over a $10,000 gambling debt. For years afterward,
he insisted he wanted his execution carried out. — 3 |

Lonchar told police to “shoot me" when he was arrested and refused
to help his lawyer defend him. After he was sentengéed to death, Lonchar
would not cooperate with two federal appeals filed by relatives on his
behalf. ay ce eee: |

He filed one appeal in state court less than an hour before his
scheduled execution in 1993, but later dropped it. He filed a second
state appeal last June, again just hours before his planned execution.

A state court denied the appeal, so Lonchar went to federal court
for the first time. The 11th U.8: Circuit Court of Appeals refused to
delay his execution to allow the appeal to be heard, saying he had
abuséd his right to appeal. The Supreme Court granted a delay, however,
while it heard the case. The case now goes back to the lower court.

The whole defense in the case is that of accident, The defendant stated that the
trigger of the automatic pump shotgun was pulled accidentally while handing the gun
to his wife, but could not:account for:the second shot which was supposed to have
shot off the arm of the four=months-old baby that the mother was holding in her arms
and which died a few hours later. The gun was in eourt and: witnesses: for. the state
testified that with such a gun two accidental: shots would be almost impossible,
Lyles appeared in court this morning dressed as he has been throughout the trial and
shows no sign of a breakdown, being entirely composed and noticing everything that
takes place. The only times’ he shows signs of grief is when the dead wife and: baby
are mentioned," JOURNAL, Atlanta, Georgia, April 25, 1907 (1:2)

. "(Special Dispatch to The Journal.) Waycross, Ga., Jane 31, 1907-H. E. Lyles, pro-
prietor of a local barber shop, last night shot and killed his wife, blowing ‘the side
of her head off as she held their four-months-old baby in her armms, The baby fell
to the floor. Lyles aimed his gunk at it, and fired, the charge cutting off one of
the baby's arms. The°child wikl probably die,’ Lyles was arresteds A coroner's jury
is considering the «case, ‘
"Wednesday morning, it is claimed, Lyles went home in an intoxicated condition, He
is said to have declared that neither his wife nor baby should leave the house alive,
The Lyles occupy a house with another family. °
"Soon after reaching home, Lyles went to sleep, The frightened wife then hurried to
the home of her uncle, Henry Arrington, on Jane Street. She-*told of the threats
which her husband had made. Later in the day Mr, Arrington supposed the matter was
settled. Mr. Lyles agreed to allow his wife to go to her former home, near Moultrie.
"During the afternoon Mr, and Mrs, Lyles were seen on the streets together. While
in town, Lyles stopped in a restaurant and got his shotgun, which he had left there
sometime before, ‘The tragedy followed «soon after the couple reached home, Lyles
was standing near the body of the prostrate woman when arrested, He did not seem the
least bit distressed by the scene, He said it was theresult of an accident, that he
dropped the gun and it was discharged, |
"The side of Mrs, Lykes' head was blown away by the shot, Powder had blackened the
wound and her hat was set on fire, The baby was on the floor near by with its arm
shot off. Mrs. Lyles‘was a granddaughter-of Mr, Tom Redding, a prominent man living
near Moultrie, The Johnson family, to which Mrs, Lyles belonged, is also well known,
"The talk of lynching Lyles, which was at first current, has ceased, and the universal
feeling is that the law shall take its course, It is stated that the court officers
have promised a special sitting of the grand jury and the court and that the case will
be handled as early as possible. Two shots were fired from an automatic shot gun,
The gun had been loaned by Lyles to another party to go hunting on Tuesday and had
been left at a restaurant. lyles got the gun about noon and had been walking” about
the streets with it for some time. People who knew Lyles was drinking asked him
what he was doing with a gun, in answer to which he stated that he was going to
send it to his wife's home at Moultrie, where he would shortly go for a hunt.
"It developed this morning, however, that yesterday about 2 o clock Lyles was in a
restaurant and had threateneed to shoot. Mr. Be He Thomas of this city, Thomas owns
a barber shop which Lyles has had leased for some tine, Lyles had been drinking, it
is claimed, since Christmas and Thomas had revoked the lease. This angered Lyles
and it is supposed to be the reason for his threatening to take Thomas! life,
Shortly, after Lyles made this statement, Thomas passed him on the sidewalk and
though he then had the gun in his hands he made ho attempt to attack Thomase
Yesterday morning when Lyles went to his home on Eads street he was so intoxicated
it is claimed, and abused his wife so terribly that she told him she was going to her
.mother's home in Colquitt County. It is said he then told her that if she ever
‘left him he would kill her the first opportunity he had, While talking to her he
fell over on the bed in a stupor and she was so much frightened that she took her
child and went to the home of her great uncle, Mr. H. L. Arrington, Lyles went
after her about 3 o'clock and persuaded her to return to their home, Shorlty
after they arrived at the house the shooting occurred on the front veranda.
"The statement of Lyles, as given to a correspondent of the Atlanta Journal, is
as follows: 'I had been drinking for several days amd yesterday morning was drunker
than usual, When talking to my wife yesterday afternoon she told me that I had gone
home in the morning so drunk that I did now know what I was doing. When I went to

q

60 SE 578
LYLES, hanged Waycross, Gaeg June 23, 1908 = Continued,

the Torrington house after her and asked her to return home with me she told me she
sould not do so because I had treated her so terribly she could not live with me, I
told her that she knew I was drunk in the morning and she should not hold me accountable
for what I said to do did to her if I would promise not to do so again, After some
persuasion she consented to return to our home on Eads Street. As we were walking
home shé told me that I had threatened to kill her that morning. I told her that

she knew that I loved her so dearly that I would kill everybody in the world and my=
self before I would kill her, and that while I did not remember about threatening
her life, yet if I had said it, I was notixicated, that I did not know what I was
saying.'

"Lyles further stated that he and his wife and baby went by his barber shop, and that
he stopped at some place uptown to get his gun, He says that he cannot remember
where he got the gun. When asked why he had gone after the gun he stated that be-
tween Arrington's house and the barber shop he had consented to send his wife home
and that he got the gun for the uurpose of packing it in her trunk and sending it
with her, Lyles said that they walked on home from the barber shop, and as they went
in the gate he left the gun leaning against the fence by the gate, and that he and
h&és, wife went into the house, While she was preparing to make her departure on the

6 o clock train Lyles states that he went out into the yard to walk about, as he was
very nervous from his long siege of drunkenness. He states that he had forgotten
about his gun that he had left afkthe gate and went to get it and was carrying it in
the house to put into the trunk as his wife came out the door with her wraps on and
the baby in her arms on the way to the depot,

"Tn taking the gun from his shoulder, Lyles says that he accidentally pulled the
trigger and that the gun discharged in his wife's face, and this excited him so,

he supposes, that he pulled the trigger agaiin, whichaccounts for the second shot which was
fired into the floor of the veranda, When asked if he was so drunk at the time of the
shooting that he did not know what he was doing, Lyles stated that he was not drunk
at all at that time. “e says he was nervous and somewhat excited, but that he was
not dumnk, When asked if he was positively sure that both shots were accidentally
fired he said: '"My God, man, yes} Do you think I would shoot my own wife?! The

shot that killed the mother struck the baby in the arm which had to be amputed in
consequence, the baby dying from the results of the shot this morning at 6 o clock,
The bodies of the dead mother and baby are now in the undertaking chapel of Lott
Fain & Co., where the coroner's inquest was held last night about 10 o'clock, The
verdict of the coroner's jury was "wilful murder,' Lyles is a fine looking man 25
years of ages He was born in Ohio, His father and mother are dead, and he has no
brothers or sisters." JOURNAL, Atlanta, Georgia, January 31, 1907 (1:2.)


KELLOY, Jack, white, hanged Griffin, Spaulding Co., GA on July 15, 1921.

The Atlanta Journal, Atlanta, GA, November 28, 1920 (4/5) reported that Kelloy, convicted
in Griffin, GA, of murder of Leroy Trexler, Atlanta taxi driver, had been denied a new
trial. He was sentenced to be hanged.

“...1 do remember a man named Kelloy who was hung at the courthouse (Griffin,
Spaulding Co., GA) sometime in the early 1920's...”

Letter dated 7/1/1977 from John W. Goddard, Jr., Attorney at Law, Box 116, Griffin,
GA. 30224,

>» Them Over

|

JACK KELLOY

tt

jand bid him a last good-bye, but

DIES ON GALLOWS

Atlanta Man Charged
With Murdering Taxicab
Driver Meets Death
Without Confessing.

Griffin, Ga., July 15.—(Special.)—
A prayer upon his lips and a crucifix

clasped in his manacled hands, Jack
Kelloy. the young Atlanta man con-
victed of the murder of Leroy Trex-
ler, a taxicab driver,- plunged
through the gallows trap in the rear
of the Griffin courthouse at 10:40
o’clock this morning, without con-
fessing the crime for which his life
was forfeited to the law. Neither
In the enclosure wherein the law

consummated its vengeance, nor in
all the -throng in uke streets
outside, was one singlé friend of

Jack Kelloy save Father Hasson, the
Catholic priest who administered the
last sacrament to the doomed man,
and who placed in the cuffed hands
the emblem of the Catholle faith in
which he died. He had requested
his wife in Atlanta to come to him

she did not come. To his sister-in-
law he had telegraphed the same re- |
quest, and she did not come. |

As the death trap gaped to re-
ceive its victim, there was silence in
the gathering outside, ‘and. as the
rope above the trap door through
which Jack Kelloy had entered into
eternity swayed slightly in the dy-

Ing agony of Kelloy, all knew that |
never again would his favorite song.

“When I Am Gone, You'll Soon For- |
get.” come from his throat, as it had)
come in the days past, when the
people of Griffin had gathered out-
side Jack Kelloy'’s prison to hear
him ating.

Gives Aceerdion te Giri,

A little «irl, from whose friend-
ship rays of sunshine had lightened.
thé gloom of the condemned man— |
Miss Annie Johnson, who works in|
a mill near Grifin—will receive Ke)-
loy’s most prized possession. a
beautiful silver-mounted accordion.
Until Kelloy came to jail here to
await death, he never knew her. But
{in the evenings she used to come
down to the old brick building and
stand outside in the darkness with
hundreds of othera, to hear him
sing, “When I Am Gone, You'll Soon
Forget.” People who heard Kel-
loy sing would send nickels and
dimes up to him In a little tin buck-
et he would let down by a string.
This practice, however, was later
stopped. Miss Johnson would come
down to the jail in the evenings
and talk to him through the bars
Last night Kelloy sang his Jast sere-
nade. Twice he sang. “When I Am
Gone, You'll Soon Forget.” Outside,
the peuple called for more, but he
told them that he was tired, and
that he wanted to read his Bible.

Kelloy read his prayerbook by the
flare of an oj] lamp in his cell unt!)
alate hour. He slept for only three |
hours, from 1:45 o’clock until 4:46.
Then the priest came, administered
the last sacrament, and stayed with
him until the end. Mrs. Freeman,
the wife of the sheriff, this morn-
ing took him a litese pouquet of ti-
ger lilies she had plucked jin her
front yard. “Thank you, so mucha
Flowers are my best friends,” Kel-
loy told her. ‘ .

‘

Carried to Execution.

Sheriff W. L. Freeman drove up
to the rear of the jail in a curtain-
ed automobile at 1:40 o’clock, and
carried Kelloy away to the place
of execution, fenced off from the
view of the large crowd. Outside the
enclosure, a hearse waited.

After Kelloy mounted the plat-
form, he lifted his eyes to the sky.
“I thank you very much. Every-
one of you,” he said. “I have made
s) many good friends here, and J
ask you to pray for me. I am dying

{in the Catholic faith, which I learned |
from my father and mother.

If I
‘had atuck to it, I might be out of
'my troubles today.” He then re-
peated a little Latin prayer after
the priest,

The black cap was placed over
Kelloy’s head, and the crucifix tn his
hands. A moment later the trap

was sprung. Kelloy will be buried
in Griffin tomorrow.

Story of Killing.

Leroy Trexter, of whose murder
Kelloy was convicted, was Killed
September 10, 1920, on the -Damas-
cus road, a few miles from Griffin.
Trexler was the driver of a taxicab
in which Kelloy had hired him to
drive from Atlanta. The body of
Trexler was found near the road,
and Kelloy was arrested in Macon,
after having been sgen driving the
taxicab alone,

Following his trial and convic-
tlon, attempts were made to save
him from the death penalty on the
grounds of insanity. These falled,
however, and & report that he was

the governor, thus removing his last
hope. According to available rec-
ords, this was the first legal han

| years.

C oosti ToT 6
Meta GA

ales [Gal

P ,€ 2

sane was on Thursday returned to:

ing {n Spaulding county in about 50

“ee
Bisel be x

re

a PT a ed aa

eae
*

Ral vce

ab

aa,

207-8

5

CL MSE ST eR Ge RD

230 Ga.

KEY v. STATE.
No. 9638.

Supreme Court of Georgia.
July 12, 1933.

1. Homicide C248.
Evidence sustained conviction for mur-
der of wife as against defense of accident.

2. Criminal law €=829(4).-

In murder prosecution, charge predicat-
ing acquittal upon finding that fatal shooting
was accident obviated error in not charging
statute (Pen. Code 1910, § 40).

Pen. Code 1910, § 40, provides that a
person shall not be found guilty of any
erime or misdemeanor committed by mis-
fortune or accident, and where it satisfac-
torily, appears there was no evil design
or intention or culpable neglect.

3. Homicide €=341.

Failure to add to charge upon dying dec-
larations instruction that dying declarations
must be received’ with caution held not re-
versible error.

4. Criminal law €>786(2).

Instruction that jury could believe ac-
cused’s statement in its entirety, or reject it
in part and believe it in part, held not revers-
ible error because not instructing jury that
it might believe statement in preference to
sworn testimony (Pen. Code 1910, § 1036).

5. Homicide C152.

Charge that, when state proves accused
killed person named in indictment in county
named, and in manner described, prima facie
ease of murder is made out, unless there is
something in evidence or accused’s statement
that shows to’ contrary, it is presumed to be
murder, held proper.

6. Criminal law €=805(1).

Charge on dying declarations, correct as
given, held not subject to exception because
omitting principle which ought to have been
given therein.

7. Criminal law ©>782(8).

Charge requiring jury to reconcile any
eonflicts in evidence so as to make all wit-
nesses speak truth, if possible, and, if not, to
believe witnesses jury thought best entitled
to belief, held proper.

8. Homicide C311.

Charge that, if jury found accused guilty
of murder and yet did not want to inflict ex-
treme penalty, it should add to verdict, “and
we recommend he be punished in the peniten-
tiary for life,” held not injurious or mislead-
ing.

9. Criminal law G823(15).

Charge authorizing acquittal “if you

have a reasonable doubt as to his guilt, and

170 SOUTH EASTERN REPORTER

do not believe he is guilty” held not revers-
ible error because using “and” instead of
“or,” where court elsewhere charged that it
was jury’s duty to give accused benefit of
reasonable doubt.

Syllabus by the Court.

1. The evidence was sufficient to author-
ize the jury to find the defendant guilty, and
there was no error in overruling the general
grounds of the motion for new trial, based
upon the contention that the verdict was
without evidence to support it.

2. It was not error for the court to fail
to charge the jury the exact language of the
Penal Code, § 40, where in the charge as ac-
tually given the jury were instructed that, if
the shooting was an accident, the defendant
was not guilty.

3. The failure of the court to add, in ad-
dition to other instructions given upon the
subject of dying declarations, the further in-
struction that the dying declaration must be
received with caution, is not reversible error.

4. The failure of the judge, after having
correctly charged the jury as to defendant’s
statement, instructing them that they might

-believe it in its entirety, or reject it, or be-

lieve it in part and reject it in part, and that
they were to give the statement such force,
weight and effect as they should think it en-
titled to have, to add the words of the stat-
ute (Pen. Code 1910, § 1036) that they might
“believe it in preference to the sworn testi-
mony in the case,” was not reversible error.

5. The court did not err in charging the
jury that “When the State proves the accused
killed a person named in the indictment in
the county named, and in the manner named
and described, a prima facie case of murder
is made out; unless there is something in the
evidence, or statement of the defendagt, that
shows to the contrary, it is to be presumed
to be murder.” This statement of the law is
substantially correct as an abstract principle.
This ruling is applicable to the assignment of
error in ground 8 of the motion.

6. Error is assigned upon the following
charge of the court: “In order, first, for you
to consider what we call dying declarations,
you must first be satisfied that the deceased
was in articulo mortis and that she knew of
her condition; and if those two things are
present, then you would have a right to con-
sider it in evidence.” If some other principle
of law ought to have been given in charge
and the court failed to charge it, that fact is
not a good ground of exception to a charge
which is correct as given.

7. The following charge is also excepted
to: “It is your duty, as in all cases, to recon-
cile any conflicts in the evidence, if there are
any, and it is your duty to reconcile it so as
to make all the witnesses speak the truth,

C=For other cases see same tupic and KEY NUMBER in all Key Number Digests and Indexes

KEY vy. STATE Ga. 231
170 S.E.

if you can so do; but if you find testimony

you can not reconcile, you believe that wit-

ness or witnesses that you think best entitled
to belief.” This charge is a correct statement
of the law, and is not open to the exception
made to it.

8. The court charged the jury: “If you
decide he is guilty and yet you do not want
to inflict the extreme penalty and want him
to be put in the penitentiary for life, you
would add to your verdict, ‘and we recom-
mend he be punished in the penitentiary for
life’ ” This charge is not objectionable upon
the ground that it was injurious to the de-
fendant, or was confusing or misleading to
the jury; nor for any other reason assigned
in the exceptions to this charge.

9. The court charged the jury in the
course of his instructions that, “On the oth-
er hand, if you have a reasonable doubt as
to his guilt, and do not believe he is guilty,
the form of your verdict would be, ‘We, the
jury, find the defendant not guilty.’” The
fact that the court used the conjunctive word
“and” instead of the disjunctive “or” is not
such material error as to cause the grant of
a new trial. The disjunctive ‘or’ should
have been employed; but, in view of instruc-
tions in another part of the charge, the in-
accuracy here noted is not ground for the
grant of a new trial; for the court in an-
other part of the charge distinctly instructed
the jury that, “If, after a careful considera-
tion of the evidence, or the lack of evidence
and the defendant’s statement, you have a
reasonable doubt as to his guilt, it is your
duty to give him the benefit of that doubt and
acquit him.”

RUSSELL, C. J., dissenting in part.

Error from Superior Court, Houston Coun-
ty: Louis L. Brown, Judge.

Eugene Key was convicted of murder, and
he brings error.
Affirmed,

A, M. Anderson and Robert E, Brown, both
of Terry, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, M.
J. Yeomans, Atty. Gen., and B. D. Murphy
and Jno. T. Goree, Asst. Attys. Gen., for the
State.

BECK, Presiding Justice.

The plaintiff in error was indicted for the
murder of his wife, Katie Key, the indictment
alleging that he shot Katie Key on October
25, 1932, with a shotgun, with malice afore-
thought, and caused the wound from which
she died. Upon his trial he was convicted,
Without a recommendation, and was sentenc-
ed to suffer the penalty of death. He filed a
notion for a new trial, which he subsequent-
ly amended, adding numerous grounds. Up-

on the hearing of the motion, a new trial was
refused by the trial court, and pe excepted.

{1] 1. Under the evidence adduced by the
state, the jury were authorized to return the
verdict of guilty. The defendant admitted
firing the shot that caused the death of the
deceased, but he claimed that if was acciden-
tal. The defendant said, in part, in his state-
ment: “I am guilty of shooting my wife.
It was an accident. * * * We were not
fussing at the time it was done, Me and her
had decided what we would have for break-
fast, and she went to take the ashes out of
the stove, and I went to work on the car.
* * * T told her I would go and kill the
chicken, and she took the ashes out of the
stove, and I got my gun off the rack, and I
don't remember whether the gun was cocked
or not, but it went off in the floor, and after
that she come in, and here way the door and
here was the window, and here was the
trunk sitting in this corner, and when she
got in here I was not looking for her to go
back after she looked in the t)unk getting :
match and I throwed up the gun to shoot
out of the window and she turned right back
out of the trunk into the load, and I went to
get the doctor as quick as I cpuld.”

The wife made a statement after she was
shot, which was admitted as a dying state-
ment. <A witness, Dr. J. B. Key, testified as
to the dying statement whigh was made
after Dr. Key had called in two or three
other witnesses. Dr. Key testified: “We took
down what she had to say. She wanted to
make a statement her husband killed her in-
tentionally. The defendant was still in the
office and present when she made this state-
ment. She said she and her husband went
to Jones County to see his fayher, and they
went to a party and they haq a little fuss,
and there is where it started, and when they
eame back home they had a fuss that night
and he beat her up and the next morning
she said she was going to lpave; and she
was getting her things out of the trunk, and
she said when he first shot at her he missed
her, and she says, ‘You can go and see
where he shot in the floor; qnd the second
time he shot at me he told mg he was going
to kill me,’ and the load hit her in the side.
I never examined her clothing very closely
when she was in my office. When she made
that statement she was in a practically dying
condition, with no hope’ of saving her. I
had not given her anything to dope her up
before she made the statement. She was
fully conscious when she made the state-
ment, and talked intelligently.” There was
evidence corroborating the statement of the
woman, especially as to the two shots hay-
ing been fired in the house, and there was
also evidence of mistreatment of the de-
ceased by the defendant. And another wit-
ness who was present when the deceased was
making her dying statement, F. E. Cosey, tes-

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232 Ga.

tified: “Shortly before she died she talked
to the defendant, I told him she was going
to die, and asked him if he wanted to talk
to her, and he got up to go out of the door
one time, and I had to catch him, and he
walked to the cot and told her he was sorry
and wanted her, to forgive him, and she
says, ‘You know you ought not to have done
it, and you know you didn’t have any right
to do it.’” No attempt is made to set forth
a summary of all the evidence in the case.
The state introduced several] witnesses, and
the evidence of more than one of them tend-
ed to corroborate the statement made by the
woman who was killed. The evidence was
amply sufficient to authorize the jury to find
the defendant guilty.

[2] 2. The grounds of the motion for a new
trial are referred to here as they are num-
bered in the amendment to the original mo-
tion. Error is assigned upon the failure of
the court to give in charge to the jury section
40 of the Penal Code, which reads as follows:
“A person shall not be found guilty of any
crime or misdemeanor. committed by mis-
fortune or accident, and where it satisfactor-
ily appears there was no eyil design, or in-
tention, or culpable neglect.” The failure
to give this section in the language thereof
was not hurtful to the defendant, in view of
the charge actually given by the judge in
the course of his instructions. He charged
the jury, in part: “The state contends in
this ease that the defendant, Eugene Key,
unlawfully shot and killed Katie Key, and
that such killing was murder. To this state-
ment the defendant demurs and says he did
not; while he admits he did the killing, but
says that it was a pure accident and that
he is not guilty. Those issues you have to
pass upon.” (‘This succinct charge put square-
ly before the jury the question as to wheth-
er the shooting was intentional or accidental.
It would no doubt have been proper to read
all of section 40. But, if the court had, it
might have been necessary to explain what is
meant by the expression “culpable neglect,”
and the different degrees of negligence. But
where the court instructs a jury in a case
like this, where the defendant insists that
the homicide was the result of an accident,
the jury could not be misled or confused, or
stand in need of further instruction, where
the court informs them that, if the shooting
resulting in the homicide was an accident,
they should aequit. The ruling that is made
here coyers the exception to the charge con-
tained in grounds 12 and 18 of the motion.

[3] 3. In another ground error is assigned
upon the failure of the court to instruct the
jury that dying declarations “should be re-
ceived with caution.” The failure to add this
to the charge as given by the court was not
error. On the subject of dying declarations
the court actually instructed the jury as fol-
lows: “Dying declarations made by any per-

170 SOUTH EASTERN REPORTER

son in the article of death, who is conscious
of his condition, as to the cause of his death
and the person who killed him, are admissible
in evidence in a prosecution for the homicide.
So you will see, in order for you to be able
to consider this evidence, which ordinarily
would be hearsay, the person who made it
must be in articulo mortis, or in a dying
condition, and they must be conscious of that
condition; and when that is the case, they
can make a statement as to the cause of
death and the person who killed him. In that
connection I charge you that dying declara-
tions made by any person in the article of
death, and the person who killed him, are
admissible in evidence in a prosecution for
homicide. The court instructs you further
that as to testimony touching what are claim-
ed to be dying declarations, that in order to
make this evidence at all for your considera-
tion, you must be satisfied beyond a reason-
able doubt that the declarations, if any, were
made by the person making them when he
was in a dying condition, and that he knew at
the time the declaration was made he was
in a dying condition; in other words, a per-
son making a declaration is a matter for you
to decide whether or not that person was in a
dying condition, and whether they knew that;
and if either one of these conditions does not
exist, the alleged declarations would not be
testimony to be considered by you at all;
but if both exist, they would become what
the law terms dying declarations, and, if
made under such conditions, would be testi-
mony to be considered with all the other tes-
timony in the case. So you will see, in order,
first, for you to consider what we call dying
declarations, you must be first satisfied that
the deceased was in articulo mortis, and that
she knew of her condition; and if those two

things: are present, then you would have a.

right to consider it in evidence. While it is
admitted, it is like any other evidence, you
weigh it and pass upon it, giving it such
weight as you see fit.” This was a sufficient
charge on the subject of dying declarations,
and the failure to instruct the jury that
dying declarations must be received with cau-
tion is not reversible error.

[4] 4. Upon the subject of the defendant’s
statement, the court charged the jury as fol-
lows: “The defendant has made a voluntary
statement in his own behalf, not under oath.
That statement you have a right to believe
if you see fit. You have a right to believe it
entirely, or reject it in part and believe it in
part; you give this statement such force,
weight, and effect as you think it entitled to
have.” This charge is excepted to upon the
ground that the court failed to charge the
jury that they might believe the statement in
preference to the sworn testimony in the
ease, and that the jury were not instructed as
to just what credence they could give to the
statement, In charging upon the statement,

92

WEST v. STATE Ga. 933
170 S.B.

the court should have instructed the jury
that they might believe it in preference to the
sworn testimony; but, in view of the charge
as given, the omission of such instructions
is not cause for reversal; because the jury
were told distinctly that they had a right to
believe the statement in its entirety, or to re-
ject it in part and believe it in part. That
was tantamount to telling them that they
might believe it in preference to sworn testi-
mony. This ruling is applicable to the as-
signment of error contained in ground 6 of
the motion.

[5-9] 5-9. The rulings made in headnotes
5 to 9, inclusive, require no elaboration.

Judgment affirmed.

All the Justices concur, except RUSSELL,
C. J., who dissents from the rulings in divi-
sions 3 and 4 of the decision.

LONG v. BLACK.
No. 9439.

Supreme Court of Georgia.
July 13, 1933.

Syllabus by Editorial Staff.

Divorce €=269(2). :
Court has discretion as regards holding

defendant in contempt for failure to make ali-
mony payments.

Error from Superior Court, Fulton Coun-
ty; BE. D. Thomas, Judge.

Contempt proceeding by Nellie L. Long,
formerly Black, against Lester L. Black. To
review the judgment rendered, defendant
brings error.

Affirmed.

Abraham Ziegler, of Atlanta, for plaintiff
in error.

Chas. G. Bruce, of Atlanta, for defendant
in error.

Syllabus Opinion by the Court.

BECK, Presiding Justice.

Nellie Long, formerly Black, brought a pe-
tition against her former husband, Lester I.
Rlack, in which she alleged that he had
failed and refused to pay certain monthly
installments which were due her as a part of
permanent alimony under the terms of a
judgment and decree rendered in divorce
proceedings which had been formerly insti-

tuted by her, which resulted in the judg-
ment and decree referred to. And the prayer
of this petition was that “a rule nisi issue,
calling on the said defendany to show cause
why he should not be held in contempt cf
court.’ The defendant filed his response;
and upon the hearing of the case as made
by the petition and answer jn the contempt
proceedings, the eourt rendered a judgment
which in substance is that the defendant 1S
in contempt of court for his failure to pay
an arrearage of alimony, byt he is allowed
to purge himself of contempt by the payment
of specified sums on dates fixed in the judg-
ment. In the judgment it is expressly stat-
ed that it “is intended to cover a temporary
condition and not to change the original de-
cree.”

Under the evidence in the case it cannot be

held as a matter of law that there was any
abuse of discretion on the part of the court
in rendering the judgment excepted to,

Judgment affirmed.
All the Justices concur.

|

WEST v. STATE.
No. 9327.

Supreme Court of Georgia.
July 12, 1933.

Syllabus by Editorial Staff.
Criminal law €=911.

Trial judge has discretion as regards
granting or refusing new trjal.

Error from Superior Court. Wileox Coun-
ty; A. J. McDonald, Judge.

Charley West was conyicted of murder,
and he brings error.
Affirmed.

W. Il. Lasseter, of Fitzgerald, and A. Pea-
cock, of Atlanta, for plaintiff in error.

T. Hoyt Davis, Sol. Gep., of Vienna, and
Lawrence §. Camp, Atty. Gen., and T. R.
Gress, Asst. Atty. Gen., foy the State.

Syllabus Opinion by the Court.

ATKINSON, Justice.

This case involves the same homicide as
the case of McCormick v. State, 176 Ga. 21,
166 S. E. 762, in which Gene West, Charley
West, and T. Y. McCormick were jointly in-
dicted for the murder of Henry Hobbs by
shooting him with a gun. On separate trial
Charley West was convicted and recommend-

Celor other cases see same topic und KEY NUMBER in all Key

170 S.E.—15%4

Number Digests and Indexes

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GRICE, Justice.

[1] 1. In ground one of his motion
for new trial, the movant makes the con-
tention that the court erred in overruling
his challenge to the array of jurors. He
also excepted pendente lite to the same
ruling, and assigned error thereon in his
bill of exceptions. The basis of the chal-
lenge, the response of the State thereto,
and a stipulation as to the facts with re-
spect thereto are fully set forth in the re-
port immediately preceding this opinion.
The gist of the challenge was, that the ac-
cused, a negro, was being deprived of his
rights under the fourteenth amendment of
the constitution of the United States, and
the civil liberties act, in that no member
of his race would be put upon him as a
juror, for that negro jurors were systemati-
cally and deliberately excluded from the
jury list of Bibb County because they were
negroes, and for no other reason. We have
for determination the problem whether,
giving full effect to the decisions of the
Supreme Court of the United States on
this and related questions, the trial judge
abused his discretion in overruling the chal-
lenge. The contention made in ground one
of the motion for new trial is ruled ad-
versely to the plaintiff in error for reasons
stated in division 6 of this opinion.

2. Grounds two and three of the amend-
ed motion for new trial complain that the
court, over the objection of the movant,
admitted in evidence certain testimony of
Gibson, the deputy sheriff, as to statements
made to the witness by the plaintiff in error
and by Nathaniel Lamar, who was jointly
indicted with the plaintiff in error.

[2] This testimony was not subject to
the objection that the confessions were not
freely and voluntarily made. For an ofh-
cer to say to a person accused of crime that
it is always best to tell the truth, does not
render a confession made immediately
thereafter inadmissible. Miller v. State, 94
Ga. 1, 21 S.E. 128; Wilson v. State, 19 Ga.
App. 759, 92 S.E. 309; Nix v. State, 149
Ga. 304, 100 S.E. 197. Accordingly, it was
not error to refuse to charge that a con-
fession so made should be disregarded, as
contended in the seventh ground of the
motion.

[3-5] 3. It was also objected that the
confession made by Nathaniel Lamar, a
coconspirator, was made after the con-
spiracy had ended. The evidence was
such as to justify the jury in finding that

33 SOUTH EASTERN REPORTER, 2d SERIES

Lamar was a principal in the first degree,
while Watkins was a principal in the second
degree. Where two persons are jointly in-
dicted for murder, cach may be convicted
upon evidence showing that he was either
the absolute perpetrator of the crime, or
was present aiding and abetting the other
in its commission. Bradley v. State, 128
Ga. 20, 57 S.E. 237. One indicted merely
as a principal can be convicted on evidence
proving him guilty as a principal in the
second degree, if the facts be such as that
the act by which the crime was perpetrated
will, on established principles of law, be
imputed to him as committed by himself
through the agency of another. In such
case, the distinction of degree is immate-
rial. Collins v. State, 88 Ga. 347, 14 S.E.
474, The confessions of the principal in
the first degree are admissible to prove his
guilt on the trial of the principal in the
second degree. Studstill v. State, 7 Ga.
2(5).

[6,7] But, say his counsel, the confes-
sion of Lamar should not have been admit-
ted to show the latter’s guilt, because Wat-
kins admitted in open court Lamar’s guilt.
Evidence that is relevant can not be kept
from the jury by waiver of proof on that
point, or an admission of the fact. Clayton
v. Brown, 30 Ga. 490.

[8] 4. Grounds four and five of the
motion assert that a wrong was done to
the prisoner by the trial judge who, having
been requested to instruct the accused as to
his rights in making a statement, spoke to
him in the presence of the jury as follows:
“You are being charged with the offense
of murder. You are not under oath and
you can make your statement to the court
or any member of the jury what you want
the jury to know about this case. It is in-
cumbent upon you to tell them. Speak out
loud now so that they can hear what you
have to say and make any statement re-
garding this case that you desire.”

The record before us further shows that,
after the State rested its case, counsel for
the accused addressed the court as follows:
“Your honor, the defendant desires to make
a statement to the jury in this case. Would
the court instruct him as to his rights?”
Whereupon, his honor responded with the
words, “All right,” immediately preceding
the extract complained of. The gist of the
complaint here is that the court used the
word “incumbent,” whereas the defendant
was not required to make any statement
at all, and that the court should have so in-

hg

WATKINS v. STATE Ga. 331

es

Cite as 33 S.E.2d 325

structed him. His counsel, speaking for
him, having stated to the court that the
prisoner desired to make a statement, he
was not harmed by the use of the inapt ex-
pression employed by the judge. His coun-
sel evidently had in mind the Code, § 38-
415, which permits a defendant to make not
under oath a statement to the jury.

In view of the above recitals, it would
be straining to conclude that it was un-
derstood otherwise than as informing him,
as Agrippa said to Paul when brought be-
fore the King in order that charges made
against him might be examined, “Thou art
permitted to speak for thyself.” Acts 26:
1, There is no merit in this ground.

[9] 5. Ground six of the amended mo-
tion complains that the court overruled the
movant’s motion to declare a mistrial be-
cause the solicitor-general over objection
was reading to the jury the alleged confes-
sion of Nathaniel Lamar, the alleged prin-
cipal in the first degree, it containing an in-
flammatory statement against a certain in-
nocent person. The court overruled the
motion for mistrial, stating that, “This is
only evidence which has been offered to
show you the confession on which the al-
leged principal in the first degree was con-
victed, and it has no bearing on this case
with the exception that it shows the claimed
confession of the alleged principal in the
first degree. This man on trial can not be
convicted as principal in the second de-
gree unless that fact is satisfactorily shown
by other evidence.” There is nothing in
this ground to warrant the granting of a
mistrial.

6. In Padelford, Fay & Co. v. Mayor,
&c., of Savannah, 14 Ga. 438, may be found
the statement that, “The Supreme Court of
Georgia is co-equal and co-ordinate with
the Supreme Court of the United States;
and therefore the latter can not give the
former an order, or make for it a prece-
dent.” Judge Benning’s reasoning in that
case is buttressed by many expressions
from outstanding statesmen and jurists
who flourished in the dawn of.the republic,
and is based on a concept that was common
to leading men of all sections in the earlier
days; yet, as time rolled on, the very stars
in their courses seemed arrayed against
the plan of the founding fathers. One is
sometimes led to wonder if the States,
once sovereign, have not become, from a
practical standpoint, under the expanding
powers of the Federal government, the ex-
ercise of which has been sanctioned by

the Supreme Court of the United States
under its interpretation of the powers dele-
gated by the States, littlke more than geo-
graphical subdivisions of a consolidated
government, with but a minimum of author-
ity to regulate their own internal affairs,
and shorn of power to deal with their own
domestic problems in their own way.

Views similar to those uttered by the
Georgia judge in Padelford, Fay & Co. v.
Mayor, &c., of Savannah, supra, were ex-
pressed by Chief Justice McKean of Penn-
sylvania in Republica v. Cobbett, 3 Dall.
467, and by the great Judge Spencer Roane
of the Supreme Court of Appeals of Vir-
ginia in Hunter v. Martin, 4 Munf., Va., 3.
Nor were such opinions foreign to the
courts of Massachusetts, Ohio, Wisconsin,
California, Missouri and IJ]linois. Wether-
bee v. Johnson, 14 Mass. 417; Johnson v.
Gordon, 4 Cal. 368; In re Booth, 3 Wis. 1,
49; Knoup v. Piqua Branch of State Bank
of Ohio, 1 Ohio St. 603; Chadwick v.
Moore, 8 Watts & Serg. 49, 42 Am.Dec.
267. To recall how prevalent such state-
ments were at one time in various sections
of the country, as found in court deci-
sions, resolutions of State legislators, and
the deliverances of representatives and sen-
ators on the floor of the American Con-
gress, one has but to acquaint himself with
Warren’s “The Supreme Court in United
States History.” But such language as
was contained in the Georgia case referred
to above today sounds like a voice from
the tomb. Indeed, one who went -to battle
for four years, seeking to maintain the
principle on which that pronouncement
rests, observed with reference to that opin-
ion as follows: “The war killed that deci-
sion as it did the one in the Dred Scott
case, and. both are buried in the same
grave.” (1909 Report of Georgia Bar As-
sociation, pp. 132, 134.) The writer re-
ferred, of course, to the controlling pro-
nouncement in that decision, which was
that the Supreme Court of Georgia had
the right to decide for itself whether or
not a municipal ordinance, or an act of the
Gencral Assembly, was a violation of the
constitution of the United States, regard-
less of the interpretation placed thereon by
the Federal Supreme Court. <A similar
thought to that contained in the words
quoted was in the mind of Chief Justice
Bleckley when, speaking for this court in
Wrought Iron Range Company vy. John-
son, 8+ Ga. 754, 11 S.Ie. 233, 235, 8 L.R.A.
273, he said: “After the state has yielded

pace

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332 Ga, 35 SOUTIL EASTERN REPORTER, 2d SERIES

to the federal army, it can very well af-
ford to yicld to the federal judiciary.
* * * The doctrine of co-equality and
co-ordination between the supreme court
of Georgia and the supreme court of the
United States, so vigorously announced by
Benning, J., in Padelford [, Fay, & Co.] v.
[ Mayor, ete., of] Savannah, 14 Ga. [438]
439, regarded now from a practical stand-
point, seems visionary. Its application to
this or any like case would be a jarring dis-
cord in the harmony of the, law. More-
over, any attempt to apply it effectively
would be no less vain than discordant.
When we know with certainty that a ques-
tion arising under the constitution of the
United States has been definitely decided
by the supreme court of that government,
it is our duty to accept the decision, for
the time being, as correct, whether it co-
incides with our own opinion or not. Any
failure of due subordination on our part
would be a breach, rather than the admin-
istration of law.”

[10] It needs scarcely to be added that
this court, when a question arises as to the
construction of a portion of the constitu-
tion of the United States, or a statute en-
acted in pursuance thereof, feels it to be
its duty to follow, as binding precedents,
the adjudications of the Supreme Court of
the United States. State v. Atlantic &
G.'R. Co., 60 Ga. 268; Georgia Railroad v.
Cubbedge, Hazlehurst & Co., 75 Ga. 321;
Murray v. Miller, 157 Ga. 11, 121 S.E. 113;
Slicer v. State, 168 Ga. 566, 148 S.E. 385.

Counsel for the accused relies on that
line of decisions by the Supreme Court of
the United States which hold in effect that,
the absence of all negroes from the petit
jury by which a negro is tried for an of-
fense, resulting from a systematic and ar-
bitrary exclusion of negroes from the jury
lists solely because of their race or color,
is a denial of the equal protection of the
laws guaranteed to him by the fourteenth
amendment of the United States constitu-
tion. Neal v. Delaware, 103 U.S. 370, 26
L.Ed. 567; Norris v. Alabama, 294 U.S.
587, 55 S.Ct. 579, 79 L.Ed. 1074; Strauder
v. West Virginia, 100 U.S. 303, 25 L.Ed.
664; Ex parte Virginia, 100 U.S. 339, 25
L.Ed. 676; Gibson v. Mississippi, 162 U.S.
565, 16 S.Ct. 904, 40 L.Ed. 1075; Rogers
v. Alabama, 192 U.S. 226, 24 S.Ct. 257, 48
L.Ed. 417; Martin v. Texas, 200 U.S. 316,
26 S.Ct. 338, 50 L.Ed. 497; Hollins v. Okla-
homa, 295 U.S. 394, 55 S.Ct. 784, 79 L.Ed.
1500; Pierre v. Louisiana, 306 U.S. 354,

59 S.Ct. 536, 83 L.Ed. 757; Hill v. State of
Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed.
1559; Hill v. State of Texas, 316 U.S. 655,
62 S.Ct. 1048, 86 L.Ed. 1735; Bush v. Ken-
tucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed.
354; Smith v. Texas, 311 U.S. 128, 61 S.Ct.
164, 85 L.Ed. 84. Perhaps the strongest
case, from the plaintiff in error’s view-
point, and the one on which reliance is
chiefly placed, is Norris v. Alabama, supra,
the contention being that the facts of that
case, and the ruling of the Supreme Court
of the United States therein, compel a re-
versal of the instant case.

[11-14] The Federal Supreme Court
has several times said that it is not neces-
sary that negroes actually serve on the
jury that tries an accused negro, there be-
ing no requirement that there shall be a
mixed jury. Neal v. Delaware, 103 U.S.
370, 26 L.Ed. 567; Gibson v. Mississippi,
162 U.S. 565, 16 S.Ct. 904, 40 L.Ed. 1075;
Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338,
50 L.Ed. 497. There is no legal signifi-
cance, therefore, to be attached to the fact
that there were no negroes on the jury that
convicted Watkins. Norris v. Alabama,
294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074,
was a case where, after announcing the
proposition that the exclusion of all ne-
groes from a grand jury by which a negro
is indicted, or from the petit jury by which
he is tried for the offense, resulting from
a systematic and arbitrary exclusion of ne-
groes from the jury lists solely because of
their race or color, is a denial of the equal
protection of the laws guaranteed to him
by the fourteenth amendment, the court
reviewed the evidence and found that it
established a systematic exclusion of ne-
groes from jury service in two Alabama
counties, solely because of their race and
color. The report of that case shows that
there the court had before it the Alabama
statute, which required the jury commis-
sioners to place on the jury roll and in the
jury box the names of all the male citizens
of the county who are generally reputed to
be honest and intelligent men, etc. The
Georgia law is different. The constitution
of this State declares that the General As-
sembly shall provide by law for the selec-
tion of the most experienced, intelligent,
and upright men to serve as grand jurors,
and intelligent and upright men to serve
as traverse jurors. In pursuance of the
constitutional mandate, the General As-
sembly has enacted that: “The board of
jury commissioners shall revise the jury

t
é

WATKINS v. STATE Ga. 333
Cite as 33 S.B.2d 325 :

lists. The jury commissioners shall sclect
from the books of the tax receiver upright
and intelligent men to serve as jurors, and
shall write the names of the persons so
selected on tickets,” as required by law.
“They shall select from these a sufficient
number, not exceeding two-fifths of the
whole number, of the most experienced,
intelligent, and upright men to serve as
grand jurors, whose names they shall write
upon other tickets.” Code, § 59-106. After
referring to the above, this court, in Davis
v. Arthur, 139 Ga. 74, 79, 76 S.E. 676, 678,
said: “It. is contended that the constitu-
tional requirement is that all persons quali-
fied for jury service shall be placed on the
jury list. We do not think so. The con-
stitutional demand is for a jury list com-
posed of upright and intelligent men; not
that every upright and intelligent man be
included in the list. Otherwise there could
be no exemptions, and every upright and
intelligent man must needs be placed on
the jury list to make it legal. Under the
Constitution and law it is the sound legal
judgment of the commissioners which con-
trols in the number of grand and traverse
jurors to be selected. Thomas v. State, 67
Ga. 460; Wilson v. State, 69 Ga. 224;
Rawlins v. State, 124 Ga. [31], 38, 52 S.E.
1.” In the Alabama case, the court said
that the testimony tended to show that in a
long number of years no negro had been
called for jury service in that county, and
indeed, that no negroes were put: on the
jury rolls. The stipulation in the instant
case shows that the names of negroes are
in the jury box, and that from time to time
they have been summoned for jury service.
That a larger proportion of negroes were
not selected for jury service, can mean no
reflection on them, nor can it be attributed
to a desire to violate the law, since the
Statute prescribing their duties leaves it to
the judgment of the members of jury com-
missioners as to how many names to place
in the jury box. That the lists of names
furnished them from the tax digest listed
blacks and whites separately means noth-
ing, because the statute requires that the
tax returns of the colored and white tax-
payers shall be made out separately on the
digest. Code, § 92-6307. The purpose of
this, we apprehend, is to aid in identifying
the taxpayer so that the tax officials may the
better locate any tax defaulters. The dis-
tinction between the Alabama and_ the
Georgia statutes as to the duties of the jury
commissioners is most important. In the

former, it would seem to be the duty of
the officials to place the names of all citi-
zens who came up to the required stand-
ards, while, in the latter, they need not,
and as a matter of fact do not place the
names of all the upright and_ intelligent
taxpayers in the jury box, but only such
a number of them as in their judgment is
sufficient.

[15-17] Able counsel for the accused
suggest that the records show that in Bibb
County, where the trial took place, there
has been but. a token acquiescence in the
decisions of the Supreme Court of the
United States above referred to. They call
attention to the fact that in 1940 the total
population of Bibb County was 83,783, of
whom 35,536, or 42 per cent. were negroes,
and that yet, in the jury box from which
the trial jury in the instant case was
drawn, there were 2493 names, of whom
only 44, or 1.8 per cent. were negroes; and
to the further fact that in Bibb County
there are a substantial number of good ne-
gro citizens whose names are not in the
jury box. It does not appear how many of
these latter fall within one of the seventeen
occupations that are by statute made ex-
empt from jury duty, or whether they are
over 60 years of age, and for that reason
are exempt. Code, § 59-112. Nor does the
stipulation show what number or what per-
centage of upright and intelligent white
men there are whose names are not in the
jury box. We do know that the jury com-
missioners are not required to place in the
jury box the names of every upright and
intelligent citizen. It is a matter of com-
mon knowledge that there is more illiteracy
among the blacks in our midst than among
the whites. By far the larger portion of
the former are ignorant, unskilled, manual
laborers, many of whom are utterly in-
competent to serve on juries. When the
jury commissioners, charged with the duty
of placing in the jury box a sufficient num-
ber of upright and intelligent citizens, have
completed their labors, if it should appear
that by a mathematical calculation it con-
tains the names of a much smaller percent-
age of blacks than of whites, is this fact
alone sufficient to convict the commission-
ers of a deliberate purpose to evade the
law in the face of the sworn testimony of
each that no discrimination was had_ be-
cause of race or color? We think not.
While the taxpayers of this State have
from their much publicized poverty spent

ob
~ 3

2
and


ena 5 i te Sateen

334 Ga.

millions of dollars to educate the blacks
among us, and while members of that race
have shown much advancement since their
ancestors were brought from Africa, it
would be contrary to what every one knows
who is acquainted with the facts to judi-
cially declare that among the blacks of this
State there is as large a percentage of those
who possess the qualifications for jury
service laid down by our Code, as among
the white population; and it-should be a
matter of no surprise that the return of the
jury commissioners of Bibb County indi-
cated as much. There is nothing in this
record to justify us in concluding that the
case should be reversed on the ground that
it is shown that there has been a deliberate
and systematic purpose of the jury com-
missioners to evade in this respect the law
as announced in the decisions of the Su-
preme Court of the United States above
referred to.

[18,19] Reliance is also placed on the
fact that no negro has ever served as a
juror in a criminal case in Bibb County
since 1919, the date when the present pro-
secuting attorney, the solicitor-general of
the judicial circuit of which the county of
Bibb forms a part, took office. Let it be
noted that the stipulation is, not that no
negro juror has ever been drawn for serv-
ice in criminal cases, but that none has ever
served during the incumbency of the pres-
ent solicitor-general. That officer frankly
stated why that was the case, and placed it
in the record. Under our Code, in the se-
lection of a jury, the State, as well as the
defendant, is allowed a certain number of
peremptory challenges. Code, § 59-805.
Such has been our law since long before
the fourteenth amendment was ever
dreamed of. Exercising that right, the
solicitor-general struck the names of ne-
groes from the list furnished him because,
as he said, he did not believe it best to have
a mixed jury. Under our practice, no rea-
son is at the time assigned therefor. The
very word “peremptory” implies just that.
A peremptory challenge is an arbitrary and
capricious species of challenge to a certain
number of jurors without showing any
cause. Lewis v. United States, 146 U.S.
370, 13 S.Ct. 136, 36 L.Ed. 1011.

In Norris v. Alabama, 294 U.S. 587, 55
S.Ct. 579, 580, 79 L.Ed. 1074, may be found
the statement that, “Although the state
statute defining the qualification of jurors
may be fair on its face, the constitutional

33 SOUTIL EASTERN REPORTER, 2d SERIES

provision affords protection against actions
of the State through its administrative of-
ficers in effecting the prohibited discrim-
ination.”

[20] We do not understand that the
learned Chief Justice thereby meant to lay
down the proposition that an attorney in
a cause, in exercising his right to peremp-
tory challenges, had no right to strike from
the panel of jurors handed to him a juror
for any reason on earth or for no reason
at all. It may be exercised in a given in-
stance because he was a banker, a farmer,
a merchant, a mechanic, a bald-headed
man, a black man, a brown man, or a yel-
low man.

Since it is not the right of a negro to be
tried by a mixed jury (Martin v. Texas,
supra, and several earlier cases from the
Supreme Court of the United States), the
exercise by the State’s counsel of his pri-
vilege of peremptory challenge, in order to
prevent a “mixed jury,” shows no ground
for reversal.

[21,22] Jury service is not a right, or
a privilege, but a burden which the State
summons certain of its citizens to bear. In
the administration of justice with us, issues
of fact are submitted to a jury. Mr. Jus-
tice Black, in Smith v. Texas, 311 U.S. 128,
61 S.Ct. 164, 165, 85 L.Ed. 84, remarked
that, “It is part of the established tradition
in the use of juries as instruments of public
justice that the jury be a body truly repre-
sentative of the community.” No such
tradition has been established in Georgia.
In every community in this State, as in
every other State, there are idiots, insane
persons, men enfeebled by age, vagabonds,
and also men of bad character, white and
black. We in this State exclude all such
from jury service. We also exclude fe-
males and minors. Our juries, therefore,
are not bodies “truly representative of the
community.” -We go further. We impose
the burden only on those who are upright
and intelligent, and not upon all of these.
We leave it to the discretion and judgment
of the jury commissioners to place on the
jury list such of these as in their opinion
constitute a sufficient number to carry on
the work required of juries. Under our
system, the jury is not, therefore, neces-
sarily a cross section of the entire com-
munity, but a chosen body selected from
a larger number to assist in the adminis-
tration of justice. It is new to us that “the
jury be a body truly representative of the

.
$
5
7

WATKINS vy. STATE Ga =. 335
Cite as 33 S.E.2d 325 ;

community.” We have an entirely differ-
ent conception of the jury system.

No error is shown in the ruling of the
trial judge in not sustaining the challenge.

Before taking leave of this branch of the
case, it is deemed not inopportune to make
this observation. Any attempt by this
court or any other State court to disregard
the plain and oft-repeated adjudications of
the Supreme Court of the United States
upon the subject (unless and until that tri-
bunal at some future day shall itself re-
pudiate and overrule them) would be as
powerless as the voice of King Canute
when he commanded the waves of the sea
not to come near his throne; as futile as
the efforts of Dame Parkington, the im-
mortal character created by Sydney Smith,
who with her mop and broom undertook to
arrest the tide waters of the Atlantic
Ocean that were entering her domain.
When the power to effectually resist is
lacking, it is no use to kick against the
pricks.

[23] 7. The evidence authorized the
verdict.

Judgment affirmed. All the Justices con-
cur, except ATKINSON, J., who concurs
specially in the ruling in the third head-
note, the corresponding division of the
opinion and in the judgment, and WYATT,
J., absent on account of sickness.

ATKINSON, Justice (concurrring spe-
cially).

I concur in the judgment, but not in all
that is said in the third headnote and cor-
responding division of the opinion.

That portion of the confession of the
principal in the first degree which tended
to show the guilt of the accused was not
admissible and was highly prejudicial. «It
is not the policy of our law to permit the
confession of a third person, made after
the criminal enterprise has ended,, to be
used for any purpose except to establish
the guilt of the party who made it. Lyon
v. State, 22 Ga. 399; Kelly v. State, 82 Ga.
441(2), 9 S.E. 171; Robison v. State, 114
Ga. 445(2), 40 S.E. 253; Gibbs v. State,
144 Ga. 166, 86 S.E. 543; West v. State,
155 Ga. 482(1), 117 S.E. 380; Whitaker v.

State, 159 Ga. 787, 127 S.E. 106; Bryant
v. State, 197 Ga. 641(9), 30 S.E.2d 259.

In order to convict the accused as a prin-
cipal in the second degree, even though he
is jointly indicted as a principal in the first
degree, it was essential to establish the
guilt of some one as a principal in the first
degree; and to do so, the State could es-
tablish this by the record of conviction of
the principal in the first degree, by evidence
to establish his guilt, or by so much of his
confession as admitted his own guilt; but
that portion of the confession which im-
plicated the accused was not admissible.
This question was not ruled upon in the
case of Studstill v. State, 7 Ga. 2(5), which
is cited in the foregoing opinion of the
court.

In Howard v. State, 109 Ga. 137(4), 34
S.E. 330, where the confession of the prin-
cipal which implicated the accused was ad-
mitted, the court by a full bench decision
reversed the case, holding that part of the
confession tending to show the guilt of the
principal was admissible, but such portions
as implicated the accused were not admis-
sible. This rule was applied in affirming
the case of Brooks v. State, 103 Ga. 50, 52,
29 S.E. 485, where it was stated: “An ex-
amination of the record discloses the fact
that the trial judge was very careful to ex-
clude from [the confession of the principal
in the first degree] all reference to the
participation of plaintiff in error with the
homicide.”

Notwithstanding the foregoing, I am
compelled to concur in the result of the
ruling made in this division of the opinion,
for the reason that there was no proper
objection interposed to the admission of
this portion of the confession. The only
objection made was to the entire confes-
sion, and no objection was interposed to
that portion which related to the accused.
So much of it as would establish the guilt
of the principal in the first degree was ad-
missible. It is a well-established rule that,
“where evidence is objected to in its en-
tirety, and any portion of the same is not
subject to the objection, it is not error to
admit the entire evidence over such ob-
jection.” Lewis v. State, 196 Ga. 755(1),
759, 27 S.E.2d 659, 663, and citations.


LANDERS, Hollis, hanged Jefferson, Jackson Co., GA 5/7/1920

ooo .
eee

LANDERS JS HANGED: >
AT. JEFFERSON FRIDA: A Y

; ‘Jetraraon,| Ga. May 7—(Special.)
Hollis Landers. convicted-of the
murdér of Sheriff Cliff Barber, was
hanged at the- Jackson county jalk
at Jefferson this morning, -A crowd:
| gathered around the court) ouse, but
foaly a.< very few, “witnessed. the
pharging. ;

} Yanders. who: was brought. here.
from Athens this morning, stated
that: he hated to shoot-Sheriff Bar-
ber. but that he wauld have liked
to: have got Sheriff Crow. of Hall
}county. At tbe time of the murder,
| Landers was under charges of-steal-
ing. am automobile and of being a
-glacker. He will-.be buried at a
1 country: church near “‘Hoschton, his
home community, Saturday. -.


%..

Tete at OF

836

during the feos of the criminal project,
although not if. the presence or hearing of the
one accused én trial, were admissible in tes-
timony. Darden v. State, 172 Ga. 590, 158 8S.
yi. 414. his ruling applies to grounds
6 and 7 of the motion for new trial.
The testimony there complained of was not
jraamissible for any reason assigned. The
jury being authorized to find that a conspira-
cy existed, having as its object an escape
from the chain gang by violence, it-was not

~ necessary to restrict the evidence to declara-

tions against the particular guard who was
actually killed. To make such declaration
admissible it is not essential that all such de-
clarants should enter or be concerned in the
conspiracy at or during the same time; pro-
vided the evidence shows, as in this case, that
the defendant joined the conspiracy and was
an actual participant in the homicide, the
object of the conspiracy.

{4,5] 4. No ground of the motion com-
plaining of portions of the instructions of
the court to the jury shows crror.

5. The court did not err in refusing to
grant a new trial.

Judgment affirmed. ;

All the Justices concur. -

JS
G ifoaeraeneensy

LIVELY v. STATE. *
No. 10079.

Supreme Court of Georgia.
March 14, 1934.

{. Criminal law C912.

Admission of evidence is not ground for
new trial, unless objection was urged there-
to when evidence was offered.

2. Criminal law €>1!69(9).

In murder prosecution, admission of al-
leged conclusion of witness as to which of
two people was first cut with razor by accus-
ed held harmless.

3. Criminal law €=404(3).

In murder prosecution, razor offered in
evidence as weapon with which murder was
committed held sufficiently identified to au-
thorize its admission.

4. Criminal law C=656(5). ;
Statement of judge examining witness of
tender years, in hearing of jury, that wit-

Ga. 173 SOUTH EASTERN REPORTER

ness was young, but that jury could see her
and had heard her responses, and that judge
would let witness tell whatever was desired
to be asked her before jury, and that jury
could weigh her testimony, held not error.

5. Witnesses €52(7).

Wife of accused held not competent wit-
ness in his behalf, notwithstanding he had
jeft her and lived with another woman.

6. Criminal law ©=826. ° :

In murder prosecution, where defense
was insanity, charge embodying Code sec-
tions on insanity and instruction on reason-
able doubt, and stating that eriminal respons-
ibility was question for jury, held sufficient
charge on insanity, absent timely proper re-
quest for fuller charge (Pen. Code 1910, $§
33, 30).

7. Criminal law €=824(10).

Failure to charge on credibility of wit-
nesses, without appropriate request, is not
error.

8. Criminal law €=815(1).

Charge including instruction on presump-
tion of accused’s innocence and various forms
of verdict which jury could return held not
prejudicial because failing to specifically
state that accused entered plea of not guilty.

9. Criminal law €=762(5).
Homicide €=307(4).

Where only defense was insanity, in-
struction that indictment charged accused
with offense of murder in killing of deceased
held not confusing, or expressive of ‘opinion
that accused had killed deceased, or objec-
tionable as eliminating lesser degrees of hom-
icide from jury’s consideration.

10. Homicide €=>307(1). :

In murder prosecution, charge that, when
state proves .that accused Killed deceased
with weapon likely to produce death in the
way used, prima facie case of murder is made
out, and unless there is some evidence to
show contrary presumption fs that it is mur-
der, but presumption may be rebutted, held
not error.

Charge was not erroneous, as against the
contention that it was unsound as an ab-
stract proposition of law; that it should
have included an instruction that a pri-
ma facie case of murder is made out un-
less allevinting or mitigating circumstanc-
es are shown, and that insanity would be a
mitigating or alleviating circumstance;
that the charge placed the presumption of
guilt instead of the presumption of in-
nocence on accused; that it placed upon
accused the burden of rebutting the pre-
sumption of murder; that it expressed
or intimated the opinion that accused was
guilty of the offense of murder, that the

—

Gor other cases see same topic and KEY NUMBER in all Key Number Digests and ludexes

LIVELY vy. STATE Ga. 837
173 S.E.

state had made out a prima facie case of
murder, and that unless accused could re-
but such presumptien, he should be con-
victed of murder; and that the charge
should have included in connection there-
with the amount or weight of evidence nec-
essary to rebut the presumption of mur-
der.

If. Criminal law ©=778(7). :

Charge that hurden was on aceused to
prove insanity defense to reasonable satis-
faction of jury held not reversible error be-
cause stating that, when one acts to void deed
upon ground of insanity, he has hurden. to
establish insanity at time deed was executed,
-Since jury knew that validity of deed to land
was not in question.

12. Criminal law €825(3).

In murder prosecntion, charge in Jan-
guage of Code on murder and on express and
implied malice held not erroneous because
not including, without appropriate request
for elaboration, any further explanation (Pen.
Code 1910, §§ 60-62).

13. Criminal law €=762(5).

Charge that verdict of not guilty would
mean that accused would be discharged with-
out any punishment or confinement, and that
that would end the case, held not objection-
able as expressing opinion as to accused’s
guilt or as pufting accused's character in is-
sue.

14. Homicide €=294(1).

In murder prosecution, where defense
was insanity, charge that if man has suffi-
cient reason to distinguish between right and
wrong, in relation to particular acts about
to be committed, he is criminally responsible,
held proper.

Syllabus by the Court.

1. For admission of evidence to be a
ground for new trial, it must appear what
objection was urged at the time it was offer-
ed.

2. A witness testified: “I reckon he had
done cut his mother-in-law’s throat-last. I
don’t know which one he cut first.” Objection
was interposed “to what the witness reck-
ons.” It does not appear that the testimony
was hurtful to the defendant; and even if
the testimony be construed as a conclusion by
the witness, its admission was harmles:.

3. The identifieation of the razor /ifer-
ed in evidence as the weapon with which the
crime was committed was suflicient fo au-
thorize its admission in evidence.

4. In the course of his examinatign of a
witness of tender years, the judge didnot err
in stating in the hearing of the jury:! “Gentle-
men, of course, she is rather verug, rather

undeveloped. At the same time, I believe the
jury can see her, and they have heard her
responses; and I will let her tell whatever
you desire to ask her before the jury, and
they can put whatever weight they see fit to
give it on her testimony, what she says.”

5. The wife of the defendant was not a
competent witness to testify in his behalf.

6..No reversible error appears in the ex-
cerpts from the charge of the court to the ju-
ry, assigned as error.

7. The evidence authorized the verdict,
and the court did not err in refusing a new
trial.

Error from Superior Court, Fulton Coun-
ty; C. C. Pittman, Judge.

Miley Lively was convicted of murder, and
he brings error.

Affirmed.

Falter M. Archer and Robert McGinley,
both of Atlanta, for plaintiff In error.

John A. Boykin, Sol. Gen., J. Walter he
Craw, and John H. Hudson, all of Atlanta,
and M. U. Yeomans, Atty. Gen., and B. D.
Murphy and Jno. T. Goree, Asst. Attys. Gen.,
for the State.

HUTCHESON, Justice.

Miley Lively was indicted for the murder
of Rethey Kell. He was tried, convicted, and
sentenced to be electrocuted. His motion for
new trial was overruled and he excepted.

{tj 1. Ground 1 of the amendment to the
motion for new trial assigns error because the
court allowed a witness, Lucile Barrett, to
testify; she being of tender years. The as-
signment of error is, “Because the following
material evidence was illegally admitted by
the court to the jury, to wit,” and then follow
several pages of questions by the court and
answers by the witness, looking to the qual-
ification of the witness to testify. Apparent-
ly there was no objection by counsel for the
defendant to the competency of the witness,
or to the testimony as given by her; and
the assignment of error presents no ques-
tion foi this court to pass on. Polk vy. State,
18 Ga. App. 324 (5), S9 S. E. 4837; MceDow
v. State, 176.Ga. 764 (3), 168 S. EB. S69.

[2] 2. Special ground 2 complains because
Dixie Hood, a witness for the state, when the
question was asked, “When you saw him cut-
ting his own throat, what did you do?” tes-
tified: “I reckon he had done eut his mother-
in-law's throat last. I don't know which one
he cut first.” The objection urged was: “We

topie and KEY XU

C>For other cases io | :
3 :  /~

MBIER tn all Key Number Digests and Indexes

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bAg
Miley Lively PLACE — CITY OR COUNTY . DOE & MEANS
Ga, SP (Fulton) Fe -202193h.

DOB OR AGE RACE OCCUPATION RESIDENCE

(48)

RECORD

NAME

GEN

CRIME

VICTIM

MOTIVE

SYNOPSIS

"Miley Lively, middle-aged Atlanta man, was executed at the State ‘rison farm at Milledgeville for
the razor slaying of his mother-in-law who he cut to death at Ter tome tast duly. _tivety,—supt.
Rolard Lawrence of the prison farm, H4¥XM said signed a confession in the death cell next to the
electric chair Thursday nignt—in the vresence of-a-number—of peopie,—hively-aisotitied his wife
with the same razor but he was not tried for that crime, He slashed his own throat at the time and
ernie evielsork of physicians saved his life, Two shocks of electri city were applied when he went,
to the chair, Supt. Lawrence said Lively said in the death chamber: 'I confess everyihing and am
ready tao die,' just before he was strapped in the chair, Supt, Lawrence cave out the following
tesxt of the confession which he said Lively dictated and signed: "Lord, as I kneel here before my
cot_in this death cell, conderned to die, surrounded by men who have goodness in their heart to
come to me at this hour, Lord, I am ready and willing to confess that lam guilty of this crime,
Elessed Lord, it has all come out, I am willing to go, Please, father, come to me and understand
me aS 4 speak here to you that l amready and wilting to confess everybring, bord, wile fam
surrounded by t:ese men I want to say that I never understood until now why this crime was cormitted
—it-was-done—in-a_state-of_insanitythat—eameover_me, bord, go+o-them—in their scrief, Stand Dy
me and put me in the ground and stay with me, That I confess it is all that I know to do. Gracioug
Sather, this message is all that I can say that they have brought You to me tonight, T am thankful
for it and I go to my death in the morning with a clear conscience, Amen," Supt, Lawrence said
_Lively called Deputy Sheriff Tolbert of Fulton County who brought Lively to the prison and told him
KUMAR ARAKA that he wanted to confess to himx 'that I kag told a party sometime before that I had
a thought in my mind to kill my wife; that I would do this.! He said he forgave the child who
testified against him in his trial and that he had no malice toward anyone, *
ATLANTA JOURNAL, Atlanta, Ga., <pril 20, 193k.

Women slashed to death with razor Wednesday morning, July 26, 1933, on Tumlin St, near Marietta
St. Miley. Lively, 48, borther-of Bill Lively, former—eity—dog catch 3sai x
have killed his wife, Mrs, Rose Kell Lively, 3h, and her mother, Mrs, A. F, Kell, using an old-
—fashioned_straight—razor_as the instrument of death, Lively, reported to have been married four
times, was said by his first wife, Mrs, Jessie Lively, to have been unstrung over the possibility
of bisamy prosecution which had been initiated by Mrs, Rose Lively. The first Mrs, Lively said
her former husband called on her on Tuesday morning and told her he was ready to surrender to the
solicitor general's office to face the charges, After killing the two women, Lively slashed his
Own throat and is in a critical condition at Grady hospital, Mr. and Mrs. Miley Lively had been —
married three years, but separated three weeks ago, it was stated by Bill Lively, who hurried to
Grady Hospital to see his brother and collapsed on realizing t i i ies,
Lively, according to his brother, had been in Alabama for s

ing. ‘Yednesday—morning, abou +H ock, according +
and Tumlin Sts., near the residence of his mother-in-law
i S ould not allow it and Lively
advanced to the porch of the Kell residence and asked his wife if she was going to live with
himor not, Mrs, Lively attemted to enter the house but was seized by Lively who had drawn the
tHazor from a pocket in his ctothin 2. —_He-aimost—severed her he 3
“ell came to her daughter's rescue, slashed her so severely that she died near Marietta Street whil
~ er - x i said, then drew the keen instrument
across his own throat, in€licting a deep wound which may result in his death, At Grady Hospital
—it—was_determined that he had a chance of recovery in that his jugular vein was not severed,
“Radio Patrolman R. C. Tugsle, directed to the tragedy, said he found Lively and his wife Iying
on the sidewalk in front of the Kell residence, "I spoke to Lively, and asked him who did the
cutting, He was very wak and could hardly speak, but told me that he had done tt.* When Hrs,——
Kell ran from her home , she was accompanied by Lucile Kell, her 7-year-old granddaugher,
“dercotes of 955 Bankhead Avenue, a broyher-in-law of Lively told police that Lively and hts-wite-had
been estranged for some time and that he had threatened her life on numerous occasions, Mrs,
Jacobs was enroute to Grady Hospital for trea ; i tsi
residence a short time after tragedy. She was prostrated.

7 had 2 ct Ane : > =e + ey Nag n

at he had cut

Produce Row to obtain vecetables to sell during the day,
ran, Said her grandmother walked to side-

walk after she had been cut and some neighbors tied a rag around her throat and she walked to

Hgrietta St, where she fell dead. Another witness, “, Wilson, testified he saw Lively holding

ONey fair over the banister and cutting throat with razor Little girl was beating him with
a broom while he was so doing. ATLANTA JOURNAL, July 26, 193%

Ss


LN

’
*
«

a PAN

SK. |

tao SON OE

8388 Ga. 173 SOUTH EASTERN REPORTER

object to what the witness reckons.” If the the statement by the court that paar the
meaning of the objection is that the testi- put whatever weight they see argh co) - dia
mony was a conclusion of the witness, it on her testimony, what she ei wa ot
does not appear that the testimony could stantially what the court tel Ss beet
have either benefited or harmed the defend- in such a cane, that the jury alge ape
ant. ‘Two people were cut with a razor by testimony just such weight as they nD
the defendant, and the witness was being entitled.

asked which was cut first. It could make ew tee
no material difference what was the otder of hock Gp tad Sack bs ae aati tds
the cutting. The ground of objection is with- jae nA qaniies Udiaiadk Mkeke tet
Ce Jessie Lively was the wife of the defendant
[3] 3. The third assignment of error is on and therefore she was an nega ego
the ground that the court illegally iA ea Bot is oe ts Foe eecat sec sn
i yidenc Nf it has not been mar Jes é
wohcd teat y Seoneghar garebgt was used ly); he was never divorced from — pod
in the commission of the crime. The razor but —s ee and viens bir png
was submitted to several witnesses, and they ing which peri t 4 h
i i i zor which He then left her, and began to live with
Cas ae & ek ee of the woman whom he killed at the same ened
the crime. Dixie Hood testified: “I could he killed Mrs. Kell (for which latter homicide
not say that this is the same razor. It looks. he was on trial).
just like that one. I saw the razor there.
It had a kind of brown looking handle or
celluloid. It looked like a brown celluloid
handle to me.” Witness Englebert identified
the razor as being the one turned over to
the police authorities at the scene of the
homicide. It appears without dispute that
the crime was committed with a razor, and
it would make no material difference whether
or not the weapon it was sought to identify
was the particular razor with which the
homicide was committed. The identification
was sufficient to authorize the jury to decide,
under the evidence relative to identification,
whether or not it was the identical weapon
used by the defendant.

{[6-8] 6. In the sixth ground plaintiff in
error sets out the entire charge to the jury.
and then assigns error: (a) Because the court
emitted to charge that to the indictment the
defendant entered a plea of not guilty, form-
ing the issue which they were to fry. (b) Be
cause the court omitted to instruct the jury
that the burden rested upon the state tu
prove each and every material allegation in
the indictment beyond a reasonable doubt.
(c) Because the court omitted to instruct the
jury as to the credibility of witnesses‘and the
weight to be given their testimony, instruct-
ing them essentially that the credibility of
witnesses was a question for the jury to
determine from the appearance of the witness

{4] 4. Ground 4 assigns error because, in on the stand, his interest or want * ~
his examination of the witness Iacile Bar- est Sp the quttome of the — _ ea a
rett, the judge stated within the hearing of feeling, or bias, if any shes “ve: Bet
the jury: “Gentlemen, of course, she is rath- meanor while testifying, we — enlsogt'
er young, rather undeveloped. At the same _ ligence or lack of — * I 7 pub
time, I believe the jury can see her, and information, ete. (d) Because ~ cou cegers
they have heard her responses; and I will in omitting to charge the jury bar! nig 8
let her tell whatever you desire to ask her sential element of the crigte ie see
before the jury, and they can p&t whatever indictment, to wit, intent by an or are
weight they see fit to give it on her testi- ment of the offense charged in haaaban: 2
mony, what she says.” The objection is that ment; and if the act and the — : , :
this statement expressed an opinion by the shown, and it appears that ~ pie os
court that the witness would be permitted charged in the indictment was " pare
to tell whatever the state desired to ask her sound mind that he was es erie
and such would be competent for the jury's intent, a crime would not exist; io - nati
consideration; that such remarks were an the jury so believe this movant se aoioren
expression of opinion and conclusion by the of unsound mind at the ae of — keds
court, and tended to prejudice this movant in sion of the offense charged * fait:
the minds of the jury and give undue weight ment or prior thereto, they shou Pi pt
upon such testimony. The objection is with- and that if one be of unsound or i
out merit. There was no objection to any incapable of criminal intent, a neces . slits
portion of the testimony by this witness, and ment in the offense charged in the indicts ’

LIVELY vy. STATE ; Ga. 839
173 S.E.

and criminal intent cannot be charged to
one of unsound mind. (e) Because the court
omitted to charge that before they could
find the movant guilty of the offense charged,
there must be a union of joint operation of
action and intention. (f) Because the court
omitted to charge that the evidence of in-
sanity could be considered with the other
evidence of the case, in determining whether
or not the defendant was guilty beyond a
reasonable doubt; and that if in consider-
ing all the evidence including the evidence of
insanity, the jury entertained a reasonable
doubt as to the defendant's guilt, they should
acquit him.

The court charged the law of insanity as

embodied in the Penal Code 1910, §§ 33, 35; -

also charged the law with reference to rea-
sonable doubt; and further charged: “After
all, gentlemen, as to whether or not the defi-
nitions of insanity, definitions of a person
that is sane or insane, whether or not he is
criminally responsible, is a question for this
jury to determine under all the facts and cir-
cumstances in the case.” In the absence of a
proper and timely request for a fuller charge
on this subject, the charge as given was sufti-
cient to cover the law of insanity as applied
to this case. It is not error to fail to charge
the law with reference to the credibility of the
witnesses, in the absence of an appropriate
request therefor. Darden y. State, 171 Ga.
160 (6), 155 S. FE. 88. Error is assigned be-
cause of the omission to charge that the de-
fendant entered a plea of not guilty, forming
the issue which the jury was to try. While
the judge did not charge in this exact lan-
guage, he did charge: “Now this defendant
enters upon his trial with the presumption
of innocence in his favor, and that presump-
tion remains with him like a proved fact until
overcome by proof which satisfies your minds
beyond a reasonable doubt as to his guilt, a
reasonable doubt being such doubt as an hon-
est and conscientious juror would have in
the search after truth, and not fancy or a
fuess as to the possibility of the innocence of
the accused.” And further: “A verdict of
not guilty in this case, gentlemen, would mean
that the defendant would be discharged with-
out any punishment or confinement as far as
this case is concerned. That would end the
ease.” The court further gave to the jury
the various forms of verdict which they could
return. The failure to charge specifically that
the defendant entered a plea of not guilty
could not have prejudiced the defendant; for
the jury readily understood that the defend-
ant did not plead guilly, and the charge as
just quoted was suflicient to put the jury on

notice of the rights of the defendant with ref-
erence to the presumption of innocence.

[9] 7. The seventh ground alleges error in
the charge of the court, to wit, “This defend-
ant, Miley Lively, is charged in this bill of
indictment with the offense of murder in the
killing of Rethey Kell,” the error assigned
being that the charge “is ambiguous, confus-
ing, and misleading, and expresses an opinion
by the court that Miley Lively had killed
Rethey Kell, and the bill of indictment charg-
es that the killing was murder. In so defining
the killing as murder, the jury's consideration
was eliminated from any lesser degrees of
homicide, as. well as the question of whether
or not Rethey Kell may have met her death at
the hands of some one other than this defend-
ant”; and the court did not charge that the
defendant entered a plea of not guilty. The
only grade of homicide involved under the
evidence was murder, and the only defense set
up was that of insanity. This ground is with-
out merit.

[10] 8. The eighth ground assigns error on
the following charge: “I charge you, gentle-
men, that when the State proves that the ac-
cused killed the deceased with a weapon like-
ly to produce death in the way and manner
used, a prima facie case of murder is made
out; and unless there is some evidence to
show the contrary, the presumption is that it
is murder. Of course, gentlemen, this pre-
sumption may be rebutted.” This charge is
not subject to the criticism that: (a) It is
unsound as an abstract proposition of law;
(b) that the court erred in failing to clarify
the instruction by charging that a prima fa-
cie case of murder is made out unless alle-
viating or mitigating circumstances are
shown, and that if insanity is shown by a
preponderance of the evidence, that insanity
would be a mitigating or alleviating cirecum-
stance; (c) that the charge prejudiced the
rights of the defendant, in that it illegally
placed on him the presumption of guilt instead
of the presumption of innocence; (d) that the
charge prejudiced the rights of the defendant
in placing on him the burden of rebutting the
presumption of murder; (e) that the charge
expressed or intimated an. opinion by the
court that the defendant was guilty of the
offense of murder, that the state had made
out a prima facie ease of murdey, and that
unless the defendant could rebut this pre-
sumption, then he should be convicted of the
offense of murder; (f) that the charge was
erroneous and hurtful to the defendant, in
that the judge charged the jury that “when
the State proves that the accuscd killed the

sect


LINDSEY, Lon 4, white, wanged Fort Gaines, Ga., May 19, 1916.

"LINSEY HANGED \IFE MURDER AT FORT GAINES: Fort Gaines, Ga., May

19. (Special) Linsey was hanged here today in the county

jail for the murder of his wife last July. lHvery effort had been

made by his att King and Turnipseed, in his behalf, but to

no avail. “he paedon’ board had refused to interfere, the governor was |
sought to interven » but to no purpose. Linsey was fully resigned to |
his fate. He went Cine scaffold at 11:45 o'clock this morning,

and in eight minute doctors pronounced life extinct. Linsey
died strong in the h s of life eternal,confessing his crime, and
yYing’he had been fully forgiven and warning 211 persons to shun evil —
sociates. Both Linsey and his@wfie came from some of the best
eople of Clay county and the awful pragedy greatly shocked the
paople of thiscounty. Credit is due Sheriff Hobbs for the orderly man= —
nem in which the exe@ution was carried out." CONSTITUTION,
Atlanta, Georgia, May 20, 1916 (h/h.)


Court Mulls Inmates’ Rights
AP 4 Dec 95 0:06 EST V0382
Copyright 1995 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Court Mulls Inmates’ Rights

WASHINGTON (AP) -- The Supreme Court is using a Georgia death-row
inmate’s last-minute appeal to consider setting new limits on
prisoners’ right to challenge their state convictions in federal court.

Inmate Larry Grant Lonchar, convicted of a triple slaying, says a
lower court wrongly refused to delay his execution after he filed a
federal appeal in the convoluted case last June.

But Georgia prosecutors say that even though it was Lonchar’
federal appeal, he had manipulated the judicial system and

The Constitution gives state inmates the right to challenge the
legality of their convictions in federal court. However, the court
ruled in 1991 that repeated federal appeals generally must be dismissed
as an abuse of the system.

The case being argued today asks whether an inmate’s first federal
appeal can be dismissed as abusive. The Supreme Court delayed Lonchar’s
execution until it issues a decision, expected by July.

Lonchar was convicted in 1986 of killing three people over a $10,000
gambling debt.

He told police to "shoot me" when he was arrested and refused to
help his lawyer defend him. After he was sentenced to death, Lonchar
refused to cooperate with federal appeals filed by relatives on his
behalf.

He filed one appeal in state court less than an hour before his
scheduled execution in February 1993, but later dropped it. He filed a
second state appeal last June, again just hours before his planned
execution.

The state appeal was denied, so Lonchar filed his first federal

fod
Court of Appeals refused to delay Lonchar’s execution to allow a
hearing. :

whe court said Lonchar had abused his right to appeal. it cited his
delay in filing the appeal, his refusal to cooperate with appeals filed
by his relatives, and the fact that his main goal was to delav the
execution.

Lonchar’s lawyers said those reasons do not justify a refusal to
hear his first federal appeal. Lonchar is mentally ill and he "finally
decided he wanted to live," his lawyers said in court papers.

Prosecutors said allowing Lonchar’s appeal to go forward would
encourage other inmates to use such a “creative method" to delay their
executions.

The case is Lonchar vs. Thomas, 95-5015.

.c The Associated Press

By ELLIOTT MINOR

Associated Press Wniter

JACKSON, Ga. (AP) -- A man was executed in the electric chair early today for murdering three people over a $10,000 gambling debt.
Lary Lonchar died at 12:39 a.m. after receiving two jolts of 2,000 volts apiece.

Smiling as he was strapped into the chair, his last statement was: ‘Father, forgive them, for they know not what they do."

The 45-year-old Lonchar, a native of Battle Creek, Mich., was convicted in 1987 for killing a 54-year-old man, the man's girlfriend and his
son. The killings involved $10,000 Lonchar owed to a gambling ring allegedly run by one of the men.

Clive Stafford Smith, one of Lonchar’s attomeys, held his hand over his eyes during the execution and later condemned the state for
carrying it out.

‘If there is anyone who believes the world has miraculously become a better place because we just tortured to death our friend in Jesus,
Larry Lonchar ... then Father forgive them," Smith said.

Lonchar’s execution was stayed seven times as he went through the appeals process. In 1993, he came within 32 mmutes of dying.
In a written statement, he said he felt God had forgiven him and he apologized to the victims' families for the pain he had caused.
Georgia Attomey General Mike Bowers said he was glad Lonchar's legal maneuvering is over.

Justice has been done," he said.

Also scheduled for execution in Georgia today was Ellis Wayne Felker, 48, who was convicted of the 1981 rape and murder of a 19-year-
old woman.

AP-NY-1 t-14-96 07 19EST

Copyright 1996 The Associated Press. The information contained in the AP news report may not be published, broadcast, rewritten or
otherwise distributed without prior written authority of The Associated Press.

Saturday November 16,1996 America Online: Galba33 Page: 1

LONCHAR, Larry Grant, white, electrocuted Georgia (DeKalb), November 14, 1996.
‘Larry Lonchar was convicted and sentenced to death for the 1986 triple murder of

Charles Wayne Smith, 54, his son, Steven Wayne Smith, 24, and the older man’s girlfriend,
Margaret Sweat, 45. Lonchar, a paroled armed robber with a lengthy criminal record dating back
to his teens, owed the elder Smith $10,000 in gambling debts. He and an accomplcie posed as
law enforcement agents on a raid at at Smith’s condeminium. Smith and his son were found
handcuffed and shot to death. Sweat was also shot, but when she attempted to call 911, Lonchar
slit her throat. An answering machine tape-recorded Sweat pleading for her life. Another son,
Charles Richard Smith, survived by playing dead after being shot twice in the shoulder.”-Death
Row, 1996, Vol. 6, page 189.

The Atlanta une
The Atlanta Constitution

kkk hk ek

—

Killer changes
mind, gets stay

of execution —

Victim’s family stunned as Lonchar

files appeal with 32 minutes to spare.

By Joe Earle
and Rhonda Cook
STAFF WRITERS

ackson, Ga. — Thirty-two

minutes before he was sched-
uled to die in Georgia’s electric
chair Wednesday night, convict-
ed killer Larry Lonchar changed
his mind and agreed to fight his
execution.

State prison officials immedi-
ately delayed his execution for
24 hours to give Lonchar time to
appeal his conviction. His law-
yers said they would file an ap-
peal this morning. If a judge
grants a stay, they said, the ap-
peals process could take years.

In the past, Lonchar claimed
that he preferred execution to
prison and he had repeatedly re-
fused to cooperate with lawyers
fighting his conviction. The De-
partment of Corrections granted
his request Wednesday because
Lonchar has not exhausted his
appeals.

His turnaround stunned
some members of his victims’
families.

“Tt’s just not fair,” said Wan-
da Sweat of Norcross, daughter
of one of the three people Lon-
char was convicted of murdering
in 1986. “I don’t know what to
think, you know. He got so close.
Larry can just say what he wants
and he gets what he wants.”

Lonchar, 41, was convicted of
murdering Charles Wayne
Smith, 54; his son, Steven Smith,
24: and Margaret Sweat, 45, the
older man’s girlfriend. Authori-
ties have said the murders at a
DeKalb condominium were re-
lated to a gambling debt.

Wanda Sweat, standing at the
entrance to the Georgia Diagnos-
tic and Classification Center
where the execution was to take
place, said she was “ready for it
to be over.”

Larry Lonchar
In the past, he
claimed he pre-
ferred execu-
tion rather than
prison.

Hilliard Friar, Margaret -

Sweat’s brother, said he was
“very disappointed.”
“They needed to get it over
with so we can forget,” he said.
“Now it’s brought back up, and it

had got to be where we didn’t,

think about it. It’s sad, and it’s a
waste.”

On Wednesday, Lonchar was
in the holding cell adjacent to the
electric chair, his head and an
ankle shaved for execution, when
he agreed to let attorneys file an
appeal on his behalf.

During the day Wednesday,
he met with his father and broth-
er, who flew to Georgia from the

family’s home in Battle Creek,

Mich. His sister, Chris Lonchar
Kellogg, who had filed most of

the past appeals in his case,.

talked to Lonchar by phone.
Prison officials said Lonchar

was talking to an attorney by

telephone from the holding cell

about 6:28 p.m. when he said he.

would appeal his case.

Lonchar’s attorney, Clive..:
Stafford-Smith, said he talked to:
Lonchar on the phone because ,
prison officials wouldn’t allow a:

face-to-face meeting.
“T had had word [that] one of
Larry’s brothers couldn’t deal

with it and was going to kill him-.

self,’ Mr. Stafford-Smith said.
“Larry really wanted to go
through with it. He’s really in
pain. ... He was ready to die. He
wasn’t afraid of dying.”

> An interview. F6


wesw Bw, «+ ow es aes

A irst Corps

ad engag e enemy in,a“vear
guard” act a. pani

the location off the fightin 4
Long Trail Of Crime

Ends For Desperado

REIDSVILLE, GA., .Aug. 9.—
()—Terrell Loughridge, 29-year-
old desperado whose trail of crime
led from Georgia to Texas, died
in the Tattnall State Prison
electric chair today for the road-
side slaying of a young soldier.

It was the second murder of
which Loughridge had been con-
victed. His first victim was his
own father who died in a hail
of buckshot fired by Loughridge
when law enforcement officers
closed in during a gambling raid.
That was in 1936»

The late Governor Eugene Tal-
madge comuted the sentence to
life imprisonment, and_ subse-
quently Loughridge escaped seven
times from Georgia prison camps.


Barefoot, much less repudiated its rationale. Pp. 4-7.

2. The Court of

Appeals erred in dismissing Lonchar's first federal petition for special
ad hoc-equitable reasons not encompassed within the relevant statutes, the
Federal Habeas Corpus Rules, or prior precedents. First, the history of
the Great Writ reveals, not individual judges dismissing writs for ad hoc
reasons, but, rather, the gradual evolution of more formal judicial,
statutory, or rules-based doctrines of law that regularize and thereby
narrow the discretion that individual judges can freely exercise. See,
e.g., McCleskey v. Zant, 499 U.S. 467, 479-489. Second, the fact that the
writ has been called an "equitable" remedy, see, e.g., Gomez, Supra, at
653-654, does not authorize a court to ignore this body of statutes,
rules, and precedents. Rather, "courts of equity must be governed by rules
and precedents no less than the courts of law," Missouri v. Jenkins, 515
U.S. ; (Thomas, J., concurring). The arguments against ad hoc
departure from settled rules seem particularly strong when dismissal of a
first habeas petition is at issue, since such dismissal denies the
petitioner the protections of the Great Writ entirely. See Ex parte
Yerger, 8 Wall ...85,°°95. Third; Rulé 9{a) - which permits courts to dismiss
a habeas petition when "it appears that the state .. . has been |
prejudiced in its ability to respond... by delay in [the petition's]
filing" - specifically and directly addresses the delay factor that led
the Court of Appeals to dismiss Lonchar's petition. The District Court was
not asked to, and did not, make a finding of prejudice in this case,
whereas the Rule's history makes plain that the prejudice requirement
represents a critical element in the balancing of interests undertaken by
Congress and the Rule's framers, which courts may not undermine through
the exercise of background equitable powers. See Bank of Nova Scotia v.
United States, 487 U.S. 250, 255. Fourth, contrary to the Court of
Appeals' view, Gomez, supra, at 653-654, did not authorize ad hoc
equitable departures from the Habeas Corpus Rules and did not purport to
work a significant change in the law applicable to the dismissal of first
habeas petitions. Fifth, the fact that Lonchar filed his petition at the
"eleventh hour" does not lead to a different conclusion. Gomez, supra, at
654, and, e.g., Sawyer v. Whitley, 505 U.S. 333, 341, n. 7, distinguished.
The complexity inherent in developing fair and effective rules to minimize
the harms created by last-minute petitions in capital cases offers a
practical caution against a judicial attempt, outside the framework of the
Habeas Rules, to fashion reforms concerning first federal habeas
petitions. Sixth, a different result is not warranted by the special
circumstances in this case, including the "next friend" petitions filed by
Lonchar's siblings, his filing and later withdrawal of his own state
habeas petition, and the fact that his motive for filing this federal
habeas petition was in part to delay his execution. The Court expresses no
view about the proper outcome of the Rules’ application in this case. Pp.
7-18. 58 F.3d 590, vacated and remanded.

Breyer, J., delivered the

opinion of the Court, in which Stevens, O'Connor, Souter, and Ginsburg,
JJ., joined. Rehnquist, C. J., filed an Opinion concurring in the
judgment, in which Scalia, Kennedy, and Thomas, JJ., joined.


RL UIS9S ALAS fy. Ee

Jury picked in Routier
capital murder trial

Rowlett mom says intruder killed 2 boys

By Steve Scott
Staff Writer of The Dallas Morning News

A jury of seven women and five
men has been selected to hear testi-

way it’s turned out. The people we
have are open-minded, objective,
and, they’re going to require the
State to. prove its case.”

‘Assistant District Attorney Greg
Davis said prosecutors, who are
Seeking the death penalty in the
case, also are “satisfied with the
group we've got.”

Half the panel members are 45 or
older. The youngest is a 24-year-old
woman; the oldest is also a woman,
61. -

Four panek members have at
least some college education, law-
yers said. That circumstance could
hurt the prosecution, some observ-

ers say, since an important part of
the state’s case will rely on such
technical evidence as DNA test re-
Sults and blood spatter analysis.

The jury is composed of 11
whites and one Hispanic.

Ms. Routier, 26, is charged with
fatally stabbing two of her young
sons in their living room June 6.
She has said that an intruder broke
into the home and killed 5-year-old
Damon and 6-year-old Devon before
attacking her with a knife and then
fleeing.

Police and prosecutors have ac-
cused Ms. Routier of lying to inves-
tigators and fabricating evidence to
Support her story. They have said
physical evidence gathered at the
Scene does not match her account.

The jury selection process is ex-
pected to conclude quickly, with

prosecutors having used both pe-

remptory challenges allotted to
them in the selection of alternates.
Officials have estimated that all
four-alternates could be chosen as
‘early as Friday.

The selection process began Oct.
21, with state District Judge Mark
Tolle swearing in about 165 prospec-
tive jurors. When individual ques-
tioning of the jury prospects began

L

Darlie Routier ... has been
accused of lying to investiga-
tors and fabricating evidence.

Oct. 28, officials estimated that seat-
ing a jury would take three to five
weeks.

That process was hastened some-
what because defense lawyers used
only 13 of their allotted 18 peremp-
tory challenges to dismiss prospec-
tive jurors. Seating a jury would
heve taken longer, lawyers said,
had the defense exercised all of its
Strikes. Prosecutors used just seven
of their 15 available challenges,

Testimony is scheduled to begin
Jan. 6 in Kerrville. Judge Tolle
moved the case there in September
to avoid ongving pretrial publicity.

Man Who Killed 3 Over a Debt Is Executed

JACKSON, Ga., Nov. 14 (AP) —A
killer who had wanted to donate a
kidney to the detective who helped
put him on death row was executed
early today for killing three people
over a $10,000 gambling debt.

The man, Larry Grant Lonchar,
45, was electrocuted at 12:39 A.M.

despite a flurry of last-minute ap-
peals,

Twice earlier, Mr. Lonchar had
won reprieves just minutes or hours
before going to the electric chair,
most recently by offering to donate
his organs. ‘

He said last year that he wanted to
give his kidney to Melvin Ferguson,
who had helped link him to the 1987
triple killing.

Mr. Lonchar, who spent more than
31 years behind bars, had changed
his mind often over the years on
whether he wanted to be executed.

Mr. Ferguson, whose kidneys had
been damaged during heart surgery,
contacted Mr. Lonchar’s lawyer,
Saying that he knew Mr, Lonchar’s
blood type from the murder investi-
gation and that it matched his.

But the state refused to allow the
necessary tests, saying that it did not
want Mr. Ferguson to be disappoint-
ed and that Mr. Lonchar was too
dangerous to be taken out of prison.

N.Y. TIMES

FRI.
U- 1$-%%

a ey,


LONCHAR v. THOMAS, WARDEN Docket 95-5015 -- Decided April 1, 1996

Petitioner Lonchar was sentenced to death for

murder nine years ago. In the years following the affirmance of his
conviction and sentence, his sister and brother each filed "next friend"
state habeas petitions, which Lonchar opposed, and Lonchar filed, and then
had dismissed, a state habeas petition. Shortly before his scheduled
execution, he filed another state habeas petition. When it was denied, he
filed this "eleventh hour" federal petition, his first. Reasoning that
federal Habeas Corpus Rule 9, not some generalized equitable authority to
dismiss, governed the case, the District Court held that Lonchar's conduct
in waiting almost six years to file his federal petition did not
constitute an independent basis for rejecting the petition and granted a
stay to permit time for consideration of other grounds for dismissal
raised by the State. The Court of Appeals vacated the stay. It held that
equitable doctrines independent of Rule 9 applied, relying chiefly on this
Court's per curiam order in Gomez v. United States Dist. Court for
Northern: Dist: of Cal.) 503 U59,;°-653. Setting aside the Rules and
traditional habeas doctrines, the court concluded that Lonchar did not
merit equitable relief.

Held:

1. The principle of Barefoot v. Estelle,
463 U.S. 880, applies when a district court is faced with a request for a
Stay in a first federal habeas case: if the district court cannot dismiss
the petition on the merits before the scheduled execution, it is obligated
to address the merits and must issue a stay to prevent the case from
becoming moot. If the court lacks authority to directly dispose of the
petition on the merits, it would abuse its discretion by attempting to
achieve the same result indirectly by denying a stay. Since Lonchar's
claims certainly seem substantial enough to prevent dismissal under Habeas
Corpus Rule 4 and the State does not argue to the contrary, the courts
below correctly assumed that he could not be denied a stay unless his
petition was properly subject to dismissal. This Court's Gomez order has
not displaced Barefoot's rationale with one permitting denial of a stay in
first federal habeas cases, even when the district court lacks authority
to dismiss the petition on the merits. Gomez did not involve a denial of a
Stay in a case in which the lower court had no authority to dismiss the
petition or a first habeas petition, and it neither discussed nor cited


W. Seymour, white, hanged sce sada Georgia, 2-1-1906

4 6 qAp-
laimed,
“would
id that
povern-
aght to
a ‘they
br.
sage to j
Sa be
e..had
sbeam |
y wero :
. receive
chasers
fiat. the
ised | to

Mm dikely
hecause
menor

hich It

He ine
Khermy 3
mtained
ment.
i"? Mr.
engaxed
jerimant
nations:
@ Test
p grren-
ittion, ef
bthe re
na, vote

ild, was
ao ntone,
fo main-
Inare of
despite
ary ‘asl
t ¥t. dir.
act that
vars aid
huhion
actliraliy
ar inte:
thy old
aid, then
ad alrect
WA ii
> IMNGON: -
aus.)

ioeretary
sible far
matntath

iad been
ta effe:'

ry Sher-
mer abet
thittess
thoulhd

too1

HANGED FORA

{ The Slayer: of the hoote ‘Sisters Dropped
@ to His Diath, :

OCCURRED AT NOON YESTERDAY

Btory of Seymour Keener’s Almost
{Deperalieiet Crime.

, ROW KE SPENT HIS t LUST HOURS EARTH

The. pimaemnes "Man | n Was Tkoroughly
“Belf-Possessed—Failed On the
Insanity tah :

a

CYa: ton) Ga, | Petrus
Seymour Keener, “whe
loved and. her sister, We,

summer ‘afiernoon i 4865, had hia neck
broken on a scnffoll nets this afternoon.

The Gaath sentence | Snpased ty” ‘ghe
jury of the Rabun com y superior court
a few months after twat the ewoates:,
pleayantest and moat apolar young “Yadies

of the county shied,
| home from ;istol shot. mounds tafiteted iby

| Keener.
Keener, Uke the twa cele for whose

murder he was exequ
‘@f the Dent and most at ‘fem'lies
{of that county in the cgetheasters “part. ot
the state and when thb nrardet was: an-
nounced jf created no Bpuie. sete aheougt-
out the country. .
“Tt was) Miss Arizona Moore” one: Mias
Levna Mpore, both cousina” of Keener,
whoae tragic death Vemeet: “thie hanging
here todcuy. ; :

And it was the first! vest ‘execution the
county has ever knowns, .

Keener's family’s. " gtanttng,. hia ‘entuaabe
and the TROT his. relbutyes povld | corh-

is. 48pectal )—
“the girl. he

{ WR. (SEYMOU rh) KEENEN
mand gave him every chance womave A
@oeenerate forhto fer a lease an heee AN ETH |
Vics dutlues ed qones than he Roa be
vere po oben die oweuld fave Yoee yg Rage
be ,
Thy. i") Kellner Wats fierva ty

DOUBLE MURDER’ ‘a

ono. pleasant -

in grove near their.

$O- Set

Sa A Ee ie

‘+ Two Souls with

‘Bes Turner dance the ‘highland fling, “
With Dingley at his side; 1 |
And hear his party‘'s chorus sing: 3
(He's in the new divide:
He's dancin’

An’ prancin’ (7
Where Wall street gold is glancin’; v
He’s caught its gleam entrancin'— -

He's in the new divide!
Bees or me —— ey : — -
From the trop he talked fifteen nT :
fn oan even mart Mis words ant ted {
that he was iy full pester sian of ze-mirnid | J
then, but al thas he tee perf thase
who heard bi to cconelude that ae i ’
knuw What bo Wat dag when he fired . J
the fatul she: |
The Trap Sprung.
At 1.2 o'ebs waresnrrag unl |
Keener wot |
Lin neck Wo: hips ' |
Twenty-four minnces datbr Dr Wo FI
Creen and TV foWo opech pramonnced ob: §
Wn dead Ht eee Wwoas heros n
ae i. ‘
hay cot ;
3 ficed !

‘equelay

wv

SeTaio0en

T) 969T ‘ST Atenaqeg ‘NOTLALILSNOO

(7

zh

here

Rr yy -
af
ta

wo

it

Sier-
fe, 0
irlet;
Be ak
the
hoved
ro Ane
ative
have
pri.”
tar,
vant
p asaE
> -the

Wan”

that
fiand
for, to

ae of a

ged im
ye ti
BHULY,
Syne
e-any

pdt &,

ip one f

Hao ot

tL oniy |
+ pO
itis

would have  becr hatred

shawn by the
y accomplish:

killing
tou have beor
soant defense on the part of the:
who were slau. That ane he
a ostster of the two killed, and
who saw the killing, she
to the court and jury
that the two girls was fleeing for
her when Keener shot her,
Xeener’s Last Ntght.
Reener koww lastnight that every effort
Roose Hal been

thers tyler Was

eevee finesse

The
Ore
with:
ints
Ness Was

ef
iwo @
as the onty one
made oapparent
one of
life

to save Lis neck from: the

ce et xy
o, ete x §

maitr and * hen he HouRnLt his prisoa cat | i
for steen cor rest he knew thar ii was fer Prat
the fast time. | . tina
Yet he was quiet eng calm and when the bar
deathy waich with hum talked, he cone 4 is g
veraed pleasantly.’ He appeared fo have | for
no {dar of the. Soap. he way cure to meot, 1.e8
On the contrary ‘hp Was asc ompoxed amd | i fur
even ax one eould ipoasibiy kave ‘been. ' i beast
J.cie in the night, about 1) o'clock, after | I the
having .talged- cheerfully with bis guards, 4 1 yaat
ha dropped off asteeg. . 1188 LEONA MOOT. | plo
Keener sheng sanity until the sun eame dud
through the windowafof his cell and. when “years ago for killing his wife and sitter ee
ae ® awoke -prang: from, his hed. but his asumee® Was gubsequeutly com- Th
“Pg the guards he. wepeard a Htéte ‘wea, muted’ to Life imprisogimett i dis
Pe not ti the tewst “fen aus, ‘He canverséd x Story of Keener’s Crime. 1 der
with these vio . hall -besn with him ad gi ep dak ot was ory ten itied Gn | ert
nigh and while he ata wot.refer to his. dps algae h of Jung of last ‘year. The |
mnt; fine ° Ps Moore girle wer: nik eauuiiba and leer |
Soe yo donear him. On that afternoon the two, with *
a $: thelr. sister luura, waked pest Jieeper’s thee
it house, “seing hore with some girls who had | #9
: Libetn visiting them. As they came back | ar
it | Keener jumped srom: behind a rock, Which | sin
ts Be AE 1 Was in frofit of his howse. dn.each hand he | ¥!
‘ “pelt a pistol. He walked straight to Leona | ab
ate vend fired. Fhe Te A dead, -irizona jumped mi
: peter: “the fenre and ran thraugh the heic, | fre
«oh Keener Toliowing hen. He’ ftrel and she | @
Y fen. Then he stood aver her and fired five | re:
é Ore skata into her body.” sti
ve (heaura was not burt. ‘Bhe-was the only | ¢4)
“| eye witnega of the arrpir and the principal | Ce
oe ae against gol r at vile trial. * wi
ae here pon gi ON ti Ve aan abeohutr | ru
4 sueence me for tise, crime. At first | by
3 4 was nid that he W very mech ta deve | tr:
“| with Arizona and kifled°her becanse she | no
oF Nad: “to marry ‘him, But the testi | ih
tanony brought out iy the case was that ¢{ Cc
owhite he or ee pi the se god a some | tat
thyme, he Ged ceurte fane of the irk but | te
wan: ale simply in the dight of a rel ie
anal f tid. ; ; fee
nern relativer “end friends errestc: } he
he Was poh co tor- ai gy el of Bai fp
; was curnvicted an rentencad to | ¥E
aes The defense tried to Prove insanity. 1 aes
{ans “airbmitted - testimony to two decterr | pe)
~ } supporung ther claim. A Dis pee - other | ‘a!
gtbed eatified ey to his peculiar ac- :
sesh ath Lad a ey Goan teria ane or y Bate ee “doin
Hite Sine snaice 4 4 Keener wae. declartd fa be sane on & t-
“his. sey ee ented for junacy in Ratan county last week. fy
A temmanting’ priate’ was wakinorek: hia Hanging of “Patey”’ Harris. <a
and: why he wa, ingt eat. _gtuttgnbualy, Re Wadkhington, Reuroasy sahil sete. ce Nor
appeare’l 16, enjey engéy whay * prawed “his ‘Nps. | “Patey”’ Harria, was hanged in the jad as).
fda dD yyg9 ectock this merning for the. murder | ~*~
BP Se watts ae dike: WOH ts wae of Matthew Sprouchd, which occurred i: m
Spiritual Georgetown, West Washington, guty ‘ st
uy REY. * Shee éasied ae Goth men Were colesed. prouel: |
‘Tater, thet: a. a - bad a barber, acd Harrie, while {ntoxicat- i te
eonversed with, the ebndemned: man. T ta ‘ed, went fo his shop and picked a querre.. ¢
there were . cra and songs. : oerere oes Boni 7 ee but was} .,
The death. warrant was: read by Sherlit pursued and fatally . :
Dockins in. the presence of a haitf doze ae
; persons. | Keener never fiisched as he beard STILL NO ELECTION . ed
i the words'ot law by whier hr was to die. lw
He wan soli pnd aprarcntiy indiffereat. | Bl a
As the goacinded reading the tr
warrant he tala upon the prison cot a new ¥ al- jt
| eait of clething and underwear, with a } lou h 7
i ghiri, a colar and e black cravat. yond 5
“Realising what 1t Meant Keener disrobded |'° rh wet
meh J aath and = for his coffin. wale wed
3 he: was frora; his ceil and | tne m- | +
ascanio’ to the he antown: which had been | xin ed {
erected in ihe: He walked wteh | is n, A
a ptsady SeP. sot rent up. the short. stair- ne eam eee - i
withou O. Weuresewe ove we Wi ew oO
way po : pi aca eahtent omo- | shia joigt assembly was quickly ad- }¢@
{tio ser journed. a


Re eT re ee " in

While the hanging was taking place, the long distance telephone operator at Cumming was
vainly trying to reach one of the spectators to call him to the bedside of his dying
child. A-cordon of.2? companies of Atlanta militia kept the. morbid crowds several hundred
yards back from the scaffold, but the curious spectators had full view of the execution,
The last barrier to prevent the crowds from seeing the negroes plunge through:the trap was 7
swept away Thursday night when the wooddn fence around the scaffold was burned. Every de-

tail of the gruesome program could easily be seen by the crowds onthe hills that helped

the stage the: execution in a natural amphitheater,. The hanging, occurred, however, with=

out any disorder, the crowds apparently being satigfied in being uninvited witnesses to

the execution, The execution occurred at 9 o'clock, The soldiers, with their two prisoners,
reached Cumming from Buford at 1:30 Friday morning, The negroes were placed in the court

house and soldiers patrolled the square and- the town. A notice postéd by Major Catron-on

the postoffice building proclaimed the town in a state of insurrection, and all. citizens:

were warned against any demonstration, Early Friday morning a procession of vehicles and
pedestrians from different parts of the wunty and neakby sections made. its way to. Cumming.

Men brought their families with them, including little children, The visitors were ouiet

and made no sigh of demonstration, They took up their positions on the hills above the -

pasture and waited like eager crowds waited for a cireus parade. After the hanging they dis-
persed as quietly as they had gathered, and the soldiers marched back to Buford, where they
entrained for their return to falanta, Shortly before his death, Eznest Knox confessed,

but “scar Daniel carried his secret of the crime through the trap." JOURNAL, Atlanta, Gaey \

Oct. 25, 1912 (1/2.)

"Cumming, Sept. 10: = Mob spirit which has been at fever heat here since Saturday, boiled
over today and Ed Collins, a negro, arrested for aiding in hiding the young white girl who
was assaulted near here Sunday night and died Monday from injuries, was shot in the Fore
syth County jail, his head mashed with crowbars.and his. body dragged. out.and swung to a
yelephone pole in the public square, Four negroes were arrested here this afternoon in
connection with the crime committed here.Sunday night by Ernest Cox, alias Daniel, who is
now in jail in Atlanta for safekeeping. . Among them was -Ed Collins, the negro lynched, Paul
Ellis, Rob Elliott and Delia Daniel, mother of the negro in Atlanta, Had it not.been for
the officers taking the’ woman and hiding her she also would have.been lynched, WW, W. Reid,
sheriff of Forsyth, and deputies went after the negroes and brought them in two automobiles
through a crowd of 2,000 citizens and placed them safely in jail, Although an effort was
made to stop the machine the sheriff sped through the crowd, After they had been locked up
the mob broke down the jail/dobsrs with cr6éwbars, went.in and -shot.the negro Collins dead,
His body was then mutilated with crowbars, a rope placed around his neck and he was dragged
to the public square and hanged it to a telpphone-pole under the gaze of -4,0Q0 people who
gathered, No further trouble is expected." JOURNAL, Atlanta, Ga., 9-10-1912 (1-5. )

"Ernest Cox, the negro who Monday afternoon confessed that he murdered and outraged the 18-
year-olddaughter of pa prominent planter of the Brown's Bridge settlement, .near Cumming, was
rushed to the Fulton County Towar Monday night, The body of the girl for which a big party

had been searching for a number of hours, was found abouhknoon Monday in a de&ply wooded ra- ’
vine, only half: a mile from the home of her father..,Working in a field a quarter of a mile
away, was Ernest Cox,/a dwarfed black negro, One of the searching party found a mirror near
the unconscious.body of the girl, A storekeeper declared that°he had sold.the article to

Cox, and the negro was arrested, Almost immediately, he confessed, apparently without

fear, detailing the commission of the crime, ‘Officers placed the negro on a horse and with- °
out telling the enraged citizens that he had,admitted thec rime, rushed him to the jail at

-“ainesville, 9 miles away. Shortly after the negro was. loded inthbe Gainesville jail,

it was learned that the young girl, tho had hever regained consciousness, had died,
"As the sky commenced to darken, little groups of men were seen to gather about the jail,

._ Despite the fact. that the crime had been committed a number of miles from Gainesville, the

feeling against the negro there and throughout Hall Countyws intense. Anticipating trov-

ble, Judge J, B, Jones of the “all Superior Court, ordered that the negro be removed to

Atlanta and Chief of Police Smith was assigned the task of bringine him here, Just at

7215 pem., he secured a high-powered automovile, in which were two deputies, The car, was

brought up to the rear of the jail, and Chief Smith led the prisoner to it. Until the

outskirts of the city were reached the automobile rushed through the streets at the rate Pee.

of ni é The j j
45 miles an hour, The remainder of the journey to Atlantay over rough. and mountainous ‘

€

Georg an Michael ull, 33
and pie “McKees — ‘Rock, Pa.,,
were given sll lee eae

pen: ty for both on ‘rape.
Bee and on’ charges: of aid-|
each other in
the Ah of Tape. ‘They
were also found guilty and
‘given life terms for: kidnaping
and were: ¢ convicted: onan: addi- .

cid inaped the: erat: Y |
: he nto Geor- .


cy

LACEY, John, black, 16, poss. hanged Augusta, Ga.,

CONSTITUTION,

NEGRO CONFESSES
TO ATTACKING
‘AUGUSTA GIRL

- Augusta, Ga., November 30.— (Spe.
cial.)——John Lacey, a 16-year-old ne-
gro, was lodged in the Richmond
county jail tonight charged with as-
sault on g young white girl:’ The
negro confessed to police and news-
paper men at police barracks prior
to being taken to the jail. Lacey
was caught tonight in the swamps 10
miles from Jacksonville, 9, C.:

Ed Powell, B. 'T. Davis and John
Hazel, white ‘farmersyof near Bath, |
S. C., effeeted the capture. The ne.!
gro was rushed to Augusta and at 10°
o'clock was in solitary ‘@nfinement
at the local jail.

Brought into the police station the
negro answered all questions fired at.
him. In the course of the examina-
tion he admitted the assault on the
8-year-old daughter of a prominent
Augustan-on the afternoon of Novem-
ber 25 and also admitted having at-
tempted to assault another small white
girl about two weeks ago. L,

The crime with which Lacey is
charged was committed Friday after-
noon in a garage of a local apartment
house, Surprised in his act, the
girl’s assailant ran. He was frailed.
to a dense swamp five miles from An-
gzusta on the Carolina side of the
river, where, at nightfall, the pursuit
was abandoned. Descriptions of the
negro, however, were sent broadcast
and resulted in his capture.

Jailer Gary Whittle tonight stated
that no one would be allowed to see
the negro and that any attempt of a
mob: to take him from the jail would
result in bloodshed to the attackers,
No demonstration has occurred. Fri-
day. following the attemnted assanilt:
feeling was high, but officers tonight |
are hopeful that feeling has subsided.

A special session of the Richmond
county grand jury probably will be
called in order to give the negro a

“speedy trial at the present term of

superior court.

Atlanta, Georgia, Dec. 1, 1921 (4-3)


dant ricn commences gma eninc nt so Rneiacbeatia ek nero

AUGUSTA GIRL
ATTACKED; POSSE
HUNTS FOR NEGRO

ae en er ree

Augusta, Ga., NovenMer 25.—(Spe-
cial jy—A small white girl ran to her
mother this afternoon and told her
that a negro man had dragged her
into a garage in the neighborhood and

|

had tried to assuult her, oh d been |

frightened away from = h when she
kereamed. ‘The alarm was given. hed
negro is believed to have mudé his es-

cupe into South Curolinn, going over,

the Southern railway bridges His
name is not known, and the child can

give but a meager description of him. !

Searehing parties have been formed
and a significant number of men divid-
ed into posses are beating insthe Na-
vannah river swamps on the th lina
side in search of the negro.

One axtatement is that a strange
negro has been surrounded in a dense

awaimp about four miles from the city ,

and that watch will be kept during the
night. ;

CONSTITUTION, Atlanta, GA,

I.

11/26/192013/1)


: 47 SE 759
LEE, Millard, White, hanged Atlanta, Georgia, on O,tober 30, 1903.

pecs ges yet temas a Alae, NEWS, of 10-30-1903, ‘transcribed from large

cards : :

Leey a young white man, lived’ inthe Ben Hill community ‘several miles from Atlanta, /o" =.
Gas He was in love with 17-yearsold Lila May!Suttles, On Sunday, May 20, 1902, ‘they met
at’ the church that both attended arid Lee requested that she go out with himlater that day.
She refused, giving a prior engagement as an excuses lee was overcome with jealousy

and seated himself three rows behind Miss Settles during the church serviées, After .
the minister had given the benediction ahd the congregation started to leave, Lee’
confronted Miss Settles face-to-face in‘the aisle, and shot her three times, killing

her’ instantly. Hé- was immediately taken into eustody and, at his first.trial, his .
attorney pleaded insanity but’ the judge refused.to allow that as a defense and he

was convicted and sentenced to’hang. The case was appearled and overturned by a

a higher court’ which’ ordered him tobe tried again with the jury to rule ‘on his.

sanity. Once again he was convicted, found sane and again sentenced to hang. He
received six respites before he was finally hanged in Atlanta, [ct. 30, 1903.

"Millard Lee, murderer of Miss Lila May Settles, did wot hang this morning. Thirty
minutes ‘before the time set for his execution, Gov. J. M. Terrell signed an order
respiting the eondemned man for '30° daysees" JOURNAL, Atlanta, Gaey 12/23/1902 (1:7)
(Photograph.of Lee in this issue, page ones)

"Isadore Minddr,:a:Macon tailor, who murdered Andrew Mahoney by cutting him into

pieces with a knife, wants to die for Millard-Lee, So anxious is the murderer, ;

whose sentence of deathowas commuted fo imprisonment for life, to ornament the nd of a rope
that he has written a letter to Governor Terrell, begging him to allow him to take :
the place of Millard Lee on the gallows on December 23rd. Mincer is serving his

life sentence at the Chattahppefiee Brick ,Company's camp near Atlanta,.. Bet he is. |
miserable in his confinement, and wants to die - wants to hang. 4e begs to be.

allowedto hang in placeof Millard Lee.,.Lee does not attach much,importance to

the request’ of Minder, and says that»he really does not care to be Minder's substi-

tute for a term of life imprisonment, /‘inder claimed to be insane at the time of

the murder, but was nevertheless ordered hanged. /Governor Candler commuted his

sentence to.life imprisonment, and he has been doing. time at the brick.camp near this city."
JOURNAL, Atlanta, Georgia, 12/17/1902 (9/5.) , )

g

"Millard Lee, who died yesterday on the gallows for the murder of beautiful Lilia May
Suttles, was buried this morning at 11 o'clock fromthe Utoy Church, two miles west of
Fort. McPherson,."The remains were interred in the church gravetteard, A large assembly
gathered in the church to pay the last rites to the young man...The funeral service was
preached by Reve J. S. Goodwin of the Kirkwood Baptist‘ church, who was Lee's sptritual
adviser an his long hours of confinement and who was with him on the gallows when he
plunged to death. The remains of Lee were kept at Hilburn & Poole's undertaking parlors
“last night, and were taken this morning at 10 0 clock to the Utoy church, from which the
funeral took place. Lee's aged father, bowed with infirmity and grief, was a pathetic
sight at the funeral," JOURNAL, Atlanta, Ga., Oct. 31, 1903 (15:3.) lot
‘ 3

"Millard Lee was hanged in the Tower this morning for the murder of Lilia May Suttles, his
sweetheart, whom he shot to death in the Wesley chapel at Ben Hill, on Sunday morning, May
25, 1902/ With a smile of sweet content on his face, and without a tremor in his frame,
Lee walked to the gallows. Like a man he stood on, the death trap and prepared for the
death he knew must come, The trap was, sprung at 10:59%. Lee's neck was broken by the
fall. He was pronounced dead at 11:124, exactly 13 minutes, after the plunge, From the
‘moment Lee was led from his cell -until the moment his body was cut down, only 23 minutes
had expired. ‘Have you anything to say, Millard?! asked Sheriff J. We Nelms a minute
before the tirap fell, ‘Only that young men should read their Bibles and pray. Take
warning from me. Oh, God, have mercy on my soulj' were the last words of the murderer.
‘Lee was the most composed man in the gallows room, Save for the constant movement of his
fingers and the occasional twitching of his lips he displayed no.emotion as he marched to

the gallows ar-as he stood while his arms and legs were being tied, The execution was
weiy sidenigiend thane was not the slightest hitch from beginning to end, Everything had
been so carefully arranged that there was not a second's delay. Lee spent a on eka
night, slept well and arose this morning at k ‘o'clock, his usual time. At 9 o cloc

¢ 4


his father, bowed with age and.a helpless cripple for years, was carried to his cell and
said a last farewell to his son. Rev. Dre J. Se Goodwin, of the Kirkwood Baptrist Church,
arrived at the same time and held a long-talk with Lee, praying for the soul which was in
a few menutes to be sent to Eternity. Lee laughed and talked pleasantly and announced
his determination to die lake a man and said he was ready, willing even anxious to die,
The remains were taken over to Hilburn & Poole, undertakers, and went to their establishe
ment on Hunter street, where they were prepared for burial, It was here that his father
first saw him'after death. The scene of the aged man, clasping the hand of his dead

son, and crying to God to have mercy on his ‘soul was frightful...Lee died a professed
Christian and,said he was going straight to heaven, there to meet the girl for whose
murder he paid. the penalty on the gallows this mornings - = -

"Dr, Je Ms Suttles, father of the dead girl, was one of themen present in the gallows room
when Lee plunged through the trap to death. During the entire occasion he spoke to no
one. His face was immobile as the slayer of his daughter went to death, He left the
Tower within-a few moments after the hanging had been completed. A great crowd gathered
around the Tower early, despite the fact that they knew they could not be admitted to the
jail. The rain which fell just before the hanging did not drive them awaye Several
officers, under Mounted Sergeant Beavers were detailed to keep the cpawds back, This morbid
cpowd gathered in a great throng around the undertaking wagon as Lee's body was taken’
away from the Tower, At least 500 men were gathrered in knots about the Tower, Another
immense crowd blotked Hunter street around Hilburn.& Poole's undertaking establishment,
bné they were not allowed to see the body, There were many women in the crowd,

"Lee retired last night at 9 Ofclock, He was still in the large cell on the fourth floor,
directly under the gallows room, and not in the condemned cell in murderers' row, in which
condemned men are usually confined, Steve Greer, one of the men on the death watch, sat
just outside the cell door, Only twice during the night did Lee move in his sleep. Then
he awoke for but a few minutes, and was soon ableep again. He talked little, but was very
cheerful and laughed several times at his own sallies to the members of the deathwatch
At 2 o'clock this morning Greer was relieved by G. Le Peacock, the second member of the
death watch. Lee was asleep when the watch changed, He awoke about h o clock this morne
ing and arose. He kas ever since childhood been.in the habit of rising at that time, and
even his long incarceration in the Tower has not changed him in this particular, He
dressed himself in a neat suit of black which had been purchased for him yesterday and
which was handed to him in the door of his.cell, He wore a white negligee shirt. with
‘pink stripes, The SAKKEXAXXXKE collar of the shirt was attached, and very low, so that

it was not necessary to remove it when the ropé.was tied, © : ;

"Lee spent the early morning hours in pacing that narrow confine of his cell, talking

to the death watch, whose inscrutable eye never lost a single movement. of the young mur-
derer. .'I know there's no hope for me, and I know I am going to die, Oh, I am so rlad
today will end this torture,’ he said to them as he continued his walking. At 7 o'clock
turnkey ,C....D. Comstock took Lee's breakfast up to his cell, It was a simplt, yet hearty
repast, consisting of eggs, oatmeal, steak, grits and biscuits, Lee ate with an undi-
minished apetite. and announced, when he had eaten everything which had beeh sent to him
that. he enjoyed his.last. breakfast immensely, Lee never tasted coffee or whiskey and had
had none since his incarceration in the Tower. From 7 to 9 Lee continued’ to pace his cekl,
nerveless and unafraid, To. the death watch he displayed ho tremor, no emotion.‘ He

talked with them without reserve, spoke of the crime and said he was glad to die today.
"at 9 o'clock, his aged father visited the jail, “The old man is 73 years old, and for

the past 16 years has been an invalid from rheumatism, not having been able to stand in
that’ time, He was driven to the jail by his son, Thomas F, Lee, a younger brother of the
murderer. The jailors lifted the aged man in his chair and carried him to the elevators
in the Tower, taking him direct to the cell of his dying son. The scene at the greeting
of the father and son was frightfully pathetic. Lee leaned against the bars of his cell
andspoke for ‘some time with his father, begging him to be comforted, ‘For I will be so
happy when it is all over,' he said, A few minutes after 9, Rev. Goodwin, Lee's spiritual
adviser from the time the young murderer professed religion, entered the cell. The door
was closed dnd no one save Lee, his aged father, the pastor and the death watch was |
allowed to see them for some time, Dr. Goodwin prayed’ for some .time with Lee. Lee said
that he was glad to die. He spoke unreservedly of the crime for which he was soon to die,
'I have been trying to cry,' he said to Dr. Goodwin,’ But I-have found it impossible, I
am so glad I have gotten to apoint where I can't cry, try as I may, But, oh, how I do
wish ‘they had killed me that next morning instead of bring me back here to hange For I krow

I would have foined-that dear girl in heaven. Up to the time I killed her a great burden
was resting on my mind, and I could not shake it off, try ever so hard, But the instant I


"HISTORY OF-CRIME FOR WHICH HE DIED.
"Just as the last notes of the doxology were dying away, and as the hundred worshippers

in the little Wesley Chapel at Ben Hill bowed their heads in prayer, Millard Lee, son of a
well known planter, shot and instantly killed beautiful, Lilia May Suttles, a playmate |
from childhiod and the object 'oef his devotion in manhood, Unrequitted love was the cause
of the tragedy... It was for the commission of the murder of this girl that Millard Lee paid
the pendlty on the’death trap in'the gallows room of the Tower this morning. , The murder
was committed on Sunday morming, May 25th, 1902. Just eighteen months ago, Millard Lee
was captured next morning just at daybreak, at Mabelton, 45 miles from the phace where he
shot his sweetheart, He had gone there. with the evident intention of boarding a train for
* Alabama, which was due to’pass within a few moments.after he showed himself to the offi-
cers, Lee was only 22 yéars of age at. that time, He was the son'of a prosperous farmer,
living incthe Ben Hill district, to the west of Fort McPherson and about seven miles, from
Atlanta. He was a small man, about 5 ‘feet 7 inches in height and wehing only about 140
pounds, Almost from infancy he had loved Lilla May Suttles, the daughter of Dr. Je Me:
Suttles, a néighbor to the-Lees, The two had beenoplaymates in childhood and had been
thrown together much in the frolics of the countrysides: Lee's queer actions, his evident
desire to shun every living man and his brusqueness: turned the, girl away from him’ and she
began to avoid him in every possible way. This made Lee even more sullen and morose..
While Miss Suttles was in Milledgeville, attending'the Georgia Normal and Industrial
Vollege, from which shec graduated with honors,.Lee is said to have spent most of his time
to himself,:moping in silence. When 'she returned Lee seemed brighter and was never do
happy as when in her company, On the morning of the murder - a beautiful spring day, .when
the trees had just begun to bud and. the birds to sing, Miss Suttles, then only 22 years ald
and the prettiest girl in that seciton of the county, had gone’ to Wesley Chapel in come
pany with Herbert Reynolds, refusing to accept Lee's escort. Just as the services were:
ended and the minister was dismissing the congregation, Lee, who had been seated, three
benches behind Miss Suttles approached her and asked to be. allowed to accompany her home,

_ She was then talking with several other young people, but refused Lee's. request. She
turned away from Lee and began to talk, . Lee's face darkened, He drew a revolver from

his pocket, where he had’ kept it concealed. .'Well, theng if you won't go with me you
shan't' go with anyone else,’ ‘said, and fired. The bullet struck a corset staid and glanced,
inflicting on a slight flesh wound, Horrified, Miss Suttles turned and ran toward, her
father, who was standing in the front of the church, Lee fired again, This time the
pullet s truck Miss Suttles in the back and pierced the heart, lodging just under the

skin on the left side. They dying girl reached her father's dide before she fell. .'Oh,
papa,' she screamed in an agonized tone, and never spoke again, She died in an instant.
Lee sprang to the outside of the church, where he met Earl Suttles, a younger brother..of
his victim. He tried to stop Lee, but the murdener threw the pistol in his face and or-
dered him to get out of the way. Pandemonium reigned in the church, Instantly the, staid
farmers were converted from worshipers and law-abiding citizens into an angry mob, |
seeing the life of a fellow creature, who had shot down an# innocent girl in their midst.
Men rushed from the church, to"their homes and discarded their prayer books for their |
rifles, The manhunt was on, It ended at daybreak of the next morning, when Lee was |
captured at Mableton by Deputy Sheriff James, County Officers Oliver, Head, Howard, Dun-
bar and Cheshire, Bailiff Bankstonk, Marshal Ed Ryan and Convict Superintendent Howell.
He was brought back to Atlanta and lodged in the Tower where he has since been confined,
Lée was semn on the train at the time by a Jounral man to whom he said: 'I loved her and
wanted to end it all, She did not seem to love me and I grew tired of the suspense. I
intended to kill myself, but my nerve failed me at the last moment.' Lee said that he had
offéred Stephen Childress, a farmer, 100 acres of land if he would kill him, but that
Childress had refused to do so, On the Monday following the crime Miss Suttles was buried
‘at the Mt. @XX#% Gilead burying ground, in the presence of the largest concourse of

people which had ever gathered in that section. Lee was indicted by the Fulton Grand Jury
on*Tuesday, May 27, 1902, two days after the murder, Then began one.of the longest trials
of magy years in Fulton County. The case was first called before Judge John S. Candler,
now of the Supreme bench, on Monday, June 9th, of last year.' Reuben Arnold and his bro-
ther, Lowry Arnold, had been retained to represent Lee. When the case: was,.called Mr,
Arnold stated that the plea of the defense would be insanity at the time of the murder,
and he asked for a continuance until he could properly prepare the case. This was

granted and Lee was placed on trial on Monday, June 16th. Arnold & Arnold represented Lee,
while Solicitor C. De Hill, whose able presentation of the case in all its phases: won for —
him great credit was asSisted by Charles C. Smith and W. E. Syttles, a.cousin of the —

MILLARD LEE, hanged Atlanta, Gae, 10-30-1903 = CONTIN UED.
EXREH fired that fatal shot the burden’ vanished away.and a bright light shone all around
me. I knew she-had gone to heaven, and I wanted to join her as soon ag I could. Yes, I
am anxious to dié, and I'll die on that gallows like a man,' was what he said to the ©
pastor, At 9:35, Lee's aged father bade his son a last farewell on earth, and the parting
was pathetic.- He clasped his son's hand and shook it. ‘Goodby, Millard, goodby,' he
said, and his voice choked with sobs. He.could,say no more, and he was carried to the
elevator, weeping in silences He.was driven immediately to the undertaking parlors, where
he awaited the coming of his son, whom he had left in life but a few minutes before. Dr.
Goodwin remained with Lee im the last, and was with him on the scaffold when the drop fell,
A few minutes after Lee's father left, Dre We Ce Fisher, the county physician, .
accompanied ‘by Dr. Ce Pe Andrews of the Grady hospital staff, Dre J.T. Freeman, who re=
presented the Lee family, and Dr. Ge D. Blackwell entered Lee's cell and spoke with him
for-a few-moments. ‘Ht has got to come, and I'am ready,' he told them, Dr. Fisher said
he had never seen a M&K man more composed on such an occasion. He was not nervous in
the least, but talked with the phgsicians and paced his cell slowly all the while. At
10:6 o'clock Sheriff Js We Nelms, accompanied by his deputies pushed his way through the
crowds and entered the jail, He waited a few moments in the office of the jail and. then
went to the fourth floor, going to Lee's cell, The door was opened at 10:5 o'clock
and Lee, walking between Greer and Peacock,.the two death watches, walked out into the
rotunda, He’was miling, It was not a smile of scorn, of contempt, of hatred. It was

‘the. sweet smile of the perfect satisfaction. Millard Lee showed by that smile which
-overspread his countenance that he was willing to die. fhe two members of the death

watch supported Lee, but it was not necessary, He walked firmly, with his. head bent
slightly forward, His fingers were working constantly, but otherwise he showed no ex-
citement. He was marched ten. feet. to the elevator, into which he entered with the members
of the death watch, Jailor J. J. Fain, Sheriff Nelms and Turnkey Comstock, The other
deputies walked to the gallows room on the top floor, Lee walked from the elevator with a
firm step. To the gallows room was but ten feet. .He walked in to the steps of the scaf=
fold and mounted it firmly. The: gallows room is in the) north wing of the 5th floor of the
jail, It is about 20 feet in height and about 12 feet square. The gallows is about: 9
feet square, while the two doors of the trap, when sprung, left an opening a yard square.
The gallows is sprung by a lever almost similar to those used in throwing railroad.
switches, and is pushed back against the wall. © | " :
"Everything was’ in perfect readiness, Lee walkéd directly to the mifidle of the trap and
then stood staff, Ut was exacthf kO:5Swhen he stopped beneath the hanging nooses |
Turnkey Comstock ‘KX#AXKASXEXTSRE ; . knelt at Lee's feet. and began tying
his’ feet with a piece of window cordings » He tied the rope midway between the feet and

the knees and tied them‘firmly. Lee did not tremble, While Turnkey Comstock was tying
Lee's fect, Sheriff Nelms was reading the-death warrant. Jailer Fain.had Lee place his
arms behind him /and tied them firmly behind his back, Still Lee showed no trace of fear
or emotion, By the time Sheriff Nelms had completed the reading.of the death warrant, X88Xx%
Lee's hands and fect had been firmly tied, During the whole time the noose which was a.
decond later to choke but his life hung over his left-shoulder, but he made no effort to
vrush “it ‘aside, *.The rope was placed around ‘his-neck, the noose fitting closely under. the
heft ears ‘The black cap was adgusted over his face, 'May the Lord have mercy on your
sould. Inthe name of the Lord-I bid you-goodbye,.' Sheriff Nelms. pressed the trigger.
The trap doors opened and the lithe form of the young murderer shot downward seven feet
and then there was a'slight convulsive movement of the knees, the legs drew upward for an
instant, and:then the body swayed fora second in the. air. The neck had been broken. On

whe face of every man in the room there was a look which shoed the tense agony was. overe
Lee was dead, ‘Dr. fisher stepped to his side and felt his pulse. It beat.-but slightly.
Dre Andress placed a stethescope to the heart and held it there several moments. In 13
minutes to the second from the time the drop fell, the physicians pronounced Lee deade
Sheriff elms stepped up to the swaying form and placed his ear over the heart. He stood
for a mome nt, "He's dedad,'-he said, The.rope which bound the hands and feet were un=-
tied by jailor Fain and Turnkey Comstock, Deputy Ne As Chastine stood on the. gallows above,
ahd when everything was ready, he cut the ropes Exactly 17 minutes after the drop fell,
he body was cut-down and placed in the basket of the undertakers,.taken to the. elevator
and carried’to the’side entrance of the jail, placed in the wagon and driven to the undere-

“takers! parlors. The black cap was not removed until the. body was placed in the morgue at

Hilburn & Poole’s. The face was, not digfigured in the slightest. er his countenance
was still spread the peaceful calm smile he wore when he mounted the gallows stepSe eese


Condemned

man sides
with victim:

By Rhonda Cook
and Peter Mantius
STAFF WRITERS

Condemned killer, Larry Geant
Lonchar on Tuesday, put.the name of
the survivor of his 1986 killing spree.
on the list of people he wants to wit-

ness his execution, the brisoner® S at-

torney said.

Prison officials and state Attorney,
General Michael J. Bowers said,they.

had not decided whether Rick Smith
would be allowed to watch the electro-.
cution. Lonchar murdered Smith’s fa-

ther, brother and his father’s. girl-

friend.

Department of Corrections offi-
cials also are considering Smith’s re-,
quest that he be among the state’s offi-
cial witnesses at the execution, which
is scheduled for 3 p.m. Friday.

If Smith is allowed to,watch Lon-
char die, it will mark. the. first time

since capital punishment resumed in.

Georgia in 1983 that a victim or a rela-
tive of a murder victim has. been. al-)
lowed to watch an execution,

Lonchar attorney John Matteson
said his client had asked that, Smith.be
among the people at his execution af-,
ter learning that Smith had asked
state officials for permission to at-
tend. Lonchar. is permitted five, wit-,
nesses. The state and the media also:
are allowed five witnesses each.

Lonchar has. refused to appeal his,

DeKalb County death sentence for, the,

murders: of Wayne Smith, 54, Steven’
Smith, 24, and Margaret Sweat, 45.
Rick Smith was, shot three. times. by:

Lonchar’s partner, Mitchell, Wells. i
On Tuesday, one of Lonchar’s
brothers asked a Butts County Superi-:
or Court judge to order, that. Lonchar ’

receive a psychological evaluation

and that the execution. be, canceled if:

the condemned .man. is. found to. be,

insane, ey aay Frere {
In an affidavit, Dr. Deans Heren-

deen said that based on his nine meet-
ings with the convicted killer, Lon-’
char “is not currently. competent to.
waive his appeals.”

__Anti-death: penalty, lawyers -have:
claimed in the past that. Lonchar i is not
competent to decide that his execution
be carried out. wey

Wednesday, June 21, 1995

The Atlanta Journal
«The Atlanta Constitution

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Se aaa

a Journal-Constitution

Road warrior

Case dismissed

against the 3
woman who shot
out the drunken

driver’s tires. _
Dave Kindred, C3

@ THE VENT, C2
@ OBITUARIES, Cé

i

Brother to make plea;
Felker delay is denied

By Rhonda Cook
STAFF WRITER

A Fulton County judge temporarily
delayed today’s scheduled execution of
Larry Grant Lonchar and ordered the
State Board of Pardons and Paroles to
hear a clemency petition filed by the
triple murderer’s brother.

Fulton County Superior Court Judge
Gail Tusan gave the parole board until 5
p.m. Thursday to hear the clemency

plea, and the ‘petition from Lonchar’s
brother, Milam, could be heard today.

Lonchar still could be executed as
scheduled, at 7 p.m., if the board
reaches a quick decision.

The clemency request was made by
Lonchar’s brother because the killer
has refused to fight his own death sen-
tence, insisting that he wants to be exe-
cuted for killing Margaret Sweat,
Charles Smith and Steven Smith in 1986
in DeKalb County.

Lonchar’s case was one of two that
took bizarre twists Tuesday, including a
request to videotape an execution, in fi-
nal-hour legal maneuvering. Lonchar

pichiroisonouton tae

and Ellis Wayne Felker are both sched-
uled to be executed this week.

The last time Georgia executed two
condemned men within one week was in
1957. While Lonchar’s execution is on
hold, Felker is still scheduled to die
Thursday for the 1981 murder of 19-
year-old Evelyn Joy Ludlam.

Earlier Tuesday, Flint Judicial Cir-
cuit Superior Court Judge Hal Craig re-
fused Felker’s request for a delay while
‘his lawyers reviewed documents re-
cently received from Houston County,
where Ludlam was killed, based on a
request under the Georgia Open Rec-

' ords Act.

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Js
Also Tuesday, U.S. District Courtt2
Judge Duross Fitzpatrick rejected a
joint claim filed on behalf of Felker andi
Lonchar that Georgia’s method of exe-t2
cution, electrocution, violated Eighth’?
Amendment protection from cruel andi*
unusual punishment, an issue that was
decided last year by the federal appeals 2
court in Atlanta. 1m

Fitzpatrick also refused the murder- __
ers’ attorneys’ request that they be al-*°
lowed to videotape the next execution”
so the tape could be used as evidence in 7
their legal efforts to get rid of the elec-*,
tric chair.

“
2
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ye


Serving needs of justice, not revenge

Anyone who has
been the victim of vio-
lent crime understands
the magnitude of pain
and anger that survl-
yors experience.

' As Larry Lonchar
goes to the Georgia
electric chair Friday
(barring any last-
minute stays), it 1s
Gnderstandable that
Rick Smith wants to be
jresent. Smith, after
all, was present when
Lonchar shot and
killed his father and
brother. He was still
there after Lonchar
shot him and left him
for dead. Now he wants
to be able to visit the
graveyard “and tell my
brother and my father
that [Lonchar is] on
the way up to see them
before he heads back
down to hell.”

“ But Corrections
Commissioner Allen

Ault will be making the wrong decision if he

ney typi
include lawyers,

. family or friends.
» At least five state witnesses —
chosen by the commissioner of |
the Department of Corrections:
They may include government offi-
cials, private citizens, law enforce-
ment officers or a victims’ advocate
representing the victim's family.

» State corrections staff, Correc-
tions Commissioner Allen Ault and
Attorney General Michael Bowers
generally witness the execution from
the back of the death chamber.

The condemned 15s
treated to a final meal.
He’s allowed to. visit
with a chaplain, say
goodbye to family,
shower and dress in
freshly washed
clothes. He may make
a final statement. And
when he is strapped
into the large pine
chair, a mask is placed
over his head to hide
his facial contortions
— to maintain a final
shred of dignity.
Allowing a victim’s
family members to
witness the killing
risks turning a somber
legal act into an emo-
tional circus. A vic-
tims’ advocate already
is allowed to witness
the execution on
behalf of the victim —
providing a proper
balance between the
victim’s rights and the
right of the con-

demned to die with dignity.

lets victims’ family members witness
axecutions.

* An execution is an act of law. It is not an act
of revenge. Those who witness it are there to
énsure that justice 1s carried out in.as civilized
a way as possible.

' In preparation, the Department of Correc-
tions goes to great lengths to bring some civil-
ity to what is intrinsically an uncivilized act.

A 10 Wednesday, June 21, 1995. ssessesex

Smith understandably wants closure. But
waiting in another room at the prison complex
and being formally notified when the deed is
done should accomplish the same thing.

The moment one of three executioners
unknowingly presses the button that electro-
cutes Larry Lonchar, there will be some justice
for Rick Smith and his family. That’s all an

execution can offer.

SS er ener

TH

1 ATLANTA CONSTITUTION

The South’s Standard Newspaper

£3] 9667 ‘ZT ‘AON ‘kepsan | KKH

UORMNSUOD EWUeRY ay) / [EUNOL E\UeAY ayy

METRO AND GEORGIA

IN BRIEF

|
2 death row -
inmates visit
with families
: | ondemned killers

_ Lonchar and Ellis Wayne
@ Felker were allowed to

‘spend time with their families

Monday, days before both are

- Scheduled to die, prison offi- a

cials. said.

Lonchar’s execution ‘is set

for 7,p.m. Wednesday in the

electric chair at the Georgia

Diagnostic and Classification
"across ‘

Center near Jackson, and.

Felker is scheduled to die'at 7
p.m. Thursday.
1, The two men were allowed: si
to meet face to face with their...
families and clergy, said.Mike ves
Light, a Department of Cor-.
rections spokesman. They can”...

F

visit with them again the day
before they are put to death.
Both have also requested their
last meals.

ml PEACHTREE CITY
Steakhouse planne

The Peachtree City Plann’
Commission unanimous]:
mended approval for or
house and two motels ;
meeting. An Outback

is proposed for the ¥

at Ga. 74 and Peac’
Construction on *

would begin in °
completion ex’

cording to C-

representa’

. Commissic

for a 55-r
be locatr

room (
built ¢
the ir
54. ’

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behalf.

He filed one appeal in state court less than an hour before his
scheduled execution in February 1993, but later dropped it. He filed a
second state appeal last June, again just hours before his planned
execution.

The state appeal was denied, so Lonchar went to federal court on
June 27.

A federal judge let the appeal go forward, but the 11th u.S. Circuit
Court of Appeals refused to delay Lonchar’s execution to allow a
hearing.

The court said Lonchar had abused his right to appeal. It cited his
delay in filing the appeal, his refusal to cooperate with appeals filed
by his relatives, and the fact that his main goal was to delay the
execution.

Lonchar’s lawyers said those reasons do not justify a refusal to
hear his first federal appeal. Lonchar is mentally ill and he "finally

decided he wanted to live," his lawyers said in court papers.
Prosecutors said allowing Lonchar’s appeal to go forward would

yh ~~

encourage other inmates to use such a "creative method" to delay their
executions.

The case 1s Lonchar vs. Thomas, 95-5015.

oo

Execution i is stayed
with 1 minute to spare

Pesca

By ‘Laura Williamson
STARF WRITER

Sixty seconds before he
was. scheduled to die Thurs-
day, Larry Grant Lonchar was
giyen a minimum of six more
months to live.
ms At 6:59
pam.,/one min-
uté"'’ before
Lonchar was
supposed to
die in the
state’s electric
chair, the U.S.
Supreme

Court, granted Lonchar :

thes: self-de-
scribed “cold-blooded killer”
his-third stay in the past week
and agreed to hear his case
sometime next year.

jyotate Attorney General Mi-

chael J. Bowers said the earli-.

est, the state could set another
nme date is sometime in
arly‘ 1996, provided the court
rifles in its favor.
- Bowers said he was disap-
potrited by the delay but hopes
the, ‘high court will issue a de-
cision that will prevent further
abuse of the legal system by
death row inmates. “You can’t
jerk‘ the system around this
way,” he said.

In 1987, Lonchar was sen-
tenced to die for a triple killing
over a $10,000 gambling debt.

He initially waived his right to .

appeal, then changed his mind
32 minutes before he was set
to die in 1993 after a family
member threatened suicide.
He never filed that appeal, and
a second execution date was

_ set for last Friday.

During the past week, Lon-
char wavered over whether he

‘should pursue appeals. He

said he allowed his attorneys
to delay his execution to give

the General Assembly time to

change the state’s method of
execution so he could donate
his organs.

His case reached the 11th
U.S. Circuit Court of Appeals
Thursday, which lifted his sec-
ond stay. The high court rein-
stated it while Lonchar waited
in a holding cell, his head and
right leg already shaved, for
guards to lead him to the elec-
tric chair.

“What I anticipated was to
see my client executed,” said
John Matteson, Lonchar’s at-
torney. “It’s like coming back
from the dead.”

Staff writer Rhonda Cook

’ contributed to this article.

Friday, June 30, 1995

The / Atlanta oe

The Atlanta Constitution

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Inmates threaten

killer on death row,

prison officials say

By Rhonda Cook |
STAFF WRITER

—,

Georgia prison officials are taking
special steps to protect condemned tri-
ple murderer Larry Grant Lonchar be-
Cause of threats from other inmates who:
believe he has jeopardized their appeals, *
prison officials confirmed Wednesday. ®

Department of Corrections spokes-  ‘'-
woman Vicky Gavalas said prison offi- *.
cials had received “two anonymous. |:
notes allegedly coming from groups of*.*-
inmates” that imply plans to harm Loné:*,
char. “They don’t exactly say they’re g07*.>-
ing to kill him,” she said. “It says, ‘We'll:
take care of him.’ ” tats!

° e eng: Naty
Lonchar is sentenced to die for killing -

three people in DeKalb County in 1986.:*«":
Stopped his execution last month with *,
only a minute to go, has repeatedly *.*:
claimed publicly he would not fight his »*¥
execution, but then stopped his electro,”.;
cution by filing last-minute appeals.

a

eR
~~ &
x ee

issue of last-minute appeals. No date has
been set for arguments before the U.S,
Supreme Court on his case.

Lonchar was put in “protective custo-
dy” immediately after his lasted planned.
execution was called off because prison
Officials “got wind of rumors” that the.
prisoner could be in danger.

Lonchar remains on death row at the
Georgia Diagnostic and Classification
Center at Jackson, but is no longer al-
lowed to leave his cell at the Sametirmneas .
other inmates, Gavalas Said.. ve

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Thursday, July 27, 1995

The Atlanta Journal

The Atlanta Constitution

Inmate’s Kidney Offer Denied
AP 13 Mar 96 22:15 EST vVO708
Copyright 1996 The Associated Press. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Inmate’s Kidney Offer Denied

ATLANTA (AP) -- A death row inmate’s request to donate a kidney to a
police detective who helped put him in prison was denied Wednesday by
state officials who said they fear a hoax.

Larry Lonchar, who stalled his execution last year by demanding that
his organs be donated, is offering a kidney to a retired chief of
detectives whose officers tied him to a triple murder that put him on
death row. .

Lonchar is too dangerous to be taken to a hospital for transplant
surgery and might be toying with 60-year-old Melvin Ferguson,
Corrections Commissioner Wayne Garner said,

"This trickster has a bad history of changing his mind about
serious, life and death events. His wanting to donate his kidney smells
of another hoax," Garner said. "How horrible it would be for a dying
man to find that his supposed donor changed his mind at the last
moment. "

Ferguson, a married father of three, said he was disappointed, not
angry, at the state’s decision. "He’s not the first man on death row to
give a kidney; this is not a precedent-setting case. I don’t understand
it."

“I've got three grandsons," Ferguson said. "All three are going to
be baseball players and I’m a baseball coach. ... I can’t go out and
help them. A transplant would give me a new attitude and strength."

Last June, just hours before he was to die in the electric chair,
Lonchar filed an appeal, saying he wanted to be executed in a way that
would preserve his organs for donation. EBlectrocution makes organs
unsuitable for transplant.

The U.S. Supreme Court is expected to rule on Lonchar’s appeal
within a month, said his attorney, John Matteson.

Ferguson, whose kidneys were damaged during heart surgery, said he
read about the appeal and decided to contact Lonchar’s attorney.

"I knew we had the same blood type through the police investigation"
of the triple murders, Ferguson said.

Matteson said he will ask the courts to allow Lonchar to be tested
to see if he is a suitable donor for Ferguson.

“Here’s someone who’s dedicated 30 years ta law enforcement and
they’re telling this loyal employee to go stick it," Matteson said.
"This is trashy."


LOWERY, Fletcher, hanged at Baxley, Appling Co., Ga., 7-11-188).

"THE HANGING OF LOWERY/THE FIRST LEGAL EXESUTION IN APPLING COUNTY/Baxley,'
Gae, July 11. -§Special$-Fletcher Lowery, who was convicted of the murder of
Joon Brummage at the October term of Appling superior court, 1883, and resen=
tenced alt the May term of, the court this year, was executed here today. Ow-
ing to the fact of its being the first legal hanging that had ever taken
place in the county, there was a large number of spectators present. The
drop fell at1:28 p.m., death resulting in sixteen minutes produced by stran-
gulation.! - | ai ert : —

Cort ( . HIS DEMEANOR ON THE SCAFFOLD, ¢
"He talked about fifteen minutes upon the scaffold, stating that he was guilty
of the offense of which he was charged and felt that his punishment was a
just ones that he had made his peace with his God and his sins were forgiven.
He warned the spectators, to take a lesson from his fate, especially entreat-
ing the colored people to beware of bad company, drinking and gambling. He
exhibited great composure and self-possession and at the conclusion of his
statement knelt and offered a fervent prayer in his own behalf. The noose
was then adjusted and the cap slipped over his face and Sheriff Cook, descen-
ded from, the scaffold to cut the rope, Fletcher exclaimed 'Good-bye, Mr, ~
Cook,' which were the last words uttered. Fletcher was a native of Robinson
County, N. C., bearing the name and being closely related to the celebrated
Lowery outlaws of the same place, He came ‘to Georgia about six years ago as
a turpentine hand, and has been living most of. his time in this county. He
was a bright mulatto of medium height, 28 years of age, The murder for
which he was hung was committed last August about two miles from Baxley.
He had been living with a woman as his wife by the name of’ Julia Bryant about
three years preceding the murder, for, whom he unfortunately formed a great
attachment. . Returning from work to his shahty one day he found Julia adsent
for whom he immediately went in search, ahd came upon her and John Brummage
inside a branch together, which so exasperated him that he immediat&ym shot
and killed the latter, and Julia then dragged the body of Brummage into the
Aranch where it remained several days before it was found. Julia, in the
meantime, left the county. Suspicion being aroused by the sudden disappear-
ance of Brummage 4nd also by the absence of Julia, thé latter was sought for
and when found told the circumstances-of tha killing and where the body: was
hidden. She subsequently testified against Lowery on the trial and upon —
whose’ evidence he was convictéd. His counsel made every effort to save him,
finally appealing to Govérnor McDaniel forcommutation of his sentencé, which
was refused. His body will be sent to his original home in North Carolina ©
for interment. His great courage and self-possession’ upon the- gallows was a
subject of general comment among the spectators, he showing no trepidition
whatsoever even at the last°moment{ . °~ = / .o, : .

"THE STORY OF THE CRIME, otoL

"In an interview with Fle tcher Lowery before he left Chatham county jail,
the Savannah Times gleamed from him the following story:'The day on which I
killed Brummage was Saturday. I had been sick several week s and had gone
into the woods pulling boxes and remained till 12 o'clock when the mill
whistle blew and I started home, having to walk about a mile, I suppose I
was at home about 20 minutes after 12 o'clock, and as I was behind in my
work and had intended to lsbor the whole afternoon in order to catch up on
¥AZBZMPCLZERKRIZL
the next week's work, I was disappointed and angry when I found that the
woman whom I had been living with for several years and whom I had bonsidered
my wife was absent and had not prepared any dinner for me. I asked her
daughter, Minnie, where she was, but not getting a satisfactory answer,
startedto go over to Mr. Baxley's, about a half a mile distant, and see if
she was there, as I knew she was in the habit of going there occasionally.
On my way thither, and just at the top of a hill, I heard a rumbling
noise which I could neither locate or make ptf Stopping to listen and as-

i t it w i st d out of the regular path hen, I. heard
erro elt’ ana Mannie re I becogni zed her borce bub cotld not locate her

and said nothing. Soon she said, 'What are you doing here?! and I then

4

ceive the same punishment as the principal
in the first degree, and could not be given a
shorter or longer term in the penitentiary
than was given to the joint defendant pre-
viously convicted.” It was held that the re-
quest was properly refused, because the stat-
ute, “merely fixes the limits of the punish-
ment, and should not be construed to mean
that precisely the same punishment should
be given to the principal in the first degree
and the principal in the second degree.” In
Thompson v. State, 160 Ga. 520 (5), 128 S.E.
756, 758, it was held that the court erred in
giving a charge as follows: “If you find
the contentions of the state in this case are
true from the evidence, under the rules of
law as given you in charge, then all of the
defendants would be equally guilty, and
should receive equal punishment at your
hands.” The reason for this ruling was
that “the jury probably would consider this
to mean that preciscly the same punishment
should be given to cach of the defendants,
while, as a matter of law, the jury had the
right, under the law relating to indetermi-
nate sentences, to fix the length of the term
of confinement in the penitentiary within

both of Savannah, for plaintiff in error.

Saml. A. Cann, Sol. Gen., and Andrew
J. Ryan, Jr., Asst. Sol. Gen., both of Sa-
vannah, and M. J. Yeomans, Atty. Gen.,
and B. D. Murphy and Geo. L. Goode,
Asst. Attys. Gen., for the State:

Syllabus Opinion by the Court.

GILBERT, Justice.

The defendant was convicted of the of-
fense of murder. The exception is to the
overruling of a motion for a new trial,
based upon the general grounds only. The
verdict was authorized by the evidence,
and the court did not err in. overruling the
motion.

Judgment affirmed.

All the Justices concur’

©) oie NUMBER SYSTEM

rett, all of Atlanta, for defendant in error.

Syllabus Opinion by the ‘Court.

PER CURIAM.

The Court of Appeals (in case No.
24499) certified the following questions:

“1, Can a joint action at law be main-
taincd against a motor common carrier and
against the indemnity company with whom
such motor common carrier has procured
a policy of indemnity insurance for the
benefit and protection of the public against
injuries caused proximately by the. negli-
gence of such motor common carrier, its
servants or agents, by a person who has
been injured by the alleged negligence of
the driver of a motor common carrier bus
belonging to such motor common carrier,
in driving the bus into an automobile
driven by the plaintiff, the policy of in-
demnity insurance being procured by the
defendant motor common carrier pursuant
to the provisions of the act of August 29,
1929, § 5 (Acts 1929, pp. 293, 297), to-wit:
‘No certificate shall be issued or continued

Z ®
& 278 Ga. 184 SOUTH EASTERN REPORTER
; . ‘ JACKSON y. STATE Ga. 279

& principal in the second: degree, should re- Edwin J. Feiler and Emanuel Kronstadt, i ager” ,

- Hewlett & Dennis and Harwell & Bar- Georgia, which policy must substantially

conform to all of the provisions hereof re-
lating to bonds, and must likewise be ap-
proved by the commission?’

“2. In the event the foregoing question
should be answered in the affirmative,
could such a joint action be maintained
where the amount of recovery sought
against each of the defendants exceeds the
amount of said indemnity insurance pol-
icy?”

The questions propounded by the Court
of Appeals came on before the entire court
composed of six justices, RUSSELL,
Chief Justice, BECK, Presiding Justice,
and BELL, Justice, being of the opinion
that both questions should be answered in
the affirmative, and ATKINSON, GIL-
BERT, and HUTCHESON, Justices, be-
ing of the opinion that they should both
be answered in the negative, the questions
must be returned to the Court of Appeals
without instruction, since the court, being
evenly divided, cannot agree what answers
a be given to the questions propound-
ed.

StLoriocy

the limitations prescribed in the statute.”
The court did not err in overruling the mo-
tion for a new trial.

Judgment affirmed.

i operation unless the holder thereof shall
kive bond, with adequate security, for the
protection in case of passenger vehicles, of
the passengers and baggage carried and of

;

LA HATTE et al. v. WALTON.
No. 10940.

° bier NUMBER SYSTEM

Supreme Court of Georgia.

ae TIRES gy OE aR ir tse 5 Baek a Heb Rg RIE ee aR al Stale WE

All the justices concur.

LOWMAN v. STATE.
No. 11248.

Supreme Court of Georgia.
Feb, 18, 1936..

Syllabus by Hditorial Stag.

Criminal law €=935(1)

Motion for new trial based upon gen-
eral grounds only held properly overruled,
where verdict was authorized by evidence.

—_—~——_—_—
Error from Superior Court, Chatham
County; John Rourke, Jr., Judge.
Julius Lowman was convicted of mur-
der, and he brings error.
Affirmed.

Feb. 21, 1936.

‘Syllabus by Editorial Staff.

Courts €=217(10)

Questions certified to Supreme Court by
Court of Appeals, whether joint action at
Jaw could be maintained against motor car
rier and its indemnity insurer, would be re-
turned to Court of Appeals without instruc
tion, where court was evenly divided and
could not agree on answer to be given que*
tions propounded (Acts 1929, p. 297, § 5).

—_—>———_

Certified Questions from Court of Ap-
peals.

Action by H. L. Walton against M. |.
La Hatte and others, wherein error was
brought to Court of Appeals which certi:
ficd questions to the Supreme Court.

Questions returned to Court of Appeals
without instruction.

“Thos. M. Stubbs, Neely, Marshall &
Greene and Edgar A. Neely, Jr., all of At-

lanta, for plaintiffs in error. é
dl

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

~~

the public, against injury proximately
caused by the negligence of such motor
catriers, its servants or agents, and, in
cases of vehicles transporting freight, to
secure the owner or persons entitled to
fecover therefor against loss or damage
to such freight for which the motor car-
fier may be legally liable, and for the pro-
tection of the public against injuries prox-
mately caused by the negligence of such
motor carrier, its servants or agents. The
commission shall approve, determine and
fix the &mount of such bonds, in a sum
of not more than $10,000 for any one acci-
‘ent, casualty, or mishap, and not more
than $5,000 for any one injured or dam-
aged party or claimant, and shall prescribe
the provisions and limitations thereof, and
such bonds shall be for the benefit of
and subject to suit or action thereon by any
werson who shall sustain actionable injury
ot loss protected thereby. The commission
may, in its discretion, allow the holder of
‘uch certificate to file in lieu of such
bond a policy of indemnity insurance in
sme indemnity insurance company au-
thorized to do business in the State of

JACKSON v. STATE.
No. 11160.

Supreme Court of Georgia.
Feb. 20, 1936.

Syllabus by Editorial Staff.

1. Criminal law €=1129(3)

General assignment that court erred in
not charging law of voluntary manslaughter
is too indefinite to raise any question for re-
view.

2. Homicide €>309(4)

Omission to charge law of involuntary
manslaughter in commission of lawful act
without due caution and circumspection held
reversible error, where evidence authorized
finding that accused was guilty of that grade
of manslaughter. .

a
Error from Superior Court, Dooly Coun-
ty; A. J..McDonald, Judge.
Tommie Jackson brings error,
Reversed.

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

*OC6T 6S2 YOMeW Aepanu coz (ueyyeyo) dS *eD *oeTe *zE SyoeTQ Ssnt{ne *NvWKOl


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“LOUIS, Lewis, black, hanged at \Macon, Georgia, on March 31, 18936

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No appeals.

KNOX, Ernest and DANIFLS, Oscar, blacks, hanced at Cumming, Ga., on Oct. 25, 1912.

"Cumming, Ga., 9-1L0-1912-Mob spirit, which has beenat fever heat since threatened race
troubles Saturday, boiled over today when several hundred white men stormed the local jail
and riddled &d Collins, a negro, with bullets, The body was mutilated with a crowbar and
then dragged to the public square, where, in the presence of acrowd of over 2,000 citi-

zens, was sirung up to a telephone pole. Collins was arrested today along with 3 other
negroes in connection with the assault on a young white girl here Sunday. It is alleged that
he assisted Ernest Cox, alias Daniels, the negro who confessed to the crime, in hiding the
body. Cox was taken to Atlanta for safekeeping. " ‘TMNNESSEAN, Nashville, Tenn,, Sept,
12,-4912:¢€1.hs)

"Cumming, Gas, Sept. 9, 1912-The sending of Bud Smith, a young negro, to Atlanta for safe-
keeping after his alleged confession of the assault on.a white girl who was found uncon-
sttous in a ravine near heretoday, prevented a probable lyncihing and another oubbreak of
troubles here. The girl died tonight. ‘+he young woman, daughter of a prominent planter,
had been missing since yesterday afternoon, She left home to visit her grandmother, a half
mile away. According to ibhe negro s alleged confession, hemet her on the road and attacked
her and threw her body over a cliff. A small pocket mirror found near the scene of the
crime led to his arrest. News of the arrest quickly spread and the prisoner was hurried

to Gai nesville and placed in jail. Reports that a mob was forming in the country for the
purpose of attacking the jail caused Judge J. B, James to order thenegro taken to Atlanta,"
TENNESSEAN, Nashville, Tenn, Sept. 10, 1912 (7.1.)

"Cumming, Gas, Oct. 3, 1912<Although 1,000 people have gathered here from the country side
Sheriff W. We Reid and officers of the 5th regiment are not expecting trouble over the
trial of the 6 negroes charged with assaultessThe 6 negroes who are on trial were brought
from Atlanta yesterday by a picked detachment of the 5th regiment under the command of
Capt. Catron, The troops stopped at Buford for dinner, then marched from Buford here
during the afternoon, They camped a mile from here at the fork of the road and brought
their prisoners to the courhouse early this morning, Five of the negroes are accused of
assisting in an attack upon a young white girl who was assaulted.and murdered 3 ffeéks

ago inthe woods near here, The sixth negro is charged with an attempted assault upon
another white woman..." JOURNAL, Atlanta, 10/341912 (141.)

"Cumming, 1l0-l-1912<Over roads muddied by night rains, troops moved toward Buford this
morning, still guarding the 6 negroes brought by them from Atlanta, The troops will
board a special traii at Buford and will arrive home Friday afternoon, Two of the six
negroes were convicted Thursday of the murder, The two were sentenced Friday morning
by Judge N. A. Morris to hang on Oct, 25, The third negro's case was postponed until
the regular session of court, The two remainig negro men were held as witnesses and the
negro woman, accused of being an accomplice to,.the murder, was not tried, The two negro
men convicted are Ernest Knox and Oscar Daniel, The shortest time after conviction in
which the law permits them to be hanged is 20 days and Judge Morris allowed them only 21
days of life... Not for 53 years has a man been hanged in Forsyth County...Thesé 2 negroes
were convicted of stoning to death.a girl in the woods some miles from here, A companion
who assisted inthe murder was lynched three weeks ago on being brought to Cumming, The
negro woman who was n ver brought to trial, was charged with having held a torch to light
the murderers , But she has not been indicted and it was largely her testimony that con-
victed the twose." JOURNAL, Atlanta, lO#f%1912 (Lf1.)

"Cumming, Ga., county seat of Forsyth County, was declared to be in a state of insurrec-
tion by a proclamation which Gov. Brown signed Thursday morning. ‘his action was taken
by the governor as a precedent to sending troops with two negroes who are to be hanged
Fridaye.eeThe request for troops reached the governor Thursday morning shortly after ten
o'clocky It came from SheriffReid of Forst$h County, but was transmitted by the: ordinary
at the former's directionesee." JOURNAL, Atlanta, 10=2)-1912 (1-5.)

"Cumming, Gas, l0=-25-1912-8,000 people, including many fathers and mothers with children
in their arms, stood on the hills above a pasture land, near the court house here Friday
and saw Rrnest Knox and Oscar Daniel, two negroes, pay the death penalty for criminal
assault and murder. ‘The great crowd cheered as the negroes went through the trap.

a ne

KNOX and DANIELS, blacks, hanged Cumming, Ga., 10-25-1912 - Continued,

roads, was made without mishap. Chief Smith, on his arrival here, declared that nothing
except the present of astrong body of troops will prevent serious trouble when Cox is
arraigned for.a preliminary trial in Cumming next week, as feeling there runs as high as
it does in Gainesville. This has been the second serious assault within a week to stir
the feelings of the Cumming citizenry, and Cheif Smith states that Governor Brown will be
asked to order out the same troops who guarded the Cumming jail a few days ago. The vice
tim of Cox's assaults belongs to one of the best known families of Cumming, Sunday, at
noon, she was going to the home of an aunt to assist the relative in caring for her
children,
"As she passed through a secluded spot, Cox jumped from behind a clump of bushes and ,
seizing her, dragged her into the ravine, She fought bravely against the negro, who ,
according to his own story of the crime, teat her over the head with a large rock until
she was unconscious, Cox exhibited scratches on his face and hands to show how the |
firl fought him, Cox dragged her body deeper into the ravine and there -he left her to
die, With the spark of life still in her body, but totally unconscious, the girl remain=
ed exposed to the elements until noon of the following day. She was hezely alive when |
found and despite the best of medical attention succumbed to the shock of her injuries
within a few hours after her friends and relatives found her, A Mr, Shackelford who
runs a store near Cumming, indentified a mmall mirror found near the body as having been |
purchased by the negro Cox, When he was confronted with this evidence, he told the |
whole story of the crime," JOURNAL, Aflanta, Gas, B6pt. 10, 1912 (9-1.). |


KITCHENS, Ed, black, hanged Sandersville, Washington Co., GA, October 16, 1913.

“Sandersville, Ga., 10/17/1913-Ed Kitchens, colored, aged 28, convicted at the September
term of the Washington Superior Court of the murder of Brantley, white, overseer for J. H.
Hooks, near Warthen, in August, was hanged here today.”-At/anta Journal, Atlanta, GA,
’ 10/18/1913 (2/6).


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740 Ga. 198 SOUTH EASTERN REPORTER

laid on each person who shall engage in in-
stalling, and repairing, and selling electrical
wiring or equipment? or on each person
who shall engage in installing, or repairing,
or selling electrical wiring gr equipment?

[2,3] We recognize the rule that tax
acts, including acts imposing taxes on oc-
cupations, are to be strictly construed
against the government. Mayor, etc. v.
Hartridge, 8 Ga. 23; Mystyle -Hosicry
Shops v. Harrison, 171 Ga. 430, 155 S.E.
765. But we must not lose sight of another
rule which admonishes us that however
awkward and unusual the language of a
statute may be, the legislative intent mani-
fested by it must be ascertained and en-
forced as the law. Torrance v. McDougald,
12 Ga. 526(3); White v. State, 121 Ga. 592,
49: S:-E- 715; ° Lee v. Tucker, 130 Ga. 43, 60

‘S.E. 164. If the word combination “and/or”

has a well-defined meaning recognized in
legal parlance, it is the duty of this court to
give the statute in which it is used that
construction which is in harmony with that
meaning. If in doing so the authorities
lead us to the conclusion that it was the
purpose of the General Assembly to tax one
in the situation of the defendant, the rule
of strict construction will not have been
violated. The expression “and/or” has
been before the courts a number of times
and frequently has been criticized. In Em-
ployers’ Mutual Liability Ins. Co. v. Tollef-
sen, 219 Wis. 434, 263 N.W. 376, it was
said [page 377]: “We are confronted with
the task of first construing ‘and/or,’ that
befuddling, nameless thing, that Janus-faced
verbal monstrosity, neither word nor phrase,
the child of a brain of some one too lazy or
too dull to express his precise meaning, or
too dull to know what he did mean, now
commonly used by lawyers in drafting legal
documents, through carelessness or igno-
rance or as a cunning device to conceal
rather than express meaning with view to
furthering the interest of thcir clients.”
While disavowing the expressions used by
the learned judge in his classification of
those who are responsible for its choice,
the writer deplores the use in contracts and
statutes of that hybrid, contradictory com-
bination, frequently as bewildering, mystify-
ing, and perplexing as Poe’s raven—or was
it fiend? on the Night’s Plutonian shore.”
3 C.J.S. 1069, deals with this word com-
bination, and analyzing the holdings of the
various courts says in the text that the
meaning of “and/or” may be clear, supply-
ing the intention either that effect shall be

given to both the conjunctive “and” and the
disjunctive “or,” or else that the one word
or the other may be taken accordingly as the
one or the other will best give effect to the
purpose intended as gathered from the in-
strument taken as a whole, and for that
purpose to use either “and” or “or,” and be
held down to neither; and that on the oth-
er hand it has also been said that, as some-
times used, the term is ambiguous.

[4] We think that what the legislature
intended was that paragraph 50 of section 2
of the general tax act of 1935 is to be read
by using the word “and” or the word “or
interchangeably between the words “install-
ing,” “repairing,” and “selling,” so as to
impose the tax provided in said act on any
person who shall engage in installing, re-
pairing, and selling electrical wiring and
equipment, or who shall engage in any one
of them. To hold otherwise would be to
entirely ignore the disjunctive “or.” Since
there is a construction permissible, under
the authorities cited in the note to 3 C.J.S.
1069, which will permit us to do so, the
rule that we are to give effect, if possible,
to every word in a statute, requires us to
adopt this construction,

[5] 2. It is further contended that if
the act, properly construed, undertakes to
impose a tax on the defendant in error, then
it is unconstitutional because violative of
our requirement as to uniformity (art. 7,
sec. 2, par. 1; Code, § 2-5001), requiring
that “all taxation shall be uniform upon the
same class of subjects.” The argument
is that a legislative classification that dis-
regards the clear distinction between con-
tractors and materialmen, as commonly un-
derstood, as embraced in our lien statutes,
and as defined by repeated decisions of
this court, is fairly subject to the criticism
that it is unreasonable and arbitrary. In
Wright v. Hirsch, 155 Ga. 229, 116 S-E.
795, this court dealt at length with the pow-
er of the legislature to make classification
of subjects for occupation taxes; and it
was said that in doing so the lawmaker?
might make subclassifications. In gery
y. Harrison, 178 Ga. 669, 173 S.E. 831,
was said that the General Assembly, in ie
imposition of occupation taxes, may sub-
divide into different classes person engase?
in the same business but under different
conditions and surroundings. In Sinsef
Mfg. Co. v. Wright, 97 Ga. 114, 25 S.E
249, 35 L.R.A. 497, it was ruled that the
uniformity required by the constitution 1
not violated so long as a given tax is made

i
i

CARTLEDGE y,. TRUS

ST CO. OF COLUMBUS Ga. 74]

198 S.E,

uniform upon all individuals belonging to
the particular class on which it is imposed.
In that case the contention was that the
tax was not uniform, because none was re-
quired of retailers of machines who were
not manufacturers. It was held that such
contention was unsound. There is nothing
in the paragraph of the act involved in the
instant case which violates the rule against
uniformity. It was error to enjoin collec-
tion-of the tax.

Judgment reversed.

All the Justices concur.

° KEY NUMBER SYSTEM

qaums

KNIGHT v. STATE.
No. 12488.

Supreme Court of Georgia.
Sept. 23, 1938.

Syllabus by Editorial Staff.

Criminal law ©=935(1)

Where there was no evidence offered by
the defendant and the evidence for the state
authorized verdict of guilty, overruling of
motion for new trial based on general
grounds was not error.

—_———_>—_—.

Error from Superior Court, Bryan
County; J. T. Grice, Judge.

Proceeding by the State against Frank
Knight. To review an adverse judgment,
defendant brings error.

Affirmed.

Edwin J. Feiler, Aaron Kravitch, and
Chas. E. Donnelly, all of Savannah, for
plaintiff in error.

J. P. Dukes, Sol. Gen., of Pembroke, M.
J. Yeomans, Atty. Gen., Ellis A. Arnall,
Asst. Atty. Gen. and E. J. Clower, of
Atlanta, for the State.

Syllabus Opinion by the Court.

RUSSELL, Chief Justice.

There being no evidence offered by the
defendant, and the evidence for the State
authorizing a verdict of guilty, the court

did not err in overruling the motion for
new trial, based only on the general
grounds.

Judgment affirmed.
All the Justices concur.

° KEY NUMBER SYSTEM

sums

CARTLEDGE ¥. TRUST CO. OF
COLUMBUS.

No. 12298.

Supreme Court of Georgia.
Sept. 23, 1938.

[. Mortgages €=333

A power of attorney to sell realty on de-
fault in payment of debt to secure which
the land has been conveyed to the lender,
can be incorporated in note evidencing the
indebtedness, and the note and deed convey-
ing the land constitute a single transaction
between the parties.

2. Mortgages €333

A power of attorney, contained in note,
to sell realty on default in payment of debt
to secure which the land has been conveyed
to the lender, need not contain a description
of the land conveyed, where the deed of con-
veyance securing the indebtedness and de-
scribing the land was fully described and
identified, and the power expressly provided
that the description of the land contained
in the deed was “referred to and adopted
as though fully incorporated herein.”

3. Vendor and purchaser €>130(3)

A holder of a security deed acquiring
title on default in payment of indebtedness
under power of sale contained in note evi-
dencing the indebtedness obtained a mer-
chantable title, and hence could compel spe-
cific performance of a contract to sell real-
ty to third person, notwithstanding that
power of sale was not contained in security
deed, where the deed and note expressly
provided that the two should be construed
together in determining the rights of the
parties, and the power of attorney provided
that the description of the land contained
in the deed was “referred to and adopted
as though fully incorporated herein.”

—"*QE6T<$Sc-TT (uecsug) eTsioeg peqnocaqoeTo SyoeTq *yUeIYy * THDINY


on °°
INDICTMENT ; Enterprise, Douglas, Ga.

GEORGIA, 42 21/__ County.

IN THE SUPERIOR COURT OF SAID COUNTY

THE GRAND JURORS, selected, chosen and sworn for the County of Eve :
: ;

iid baie etareniiiietnen’ LOTEMNAN

in at ae Tat
In the name and behalf of the Ci ae of = charge and Nis ae

“ og a LkAL Stee ae th

.. of the County and State aforesaid, with the offense of

f-
. 4

} fl 2)
on the ess Te, day of peace, in the year Nineteen Hundred and x 4 Lo

J

in the County aforesaid, did then and there unlawfully and with force and arms,

Bef w1tK —prrglee tfons the

aye tll Altice: CA,

Contrary to the laws of said State, the good order, peace and di pk thereof.

, y ae
I Sige p—- ai i LO

+k {Zam oi —...____. Superior Coutt. = ‘a / c7_ Prosecutor

A

ZBL 13 HK Pmt: gota
PLP DS l 4 Term, 19- £0 ee. =. =

$ Solicitor-General

/

SPECIAL PRESENTMENT


Georgie, Bacon County. Indictment for Murder
in Beacon Superior Court,
The Stete of Georgia November Term 190.

‘VS. Verdict of guilty
without recommendation.

Buddie Lawrence

”

The jury trying you heving returned into Court a verdict
of guilty without recommendation it is considered ordered and
adjudged treat you, Buddie Lawrence , be teken from the bar of
this Court to the common jeil of Bacon County, Georgie or such
other plece as may be directed by the court where you shall

be safely kept until not more then twenty days nor less than

two days before the time herein after fixed for your execution

within which time the Sheriff of Bacon County, Ga. with one
aeputy or more and such guerds as may be epproved by this
Court, shall safely deliver you to the Warden of the State
Penitentiery at Reidsville, Georgia, who shall on the { y,
day of {P22 194.) put you to death by electrocution and

electrocute you, in the State Penitentiary at Reidsville, Georgia.
The Clerk of this Court shall file this sentence as a pert

of the record in this case end shell send a Certified copy of

seid sentence to the Superintendent of the State Penitentiary

at Reidsville, Georgia not less than ten days prior to the date

herein before fixed for your execution.

Done in open Court this the 20th day of November 1940

Judge Superior Gourt Bacon County, Ga.


*

ae

ee ee

ct

464 Ga.

Will Ed Smith, of Eastman, for defend-
ants in error.

ATKINSON, Justice.

[1] This court has held that the law
vests full power and authority for the op-
eration of schools in the county boards of
education. Trustees may recommend, but
the power to employ teachers is exclusively
in the county board of education. Carter
v. Johnson, 186 Ga. 167, 197 S.E. 258. The
county board of education has authority to
provide for the transportation of children
from one district to another. Keever v.
Board of Education, 188 Ga. 299, 3 S.E.2d
886. Courts will not ordinarily interfere
in controversies relating to schools, but
their administration should be left to the
county board of education. Davis v. Had-
dock, 191 Ga. 639, 13 S.E.2d 657. The
county board of education is vested with a
discretion as to consolidation of schools, lo-
cated in the same or different districts.
Bramlett v. Callaway, 192 Ga. 8, 14 S.E.2d
454, Contracts made by school trustees un-
der powers conferred by Const. art. 8, § 4,
par. 1, Code, § 2-6901 are subject to ap-
proval by the county board of education.
Downer v. Stevens, 194 Ga, 598, 22 S.E.2d
139.

Counsel for plaintiff in error recognize
the general power and authority vested in
the county board to operate schools, but in-
sist the power to cease operation of a
county line school is the power to destroy
or abolish the same, which can only be
accomplished by the concurrent action of
the county board of education of each
county, and that the board of education is
attempting to do indirectly, what they can
not do directly. The answer to this con-
tention is, the facts of the instant case do
not involve an attempt to abolish the coun-
ty line school district. Stated another way,
this case involves the right of a county
board of education, having supervision of
a county line school, to cease operation of
such school, and to order that all the pu-
pils, regardless of which county they live
in, be transported to another school in a
different district.

[2] While the order dated March 3,
1942, was objectionable under the decision

28 SOUTH EASTERN REPORTER, 2d SERIES

of McRae v. Grace, 179 Ga. 872, 177 S.E.
707: “Where a consolidated school district
is legally and duly created by concurrent
action of the authorities of two adjoining
counties, such district cannot be destroyed
or abolished except in some manner pro-
vided by law,” such order was never put
into operation. On the contrary, the board
of education of Dodge County operated the
Iempire School another year, after which
an order was passed on September 7, 1943,
consolidating the Empire school with
Dodge high school. The Code, § 32-1102,
declares in part: “By concurrent consent
and action, boards of education of two or
more adjoining counties may lay off and
define school districts without regard to
county lines: Provided, that the board of
education of the county in which the
schoolhouse is located shall have supervi-
sion of same.” Under the above statute,
the Empire School was under the supervi-
sion of the County Board of Education of
Dodge County, the county in which the
schoolhouse was located, just the same as
it would have been in the event all of the
territory embraced in the county line dis-
trict had been in Dodge County. The man-
agement of county schools being largely
entrusted to the county boards of educa-
tion and the legislature having invested
them with a wide discretion, the board of
education of Dodge County had authority
to cease operation of the Empire school,
and to order that all the children in the
county line district be transported to the
Dodge High School. As aptly stated by
the trial judge: “Dodge County still has
its financial responsibility, and its board
of education has the liability and the re-
sponsibility to see that every child in this
district attends school, the very best school
it can provide for it, whether it is on this
site or somewhere else. As to what is best
for the school pupils and what is the best
educational interest of that particular dis-
trict, is vested in the Board of Education
of Dodge County.”

Under the facts of this case the trial
court did not err in refusing to make the
mandamus absolute.

Judgment affirmed.

All the Justices concur.

‘
i
\
|

LEE y. STATE -
28 S.E.2d 465 Ga. 465

LEE v. STATE.
No. 14742,

Supreme Court of Georgia.
Nov. 29, 1943.

1. Rape C=7
Penetration of female sexual organ by
sexual organ of male need only be slight to
constitute “rape”, and it is not necessary
that vagina shall be entered or hymen rup-
tured but entering of vulva or labia is suf-
ficient.
See Words and Phrases, Permanent
Edition, for all other definitions of
“Rape”.

2. Rape €=51(3)

Conviction of rape was supported by
testimony showing no penetration through
the hymen into the vagina, but disclosing
abrasions on the lower folds of the vagina
which in opinion of examining physician
would require some slight penetration of the
vagina,

3. Rape €=54(2), 57(4)

Where corroboration of prosecutrix is
required to support conviction for rape,
corroborative evidence need not be of it-
self sufficient to convict accused; the quan-
tum of corroboration necessary being left
oot to the jury. Code, §§ 26-1303, 26-

04,

4. Rape €=57(I, 4)

In rape prosecution, two-day delay of
victim in telling her parents of attack did
not impair credibility of victim’s testimony
nor force of corroborative testimony of
Parents as a matter of law in view of
Victim’s youth and threats of perpetrator
of rape frightening victim. Code, §§ 26-
1303, 26-1304. ;

5. Rape €=51(7)

_ In rape prosecution, evidence of iden-
tity of defendant as perpetrator of offense
Sustained conviction.

6. Criminal law ©=668

In rape prosecution, admitting testi-
mony of another woman that about three
weeks prior to the crime charged she had
also been attacked by a person whom she
identified as defendant was not error,

28 $.E.2d—30

where defendant in his statement declared
that he did not do “either one” of the
crimes charged against him and facts dis-
closed that crime described by victim was
the only one which record showed had been
previously mentioned on the trial.

Error from Superior Court, Fulton Coun-
ty; A. L. Etheridge, Judge.

M. L. Lee was convicted of rape, and he
brings error.

Affirmed.

C. C. Smith and A. Guy Smith, both of
Atlanta, for plaintiff in error.

John A. Boykin, Sol.Gen., Quincy O. Ar-
nold, and Durwood T. Pye, all of Atlanta,
T. Grady Head, Atty. Gen., and L. C.
Groves, Asst. Atty.Gen., for defendant in
error.

Syllabus Opinion by the Court.

JENKINS, Presiding Justice.

[1,2] 1. Under the established rule in
this State, the penetration of the female
sexual organ by the sexual organ of the
male, which is necessary to constitute rape,
need be only slight. It is not necessary that
the vagina shall be entered or the hymen
ruptured, but an entering of the anterior
of the organ, known as the vulva or labia,
is sufficient. Morris v. State, 54 Ga. 440,
441; Ravenel v. State, 153 Ga. 130(2), 111
S.E. 643; Hall v. State, 29 Ga.Anp. 383
(la), 115 S.E. 278; 44 AmJur. 903, § 3;
52 C.J. 1015, § 24. A compliance with this
element of the statute was sufficiently
shown by testimony of the victim fourteen
years of age, as to an interior injury, sore-
ness, and pain, with testimony of the ex-
amining doctor that, although there had
been no penetration through the hymen in-
to the vagina, he found an abrasion in the
mucus membrane “on the lower folds of the
vagina,” which in his opinion “would re-
quire some slight penetration of the vagina
to cause.”

[3-5] 2. Assuming that it is still the
rule, as held by a majority of the Justices
in Davis v. State, 120 Ga. 433, 48 S.E. 180,
that there can be no conviction of any rape
unless the testimony of the female is’ cor-
roborated—even though the only express

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466 Ga.

statutory provision to that effect, as con-
tained in the act of 1918 (Ga.L.1918, p.
259, Code, §§ 26-1303, 26-1304), has been
held to apply only to cases of intercourse
with the consent or acquiescence of fe-
males under the age of fourteen years
(Griffith v. State, 176 Ga. 547, 548, 168 S.E.
235, and cit—in all cases where corrobora-
tion is required, “the corroborative evi-
dence need not be of itself sufficient to con-
vict the accused,” and “the quantum of cor-
roboration necessary,” except where as
in the Griffith case it is plainly lacking,
“is left entirely to the jury.” Wright v.
State, 184 Ga. 62, 67, 68, 190 S.E. 663, 666;
Suber v. State, 176 Ga. 525(2 a), 533, 168
S-E. 585; Smith v. State, 77 Ga. 705(2 a),
713. In the instant case, the testimony by
the mother and the father of the girl as
to her complaint and accompanying acts, and
testimony by the physician who examined
her two or three days after the attack and
found the injuries stated, together with the
other facts and circumstances hereinafter
stated, afforded ample corroboration. The
two-day delay of the girl in telling her
parents of the attack could not be taken as
a matter of law to have impaired the cred-
ibility of her testimony or the force of the
corroborative evidence, in view of her
youth, the circumstances of the attack by

. the negro assailant, breaking into her home
while she was asleep and her parents were.

away, seizing her and threatening her with
a pistol; and her explanation that, after
this defendant told her, “Down here they
don’t treat the negroes right, but up there
this happens all the time,” he said, “If you
ever tell this to anyone, I will break every
bone in your body—that just scared me to
death, and the fact that this negro had the
pistol on me frightened me also;” and that
she had been afraid to make a report soon-
er to her mother, because the defendant
had said that “if I told that, he would be
back some way and he would know it.” As
to similar cases of sufficient corroboration,
and of slight delay in reporting an attack
because of fear or other strong reasons,
see Bennett v. State, 102 Ga. 656, 29 S.E.
918; Pylant v. State, 191 Ga. 587(4), 13
S.E.2d 380.

3. The proof of identity of the defend-
ant as the perpetrator of the crime was suf-

28 SOUTH EASTERN REPORTER, 2d SERIES

ficient to authorize the verdict of guilty,
without a recommendation. There was
testimony by the girl that the attack oc-
curred near the light, and she was positive
the accused was the man who made the
attack; and this evidence was corroborated
by testimony of others that the defendant
had pawned a pistol and had been in pos-
session of a watch that struck the time, both
of which belonged to the girl’s father and
had been taken from her home following
the attack, and which were recovered a
few days later, and were in evidence at
the trial.

[6] 4. There is no merit in the only
special ground, excepting to the introduc-
tion of testimony by another young woman
that about three weeks before the crime
charged, in the same general section of
the city but at a considerable distance from
the scene of the later offense, a like crime
was committed on her by a negro man, who
held a knife to her throat, and whom she
positively identified as the defendant. Ir-
respective of whether or not this testimony
was admissible under other exceptions to
the general rule that an offense different
from the one charged cannot be proved
(see Barkley v. State, 190 Ga. 641(2), 10 S.
E.2d 32, and cit.; Wilson v. State, 173 Ga.
275(2), 160 S.E. 319), still the testimony
was admissible, under the rule that “where
the defendant * * * exercises his right
of making a statement not under oath, such
statement may be contradicted by testimony
as to the facts which it narrates”, Camp
v. State, 179 Ga. 292, 175 S.E. 646, where
the court, after excluding such testimony
before the defendant made his statement
to the jury, admitted it in rebuttal of the
statement then made, “I did not do either
one of the crimes which they have got laid
to me.” Although the other charge thus
referred to was not more particularly in-
dicated by the defendant, the crime de-
scribed by the witness was the only one
which the record shows had been previous-
ly mentioned in the trial. See Sisk v.
State, 182 Ga. 448(3), 452, 185 S.E. 777;
Johnson v. State, 186 Ga. 324(4), 334, 197
S.E. 786.

Judgment affirmed.
All the Justices concur.

BROTHERTON y. STONE : Ga, 467
28 S,E.2d 467

BROTHERTON v. STONE et al.
No. 14722,

Supreme Court of Georgia.
Nov. 30, 1943.
Rehearing Denied Dee. 13, 1943.

1. Jury C>16(1)

On ancillary petition by defendant’s at-
torneys in an equity case to fix reasonable
fee for services rendered in the suit by re-
covering a sum of money, which was being

held as custodian by title insurance com- -

pany for defendant and the attorneys “as
their rights and interests might appear,”
trial judge’s passing on the matter without
a jury was not error.

2. Attorney and client C>182(1)

In addition to a holding lien in favor
of attorneys on all papers and money of
their clients in their possession for serv-
ices rendered to them, the statutes give to
attorneys a “charging lien”, not only upon
judgments and decrees for money or for
recovery of real or personal property, but
upon the suit in which such relief is ob-
tained or sought. Code, § 9-613, subds.
1-3.

See Words and Phrases, Permanent

Edition, for all other definitions of
“Charging Lien”,

3. Attorney and client 2175

Statutory liens as to property or suits
are not limited to attorneys for a plaintiff,
but will be equally allowed to attorneys
Serving in defense against such suits in
case the defense is successful. Code, §
9-613, subds. 1-3, 5.

4. Attorney and client €=175

An attorney’s lien attaches to fruits
of the labor and skill of the attorney,
whether realized by judgment or decree or
by virtue of an award, or in any other way,
as long as they are result of his exertions,
Code, § 9-613, subds. 1-3, 5.

5. Attorney and client C175

A lien inured in favor of attorneys for
defendant in an equity suit, where they ob-
tained a favorable scttlement agreement
for their client, and money under such set-
tlement was paid to and held by a third
Person for benefit of defendant client and
the attorneys “as their interests and rights
might appear”. Code, § 9-613, subds, 1-3,

6. Dismissal and nonsuit ¢=42

Where money was obtained for a cli-
ent and was held in escrow for him and at-
torneys, fact that between time of rule nisi
and hearing, a notice was filed with clerk
of court, signed by all attorneys in original
suit, directing clerk to dismiss such suit as
settled, did not deprive court of its juris-
diction to determine reasonable attorneys’
fees. Code, § 9-613, subds. 1-3, 5,

————>—__—.

Error from Superior Court, Fulton
County; A. L. Etheridge, Judge.

Ancillary petition by Noah J. Stone and
another against W. H. Brotherton, execu-
tor, to have petitioners’ fees for legal serv-
ices in an equity suit determined, and to se-
cure a lien on fund which had been recov-
ered for their clients. To review an ad-
verse judgment, defendant brings error.

Affirmed.

The owners of a note secured by a deed
sued the executor of the will of the de-
ceased promisor for an alleged balance due
of $5,899.86. Two attorneys, employed by
the defendant, filed for him an answer in
the nature of a cross-bill, in which they not
only asked for a recovery of $2,000 upon
the defendant’s conveyance to the plaintiffs
of certain real estate, but prayed for af-
firmative equitable relief by cancellation of
a deed and note and by specific perform-
ance of a contract.

After several weeks of negotiation and
approval of title by a title insurance com-
pany, an agreement of settlement was
made, under which the plaintiffs’ claim
against the defendant was settled, and a
net amount of $1,935 was paid into the
hands of the title company for the benefit
of the defendant. Upon failure to pay
their fee, the attorneys for the defendant
filed in the same superior court equity suit
a petition, which set forth the above facts,
their legal services in the case; that $100
as a retainer had been paid on their fee;
and that “the [defendant] executor claims
the court should name a reasonable sum to
be paid said attorneys, to which the peti-
tioners agreed, and therefore present this
petition.”

At the hearing on the rule nisi, granted
on the filing of the attorneys’ petition, the
court denicd a motion to dismiss on the
ground that “it appears upon the face of
the petition and the record” that the pe-
titioners are not entitled to relief; and


Georgia Executes Lonchar
AP 14-Nov-1996 0:48 EST REF5993
Copyright 1996. The Associated Press. All Rights Reserved.

The information contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.

By ELLIOTT MINOR

Associated Press Writer

JACKSON, Ga. (AP) -- A killer who had wanted to donate a kidney to
the retired detective who helped put him on death row was executed
early Thursday for murdering three people over a $10,000 gambling debt.

Larry Grant Lonchar, 45, was electrocuted at 12:39 a.m. despite a
flurry of last-minute appeals.

Twice earlier, he had won reprieves minutes or hours before going to
the electric chair, most recently by offering to donate his Organs. He
wanted to give his kidney to Melvin Ferguson, who helped tie him to the
triple slaying.

The retired detective, whose kidneys had been damaged during heart
surgery, contacted Lonchar’s attorney, saying he knew Lonchar’s blood
type from the murder investigation and that it matched his.

But the state refused to allow the necessary tests, saying it didn’t
want Ferguson to be disappointed and that Lonchar was too dangerous to
be taken out of prison.

Lonchar, who spent more than 31 years of his life behind bars, had
changed his mind often over the years on whether he wanted to be
executed.

The U.S. Supreme Court set aside an earlier execution date in April
when it refused to set a time limit for state death-row inmates to file
their first federal appeals.

Lonchar filed his first federal appeal in June 1995, saying he hoped
the state would change its execution method to lethal injection because
electrocution ruins organs for donation.

Lonchar was convicted in 1987 of killing Charles Wayne Smith,
Smith’s girlfriend, Margaret Sweat, and his son, Steven Wayne Smith.

Police said Lonchar shot the three over a gambling debt he owed the

father. He also cut Sweat’s throat. Another one of Smith’s sons, Rick,
was shot but survived.


Georgia Executes Lonchar
AP 14-Nov-1996 7:19 EST REF5645
Copyright 1996. The Associated Press. All Rights Reserved.

The information contained in the AP news report may not be published,
broadcast, rewritten or otherwise distributed without the prior written
authority of The Associated Press.

By ELLIOTT MINOR

Associated Press Writer

JACKSON, Ga. (AP) -- A man was executed in the electric chair early
today for murdering three people over a $10,000 gambling debt.

Larry Lonchar died at 12:39 a.m. after receiving two jolts of 2,000
volts apiece.

Smiling as he was strapped into the chair, his last statement was:
"Father, forgive them, for they know not what they do."

The 45-year-old Lonchar, a native of Battle Creek, Mich., was
convicted in 1987 for killing a 54-year-old man, the man’s girlfriend
and his son. The killings involved $10,000 Lonchar owed to a gambling
ring allegedly run by one of the men. |

Clive Stafford Smith, one of Lonchar’s attorneys, held his hand over
his eyes during the execution and later condemned the state for
carrying it out.

"If there is anyone who believes the world has miraculously become a
better place because we just tortured to death our friend in Jesus,
Larry Lonchar ... then Father forgive them," Smith said.

-Lonchar’s execution was stayed seven times as he went through the
appeals process. In 1993, he came within 32 minutes of dying.

In a written statement, he said he felt God had forgiven him and he
apologized to the victims’ families for the pain he had caused.

Georgia Attorney General Mike Bowers said he was glad Lonchar’s
legal maneuvering is over.

“Justice has been done," he said.

Also scheduled for execution in Georgia today was Ellis Wayne

Felker, 48, who was convicted of the 1981 rape and murder of a
19-year-old woman.

LONCHAR, Larry Grant, white, electrocuted SP (DeKalb Co.), November 14, 1996.

“’..Lonchar is scheduled to be executed,.,for killing Wayne Smith, 54, son Steve Smith,
24, and the older man’s girlfriend, Margaret Sweats, 45, in 1986. Another member of the Smith
family, Rick, was shot and left for dead on the floor of the bedroom where he had been sleeping
when Lonchar and another man, Mitchell Wells, came, to the DeKalb County condeminium...
Lonchar described the killings in detail. He said he ownied the Smiths $10,000 for a gambling
debt and that Steve Smith made threats about what would happen if Lonchar did not repay the
money quickly. On Oct. 13, 1986, Lonchar said, he and Wells went to Rick Smith’s
condeminium. Wells went into a bedroom which Lonchar stayed in the living room with the
father and son. Lonchar said he shot Smith and then Wayne Smith. A moment later he heard
three or four shots from a bedroom where Rick Smith was sleeping. Sweat then came into the
living room and Lonchar shot her twice, then fired one more bullet into each of the two men lying
on the floor. Lonchar said he went outside for a moment to listen for police sirens. We head
Sweat on the telephone calling for help when he came back inside, ‘which surprised me because I
thought everyone was dead. All my guns were empty,’ so he cut her throat, Lonchar said...”
Journal/Constitution, Atlanta, GA, 6/23/1995.

” Atlanta-Larry Lonchar plans to ask the court to allow him to donate a kidney to retired
police Det. Melvin Ferguson, 60, who helped put him on death row for the 1986 murders of three
people.”-USA Today, 3/14/1996.

“..Larry Grant Lonchar, 45, was electrocuted at 12:39 a.m. despite a flurry of last-minute
appeals. Twice earlier, he had won reprieves minutes or hours before going to the electric chair,
most recently by offering to dante his organs. He wanted to give his kidney to Melvin Ferguson
who helped tie.him to the triple slaying. The retired detective, whose kidneys had been damaged
during heart surgery, contacted Lonchar’s attoprney, sayhing he knew Lonchar’s blood type from
the murder investigation and that it matched his. But the state refused to alslow the necessary
tests, saying it didn’t want Ferguston to be disappointed and that Lonchar was too dangersous to
be taken out of prison. Lonchar, who spent more than 31 years of his life behind bars, had
changed his mind over the years on whether he wanted to be executed...” Associated Press wire
release, 11/14/1996, 0:48 EST, Compuserve


S40 Ga.

deceased with a weapon likely to produce
death,” ete., when he should have charged
that “if the State proves that the accused
killed the deceased with a weapon likely to
produce death,” ete.; (g) that said charge wae
erroneous and hurtful to this defendant, in
that the court did not charge in connection

’ therewith the amount or weight of evidence
necessary to rebut the presumption of murder.
See, in this connection, Mann vy. State, 124 Ga.
760, 53 S. E. 324, 4 L. R. A. (N. S.) 934; Tur-
ner vy. State, 139 Ga. 593 (8), 77 S. E. 828.
The defendant made no statement to the jury,
but set up the defense of insanity. The court
charged the jury on the subject of insanity ;
and there being no appropriate request. for
any further or fuller instruction on that sub-
ject, the criticisms of the charge are with-
out merit.

[11] 9. Ground 9 assigns error on the fol-
lowing instruction: “I charge you that when
one sets up the defense of insanity, the bur-
den is on him to prove that defense to the
reasonable satisfaction of the jury. When
one acts to void deed upon the ground of in-
sanity, the burden is upon him to establish
insanity at the time the deed was executed,
but if the insanity was proved previous to
that time, the presumption is that it contin-
ued down to the making of the deed or com-
mission of the act. As I have charged you,
the burden is upon the accused to establish
insanity by a preponderance of the evidence.
The presumption is that he is sane.” Tn Al-
Z lams vy. State, 123 Ga. 500, 51S. E. 506, it was
7 held: “Where the accused on trial for mur-

der relied on the defense of insanity at the
time of the homicide, it was not error to in-
struct the jury that the burden was upon him
to show ‘that at the time of the killing he was
not of sound memory and discretion. He
must show this not beyond a reasonable doubt,
but to the reasonable satisfaction of the jury,
by a preponderance of the evidence.’ Beck v.
State, 76 Ga. 452 (7); Keener vy. State, 97 Ga.
388 (3), 24S. FE. 28; Minder y. State, 113 Ga.
772 (3), 89 S. KE. 284." The charge in the in-
stant case is shnilar to that in the Allams
While the charge is somewhat confus-

SANA
SSA

more VOU OF tL:

Case.
ing in the use of the language, “When one acts
to void deed upon the ground of insanity, the
burden is upon him to establish insanity at the
time the deed was executed; but if the in-
sanity was proved previous to that time,

173 SOUTH EASTERN REPORTER

the presumption is that it continued down to
the making of the deed or commission of the
act,” yet the jury knew that the validity of a
deed to land was not in question, and were
bound to know that the charge referred to the
commission of the deed or act of the defend-
ant in the case on trial; and the use of the lan-
guage is not ground for a reversal of the case.

[12] 10. Ground 10 alleges error because the
court charged the jury. in the language of the
Code (Pen. Code 1910, §§ 60-62) on murder and
on express and implied malice, without any
further explanatory remark or instruction
in connection therewith. There was no ap-
propriate request to elaborate the charge on
these subjects; and it has been repeatedly
held that it is not error to fail to elaborate
a given charge that is legal and pertinent.

[13] 11. Ground 11 assigns error because
the court charged as follows: “A verdict of
not guilty in this case, gentlemen, would
mean that the defendant would be discharg-
ed without any punishment or confinement as
far as this case is concerned. That would end
the case.” This charge is not subject to the
criticism that it expressed an opinion as to the
guilt of the accused, or that it served to place
defendant’s character in issue.

(14] 12. Ground 12 assigns error on the
following instruction: “I charge you, if a
man has sufficient reason to distinguish’ be-
tween right and wrong, in relation to the
particular act about to be committed, he is
criminally responsible.” It was held in Hin-
son v. State, 152 Ga. 243 (3), 109 S. E. 661:
“The general rule in this state is that, ‘If a
man has reason sufficient to distinguish be-
tween right and wrong in relation to a par-
ticular act about to be committed, he is crim-
inally responsible,’ ” citing a number of cases,
beginning with Roberts v. State, 3 Ga. 310 (3).

The accused killed the mother of the woman
with whom he had been living, cutting her
with a razor. There were a number of eye-
witnesses to the killing. The defendant did
not deny the homicide, but set up the defense
of insanity at the time of its commission. On
this question the evidence was conflicting;
but the verdict of guilty was amply support-
ed by evidence, and the judge did not err in
refusiag a new trial.

Judgment affirmed.

All the Justices concur.

GENERAL MOTORS ACCEPTANCE
173 S.E.

GENERAL MOTORS ACCEPTANCE COR-
PORATION v. COGGINS.

No. 9525.

Supreme Court of Georgia.
March 8, 1934.

Sales €>479(10).

Trover by conditional seller constitutes
rescission, although contract authorizes sell-
er to retake without demand and resell and
credit proceeds on buyer's indebtedness.

Syllabus by the Court.

The rule that the bringing of a suit in

trover by a vendor of personal property who
has reserved title thereto in himself until
payment of the purchase price, and his recov-
ery of the property thereunder, amount to.a
rescission of the contract of purchase is ap-
plicable where the contract retaining title
contains a further provision that if the yen-
‘dor deems the property in danger of misuse
or confiscation, he may retake the property
without demand, and resell it at public or
private sale, and credit the proceeds of the
sale on the amount due by the purchaser, even
before the maturity of any portion of the
purchase price. This is especially true if the
vendor institutes an action in trover and
thereby obtains possession of the property.

Question Certified by Court of Appeals.

Proceeding between the Géneral Motors Ac
ceptance Corporation and L. A. Coggins. To
review the judgment, the first-named party
brings error to the Court of Appeals, which
certifies a question.

Question answered.

See, also, 47 Ga. App. 314, 170 S. E. 308.

The Court of Appeals (in case No. 22518)
requested instruction upon the following ques-
tion:

“Is the rule that the bringing of a suit in
trover by a vendor of personal property who
has reserved title thereto in himself until pay-
ment of the purchase-price, and his recovery
of the property thereunder, amount to a re-
scission of the contract of purchase, applica-
ble where the contract retaining title contains
a further provision that if the vendor deems
the property in danger of misuse or confisca-
tion, he may retake the property without de-
mand and sell it at public or private sale and
credit the proceeds of the sale on the amount
due by the purchaser, and where, before the
maturity of any portion of the purchase-price,
the vendor deems the property in danger of

CORPORATION y, COGGINS Ga. 4]

misuse or confiscation, and institutes an ae-
tion iu trover and thereby obtains possession
of the property, and thereafter sells the same
at a private sale, giving the purchaser credit
for the proceeds of the sale on the purchase-
money due by him? See Board of Education
v. Day, 128 Ga. 156 (6), 164, 57 S. E. 359; Glis-
Son v. Heggie, 105 Ga. 30, 31 S. E. 118; Moul-
trie Repair Co. y. Hill, 120 Ga. 730, 48 S. Ey
143; Enterprise Distributing Corp. v. Zalkin,
154 Ga. 97, 113 S. E. 409; Wynn & Robinson
vy. Tyner, 139 Ga. 765, 78 S. E. 185; Sewell v.
C. I. T. Corp., 438 Ga. App. 676, 160 S. FE. 99,
and authorities cited therein,”

Harry S. McCowen, of Atlanta, for plain-
tiff in error.

Eldon Haldane, of Atlanta, for defendant in
error.

PER CURIAM.

It is clear from the question asked by the
Court of Appeals that the vendor of certain
personal property brought a suit in trover
and recovered the property by means of a
judgment in trover. It is manifest from the
question that the vendor had “reserved title
thereto in himself unti] payment of the pur-
chase-price,” and the question shows that the
contract retaining title contains a further and
additional provision that the vendor “may re-
take the property without demand and resell
it at public or private sale and credit the pro-
ceeds of the sale on the amount due by the
purchaser,” even before the maturity of any
portion of the purchase price, if the vendor
“deems the property in danger of misuse or
confiscation.” The Court of Appeals finally
inquires whether in these circumstances, if
the vendor institutes an action in trover, and
thereby obtains possession of the property,
and thereafter sells the same at private sale,
giving the purchaser credit for the proceeds
of the sale on the purchase money due by him,
the usual rule as to rescission applicable to
proceedings in trover is applicable,. This we
construe to mean that the-Court of Appeals
wishes to know whether the purchaser of the
personal property would be entitled to have
restored to him the amount ‘paid by him upon
the purchase, less the hire and any d:unage or
depreciation in the value of the personalty,
We are of the opinion the question of the
Court of Appeals should be answered in the
affirmative. In one portion of the contract
referred to by the question the vendor retains
title in himself, and under all of the authori-
ties would be entitled to proceed by trover to
recover possession of the property in case of

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

173 S.E.—5344


Delayed Lonchar execution reset
for today if second stay 1s lifted

By Rhonda Cook
STAFF WRITER

The execution of Larry Grant
Lonchar has been rescheduled —

for 5 p.m. today, should the
courts lift a temporary stay
granted little more than two
hours before he was to have been
electrocuted Wednesday. i

U.S. District Court Judge Jack

T. Camp granted a temporary stay |
Wednesday afternoon after attor-—

neys filed Lonchar’s first federal
appeal since he was condemned in

1986 in DeKalb County for a triple.

murder over a gambling debt. In

the years since, Lonchar insisted

that he did not want to challenge
his death sentence.

Lonchar was to have been
electrocuted last Friday, but a
temporary stay was issued when
he agreed to fight his execution

nn _— a

because he hoped to buy enough
time to get state law changed so
that he could donate his organs.

That stay was lifted Monday,
and Lonchar’s execution was re-
scheduled for Wednesday after-

‘noon. Camp stayed the second
execution date to give himself

time to consider the primary is-
sue raised in Lonchar’s appeal —

‘that he be allowed to donate his

organs. Camp promised a quick

decision.
Georgia law mandates that

capital punishment be carried

out by electrocution, which

would render Lonchar’s organs
useless for transplant.
Regardless of how Camp
rules, the issue will be appealed
to the U.S. Supreme Court. Lon-
char’s current death warrant al-
lows his execution to be carried
out no later than noon Friday. .


~

Lonchar now
willing to wait
for last breath

By Rhonda Cook
STAFF WRITER

Jackson — On Friday, the
day he. was supposed to die,
| Larry Grant Lonchar greeted
m\ his first visitor with a smile.

Usually quiet and nervous,
the condemned killer was talk-
ative and relaxed. He joked
about his weight. Friday, he
said, was the day he would get
his death wish.

“A normal person would be
scared, but I’m not,” he said,

during an interview in a visita-
CC tion room at the prison. “This
[execution] is what I’ve been
be looking forward to.”
S10 But just hours later, he
al looked miserable and nervous.
lea And he had changed his mind.
chil After telling a reporter, “I
belong in hell, if there is one,”
attle about 9:30 a.m., Lonchar was
bein telling a Superior Court judge
has; | shortly after 1 p.m. that he
E agreed to file an appeal that
sary could delay his execution for
St years.
ers hi Lonchar told Flint Judicial
agem, Circuit Superior Court Judge

Byron Smith and then reporters
on leaving the Butts County
courthouse that he wanted the
stay to last only seven to nine
months to give the Georgia
General Assembly time to
change state law mandating the
state’s method of execution, by
electrocution.

“~

Associated Press

Convicted killer Larry
Lonchar stopped his execu
fion at a hearing Friday.

days earlier. He had spent
Thursday night and Friday
morning writing goodbye let-
ters to friends and relatives.

Earlier, Lonchar made ar-
rangements to have his body
cremated so that his ashes
could be put in his parents’ Cas-
kets when they died. “That way,
[ll always be with them,” Lon-
char said.

About midmorning, Lon-
char met with John Matteson,
the only lawyer he had agreed
earlier to see on Friday.

Lonchar said he believed
the court documents he signed
then would be a symbolic ges-
ture that could eventually make
it possible for other death row

inmates to donate their organs.

SL A aera it waild nat

yen

oe


By Kath
STAFF WRIT

State _
Kennesaw
about 350 |
Capitol lo]
for his prc
business ‘th

EN jo
OTTIM s

Ue

The gift of life

Lonchar says he wants to
donate his organs for transplant
after his death and that he be-
lieves an execution by lethal in-
jection would make it possible
to at least donate his liver and
kidneys... =

Prison officials said, howev-
er, that their medical experts
believe the potassium used in
that method of exectuion would
render an inmate’s organs use-
less for transplant. Also, the
American Medical Association
does not endorse the idea of a
physician removing organs
from a prisoner who did. not
sign a donor card before con-
viction or of harvesting organs
while the body is still in the
death chamber.

In a hand-written note deliv-
ered to The Atlanta Journal-
Constitution during a break in
the hearing, Lonchar apolo-
gized for changing his mind.

“To my victims’ families,
I’m deeply sorry for again put-
ting you all through this extra
suffering,” he wrote. “And also

to the public who want me to be .

executed, remember. this is
only a temporary stay. I will be
executed within a year.

“T have to at least try to have
had my life worth something. It
will if the law is changed so I

and other death row inmates’

can have that option to be able
to donate our organs so other
people can live.”

Lonchar had said he would
not meet with. or accept tele-

phone calls from the lawyers.

who in 1993 “pressured” him
into agreeing to an appeal in or-
der to stop his execution. That
appeal was never filed.

Lonchar later wrote attor-
neys for the state and the courts
that he wanted to be executed
for the 1986 murders of Wayne
Smith, 54; Steven Smith, 24; and
the older man’s girlfriend, Mar-
garet Sweat.

Final arrangements

By 8 a.m. Friday, he had al-
ready given his belongings to
some of his cellmates on death
row. .

Lonchar visited with his

' family for the last time a few

MAC Saiu me vuesevou ace vy vee ~~~
delay his execution, scheduled
for 3 p.m.

But when he saw page 12 of
the civil rights complaint, he
angrily circled and crossed
with ink the passage that re-
quested a stay of execution.
Lonchar said the last line on
that page was not there when he
initialed it.

But a paralegal with the
anti-death penalty group, the
Georgia Resource Center, who
was among five visitors with
him, repeatedly reassured him
that the passage would not pose
an impediment to his execution.

Then she and another visi-
tor, who said he was affiliated
with Amnesty International
Inc., began urging Lonchar to
delay the execution so Georgia
law could be changed to allow
him to donate his organs and
“save some lives.”

Lonchar agreed but stated

‘reservations. “I don’t want to

[wait] seven or eight months,”
Lonchar said, “and have the
courts say, ‘We’re not going to
accept this [decision] dropping
the appeals.’ That’s what I’m
afraid of.”

Making a deal

Meanwhile, a third visitor
was talking to him about Jesus
dying among criminals, even
though Lonchar insisted that he
did not believe in God.

Lonchar, now appearing
anxious and withdrawn, agreec
to sign a ‘“‘contract” with the

_ Georgia Resource Center stat-

ing that the group’s lawyers

. would not try to stop him a thirc

time from being executed if hr
agreed not to push for execu
tion until after the 1996 Legisl<
ture has ended.

In court two hours late
Lonchar, a lawyer at each sk
told the judge that he }t
agreed to the appeal.’ Smith
peatedly told Lonchar to loo’
him during the proceedings

Leaving the courtho:
however, Lonchar told rer
ers he had again been p

sured by his attorneys to

the execution.

He promised that
spring he again would a:
die.

Court Mulls Inmate Appeals
AP 4 Dec 95 11:51 EST V0586
Copyright 1995 The Associated Prdss. All rights reserved.

The information contained in this news report may not be published,
broadcast or otherwise distributed without the prior written authority
of the Associated Press.

Court Mulls Inmate Appeals

limits on state prisoners’ right to chailenge their convictions in
federal court.

The lawyer for convicted triple-killer Larry Grant Lonchar said he
should be allowed to pursue his appeal, even though Lonchar filed it as
his execution was being prepared and had resisted relatives’ earlier
appeals on his behalf.

Georgia prosecutor Mary Beth Westmoreland insisted such an appeal
can be dismissed even though it was Lonchar’s first trip to federal
court.

"He’s had his chance“ to pursue his appeal earlier, Westmoreland
said.

The Constitution gives state inmates the right to seek federal court
help if they claim their state prosecutions in some way violated their
federally protected rights. However, the court ruled in 1991 that
repeated federal appeals generally must be dismissed as an abuse of the
system.

Lonchar’s case asks whether an inmate’s first federal appeal can be
dismissed as abusive. The Supreme Court delayed Lonchar’s execution
until it issues a decision, expected by July. |

Lonchar’s lawyer, Donald B. Verrilli Jr., said the earlier appeals
filed by the inmate’s relatives should not be held against him, nor
Should Lonchar’s motive in going to federal court for the first time
last June.

Lonchar said he wanted to delay the execution in hopes that a new
law would be enacted allowing him to be executed by injection instead
of electrocution so his organs could be donated.

"What if the motive really is to make a laughingstock out of the
federal courts?" asked Chief Justice William H. Rehnquist.

Justice Antonin Scalia asked Verrilli whether an inmate’s appeal
should be heard even if he waits to file "until the last minute,
minute before his execution?"

yes, said Verrilli, who noted that tederal law sets no time limit on
filing federal appeals af state court convictions.

Westmoreland asserted Lonchar’s appeal was not a true first federal
appeal because of the previous efforts by his relatives and because of
his motive in seeking a delay in execution.

But Justice Stephen G. Breyer said she in effect was asking the
justices to create a new ground for dismissal.

"Why isn’t that a matter that we would leave to Congress and the
rules committees?" he asked.

Lonchar was convicted in 1986 of killing three people over a $10,000
gambling debt.

He told police to "shoot me" when he was arrested and refused to
help his lawyer defend him. After he was sentenced to death, Lonchar
refused to cooperate with federal appeals filed by relatives on his

‘B44

Ga, 40 SOUTH EASTERN REPORTER, 2d SERIES

142 before homicide was committed, was not
there on day of homicide, and that at the
time of the escape, three shotguns and a

Willingham v. Watson, 165 Ga. 870,
S.E. 458,

[5] The allegations—showing these com-
plicated questions and causing it to appear
that a proper distribution of the proceeds
of the sale of three apartment houses not
divisible in kind will require an adjudica-
tion as to the precise interests of the vari-
ous interested parties, and showing the dif-
ficulty of executing a deed of sale by the
owners—makes a case justifying the ap-
pointment of a receiver and the sale of the
property by such receiver under the order
of the court, as well as a distribution of the
proceeds under the order of the court.
Code, §§ 85-1501, 85-1502, 85-1504. The pe-
tition alleged a cause of action and was not
subject to the grounds of the demurrer, and
the court did not err in overruling the same.

Judgment affirmed.
All the Justices concur.

© §& Key NUMBER SYSTEM,

same

LOUGHRIDGE v. STATE.
No. 15584.

Supreme Court of Georgia.
Nov. 13, 1946.

1. Homicide €253(1)
Evidence authorized conviction of first

degree murder.

2. Criminal law €=448(7)
Testimony of soldier, who was travel-

pistol were carried away, over objection
that such testimony placed the character
of defendant in evidence.

4. Criminal law €=371(12), 372(4)

As illustrating a motive, scheme or
plan for homicide, state could show that
three or four days prior to homicide de-
fendant had escaped from penitentiary
along with others and that guns and a pis-
tol had been taken therefrom and that pis-
tol was used to slay victim as part of plan
or scheme to further facilitate escape by
procuring automobile in which victim was
riding. Code, § 38-202.

5. Criminal: law €=400(3)

Testimony of prison employee that
shortly prior to homicide defendant had,
with others, escaped from prison was not
subject to objection that records of prison
would be the best evidence of whether or
not accused was in prison on day of homi-
cide.

6. Criminal law €=400(1)

Where essential fact to be proved is
neither existence nor contents of a writing,
but existence of independent fact itself,
as to which writing is merely collateral or
incidental, it is not contrary to best evi-
dence rule that oral testimony of fact in
issue may be primary evidence of the fact,
although there is also written evidence of
the same fact.

7. Criminal law €=564(1)

In prosecution for murder of a passen-
ger in an automobile by an escaped con-

ing with deceased, that decent s — vict who desired automobile to facilitate
bag was similar to that of witness and teat, escape, testimony of driver that he sopnied
although he had not looked into deceased’s off pavement on highway inna Laas
handbag, he could tell there was some- Ji 44 Wadley and was parked aie
thing in it and that one could put four or 141 fatal shot was fired together with
five uniforms in that kind ar a handles, testimony of another witness that all points
was admissible over objection that testt- on highway between Wadley sie ale
mony was a conclusion of the witness. Vitte were in Jefferson county was sufficient
Code, § S178 evidence to establish venue in such county.

3. Criminal law €=376

In prosecution for murder, an em-
ployee of prison was competent to testify, 1.
that defendant had escaped from prison dict.

Syllabus by the Court.

The evidence authorized the ver-

hn ome spats ee

LOUGHRIDGE v. STATE | Ga. 545
Cite as 40 S.E.2d 544

2. Where a witness testified that a
handbag in question was similar to one
owned by him, his further testimony that,
though he had not looked in the bag, he
could tell from-its appearance that it con-
tained something, and that it would hold
four or five uniforms, such evidence was
not subject to the objection that it was a
conclusion.

3. Where a homicide was shown to
have been committed with a pistol, and
the accused was identified as the assassin,
evidence of an employee of a prison that
four days before the homicide the accused,
together with others, escaped from prison,
took certain guns and a pistol away, and
was not in prison on the date of the homi-
cide, was not subject to the objection that
it placed the character of the accused in
evidence.

(a) Nor was it subject to the objec-
tion that the records of the prison would be
the highest and best evidence of whether
or not the accused was in prison on the day
of the homicide.

4. Evidence of a prison guard that
the accused was not in prison during a
specified period of time was not subject to
the objection that the prison records would
be the highest and best evidence.

5. Evidence that a homicide occurred
in an automobile off the pavement on a
highway between designated towns, coupled
with testimony that all points on the high-
way between the designated points are in
the county in which the accused was tried,
is sufficient to establish the venue.

——_>—_——_

Error from Superior Court, Jefferson
County; R. H. Humphrey, Judge.

Terrell Loughridge was convicted of
murder, and he brings error.

Affirmed.

Terrell Loughridge was convicted of the
murder of Calvin C. Rowland and_ sen-
tenced to electrocution.

The facts disclose that the deceased, to-
gether with Hyle H. Humphries, both of
whom were in the armed service, were re-
turning from Tennessee to the convales-
cent hospital at Daytona Beach, Florida.

40 S..2d—35

They were traveling in an automobile.
About 1:30 a. m. Humphries, who was
driving the car, became too slecpy to drive
safely, and stopped about 8 miles south of
Louisville, Jefferson County, Georgia, be-
tween Louisville and Wadley on Federal
Highway No. 1 at the junction of a small
side road, and “stopped [the] * * * au-
tomobile off of the pavement on the high-
way.” They locked the doors of the car,
rolled up the glass, and sought to rest or
sleep for a few minutes. Less than five
minutes thereafter two men approached
the car from the front, walked by the left
side of the car to the back of the car, and
around to the right side of the car. Hum-
phries started the motor of his car, and one
of the men jumped on the running board
and hit the glass with something, then
fired two shots into the car with a pistol,
one of the shots striking Rowland, from
which he died about thirty minutes later.
The two men then got into the car with
Humphries and Rowland. After requir-
ing Humphries to drive away, one of the
men then got into the driver’s seat and
drove into Louisville. Here they stopped
in front of a filling station, put Rowland
and Humphries out of the car, robbed
Humphries of $24 in money, and drove off
in the automobile at about 2 a. m. An
alarm was given and the automobile was
found about an hour later with the left
front tire torn completely up.

This crime occurred on Monday, Au-
gust 20, 1945, at about 1:30 a.m. The ac-
cused was a prisoner at Tattnall Prison
and along with others escaped on August
16, 1945, and was captured and returned
from the State of Texas in April, 1946.

Humphries identified the accused as be-
ing the person who shot Rowland, who
compelled him to return in the car to
Louisville, and who robbed him of $24.
Two other witnesses identified the accused
as being one of two men seen near Wrens,
which is near Louisville, on Monday
night.

There was other evidence in the nature
of incriminatory admissions made after his
arrest.

The accused placed on the stand a wit-
ness, who testified that she saw him in

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Chattanooga on August 19 at between 6
and 7 p. m.; and in his statement he de-
nied committing the crime, relating why
he was serving a Jife sentence for mur-
der, many of his experiences in prison,
And the manner of his escape along with
several other prisoners.

James R. Venable, Frank A. Bowers and
Jackson L, Barwick, all of Atlanta, for
plaintiff in error.

W. H. Lanier, Sol. Gen., Eugene Cook,
Atty. Gen., and Margaret Hartson, of At-
lanta, for defendant in error,

ATKINSON, Justice (after stating the
foregoing facts).

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

[2] 2. There was evidence that, when
the accused and his companion drove off
in the car, they carried the handbags of
both the deceased and Humphries, and that
when the car was found about an hour la-
ter the handbag of the deceased was gone.
Humphries testified that both handbags
were similar, and that, though he had not
looked in the handbag of the deceased, he
could tell there was something in it, and
that you could put four or five uniforms
in that kind of a handbag. An objection
to this evidence upon the ground of its be-
ing a conclusion of the witness was with-
out merit. Code, § 38-1708.

e

3. An employee at Tattnall Prison was
permitted to testify that the accused had
escaped from the prison on August 16, and
was not there on August 20, the date of the
homicide, and that at the time of the es-
cape three shotguns and a pistol were car-
ried away.

[3,4] Such evidence was not subject
to the objection that it placed the charac-
ter of the accused in evidence. As illus-
trating a motive, scheme, or plan for this
homicide, it was permissible for the State
to show that three or four days prior
thereto the accused had escaped from the
penitentiary along with others, and that
guns and a pistol had been taken therefrom,
The accused having left the prison, and a

40 SOUTH EASTERN REPORTER, 2d SERIES

pistol having been taken therefrom at that
time, this was relevant evidence to fur-
nish a motive for the homicide, as illus-
trating a plan or scheme to further facil-
itate the escape by procuring an automo-
bile in this manner. To admit evidence of
such conduct, is not in violation of the
Code, § 38-202. Bradberry v. State, 170
Ga. 859(2), 154 S.E. 344, and citations.

[5,6] (a) Nor was it subject to the
objection that the records of the prison
would be the highest and best evidence of
whether or not the accused was in prison
on the day of the homicide. “It is not con-
trary to the best evidence rule that oral
testimony of a fact in issue may be pri-
mary evidence of the fact, although there
is also written evidence of the same fact,
where the essential fact to be proved is
neither the existence nor the contents of
the writing, but the existence of the inde-
pendent fact itself, as to which the writ-
ing is merely collateral or incidental.”
Hicks v. Hicks, 196 Ga. 541, 544(3), 27 S.
E.2d 7, 9.

4. Nor was the evidence of a prison
guard, that the accused was not in prison
on August 29, when the witness began
work there, and that the first time the
witness saw the accused was when he was
brought in from his escape, subject to the
objection that the prison records would be
the highest and best evidence. Hicks v.
Hicks, supra.

[7] 5. It was insisted that the venue
of this crime was not proven. Humphries
testified: “I stopped my automobile off of
the pavement on the highway we were
traveling [between Louisville and Wad-
ley], and on the right-hand side of the
paved highway.” James Hubbard _testi-
fied: “All points on the highway between
Wadley and Louisville are in Jefferson
County.” This was sufficient evidence to
establish the venue. Dickerson y. State,
186 Ga. 557(2), 199 S.E. 142; Martin v.
State, 193 Ga. 824(4), 20 S.E.2d 266, and
citations.

Judgment affirmed.

All the Justices concur,

FEHN vy. SHAW Ga. 547

Cite as 40 S.E.2d 547

FEHN et al. v. SHAW et al.
No. (5592.

Supreme Court of Georgia.
Nov. 13, 1946.

1, Appeal and error ©=917(1)

On writ of error to review judgment
dismissing petition on demurrer the con-
tradictory allegations of the petition must
be construed most strongly against the
pleader.

2. Appeal and error ©=917(1)

On writ of error to review judgment
dismissing petition on demurrer, where pe-
tition in one place alleged that a party was
a citizen and resident of Georgia, and in
another place that the same party was a
citizen of the German Reich and still a Ger-
man citizen and an alien enemy, the petition
would be construed to allege that such par-
ty was at the time of the filing of petition
a citizen and resident of the State and of
the United States.

3. Evidence €=23(1)
War 6

The courts are bound by a declaration
or determination by the proper department
of government that a war exists, and until
there has been such a declaration or deter-
mination, the courts cannot take judicial
notice of the existence of a war by their
government. :

4. War G12

Where resolution of Congress declar-
ing war on Germany was signed by the
President on December 11, 1941, a German
citizen who was a beneficiary of a will
could not be treated as an alien enemy pri-
or to such date.

5. War G>12

The general rule is that an alien enemy
May take land by devise and hold it sub-
Ject to the will of the government in which
the land is situated. Code, § 79-303.

6. Wills C>10

Where will bequeathed and devised all
of testator’s real and personal property toa
named person who was a citizen and resi-
dent of the United States, administrator

with the will annexed was entitled to turn
over such property to devisee, even if be-
tween the making of the will and testator’s
death, there was a time when devisee was
incapable of taking. Code, § 79-303.

Syllabus by the Court.

The trial court did not err in sustaining
the general demurrer to the petition.

——$@————

Error from Superior ‘Court, Walker
County; C. H. Porter, Judge.

Proceeding by Joseph and Michael Fehn
against George Paul Shaw as administrator
with the will annexed of Martin Fehn,
and Magdalena Fehn for the construction
of the decedent’s will and for general re-
lief. There was a judgment for defendants,
and the petitioners bring error.

Judgment affirmed.

_ Joseph and Michael Fehn filed their pe-
tition against George Paul Shaw, as ad-
ministrator with the will annexed of Martin
Fehn, and Magdalena Fehn, alleging: that
the plaintiffs are the only children and heirs
at law of Martin Fehn, who died testate in
Walker County, Georgia, on May 1, 1941;
that the defendant, Magdalena Fehn, is a
legatee and devisee under the will of Martin
Fehn, and “is a citizen and resident of
Walker County, Georgia;” that the will of
Martin Fehn (which was attached to the
petition as an exhibit) provides in part as
follows: “I will, bequeath and devise all
my real property of every kind and wher-
ever situated, to my wife, Magdalena Fehn,
to be hers absolutely and in fee simple,”
with a somewhat similar bequest of person-
al property; that the defendant, Magdalena
Fehn, “was at the time of the death of
Martin Fehn * * * a citizen of the
German Reich and still is a German citizen
and is an alien enemy,” and under the laws
of Georgia is incapable of taking property;
that so much of the will as devises proper-
ty to Magdalena Fehn is null and void;
that the administrator is proposing to as-
sent to these bequests and devises, and
threatening to deliver to Magdalena Fehn
all real and personal property bequeathed
and devised to her. The prayers of the

7 RES Rah


472 N.C.

communication’ with the deceased about
which the other party to it cannot testify,
is to inquire whether, in case the witness
testify falsely, the deceased, if living, could
contradict it of his own knowledge.” Ap-
plyin¢ the foregoing principles to the evi-
dence under consideration, we think the
defendant’s exception to the admission of
the evidence was well taken and must. be
sustained. :

[12] The remaining evidence offered by
the plaintiff to show that she had not re-
ceived any of the funds involved in this ac-
tion from her husband prior ‘to his death,
was the testimony of J. S.. Brown, her
brother-in-law. Mr. Brown testified that
at no time during the life of the defendant’s
intestate had he represented him in any of
his business affairs. Nevertheless, in an ef-
fort to prove that plaintiff is now entitled
to the funds in controversy, this witness
was permitted to testify, over the objec-
tion of the defendant, that D, G. Wilson
had never told him he had paid his wife
any of the proceeds received from the sale
of the lots referred to herein. How could
this be competent? The witness, according
to his own testimony, knew nothing about

42 SOUTH EASTERN REPORTER, 2d SERIES

the business transactions of D, G, Wilson
prior to his death. And the mere fact that
D. G. Wilson had never told the witness
that he had made a financial settlement with
his wife, would not be competent evidence
to prove that such a settlement had not
been made. It possibly never occurred to
Mr. Wilson that it was necessary or proper
for him to discuss his private business af-
fairs with his wife’s brother-in-law. The
exception to the admission of this evidence
is sustained.

[13,14]. The burden of proof was on
the plaintiff to make out her claim against
the estate of the defendant’s intestate.
This she has not done on this record. The
motion for judgment as of nonsuit should
have been allowed.

[15] In view of the conclusion reached
it becomes unnecessary to discuss the plain-
tiff's appeal. However, since the plaintiff
as an appellant did not file a brief, as re-
quired by Rule 28 of the Rules of Practice
in the Supreme Court, 221 N.C. 563, the
plaintiffs appeal will be dismissed.

Defendant’s appeal—reversed,
Plaintiff's appeal—dismissed.

RRO AMET sce

LOUGHRIDGE v. STATE Ga. 473
Cite as 42 $.15.2d 473

LOUGHRIDGE v. STATE.
No. 15740.

Supreme Court of Georgia,
April 16, 1947.

{. Criminal law €=938(1), 1156(3)

Motions for new trial based on newly
discovered evidence are addressed largely
to the discretion of the trial judge and his
order refusing a new trial on such grounds
will not be reversed unless it appears that
trial judge has abused his discretion.

2. Criminal law €=945(1)

Where defendant’s extraordinary mo-
tion for new trial for newly discovered
evidence was based on affidavit by prisoner
of long criminal record stating that pris-
oner committed the murder but affidavit
failed to disclose essential facts how mur-
der was committed, refusal to grant the
motion on ground that testimony would not
produce a different result was not an abuse
of discretion.

3. Criminal law €=945(1)

On motion for new-trial for newly dis-
covered evidence crucial test is whether
new evidence is likely to produce a different
result upon retrial,

Syllabus by the Court.

Motions for new trial based on newly
discovered evidence are addressed largely
to the discretion of the trial judye, and his
order refusing a new trial on such grounds
will not be reversed unless it is made to
appear that the trial judge has abused his
discretion. No such abuse of discretion
appears in this case.

———

Error from Superior Court, Jefferson
County; R. H. Humphrey, Judge.

Terrell Loughridge was convicted of
murder, and to review a judgment denying
defendant's extraordinary motion for new
trial on ground of newly discovered evi-
dence, defendant brings error.

Affirmed.

Terrell Loughridge was convicted of
murder, The judgment denying his mo-
ton for new trial was affirmed. Lough-

42 S.1.2d—30%

ridge v. State, 201 Ga. —, 40 S.E.2d 544.
His extraordinary motion for new trial,
based on newly discovered evidence, was
denied, and the exception here is to that
judgment. This motion was supported by
the affidavits of the defendant and his
counsel to the effect that they could not,
by the exercise of ordinary care and dili-
gence, have known of the facts set forth
in the affidavit of Fred Jordan, on whose
affidavit the extraordinary motion was
based.

From the record it appears that Fred
Jordan, sentenced on April 2, 1946, in
Parker County, Texas, to serve 40 years
for robbery, and on April 27, 1946, in Hunt
County, Texas, to serve 40 years for rob-
bery. by assault, made an affidavit on Octo-
ber 8, 1946, while an inmate of the State
Prison Farm in Walker County, Texas, to
the effect that he (Jordan) and an unnamed
companion, in the month of August, 1945,
approached an automobile parked on. the
highway near Louisville, Georgia, “that af-
fiant did shoot into said car, but affiant did
not aim the gun at any particular person or
object, but fired the same in the front of
said automobile, and affiant did not know
that anyone was hit in said car until some
few minutes later after which afhant and
his companion got in the said automobile
and with the said two parties who were al-
ready in said car, drove the same in the
direction of a town which he learned later
to be Louisville, Georgia, where affiant ane
his companion allowed the parties to be
released.” His affidavit further stated:
“that he is making this affidavit frecly and
voluntarily in order that an innocent man
might not suffer from a crime which de-
ponent is guilty of, and that deponent is
willing to plead guilty to said charge if
given an opportunity to do so.” Affidavits
of Eugene Kilgore and Horace Posey,
prisoners in the Texas State Prison, as to
the character, residence, associates, ‘and
credibility of Fred Jordan, are attached as
exhibits,

The State in a counter-showing offered
in evidence records from the Federal Bu-
reau of Investigation showing that Frec
Jordan under various aliases had been con-
victed of seven or more cases of burglary
and various other crimes. Jordan's affida-

i
}
;

eR NR ERLE ROG RE ED 5 ale nN

Mate ATR

474 Ga.

vit stated that he had been convicted in
Georgia under the assumed name of “Joe
Murphy” and that he. was an escaped con-
vict from Georgia. Pictures of Fred Jor-
dan attached to the State’s exhibit, show
him to be a man of middle age, or past,
with heavy lines in his face. Pictures of
Loughridge show him to be many years
younger than Jordan.

James R. Venable, Frank A. Bowers and
Frank T. Grizzard, all of Atlanta, for
plaintiff in error.

W. H. Lanier, Sol. Gen., of Metter, Eu-
gene Cook, Atty. Gen., and Margaret Hart-
son, of Atlanta, for defendant in error.

HEAD, Justice (after stating the fore-
going facts). °

[1] Motions for new trial based on
newly discovered evidence are addressed
largely to the discretion of the trial judge,
and his order refusing a new trial on such
grounds will not be reversed unless it is
made to appear that the trial judge has
abused his discretion. Hall v. State, 141
Ga. 7(3), 80 S.E. 307; Frank v. State, 142
Ga: 61/7,-83 SE. 233:

In this case the deceased was shot and
killed while in an automobile with H. H.
Humphries, who identified Loughridge as
the killer. The. testimony of Humphries
shows that he rode in the car with the
killer after the shooting; that the street
lights in Louisville were on; that the kill-
er finally put the witness and the deceased
out of the car at the Sinclair Station, and
that the lights of the station were on; and
that he had good opportunity to see and
observe the man guilty of the shooting.
Fred Jordan’s affidavit, upon which the
defendant now relies for a new trial, stat-
ed that the killing occurred about midnight
under circumstances similar to those relat-
ed in the testimony of Humphries. The
affidavit did not fix any date other than
August, 1945, and in several instances Jor-
dan declined to state material facts, which
tends to discredit the other statements
therein. For example, he declined to state
the name of the person that he says accom-
panied him on the night of the shooting.
He declined giving other information at
several points in his statement which

42 SOUTII EASTERN REPORTER, 2d SERIES

would have tended to sustain the truthful-
ess of his affidavit.

Counsel for the defendant in their brief
make reference to the evidence of alibi in-
troduced on the trial of the defendant
which trial resulted in the verdict of
guilty, and which the defendant now secks
to have reviewed by extraordinary motion
for new trial. Counsel apparently assume
that the evidence as to the alibi is support-
ed by the affidavit of Jordan. If a new
trial should be granted upon the affidavit of
Jordan, it would have to be under the
theory that Jordan committed the crime for
which Loughridge has been convicted, and
not because Jordan’s affidavit supports the
defendant’s defense of alibi. The case of
Bowman v. State, 95 Ga. 496, 22 S.E, 274,
cited by counsel for the defendant, is not
in point on its facts. From an examination
of the record ‘in the Bowman case it ap-
pears that the newly discovered evidence
was set out in an amended ground of the
motion for new trial, and this court stated
that the evidence to sustain the verdict was
not wholly satisfactory. The present case
is an extraordinary motion for new trial
and this court has previously held that the
evidence on the trial was sufficient to sup-
port the conviction of the defendant.
Loughridge v. State, supra. In the Bow-
man case the deponent in the affidavit had
been convicted of the crime, and he named
the person who was with him at the time
the crime was committed, who was not the
accused. In the present case Jordan has
not been convicted of the crime here in-
volved, and he declined to state the name
of the person he claims was with him at
the time the crime was committed.

[2,3] While the testimony of Jordan,
as set forth in his affidavit, would be admis-
sible on another trial of the defendant, if
granted, it is shown by his affidavit that he
is not within the jurisdiction of the State,
and there is no certainty that he could of-
fer himsclf as a witness, since he is under
the jurisdiction of the penal authorities of
the State of Texas. Even if his testimony
could be made available, his long crim-
inal record, the fact that he has been sen-
teneed to two forty-year prison terms, and
his failure to disclose essential facts in his
affidavit, so discredit his testimony that the

WILLIAMS v. PORTER Ga. 475
Cite as 42 8.1.20 475 . Z

trial judge was amply authorized to con-
clude that his testimony would not produce
a different result if a new trial were grant-
ed. “The ultimate and crucial test of the
potency of newly discovered evidence, to
require the grant of a new trial, is whether
the evidence is likely to produce a differ-
ent result upon a retrial of the case.”
Howell v. State, 178 Ga, 111, 172 S.E. 27,
28. ;

w
© E Ker NUMBER SYSTEM
T

WILLIAMS v. PORTER et al.
No. 15747.

Supreme Court of Georgia.
April 15, 1947. ,

1. Trusts €=79

An implied resulting trust may be es-
tablished by proof of part payment of pur-
chase money by person claiming benefit of
trust, at or before time title is conveyed to
another,

2. Pleading €=7

In suit by church trustees against chafr-
man of board of trustees who obtained legal
title to property to impress an implied re-
sulting trust in favor of the church, an al-
legation that purchase money was paid be-
fore or at time of purchase by the church
was implied from the petition as a whole.

3. Trusts €=365(4)

Where under allegations of petitions by
church trustees they treated implied re-
sulting trust as subsisting and church had
no notice of any adverse claim by chairman
of board of trustees who purchased prop-
etty in his own name until fall of 1944 and
Petition was brought in 1945 petition failed
to show such laches as would bar the action
based upon implied resulting trust.

4. Injunction C144

Where in equitable petition extraor-
inary relicf is sought, amendment offered
Prior to or at interlocutory hearing though
not positively verified is sufficient if sup-
ported by “other satisfactory proofs,”
Code, § 81-110.

5. Pleading €=248(16)

Where petition as originally brought
alleged that “church is the owner” of de-
scribed realty, an amendment alleging in
substance that church was owner of equit-
able interest in property by reason of de-
tailed facts showing title in defendant as
trustee for the church did not set forth a
new and distinct cause of action.

6. Trusts €=371(6'/2)

In suit based upon implied resulting
trust in favor of church in property pur-
chased by defendant, allegations that plain-
tiffs could not state exact time when money
was repaid to defendant because at that
time defendant was acting treasurer of
church and books were in his possession was
not subject to special demurrer for vague-
ness since in alleging that defendant was
acting treasurer petition alleged an ultimate
fact.

7. Trusts €=371(6')

In suit against chairman of board of
trustees of church based upon implied re-
sulting trust in property purchased by the
chairman, allegation that following pur-
chase of property the church without de-
mand reimbursed defendant for his advance
was subject to special demurrer for failure
to allege who made the reimbursement.

Syllabus by the Court.

1. An implied resulting trust may be es-
tablished by proof of part payment of the
purchase-money, by the person claiming the
benefit of the trust, at or before the time
title is conveyed to another. :

2. The allegations of the petition did not
show such laches as would bar the action.

3. Where in an equitable petition ex-
traordinary relief is sought, an amendment
offered prior to or at an interlocutory hear-
ing, though not positively verified, is suffi-
cient if supported by “other satisfactory
proofs.”

4. An amendment, which was a mere
amplification of the original allegations in
the petition, and which detailed with specific
averments the nature of the-plaintiffs’ claim
and title, was not subject to the objection
that it set forth a new and distinct cause of
action,