Georgia, H, 1903-1994

GEORGE HAMP:
SENT TO DEATH

Negro Who Killed Woman
in Morgan Hanged for —
Crime. ial

Madison, « Ga., April 10.—(Special.)—
George Hamp, or Hampton, colored, was.
hung here this morning a ‘kttle after 10
o'clock for murder.

The place of execution was in the old
jail, wnere the scaffold had been erected
by Sheriff Aycock. All the morning the
negro hag» been in communication with
his spiritual advisers in the new fail,
where he had been confined since his ar-
rest. | J

At 10 o'clock Sheriff Aycock, with a
strong guard, brought the murderer from

the jail and escorted him through the
large crowd of negroes assembled to tne

place of execution.

The doomed man showed no sign of fcar
or nervousness, bu’ walked with a firm
and strong step to the place where he was
to die.

When on the scaffold he was asked if he
had anything ta say, and replied in the
negative. _

At 10:16 o'clock the trap was sprung.
his neck was broken and\he was pro-
nounced dead in eleven minutes,
“Through e# of the ordeal the negro ex-
hibited wonderful nerve, and died without
a tremor. Shortly after the execution ,
his body was sent to Athens to his rela- {
tives for burial. i

The crime for which Hlampton forfeited !
his life was committed in the upper part |
|

RZ

of this county several months ago. He |
brutally murdered 4 negro woman, brain-
ing her with an ax. He aiso attempted
to kill the woman's mother at the same.
time. He confessed his crime. put said |
{t was whisky and jealousy that caus- }
ed it. :

He was tried during the March session
of the superior court here, found guilty
and sentenced to be hanged by Judge |
| Gray Lewis. |

HAMP (HAMPTON), George, black, hanged Madison, GA on April 10,

1903

Ca

Cipla Ke

: rin ¢ f . fen 44 904
HANCE, William H., black, elec. GA® (Muskogee) March 34, 1994,

George Execution Stayed to Allow Review

High Court Justice Acts 35 Minutes Before Murderer Was to Die

By PETER APPLEBOME
Special to The New York Times

ATLANTA, March 31 — The 7
o’clock deadline passed this evening

‘without the execution of William Hen-:

ry Hance after United States Su-
preme Court Justice Anthony M. Ken-
nedy ordered a temporary stay to.
allow the Justices to consider last-
minute appeals from the former Ma-
rine whose death sentence has. gener-
“ated accusations of jury misconduct.

The stay was ordered 35 minutes
before Mr. Hance was scheduled to,
die in Georgia’s electric chair. He hadi
been convicted of murdering a prosti-!
tute in 1978. l

The temporary stay, which is not!
unusual, added a final element of’

‘uncertainty to a case that gained no-

toriety because of a statement from
the only black juror on the panel that
she did not vote for and did not sup-
port a death sentence in the case.

Mr. Hance’s case comes a month
after Supreme Court Justice Harry A.
Blackmun issued an emotional dis-
sent saying it was a delusion that
Capital punishment can be consistent
with the Constitution. It has highlight-
ed once again some of the wrenching
issues of justice and race swirling
around the death penalty when more
than 2,800 inmates are awaiting exe-
cution in the United States.

Mr. Hance’s lawyer went to the
Supreme Court today after the-United

States Court of Appeals for the 11th
Circuit, in Atlanta, and the Georgia
Supreme Court refused today to halt

the execution. The Georgia Board of.

Pardons and Paroles denied a clem-
ency petition on Wednesday after the
only black juror, Gayle Daniels, said
that she never voted for the death
penalty, believing that Mr. Hance was
too mentally impaired to be executed,
and that the jury foreman lied in
Saying the verdict was unanimous.
Another member of the jury, Patricia
LeMay, corroborated her story in a
signed affidavit.

“If they execute him now, they will
be punishing me for what | did that
day in 1984, more than punishing him
for what he did,” Ms. Daniels said
after the parole board hearing on
Wednesday.

Death penalty critics have said ev-
erything about Mr. Hance’s trial,
from the decision to seek the death
penalty, to the racial makeup of the
jury, which included one black, to the
racial slurs that Ms. Daniels and Ms.
LeMay say were used during jury
deliberations, reflected racism in Co-
lumbus, a jurisdiction often cited as a
place where blacks are more likely
than whites to be sentenced to death
in capital crimes.

“This was a case infected with rac-
ism from start to finish,”’ said Steve
Bright, a prominent death penalty

_lawyer in Atlanta.

N-Y.TINES oF FRI 4-94

Georgia executes ex-soldier in slaying

DALLAS Mé6RuMg ——>
NEWS

vew:

But state and local officials f iercely
defended their handling of the case.
The Georgia Attorney General, Mi-
chael Bowers, called Mr. Hance’s ap-
peals a last-minute Stall, saying that
by law jurors cannot challenge their
Own verdict and that Ms. Daniels was
duly polled about the verdict when it
was handed down and said she con-
curred with it.

“The law in this country has long
been a juror cannot come along after
the rendition of a verdict and chal-
lenge the verdict,” Mr. Bowers said.
“If. it did, every jury verdict in this
country would be subject to challenge
after the fact. There is not the Slight-
est iota of doubt about the guilt of
Hance. What needs to be done is focus
on the woman who was killed, not on
this guy.”

Mr. Hance, who like his victim is
black, was convicted of the 1978 mur-
der of Gail Faison. He was also con-
victed in military court, but never
tried in a civilian court, for the mur-
der of another prostitute, Irene Thir-
kield.

There is little doubt that Mr. Hance
committed the crimes. But his de-
fenders say his trials and the history
of justice in Columbus reflect the
inequitable way in which the death
penalty is administered and the de-.
gree to which race is a factor.

“My position,” Mr. Bowers said,
“is the man is guilty of murder — has
been found guilty. The focus should be
on his victims. He has been through
the legal process for a period of 16
years, and he deserves what he gets.”

FRI.

| c/ required.

@ A former soldier was executed in Georgia’s electric
chair Thursday night for bludgeoning a prostitute to
death in 1978, despite a juror's insistence that she
never voted for the death penalty. William Henry
Hance, a 45-year-old former Fort Benning soldier, died
at 10:10 p.m. after the U.S. Supreme Court rejected his
final appeal, which cited the juror’s Statement as proof
the death penalty vote wasn’t unanimous, as legally


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896 142 SOUTH EASTERN REPORTER (Ga.

H. A. Hammond was convicted of murder,
and he brings error. Affirmed.

759 was the number of a dwelling house
fronting on North Ashby street in the city of
Atlanta, near the Exposition Cotton Mills.
The house consisted of four rooms, So ar-
ranged, as to form two apartments of two
rooms each. There was a porch along the
front, and each apartment had a door open-
ing directly on the porch. There was no hall-
way. The apartments were separated only
by a “heaver-board” svall. The apartment on
the right as you face the building was oc-
eupied by D. C. Skelton and his father. The
one on the left was oecupied by Bernie In-
gram with his wife, about 20 years of age,
and their infant; they having occupied the
apartment only a few days. Skelton and In-
gram were both ‘employees of the Exposition
Cotton Mills: the former working in the day

‘and the latter in the night. The morning

change or shifts oceurred about 6 o’clock in
the morning. On Friday morning, February
4, 1927, immediately after the shift, after
Skelton had gone to work and Ingram had
«ceased to work, Ingram returned to his apart-
ment and found the body of his wife in the
hed in his front room, she having been killed
by means of blows with a blunt instrument,
crushing the head and the body of his infant
by her side; the latter having been killed
by strangulation, caused by drawing a cloth
string tight about the neck. An alarm was
given, and the officers immediately began an
investigation. The bodies indicated that the
homicide had occurred about 2% or 3 hours
before. Skelton was at first arrested, but
after investigation was discharged, without
any formal charges being brought against
him. The oflicers suspected Harold Ham-
mond, attempted to find him, but failed to do
so, and did not succeed in arresting him un-
“til about a month later. Hammond was in-
dicted for the murder of Mrs. Lottie Bell In-
gram, and was convicted and sentenced to be
executed. His motion for a new trial was
overruled, and he excepted. One phase of
the evidence showed all that is stated above,
and the following:

About a year prior to the homicide the In-
grams lived on Fielder street, and for a short
time rented a part of the house to Hammond,
who had a wife and child. The relations be-
tween the families were friendly, but not in-
timate. Ingram desired, for the use of cer-
tain relatives. the part of the house occupied
by the Hammonds, and caused them to move.
Subesquently Ingram moved to a house on
Lindsey street, and Hammond to an apart-
ment on Peters street. On the Sunday be-
fore the homicide, Ingram, having heard that
Hammond had been inquiring where Ingram
lived, went with Mullins (brother of Mrs. In-
gram) to the Hammond apartment and saw
Hammond. The purpose was to ascertain the
“ause of the inquiries. At that meeting In-

gram told Hammond that he would be at
home after the ensuing week, and if he came
that way he could come to see him. During
the conversation Hammond said something
about killing some one, but nothing seemed
to be thought of the remark. On the follow-
ing day (Monday) Ingram moved from the
Lindsey street residence to the Ashby street
apartment, where the homicide occurred. In-
gram testified that he moved because his wife
said she was afraid of ITammond. On the
ensuing Thursday afternoon, Ilammond was
seen on Lindsey street in ‘the immediate vi-
cinity of Ingram’s late residence, making in-
quiry for Ingram’s house. Tie was told that
the Ingrams had moved to the Ashby street
apartment. The next account of Hammond
was at the home of a woman on East Fair
street, about 4 miles from the scene of the
homicide. He was there in the late after-
noon, and again later in the night and finally
left there about 2 o'clock. He did not return
to his home until after 5 o’clock Friday morn-
ing. Ile stated that he spent the time after
leaving the woman’s house in a vacant house
in the same vicinity. Street cars were run-
ning all night, by which he could have gone
from the woman’s house to the scene of the
homicide. At about 8 o’clock a man called at
a residence two or three doors from the In-
gram apartment, and asked if it was the
house of Ingram. He was informed that it
was not, and after several more questions and
‘answers he was directed to the Ingram apart-
ment. rving to darkness, the witnesses
could not identify the man by sight; they had
never before heard the voice of the man, but,
after the arrest of Hammond, heard him talk,
and in their opinion the voice of the man was
that of Ilammond.

Skelton testified that late in the night he
was awakened by a man calling in front of
the apartment house. (759 Ashby street). Wit-
ness responded to the call, and the man asked
if Bernie Ingram lived there. At that time
witness did not know who lived in the ad-
joining apartment, and did not give the in-
formation requested. Thereupon Mrs Ingram
responded, from her apartment, that Ingram
“was not at home.’ The man stated to her
that “the law was after him,’ and that he
had seen Ingram, who had told him to tell
her to let him spend the night in the house.
She told him to come in. He opened the In-
gram door and entered the room, repeating
his foregoing statement. They talked about
five minutes in friendly conversation, and
“witness went back to sleep.” He did not see
the man: nor did he hear any further noise
in the Ingram apartment, except that about
5 o'clock in the morning he heard a man walk
out through the back door. After the ar-
rest of Hammond (a month later), witness
was called upon by the detectives to go to
the jail to see if he could identify his voice
as the one he heard that night. The cests

.
Ga.) ; HAMMOND v. STATE S97
(142 S.E.) 5 *
were made by first allowing witness from I ever do anything I aim to kill s I y
outside of a room to hear a conversation be- will go on to hell where I wing? Seige
tween T!ammond and several other persons, *
then by hearing the conversation while see-
ing the several persons. He testified at the That the defendaajt told him that the night be-
trial: fore he went out and received some whisky at
a certain place, and was made drunk. He d,
I may have done something last night.” “That
nervous condition that I noticed was after he
got that paper that morning. His statement to
me about maybe he had done something last
night was after he got the paper. Rexarding
Whether it was before or after I had brought
him a message about the officers being there, I
At one time the witness testified that there Bare teks ha ehh oat apt mamcrre =
was nothing peculiar about the voice, and at ; ee ee
another that “it was finer, a little shriller, Robert Graham, nephew of the defendant
ogee the voices of those conversing with him testified: <7
at the jail. Skelton also testified that his
father was not at home at the time of the i paca big srry pe
homicide. There was evidence that a pallet Wasihadeel decane ‘and told lhe dcmemet tee
had been laid down on the floor of the back he wanted him to do some work bee bie pa
room, and that a flat iron was found on the the defendant said: “I cannot go and do ‘the
floor near the deceased, which had blood and Work.” “I says: ‘Why?’ Hes ‘Hell
hair adhering to it. man! Ain’t you heard the news? I said: ‘No:
G. F. Sheffield testified: what is ae his said: ‘lam accused of killing a
woman and baby re shby street.’
“That the defendant worked for him the day _ said: ‘Surely plea pe ae rgd ine :
after the homicide, that he left home before have got me accused of that ‘ana he Babe Pagar
he had his breakfast, and that the defendant guarding my house now and 1 ean eer , x vg
said to him, “My wife was mad, and wouldn’t He said: ‘Come, sit dctcn I we ct a per
cook for me this morning,” and he wanted a I am tired. I have peen worki we ate
awe | _ get _ ae lunch. “He told me he went and sat down awhile and tallied. “We ph
_know where he was the night before. down and began talking ‘ b whet had
He said: ‘I was out all night, and ‘don’t know him accus - : Fes mr — pee 2
mbere I was at. I cannot prove where I was. this, Bob. . om pi all AE, nic ie rat “i
at. * * He said: ‘Mr. Sheffield, you know ing.’ He said: ‘I was o t all wi a aol coat
I was out all night last night. I don’t know drinking, and was at tat s as ioe
where I was, and don’t know what I done. The on East Fair street ¥ ralsed Cale heute ow;
last thing I remember about the time of night and she ran me off? He sr ae nt deere roa
ee he aoe pr: aires a drug store at well where I was at about 12 or 12:30. but yd
wets sion reheat oe mber going in two or says, ‘after 12:30 I don't know what I done or
anes: dec 00g ai a4 t think we broke in’ where I went.’” Also that defendant endeay-
pues ~ =. “ape ag know. I really ored to get witness to make up a story that
ee at id do, and cannot prove would show that defendant was absent from the
5 scene of the homicide.

Sheffield further testified:

“T could not swear positively that he is the
man, but I could swear to the best of my knowl-
edge that his voice’ sounded mighty like the
voice that I heard talking to me at the front
door that night. My best judgment is that is
the same voice that I heard at my door. I
could not swear it.” :

Sheffield further testified: There was no evidence that any one had in-
“Regarding the statement he made to me formed the defendant that the officers sus-
when I paid him off that day, he said: ‘ pected him as perpetrator of this crime
i a y, he said: ‘I am a : crime. In
mn going home. He told me that in the office. the prisoner's statement before the jury, he
eee Mr. Shefiield, I am not going home purported to account for all his actions on the
a 3 ould you mind stopping and telling Thursday night in question. On the Sunday
a dlegy sate ae ee Iam afraid I following the homicide the defendant ap
> de something. ell her to brin at : : dl
best shirt down to my sister's, not to put it in 6 -sopdi at the home of his stepdaughter at
bundle, Sette pat ii qider ber clothes anA era pe le, sey eral miles from Atlanta, and ex-
it to me on Pryor street.’ I said, ‘What num- changed his shirt. It contained spots . of
ber, Mr. Hammond? He said, ‘She knows w blood, for which he purported to acco i
oa Te si Ss what . ount in
mes ber.’ It was not his sister. It was one of his statement before the jury. He left At-
= regen He said to bring his best shirt, ang Janta, went to other states, returned about a
an pcp - up, but to put it under her clothes. month later, and was captured in the- out-
ok Se he Ww as not going home. Regarding skirts of the city. He claimed that his fligl
; at his reason was for not going home, he said wags because he was : ‘ rege "
te was afraid he had done something and they ‘ mee e Was an escaped convict for
$ Y past misdemeanor offenses, and thought the

woul i P :
phe : pit ee: He never mentioned anything officers wer fter

rd ie had seen in the paper. He had a news- alae - him on that account. He
paper in his pocket. * * * JT heard Mr. Ham- Cl@imed to be an ignorant man, and did not

rey make a remark about killing somebody explain why he was interested in the particu-
Le d 3" np did not say who he was going to lar newspaper which Shetlield saw him have
vee u. a ~ he —_ “4 was going to Or Why he was interested in the murder of
s . e Just remarked that day: ‘If Mrs, Ingram i
ay: Mrs, and her cl r the y
te g child, or that any one


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898 142 SOUTH EASTERN REPORTER (Ga.

had told him, before his conversation with
Graham, that the officers were suspecting
him of the murder. The day after the mur-
der he told a friend that he was suspected
as the murderer, and sought ‘advice as to
whether he should leave.

Carl M. Lancaster, Harry L. MeGriff, and
HH. FE. Roland, all of Atlanta, for plaintiff in
error.

‘John A. Boykin, Sol. Gen., J. W. Le Craw,
and BE, A. Stephens, all of Atlanta, Geo. M.
Napier, Atty. Gen., and T. R. Gress, Asst.
Atty. Gen., for the State.

Syllabus Opinion by the Court.

ATKINSON, J. [1,2] 1. A defendant in a&
criminal case, who has been eonvicted, has
the legal right to demand a poll of the jury.
The demand should be made after the verdict
is read, but before dispersion of the jury.
Malone vy. State, 49 Ga. 210 (11); Tilton v.
State, 52 Ga. 478. It will be too late if not
made until after the sentence of the court has
been pronounced. Robinson y. State, 109 Ga.
506 (S), 34S. E. 1017; Davis v. State, 22 Ga.
App. 802, 97 8. E. 273. .

[3] A ground of the motion for new trial
alleged that the verdict was returned and
published, and that the court immediately
dismissed the jury and passed sentence on
the defendant, without affording him an op-
portunity to poll the jury. The court refused
to approve this ground in its entirety, and
appended a note which stated that, after the
verdict was received and read. the court pro-
ceeded to give certain directions to the of-
ficers of the court, which consumed about five
minutes before dismissal of the jury, during
which time the attorney for the defendant
was present, and made no demand or request
to have the jury polled, and there was noth-
ing to prevent the attorney from making the

* demand if he desired to do so. Held, that

there is no merit in this ground of the motion.

[4] 2. In the course of his argument before
the jury the solicitor general stated:

“Gentlemen of the jury, this defendant, his
mother, wife, and child, out in the anteroom,
were posing for a picture for the newspaper,
and the newspaper men were being lined up for
their pictures.”

The defendant’s attorney made a motion
for a mistrial on the ground that the argu-
ment was not authorized by the evidence, and
was improper and prejudicial. The court re-
marked:

“Well, the court does not see how it could
prejudice the defendant's rights whether he has
his picture made or whether he did not.”

Following this remark, the solicitor general
stated:

“Your honor, if he * * * objects to it, I
withdraw it.”

The defendant’s attorney immediately ob-
jected to this remark. The court overruled
the motion for ‘a mistrial, but instructed the
jury as follows: ’

“Well, the court does not see how it could prej-
udice the defendant’s rights whether he has his
picture made or whether he did not. Gentle-
men of the jury, you would not allow any re-
marks of counsel to influence your verdict one
way or the other, any remark that is not based
upon the evidence in this case, if such have been
made. I do not know what the remarks were.
If counsel in his argument made any reference
to a matter not in evidence, you will disregard
it.”

Held, that there was no error in refusing
to declare a mistrial.

[5] 3. The evidence was sufficient to sup-
port the verdict.

Judgment affirmed.

All the Justices concur, :

WEBB v. STATE. (No. 6344.)
Supreme Court of Georgia. April 13, 1928.
(Syllabus by Editorial Staff.)

1. Criminal law ¢==874—Defendant, convicted
in criminal case, may demand poil of jury aft-
er verdict is read, but before dispersion of
jury.

Defendant in criminal case, who has been
convicted, has legal right to demand poll of
jury after verdict is read, but before dispersion
of jury.

2. Criminal law €==874—Demand for poll of
jury, if not made until after court sentence,
will be too late. -

Demand for poll of jury by defendant, con-
victed in criminal case, if not made until after
sentence of court has been pronounced, will be
too late.

3. Criminal law 6=2954(1)—Ground for new
trial for failure to pofl jury separately, mod-
ified by court to show no request for poll
was made, held not to show error.

Ground of motion for new trial, alleging
that, after demand for poll of jury, court made
poll in illegal manner, by questioning jury as a
whole rather than separately, modified by judge
to show that list of jury was called and verdict
read, that judge did not inquire whether defend-
ant waived poll of jury, and that defendant did
not make request for poll in any form, held not
to show demand for poll of jury at time when
he had right to demand poll, and did not show
error.

4. Criminal law @==933 — Defendant, observ-
ing that jury was not polled after verdict,
must demand poll at such time, and new trial
will nct be granted for failure to poll jury,
not demanded until after sentence.

Jf inquiry by court as to waiver of call of
jury, made prior to reception of verdict, Was
confusing to defendant's counsel, who observed

For other cases see same topic and KEY-NUMBER in all Ke

y-Numbered Digests and Indexes

Ga.) : WEBB v. STATE
: (142 S.E.) -

that there was no attempt to poll jury after
verdict had been read, it was duty of counsel to
have made demand for poll at that time, and,
on failure to make such demand until after
sentence, counsel would not be entitled to new
trial for failure to poll jury.

5. Criminal law €=>531(3)—Refusal to exclude
defendant's statement on being brought to
jail, admitting mistreatment of girl, held not
error, as not freely and voluntarily made.

Where father of injured girl brought de-
fendant in automobile at night to jail, refusal to
exclude defendant's statement at that time, ad-
mitting mistreatment of girl, was not error, as
not. freely and voluntarily made, where chief of
police testified that statement was made freely
and voluntarily, without any hope of reward or
fear of punishment, though father in defend-
ant’s presence referred to him by use of vile
name,

6. Criminal law G=-923(1), 1152(2)—Judge is
trier of juror’s alleged impartiality, on motion
for new trial, and finding of competency will
not be reversed, unless discretion is manifest-
ly abused.

- Where attack is made on juror after ver-
dict in a criminal case, on ground that juror
was not impartial, trial judge is trier, and find-
ing that juror is competent will not be re-
versed, unless discretion of judge was manifest-
ly abused.

7. Criminal! law €==945(1)—New trial held not
required for new evigence which would not
properly produce different result.

Alleged newly discovered evidence, not of
such character as would probably produce a
different result on another trial, does not re-
quire grant of new trial, though proper diligence
has been shown.

Error from Superior Court, Coffee County;
Harry D. Reed, Judge.

O. L. Webb was convicted of an offense, and
he brings error, - Affirmed.

Chastain & Henson and Mingledorft & Gib-
son, all of Douglas, and Arnold & Battle, of
Columbus, for plaintiff in error.

A. B. Spence, Sol. Gen., of Waycross, Geo,
M. Napier, Atty. Gen., T.. R. Gress, Asst.
Atty. Gen., and Quincey & Quincey, of Doug-
las, for the State.

Syllabus Opinion by the Court.

ATKINSON, J. [1,2] 1. “A defendant in
a criminal case, who has been convicted, has
the legal right to demand the poll of the jury.
The demand should be made after the yerdict
is read, but before dispersion of the jury.
Malone v. State, 49 Ga. 210 (11); Tilton y.
State, 52 Ga. 478, It will be too late if not
made until after the sentence of the court
has been pronounced. Robinson y. State, 109
Ga. 506 (8), 34 S. BE. 1017; Davis vy. State,
22 Ga. App. 802, 97 S. E. 273." Hammond
v. State, 166 Ga. —, 142 S. If. 895, this day
decided. ;

[3,4] 2. A ground of a motion for new trial
complained that insmediately upon the read-
ing of the verdict returned against the mo-
vant, and hefore it was ordered to be record-
ed, and before dispersal of the jury, and be-
fore sentence of the court. the defendant de-
manded that the jury be polled, and the
court attempted to poll the jury, but did so
in an illegal manner, by having the clerk call
a list of the jury and asking them all to-
gether if the verdict was their verdict. in-
stead of polling them separately, This
ground was approved, as modified by a note
appended by the judge, wherein it was stated:

“After the jury had come into court, * * *
I asked them whether they had agreed on a
verdict. One or more of them stated that they
had. I then asked, ‘Call of the jury waived?
Mr. Chastain, of counsel for the defendant gait
‘No.’ I said to the clerk, ‘Call a list of the
jury’ ”

The note further stated that the names of
the jurors were called, after whieh. upon di-
rection of the court, the clerk received and
read the verdict. The note further stated:

At no time did I inquire of counsel whether
they waived the pol of the jury, or whether
they desired the jury polled, and at no time did
they make any motion or request to have the
jury polled. The word ‘poll,’ in any form, not
used by counsel or court, and no attempt was
made to poll the jury. My inquiry whether the
call of the jury was waived, counsel's reply of.
No,’ and the clerk's action in calling the list of
the jury, all oceurred before the verdict was
read, * * * and after that no further ref-
erence was made to the matter by any one.”

Ifeld, in the light of the note of the court,
there was no demand for a poll of the jury by
the defendant at a time when he had a right
to demand a poll, within the principles an-
nounced in the first headnote. If the inquiry
by the court as to the waiver of a “eall of
the jury,” made prior to reception of the
verdict, was confusing to defendant’s eoun-
sel, and they saw that there was no attempt
to poll the jury after the verdict had been
read, it was their duty at that time to have
made a demand that the jury be polled. If
they failed to make such demand, and sat
by until after sentence of the court, they
would not subsequently be entitled to a new
trial on account of failure of the court to
poll the jury.

[5] 3. The chief of police testified that the
father of the injured girl brought the defend-
ant in an automobile at night to the entrance
of the jail, and told the witness and another
otlicer that he desired the defendant “locked
up; that he had ruined his daughter.” Then
the defendant said, “I have mistreated your
daughter: I have treated her like a brute, or
varmint.’” The witness further stated that
the statement by the defendant was made
freely and yoluntarily, without any hope of

CF vr other case3 see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


amnesty international

svenska sektionen svenska amnestyfonden
Swedish sections Death

Penalty Group.

115 93 Stockholm, Sweden

April 7, 1994

Dear Governor Miller

We wish to register our deep sorrow on
hearing about the execution of William
Henry Hance, march 31, 1994.

We are very concerned with allegations

about the persistent and pronounced racial
discrimination in the Chattahoochee Judicial
Circuit and the State of Georgia in general.

We urge you, Governor Miller, to hold a
full and complete investigation conducted
by the International Commission of Jurists,
Or another respected and impartial body,

so that be publically established as to
whether these allegations are true or not.

Amnesty International is unconditionally
opposed to the death penalty, believing it
to be a violation of the respect for life
and the right not to be subjected to cruel,
degrading or inhuman punishment, as pro-
claimed in the Universal Declaration of
Human Rights. We further believe that the
death penalty is disproportionately impos-
ed on the basis of race.

Even so, our unconditional opposition to the
death penalty does not stop us from taking

a concerned interest in the application of, .
and the procedures involved in, the death
penalty in those jurisdiction which impose
the death penalty.

We would very much appreciate a reply to
this letter.

Thanking you in anticipation
Yours Sincerely

sa

(over)

Postadress: Box 27827 11593 Stockhoim Besdéksadress: Gyllenstiernsgatan 18

Telefon: 08-670 62 00 Telefax: 08-662 73 22

Postgiro: Svenska sektionen 90 00 72-0 Svenska Amnestyfonden 90 00 70-4

STATE OF GEORGIA
OFFICE OF THE GOVERNOR
ATLANTA 30334-0900

Zell Miller :
GOVERNOR April 13, 1994 ”

Amnesty International

115 93 Stockholm
SWEDEN

Dear Mr.

This will acknowledge your recent letter
execution of William Henry Hance. regarding the

In the State of Georgia, the Governor has no auth
prisoner clemency matters, including cases of those peels Mt pd
who receive the death sentence. Within the Executive Branch of
government, wherein the powers of the Governor lie, only the
State Board of Pardons and Paroles (Board) has the authority to
modify a death sentence in any way. .

Since the creation of the Board more than fif ears
it has been the position of Board members that cha pees sioan
them over death cases by our Constitution was never intended to
be exercised for the purpose of allowing personal opinions about
the death penalty to determine the outcome of death case
reviews. Instead, they view their proper role as a sort of
‘court of last resort" with the ability to respond to very
unusual circumstances that might not have been properly
addressed in a courtroom. While some would prefer that the
Board members use their authority to routinely commute death
sentences, they have steadfastly and traditionally taken the
position that they will not do this.

You state in your letter that you are of the belief that the
death: penalty is unconstitutional and that application of the
death penalty is "disproportionately imposed on the basis of
race" in the State of Georgia. It is my belief that these and
similar issues are much more appropriately addressed in court
during the numerous reviews and appeals that occur in each death
case. Your attention is called to the fact that Mr. Hance's

sentence was upheld by the United States Supreme Court. The
Board certainly was not constituted to handle such legal issues.

Although the Board is not required to hold meetings or
hearings on death cases prior to taking action, I know of no
case when the Board in Georgia has refused to meet with persons
who want to assist a death row inmate. In the case of William
Hance, a meeting was held with attorneys representing him.
However, there was no information presented to the Board members
that caused them to believe the sentence of the court was

inappropriate or unjust.

Since our government is set up in such a way that the
Executive Branch cannot interfere with the Judicial Branch, you
would have to address your concerns to the state and federal

judiciary.
With kindest regards, I remain
Sincerely,

YWV\ ate

ell Miller

ZM: bs


Srna tose

s ~

ee Ae: eg as «

By PE ] 2
“Spe ial tc tothe New York Times. ese
~ ATLANTA, April. — William Hen-

TY. Hance, convicted. of the, 1978-mur-
der of a prostitute in Columbus; Ga.,
was executed in. Georgia’s electric
chair Thursday night despite | a -ju-
ror’s sworn™ ‘statement that .she..did
not vote for and did not: support. his
-death sentence, Papi id

‘Mr. ‘Hance, 45, was: put ‘to death

‘after’ Justice Anthony M..Kennedy of.
the. United States Supreme. Court lift-

eda temporary stay that had delayed
the execution for ‘three. hours. Mr.
Hance was pronounced dead at 10:10.

He maintained he wa§ innocent ina

statement before his execution, ask-
ing: “Why are you executing an inno-
cent man?’ Why? Why? Why??? at

Mr. ‘Hance’ s ‘lawyer, Gary Barker;

went to the. Supreme Court-on’Thurs- oe

day after the United States: Court ‘of

_ Appeals for the 11th Circuit; in/Atlan-
ta, and the. Georgia Supreme> Court
refused to halt the -exécution:; «9°,

" The: Georgia Board of. Pardons’ and

Paroles denied -a ‘clemency “petition
on Wednesday. The petition was filed

after the only black:juror; Gayle:Dan-:
iels, said’ she. had-not voted ‘for; the’;

death’ penalty, believing” that Mr.
Hee Me was S510. mentally spared. to’

ecution Proceeds

se be’ Srecuted She. said ‘the jury fare:

-man had lied in saying’ the verdict
‘was unanimous. Another juror, Patri-
‘cia LeMay, corroborated. Ms. -Dan-.
iels’s story in.a signed affidavit.
Death penalty critics contend that
everything about the trial of “Mr.
Hance, who was black, reflects a per-
yasive racism in state courts in Co-
‘lumbus — from the decision to seek
the death penalty, to the racial make-
up of the jury, to the racial slurs that
'Ms. Daniels and Ms. LeMay say were
made during jury deliberations. °

But Georgia’s Attorney General,
Michael Bowers, called Mr. Hance’s
appeals a last-minute stall. He said
that by law jurors could not challenge
their own verdict and that Ms. Dan-
-iels had been duly polled about the
verdict when it ‘was. delivered and
had concurred with it.

Mr. Hance, a Torey marine. and

later an Army specialist, was convict-
ed of murdering Gail.Faison, 21; who;

was also black, in'1978. At the. time of
the slaying, he. was stationed at Fort
Benning, which is adjacent to Colum-
bus. He was also convicted in military
-court’‘of killing another, prostitute,

Irene Thirkield, and sentenced. to life,
at hard labor. But that conviction was

set_aside, and he was never retried.
Be co pete Loo :

3 : “that she did not
not support his | death sentence.

e Killer Ex |

** originally
~~ 10:10 p:m:~

Lahti ctri ti mastesine bs

iy am ‘He! y Ha

mer Marine convicted of ae 1978 —
_ murder of a prostitute in Colum-.
bus, Ga., was executed in Geor-

.gia’s electric chair Jast.night de- —

‘sworn statement _

> spite. a juro
vote for and does—

Hance was" put to death-after~
Supreme Court Justice Anthony
‘Kennedy lifted. a temporary . Stay
that had. delayed the execution, ”

Hance was peeponnees. dead at

me ya Nis. caeckaaeiad anita

- The prisoner aintatied his in-

nocence ina seven-minute state-.

- ment before his execution at the
state prison in Jackson. “Why are —
you executing an innocent man?”

he asked. “why! yenae way

spn tpi nin

“scheduled® for 7: p.m:

a a ae tae eee

Yleree i,

 ‘Hanbe’s laiever Gary Parker,
went to the Supreme Court yester-\
day after the U.S. Court of Appeals’
in Atlanta and the Georgia Su-
preme Court refused to halt the —
ew Ds

: S
The Georgia Board of Pardons NS
and Paroles denied a clemency pe- SS
_ tition Wednesday after the only. °-<
black juror, Gayle Daniels, said | ©
that she had not. voted.for~the N
death ‘penalty — believing. that
“Hance ‘was too, mentally: impaired .
‘to be-executed— and that the jury, - § ;
foreman lied in saying the verdi {(X
"wal aha tints a

2

what Tala Ge
‘ that day in 1984, more than’ punish Ne
ing him for what he did,”: Dantes se

said.after the parole board hear ar Hue ae:


[ | Dubious —
[ choice: To
| execute

2 ILLIAM HENRY Hance was) |
rh, electrocuted in Jackson, Ga.., {

a few minutes after 10 p.m.

on March 31, and the shabby mistakes, z
the carelessness and the demoralizing”

capriciousness that characterized his

case continued right up until the.end.. ~
The Georgia State Board of Pardons »

and Paroles, in its official order deny-

ing Hance’s request for a stay of execu-
tion, somehow got »

the wrong man’s :
BoB name into a key ::
HERBERT paragraph. So in- :

' Lonchar — an incredible mistake in a
capital punishment case.

Meanwhile, the Georgia Supreme ‘

Court rejected an appeal on Hance’s be-

half by a 4-3 vote. One vote the other °

way and he would still be alive. ‘That’s

the judicial equivalent of a coin toss, or.
a crapshoot, which may be fine in most |}

cases — but not when a'person’s life i is
at stake.

A half-hour before the scheduled 7
p.m. execution, U.S. Supreme Court
Justice Anthony Kennedy issued a tem-
porary stay so the full court could de-
cide whether to hear Hance’s appeal.

- That stay lasted just a couple of hours.

The court voted 6 to 3 against hearing |

the case and the stay was lifted.

Justice Harry Blackmun, who dis-’.
sented along with Justices John Paul

Stevens and Ruth Bader Ginsburg,

wrote that even if he had not recently. °
“reached the conclusion that the death °
penalty cannot be imposed fairly within

the constraints of our Constitution. ..:

I could not support its imposition in =

this case.”

He’ said: “There is substantial evi-
dence that William Henry Hance is .

mentally retarded as well as mentally

ill. There is reason to believe that. his 4
trial and sentencing proceedings were
infected with racial prejudice. One, of °

his sentencers has come forward:to say
that she did not.vote for the death pen-
alty because of his mental impair-

|. ments.”

‘ — stead of William *
Henry Hance, the order contains‘a ref-  :*
erence to someone named Larry Grant. ©

te ne nee ne NR me ee Re Se ee net es, ee ee ec ne ae ee ee ee

P46

_ punishment degrades ‘us all.

get convicted. When we witness ‘this

kind of slipshod justice ina capital | i
case, is there any reason’ to’ imagine
that. fewer mistakes and a higher’ *

standard of justice prevail in the sen-

tencing and appeals process for some-'*

one wrongly convicted of murder?

The death penalty-is administered by’,

AEP example, of ae capital.» ’

- We can never be’sure that we're doing”

the right. thing, and we can never Oe At
rect ourerrors. Be

There is little doubt, that Hanes. was, | a ie

in fact, a murderer. The objections. to

his execution were not based on ‘claims

of innocence. But innocent people do

humans, and humans are earnestly, ©
creatively and endlessly fallible. We
are prone to mistakes and prejudices, —

to anger and rage and resentment.

With a death penalty administered: '
_ by humans, it is always just a matter of ‘
_ time before someone innocent is’:

strapped into an electric chair, or walk-

ed into a gas chamber or injected pba ;

poison.

Anthony Amsterdam,.a professor at ip

New York University Law School and
_ the-principal architect of the legal ef-’
fort to abolish capital punishment in -’
the United States, said the key moral -

and philosophical question is whether .

human beings are capable of having a,

“just” death penalty, “given our imper- ©

fections.”

He quotes Lafayette (often wrratahy a
attributed to Jefferson): “I will always. —

be against the death penalty until the

infallibility of human suena s is dem-

onstrated to me.”

oo

7 =

-—- —=— = wy

poe
ve
.

— me.
Sh ee ee

~_——<— =
or Ne

53-2 w=

of racial prejudice. One of Hance’s

death penalty jurors was a white wom- ©
-an-named Patricia Lemay, who came
_ forward to tell of scurrilous racial re- ‘|:
_ marks made by some of her fellow ju- .

rors about Hance;who was black.

Not only:does the death penalty fall
disproportionately on the black and the *,
people who murder -

poor, but white
blacks are almost never put to death.

In the nearly 240 executions that °

have taken place since the death penal-

UR JUDGMENTAL ahieteaih: “t
ings include our colossal in- .
ability to crawl out of the muck —

_ ty was reinstated in the United States ©
in 1976, only one — just one — was of a *, |
white person who killed a black. That .,.
was a case in which a white man.con-...\|)

- victed of nine murders and already in ;.

prison killed a fellow inmate ga was ,

~ black. | 4

The ediltins of men and women can-

not be fixed with legislative or bureau-_ -
cratic tinkering. We should rid our- ...’
selves of capital punishment and .
impose life sentences that really last a...

lifetime.

New York Times _

4? .

D2 teks

GEESE D

om

ors

a

ee ee ee ee me ee ee
on a eat . ~ Pomsstbws ger!
— -

-
a

p79

—
aes

—

—— .
ACE mere

. — oe
ra ee a es A ar
ae

» kee ee ese

as


948

450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203
(1981).

IV. COMPETENCY TO STAND TRI-
AL—NEED FOR A HEARING

{11-16} Trial of a criminal defendant
while he is mentally incompetent violates
due process. Nathaniel v. Estelle, 493 F.2d
794, 796 (5th Cir.1974). The test for compe-
tency to stand trial is: whether the defend-
ant “has sufficient present ability to consult
with his lawyer with a reasonable degree of
rational understanding—and whether he
has a rational as well as factual under-
standing of the proceedings against him.”
Dusky v. United States, 362 U.S. 402, 402,
80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960) (per
curiam). When a court has a “bona fide
doubt” as to the defendant’s competence, it
must sua sponte conduct a hearing on his
competency to stand trial. Pate v. Robin-
son, 388 U.S. 375, 385, 387, 86 S.Ct. 836, 842,
848, 15 L.Ed.2d 815 (1966); Scarborough v.
United States, 683 F.2d 1323, 1324 (11th
Cir.1982); Zapata v. Estelle, 588 F.2d 1017,
1020 (5th Cir.1979). This procedural guar-
antee, known as a “Pate hearing”, protects
the defendant’s substantive constitutional
right to a fair trial. Pate, supra, 383 U.S.
at 385, 86 S.Ct. at 842; Acosta v. Turner,
666 F.2d 949, 954 (5th Cir. Unit B 1982). If
the trial court ignores a bona fide doubt as
to the defendant’s competency,’ Pate re-
quires a nunc pro tunc competency hearing
as long as a meaningful inquiry into the
defendant’s competency can still be made.
Zapata v. Estelle, supra, 588 F.2d at 1020.
If such a meaningful inquiry is no longer
possible, the defendant must be retried, if
found competent, or released. Id. Three
factors should be considered in determining
whether a Pate violation has occurred: (1)
evidence of the defendant’s irrational be-
havior; (2) his demeanor at trial; and (3)
any prior medical opinion on his competence
to stand trial. Drope v. Missouri, 420 U.S.
162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103

3. A Pate violation may occur only in the time
frame encompassed by the trial itself and im-
mediately related proceedings. Reese v. Wain-
wright, 600 F.2d 1085, 1093 (5th Cir.), cert.

696 FEDERAL REPORTER, 2d SERIES

(1975). In any case, a Pate analysis must
focus on what the trial court did in light of
what it then knew. Reese v. Wainwright,
supra, 600 F.2d at 1091.

[17] Counsel for petitioner argues that
the trial court’s failure to conduct a compe-
tency hearing was a Pate violation because
substantial evidence before the court sug-
gested Hance’s mental incompetence. He
contends that Hance’s letters from “The
Forces of Evil” were replete with ravings
and that the gruesome manner in which the
prostitutes were slaughtered revealed a
wholly abnormal mind. Petitioner’s counsel
also points out that the trial court was
informed by counsel] that a clinical psycholo-
gist’s report “suggested that there may be
some character disorder that might be fur-
ther examined to determine Mr. Hance’s
present mental status.” And it is argued
that Hance’s performance as his own lead
counsel clearly indicated his mental incom-

petency.

~ After examination of the trial record in
light of the three factors listed in Drope, we
are convinced that the trial court’s failure
to sua sponte conduct a competency hearing
was not a Pate violation. Aside from the
manner in which Hance murdered the pros-
titutes, there was scant evidence before the
trial court that Hance had a history of
irrational behavior. Even the letters from
“The Forces of Evil” lack significant proba-
tive value with regard to Hance’s mental
competency. Rather than indicating men-
tal incompetency, they could as easily be
interpreted to be evidence that Hance was
aware of the consequences of his actions
and had formulated a rational, albeit imma-
ture, plan of deception. Although the grue-
some method of the murders is evidence of
irrational behavior, Hance did not present
the trial court with a history of irrational
behavior comparable to that uncovered in
Pate v. Robinson or in Fifth Circuit cases
which have required a Pate hearing.’ Evi-

denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d
410 (1979).

4. In Pate, supra, 383 U.S. 375, 86 S.Ct. 836, 15
L.Ed.2d 815, the defendant had a long history

dence of Hanc:
not reach the |
Circuit cases fir

There is little
that Hance’s ¢
incompetence, :
tency was not :
defendant cann:
=] hearing, this Cx
3 of defendant o
competency issu
no Pate violat
uf Wainwright, su;
trial judge is 0}
ably on the. fact
the facts before
. was a psycholog
Z that was made
It reported tha
from “long-stan
#: . inferiority, and
<j _ concluded that
% there are ...

suggest that

at the present
of contact wit

Hance is awa

him, he has

courtroom pro
that he can co
an attorney in
fense. There]
competent for
Given the facts
cannot fault his
sponte compete:

ssa > ee eee

RAE

V. COMPETE
Ow
[18-20] Duri:

Hance requested

of disturbed and
ined hearing thr:
of snakes and e
about in a com;
at 839. In Lee:
(Sth Cir.1967) (
had found the cd
months before h
emotions were

deur and of per
v. Turner, supr.:
commitment to


946 696 FEDERAL REPORTER, 2d SERIES

that they wanted to interview Hance.
Hance agreed to be taken to C.I.D. head-
quarters, where he was advised of his rights
by Agent Fox and informed that the inter-
view concerned the murder of Irene Thir-
kield, with whom he was the last person
seen. Hance signed a waiver of his rights.
The interview was conducted from about
1:00 p.m. until 10:20 p.m. Hance was then
interviewed by the FBI and the Columbus
police for another hour. During the inter-
views Hance admitted writing letters and
making the telephone calls for “The Forces
of Evil” but said he had been forced to do
so by the organization. The next morning,
at about eight, Hance was again advised of
his rights, which he again waived. He was
interviewed until about 3:15 p.m. when he
signed a written statement concerning each
murder. Throughout the two days of inter-
rogation he was given breaks to eat and to
use the restroom. Hance was also given
coffee and allowed to smoke. At no time
did petitioner request a lawyer or ask that
the interview be terminated.

1. 28 U.S.C.A. § 2254(d) provides that:

In any proceeding instituted in a Federal
court by an application for a writ of habeas
corpus by a person in custody pursuant to
the judgment of a State court, a determina-
tion after a hearing on the merits of a factual
issue, made by a State court of competent
jurisdiction in a proceeding to which the ap-
plicant for the writ and the State or an officer
or agent thereof were parties, evidenced by a
written finding, written opinion, or other reli-
able and adequate written indicia, shall be
presumed to be correct, unless the applicant
shall establish or it shall otherwise appear, or
the respondent shall admit—

(1) that the merits of the factual dispute
were not resolved in the State court hearing;

(2) that the factfinding procedure em-
ployed by the State court was not adequate
to afford a full and fair hearing;

(3) that the material facts were not ade-
quately developed at the State court hearing;

(4) that the State court lacked jurisdiction
of the subject matter or over the person of
the applicant in the State court proceeding;

(5) that the applicant was an indigent and
the State court, in deprivation of his constitu-
tional right, failed to appoint counsel to rep-
resent him in the State court proceeding;

(6) that the applicant did not receive a full,
fair, and adequate hearing in the State court
proceeding; or

I. STANDARD OF REVIEW

[1-4] The standard of review for habeas
corpus petitions by prisoners in state custo-
dy is set out in 28 U.S.C.A. § 2254(d).! A
written determination after a hearing on
the merits of a factual issue, made by a
state trial or appellate court of competent
jurisdiction, is presumed to be correct un-
less one of the conditions set forth in Sec-
tion 2254(dX1)}{7) is found to exist. If
none of these conditions is found, or unless
the state-court determination is “not fairly
supported by the record,” 28 U.S.C.A.
§ 2254(dX8), the petitioner must establish
by convincing evidence that the factual de-
termination by the state court was errone-
ous. Sumner v. Mata, 449 U.S. 539, 546,
550, 101 S.Ct. 764, 768, 770, 66 L.Ed.2d 722
(1981). This presumption of correctness
does not apply to legal findings or to mixed
questions of law and fact. Cuyler v. Sulli-
van, 446 U.S. 335, 341-42, 100 S.Ct. 1708,
1714, 64 L.Ed.2d 333 (1980). Factual issues
involve “what are termed basic, primary, or
historical facts: facts ‘in the sense of a

(7) that the applicant was otherwise de-
nied due process of law in the State court
proceeding;

(8) or unless that part of the record of the

State court proceeding in which the determi-
nation of such factual issue was made, perti-
nent to a determination of the sufficiency of
the evidence to support such factual determi-
nation, is produced as provided for herein-
after, and the Federal court on a considera-
tion of such part of the record as a whole
concludes that such factual determination is
not fairly supported by the record:
And in an evidentiary hearing in the proceed-
ing in the Federal court, when due proof of
such factual determination has been made,
unless the existence of one or more of the
circumstances respectively set forth in para-
graphs numbered (1) to (7), inclusive, is
shown by the applicant, otherwise appears,
or is admitted by the respondent, or unless
the court concludes pursuant to the provi-
sions of paragraph numbered (8) that the
record in the State court proceeding, con-
sidered as a whole, does not fairly support
such factual determination, the burden shall
rest upon the applicant to establish by con-
vincing evidence that the factual determina-
tion by the State court was erroneous.

ay preere sri
SR SRR EH eR COE tee NRO A

soa

recital of external events :
of their narrators ....
Sain, 872 U.S. 293, 309 n.
n. 6, 9 L.Ed.2d 770 (1963),
Allen, 344 U.S. 443, 506, 7:
L.Ed. 469 (1953) (opinior
J.). On the other hand, r
law and fact involve “t
legal principles to the |
[the] case.” Cuyler, supr:
100 S.Ct. at 1714. As Ju
once stated: “Where the
the historical facts does |
claim but calls for inte
legal significance of su:
[Federal] Judge must «
judgment on this blend «
legal values. Thus, so-c:
tions or the application
principles to the facts a:
duty of adjudication \
judge.” Brown, supra, 3
S.Ct. at 446 (opinion of

II. FRUIT OF AN IL
{5] Petitioner’s first
peal is that his confessio
ed under Taylor v. Alabar
102 S.Ct. 2664, 73 L.Ed.
away v. New York, 442
2248, 60 L.Ed.2d 824 (19
Illinois, 422 U.S. 590,
L.Ed.2d 416 (1975), as
fruit of a warrantless arr
ble cause. See Wong Su
$71 U.S. 471, 88 S.Ct. 4
(1963). Because Hance
opportunity for full and
this Fourth Amendmen
court, Stone v. Powell, 42:
3087, 49 L.Ed.2d 1067 (1
consideration in a feder
proceeding. Williams v.
216, 220 (5th Cir.1980);
577 F.2d 1188, 1191-94 (<

2. “The determination of
been an intelligent waiver
each case, upon the part

cumstances surrounding


of their narrators wee
Sain, 372 U.S. 293, 309 n. 6, 83

i law and fact involve
2 legal principles to the
[the] case.” Cuyler,
100 S.Ct. at 1714,
once stated:
the historical

( legal significance of such facts ...
i

ie judgment on this blend
he legal values,

pe principles to the facts
duty of adjudication
judge.”
S.Ct. at

II. FRUIT OF AN ILLEGAL ARREST

ed under Taylor v, Alabama, — U.S.

away vy,

New York, 442 U.S. 200, 99 S.Ct.
2248, 60

L.Ed.2d 824 (1979), and Brown y.
Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45
L.Ed.2d 416 (1975), as the impermissible
fruit of a warrantless arrest without proba-
ble cause. See Wong Sun vy. United States,
eee, «3871 US. 471, 83 Sct. 407, 9 L.Ed.2d 441
F aes Vf (1963). Because Hance was afforded the
; ‘ Opportunity for full and fair litigation of
mw: this Fourth Amendment claim in state
® court, Stone v. Powell, 428 U.S. 465, 96 S.Ct.
#3087, 49 L.Ed.2d 1067 (1976), precludes its
WF Consideration in a federal habeas corpus
eee proceeding, Williams v. Brown, 609 F.2d
Db Gack i 216, 220 (Sth Cir.1980); Caver y. Alabama,
By a 577 F.2d 1188, 1191-94 (5th Cir.1978),

¥ 2. “The determination of whether there has
me been an intelligent waiver... must depend, in
iM each case, upon the particular facts and cir-
7 cumstances Surrounding that case, including

My t
we

HANCE v. ZANT
Cite as 696 F.2d 940 (1963)
recital of external events and the credibility
Townsend y.
S.Ct. 745, 755
n. 6, 9 L.Ed.2d 770 (1963), quoting Brown v.
Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97
Be L.Ed. 469 (1953) (opinion of Frankfurter,
4 J.). On the other hand, mixed questions of
“the application of
historical facts of
Supra, 446 U.S. at 342,
As Justice Frankfurter
“Where the ascertainment of
; facts does not dispose of the
d claim but calls for interpretation of the
; the
[Federal] Judge must exercise his own
of facts and their
Thus, so-called mixed ques-
tions or the application of constitutional
as found leave the
with the federal
Brown, supra, 344 U.S. at 507, 73
446 (opinion of Frankfurter, J.).

([5] Petitioner’s first argument on ap-
peal is that his confessions must be exclud-

102 S.Ct. 2664, 73 L.Ed.2d 314 (1982); Dun-

947

III. ACCESS TO AN ATTORNEY

[6-10] While Hance was being interro-
gated, attorney David Clark, who had not
yet been retained by petitioner, was at-
tempting to locate him to advise him of his
rights. Hance argues that the confessions
resulting from his interrogation should be
excluded under Escobedo y. Illinois, 378
U.S. 478, 486-87, 490-91, 84 S.Ct. 1758,
1762-63, 1764-65, 12 L.Ed.2d 977 (1964),
and Miranda y. Arizona, 384 U.S. 436, 465 n.
35, 86 S.Ct. 1602, 1623 n. 35, 16 L.Ed.2d 694
(1966), because law enforcement officials
prevented his attorney from advising him,
thereby violating his Fifth, Sixth and Four-
teenth Amendment rights. But Hance nev-
€r requested an attorney and Mr. Clark was
never refused access to him. Given this
Situation, as found by the state trial court
during a Jackson v. Denno hearing, Escobe-
do does not apply. Love v. Alabama, 411
F.2d 558, 560 (5th Cir.1969). ;
Hance was advised of his Fifth and Sixth

Amendment rights and he signed a written
waiver of those rights. Our determination
whether this waiver was valid involves a
mixed question of law and fact. See Brew-
er v. Williams, 430 U.S. 387, 404, 97 S.Ct.
1232, 1242, 51 L.Ed.2d 424 (1977). Under
the proper constitutional standard, the state
must prove “an intentional relinquishment
or abandonment of a known right or privi-
lege.” Johnson vy. Zerbst, 304 U.S. 458, 464,
58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938),2
The trial court found by a preponderance of
the evidence that Hance was properly ad-
vised of his rights, that he understood those
rights, and that he voluntarily signed a
written waiver of those rights. Implicit in
this finding is the factual determination
that Hance was mentally competent to
waive his rights. Upon examination of the
entire record, according a presumption of
correctness to the factual findings of the
State court, we conclude that Hance volun-
tarily and validly waived his right to coun-
sel. See Jurek y. Estelle, 623 F.2d 929,
931-32 (5th Cir.1980) (en bane), cert. denied,

the background, experience, and conduct of the
accused.” Johnson y. Zerbst, supra, 304 US.
at 464, 58 S.Ct. at 1023.


7
i
H
i
|

HANCE v. ZANT 945
Cite as 696 F.2d 949 (1983)

Before VANCE and JOHNSON, Circuit
Judges, and ALLGOOD *, District Judge.

JOHNSON, Circuit Judge:

Petitioner William Henry Hance was con-
victed by a jury in the Superior Court of
Muscogee County, Georgia, of the murder
of Brenda Gail Faison (a/k/a Gail Jackson)
and of attempted theft by extortion. The
jury sentenced him to death for the murder
under Ga.Code Ann. § 27-2534.1(b\7) and
he was sentenced to five years’ imprison-
ment for attempted extortion.

missed by the Sy
County, Georgia,
preme Court of
application for
cause and the Un
denied certiorari.
——, 102 S.Ct. 204

District Court for the

Georgia granted petition-

er leave to proceed in forma Pauperis and

summarily denied his application for habeas

Corpus without an evidentiary hearing.

The court denied a stay of execution pend-

ing appeal but granted a certificate of prob-

able cause to appeal to this Court. This

Court granted a stay of execution pending
appeal.

ebruary 28, 1978, Hance, a

Benning in Columbus, Geor-

E. Gia, killed prostitute Gail Jackson, after she

ne Thirkield in a similar manner,

B leaving her body on Fort Benning grounds,

Between March 3 and April 5, Hance sent
five letters to Columbus Police Chief

* Honorable Clarence W. Allgood, U.S. District
Judge for the Northern District of Alabama,

McClung and one letter to the local newspa-
per claiming that “The Forces of Evil”, a
white organization, had kidnapped Gail
Jackson and Irene, who were black, in order
to pressure the Columbus Police to capture
the “stocking Strangler” who was then ter-
rorizing the white women of the city. The
handprinted letters on Army stationery
threatened that, if the strangler was not
caught by June 1, 1978, or if $10,000 was
not given to “The Forces of Evil”, Gail
Jackson would be killed and other black
female victims would follow.

On March 30, 1978, Hance, claiming to be
“The Forces of Evil”, telephoned the Fort
Benning military police and the Columbus
Police Department, indicating that Gail
Jackson’s body could be found a certain
metric distance from the Sand Hill Bar.

~ The military police and the police reception-

ist who received the calls thought the caller
was a young black male. Gail Jackson’s
body was found at the specified location
covered with twigs and leaves. Her face
was mutilated. Near the body was found
an Army cap with a different unit insignia
than Hance’s unit. On April 3 the Fort
Benning desk Sergeant received a call from
“The Forces of Evil” indicating where on
Fort Benning Irene’s body could be found.
The caller sounded like a black male.

Irene Thirkield was last seen on March
15, talking to a soldier in Vice Mitchell’s
Tavern. One of the witnesses told Agent
Richard Fox, of the United States Army
Central Intelligence Division (“C.LD.”),
that Hance was the soldier seen with the
victim and stated that the two left the
tavern together. Tape recordings of the
Phone calls to the Fort Benning police
which indicated where the bodies could be
found were taken by C.LD. Agent Besson to
Hance’s company commander and first ser-
geant, who thought it was Hance’s voice on
the tapes.

On April 4, 1978, Agents Besson and Fox
told the petitioner's commanding officer

Sitting by desipnatton


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“. "Guy had anything to ¢o with the | thie’ ‘Georgia

THREE NEGROES

———

REV, BURGESS TO 4 ARVEST ‘ jr a

in ns PREACH AT LINC ea
angen MONDAY, REACH ATUNGDLATON,
an At the last session of the Au i:

The three negroes who killed Seige aire aye ai Atlanta, Gavy Savy esi
Mr. Charlie Rackley early in Oc-| p, asbingtoa recently, | charge of the, Sykongia,
: solr wnt ev TT. P. Burgess was as | Festival 4 6r Sie Ate
tober at a saw mill camp SiX| <0 16g to the Linco ntoa churcl : Ve OLR
miles south of town, and who fe will take u am og ne prospectsi6 ri ree
were tried, convicted and Se€M"/ihe comin cawaae. ae oat harvestitimg:; pe ee.
tenced to hang, ata special term aveach ie aes a andes » opening off ;
of Taliaferro superior court held| 4, and Sunda : ext with eee ee
on October 18th, paid the death | tne addition of tw indaiott begin Text,
penalty here Monday. All three on | continue thre
church Rev. . Burgess . now|‘‘The  ente of
negroes were executed at the i. :
: hasfour churches, Crawfordville, | beydnd all of.
same time on:the gallows con- . ; Hh OF
; Sharon and Thomson being the | declared ee

structed at the county jail for| other three. ward Younga
the purpose... of os spon ccake ati, lgure: thank ek AY
The hanging was private, but}... ‘ hia io les Oa
eee crowd gathered | NOTH Ga, Conference | jeu eae
7 ,

around the jail in the early morn- he any Y
}
-4ng and remained until after the af Convened Wednesday arexx::

execution, hoping to” get a ace ae

glimpse of the negroes on the} Rev: and Mrs: L. 'P. Huckaby | Wholesom
gallows.* Sherilf W. Y. Edwards left Monday, to be present at, the Peary fun
pulledthe trigger at 11:51 0’clock, North » Georgia’: 'C, nference, week as a
and alk three negroés were © pro- With thetay
; nounced ‘dead'?in twenty-two
minutes. Guy Young was the
_ only one whose neck was broken,.
the other two dying from stran-;
gulation. |

Atlanta nt
what.is going #

Medday.

Whes ine es rh ‘ fi’ j ie He i
et \ Pep MNT ies) PARCELS tat!
ft ty Tea tee a ma ae aA WY pre , &
: jedpahat Gunn:

killing, and that he did noteven: Augusta ye
know what their intentions were | down in Mr.
when they went to the camp. | a amr
The woman’s. testimony was | es
what ‘convicted Guy Young at —
the trial. A
The hanging Monday was the;!
second legal execution in the | § . As
county’s history, the first having | cop
occurred thirty-foxr years ago, |i ° IS \ Xe
whena negro by the name of |§ wwe? OER INS
— i eS.

Sang Armor was hanged for the ‘ Oe Hida
WA. \ a hies Par iy
S| SEN ee

murder of Mr. Amos Ellington.
That execution was public, and it|@ -
a N& = \N SS : : » 4 bil ic
aR SNS WS NG ae,
SNE |

ps Benga
ae :
Yj no

is said was, attended by a large
crowd. There are yetmany peo-
ple living in the county who is
were here at that time, and dis: | #

ALKt
)

Zi HG

tinctly remember the circum: af
stances surrounding the case. Oren) Ht i
Several of the jurors who served ‘ill N} eu Se
at the trial of the negro are, also all SRE yh
still living, and are yet residents | WN et
of Taliaferro county. Werrn~—x«—ek Si 3

: ae | SEE SUR Ra)

' Y hee le ;

COL. SMITH’S HEALTH = |
MUCH IMPROVED. \§
Col. Jas. Mi Betith is expected |

home Sunday from'Johns Hopkins |?
hospital, where four weeks ago,

UNDERWEASB
AND FURNISHING

FOR ALL THE FA

a
ee
ed

Son . a
Seeing means buyng.t

2 zs

RST ee
Shy bt
A
ay
ha ea’, Be

i
this to those who are our j@gi aur

he wnderwent an operation. y
Word comes from him that the : . . ee
operation was entirely success: 4 it. We do want those whag 9 Sia
es pi liseresd eg puting fit yey ryan see liayt VEC) Thaye ina VY bg ;
meget Be a ‘


(4a Sathorn: cle 2

|
UNDER WHAT PROCESS. THE Crime Cui

gtd lee Tb RE hie esesbectan 13

Serv Ay a y AOS ae PPO de

L

sie abt aoe brn

“iis:

eck. hii

£ eeage Alt immense |

CLY Pee

> + he ee


TALIAFERRO

T

COUN TY, GA>

y

FHE Crime CHARGED.

Date of Commitment.

Date of Discharge.

Under what Order Discharged

Court from which Discharge Issued.

a

or.
Ock 13- p98

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we ae he = ee Pee Se ae Sas
VOL. BO. oa Ge ge,
oT 5. mW WER 4 Re ea Ui Benen Fp ty eo

TAREE NEGROES © ar ome ta
ae ~HANGED MONDAY] PREACH HAF UU

‘e
t

a The three aegroes a witicalt
* Mr. Charlie Rackley early in Oc.

ep-*

3 8 :- “tober at a ‘saw mill camp six ¢
m, easy: miles’ south of town, and whol Be
eee tc were Ci gee -convicted -and senna see very . &
we oh ~tenced to hang, at ‘especial t term, € = $s "was, held, : |e
- & iss of Taliaferro ‘superior court, “held wreck ve ev ate ‘s : %
a 2.) 4 on October 18th, “paid. the: death | a dadition of: then &
td
re
Sead
i)

* | “penalty here Monday. “At three |
negroes were ; ‘executed ‘at. “the! church | Rev. \ Burgess

“= game time on ‘the gallows | con-|

haSfour ‘Churches, rats ile,
being’ thé

ire:
we
tee
aes

aun se: tal : wt oa
D Treasure f I: J

“2 s gtructed-at ‘the “county jail. for
the purpose... :
j ar! e38 :
i _ The hanging | was ‘private, but|y rl eae * Secretary —Mrs.
; a good size crewd gathered | N R. Golacke..’ faas TERE S
After the, Sisinie ‘before the” HSK 1 ib)
"Vmeeting had ‘been transacted, a Too . a

around the jail i in the early morp- |
ing and remained until after the
execution, hoping » t ‘get.

es otk, the,

ee Nor ;

a very “pleasant - -social hour was: ite aseey
elightful.. refresh-.9.) 3.4) .4°
ed the ‘guest vy,

Tt

Baa:

‘ :
sib pivick stata iio a
‘ en
2


3, Stopes BT on

598 Ga.

whole. It shows further that W. R. Geiger,
who became the purchaser at the sale, became
the owner of at least an interest in the land,
and thereby became tenant in common with
petitioner. A petition having for its objc :

the ousting of a tenant in common from his
interest in property is not maintainable by a
cotenant,. Thompson v. Sanders, 113 Ga. 1024-
1026, 39 S. E, 419. There is nothing in the
petition to show that the pleader intended to
usk for a judgment canceling the deed in part
and upholding it in part. Tlowever, if the
petitioner should desire to ask for a judgment
canceling the deed in part and upholding it in
part, the pleadings may always be adjusted to
the evidence produced on the trial. The ques-
tion to be considered is whether the petition
alleges such title to the lands involved as
would support a decree in favor of the plain-
tiff for any relief, Wade v. Wade, 189 Ga. 62,
76S. B. 563. It was error to sustain the gen-
cral demurrer.

Judgment reversed.

All the Justices coneur.

HAMMETT v. STATE,
No. 10494.

Supreme Court of Georgia.
Noy. 17, 1934.

Syllabus by Editorial Staff.

!. Homicide €=250 cs
Evidence sustained murder conviction.

2. Criminal law €=956(10)

Refusing new trial, asked on ground that
juror had been adjudged insane and had not
been discharged from hospital for insane,
held not error, in view of affidavits as to ju-

ror’s sanity introduced by state.
RUSSELL, C, J., dissenting.

—_—_»——.

Error from Superior Court, Troup County ;

7. B. Wyatt, Judge.

J. T. Hammett was convicted of murde:

and he brings error.
Affirmed.

It is agreed by counsel for both parties that was in front of Bowman.
the facts in this case are substantially as

177 SOUTH EASTERN REPORTER

follows: At the May term, 1934, of the su-
perior court of Troup county, J. T. Hammett
and Mrs. J. T. Hammett were jointly indicted
for the murder of Howard Boozer on Decem-
ber 18, 1933. Upon a severance, J. T. Ham-
mett was put on trial for this offense, and
was found guilty by the jury, without a rec-
ommendation. Two of the state’s witnesses,
John Henry Hammett and his wife, negroes.
were at the home of the defendant early
in the morning of December 18, 1933, the
negro woman preparing breakfast for the
defendant and his wife. John Henry Ham-
mett cut the hair of defendant’s wife. While
defendant Hammett and his wife were sit-
ting before the fire talking to the neeroes,
one of the defendant’s children came into
the house and announced that Mr. Boozer,
the deceased, and Mr, Bowman were coming.
The defendant and his wife both got up.
Mrs. Hammett, the defendant’s wife, grabbed
the gun and said, “I told them son of bitches
not to come back to my house any more.
The defendant told his wife to put the gun
down, and he would go out and see them him-
self. She put the gun on the bed, and they
both went out, but Mrs, Hammett did not
go any further than the steps. Then she
came back into the house. Shortly one of the
children came in the house and said, “Mama.
Mr. J. T. done slapped Mr. Boozer,” and
Mrs. Hammett went out of the house. The
two negroes then left the defendant’s house.
The gun was on the bed when they left the
house, and they did not know who took it
from the bed. The defendant never canx
back into the house. The two negroes were
the last of the four to leave the house.
Boozer and Bowman were walking up the
road in the direction of the two negroes’
house, about half a mile distant. The defend
ant got in his truck and went up the road in
the same direction behind the two men. Thc
defendant overtook them about 150 yards
from the two negroes’ house. Mrs. J. T.
Hammett came up the road in the same di-
rection with the two negroes. She did not
have the gun with her. About halfway of
the distance, the two negroes cut across the
field to avoid passing the truck in going to
their home. Mrs. Hammett proceeded up the
road to the truck. The negroes went on
through the field to their home. A daughter
of the two negroes, Carrie Pearl, was stand-
ing in the door of her house when the defend-
ant overtook Boozer and Bowman. Boozer
The defendant

droye past Bowman and stopped when he

€=For other cases see same topic and KEY NUMBER jn all Key Number Digests and Indexes

HAMMETT vy. STATE Ga. 599
177 8.E,

got to Boozer. When he stopped he told
Boozer to get in. Boozer told the defend-
ant he did not want to ride. The defendant
told him, “Yes, damn it,” he was going to
ride.” Boozer again said he did not want to
vide, and the defendant said, “Yes, you is
going to ride,” and eaught Boozer in the
collar and pulled him into the truck. Bow-
man came on up and stood by the truck.
Carrie Pearl went back into the house and
stood by a window, and the men were as she
saw them from the door. The defendant was
in the truck, and Bowman was standing by
the side. This all happened before her father
and mother arrived from the defendant’s
house,

Mrs. Hammett came up the road with the
xirl’s parents, her parents turning across the
tield, and Mrs. Hammett coming on up the
road to where the truck was parked. She
stayed a rather long time at the truck. When
the ‘negro man and his wife reached their
home from the defendant’s house, there was
‘man waiting to have his hair cut. The
Negro man cut the other’s hair on the front
borch of the negro’s house, in plain view of
the parked truck. The defendant, his wife,
Boozer, and Bowman were standing around
the truck as long as the three negro witnesses
were at their home, which was an hour and
i half to two hours. The four at the truck
were just talking. The negroes at the house
could hear the talking, but could not under-
stand anything they were saying. During
that time the truck stayed in one place. Fi-
nally, Mrs. Hammett went to the negro
house, took three aspirin tablets, and went
back to the truck where the defendant and
the other two men were. The negroes then
left their home and went to their sister’s
home about two miles distant. As they were
leaving this house, the negro man heard the
defendant tell Mrs. Hammett to go get him
three shells, one for Boozer, one for Bowman,
ind one for himself; and that all of them
were going to hell that day. The negro
Woman heard the defendant Say: “Loretta,
0 up to the house and get me three shells,
one for Howard, one for Mike, and one for
myself. All three of us going to die and go
fo hell today.” The negro girl heard the
defendant tell his wife to go back and get
three shells, one for Mr. Boozer, one for Bow-
man, and one for himself; said he was going
to kill all three of them, and all going to
hell together. As the negroes were leaving
their house, they saw Mrs. Hammett go back
towards her home. This was about 11 o'clock
in the morning, and the negroes saw no more

of the four at the truck and did not hear any
gun shots. Both Boozer and Bowman were
alive when the negroes left.

About 12:30 p. m. the truck drove into
the main road at Hillcrest School, where
Several men were at work, about six or
Seven miles distant from the negro house
where the truck was standing when the ne-
sroes left home. When the truek drove into
the highway it ran into a ditch. The work-
men at the school heard the motor running,
and saw that it was in a ditch. Three of
them went down there to see what the trouble
was. As they approached the truck they
heard the defendant tell his wife to push,
and she was back of the truck pushing.
Mrs, Hammett motioned to the three work-
men, but they offered no assistance when they
saw they had two dead men on the seat of
the truck, and the defendant sitting under
the steering wheel, and Mrs. Hammett try-
ing to push. They went back to the school-
house, and two of them came to town for
the officers. When they got a little past
the truck on the way to town, they stopped
to put out a man who was in the car with
them. When he started back the defendant
and Mrs. Hammett told them to go ahead;
that they did not need them there. The man
kept on going, and Mrs. Hammett said: “My
God, why don’t you go on; we done told you
we didn’t need you.” When the man went
On up to the schoolhouse, the defendant
tried to call him back. Then the defendant
got out of the truck and followed him about
two hundred yards toward the schoolhouse.
Mrs. Hammett came along with him. The
man did not know what became of him until
the deputy sheriff came. When the deputy
sheriff arrived he found the truck there in
the road, with two dead men in the truck on
the seat. They were sitting on the seat with
their heads reared back. Boozer was sit-
ting on the right side of the Seat, and Bow-
man in the middle, and on the left of the seat
a place for a-man to sit and drive. Blood
was running down under Boozer on the side
to the bottom of the truck from the seat and
on to the running board. Bowman was very
bloody. He had been badly beaten. He was
shot in the left side. The cab on the truck
was full of blood, and a little blood was spat-
tered on the windshield.. There was an auto-
mobile jack in the back and it had blood all
over it. No blood was seen in the back end
of the truck. The jack weighed ten or twelve
pounds, It was kept in the locker of the
sheriff's office from the time they got it until
the trial, when it was introduced in evidence.

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600 Ga.

The deputy sheriff, the next morning, after
tinding thet déad bodies, went to the negro
house where he was informed the truck had
stopped, and looked around. He could iden-
tify the place where the truck had stopped,
by the tracks. No blood could be found where
the truck had stood. It was raining that
morning, had rained between the time of
finding the bodies and that morning. The
deputy sheriff found a single-barrel shot-
gun outside the road, ten or twelve steps
from where the truck had stopped on the
opposite side of the road from the negro
house. It was stuck up under some vines
or grass. There were some spots on the stock.
Mrs, Hammett told him where the gun was.
The gun had been fired. There was an empty
shell in the gun, and an empty shell in the
¢ab of the truck between Bowman's legs,
and a loaded shell in the defendant's pocket
at the time of his arrest. The defendant
was arrested about three hundred yards
back towards the schoolhouse from where
the trnek was found with the dead bodies
in it. He was sitting down by a pine tree
‘when the officers first saw him. He was
drinking and was rather drunk, No gun
was found in the truck. The undertaker
who embalmed the body of Boozer testified
that a gunshot wound was in the center of the
breast, the breast bone was cut in two, and the
weund ranged to the left side, There were
no powder burns on the body. The hole was
about two inches in diameter. The shot
ranged to the left. A probe was run into
the wound. There were lacerations all over
his head, three or four on the side up inside
of the hair line, and forehead gasheé to
pieces. If the skull was fractured he could
not tell it. There were five deep wounds
almost to the skull, and the rest were more or
less superficial.

he defendant in his statement said that
this trouble resulted when Boozer and Bow-
man told him Mrs. Hammett and Jeff Hunt
lay off in a pine thicket together four months
before. Mrs, Hammett said she would kill

loozer if it was the last thing she ever did.
She-said half a dozen times she would kill
them when they came to her house. About
10 that night she said, “I am a great mind
to shoot him off the truck.” He and his wife
lay down, and Jeff ITunt came about 2 o'clock
a, m. and wanted defendant to carry Boozer
and Bowman to Hogansville. He refused
because he would hot leave his family at
night, but offered to carry Hunt home if he
would wait until morning. In the morning
he carried Ilunt home, Then the negro man
and his wife came down to his house. After

177 SUOTH EASTERN REPORTER

breakfist one of the children came in and
said: “Yonder come Mr. Boozer and Mr.
Bowman up in the yard.” Mrs, Hammett
jumped up, went around the foot of the bed.
and got the gun. Before she got to the door.
the defendant caught up with her and made
her put the gun on the bed. Ne said he
would go out there; that she was fixing to
get in trouble. When he got out there he
said to Boozer: “Howard, go back in the
road; get out of my yard: my wife is fixing
to kill you.” Boozer was drinking, staggered
back, and defendant shoved him and _ said.
“Go on, she is going to kill you if she ever
gets in reach.” He said, “Jay, I didn't know
that,” and went on back, he and Bowman.
When Boozer was two hundred yards from
the house, Bowman asked defendant to carry
him home. Defendant eranked up and went
and overtook Boozer just below the negro’s
house. Bowman told defendant to_ stop.
When defendant stopped, Boozer came up
and talked awhile and then got in the car.
Defendant was telling Boozer not to come to
his house, because his wife had said she was
going to kill him. “She got the gun awhile
ago and started to shoot you,” he told Boozer.
The first defendant knew of her being any-
where around was when she snatched the
side curtain down on his side of the car and
asked, “What in the hell do all this mean
here?’ Defendant told her, “Nothing.” She
had the gun. PBowman ran his hand in his
pocket. | Defendant hollowed and asked:
“What are you doing with that gun? You
take that gun back to the house.” Bowman
pulled out a dollar and asked what a quart
of liquor would cost. Defendant took the
dollar and told her to go to the house and get
the 24-ounce bottle. She went and got it.
She had a razor in her apron when she came
back, She did not have the gun. Defendant
didn’t know whether she had it in the back
of the truck or not. No one got out of the
ear. While defendant was drinking, Mrs.
Ilammett came back to the side of the car
with a gun. She came on the left side of the
ear and shot Bowman. Boozer turned some
way. Defendant did not know whether he
was trying to get ‘out or not, when she fired
on him. He was scrambling in the car, De-
fendant started to get out of the car, and she
told him to stay where he was. She struck
him one blow. She was mad, defendant
thought, or “crazy.” She grabbed the jack
and went to beating them all over the head
with it. Defendant didn't know what be-
eame of the gun. She stepped up on the run-
ning board of the car. She did not have any-
thing except a razor, and she told defendant

McCULLOUGH v. ATLANTIC REFINING CO

177 8.E. oe * 601

to drive the car, or she would cut his throat

every one accused in a criminal trial twelve
This is an essential pre-
ven in a civil ease

were farther down the road. Ie remembered (Georgia Railroad y. Cole, 73 Ga 713). thi
$ “ e & » bo ral. Ge), lls

nothing that happened after that; recalled court held that:

nothing that took place at Hillcrest School.

“A jury composed of men
who are not lawful men * * * cannot

The next he remembered was when he render a lawful verdict. * * * And. al-

awakened at the county jail. He was inno- though the verdict

eent of killing or shooting either Boozer or
Bowman; he and Boozer and Bowman were
always good friends; there never had been
any hard words between them.

The jury found him guilty of murder. His
motion for new trial was overruled, and he
excepted.

Leonard Young, Norman Reeves, and Duke
Davis, all of La Grange, for plaintiff in error.

Wm. Y. Atkinson, Sol. Gen., of Newnan,
M. J. Yeomans, Atty. Gen., B. D. Muephy
and Jno. T. Goree, Asst, Attys. Gen., and
E. J. Clower, of Atlanta, for the State.

Syllabus Opinion by the Court,
BNCK, Presiding Justice.

{1] 1. Under the evidence the jury were
authorized to find the defendant guilty of
the offense of murder.

{2] 2. In the motion for new trial it is al-
leged that a named juror had, on a given
date, been adjudged insane, as shown by the
records, and that he had not been discharged
from the hospital for the insane, but was
absent therefrom on leave. As to this ground
affidavits were introduced by the defendant
and numerous affidavits were introduced by
the state. Many deponents testified that they
knew the juror well, and had been with him
frequently since he came back from the asy-
lum; several testifying that his insanity
was caused by the use of intoxicants but that
he was perfectly sane and restored to his
Sound mental condition. Moreover there
was evidence to show that the defendant on
trial knew the juror's condition while in jail,
just before he was sent to the asylum. Un-
der the evidence as to the mental condition
of the juror, the court did not err in holding
that he was competent, and in refusing a new
trial on the ground that he was mentally in-
competent.

Judgment affirmed.

All the Justices concur, except

RUSSELL, Chief Justice (dissenting).

I dissent from the judgment of affirmance,
without any reference to the evidence in this

may be in aceordance
with the facts, and such as .a lawful jury
should have rendered, yet it is no verdict,
and the court did right to set it aside.’ The
rule of the common law, that jurors must be
omni exceptione majores, still prevails. In
my opinion, the opinion of, witnesses at a
hearing before the court as to the quatlifiea-
tions of a juror upon motion for new trial
cannot supersede the judgment of a court
of lunacy which has not been set aside in
accordance with law, or rebut the presump-
tion that follows from that judgment.

McCULLOUGH v. ATLANTIC REFINING
co.
No. 24230.

Court of Appeals of Georgia, Division No. 2.
Dec. 10, 1984.

Syllabus by Editorial Staff.

{. Limitation of actions €=55(4)

; Actions for malicious prosecution, mali-
cious abuse of legal process, false arrest, false
imprisonment, and malicious use of civil proc-
ess are actions for “injuries to the person”
and subject to two-year limitation (Civ. Code
1910, § 4497).

{Ed. Note—For other definitions of
“Action for Injury to Person or Charac-
ter,” see Words & Phrases. ]

2. Limitation of actions €=55(4)

Petition containing some of elements es-
sential to actions for malicious abuse of legal
process, malicious use of civil process, mali-
clous prosecution, false imprisonment, and
false arrest held improperly dismissed on
ground that action was one for injury to
plaintiff's reputation, and hence was barred
by one-year limitation (Civ. Code 1910, § 4497).

3. Pleading <=367(2)
Where nature of cause of action relied
on in petition is uncertain, and petition al-

€>For other cases see same topic and KEY NUM
177 SE—38%

{BER in all Key Number Digests and Indexes

- ease. In my opinion tl y arantees
Defendant started to Harrisonville; she told petal os pores

him to turn to the left. Ife did as she di- qualificd jurors.
reeted. Ile took another drink after they requisite to a trial


ea

8-B—Rome News - Cribune

Sunday, April 30, 1972

The coroner's inquest into
the violent death of Chinese
laundryman Joe Lee began
on the day of his death—Fri-
day, February 9, 1889—and last-
ed four days.

Sworn statements of witness-
es and participants are still on
file today among Floyd County’s
old courthouse records, deposi-
tions written in age-browned
ink and heavy pencil on legal
Stationery from the office of
County Tax Collector John J.
Black (for whom Black’s Bluff
Road was named) and on stiff,
blue-lined letterheads of the
R. T. Wilkerson meat market
that once stood on the corner
lot at East Third Avenue and
East First Street. They tell a
story at once brutal and touch-
ing, a tale of humble diligence
victimized by simple greed
and of the swift, uncompromis-
ing justice imposed by a gen-
eration far less permissive than
our own.

FILED AMONG cases dating
from 1869 to 1900, the inquest
into Joe Lee’s death proceeds
with blunt dispatch: >

“In accordance with an in-
quisition taken on the 9th,’ llth,
12th and 13th of February,
1889, before Thomas Martin
Drennon, Coroner of Floyd
County, upon the body of Joseph
Lee, a Chinaman, then’ and
there lying in a room at No.
5 Third Avenue in the City of
Rome, upon the oaths of A. C.
Knight, Charles 4. Gammon, W.
A. Moore and others, sworn
according to law as jurors and
charged by T. M. Drennon to
inquire when and how and in
what manner the said Joseph
Lee came to his death. . .”

Impaneling some 15 men al-
together, the jury found that

.‘‘a Negro named Hardy Ham-

ilton of said county did on the
night of the fifth day of Febru-
ary, 1889, kill the said Joseph
Lee by then and there striking
him on the head with an axe...
We also find one Charles Rich-
ardson to be an accessory be-
fore the fact.”

SCENE OF the tragedy was
the nearly new McDonald Build-
ing on East Third Avenue, des-
tined to burn in 1908 in a rag-
ing fire that took the life of a
later-day Chinese laundryman
named Joe Tayi. The McDon-
ald Building extended back
from the old Hale-Jervis Drug-
store at 300 Broad Street to
the Wilkerson Market, a wood-
en structure occupying the
space where the three corner

es; that space, now lying open
to Third Avenue via the con-
crete expanse of the Rome
Car Park, figured heavily in
the tragedy of Joe Lee and in
its investigation by Coroner T.
M. Drennon’s jury.

That panel’s first witness was
city police officer w. Guice,
on duty at police headquar.
ters (in the new city hall, built
in 1883 directly where today’s
Greyhound Bus station stands)
on the night of February 5.

“A Negro boy named ‘Gus
Paine came running in a little
after midnight,” Officer Guice
said, in effect. “He was scared
to death, and told me that the
Chinamen or somebody was
fighting in the laundry. | went
with him and found the laundry
dark and quiet.”

He had no reason to expect
trouble; Joe Lee at the age of
62 was a quiet and industrious
man and his nephew, Ah Chin,
was hardly more than a child.
Late historian John L. Harris
recalled in letters of 1953 that
these two probably were the
first Chinese to come to Rome,
that they braided their hair in
long queues and wore heavy
blue blouses and odd, soft sho-
es. Ah Chin, the boy, spoke no
English and was considered a
simpleton; both Chinese were
members of the First Presby-
terian Church here, and Ah
Chin and Harris attended the
Same Sunday School class.

THERE WERE no flashlights
in 1889; to check the rear of the
McDonald Building, where the
light of Rome’s infrequent elec-
tric street lamps did not reach,
Officer Guice borrowed a kero.
senelamp from restaurant oper-
ator Josephine Clark. Josephine,
it developed, had heard only a
brief but violent scuffling and
a single outcry from the laun-
dry before sending her son for
Official help. The boy was still
badly frightened, but went with
Guice to the alley at the rear
of the building; the laundry
fence shielding its yard from
the open alleyway prevented
actual entry, but Guice could
see through its cracks that no
light burned inside.

“I went back to headquar- «

ters,” Guice said, “and report-
ed the case to officers Selman
and Logan.”

Sworn next was Marshal R.
J. Magruder, Confederate Army
hero who in 1861 captained the
Rome Light Guards to battle
in the War between the States
and returned after Appomat-
tox covered ‘with’ scars and

‘The ax death of Joe Lee. ..

“The privy next to the stable
Was splashed with blood,” Mar-
shal Magruder reported. “There
was also blood in the alley. A
small leather cap. was lying
in a pool of blood at the laun-
dry’s open back door.

“Inside, the floor was littered
with scattered plunder. The
front door was barred and wed.

‘ ged. We found Joe Lee lying

unconscious in a small bed.
room with his legs and feet
bare and his face very bloody.
We didn’t see the small China-
man at first. . .”’

HE SENT for Dr. West, who
lived at 420 Rast Second Ave-
nue, and for someone to build
a fire. He telegraphed that
Same morning to Chattanooga
for a Chinese who could speak
English—vainly, for he repeat-
ed his request next day in a
wire to Anniston, Alabama.

Scattered clues drew quickly

‘ into a coherent pattern: a Doug-

lass drayman named Amos
Champion was arrested late
Wednesday night, and Thursday
saw the arrest of others includ-
ing fellow stable employes
Hardy Hamilton and Charlie
Richardson. A part-time carpen-
ter and hunter named Dunc

Gwaltney also was arrested, -

and young Steve Pentecost was
questioned because Hamilton
Stated that they had spent Tues-
day night together.

Hardy Hamilton’s initial de-
fense was a simple one: he had
gone to work at Douglass’
Stable at 9 p.m. on Tuesday,
and shortly afterward had ans.
wered a “hack’’ call to the
Armstrong Hotel on Second
Avenue—that magnificent build-
ing was less than one year
old in 1889, the center of
Rome's social life—to drive Dr.
and Mrs. Williams home. The
carriage used was a landau,
with front and back Passenger
seats facing each other.

Returning, he had stabled
his horses and gone to visit a
girl named Sue Perkins. Back
In his room at the stable later,

Hardy H 3
His was “the last public hanging
in Floyd Coynty ... and

gop ihe

ae

crushed skull; waxing clinical.
Doctors McCall, Johnson, Mc-
Afee and "f. W. Holmes con-
firmed his findings.

Josephine Clark, operator of
the eating house adjoining the
laundry, was cleanin up her
kitchen after a day’s business,
she said, when she heard a
sound at her back door “like
somebody walking around out
there.” She hurried through
her work and went to bed

, around 11:00 p.m.—to be awak-

ened by a dog's barking and

7

PSihiirate.

Rs

ae een ee eM Cur ne A ae ae ay

amilton

from the stable’s fireplace. He
also had been told “by the
Chinaman”’ (probably refer-
ring to Ah Chin, since Joe Lee
apparently never regained con-
sciousness) that three men had
done the deed.

First hint of motive came
with the statement to Galloway
by M. G. McDonald, original
owner of the Third Avenue
building and currently operator
of an extremely prosperous
business at 211 Broad Street,
that Hardy Hamilton on Mon-

.. all for handful of silver

|

servant girl at Dr. Yeiser's
home on Third Avenue, taking
Orange McDonald with him,
and left the Yeiser kitchen
around midnight to look in at a
dance held at Higginbotham’s
Hall on Broad Street—a social
revel interrupted by the clang-
ing of Rainbow, Fire Com-
pany’s engine speeding to put
out the McClennon fire in
Fourth Ward. Pentecost's ques-
tioning was brought on by the
fact that Hardy Hamilton had
telephoned the Steele & For-
tune store earlier, asking that
Smith spend the night with
him.

Resworn later, Smith Pente-
cost recalled having helped to
pull the Rainbow Fire Com-
pany engine. His story was cor-
robrated by Gus Paine, the
same boy who had run for the
Police on Tuesday midnight;
the two had met at Hattie
Phillips’ restaurant on West
Fifth Avenue and had gone

|
|
He was crouching in the sha- |
dows when Ah Chin, “the little
Chinaman,” came out of. the! |
laundry to'draw a bucket of
water. The top of the well.’ ||
with its protective square hous-

ing and hand-crank windlass, | |

was half open, the little trap-
door ajar on its hinges.
“I knocked the little China-

the big one sitting on the side
of the bed. I hit him a few
times and knocked him back
and got the money out from
under his pillow. I went through
two trunks and a valise, all un-
locked. There was a candle
burning while I looked, and the
axe was standing by the door.
When I came out, the little!’ |
Chinaman was sitting up by, \
the privy.”

HE DROPPED the axe into |
Maguire's well, two lots down
the alley, and went back to his, |

| News-Tibuss stoff Photo
SCENE OF CRIME: BETWEEN POST OFFICE REAR AND THIRD AVENUE CAR PARK |
Maze of fences and alleys linked livery Btoble with Chinese laundry

re
jman over with the axe," Ham: | |
“ilton said. “I went in and saw

1}

}
|

|
f- 28

oe

aes

int de

Valley Book Shop at No. 17)
now stand. Today’s Rome Car
Park, replacing the razed Third
Avenue’ Hotel, now fills the
vanished McDonald Building’s
location.

Several other businesses shar-
ed the site with Joe Lee’s Chin-
ese Laundry; no city directory
is available for 1889, but the in-
quest itself establishes that a
Negro restaurant stood next to
the laundry and that a plum-
ber named Maguire kept a shop
between the restaurant and the
Wilkerson Market. The alley
that runs today from East First
Street behind the Coosa Valley
Book Shop and alongside Dan-
iel Printing Company was in
use at that time, apparently
paralelling the back of the
McDonald building to the left
and the wooden-walled fence of
the Douglass Livery Stable
(whose lot extended from 306-

308 Broad Street completely

through the block to East
First Street below the post of-
fice) to the right.

A LARGE part of this area
was left open in 1889, as today,
for delivery service to the rear
of Broad Street business hous-

i ears Of life
were spent as Rome's mar-
shall, a position which he held
with distinction and respect
until his death in 1892.

“T came to my office at 6
a.m.,’’ uhe marshal said, “and
Officer Logan told me the
Chinamen had had a row the
night before. Logan went to
breakfast and came back about
10:00 o’clock to tell me that
they still hadn’t opened and
that something must be wrong.”’

WITH LOGAN and W. M.
Galloway (partner in the Doug-
lass Livery Stable, which faced
Broad Street but adjoined the
McDonald Building at the rear),
Marshal Magruder went at
once to investigate. Since the
laundry was locked at the front
and the solid facade prevented
passage to the alley behind,
the party passed through the
Douglass Livery Stable to peer
through the back fence into
Joe Lee’s silent, empty back
yard.

They saw nothing unusual ex-
cept a cap lying at the laun-
dry’s rear door. A cot had been
left leaning against the fence
on the livery stable side; the
party used it to climb over.

near midnight, he heard a
fire alarm Sell ringing (this
fire was much spoken of during
the inquest; it seems to have
burned a dwelling in Fourth
Ward belonging to a McClen-
non family on Avenue A, then
known as Mill Street) but did
not go out.

HAMILTON OPENED his
trunk to official search, display-
ing shirts and collars in an up-
per tray and other clothing be-
low. Underneath this bottom
layer officers found $20.97, eight
silver dollars of which were
discolored with blood.

Fifteen dollars, Hamilton
said, had been borrowed from
Sue Perkins—who, sworn in,
prompily denied any loan to or
visit from Hamilton on Tues-
day.

Dr. Henry Battey gave a de-
tailed report on Joe Lee’s

News-Tribune staff photo

DEPUTY CLERK PATSY DUNAWAY SHOWS OLD INQUEST RECORDS
Coroner's report on murder of Chinese Joe Lee, 1889

vr

nothing else.”

By ROGER AYCOCK
News-Tribune Staff Writer

a terrible noise next door and
the sound of someone running
out of the building and scaling
the fence behind. She woke her
son, young Gus Paine, and sent
him at once for the police.

DEPUTY SHERIFF Jake
Moore told inquest jurors that
Hardy Hamilton had told him
in jail on Thursday that Dunc
Gwaltney and another Negro
named Aucat Chapman had
given him the money on Tues-
day night at Douglass’ Stable,
but that Hamilton later chang-
ed his statement and confessed
to the assault. Deputy Sheriff
Mathis confirmed Moore's ac-
count, adding that Hamilton had
admitted to striking down both
Chinese with a ‘“scantling’’—
a length of iwo-by-four-inch
lumber—and to throwing his
rude club over the alley fence
into Wilkerson’s Market yard.

Hamilton's second statement
departed widely from his first.
He had stabled his team af-
ter driving Dr. and Mrs. Wil-
liams home, he said, then had
gone over the stable fence and
into the laundry about mid-

night. ;

“The little Chinaman heard
me,” he said, ‘and | knock-
ed him down with a scantling
and went in the house and hit
the big Chinaman three or
four times. I took ten or twelve
dollars out from under the pil-
low on his bed. The only light
I had was a candle that was
burning when ] came in.”

He had asked Charlie Rich-
ardson to go with him, but
Richardson had refused. “No-
body else had anything to do
with it,” Hamilton said.

CORONER DRENNON, skep-
tical from long experience, or-
dered the well behind the
laundry cleaned out in a search
for a discarded weapon.

Charlie Richardson, also a
Douglass employe, had slept
at the stable on Tuesday night.

“7 weal to bed about 8:30,”
he told the coroner’s jury.
“Hardy Hamilton went out and
came back about 10:30 and ask-
ed me ‘0 go to supper with
him. We Walked as far up
Broad Street as the Masonic
Temple + | came back to the
stable. 1 knew he wanted to
rob somebaly, but did not
know who it vas.”

w. M. Galbway, James Dou-
glass’ partrr in the livery
stable, had bund the tip of a
collar = in ashes taken

2 .
ee |

H
b

day had rig $78 worth of
furniture at his store and on
Wednesday morning had made
a substantial payment.

TESTIMONY OF Sue Per-
kins established that she had
spent Tuesday night with her
mother in the Fourth Ward
and had not seen Hardy Hamil-
ton since the previous Sunday.
Hardy, she said, boarded
(though he spent most of his
nights in the stable’s bunk-
room) at Hattie Phillips’ place,
a restaurant on West Fifth
Avenue near the bridge.

Night stable doorman Dave
Bird had worked for Douglass
& Galloway for five years,
standing duty every Tuesday
night. Hamilton had stabled his
team a little after 10 p.m.,
Bird said, and had called Char-
lie Richardson out. The two
had gone up Broad Street, and
Bird had closed the stable soon
afterward.

“Charlie was in bed,” Bird
said, in effect, “when Hardy
came back about 12:00 o’clock.
I didn’t hear about the China-
men till the next morning.

Dunc Gwaltney, a “‘summer-
time carpenter and winter
time hunter,” had gone to
Plainville on Tuesday by train
to hunt with Charlie Inglewood.
Returning to Rome, he had
gone downtown in the evening,
“drinking a little,’ and had
stopped at Thomas’ Beef Mar-
ket around 5 p.m. His arrest
stemmed, apparently, from his
perilous curiosity; by testimony
of streetcar motorman Milton
Walden, Gwaltney had asked
about the attack upon the
Chinese while riding on Wal-
den’s streetcar between 8 and
9 a.m., a good two hours before
Marshal Magruder’s party dis-
covered the unconscious vic-
tims. Gwaltney also had asked
Officer Logan at a local barber
shop on Wednesday morning
about the attack.

OTHER TESTIMONY, much
of it totally irrelevant and
some given by witnesses with
such unforgettable names as
Smith Pentecost and Orange
McDonald, today offers more
information relating to the
Old Rome of 1889 and its cus-
toms than to the assault upon
poor, diligent Joe Lee and
simple little Ah Chin.

Smith Pentecost, aged 20,
drove a delivery wagon for
Steele & Fortune; on Tuesday
night he had gone to see a

“OTST

|
| |

OI STON See CTO aT
ing over the hill’? to court the
servant girls at |\Dr. Yeiser’s.

MATTIE REECE, who was
to have married Hardy Hamil-
ton on April 1, worked—and
lived—at Shorter College, in the
towered old buildings later to
be the home of Rome High
School. She had looked over
furniture at McDonald's store
at Hamilton's request, but had
not seen him since Monday af-
ternoon, when he drove a
horse past the Buena Vista
Hotel at Sixth Avenue and

. Broad Street. |

An axe was exhibited. De-
puty Sheriff Mathis identified
it as the one taken from Ma-
guire’s well on er: lot adjoining
the laundry and Josephine
Clark’s restaurant. Dave Bird,
night man at the Douglass
els Stable, also identified
it. |

“Last time I saw that axe,”
Bird said, “was when | used it
Tuesday morning to cut fire-

__Anather Douglass _ driver,

ubeaiet aor ;
JAMES DOUGLASS
Stable owner

other persons who had spent
Tuesday night at his house, all
sleeping in the same room.

Hardy Hamilton’s second
statement was more explicit,
and more credible.

“LAST TIME I'saw the axe,”
he said, “was when | dropped
it in the well. I got there by
walking over the fence, went
down the alley towards the
livery stable and over the
fence by the blacksmith shop.
I pulled the axe through a
crack in the gate. | didn't
see anybody till I got back in
the stable. . .This was after
the fire alarm. | didn’t sleep
much that night.!. .”

“TI don’t know what time |
started out to do the deed,” he
said. “I went around by Jose-
phine Clark’s and got over the
fence.”

and asked me to open the |
(back) door so he could see to |
get some wood.’’ It was not

until Wednesday morning that | |
he counted the money he had | \

taken from beneath Joe Lee’s
pillow. |
Charlie Richardson, Hamil- |
ton said again, had refused to ,
join him in the raid. “I never
told anybody else. Charlie said
I ought to wait till Wednesday,

when | would be on night duty, |

but | told him] wouldn't.” |)
His telephone call to the store |

of Steele & Fortune, resulting |

in the arrest of Smith Pente- |
cost, was simply explained.

“I was going to ask Smith |
to spend Wednesday night |
with me,” he said. “I was
afraid to sleep by myself." |

JOE LEE died on February L,

9, four days after he was
struck down, and was buried |
on February 11 at Myrtle Will
Cemetery. Little Ah Chin, ac- |
cording to the papers of late
historian John L. Harris: (per- |
sonal recollection in this case,
since Harris and Ah Chin were |
of the same age and attended
the same Presbyterian Sunday |
School classes) lay in a stupor

for days before recovering. | ,
Probably, the Harris account |

surmises, some relative of Ah,
Chin's came to look after him,
since he was incapable of carry- |
ing on the laundry business.
Perhaps he was taken in by
Hape Sing, who for many years
operated Rome’s Chinese laun-
dries and who was partner to
the unfortunate Joe Tayi who
perished in the great fire that!
razed the McDonald Building
on May 31 of 1908. he

Hardy Hamilton alone was)
convicted of Joe Lee’s murder,
and a month or two later was
officially hanged near ithe|
Rome Railroad between Rome

and Forrestville. pied |

“] WELL remember the ex-
citement,” Harris recalled in
his invaluable papers, now on
file under the careful hand of,
Director Beatrice Millican in!
the Carnegie Library’s Hen-
derson Room. “I was in the
seventh grade at the time,

and people talked of nothing! ! |

else. . .Jt was the last public
hanging in Floyd County.”” |

He recalls too that some- '
one, perhaps the unidentified |

fellow countryman who took

care of poor Ah Chin after:the |

tragedy, also looked after the
new grave on Myrtle Hill. For
months after the funeral, Har-
ris said, that humble plot was
marked by a small china bow!
which, in observance of cus}
toms strange and outlandish to
curious ‘Romans, was filled
daily with rice and dried nuts
in memory of Joe Lee, laundry:
man, lying alone among strang-
ers in an alien lani. hi]

r

flys
Juitl|
“when Dave Bird came back | :


ae }
Bi hd
«
ads Bs
he *

HAMILTON, Hardy, hanged at Rome, Georgia, on July 19, 1889,

= : |

Mae
*

apr: P
Si,
ye

: The coroner's inquest into
r the violent death of Chinese
“} > laundryman Jée Lee began
“F'n the day of hig déath—Fri-
ie day, February 9, 1689--and last.
Lup mepeed. tout days.) yf yas

b
Lien
big. ie
hig.

4

es and participants are still on
~ file today among Floyd County’s
~~. old courthouse records, deposi-
~ SE Qo, lions

ink and heavy pencil on legal
Stationery from the office of

: Black (for whom Black’s Bluff
nS ee fed was named) and on stiff,

~ ® Ro T. Wilkerson meat market
that once stood on the éorner
. lot at Rast Third Avenue and
East First Street: They tell a
*» | story at once brutal and touch:
ing, a tale of humble diligence
' victimized by Simple. greed
and of the swilt; tincompromis-
oe) Ing justice limposed by. a en-
VAR <2 eralion far loss permisslvé than
) i hey ur own. |

og’. PILED AMONG cases dating
Mae from 1869 to..1900, the inquest

ot

4". into Joe Lee's. death
ie with blunt dispatch: ae
« “Tn accordance with an in-
~ * guisition.taken on the 9th, 11th;
12th and 13th

proceeds

ros lean : 1889, before Thomas Martin
». Drennon, Coroner. of Floyd

hake sky -Lee, a. Chinaman,

- 6 Third Avenue In the Cily of
“yy. Rome, upon the. oaths of A. C.
+ ©. Knight, Charles A. Gammon, W.
A. Moore and others, sworn
2 according to law as jurors and
) charged by T. M. Drennon to
4 inquire when and how and in
. what manner the said Joseph
Lee came to his death. . .%
-  Impaneling some 15 men al-
© together, the jury found. that
_“a Negro named Hard

Lek
&

ty). Lee by then and there striking
“© him oh the head with an axe. ; ;
~ We also find one Charles Rich-
irdson to be :
‘ fore the fact.”

SCENE OF the tragedy was

=> tined to burn in.1908 in 4

(© named Joe Tayi. The MeDon-

-/ Sworn statements of witness.

written in age-browned ..
County Tax Collector John J,

ue-lined letterheads ’ of the ©

of February, —

an accessory be- a

, ‘the nearly new McDonald Build.
Ly -ing on East Third Avene, des-

+ Ing fire that took the life of a
later-day Chinese laundryman

B~-Roritd Nriidd Teitinis Sunday, April 30, 1972

e a death of,

‘es; that space, now lying open

to Third Avenue via the con-

crete expanse of the Rome
Car Park, figured heavily, ir
the tragedy of Joe Lee aid in

~ Its Investigation by Coronet T,

M. Drennon’s jury. ee oe
That panel’s first Witness was

city police officer W,  Guice,

on duty at police: headquar-

_ ters (in the new city-hall; built

f
thy then and terian
* there lying in a, roo aL No, .

si Me ald Building extended back
ee from the old Hale-Jervis Drug-
ee eho at OM, Yow

in 1883 directly where today’s

Greyhound Bus station stands)
on the night of February. 5,
_“A Negro boy named Gus
Paine came running in a little
after midnight,” Officer Guice
said, in effect..“‘He was scared
to death, and told me that. the
Chinamen or somebody was
fighting in the laundry. J went
with hint and found the laundry
dark and quiet.’

He had no reason to expect

trouble; Joe Leé at the age of

62 Was a quel, And industrious

man and hls hephew, Ah Chin,

Was hardly more than a child,
Late historian Johd 1. Harris

recalled ih iat of 1953 that

these two probably. were the

. first Chinese to come to Rome,

that they braided their hair in
lohg queues and wore heavy
blue blouses arid odd, soft sho-
es. Ah Chin; the boy, spoke no

~ English and was considered a
~ simpleton}, both Chinese were
County, upon the body of Joseph

members of, the First Presby-

Same Sunday School class.

THERE WERE ho flashlights
in 1889; to check the rear of the
McDonald Building, where the

ay of Rome’s infrequent elec-
utr

c street lamps did not reach,
Officer Guice borrowed a kero-
sene lamp from restaurant oper-
ator Josephine Clark. Josephine,
it developed, had heard only a
brief but. violent scuffling and
a single outcry from the laun-

- dry before pending her son for

official help. The boy was still
badly frightened, but went with
Guice to the alley, at the rear
of the building; the. laundry
fence shielding its yard from
the open alleyway prevented
actual entry, but Guice could
See through its ¢racks that no

~ light burned inside::

“I went back to, headquar-

“ters,” Guice said, “and report-
“ed the case to officers Selman

and Logan.”

Sworn nex! was Marshal 4,
J. Magruder, Confederate Army
hero who in 1861 captained the

Ghuveh. Hebek and i; .. questioned because
Chin: and Hafri§ &tterided the

loe Lee. . .

“The privy next to the stable
was splashed with blood,” Mar-
shal Magruder reported. There
Was algo blood in the alley. A
small leather cap wag lying
in a pool of blood at

dry’s open back Goof s'.. |) Met pots
. “Inside, the floor was littered)

| With scattered plunder. ‘The

front door was barred and wed.
ged. We found Joe Lee lying
unconscious in a small bed-
room with his legs and feet
bare and his face very bloody.

_ We didn’t see the small China-

man at first.) >

HE SENT for Dr. West, who

~ lived at 420 Rast Second Ave-

nue, and for someone to build
a fire. He telegraphed that
Same morning to Chattanooga
for a Chinese who could speak
English—vainly, for he Fepeat-
ed his request. next day In a
wire to Anniston, Alabama,

‘Scattered clues drew quickly

ee a coherent pattern: a Doug:

ass. drayman named Amus
Champion was arrested late
Wednesday night, and Thursda
saw the arrest of others includ-
ing fellow stable employes
Hardy Hamilton and Charlie
Richardson. A part-time carpen-
ter and. hunter named pune
Gwaltney also was arrested,
and young Steve Pentecost was
Hamilton
Stated that they had spent Tues-
day night together.

Hardy Hamilton’s tnitial de-
fense was a simple one: he had
gone to work at Douglass’
Stable at 9 p.m. on Tuesday,
and shortly afterward had ans-
wered a “hack” call to the
Armstrong . Hotel on Second
Avenue—that magnificent build-
ing was less than one year
old in 1889, the center of
Rome’s social life—to drive pr.
and Mrs. Williams home. The
carriage used was a landau,
with front and back passenger
seats facing each other.

Returning, he had = stabled
his horses and gone to visit a
pi named Sue, Perkins. Back
n his room at the stable later,

*

i + ee, 4
Aree

the latin: ,; , bie

aoa,

i a

3 ae
Se aes
vk Fae
ik y
t a
ie
¥
i
+
‘is
:
}
a
i
;
&®
¥
i |
K
f SCENE ©:
t Ma

2

}
1 | ‘ . 5 yet Ap A) ;
ith. 2 he
i . o 8 @! J |
4 e

&

crushed skillp,waxing clinical. {1
Doctors MéCall, Johnson, Me: »
Afee and T; W. Holmes con-  (
firmed his findings.
Josephine Clark, operator of
the eating house adjoining the — ;
laundry, was cleaning up her +’
kitchen afler a day’s business,
she said, When she heard av
sound at her back door “like
somebody walking around out =,
there.” She hurried through — ph
her work and went to bed o)
around 11;00.p,m..-to be awak- .
ened by a tlog’s barking and > {!

Ba, get m ‘3
ee ae a SNS at
at” ns ee a a 3

Mibe Pet mi lie har

HALL, James, black, hanged 3lakeley, Ga., on 9-28-1899,

"Jim Hall's lease on life is growing short. On Thursday Sheriff

Black will spring the trap WAXX that will send his BK soul into eternity
Jim has onfessed his heinous crime and professed repentance for the
wrong committed on the little nine-year-old negro girl who hss not

yet recovered from KX the vicious assault. As usual in such cases he
has claimed religious pardon for his crime and was baptized in the

jail last Sunday by Rev. I. G. Glass of the Blakley A. M. BE, Church. As
the hanging will be private, it is not likely that any large crowd

will congregate in Blakely on the occasion of the execut ion,"

BLAKLEY OBSERVER, Blakley, Ga., Sevt. 27, 1899 (5-3,)

"Jim Hall, the negro rapist, went hence by the hempen route last
Thursday at noon. This KK was Sheriff Black's thrid execution since his
tenure of office. The stockade and gallows used for the occasion

have been left standing until the present term of Superior Court is
finished, as a murder trial is to take place this week and it may be
necessary to use it again in the near future,"

BLAKLEY OBSERVER, B lakley, Ga., 10-l-1899 (5/3.)


Se SCENt OF the tragedy, was
yf the nearly new McDonald Build-
disc ® ing on East Third Aventie, des-
~tined to burnin 1908 in a rag-
» ing fire that took the life of a
«* . later-day Chinese Jaundryman
4 named Joe Tayi. The McDon-

' from the old Hale-Jervis Drug.
- Store al 300 Broad Street to:
~s the Wilkerson Market, a woods
en structure  o¢cupying the
#4 Space. where the three corner

‘Valley Book Shop at No. 17)

~ now stand. Today’s Rome Car
Park, replacing the razed Third
- Avenue Hotel, now _ fills) the)
* vanished McDonald Buil

~* location. r
~~» Several other businesses shar-
ed the site with Joe Lee’s Chih-
ese Laundry; no city directory »
* is available for 1889, but the in-

. Quest. itself establishes that a
~ Negro restaurant stood next to

Wilkerson » Market.’ The alley
* that runs today from Rast: First ©
|) ® Street behind the Coosa Valley

ao
©y). lel. Printing Company was if

Use at that time, apparently
’ paralelling. the, back of the.

dnd the wooden-Walled feticé of ©
‘the . Douglass Livery Stable

“1° (Whose lot extended from 306-
/@y. 908° Broad. Street completely

~ flee) to. the Mant,
~ A LARGE part of this area

~» was left.open in 1889, as today,
for delivery service to the rear i»

i eae
ee

tee : rhe Und" , iy
Sates $4 43 yt tt a f uf Au i
‘

> numbers. (including: the Coosa or gloryr Hisslasta2ye

g's

7% the laundry. and that @ plum:
vo, \. ber named Maguire kept a shop
“7 between the restaurant and the

* Book Shop and alongside Dan-

‘ McDonald building to the left.’

vege of Broad Streét busihess hous

see through iis cracks thai vs
light burned fiiside.

“Tt went back to headquar-
ters,"’ Guice said, ‘‘and report-
ed the case to officers Selman
and Logan.’’

__; Sworn next was Marshal &,

» ald Building. extended back: J. Magruder, Confederate Army

~ héro who in 1861 captained the
Rome Light Guards to battle
in the War betweeh the States
and returned after ,Appomat:
‘} tox .covered with scars and

were spent as Romme’§ mar-
shall; a position which he held
with distinction and respect
‘until his death in 1892,
“¥2"T @ame to my office at 6
a.m.,”’ thé marshal said, “and
Officer Logan told me the
Chinamen had had a row the
night before. Logan went to
breakfast and came back about
10:00 o’clock to, tell me that
‘they still hadn’t opened and
~ that something must be wrong.”

~ WITH LOGAN. and Ww. M.

Galloway (partner in the Doug-
lass Livery Stable, which faced
- Broad Street but adjoined the
McDonald Building at the rear),
* Marshal Magruder went at
once to investigate, Since the

and the solid facade prevented

~ passage to. the alley behind).

.. the party ee through thé
Douglass Livery Stable to peer
» through the. back, fence into
Joe. .Lee’s silént, empty back
VOrdi ecg hie ty
_ They saw nothing unusual ex.
cepl a cap lying ab the tau:
dye rear door. A cot hdd been
left leaning against the fence
«on, the livery stable. side;. the,

_ laundry was locked at the front -

ot

~

pop MMe sg

ae

near midnight, he heard a
fire alarm bell ringing (this
fire was much spoken of during
the inquest; it seems to have
burned a dwelling in Fourth
Ward belonging to a McClen-
non family on Avenue A, then

known .as Mill Street) but did

. Hot go out.

“party used: it to climb. over.”

, HAMILTON. OPENED. his
’ trunk to official search, display:

ing shirts and collars in an up-

per tray and other clothing be-

oW,, Underneath this bottom
layer olficer's found $20.97, eight
silver dollars of which were
discolored with blood.

Fifteen dollars, Hamilton
said, had been borrowed from
Sue Perkins-who, sworn in,
promptly dented any loan to or
Visit from Tamillot ot ‘Wes.
day,

Dr. Henry Battey gave a de-

tailed report on- Joe Lee's.’

His was “the last public han
in Fléyd Colnty ...a
. wowing eenagne: PEOPI SUS | Groyfe n

, News-Tribune agen

ne

By. ROGER AYCOCK

seashore be a

Cp SRE,

ye the
eae

rhe: a ;
a terrible noise next door and day
the sound of someone running © fir
out of the building and Scaling ~ We
the fence behind. She woke lier) a :

son, yourg Gus Paine, and sent ..
him at once for the police. ~ = *
Ja

DEPUTY SHERIFF gake’ «sp

Moore told inquest jurors that ~~ m:
Hardy Hamilton had told him an
in jail on Thursday that Dune .. to

Gwalthey and another Negro He

famed Aticat Chapman had (th
given him the money on Tues- nip
day night at Douglass’ Stable, roi

but that Hamilton later chang: a
ed his statement and confessed
to the assault. Deputy Shefiff » — >
Mathis ¢offirmed Moore's ac: —
count, adding that Hamiltonhad —. &
ana striking down both ©

Chinese mt Ape ncncng rok
a length df (Wosby-fotlr: nohiige
lunber--and: {6 throwitig his”
rude club tver the alley

Into Wilkerson’s Market yard. , ‘ha’
» Hamillof’s second statement ii
departed widely from his first. © aft:

He had stabled his team. af-
ter driving Dr. and Mrs. Wil- ~ sai:
liams home, he said, then had. car
gone over-the stable fence and
into the laundry about mid-+ °
night. D

“The little Chinaman heard tim
me,” he sald, “and | knocks) tin
ed him down with a scantling Pla
and went in the house and hit to!
the big Chinaman three or Rei
four times. [ took ten or twelve gor
dollars out from under the pile “dh
low on his bed. The only light.» sto:
J had was a candle thal was” ket
burning When | came In." ste:

He had asked Charlie Rich: «pe
ardson to go with him, but © of

Richardson had refused. ‘‘No- A

body else had anything to do —— ab:
with it,” Hamilton said. Chi
“den
CORONER DRENNON, skep- | 9a

tical from long experience, or- “ Me’
dered the well behind the .. co\
laundry cleaned out in a search | tir
for a discarded weapon. Of!
Charlie Richardson, also a %*,she:
Douglass employe, had slept)! ab
at the stable on Tuesday night,.4,%
“T went to bed about 8:30," 5%" 0
he told the coroner's jury,\4*
“Hardy Hamilton went out and, sor
came back about 10:30 and ask- # suc |

sal

a

Several other businesses shar-
ed the site with Joe Lee's Chin-
.@sé Laundry; no city directory
_ is,available for 1889, but the in-
quest itself establishes that a
Négro restaurant stood next to
the laundry and that a plumi-
ber named Maguire kept a shop
between the restaurant and the
Wilkerson Marketi! 'Thé. alley
. that runs today from Rast First
Street behind the Coosa Valley
» Book Shop and alongside Dan-
lel. Printing Company was in
use at that time, apparently
» paralelling the back of the
», McDonald. building to the left
Arid the woodeh-Walled fence of
» the , Douglass Livery . Stable
te oes lot extended from. 306-
» through, the block td» East
‘First Street below the post of-
fice) to. the right.

hee A LARGE part of this area
# > Was left open in-1889, as today,

as
"

ae

for delivery Service to the rear see: ON, very side; the:
f Broad Street busines hots. Party used it to, climb “over.

Broad Street completely -

¢

aim we of? sya i

Officer Logan told me the
Chinamen had had a row the
night before. Logan went to
breakfast and came back about
10:00 o’clock to tell mé that
they still hadn’t opened and
that something must be wrong.’

WITH LOGAN and W, M.
Galloway (partner in the Doug-

lass Livery Stable, which faced

Broad Street but adjoined the

~ McDonald Bilal attherear),
0

Marshal Magruder went at
once to investigate, Since the
laundry was locked At the front
and the solid facade prevented
passage to the alley, behind,
the party: passed through the
Douglass Livery Stable to peer
through the.back. fence into
Joe Lee’s silent, empty back
yard. i

They saw nothing unustial ex-
cept a cap lying at the laun-
dry’s rear door. A cot had been
left leaning against the fence
on, the livery. stable side; the

© DEPUTY CLERK PATSY DUNAWAY SHOWS OLD INQUEST RECORDS
te oner's report on murder of Chinese Joe Lee, 1889

*,

Pa

near midnight, he heard a
fire alarm bell ringing (this
fire was much spoken of during
the inguest; it seems to have
burned a dwelling in. fourth
Ward belonging to a McClen-
non family on Avenue A; then
known a8 Mill Street) but did
nol go out,

» HAMILTON OPENED his
trunk to official search, display:
ing shirts and collars in an up-
per tray and other clothing be-
ow, Underneath this bottom
layer Officers found $20.97, eight
silver dollars of which were
discolored with blood.

Fifteen dollars, Hamilton
Said, had been borrowed from
Sue Perkins—who, sworn in,
promptly denied any loan to or
Visit from Hamilton on ‘Tues-
Gay, os

Dr. Henry Battey gave a de-

tailed report on Joe Lea's:

ry

News-Tribune staff photo

Po

fait Writer

pe atl

a terrible noise next door and
the sound of someone running
out of the building atid scaling
the fence behind. She woke lier
son, young Gus Paine, and sent
him at once for the police.

DEPUTY SHERIFF | Jake
Moore told Inquest jurors that
Hardy Hamilton had told him
In jail on Thursday that pune
Gwaltney, and another Negro
named Aucat Chapman had

iven him the money on Tues:
day night at Douglass’ Stable,
but that Hamilton later chang-
ed his statement and confessed
to. the assault. Deputy Sheriff
Mathis confirmed Moore's ac:
count, adding that Hamiltori had
admitted to striking down both
Chinese with a Viet " sh
a length of iwo-by-fotir: neh.)
lumnber—andl t0) throwin}
rude club avér the alley
‘into Wilkerson’s Market yard.

Hamiltoiis second statement

~ departed Widely from his first.
He had slabled his team af-
ter driving Dr. and Mrs. Wil-
liams home, he said, then had
gone over the stable fence and
into the laundry about mid-
night.

“The little Chinaman heard
me,” He said, “and J knocks \.
ed him down with a scantlin
and went in the house and h
the big Chinaman three of
four Himes, | Look ten or twelye
dollars out from under the pil
low on his bed. The only light
I had was a candle that was—
burning When | camein.”

He had asked Charlie Rich
ardson to go with him, but
Richardson had refused. “No-"
body else had anything to do,
with it,”’ Hamilton said. ae

' Fy ink

CORONER DRENNON, skep- >
tical from long experience, or:
dered the well behind. the
laundry cleaned out in a search...
for a discarded Weapon... aay

Charlle Richardson, also a °°
Douglass employe, had slept
at the stable on Lie ah

“T went to bed about 9:30," °
he told the coroner's .. jury.
“Hardy Hamtlton went out and
came back about 10:30 and ask-
ed me to go to supper with
him. We walked as far up
Broad Street as the Masonic
Temple and | came back to the
stable. | knew he wanted to _
rob somebody, but did not.
know who it was.” i

W. M. Galloway, James Dou-
glass’ partner in the: livery
stable, had found the tip of a
collar button in ashes taken

g

welt

Bs
be

j
'
‘

ST le eT


cs f

i firmed his Undings.
» Josephihé Clark, operator of
the eating, house adjoining the
laundry, * W: Rarleantng, up, het
kitchen afterya day's busin

She said, When she heard a
sound at her back door ‘like
somebody, Walking around out
there.” She Hurriéd through
her. Work ‘and welt to bed
» > around 11:00 p.nt.—to be awak-

55,

| B AYCOCK
june Staff Write

the sound of someone running

him at oticé for the police. .

Moore 16
Hatdy Hamilton had told him
An jail on Thursday that Dune
Gwaltney and another Negro
Hamed Auedt Chapman Had
aire him the money on ‘Tues-

ay hight at [ouglass’ Stable,
bul that Hamilton later chang-
ed hils statentent and confessed
to the assault, Deputy Sheriff

‘count, adding that Hamilton had

Chinesé. with a “scantling’—

a length. of tivo-by-four-inch

lumber—and PS ERT his
e

four times. 1 took Len or twelve.
dollars out from under the pil-
ow on his bed. 'The only ght

urning when I came in.” pia):
He had asked Charlie Rich:
paegn era with him, but
tichardso6ni

vith it)" Hamilton said.) 3":

“‘Mathi§ confirmed Moore's ac-«

‘admitted to striking down both ©

departed widely from his fret, :
He had: établed his team ale >

sort had refused. “No-) —
ody else Had anything to do’

ened by & idog’s barkifig and _

zi i if ia h ; te ce :
terrible hoise next door and

Wiinan ‘fii “ en) io.
ring to Ah Chin, since Joe Let
apparently never regained con-

. Sciousness) that three men had
~ done the deed.

First, hint of motive caine
with the statement to Galloway
by M. G. MeDonald, original
owner of the Third Avenie
building and currently operator
of an extremely prosperous

' business at 211 Broad Street,
i that Hardy Hamilton on Mon-

tLe Rite eee

\

‘

day had bought $78 wotth of

~~ furniture at his store and on
“ott Of the bullding and Sealing”
‘the fence behind. She woke Her
Son, young Glis Paine, and sent

Wednesday morning had made
a substantial payment.

TESTIMONY OF Suc. Per-

ye RR eR (+. king established that she had
if bEPUY Ser Jake»

ld ipAuctt jurors that

and had not seen Hardy Hamil-

spent Tuesday Hight with her
mother: i the Fourth. ward

ton since the previous Sunday,
Hardy, she. sald, boarded
(though, he. spent most of his
nights in the. stable's bunk.
room) at Hattle Phillips’ place,
a restaurant on West Fifth
Avenue near the bridge.

mis Night stable doorman Dave

Bird had worked for Douglass
& Galloway for. five years,
Standing duty every Tuesday
night. Hamilton had stabled his
team a little after 10 p.m,

‘Bird said, and had called Char-- °

lie Richardson out. The two
had gone up Broad Street, and
Bird had closed the stable soon
afterward, da
“Charlle was ti bed,” pled
sald, In effect, “when Hardy
came back about 12:00 o'clock.
J didn’t hear about the China:
men till the text morning.
Dune, Gwaltney, a ‘summer:
“me carpenter, and winter
time hunter,’ had gene to
Plainville,on Tuesday by train
to hunt with Charlie Inglewood.

’ Returning to Rome; he had

i had was a candle that was

gone downtown in the evening,
“drinking a little,” and had
stopped at Thoinas’ Beef Mar-
ket around 5 p.m. His arrest

., Stemmed, apparently; from his

perilous curiosity; by testimony
of streetcar motorman Milton
Walden, Gwaltney had sasked
about the attack upor . the
Chinese while riding on Wal-

den's araaton hefiwadnn 0 -

ye AL: eg
sa RTS 4 Lf

ee ee Fe oe ee
er

La Ah itig! { Vieth fiber,
and lett the Yeiser kitchen
around midnight to look in at a
dance held at Higginbotham’s
Hal! on Broad Street—a social
revel interrupted by the clang-
ing of Rainbow Fire Com-
pany’s engine speeding to put
out the McClennon fire in
Fourth Ward. Pentecost s ques-
ponte was brought on by thé
fact that Hardy Hamilton had
telephoned the Steele & For-
. tune store earlier, asking that
Smith spend the night with
him.”
Resworn later, Smith Pente-
_ cost recalled having helped to
pull the Raihbow Fire Com-
pany engine. Mis story was cor:
robrated by Gua Paine, the
» fame boy who had run for the
» pollee on Tuesday midnight:
_ the, two had met at Hattie

eat

.., Phillips’ restaurant on Weel

“Filth Avenue and had .gone
~to a show at the opera house

ng over t
_ Servant girls at Dr. Yelser's,
MATTIE REECE, who was

i pre pry Bean sire before “'walk- .-

‘to have married Hardy Hamil:

ton on. April 1, worked—and
lived—at Shorter College, in the
towered old buildings later to
be the home of Rome High
School. She had looked over
furniture at McDonald’s store
at Hamilton’s request, but had
not seen him since Monday af-
ternoon; when he drove a
horse past the Buena. Vista
Hotel at. Sixth Avenue and
Broad Street,

_ An axe was exhibited. pe.
uty Sheriff Mathis identified
t as the one taken:from Ma-
Uire’s well on the lot adjoining
the laundry and, . Josephine
Clark’s restaurant. Dave Bird,
hight man at the Douglass
Livery Stable, also identified
t

“Last time I saw that axe,”
Bird said, “was when | used it:
Tuesday morning to cut fire-
wood.”

i Another Douglass driver,

Rete mew

es YY) UO 334 Seren
Special photo

JAMES DOUGLASS
Stable owner...

%

PT sah Beer

other persone who had enant

ill” to cottrt the °

“WELL remember the éxe

. cid, bree TTS
Chinaman,’ came out of the
laundry to draw a bucket of
water, The top of the well;
with its protective square hous-
ing and hand-crank windlass,
was half open, the little trap-
door ajar on its hinges.
“T knocked the little China: -
jMaty over with the axe,” Ham:

“ilton ‘said. “IT went in and saw

the big oie silting on the side
of the bed. I hit him a few
times and knocked him back -
and got the money out from |
under his pillow. { went through
two trunks ahd a valise, all uri:
locked. There was a candle
burning while | looked, and the .
axe was standing by the doo
Whon J came oul, the little
Chinaman was altting up by
the privy.) meme)

HE DROPPED the axe into

‘ Maguire’s well, two lols down,

the alley, and went back to his
room at the Stable: * eae

“Twas in bed,” ha said¢ “#

“whe DAV® Bik AME Bao ee

and asked me to ope the.
(back) door so he could see to +
gel some wood.’’ [It was ,not.*
until Wednesday morning that,+;
he counted the money he had.’
taken from beneath Joe Lee's. -
pillow.

Charlie Richardson, Hamil-%.
ton said again, had refused to},
join him in the raid. “I hever 4
told anybody else. Charlie said:

I ought to walt till Wednesday,:
when { would be on night duty,”
but J told him | wouldn't.”

His telephone call to the store.
of Steele & Fortune, resulting |
in the arrest of Smith Pentes 24
cost, Was simply explathed. ¢

“T was going to ask Smith © —
to spend Wednesday — night
with me,” he sald. “| was
afraid to sleep by myself.” i

JOR LEE died on February
9, four days after he was
struck down, and was buried »
on February 11 at Myrtle Hill
Cemetery. Little Ah Chin, ac- -
cording to the papers of late
historian John L. Harris (per-
sonal recollection in this case,
since Harris and Ah Chin were
of the same age and attended
the same Presbyterian Sunday =
School classes) lay in a stupor
for i before recovering,
Probably, the farrla account
surmises, gome relative of Ah).
Chin's came to look after him, /:
since he was incapable of carry:
ing on the laundry. business, 3%
Perhaps he was taken in by °%
‘Hape Sing, who for many years She
operated Rome's Chinesé laun+
dries and who was partner to, *
the unfortunate Joe Tayi who a
perished in the great firé that) =

Sati 9s

razed the McDonald Building.”
on May 31 of 1908, an

Hardy Hamilton alone was»).
convicted of Joe Lee's murder, « %
and a month or two later wag

officially hanged near the. i

Rome Railroad between Romé @)_
and Forrestville, Pe 9

;

citement,” Harris recalled'in «

7 yy “ee
Ye invalighla mannee aad Ag”

i,

lta
uld sp Bak
© pat
{ ay : \
hain we

‘ ed.
if huts

I" needy)
‘had anss”

entbuild-
one Year &
enter » Of”

Inve DRS i

men The ‘

ndau: :

) a wi

| stabled
in visit, a

king, Back’ ny

ile later,

"ate ye

HO HBG Be
Lou glass’ a

Doctor AG
Afee and a
firmed his fin

ndthi 8.
 Josephing Clark,

anata of
“the eating house. adjoining the »

laundry; Was cleaning up her
kitchen after, ¢ a day’s business,
she said, when she heard a

~ sotind at her back door ‘like |
Ge

alking around out
there.» Shé hlirried through
“her work: and went. to. bed

pica 11;00.p.m.—to be atak-
ibited 4 td

dog's barking and

~ Chinaman’”’

_ Maze of fences dnd Alleys linked livety stable with Chinese laundry

from the stable’s fireplace. He
also had been told “by. the
(probably refers
ring to Ah Chin, since Joe Lee
apparently never regained con-
sciousness) that three men had

~ done the deed.

First hint of motive came
with the statement to Galloway
by M. G, McDonald, original
owner of the Third Avenue
building and currently operator
of an extremely. prosperous
business. at 211 Broad Street,
that Hardy Hamilton on Mon-

servant girl at Dr.  Yeiser’s
home on Third Avenue, taking
Orange McDonald with him,
and left the Yeiser kitchen
around midnight to look in at a
dance held at Higginbotham’s
Hall on Broad Street—a social
revel interrupted by the clang-
ing of Rainbow Fire Com-
pany’s engine speeding to put
ollt the MecClennon fire in
Fourth Ward. Pentecost’s ques-
tioning was brought on by the
fact that Hardy Hamilton had
telephoned the Steele & For-
tune store earlier, asking that
Smith spend the night with
hit.

Resworn later, Smith Pente-
cost recalled having helped to
pull the Rainbow Fire Com-
pany engine. His story was cor-
robrated by Gus Paine, the

same boy who had run for the
polic e on Tuesday midnight;

i}, mat at THalhi+

“News-tabihd staff ahi

_setle OF RINE, BETWEEN POST OFFICE REAR AND THIRD AVENUE CAR PARK.

r handful of silver»

He was crouching in the sha- -

dows when Ah Chin, “the little»)
Chinaman,” came out of the
laundry to draw -a bucket of
water. The top of the well,
with its protective square hous:,
ing and hand-crank windlass, ,

was half open, the little trap-

door ajar on its hinges.
“I knocked the

Man over with the axe,” Hams
“ilton said. “JT went in and saw’.
the big one sitting on the side ’
of the bed. | hit him a few . bh
times: and knocked him set

and got the money out from!

+h)
¢

under his pillow. | went through |
two trunks and a valise, all un-:
locked. There was a candlé
burning while | looked, and thé:
axe was standing by the door”
When I came out, the little . Phy

sf

the privy. phe

Chinaman was sitting up b me

ie
HE DROPPED the axe intow

ittle Chinds®

i

ha ¥
A


40 The

“a a

pe
ga —

> a et 7

a

’
Ff

~>-
, 4g
; i ‘
f
{

Master

Detective

Burney Ingram, youthful night watchman, and husband of the slain woman, giving detailed written
statement to State officials of how he found the bodies of his wife and child

horribly battered and crushed. Beside her body lay a blood-
stained flat-iron, obviously the instrument of death.

The child, Lloyd, had been strangled; his distorted body
and discolored face furnishing mute evidence of his death
struggles.

Why had the child been slain? Whatever the motive, out
of the past of its mother or because of its father, could
the killer not have spared the innocent baby from his death
plot?

WE turned to examine the room. Close beside the bed
lay a carpenter’s rule, but there was no sign of cord
or other instrument of strangulation.

A search of the small house failed to yield a single clue.
The rear door we found to be unlocked. A burglar might
have entered and have slain Mrs. Ingram and her baby,
when she discovered him, to prevent an outcry. Ingram
informed us that the rear door never was locked because
the key had been lost. Reconstructing the crime, it seemed
that the slayer had entered the rear door, traversed the
combination kitchen and dining room, picking up the iron
there; then crept on to the bedroom to hammer out the
life of the woman and strangle the child.

The flat-iron-and the carpenter’s rule were subjected to
the closest scrutiny by Captain Jeff Wright of our Finger-
print Bureau. All marks had been obliterated as though by
a careful and experienced hand, They contained only in-
distinguishable blurs.

Burney Ingram found the bodies, and so it was only
natural that he should be the starting point of our investi-
gation. While we questioned him carefully, detectives were
dispatched to check up on his actions during the night, and
we soon were satisfied that he was innocent of any knowl-
edge of the crime. He established a.perfect alibi at the
mill where he was employed, numerous co-workers testi-

fying that he had been on duty every minute of the night
of the tragedy.

This fact was established quickly, almost before the news
of the tragedy had trickled through the neighborhood.

Meanwhile Woodall and Skelton awoke to find that their
dim memory of the rude awakening and the squeaky voice
was not a figment of tkeir imagination. Questioned, they
volunteered what they knew of their early caller.

This visitor, we were sure, was the slayer. But no one
had seen him, and all we knew of the shadowy murderer
was that he had a squeaky voice.

Carefully, painstakingly, we then set about finding a man
with this strangely described voice.

That was our only clue, and we followed it relentlessly.
As we did so, by-ways of investigation were opened and
followed through. They seemed full of promise and led
us far afield, but throughout the long and tedious investiga-
tion we never lost sight of what we considered the key to
the mystery, a high-pitched voice of strange quality.

Find the man with the squeaky voice became the slogan
of all who pursued the murder trail.

Paul Donehoo, famous blind Coroner of Fulton County,
called an inquest for that afternoon, and when news of the
murder was sent broadcast, a wave of anger held the city
and state in its grip. The utter brutality of the crime, and
the fact that an innocent baby had suffered at the hands
of the fiendish slayer horrified everyone. Naturally, this
added to the intensity of our efforts. But in spite of all our
painstaking work, we were ynable to turn up any real,
tangible lead. We were unathe even to learn whether the
slayer had walked to the house or ridden there in an auto-
mobile. As far as physical signs were concerned, the trail
apparently was well covered and cold. The slayer had
vanished.

By the time the inquest began, we had rounded up a

number o

Charles
the stand
It was t
school, fr
usual to |

wat
an iI
She testifi
only rom
Ingram
Wooda!
the voice
The Cc
from the
had been
With t
crime wa
that the s
From e
demande
was the n
Was th
ordered n
Was it
Ingram’s
localities:
Throug
uary 27t
before tl
masked b
gers hac
the form
the In;
Lindsay
ter they
an entra
house,
and boun
gram, M
brother-i:
him outs!
him seve
Ingram
nized se
bers of t!
on her
the flogg:
rounded
rested.
It see
enough
member
band, or
band’s f
committe
der. It \
that the
slipped
house
Mrs. In
then re
possibilit
child bei
had as
thought
Lloyd wi
One bb
assemble
bers of °
band in
station ;

TS TT —— A —


wh GAS (Fulton) July 6, 1928.

» elec.

THE CLUE

Find the man with the squeaky
| voice! This was the strange
! order sent out to every detective
and policeman on the Atlanta,
| Ga., police force. Would any
f of the suspects brought in,
| when put to one of the

most amazing tests in

the history of crime,

reveal his guilt

| in his voice?

N a quiet back street of
the residential section
of Atlanta, Georgia,
on February 4th, 1927,
reigned the silence and

dimness of the small hours
of the morning.

This silence was broken
to the semi-consciousness of
F. O. Woodall and D. C.
Skelton, room-mates, by a
sudden pounding on the
front door of their dwelling
in Ashby Street. They were
startled into wakefulness.

“What do you want?”
one of them called out.

The answer came in a
high-pitched, squeaky voice
—a-strange voice that they
will remember to the end of
their lives.

“I’m looking for the In-
grams. They moved from
Lindsay Street and I’ve’got
to find them.”

Sleepily and without get-
ting out of bed to see who

| the stranger might be, they
| directed the owner of this
unusual voice to the house
next door. They heard foot-

38 -

ca

(Above and Right) The
Ingram cottage in Ashby
Street, with a diagram of
the .bedroom which was
the scene of the crime.
A cross shows where the
blood-stained flat-iron was
found

(Left) Mrs. Lottie Belle
Ingram, who with her
sixteen - months - old son,
was brutally murdered in
her home by a mysteri-
ous nocturnal visitor

laa

0.

steps m
the conc

Echoe
the ear!
had a «

After
and Ske
desertec

Short
ful nig!
stillness
walked
thought
ceive fr


PeEer

By Detectives

JOHN STARNES

and
THOMAS LANFORD

Formerly
of the Homicide Squad,

Atlanta, Ga., Police Dept.

As told to
JAMES A. BELFLOWER

As he briskly mounted the steps ot
his, three-room cottage, he was struck by
the eerie stillness that hung like a pall
about the place. There was no sign of
his wife preparing breakfast, nor could
he hear the lusty prattlings of his child.
Perhaps she and the baby were yet

asleep.

Ingram inserted a key in the door,
pushed it open and stepped inside. He
was struck numb with the. ghastly hor-
ror that met his gaze, for before him on

WA

Sketched by Leonard Whitney

steps move from their door, down the front steps, on to
the concrete sidewalk of the street. Then silence again.

Echoes of that voice seemed to linger in the stillness of
the early morning. Its pitch and timbre were peculiar; it
had a quality of strangeness. i

After a short conversation about the incident, Woodall
and Skelton fell asleep. Dimness and silence again wrapped
deserted Ashby Street.

Shortly after 6 a. M., footsteps of Burney Ingram, youth-
ful night watchman at the Exposition Mills, broke the
stillness. He was whistling merrily in the chill air as he
walked toward his home with buoyant strides. His only
thoughts were of the cheery greeting he knew he would re-
ceive from his young wife and sixteen-months old son.

their bed lay the blood-stained forms of
his wife and baby—cruelly murdered.

Sobbing wildly, he fell upon his knees
beside the still forms. For a moment,
he was paralyzed with sorrow. Then, as
some realization of the brutality of the
crime came to him, he uttered a prayer, grief-stricken and
fervid, that the slayer be found and the vengeance of the
law be taken in full measure.

For a brief time he remained in silent and reverent wor-
ship beside the bed. Then he rushed from the house to
sound the alarm and summon help.

The call came to-the Atlanta Police Headquarters at 6:30
A. M., Police Captain Grover C. Fain receiving it. A short
time later, Detective Lieutenant T. D. Shaw, now dead;
my partner, Mr. Lanford, and myself hurried to the scene.

Upon our first view of the bodies, we realized that we
were confronted with one of Atlanta’s most wanton killings.

Lottie Belle Ingram, the wife, had been attacked ap-

‘parently while she slept, her head and face having been

39


heer a ee ie i sore

heard a a terrible holse next door and
ging. (this the sound of someone. running
wok during. out of the building and scaling
ngsté have ‘the férice behind. She woke Her
in: Fourth "on, young Gls Painé, and sent -

him at once for the police. -

Moore told inquest jurors that
‘Hardy Hamilton had told him
3. if jail on Thursday that Dunc
Gwaltney. and another. Negro
‘named Aticat Chapman had

day ight at Douglass’ Stable,
* but that Hamilton later chang-
_ ed his statement and confessed
to the assault: Deputy Sheriff
~ Mathi8 confitmed Moore's ac-
~ cdtittty adding that Hamilton had
admitted to striking down both
- . Chinese. with a. “scantling’—
a length cof two:

~

er the alley

rude club ov

ay Wilkerson’s Markét yard.
*< Hamilton's second statement
+ departed widély from his first.
)* Hé had Sstabled his team. af-

+ ter driving Dr. and Mrs. Wil-

_» liams home, he said, then had
Bone over. the stable fence and
nip ‘the lauhdry about mid:
g oh ae 43 SEE | i
“The little Chinaman heard

ed him ort ith a seantlin
and went th the house and hi

_ four times. { took ten or twelve
ie dollars olit [fom under. the pil-

| had was. a candle that was
urning when] came in.” *
eh i asked Charlie Rich-

6 gd with him, but
ichardson had refused. ‘‘No-

7

~~ with it; Hamilton said.

_ . tical from long experience, or-
» dered the well behind . the

"for a discarded weapon.
Charlie Richardson, also a
_») Douglass employe, had slept
At the Stable on Tuesday night,
 “Twent to bed about 8:30,"

he told the coroter’s jury,
“Hardy Hamilton went out and
~ came back about 10:30 and ask-
~- ed me to go to supper with
him: We walked aa far. up
‘Broad Slreet as the Masonle
Potnpls and} came back to the
stable. I khew he wanted: to

~~ rob. somebody, .but did no
# know who tt was,” Be iy.
Bee. Wi Ma ada f James Dou-
) glass’, ita a dn the livery
',» stable, had f

Und the.tip of a
cola “biitton ‘in ashes taken

>.» CORONER DRENNON, skep-

\. DEPUTY. SHERIFF Jake

given him the money 6n Tues-

_ Wo-by-four- neh
lumber—and to throwing. his
ence —

“me,” he said, “and J knock:
the big Chinaman three or —

ow oh his béd. The only light

* laundry cleaned out in a search

Se

ae

day had ous $78 worth of
furniture at his store and on
Wednesday morning had made
a substantial payment.

TESTIMONY. OF Sue Per-
kins established that she had
spent Tuesday night with her
mother in the Fourth Ward
and had not seen Hardy Hamil-
ton since the previous Sunday.
Hardy, she said, boarded
(though he spent most of his
nights ,in the: stable’s burik-
room) at Hattie Phillips’ place,
a restaurant. on West Fifth
Avenue near the bridge.

Night stable doorman Dave
Bird had worked for Douglass
& Galloway for. five years,
standing duty every. Tuesday
night. Hamilton had stabled his

_ team. a;little after. 10 p.m.
‘Bird said, and had called Char-

lié Richardson out; The two
had gone up Broad Street, and
Bird had closed the stable soon
afterward.
“Charlie was in bed,” Bird
Said, in effect, “when Hardy
came back about 12:00 o'clock,
I didn’t hear about the Chiha-
men till the next morning.
Dune Gwaltney, a “summer:
time carpenter, and winter
tine hunter,’’ had gone to
Plainville on. Tuesday by. train
to hunt with Charlie Inglewood,
Returning to Rome; he had
gone downtown in the evening
“drinking. a. little,” and had
stopped at Thomas’ Beef Mar-
ket around 5 p.m. His arrest
stemmed, apparently, from his
perilous curiosity; by testimony
of streetcar motorman Milton

_ Walden, Gwaltney had asked
body else had anything to do ‘

about the attack upon the
Chinese while riding on Wal-
den’s streetcar between 8 and
9 a.m., 4 good two hours before
Marshal Magruder’s party dis-
covered the unconscious vic-
tims. Gwaltney also had asked
Officer Logan at a local barber
shop on Wednesday morning
about the attack.

OTHER TESTIMONY, much

» of it totally irrelevant and
- some given by witnesses with
~ such unforgettable names as

Smith Pentecost and Orange
McDonald, today offers more
Information . relating. to the
Old Rome of 109 And Ita cus
toms than to the assault upon
poor, diligent Joé Lee and
simple little Ah Chin,

Smith Pentecost, aged 20,

drove a delivery wagon for —

Steele & Forturie;. oi. Tuesday
night he had gone to see a

‘ ‘ ‘ CP Loiern ge, it it
towered old buildings tater to
be the home of Rome High
School. Shé had looked over
furniture at McDonald’s store
at Hamilton's request, but had
not seen him since Monday af-
ternoon, when he drove a
horse past the Buena Vista
Hotel at Sixth Avenue and
Broad Street.

An axe was exhibited. De-
puty Sheriff Mathis identified
it as the one taken from Ma-
guire’s well on the lot adjoining
the laundry and Josephine
Clark’s restaurant. Dave Bird,
hight man at the Douglass
ets Stable, also identified

“Last time J saw that axe,”
Bird said, “was when | used it
Tuesday morning to cut fire-
wood.”

r Another Douglass _ driver,

en ere

“ty Siocidt oes ;
JAMES DOUGLASS

Stable owner

other persons who had spent
Tuesday night at his house, all
sleeping in the same room.
Hardy Hamilton's second
Statement was more explicit,
and more credible.

“LAST TIME I saw the axe,’’
he said, ‘was when } dropped
It in the well. T got there by
yang over the fence, went
down the alley towards the
livery stable and over the
fence by the blacksmith shop.
1 pulled the axe through a
grack in the pate. { didn't
Seo anybody (ll 1 pot back In
the stable, . .'this was after
the fire alarm. { didn’t sleep
much that night...”

“J don't know what lime |
started out td do the deed,” he
said. “I went around by Jose-
phine Clark's and got over the
fence.”

caken from beneath Joe Lee's
pillow,

Charlie Richardson, Hamil-
ton said again, had refused to
join him in the raid. “I never
told anybody else. Charlie said
] ought to wait till Wednesday,
when [ would be on night duty,
but I told him J wouldn't.”

His telephone call to the store
of Steele & Fortune, resulting
in the arrest of Smith Pente-
cost, was simply explained:

“T was going to ask Smith
to spend Wednesday night
with me,” he said. '{. was
afraid to sleep by myself.”’

JOE LEE died on Febrtiary
9, four days after he was
struck down, and was buried
on February U1 at Myrtle Hill
Cemetery. Little Ah Chin, ac-
cording to the papers of late
historian John L. Harris (per-
sonal recollection in this case,
since Harris and Ah Chin were
of the same age and attended
the same Presbyterian Sunday
Schoo] classes) lay in a stupor
for days before recovering.
Probably, the Harris account
surmises, some reélative of Ah
Chin’s came to look after him,
since he was incapable of carry:
ing on the laundry. business.
Perhaps he was taken in by
Hape Sing, who for many years
operated Rome's Chinesé laun-
dries and who was partner to
the unfortunate Joe Tayt who
perished in the great fire that
razed the McDonald Building
on May 31 of 1908,

Hardy Hamilton alone was
convicted of Joe Lee’s murder,
and a month or two later was
officially hanged near. the

Rome Railroad bettveen Rome

and Forrestville.

“t WELL remember the ex-
citement,” Harris recalled in
his invaluable papers, now on
file under the careful hand of
Director Beatrice Millican in
the Carnegie Library's Hens
derson Room. “] was in the
seventh grade at the time,
and people talked of nothing
else. . .[t was the last public
hanging In Floyd County,”

He recalls too that some-
one, perhaps the unidentified
fellow countryman who took
care of poor Ah Chin after the
tragedy, also looked after the
new grave on Myrtle HHL. For
months after the funeral, Hare
ra sald, that humble plot waa
marked by a small china bowl
which, in observance of cus-
toms strange and outlandish to
curious Romans, was. filled
daily with rice and dried nuts
in memory of Joe Lee, laundry-
man, lying alone among strang-
ers in an alien land. ee


y
|

=

HANCE, William Henry, black, elec. GAS (Muscogee) March 31, 1994

Hance is put
to death in
electric chair

> ‘Forces of Evil’ killer
dies after U.S. Supreme
Court rejects final
appeal

By Harry Franklin

Staff Writer

JACKSON, Ga. — “Forces of
Evil” murderer William Henry
Hance was executed Thursday
night after the U.S. Supreme
Court rejected his final appeal.

Hance, convicted in the 1978
bludgeoning death of Brenda
Gail Faison, 21, of Columbus,
was declared rem
dead at 10:10
p.m., 25 min-
utes after the
execution
procedure

began.
The sched-
uled 7 p.m.

execution
had been de-
layed while
the U.S. Supreme Court consid-
ered a final appeal. It was
rejected on a 53 vote, with
Justices Harry Blackmun, John
Paul Stevens and Ruth Bader
Ginsburg, dissenting.

Blackmun, who recently ‘said |;

he would no longer support any
death sentences, said he would
have objected to Hance’s execu-
tion in any case.

“There is substantial evidence
that William Henry Hance is
mentally retarded as well. as
mentally ill. There is reason to
believe that his trial and sen-
tencing proceedings were infec-
ted with racial prejudice,”
Blackmun wrote.

Georgia Department of Cor-
rections: spokeswoman Vicki
Gavalas said Hance appeared
very upset after being told about
9:15 p.m. that the court had
rejected his final appeal. Ap-
peals were rejected’ earlier
Thursday by the Georgia Su-
preme Court and US. District
Court Judge J. Robert Elliott of
Columbus.

Once of Hance’s attorneys,
former Columbus state Sen.
Gary Parker, appealed on
grounds that Hance is mentally
retarded; the jury that sen-
tenced Hance, who was black,
was racially biased; and that a
juror claims she never voted
inside the jury room to impose
the death penalty.

Hance was “not in very good
spirits” during the day but
talked to, counselors and the
prison chaplain, said Gavalas.

“He’s elected not to make an
Official last statement, but said
he would .make a statement

_ from the chair,” she said.

Hance’s__ ex-wife, Wanda
Hance Johnson, their daughter,
Lekeksha,. -and his . sister,
Yvonne Hance Boyd, visited
him, but left the prison before 5

. P.m,,,Gavalas said. —

A last meal: was taken to his

holding cell adjacent to the
electric chair about 5 p.m.,

Gavalas said. It was the same
meal served other inmates —
burritos —- because Hance did

. not request a special meal, she

said.
The state Board of Pardons

‘and Paroles cleared the way

Wednesday for Hance’s execu-


ef
™:
‘

. Court: for the. M

Inmate dies
In electric chair
for 78 murder

bf es :
‘Forces ofvevil’ killer

Mma Ragen be. KARTE oe
rejected. by
By Peter Mantius
STAFF WRITER

illiam Henry Hance

was executed Thursday
-night:in G ’s-elec-

tric chair for the 1978 murder of

a Columbus Prostitute after the

.S. Supreme Court rejected hi s i

final appeal... ; aed

The execution, scheduled for
7 p.m., was del ed. for, More.

than two hours by Justice Antho-
ny Kennedy while the.coi
sidered the appealy Corré
Department, spokeswot
Gavalas .sdid- Hance gare:
very upset after being to dof the
court’s rejection, which’came
about 9:15, Appeals were reject-
ed earlier Thursday by the Geor-
gia Supreme Court and a US.
District Court.
“We just have to keep going
until we get' someone to under-
stand how ugly this case is,”
Hance’s attorney, Gary Parker,
had said after the’ state court
turned down, th appeal in mid-
afterngon. The. ‘USS,,. District

uit tor the Middle* District of
Georgia rejected thé appeal late

$s final appeal
reme Court

ae
ae tte ty
ate}:

Pl
t

|:-¥ery, good spir-

Shaken by'court’s denial
" Hance declined the offer of a
special last meal, instead eating
. the dinnerpbeing served to the

;

a ey inmates: burritos"

“its; “he’s very...
shaky,” Gavat
las. said \ after:
of the District’
tion of the. ap
peal, She. sald,
‘he calmed down’:
“afters ,;. talking”.
with a chapTain, i
He was pronounced”
f 10;10:p.m. sey

?

Hance, then a soldier at Fort

Benning, ‘strangled Gail Faison
shortly after Columbus police re-
ceived crude notes-signed by the
“chairman” of the “ orces of
evil” warning that she and other
black women would die
Hance was the 18th murderer
electrocuted by the state since
the U.S: Supreme Court allowed
states to restore the death penal-
ty in 1976. is eS
His case drew nationwide at-
tention in recent weeks after one
of the jurors at his1984 sentenc-

‘ing trial claimed she was intimi-

dated into voting for the death
penalty, 5
In addition, two psychiatrists
testified that Hance was mildly
retarded and had suffered brain
damage, while several former
teachers recalled that he was
mentally impaired. Fly te
.. A 1988 Georgia law bans the
/execution ‘of ‘the ‘retarded, ‘and
the state Supreme:Court has in-
terpreted that exemption to ap-
ply to all retarded prisoners on
death row, even if they were sen-
tenced to die before the law.
The Associated Press'contribut-
ed to this article. :


LEDGER-ENQUIRER

HANCE | From 31

Thursday, March 31, 1994

Columbus, Georgia

45-year-old former Fort Benning
soldier is to be executed at 7
p.m. today at the state
prison in Jackson.

Hance was convicted of mur-
der and sentenced to death in
the 1978 bludgeoning death of
Brenda Gail Faison, 21, of Co-
‘umbus. He was convicted of two
other murders — of Irene Thir-
kield and Karen Hickman — in
4 military court and sentenced
to life at hard labor. The
military sentence was set aside
in 1980, but he was never retried
because of the civilian convic-
uion.

Hance’s death sentence was
thrown out in 1983 by a federal
appeals court, and he was given
the death penalty again during a
1984 retrial.

Hance was accused of writing
letters signed “Chairman, Forc-
es of Evil,” which threatened to
continue killing black prosti-
tutes until Columbus _ police
caught a strangler believed to
be responsible for the slayings
of seven white women in the
late 1970s. Hance is black.

During a_ closed hearing
Wednesday morning before the
parole board, attorney Gary
Parker argued that Hance’s life
should be spared because:

® Doctors hired by the de-
fense claim he is mentally
retarded. A Superior Court judge
rejected that claim Monday,
saying Hance’s IQ of 75-79
doesn’t meet the state’s defini-
tion of mental retardation. A
Georgia law enacted after
Hance’s 1978 murders bars the
state from executing retarded
criminals, considered to be
those with IQs below 70.

> Juror Gayle Daniels, who
served on the panel that sen-
tenced Hance to death in 1984,
claimed she never voted to
impose the death penalty inside

the jury room, and only told the-

judge she had done so because
she felt coerced by fellow jurors.
An affidavit from a second juror
backs up Ms. Daniels’ claim that
the vote to impose the death
penalty was not unanimous, as
required by law.

> Relatives of Hance’s vic-
tims urged the state to spare the
man’s life.

Muscogee County District At-
torney Doug Pullen said he
didn’t understand the relatives’
stance.

“This man literally beat this
victim’s head off,” Pullen said.
“It had been scattered all over a
field with a blunt object. When
someone does that, I don’t care
what anyone thinks except the
jury — and the jury did speak.”

Daniels’ claim of being co-
erced is also questionable. After
jurors reach a verdict in a

capital murder case, the judge
asks them if the verdict an-
nounced is correct for each of
them, if it was freely given, and
if it’s still their verdict, Pullen
noted.

Coretta Scott King, the widow
of slain civil rights leader Mar-
tin Luther King Jr., also pleaded
for Hance.

“It would be a terrible trage-
dy if the state of Georgia
executes this young man amid
clear medical evidence that Mr.
Hance has been mentally re-
tarded since he was a child,”

she wrote in a letter to the
board.

The parole board has granted
clemency in only four 9 the 21
death-row cases it has andled
since the death penalty was
reinstated in 1973, according to.
spokesman Mike Light. In all
four cases, the judge or district
attorney who prosecuted the
case intervened on behalf of the
inmate, Light said. That did not
occur in Hance’s case.

The five-member board has
had sole power to grant clemen-
cy in Georgia since 1943, the

year that authority was shifted
away from the governor.

Two days after the sentenc-
ing, Ms. Daniels said she told
Hance and Columbus radio re-
porter Ed Harbison, now a state
senator, that she had not voted
to impose the death penalty. She
failed to go to the judge or the
district attorney because she felt
she would get in trouble.

“I feel terrible,” said Ms.
Daniels, who owns a travel
agency. “It’s as if I had the
chance to save his life and I
didn’t.”

murder 16. years ago

State board
‘won't grant
clemency

> Former Fort Benning soldier
scheduled to be executed today for.
conviction in “‘Forces of Evil”

From staff, wire reports

16 years ago.

in the Georgia Supreme Court.

Barring a last-minute stay from the courts, the ‘

The state parole board refu

sed to grant
gga Wednesday to William Henry ee
who faces execution today for his conviction in
one of the “Forces of Evil” murders in Columbus

In a secret ballot, the Board
. of Pardon

pi rejected pleas from Hance’s deorney as
amily, the victim’s relatives and a prominent:
eee leader to spare Hance’s life

“The punishment fits. the crime

* : ” : : oy
criminal,” said Chairman James T. eae me

Hance’s attorneys also had an appeal pending

e t

See HANCE, B3


LEDGER-ENQUIRER

Friday, April 1, 1994

HANCE / From Al

tion, voting by secret ballot to
reject pleas for clemency from
his attorney, relatives of his
victims and a civil rights leader.

Among those pleading for his
life Wednesday was Gayle Dan-
iels of Columbus, a juror who

served on the panel that sen-.

tenced Hance to death in 1984.
She claimed she never voted to
impose the death penalty inside
the jury room, and only told the
judge she had done so because
she felt coerced by fellow jurors.
An affidavit from a second
juror backs up Daniels’ claim
that the jury’s ‘vote was not
unanimous, as required by law.
Also pleading for clemency
was Coretta Scott King, widow
of slain civil rights leader Mar-
tin Luther King Jr. She said in a
letter that it would be “a terrible
tragedy if the state of Georgia
executes this young man amid
clear medical evidence that Mr.
Hance ‘has been mentally re-
tarded since he was a child.”
Hance held the rank of Spec.
4 and was an ammunition han-
dler with the 197th Infantry
Brigade at Fort. Benning when
he was charged in April 1978
with murder and extortion in
the beating death of Faison. Her

body was found March 30, 1978, »
’ in a wooded area off Cusseta -

Road near the post boundary.
Hance, 42, who authorities say

called himself “Chairman, Forc-

es of Evil,” was born Nov. 10,

1951, and grew up in Rockbridge .

County, Va. He graduated from
Lexington, Va., High School ‘in
1971 and joined the U.S. Marine
Corps. He reached the rank of
sergeant before leaving the Ma-
rines to join the Army. Hance
came to Fort Benning April 3,
1976. He was a boxer while in
the Army...

A Muscogee County grand
jury indicted him April, 7, 1978,
for the murder of Faison, whom
authorities described as:a prosti-
tute.

After his arrest, authorities
said he told. them, “I hate
prostitutes,” and that when he
was propositioned by one, it
“made me mad.”

_He was court-martialed © by
the Army on murder charges
stemming from the deaths of
two other women, Irene Thir-
kield, 32, and Army Pvt. Karen
Hickman. Hickman’s body was
found in a ditch off U.S. 27 on
Sept. 6, 1977. Thirkield’s' body
was found days after Faison’s
was recovered. All three women

died of head wounds.

A military court found him ., :

guilty on June 7, 1979, of the
murders of Thirkield and Hick-
man, whose bodies were found
on the military post. He was
sentenced to life at hard labor.
But in November 1980, the Army
Court of Military Review re-
versed the convictions. Army
Officials decided not to retry
those cases, because Hance had
been convicted of murder in a
civilian court.

The extortion charge in the
Faison murder stemmed from
Hance’s allegedly writing a let-
ter to Columbus police demand-
ing $10,000 to spare her life.
Authorities said in 1978 that they
found no evide anyone else
was involved with: the “Forces
of Evil.” Letters also were sent
to The Columbus Ledger and to
police threatening «to kill “a
black woman every 30 days”
until police solved the “Stocking
Strangler” murders of‘six elder-
ly white women in the Wynnton
area.

Though authorities said he
confessed to the killings, Hance
later claimed he was forced to
confess. He was convicted of
murder in the Faison slaying on
Dec. 15, 1978. The same Musco-
gee County jury that convicted
him recommended the death ,
penalty.

The Georgia Supreme Court
upheld the death sentence in
June 1980. The U.S. Supreme
Court in December 1980 and
again in May 1982 upheld the
conviction and death sentence.
But on Jan, 24, 1983, the 11th
US., Circuit Court of Appeals
overturned the death sentence,
but not the conviction, saying

- then-District Attorney William

Smith was wrong to make a
dramatic appeal to the jury in

» asking for the death sentence.

Also, the court found that the
trial judge improperly kept two
-women off the jury..

Hance was retried and again
sentenced to die for the Faison
killing on May 13, 1984. The
Georgia Supreme Court let that
sentence stand in July 1985. The
U.S. Supreme Court upheld the
sentence in October 1988 and
April 1989, and refused to hear

_ Hance’s appeal in October 1993.

Hance testified during his
May 1984 retrial that he was “in
tears” as he killed Faison and
Thirkield in 1978.

The Associated Press contributed to
this report.


HANCE, William Henry, black, elec, GASP (muscogee) March 31, 1994

- | @ LAW

: Doubts on Death Row

Amid charges of racial bias and irregularities in the
- | jury room, a former Marine is executed

By JILL SMOLOWE tially favored a life sentence. But mindful of
’ the prosecutor’s warning that Hance could
ILLIAM HANCE’S APPOINTMENT | be paroled in just a few years, they sent
e with the electric chair was set for | notes to the judge asking what a “life sen-
- 7 p.m. Thursday. On Wednesday, | tence” meant. The judge never responded.
e the Georgia board of pardons and | After that, several jurors began pushing for
- | paroles rejected Hance’s appeal for clemen- | death. When Daniels held out, the remain-
s | cy. The next day, both a state and federal ing jurors, impatient to get home for Moth-
- |. court refused to halt the execution; then the | er’s Day, decided to tell the judge that the
- | U.S. Supreme Court, after vote was unanimous. Dan-
ff | a two-hour stay, denied iels said she was so terri-
- | Hance’s appeal. Soon af- fied of getting into trouble
8 | ter, Hance was strapped for her intransigence that
il | into Georgia’s electric she answered yes when
chair. At 10:10 p.m. he was the jurors were polled on
t | pronounced dead. The le- their verdict.
e | galskirmishing had gained Her account has been
s | him exactly 190 extra min- corroborated by another
- | utes of life. juror, Patricia LeMay. In
- Hance became _ the an affidavit, LeMay, who
it | 231st convict to be execut- is white, also charged that
t | ed since the Supreme racism played a large part
y

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Pe Court reinstated the death in the deliberations. Ac-
co. , | penalty in 1976. But this ex- cording to LeMay, com-
oC P | ecution raised more dis- ments by other jurors
: , | turbing questions than THEMURDERER: Following a included “the nigger ad-
me + | most. For one thing, a vp as legal flurry, Hance mitted he did it” and “he
‘st ied in Georgia’s electric chair 4
eee woman who was among should fry:
ae : is | the 12 jurors to sentence Hance to death in The Hance execution comes in the
aa. 's_ | 1984 has sworn that she never concurred in | midst of growing scrutiny of the death
x 2 | the supposedly unanimous vote. There is penalty. A month ago, Supreme Court

ae also jolting evidence that race prejudice | Justice Harry Blackmun wrote an impas-
ae - | played a central role in the jury’s delibera- | sioned dissent in which he concluded that

7 | tions. Finally, Hance, a black former Marine | “the death-penalty experiment has
ee who was found guilty of failed”” By contrast, Jus-

bludgeoning to death two tice Antonin Scalia, a
prostitutes in 1978, may supporter of capital pun-
have been mildly retarded. ishment who is fed up
Douglas Pullen, a prosecu- with last-minute appeals
tor who helped investigate before the court, last
the first murder case, week chastised a defense
maintains that “at the very lawyer for waiting too
least, this man had a bor- long to seek a federal stay
» | derline I.Q. That is not re- for a Texas execution.
. | tarded” But Hance’s trial That outburst came dur-
3 | in a military court for the ing arguments for a case
t | second murder ended in involving a _ federal
, | the reversal of a life sen- court’s right to intervene
: | tence after jurors deter- in a state execution.
mined that he lacked the I Tempers may grow even
capacity for premeditation. THEJUROR: Tenyearsafterthe more heated when the
Two weeks ago, Gayle i Daniels says she dissented Justices begin debate on
‘ él rom the vote for death ; P
| | Daniels, the only black ju- a Missouri case, accepted
_| ror on the 1984 sentencing panel, swore in | last week, that provides room for a more
an affidavit that she did not vote for execu- | sweeping review of the appeals process.
tion because she “did not believe [Hance] | For William Hance, these deliberations
knew what he was doing at the time of his | will come too late. —Reported by Lisa H.
crimes.”. Daniels recounted how jurors ini- ' Towle/Raleigh

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TIME, APRIL 11, 1894


pany commander listetfed | . ’

“That’s Hance,” he said.’

cue, another CID agent '

the office and announced
found a girl who had seen
kield the night she
—in the company of a Fort
lier named “Hence.”
Henry Hance, 27, was
with to the CID office. CID
/fficer Marvin Bessom and
rd Fox began questioning
.m.

y denied everything. After

as questioned again until |

nd he still maintained his
10:30 he was allowed to go
guard, in the bachelor en-
rs.

stioning resumed at 8 a.m.

, Hance started deviating
vious story. Told that he
n with Irene Thirkield on
March 16th he admitted
een her. In fact, he said, he
or a ride to the Sand Hill
iad left her there, alive and

ut the Forces of Evil,

that he had heard of
ation. He’d even been in-
the Forces. Grilled more
it subject, he admitted that
ned. The Forces had
) kill him and his girlfriend

wedge in place, Officer Be-
ont Fox advised Hance that
found on one of the Forces
3 to Chief McClung was the
right middle finger. That
idmission that Hance had
letters—but only because
ced to do so.
illy admitted that he had
il Jackson and Irene Thir-
livered them to the Forces
he still insisted that he’d
to do with their deaths,
been present. Yes, he’d
shone calls, but only under
th.
lingly gave handwriting,
said he’d written another
he police chief should re-
y or the next.
h, questioning resumed at
this time by Agent Fox
1:50 p.m., Hance lit a
k a deep drag, exhaled and
>to confess.” . 2
»x obligingly recorded
ession.
iately 1:30, 28 February
the Sand Hill Bar to get a
began. “When I went in to
’* came up to mie and
for twenty dollars... .
tid, ‘Come on, let’s go.’
ist wanted to get my hands

‘ about 200 yards past the

LY ‘

IN Nee aly

_’

- Sand Hill Bar. She said thit: would be

okay, and I pulled alongside the road.

. Along the road she started taking her

clothes off. I got mad and I told her she
was a crazy ass.
“She said. ‘Me? What’s wrong with

| _ me?’ I told her she was silly. I grabbed

her. She tried to get away and I hit her
with a karate chop across the head. She
fell across the door. Blood was coming
out of her face. I got out of the driver’s

side and walked around to the pas-.

senger side, pulled her into the road and
left‘her there.

“I got back into the car and I got to
thinking that maybe she wasn’t dead. I

‘ got out and got the jack handle. I went

back where she was. She was still brea-
thing. I hit her, then I started crying. I
couldn’t stop hitting her and crying. I
just kept hitting her until she was dead.
“I went back to my car in order to diga

'- grave to put her in, so I got my entrench-

ing tool out and dug a grave: There was
a lot of cars and I knew my car would be
noticed, so I just covered her up with
leaves and dirt. I drove back on the same
road and ditched the clothes in the
bushes. I turned around and went by the
Sand Hill Bar. and then went home.
“I tried to think of a way in case they

did find her, so I thought of the name
Forces of Evil so the stuff would not be
on me. I thought about writing to some-
one to take the suspicion off of me. I
figured no one would know my hand-
writing so I wrote them approximately
three weeks later after I got through
thinking about what I had done. ...”

“How many people. belong to the
Forces of Evil?” Agent Fox asked.

“Just me,” Hance replied.

“Where did you get the name Forces
of Evil?”

“I just thought it up.”

Hance’s account of the Irene Thir-
kield murder was almost identical. He
said she propositioned him at the Sand
Hill Bar. He agreed and drove her to
Maertens Range: Seeing her take her
clothes off sent him into a rage.

“I looked at her and shé was taking off
her clothes. She looked at me and saw
how mad I was. She saw my eyes were
big and I was mad. She asked me what
was wrong with me. I told hersshe was
like the rest of the prostitutes, all she
wanted was to take other people’s
money. She got scared.

“I did the same way I did Gail. I gave
her a katate chop across the haad...
opened the trunk and got the jack out
and went back to where she was. She
was still breathing. I just started to cry.
I raised'the jack and hit her about five
times and that was it.”

Hance said he threw the jack handle
into a Fort Benning trash dump.

With the two current cases wrapped
up, Agent Fox turned his attention to

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True Detective 73


,
|
|

<a

¥
ry vi Hy Vly 5 a , ‘
the September, 1977 murder of Private ' given to heing Colurhbia cops, he hadn't Slain Blonde » Thecrimelab
Karen Hickman. After some hesitation, ‘realized that he was signing a confes- » » tively identifi
Hance confessed to that murder, too. sion at all. That rascal Fox had typed it In the Sewer » Dena Polis’ br
But he hadn’t used a jack handle on up, and he had signed it thinking it was : » sing from Ber
Karen. some kind of waiver of rights or some- (Continued from page 33) ». tective C
It started the same way—Karen. thing. “4 _ Annette
propositioned him at the Sand Hill Bar. The Stocking Strangler murdered his | nette failed to show. A second interview _ with Be
He agreed and drove her to a ball park. seventh victim—a 61-year-old widowed | was scheduled andthe two again failed 4 Without mu
She undressed and put her clothes on school teacher—on Thursday, April | to appear. It looked like the third inter- » Ozazewski th
the hood of his car..The sight of her 20th. view, scheduled for noon April 19th, * for about a we
taking her clothes off enraged him. He William Henry ene was tried first, | would also end. in a blank, when, 15 and that he ar
picked up a tree limb and hit her over in December 1978, by the'state for the | minutes behind time, the 37-year-old | do it on Friday
the head with it, then ran over her a murder of Gail Jackson ahd the attemp- | floor installer and his 20-year-old, ) planned to go
couple of times with his car. Not ' ted extortion of $10,000 from the Col- | dark-haired wife finally arrived at the /\ opportunity fF
satisifed with the damage, he propped umbus PD. District Attorney Bill Smith | police homicide unit. They were seques- » earlier when
her up against a tree and rammed her _ presented acarefully prepared case, and | tered into two separate rooms in order to ». | Bernard was :
with his car. He left her clothes at the on December 15th Hance was convicfed | give their statements. ) » Dena’s attrac
scene, but dumped her body near her ‘ of both charges. The next day he was Bernard told the investigators that he ' . for her was w
barracks. About a month later, when sentenced to death in the electric chair | was late because he and Annette had . , + Dena had sco)
the MPs hadn’t been able to find her for the murder and given a concurrent | been dropped off by a friend from’ work — » ous advances.
clothes, he called them and told them _ five-year sentence for the attempted ex- | who needed to use his van. Annette told - J  -. Annette S
where to look. tortion. the investigators that Bernard had dri- - » Ozazewski t
After signing his confession Hance The Army then tried Hance for the | ven them down to the police headquar- - downtown, Bc
led Fox to the trash dump and showed murders of Irene Thirkield and Karen | ters and had parked the van in the lot _ northerly dir«
him where he’d thrown the jack handle. Hickman. Hance was convicted of both | across the street. » the main lin}
A search of the dump produced the mur- murders and sentenced to life at hard The sleuths checked the lot across the . Philadelphia.
der weapon at 5:30 p.m. labor. street and found the van as Annette had » in Harford Cc
Meanwhile, Columbus Police Chief indicated. ~ van onto a lo
McClung had in fact received another, Why had he lied about the van? De- * farmhouse, t
letter from the chairman of the Forces of Bu the Army prosecutors weren't | tective John Hess asked Bernard Steb- ne parked the vz
Evil that day. In it, the chairman quite as thorough as Bill Smith had | bings. } _naround area
claimed to have abducted a third black been. An Army appellate court found “I just bought the van and the title A “We pulled
woman. He said she refused to give her that there had been no probable cause | was not transferred yet and I didn’t 4. cause Bernar
name, but that she was about 22, light for Hance’s arrest. Therefore his con- | want to get in trouble with the police _ kept saying,
skinned, about 5’6”, 130 pounds,slender fession was invalid. The convictions | over that,” the wiry, tousle-haired floor » her,” Annette
build with a big Afro hairdo. were reversed. installer replied. @ | sion. “And |
The chairman also clarified, more or The Army CID agents had, in fact, “Well, we would like your permission “, saying, ‘Lee,
less, his demand: Not only must the had very solid probable cause for | to search the van,” Detective Hess said, ’ AndLee took
Stocking Strangler be caught, but must . the arrest, but the prosecutors had | handing a consent to search form for »  withher. I str
be turned over to the Forces of Evil failed to point that out at the trial. | Stebbings to sign. fe «no life left.”
when captured. D.A. Smith had not made that mis- | He complied and signed the form. a Annette’s |
At 1:45 p.m. on April 6th, Columbus._ take in his case, and Hance’s conviction The van was brought into the central + _ how she had
Detectives Charles Rowe and Max Day and death sentence for the Jackson | police building and processed by crime » ning Dena’s <
questioned Hance at Fort Benning. He murder were affirmed by the Georgia | lab technicians, who removed the cur- ©! andchi
again gave a written confession to the Supreme Court. The U.S. Supreme | tains, vacuumed sand and wood parti- » had int
murder of Gail Jackson—the only case Court refused to review the case, and | cles, and also found traces of blood on when |
the Columbus police were interested in. Hance currently is living out whatever | the carpet. ). dead they fl
Unless, that is, there were more, as yet _ is left of his life on Georgia’s Death Row. Meanwhile, in the interview room, > Bernard perf
undiscovered bodies. The Stocking Strangler never was | Bernard Stebbings recalled an incident - (| __-~When Berr
“I don’t know what made me choose caught, nor has he claimed any more | that he wanted to tell the investigators. . ') formed of An
. and. Strangler as a threat,” Hance told victims since April 20, 1978—fifteen | Dena had drunk a bottle of beer while _, ‘he didn’t kn
the city detectives. “I was trying to days after Hance’s arrest. Former Fort | she was riding with them, he said, and y —stalking abou
throw ascreenoffofme.I mentionedthe Benning CID Operations Officer: Mar- | the bottle had broken, cutting her hand ».  couldn’t read
money to throw a little excitement into vin Bessom—now retired from the | and causing her to bleed over the carpet F anything ab
it,? Army and working as an investigator | in the back. % had just sign
Hance insisted that there were no’ for District Attorney Bill Smith— | The investigators had a problem with a Because A
more victims. His sixth and last letter, believes that Hance jis a likely suspect | that story. Dena’s hands hadn’t been a the commiss)
claiming to have kidnaped a third vic- in the still open Strangler case. The | cut. It looked like Bernard Stebbings y- County, the
tim, had indeed been a hoax. seventh murder, he says, could have | might be lying again. ’. dictional pro!
Neither’ the cops nor the Army were _ been a copycat killing. While Detective Ozazewski was talk- be tigation was
convinced. An intensive search of the But then, as a Columbus detective | ing with Bernard he looked more closely ay State Police
Sand Hill area produced no more bodies; told me, “At this point everyone is a |at Bernard’s yellow shirt. One of its . Bel Air in H
however. suspect—even you.” brown buttons was missing. Detective ; . _ Maryland
The Army charged Hance with the “Me? I don’t even live in—”. . O, as he is called by those familiar with » . vestigators,
murders of Irene Thirkield and Private “Do you like older women?” him, asked Bernard if he could have his » and Sergean
Karen Hickman. Columbus charged “Hey, now look—” — shirt for the crime lab to examine. Ber- S panied Annc
him with the first degree murder of Gail The detective smiled knowingly. | nard agreed and let him take the shirt. »  Ozazewski |
Faison/Bogen/Jackson, and with at- “Come on,” he said, “everyone does.” By this time both Bernard and An- Sergeant El
tempted extortion. Hance repudiated’ “Now waita—” | nette were regarded as prime suspects > ‘she stated I
his confession, which he said CID Agent “You like your mother, don’t you?” _| inthe Dena Polis murder, and both were murdered.
Fox had extracted from him’at gun- I got in my car and went the hell home | read their constitutional rights before pointed, the
point. As for the confession that he had _ to Florida. @¢@ |they submitted to further questioning. Pabst beer b
74 True Detective , ; :
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23 ac
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til 4e-

Knoxville News- Senne!

Convicted killers executed in

By The Associated Press

- A former soldier was executed
in Georgia’s electric chair, and a
former construction worker was

put to death by lethal injection in|

Texas on Thursday. Both had
been convicted of murder.
William Henry Hance, a 45-
year-old former Fort Benning
soldier, died at 10:10 p.m. after the
U.S: Supreme Court rejected his

final appeal in a 5-3 vote. Justices
Harry Blackmun, John Paul Ste-
yens and Ruth Bader Ginsburg
dissented. ae.

~ Hance maintained his inno-
cence until the end. He had been
convicted in the 1978 beating
death of Brenda Gail Faison, a 21-
year-old prostitute. Hance was
also convicted of two other mur-
ders in a military court and sen-
tenced to life on those charges.

Georgia, Texas

Earlier in TeXas, former con”
struction worker Freddie Webb
was executed by injection just
hours after the U.S. Supreme
Court rejected his appeal. :

Webb was convicted of mur-
dering 26-year-old Leopoldo
Cantu, who was shot after a 1985
robbery at a restaurant where
Cantu’s wife worked. At the time,
Webb was on parole for raping a
child: |

HANCE v. ZANT

951

Cite as 696 F.2d 940 (1983)

[27] During the guilt phase of the trial
the prosecutor lived up to his promise to
portray the crime in “vivid detail.” After
presenting numerous photographs of Gail
Jackson’s mutilated and largely decomposed
body, the prosecutor introduced fragments
of her corpse. During closing argument he
reminded the jury that “(near the place of
the murder] were found pieces of jawbone
with the teeth attached, fragments of hu-
man skull no larger than a dime, individual
teeth, and you'll have that with you to take
out in evidence.” This evidence was un-
questionably inflammatory, but it depicted
the scene of the crime and was relevant to
the state’s theory of the murder weapon, so
under Georgia law it was admissible. Cape
v. State, 246 Ga. 520, 272 S.E.2d 487, 491
(1980), cert. denied, 449 U.S. 1184, 101 S.Ct.
956, 67 L.Ed.2d 121 (1981); Green v. State,
242 Ga. 261, 249.S.E.2d 1, 6-7 (1978), rev'd
on other grounds, 442 U.S. 95, 99 S.Ct. 2150,
60 L.Ed.2d 738 (1979).

[28] More troublesome is the manner in
which the prosecutor expressed his personal
opinion to the jury. After arguing that the
case turned on the question of credibility he
proceeded to vouch for the credibility of the
state’s witnesses. Referring to the C.ID.,
the prosecutor said, “thank God for them, I
might add, and for the Columbus Police
Department, too. I’ll sleep better tonight
and I feel that each of you will too, because
of the work they did in this case....”* In
reference to one of the state’s witnesses he
stated that “(hJer testimony had what we
classify or call, as the ring of truth about
it.”® Citing his three years with the FBI,
his eight years as a prosecutor, and his
community roots, the prosecutor acted as an
unsworn expert witness for the state when
he explained to the jury why people gener-
ally confess: “And my years in law enforce-
ment and in prosecution have taught me

8. Such “emphatic and personalized vouching”
for the integrity of the police was considered
reversible error in United States v. Ludwig, 508
F.2d 140, 143 (10th Cir.1974).

®. In United States v. Morris, 568 F.2d 396, 40!
(5th Cir.1978), the former Fifth Circuit Court
stated that “[a]n attorney may not express his
own opinion as to the credibility of witnesses.”

this, that confession as opposed to being an
unnatural act, something that someone
would not do, is a natural act.” 1°

Certainly, the prosecutor’s conduct during
the guilt phase of this trial was improper,
but it was not unconstitutional. Consider-
ing the overwhelming strength of the
state’s case we cannot find that the prose-
cutor’s conduct rendered the determination
of Hance’s guilt fundamentally unfair. See
Cobb v. Wainwright, supra, 609 F.2d at
755-56.

[29] The sentencing phase of a capital
murder trial in Georgia presents a different
situation than the guilt phase. Even if the
state proves the existence of statutory ag-
gravating circumstances by conclusive evi-
dence, the jury is instructed that they may
recommend mercy. They have the choice of
returning a life sentence. Ga.Code, Ann.
§ 27-2503(b) (1976). Therefore, as recog-
nized by the State of Georgia, it is most
important that the sentencing phase of the
trial not be influenced by passion, prejudice,
or any other arbitrary factor. See Ga.Code
Ann. § 27-2537(cX1) (1976). With a man’s
life at stake, a prosecutor should not play
on the passions of the jury.

[30] In this case, the prosecutor’s fer-
vent appeal to the fears and emotions of an
already aroused jury was error of constitu-
tional dimension. The prosecutor started
out the sentencing hearing by assuring the
jury of the wisdom of their verdict, stating
that he “had the advantage of sincerely and
objectively knowing the evidence, believing
that we would be at this stage of the trial
at some point this week.” He pointed out
the magnitude of this crime by informing
the jury, “I’ve been with the District Attor-
ney’s Office for a little over eight years
now and it’s my recollection that we’ve had

10. The prosecutor also made several objection-
able remarks about petitioner’s character, im-
plying that he was an “animal” and alluding to
the fact that he had fathered an illegitimate
child.


Seep hase

pee.
ee

ionising
As

HANCE vy. ZANT 949

Cite as 696 F.24 946 (1963)

dence of Hance’s irrational behavior does
not reach the level presented in some Fifth
Circuit cases finding no Pate violation.5

There is little evidence in the trial record
that Hance’s demeanor Suggested mental
incompetence, and the issue of his compe-
tency was not raised. Although a criminal
defendant cannot waive his right to a Pate
hearing, this Court has found “the failure
of defendant or his counsel to raise the
competency issue persuasive evidence that
no Pate violation occurred.” Reese vy.
Wainwright, supra, 600 F.2d at 1092. The
trial judge is only required to act reason-
ably on the facts before him. Id. Among
the facts before the trial judge in this case
was a psychological evaluation of petitioner
that was made at Central State Hospital.
It reported that Hance may be suffering
from “long-standing feelings of inadequacy,
inferiority, and insecurity.” But the report
concluded that
there are ... no convincing indicators to
Suggest that this individual is psychotic
at the present time or has ever been out
of contact with reality in the past. Mr.
Hance is aware of the charges against
him, he has an understanding of basic
courtroom procedure, and it is our opinion
that he can communicate adequately with
an attorney in the preparation of his de-
fense. Therefore, we consider him to be
competent for trial at the present time.

Given the facts before the trial judge, we
_ Cannot fault his failure to conduct a sua
= Sponte competency hearing.

} V. COMPETENCY TO CONDUCT HIS

OWN DEFENSE

‘(18-20] During the pretrial hearing,
ance requested that he be allowed to par-

Of disturbed and deranged behavior. He imag-

ined hearing threatening voices, he had visions

a. Of snakes and elephants, and he often walked
‘about in a complete daze. Id. at 380, 86 S.Ct.
me at 839. In Lee v. State of Alabama, 386 F.2d 97

(5th Cir.1967) (en banc), a lunacy commission
had found the defendant insane less than four
months before his trial because his feelings and

, motions were governed by delusions of gran-
«° Geur and of persecution. Jd. at 99. In Acosta

Vv. Turner, supra, 666 F.2d 949, defendant, after
commitment to a mental hospital for more than

ticipate as lead counsel and handle the pri-
mary body of the proceedings. In Faretta
v. California, 422 U.S. 806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975), the Supreme Court held
that a criminal defendant has a constitu-
tional right to manage his own defense
when he “knowingly and intelligently”
chooses to do so. Id. at 835, 95 S.Ct. at
2541. Assertion of the right of self-repre-
sentation entails a waiver of the right to
counsel. Brown vy, Wainwright, 665 F.2d
607, 610 (5th Cir.1982) (former Fifth en
banc). Because an accused who conducts
his own defense thereby relinquishes many
of the important benefits associated with
the right’ to counsel, a trial judge must
conduct a waiver hearing to make sure that
the accused understands the dangers and
disadvantages of proceeding pro se. United
States y. Chaney, 662 F.2d 1148, 1152 (5th
Cir. Unit B 1981). The record must estab-
lish that the defendant “ ‘knows what he is
doing and his choice is made with eyes
open.’” Faretta, supra, 422 U.S. at 835, 95
S.Ct. at 2541, quoting Adams y. United
States ex rel. McCann, 317 U.S. 269, 279, 63
S.Ct. 236, 241, 87 L.Ed. 268 (1942).

(21, 22] Here the trial court conducted a
waiver hearing, explaining many of the dis-
advantages that Hance would face by giv-
ing up his right to counsel and inquiring
whether Hance understood that he could be
executed for his alleged offense. Relying
on Hance’s responses during this colloquy,
the trial court concluded, and we agree,
that Hance was made aware of and know-
ingly relinquished his right to counsel. Al-
though he was clearly not a competent at-
torney, Hance was competent to exercise

18 months, was diagnosed as still suffering
from paranoid schizophrenia.

5. In Jackson v. Caldwell, 461 F.2d 682 (5th
Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 334, 34
L.Ed.2d 257 (1972), no Pate violation was found
although the defendant was mentally retarded,
had previously been discharged from the army
because of mental illness, and was subject to
schizophrenic fits of anger and paranoia. He
had bludgeoned his wife to death, buried her in
a field, and planted peas in the field.


950

the right to defend himself. See Faretta,
Supra, 422 U.S. at 836, 95 S.Ct. at 2541.5

VI. EFFECTIVE ASSISTANCE
OF COUNSEL

[23] Petitioner claims that he was de-
nied his constitutional right to counsel “rea-
sonably likely to render and reasonably ren-
dering effective assistance.” Baty v. Balk-
com, 661 F.2d 391, 394 (5th Cir. Unit B
1981), cert. denied, — U.S. ——, 102 S.Ct.
2307, 78 L.Ed.2d 1308 (1982). But Hance,
by asserting his right to self-representation,
had waived his right to counsel. A defend-
ant who chooses to represent himself cannot
later complain that the management of his
own defense amounted to a denial of effec-
tive assistance of counsel. Faretta, supra,

422 U.S. at 834-35 n. 46, 95 S.Ct. at 2541 n.
46,

Petitioner relies on United States v. Fes-
sel, 581 F.2d 1275 (5th Cir.1976), in which
the defendant asserted his right to defend
himself shortly after the trial commenced
and reversed his conviction on the grounds
of ineffective assistance of counsel. That
case is inapposite. In Fessel, the defend-
ant’s court-appointed counsel had disregard-
ed the defendant's repeated requests before
trial to subpoena psychiatric information
necessary for the preparation of an insanity
defense—the defendant’s only possible de-
fense. After asserting his right to rep-
resent himself, defendant Fessel moved for
@ continuance so that he could subpoena
psychiatric information and prepare a de-
fense. His request was denied and he was
convicted. Id. at 1277-78. Fessel claimed
that the ineffective assistance of counsel
before he asserted his right of self-repre-
sentation prevented the preparation and
presentation of an adequate defense. Fes-
sel did not challenge the effectiveness of

6. In order to assist the defendant and move the
proceedings along, the court directed the public
defender to act as “standby counsel”, subject
to Hance's instructions. See Faretta, 422 U.S.
at 834-35 n. 46, 95 S.Ct. at 2541 n. 46.

7. Several factors should be considered in evalu-
ating prosecutorial misconduct in a habeas
case: (1) the degree to which the challenged
remarks have a tendency to mislead the jury

696 FEDERAL REPORTER, 2d SERIES

counsel after he assumed his own defense,
See id. at 1278-79, Hance’s claim of inef.
fective assistance, on the other hand, con-
cerns only the performance of his standby
counsel after Hance asserted the right of
self-representation.

VII. . PROSECUTORIAL MISCONDUCT

[24-26] To prevail on his claim of prose-
cutorial misconduct in this State habeas
case, Hance must show that the prosecu-
tor’s actions were so egregious as to render
the trial fundamentally unfair. Donnelly y,
DeChristoforo, 416 US. 637, 643, 94 S.Ct.
1868, 1871, 40 L.Ed.2d 431 (1974); Cobb vy.
Wainwright, 609 F.2d 754, 756 (5th Cir.),
cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64
L.Ed.2d 857 (1980). The asserted error
must be one of constitutional magnitude,
Houston v. Estelle, 569 F.2d 372, 377-78 n. 8
(5th Cir.1978). This determination should
be made by considering the totality of the
circumstances; the prosecutor’s conduct
should be evaluated in the context of the
entire trial. Id. at 377.7

Capital murder trials in Georgia involve a
bifurcated procedure. After the jury has
found the defendant guilty, a sentencing
hearing is conducted during which the jury
must determine whether any mitigating or
statutory circumstances exist, and if a stat-
utory aggravating circumstance is found
the jury must decide whether to recom-
mend death or “mercy” (life imprisonment)
for the defendant. Ga.Code Ann. §§ 26-
3102, 27-2508(b) (1976). If the trial court is
reversed because of error only in the sen-
tencing phase, the new trial which may be
ordered applies only to the issue of punish-
ment. Miller v. State, 237 Ga. 557, 229
S.E.2d 376, 377 (1976); Ga.Code Ann.
§ 17-10-2(d) (1982). With this in mind, we
examine the guilt-innocence phase and the
sentencing phase separately.

and to prejudice the accused; (2) whether they
are isolated or extensive; (3) whether they
were deliberately or accidentally placed before
the jury; and, except in the sentencing phase of
capital murder trials, (4) the Strength of the
competent proof to establish the guilt of the
accused. See United States v. Leon, 534 F.2d
667, 679 (6th Cir.1976).

ae

[27] During the guilt
the prosecutor lived up
portray the crime in “vi,
presenting numerous phi
Jackson’s mutilated and |:
body, the prosecutor intr:
of her corpse. During clo
reminded the jury that “|
the murder] were found [
with the teeth attached, |
man skull no larger than :
teeth, and you'll have that
out in evidence.” This ¢
questionably inflammatory
the scene of the crime and
the state’s theory of the m
under Georgia law it was é
v. State, 246 Ga. 520, 272
(1980), cert. denied, 449 U.:
956, 67 L.Ed.2d 121 (1981);
242 Ga. 261, 249 S.E.2d 1, |
on other grounds, 442 U.S. :
60 L.Ed.2d 738 (1979).

[28] More troublesome i
which the prosecutor expres
opinion to the jury. After :
case turned on the question
proceeded to vouch for the
state’s witnesses. Referrin
the prosecutor said, “thank
might add, and for the C
Department, too. I'll sleep
and I feel that each of you
of the work they did in this
reference to one of the stati
stated that “(hJer testimon)
classify or call, as the ring |
it.”® Citing his three years
his eight years as a prose
community roots, the prosecu
unsworn expert witness for |
he explained to the jury why
ally confess: “And my years |
ment and in prosecution hz

8 Such “emphatic and persona
for the integrity of the police
reversible error in United State
F.2d 140, 143 (10th Cir.1974).

9. In United States v. Morris, 5:
(Sth Cir.1978), the former Fif;
Stated that ‘“‘{a]n attorney may
Own opinion as to the credibili:


no more than a dozen times, no more than
twelve times in those eight years, to request
[the death penalty] out of the thousands of
J cases ... that pass through our office.”"
q Gradually, the prosecutor began to stir up
the fears of the jury: “I’m going to sleep
well tonight, having [recommended Hance’s
electrocution] to you. As a matter of fact,
I’m going to sleep better and safer in my
home with my family if you come back with
a sentence of death.” He tried to convince
the jury that no one could feel safe with
Hance in prison, close to one’s home and
family.

The prisoners are not totally isolated
from society. People who work in pris-
ons, prison guards, they’ve got wives and
children and families, and lives of their
own, too. You think he’s going to want
to get out of prison? Do you think he’s
going to like it there? How do you get
out of prison? You escape. Oh, he can’t
escape surely. A man [James Earl Ray]
escaped from a prison in the hills of Ten-

be the most secure cell in the most secure
prison in the United States. Why can’t
this man escape from the Harris County
Work Camp, or from Reidsville, for that
matter?

What about those prison guards who
| have to guard him? What about their
H wives and families when he thinks no
more of human life than what we know

he thinks, when he’s already proved he
will kill, that he completely disregards
human life, what about them, what about
their families? You're. going to subject
those people to him for the next fifty
years of his life?

What about the young prisoners he’s

going to be associated with? What about
the really young people?.. .
Finally, he made an appeal to the patriot-

ism and bravery of the jury, exhorting
them to join in the war against crime:

11. The prosecutor failed to point out that for
four of his eight years in the District Attorney's
Office, between the Supreme Court’s decision
in Furman v. Georgia, 408 U.S. 238, 92 S.Ct.
2726, 33 L.Ed.2d 346 (1972), and its decision in

nessee two years ago that was thought to .

952 696 FEDERAL REPORTER, 2d SERIES

How many times have you said to your-
self as you pick up your morning newspa-
per or turn on your radio or television
newscast, has the whole world gone cra-
zy, when you read about a crime like this,
has the whole world lost its mind?
When have you said to yourself, what can
I do, just one citizen, just one individual,
to stop this? . Well, it’s time for
somebody to do something.... You're
in the batter’s box, so to speak ... it’s a
matter of fish or cut bait, because we’re
right down to it, we’re right down to it.
Frankly, the one thing I look for in
selecting jurors in this case, the one char-
acteristic, ... I looked for courage ...
You know, we’ve had three wars in this
Country just in my lifetime, World War
II, war in Korea, war in Vietnam. In
each of those wars we drafted young
men, take them out of civilian life, train
them, equip them, sent them to fight for
us, young as seventeen, perhaps some as
young as sixteen years of age. And,
we've sent them off to some land halfway
across the world, and we’ve pointed them
at some individual that they didn’t even
know, and we’ve said, this person is the
enemy, they are trying to destroy our
way of life, when you see this person, kill
him. And thank God we did it, don’t get
me wrong, because those individuals did
save our way of life, they did protect our
freedom, they’re the reason we are able
to live in this Country today under the
system of freedom that we have. We've
asked 17-year-olds to kill to protect our
system, our home and our families. Do
we ask any less of you in this situation?
Who is the enemy now? We're en-
gaged in a war in this Country just as
real as any of those, just as real, perhaps
closer to home than any of those....
And now we're asking you to take the
step to do something about this situation.

This dramatic appeal to gut emotion has

no place in the courtroom, especially in a

Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909,
49 L.Ed.2d 859 (1976), the constitutionality of
the Georgia death penalty statute was very
much in doubt.

case invol\
sentence 0.
appeal canr
ing hearing
unfair and
erable.!?

VIII. JU
ING T

[31-33]
Sandstrom
S.Ct. 2450,
v. Balkcom
1982), cert.
Ct. 1260, 7
court’s jury
ice impern
proof to th:
its charge ‘
that intent
en circumst
it may be |
and necess
Even if thi
permissible,
pelled. Th:
that “the a
fected the
conviction '
Naughten,
400, 38 L.Ex
should be ¢
jury charge
Jernigan, 6
1982).

Immediat
charge in q
the jury the
innocent un
will not be
intention;
existence 0!
sonable dou
from the e
that circurn
not justify
circumstanc
the defenda
ent with an

12. Using th
we conclud


|
:
|

NO APPEALS

HARDIN, Sam, TURNER, Jake and YOUNG, Guy, blacks, all hanged at Crawfordville, Ga.,
on November 8, 1915,

"The three negroes who killed Mr. Charlie Rackley early in October at a saw mill camp
6 miles south of town, and who were tried, convicted and sentenced to hang, at a spe~
cial term of Taliaferro Superior Court held on October 18th, paid the death penalty
here Monday. All three negroes were executed at the same time on the gallows cone
structed at the county jail for the purpose,

"The hanging was private, but a good crowd gathered around the jail in the early
morning and remained until after the execution, hoping to get a glimpse of the negroes
on the gallows. Sheriff W. Y. Edwards pulled the trigeer at 11:51 o clock and all
three negroes were pronounced dead in twenty-two minutes, Guy Young was the only one
whose neck was broken, the other two dying from strangulation,

"In a statement made Monday morning, Jake Turner and Sam Hardin corroborated the
testimony of Jake's mother at the trial, in which she said that Guy Young came into
her house with Jake and got one of the guns and some shells before going to the camp
on the night of the killing, In all their previous statements they had denied that
Guy had anything to do with the killing, and that he did not even know that their in~
tentions were when they went to the camp, The woman's testimony was what convicted
Guy Young at the trial, The hanging Monday was the second legal execution in the
county's history, the first having occurred thirty-four years ago, when a negro by
the name of Sang Armor was hanged for the murder of Mr. Amos Ellington, That execu-
tion was public, and it is said was attended by a large crowd, There are yet many
people living in the county who were here at that time, and distinctly remember the
circumstances surrounding the case, Several of the jurors who served at the trial
of the negro are also still living and are yet residents of Taliaferro County,"

THE ADVOCATE DEMOCRAT, Crawfordville, Georgia, Friday, Nove 12, 1915 (1:1.)


Bee Ae

662 Ga.

to assume the debt, thereby constituting a
break in the chain of assumptions expressed
in the successive deeds upon the right of the
plaintiff to a personal judgment against the
third grantee, whose deed expressly stated
that as a part of the consideration he as-
sumed the debt, is not here involved.

[2] 3. The deed to the fourth grantee pur-
ported to be upon consideration of $10 and
“other valuable considerations,” and to convey
several real properties “subject to all existing
loans, liens, and encumbrances, the payment
of which the grantee herein does not assume.”
It was alleged that the properties so convey-
ed constituted all of the property of the
grantor, who was insolvent; and that the
deed was made for the purpose of hindering
and delaying creditors, and was void. It
was prayed that this deed be canceled, and
that title to the property be decreed to be in
the grantor. When considered in connection
with allegations of the petition, the amend-
ment was not demurrable on either of the
grounds (a) that it sets forth a new cause
of action, (b) that it fails to set forth ground
for cancellation of the conveyance. Nor,
when considered in connection with allega-
tions of the petition, was the amendment de-
murrable on the ground that it affirmatively
appears that the second grantce “did not as-
sume or agree to pay plaintiffs mortgage
debt, but only agreed to assume and pay the
first mortgage.”

[3] (a) A creditor may proceed against his
debtor in the superior court for judgment on
his demand, and in the same action may have
cancellation of his debtor’s fraudulent decd,
if necessary to enforce his judgment, where
his debtor's grantee is a party to the action.
Fourth National Bank of Columbus vy. Mooty,
143 Ga. 137, 84 8S. KB. 546. The amendment
was germane to the original cause of action
and conducive to the grant of complete re-
lief with respect to the same matter, and
consequently not objectionable as ‘adding a
new and distinct cause of action. Jenkins vy.
Lane, 154 Ga. 454, 115 S. EB. 126.

(4] (b) The amendment was demurrable as
against the fourth grantee in so far as it
prayed a general judgment against him, and
to that extent the judgment overruling the
demurrer entirely was erroneous. But a re-

178 SOUTH EASTERN REPORTER

versal will not be ordered on account of this
error, because on the further trial the ver-
dict rendered for the amount of the debt did
not include a finding against the fourth gran-
tee,

(c) The amendment, considered in connec-
tion with the allegations of the petition, al-
leged a cause of action for setting aside the
deed to the fourth grantee and decrecing ti-
tle to the property vested in the grantor
named in that deed.

4. The jury by direction of the court re-
turned a verdict for the plaintiff, first,
against the maker of the note and the first
and third grantees, for the amount of the
principal debt with interest and attorney's
fees; and, second (on submission to them by
the court for decision), against the third and
fourth grantees, finding that the deed to the
fourth grantee was void. A decree was en-
tered, conforming to the verdict for the
amount specified therein, and canceling the
deed declared to be void. If there was any
error in admitting, over objection, “the ear-
nest-money receipt” therein referred to, is-
sued by the grantor named in the security
deed to his first grantee, it was not harmful
to the third and fourth grantees, sole mov-
ants for a new trial.

5. The request to charge the jury, as set
forth in ground 9 of the motion for a new
trial, would have restricted the jury entire-
ly to the matter of solvency, leaving out the
question of intention to hinder and delay
creditors in determining whether the deed
was void, and was not properly adjusted to
the pleadings and the evidence.

6. The requests to charge as stated in
grounds 7 and 8 were not in accord with the
principle stated in the first division. Grounds
4 and 6 are merely elaborative of the general
grounds.

7. The verdict, in so far ag directed by the
court, was demanded by the evidence, and so
far as it related to the question submitted to
the jury by the court it was authorized by
the evidence. The judge did not err in over-
ruling the motion for new trial.

Judgment affirmed.

All the Justices concur, except HUTCHE
SON, J., disqualified.

Peracieathang ety

DODD vy. BELL Ga. 663
178 8.E.

HARDEN v. STATE.
No. 10625.

Supreme Court of Georgia,
Feb. 12, 1935.

Syllabus by Editorial Staff.

{. Criminal law €=762(3)

Statements in charge that there was no
contention that deceased assaulted accused,
and that there was contention that deceased
struck accused’s brother, held not erroneous
as expressing opinion as to what had been
proved or not proved.

2. Homicide €=340(1)

In homicide prosecution, erroneous state-
ment in charge that contention was that de-
ceased struck accused’s brother held not
harmful to accused, where record showed
that deceased’s brother struck accused’s
brother.

3. Homicide €>338(1)

In homicide prosecution, testimony of
deceased’s brother that none of his brothers
had pistol held not harmful to accused, where
accused made no contention that any weapon
was used or sought to be used against ac-

cused.
Suietladptiecseiiitin

Wrror from. Superior Court, Washington
County; R. N. Hardeman, Judge.

Henry Harden brings error.
Affirmed.

J. Paxson Amis, of Sandersville, for plain-
tiff in error.

Marvin L. Gross, Sol. Gen., of Sandersville,
M. J. Yeomans, Atty. Gen., Dave M. Parker,
Asst. Atty. Gen., and E. J. Clower, of Atlanta,
for the State. :

Sylabus Opinion by the Court.

GILBERT, Justice.

{t, 2] 1. The statement in the charge of the
court, that “There is no contention anywhere
that the deceased made any assault whatever
upon the defendant at the particular time in
question,” was supported by the record, and
Was not an expression of what had been
proved or not proved, and did not constitute
reversible error. Indeed, in the immediately
Preceding sentence the court affirmatively dis-
avowed any intention to express an opinion.

2. The statement in the charge of the court,
‘But there is a contention of evidence for
Jour consideration that the deceased slapped

or struck the brother of the defendant here,”
was not an expression of what had been
proved or not proved, and did not constitute
reversible error. While the court erroneously
stated that the contention was that the de-
ceased, instead of his brother, as shown by
the record, slapped or struck the defendant’s
brother, its only possible effect wa's helpful
rather than harmful to the defendant.

3. Aside from no written request to charge
on the law of conspiracy, there was nothing in
the record to call for such a charge, and the
court did not err in failing to so charge.

[3] 4. The admitted testimony of the de-
ceased’s brother that none of his brothers had
a pistol, objected to as opinion evidence, was
not ‘harmful to the defendant; it not being
contended by the defendant that any weapon
was used or sought to be used upon him or his
brother.

5. None of the other special grounds of the
motion for a new trial are dealt with as the
court expressly disapproved the same.

6. The evidence fully justified the verdict.

7. The court did not err in overruling the
motion for a new trial.

Judgment affirmed.

All the Justices concur.

DODD v. BELL et al.
No. 10369.

Supreme Court of Georgia.
Feb. 15, 1935.

Rehearing Denied Feb. 27, 1935.

Equity <=36

In creditor’s suit brought against debtor
and debtor’s grantee in county of their resi-
dence, court could cancel deed from debtor
to grantee as fraudulent conveyance and af-
ford other equitable relief, notwithstanding
deed conveyed land located in another state.

Syllabus by the Court,-:

Where the partics to an alleged fraudu-
lent deed were within the jurisdiction of the
court, the fact that the land the deed pur-
ported to convey was located within the state
of Florida would not deprive the court of ju-
risdiction to cancel the deed and afford other
equitable relief.

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

“CC6T=OT-5. (uo4SuTYysey) *ep *oetTe “iz fyoeTq ‘faueq “NECHYH


HANVEY, James E., white, hanged Carrollton, Ga., 6-2-1882,

"WILL HANG ALONE. Carrollton, Ga., June 2. - James E, Hanvey will
positively hang here this afternoon. The gallows are ina public place
nearly a mile east of the ?Court-House in a field, William M, Moon
was also to hang at the same hour, but he took a dose of morphine witha
suicidal purpose last night. 4hree physicians are now laboring, with
no hopes of saving him. He is cold to the Imees and his finger nails are
blue. He says he hasreligion and is ready to die. An immense crowd is
in town and the excitement is inténse. Hanvey will probably hang
alone.
"HANVEY'S CRIME.

"Sarrollton, Ga., June 2. - On duly 3, 1881, James &, Hanvey and
Arthur McMullen were together at Benson’ s grocery, just beyond the
corporate limits of Carrollton. Both were at least partially intoxi-
cated. About 4 0' clock in the afternoon McMullen mounted his horse,
apparently intending to ride to Carrollton. While on horseback he re-
marked; ' M6 horse can outrun any horsé.in the State, and whoever says
he can' t tells a damned lie.' Hanvey, who was in the house at the
time, said 'Don't call me a damned liar." McMullen replied: 'I didn't
call you a damned liar. IJ said my horse could of{trtin any horse in the
State, and whoever says he can't tells a dammed lik.' Hanvey walked
tnrough the door while this explanation was being made, took his knife
from his pocket, opened it, walked up to McMullen and without another
word plunged it into his breast about one inch to the right of the BREAK
breast bone, and through the fourth intercostal space, the blade pene-
trating the cavity. McMullen threw his hands up, exclaiming 'He has
cut me,' and immediately fell from his horse against the grocery.
He was carried to a neighboring fpouse, and died the next day. Hanvey,
after committing the deed made an effort the flee the country. The
Sheriff was notified of what had transpired, Placing his dogs upon
the track of the fugitive, he soon over took him, lying ina fence

corner. He was placed on trial for his life. Solicator-General
Reid and Cobb and Cole conducted the presecution. The speech of Gol,
Reed as to whether drunkeness could be an excuse for crime is considered
by competent critics as one of the finest legal arguments, and must have
been convincing to thejury. At the close of the trial Judge Harris
reviewed the case in a charge most clear, forcible and comprehensive.
Hanvey was highly respected and left a wife and one child. His
greatest fault was his passion for drink. His aged father and mother,
grief-stricken and heads bowed down, sat beside him throughout the
trial." POST-DI SPATCH, St. Lo@is, Mo., June 2, 1882 (Page 1.)

Hanson, J.P.; arrested for the poisoning murder of a male
citizen of Thomas Go., GA. White (Englishman), no age given.

Augusta Cons., Sat., 7 Dec. 1850

"J.P. Hanson was arrested yesterday about 8 miles from this
place on the railroad, on a charge of murder. He was brought
to this city, and after an examination before Judge Raiford,
was committed to jail to await the order of the Court of Thomas
County, whrer it is alleged the crime was committed.

Many of our readers will remember the case which occurred some
time the spring past. It seems that Hanson had gone to Thomas
County as a stranger. He stated that he was an Englishman and
had been cast away on the coast of Florida. A citizen of the
county took him into his family and releived his wants. During
the stay, which was some time, it is further alleged that a
mutual affection sprang up between him and the wife of the
gentleman at whose house he was sojourning, and that in order
to remove the husband, he poisoned him. The citizen died,
Hanson was apprehended and committed to prison, and after-
wards effected his escape before the day of the trial. .He

was taken up yesterday by a citizen of Thomas County, who
chanced to hear of him as he was coming down in the cars."

From Savannah Republican, 5 Dec. 1850


ATLANTA, April 1 — William Hen-
ry Hance, convicted of the 1978 mur-
der of a prostitute in Columbus, Ga.,
was executed in Georgia’s electric
chair Thur8day night despite a ju-
ror’s sworn statement that she did
not vote for and did not support his
death sentence.

Mr. Hance, 45, was to death
after Justice Anthony i kecnedy of
the United States Supreme Court lift-
ed a temporary stay that had delayed
the execution for three hours, Mr.
Hance was pronounced dead at 10:10,

He maintained he was innocent in a_
statement before his execution, ask- |
ing: ““Why are you executing an inno- ©
cent man? Why? Why? Why?” fe

_Mr. Hance’s lawyer, Gary Parker,
went to the Supreme Court on Thurs-
day after the United States Court of '
Appeals for the 11th Circuit, in Atlan-
ta, and the Georgia Supreme Couri
refused to halt the execution, - “

The Georgia Board of Pardons and ©

Paroles dénied a clemency petition ’
on Wednesday. The petition was filed _
after the only black juror, Gayle Dan-*
iels, said she had not voted for.the
death penalty, ‘believing that Mr.
Hance was too mentally impaired to

be executed. § + said ‘the jury fore-

VAETIIMES
Prec 2, IS9G

eve about the trial of Mr...
Hance, who was black, reflects a per- ;
vasive racism in state courts in Co-
lumbus — from the decision to seek
the déath penalty, to the racial make-
up of the jury, to the racial slurs that

Ms. Daniels and Ms. LeMay say were
made during jury deliberations.

5 Ti MO eR te: appt

’ |
\

|

-. In America
BOB HERBERT

®@ = Judicial

A

\

i.% .
| ‘
| }
4)
, i

Com
Toss

William Henry Hance. was electro-

‘cuted in Jackson, Ga., a few minutes
after 10 P.M. on Thursday, and the;
‘shabby mistakes, the carelessness;

and the demoralizing capriciousness'
that characterized his case continued:
1

‘right up until the end.

, The Georgia State Board of Par-.

dons and Paroles, in its.official order:

denying Mr. Hance’s request for a:
stay of execution, somehow got the.

graph. So instead of William Henry
Hance, the order contains a reference

to someone named Larry Grant Lon-:

char — an incredible mistake in a:
capital punishment case.

Meanwhile, the Georgia Supreme
Court rejected an appeal on Mr.

Hance’s behalf by a 4-to-3 vote. One — a of having a ‘just’ death penalty,;

vote the other way and he would still.
be alive. That’s the judicial equivalent

‘of a coin toss, or a crapshoot, which.

may be fine in most cases — but not:
when a person’s life is at stake.

A half-hour before the scheduled 7°
P.M. execution, U.S. Supreme Court|
Justice Anthony M. Kennedy issued a)
temporary stay so. the full Court;
could decide whether to hear Mr.'
Hance’s appeal. That stay lasted just:
a couple of hours. The Court voted 6 to
3 against hearing the case and the’
stay was lifted. o

Justice Harry Blackmun, who dis-
sented along with Justices John Paul

Stevens and Ruth Bader Ginsburg,

wrote that even if he had not recently
“reached the conclusion that the:
death penalty cannot be imposed fair-

wrong man’s name into a key para- °

ly within the constraints of our Con- .
stitution... I could not support its~:

imposition in this case.’

. He said: ‘‘There is substantial evi-.
“dence that William Henry Hance is:

mentally retarded as well as mental-. ©

ly ill. There is reason to believe that
his trial and sentencing proceedings

* were infected with racial: prejudice.

One of his. sentencers has come for-:
ward to say that she did not vote for’

‘ ” the death penalty because of his men-

,,,, tal impairments.”’

The execution of Mr. Hance is a

v

bf

2

At

baw

clear example of how capital punish-;
ment degrades us all. We can ‘never,

.°. be sure that we’re doing the right; -

thing, and we can never correct our:
errors. There is little doubt that Mr.:
Hance was, in fact, a murderer. The’
objections to his execution were not'
based on claims of innocence. But)
innocent people do. get convicted.
When we witness this kind of slipshod:
justice in a capital case, is there any
reason to imagine that fewer mis-
takes and a higher standard of justice
prevail in the sentencing and appeals
process for someone wrongly convict-'
ed of murder?

- The death penalty is administered
by humans, and humans are earnest-
ly, creatively and endlessly fallible.
We are prone to mistakes and preju-:

- dices, to anger and rage and resent-

ment. With a death penalty adminis-

“ ‘tered by humans, it is always just a:

‘matter of time before someone inno-
cent is strapped into an electric chair,
or walked into a gas chamber, or,
injectéd with poison.

Anthony Amsterdam, a professor.
at New York University Law School,
and the principal architect of the le-|
gal effort to abolish capital punish-|
ment in the United States, said the;
key moral and philosophical question

is whether human beings are capable!

“given our imperfections.”’ ;
He quotes Lafayette (often wrongly

*). attributed to Jefferson): ‘‘I will al-

ways be against the death penalty,
until the infallibility of human judg-'
ment is demonstrated tome.”

Our judgmental shortcomings in-:

: |; elude our colossal inability to crawl

his

fit

out of the muck of racial prejudice.
One..of Mr. Hance’s death penalty,

. jurors was a white woman named,
.« Patricia Lemay, who came forward
.- to tell of scurrilous racial remarks,
made by some of her fellow jurors:
about Mr. Hance, who was: black.:
Among other things, Mr. Hance was.
- referred to as “just one more sorry; |
‘«< fiigger that no one would miss.”
Not only does the death penalty fall: |
.. disproportionately on the black’ and:
, te’ the poor, but white persons who,mur- —.
der blacks are almost never put to _

death. In the nearly 240 executions
that have taken place since the death

2s, penalty was reinstated in the United
4,, States in 1976, only one — just one —

_. was of a white person who killed a

“)it

bey -

As

Gj.

_ a lifetime.

a

black. That was a case in which a .

white man convicted of nine murders

and already in prison killed a fellow.

inmate who was black. bot cack

‘The frailties of men’ and women.”
_ cannot be fixed with legislative vor:
bureaucratic tinkering. We should rid;
ourselves of capital punishment and -

‘impose life sentences that really last
fo

es

m

t

he New York E

Gi
rete, Ua

Section

THE WEEK IN REVIEW

il 3, 1994

Sunday, Apr


Rae

—

Killer Denied Clemency in Case.

In Which Juror Now Denies Vote

Special to The New York Times

ATLANTA, March 30 — The Geor-
gia Board of Pardons and Paroles
today rejected a last-minute clemen-
cy petition from William Henry
Hance, a former marine who is ap-
pealing his death sentence on the
ground that he is mentally retarded
and that one of the jurors in his trial
now says she never voted for a death
sentence.

A second juror recently swore in an
affidavit that the sentencing delibera-
tions were marked by misinforma-
tion, misconduct and racial bias.

Mr. Hance, who is black, is sched-
uled to die on Thursday at 7 P.M. in
Georgia’s electric chair for the 1978
murder of a prostitute. His lawyer,
Gary Parker, said he would appeal
the death sentence to the Georgia
Supreme Court and, if necessary, to
the United States Supreme Court.

‘Cousin to a Lynching’

“If you want to see the judicial
System at its worst, watch a death
penalty case, particularly in the
South,’’ said Mr. Parker, a former
Georgia State Senator. “This case is
first cousin to a lynching.”

Gayle Daniels, the only black juror
in Mr. Hance’s 1984 sentencing trial,
came forward recently in response to
Mr. Parker’s appeal, Saying that she
did not vote for the death sentence
and that the jury foreman had lied in

Saying that a unanimous verdict had .

been reached.

After the hearing today, Ms. Dan-
iels told reporters that other jurors

had pressured her to reach a verdict _

of death so that they could go home
for Mother’s Day. After she ‘pushed
back her chair’ and walked away,

she said, the foreman announced to —
‘the bailiff that the jury had reached a

unanimous verdict of death. When the.
judge asked for a roll-call, Ms. Dan-
iels said, she was afraid that if she
contradicted the foreman she could
be accused of perjury.

“I feel terrible, as if I had a chance
to save a life and didn’t,”’ Ms. Daniels
said. The alternative to a death sen-

tence would have been life in prison.

After the verdict, Ms. Daniels said,
she called a local reporter who ar-
ranged for her to visit Mr. Hance in
prison and explain what had hap-
pened. She said she had not discussed
the incident for 10 years because no
one had asked her about it.

“It was a relief” to finally tell Mr.’

Parker her story after he contacted
her a few weeks ago, she said.

Mr. Hance’s lawyers recently ob-
tained an affidavit from Patricia Le-
May, who served on the jury with Ms.
Daniels, confirming her account of its
sentencing deliberations.

Mr. Parker complained to the pa-
role board that the prosecutor did not
consult with family members of the
victim, Gail Faison, regarding Mr.
Hance’s sentencing, as is the normal
procedure. Mr. Parker did, however,
and presented testimony to the board
in which Ms. Faison’s family mem-
bers plead with the state to commute
Mr. Hance’s sentence.

3

Prosecutors Defend Actions

William Smith, who prosecuted the
case, has said that he did not contact
members of the victim’s family be-
Cause they lived in Miami and ‘“‘there
was not really family to talk with.”

Mary Beth Westmoreland, senior
State Assistant Attorney General,
said the case was handled with due
process. She said that Mr. Hance had
two habeas corpus hearings and that
a motion for a third hearing was
denied this week by a judge on the
ground that Mr. Hance had not met
the state’s definition of mental retar-
dation.

Georgia law defines a mentally re-
tarded person as having ‘“‘significant

subaverage general.intellectual func-.

tioning.” The generally accepted
boundary of mental retardation is an

1.Q. level of 70. In 1984, psychiatrists
determined that Mr. Hance was bor-

derline retarded, with an I.Q. of 76. In
another evaluation in 1987, psychia-
trists said he had an I.Q. of 91, within
the average range of intelligence. |

sctnomeeuaaens

west will become warmer with cons
able sunshine.

Focus: Out Like a Lamb

For much of the East, March car
like a lion, and, with the exception
weak disturbance over the Midate
lantic States today, it will go out fi

Extended Forecast

Saturday and Sunday: Chilly a
circulate into New England and per
into the northern Middle Atlantic re
as high pressure moves into ea:
Canada. The boundary betwees
creasingly warm air over the Soutt
a very cool air mass across the b
will become active with rain and ;
showers from New England acros:
Great Lakes and into the nort
Plains. The Northwest will turn c:
with mountain snows.

United States and For:

U.S. Cities Following are the highest
lowest temperatures for the 19 hours end
P.M. (E.S.T.) yesterday, the precipitation fo
18 hours ended 2 P.M. (E.S.T.) yesterday
expected conditions for today and tomorro\

Weather conditions: C-cloudy, F-fog, H-h:
l-ice, PC-partly cloudy, R-rain, Sr-show

Thirsdhag

|B B/- 74.

¢
\

ae nen

The New York Gimes

° Pp: Fi had

S-sunny, Sn-snow, SS-snow show
T-thunderstorms.
Cities Yesterday Today Tomor
Albany 45/30 .03 49/29 PC 49/28
Albuquerque 57/32 0 66/33 PC 68/34
Anchorage 43/35 0 42/25 PC 42/25
Atlanta 67/42 0 57/40 PC 62/36
Atlantic City 52/35 0 52/34 C 55/37
Austin 68/50 0 68/44 PC 72/52
Baltimore 55/36. 0 55/35 C 59/37
Baton Rouge 70/41 0 66/42 § 68/40
Billings 66/35 0 67/36 S 65/36
Birmingham 66/37 0 58/38 § 66/33
Boise 71/33 0 67/42 C 66/40
Boston 48/36 0 53/34.PC 48/37
Bridgeport 51/34 0 52/33 PC 53/42
Buffalo 42/34 0 44/30 PC 45/32
Burlington 42/28. 0 45/28 PC 43/27
Casper 61/25 0 65/30 S$ 68/32
Charleston, WV 54/32 O 52/38 C 65/32
Charlotte 62/37 0 58/44 Sr 65/38
Chattanooga 62/33 0 56/39 PC 67/32
Chicago 42/25 0 53/23 § 49/35
Cincinnati 48/28 0 53/32 PC -61/32
Cleveland 42/30 0 49/25 PC.51/30
Colo. Springs 50/17 0 60/22 S$ 64/29
_ Columbia 68/37 0 64/43. PC 67/38
Columbus 48/28 0 52/31 PC 56/32
‘Concord 47/23 0 49/24 § 49/28
Dallas-Ft.Worth 58/46 0 71/36 PC 75/47
Denver 58/23. 0 64/29 S$ 66/33"
Des Moines 44/21. 0 61/26 S$ 67/36
Detroit 43/30 0 55/27 § 53/31
EI Paso 63/42 0 72/38 PC 74/42
Fairbanks 39/30 0 40/25 C 42/18
Fargo 45/23. 0 50/30 S$ 52/32
Hartford 48/30 0 52/29 PC 53/34
Honolulu 80/65 0 80/69 PC 81/69
For home


‘The state of Georgia plans to go
ahead.with tomorrow's execution of
Willian Henry Hance even though

A second juror naw’ Cie forward
with a sworn affidavit acknowledging
the shenanigans that went on during
the sentencing deliberations. The ju-
ror, a white woman, also says that the
process was tainted by racial preju-

“dice.

Mr. Hance, who is black, beat two

prostitutes to death in 1978. He was

convicted of the murder of one of
them, Ga‘l Faison, et a trial ia which
he was ailowed to act as his own co-

counsel despite the fact that he is

seriously mentally disturbed. Re

From that questionable start, the
standards of justice in this case have
slipped steadily lower. The first death
penalty verdict was reversed be-
cause of prosecutorial misconduct. A
second jury was empaneled and re-
turned a death penalty verdict, but
only after a farcical set of delibera-
tions.

On Sunday I wrote about Gayle
Lewis Daniels, the only black person
on the second jury, who said in a

‘sworn affidavit that she had never

agreed to a death sentence. She said
that from the beginning of the delib-

erations, most of the jurors were in-

clined to impose a life sentence but
were afraid that Mr. Hance might get
out of prison in “‘just a few years.”

Unable to find out from the judge
what a life sentence ‘“‘meant,’’ the
jurors began leaning toward the
death penalty as the only way to
insure that Mr. Hance would never be
released. The pressure to reach
agreement on a verdict — any verdict
— intensified because Mother’s Day
was approaching. The death penalty
was the easy out.

Ms. Daniels refused to go along.
Because of Mr. Hance’s mental condi-
tion, she did not believe he should be
executed. The jury got around this
dilemma by the fantastic expedient of
ignoring Ms. Daniels. The jury told

‘the judge — falsely — that it had

agreed unanimously on a death pen-
alty verdict. By the time the jurors
were individually polled, Ms. Daniels
was too frightened to say that she had
been a holdout.

Attorneys for Mr. Hance have now
obtained a sworn affidavit from Pa-
tricia Lemay, who served on the jury

‘with Ms. Daniels and corroborates

Ms. Daniels’s account of the delibera-
tions.

“One by one,” said Ms. ‘Lema 4

woman, Gayle, were holding out for

life, There was a good deal of racial i 3

tension in the jury room, and the
other jurors made repeated com-:
ments between themselves about the
race of the defendant and the one
black woman holding out. I specifica)-'
ly remember one white woman, back

_ in the hotel room, stating, ‘The nigger

admitted he did it, he should fry."”— ™

Ms. Lemay added, ‘‘The pressure | Lj

was particularly strong because of

Mother's Day, which was that Sun- ©
day. I finally gave in and went along ASS

with a death sentence because some-
one said if the jury hung, there would.

have to be another trial. If I had"~f)
known a hung jury meant the judge _ 2

would impose a life sentence, I would
definitely have held out for life. Gayle *'
continued to hold out. She refused to on
pa ew
103
‘isl

Yet an execution »s
is scheduled. =

“9b.
{90

take part in the vote for death.” a
Yesterday, in a telephone inter- D
view, Ms. Lemay told me that she had
felt ‘‘nauseated” when the verdict me
was finally in and the jurors were -
released. She said the deliberations 9
had been marked by several ugly’*’°
racial comments made outside Ms. ‘C2
Daniels’s presence. She said the com- “i
ments included references to Mr. 24
Hance as a “typical nigger” involved 71?
in a murder and “‘just one more sorry ints
nigger that no one would miss.”’ 1G?
At one point, she said, a juror re-
marked that executing Mr. Hance. pq
would result in “one less nigger to,, 4.
breed.” iz
This unequivocal evidence of rac- °

J

‘ism and misconduct by jurors has

had no impact on Georgia state au-

thorities. An appeal on Mr. Hance’s
behalf was denied in Superior Court 22
on Monday evening. sob
It’s tough trying to stop an execu-’9°
tion in Georgia, which is known by‘
capital punishment opponents as the #4
“buckle of the death belt.” Mr.oO
Hance’s lawyers will now move for avo
stay in Georgia Supreme Court. Ajsi
clemency hearing has also been,

scheduled for 10:30 this morning be-

fore the State Board of Pardons and ,
Parole. O. ie
“Yo


HANCE, William Henry, black, elec. GAS (Muscogee) March

J14 19936

The ‘Forces of Evil’
~ Killin

Body of Karen Hickman was found at Ft. Ben-
ning, where she was a private in the army.

by CHANNING A. CORBIN

\

€

Victim Irene -Thirkfield. Suspect told how he
cried as he beat her to death with a jack handle.

U p until the month of September, 1977, the residents of Columbus, Georgia
lived under a black cloud of fear and terror. A monster stalked the commun-
ity, preying on its most defenseless citizens, women in their sixties and
seventies. His trademark was a silk stocking which he used to throttle the life
from the frail bodies of his seven victims.

Police were severely stymied in their
attempts to apprehend the ‘‘Stocking
Strangler,’ as he was dubbed by the news
media. Even as they worked around the
clock to solve these seven atrocities,
another terror began to materialize...

At about 1:30 p.m. on the afternoon of
Tuesday, September 6, 1977, an olive
green U.S. Army truck loaded with GI's
passed through the Sandhill entrance at

Ft. Benning, the world’s largest infantry
training center. Suddenly one of the sol-
diers yelled and pointed to a ditch. A
dozen pairs of eyes followed his out-
stretched arm. There in the ditch lay the
nude body of a woman, ;

The driver heard more shouts and he

‘braked to.a sudden stop. Several soldiers

bailed out over the tailgate and started »
towards the body. A non-com halted,

et 15) ie

rs as a

them and ordered them to keep their dis-
tance. Even from where they stood they
could see blood and signs of violence.
The military police were contacted.
M.P.'s and CID agents were dispatched
to the scene. The FBI would later join the
investigation.
After the crime scene was, processed,

(continued on page 8)

‘ eat +

Brenda
Brenda.
die; but
to

STARTLING DETECTIVE,

November, 1981.


: told how he
ajack handle.

sus, Georgia
he commun-
‘ sixties and
rottle the life

1em to keep their dis-
here they stood they
id signs of violence.
ze were contacted.
ents were dispatched
31 would later join the 4

icene was processed,

on page 8)

28 PStrouds
if
2

--QThamaston SS
feo Vide OPES

2) 5 Op Reber be haan
m bdO &) i
AS:

Montez Headersor |

’ sa Vist
ee asta Oglethorpe ¢

>: Ynaditia”

: ; i re j A iiaiitle dy Andercente Hawhonsste
Brenda Gail Faison, also known as " intent” }- 5)
7? / /

Brenda Jackson. She was the first to - Vienna |
die; but hers was the second body

to be found by police.

Pa

Arrow points to Fort Benning near Columbus,
Georgia, where local sergeant terrorized area.

LE RN EA? hE

eh ln PR

aac 6

er


UNITED STATES y, VAN DYKE 957
Cite as 696 F.24 957 (1962)

[4345] Under Georgia law, if the trial issues involved in this case. The district

evidence of venue,!5 the court need not spe- For the reasons stated in Parts VI] and X
cifically charge the jury that Proof of venue of this opinion, petitioner’s death sentence

structed the jury that each material ele-

bee Of the indictment must be proved less than death in accordance with state
beyond a reasonable doubt. The court’s law.

Cir.1975) (court’s only reference to venue w
was made in reading the indictment—not

XII. EVIDENTIARY HEARING IN $
THE DISTRICT COURT

The UNITED STATES, Appellant,

unless one of the exceptions Set out in 28 v.
U.S.C.A. § 2254(d) is established. Sumner LJ. and Marjorie VAN DYKE,
, Supra, 449 U.S. at 544-45, 101 S.ct. Appellees.

at 767-68. This is true even if the factual

findings are made by a State appellate Appeal No. 255-79T.
' court. Id. at 54546, 10] S.Ct. at 768-69, United States Court of Appeals,
( When a state court has afforded the peti- Federal Circuit.
tioner a ful] and fair evidentiary hearing on Dec. 23, 1989

[48] Hance submitted a 35-page petition United States Claims Court ordered refund.
to the district court, alleging numerous con- On appeal by the United States, the United
m Stitutional violations and claiming that he States Court of Appeals, Federal Circuit,

as to venue, though Slight, is suffi- Ellard y, State, 233 Ga. 640, 212 S.E.24 816, 818
there is no conflicting evidence, , (1975).


As the prostitute began to slowly strip before his eyes,
the psychotic sergeant’s fury rose steadily. When she
was fully naked, he lashed out at her flesh with one

karate chop after another. -

the corpse was removed and scheduled
for an autopsy. Cause of death was de-
termined to be the result of a savage beat-
ing and severe head wounds. The victim
was identified as Pvt. Karen E. Hickman,
26, a member of the Ist Advanced Infan-
try Training Brigade. Her service jacket
listed Omaha, Nebraska as_ her
hometown.

The army launched a massive investig-

ation into the murder of Private Hickman
in an effort to locate her slayer. On Oc-

tober 17, 41 days later, the body of an-.

other female murder victim was found

just half-a-mile from where. Hickman’s .

was discovered. She was identified as
22-year-old Gabrielle Badger, the es-
tranged wife of a serviceman stationed at
Ft. Benning. A postmortem examination
established that the young woman died as

the result of a vicious blow to the head

administered by the proverbial blunt in-

strument.

CID investigators opened their probe
by interviewing everyone who'd known
Pvt. Hickman in an effort to recreate her
last hours of life. In this manner, they
were able to place her in the Hideaway
Club located on Kelly Hill near Ft. Ben-
ning the night before her brutalized
corpse was spotted in the ditch by a
soldier on a passing truck. Brutalized
hardly describes the condition of the.
victim's corpse. During the course of the
pathological examination it was learned.
that evidence indicated that not only had
she been grossly beaten with both a club
and possibly a hatchet, but also run over
and rammed with a car. Vaginal smears
and swabs dispatched to the U:S. Army
CID Crime Lab. in Ft. Gordon, Ga., also
indicated that Pvt. Hickman had sexual

‘intercourse shortly before her death. It

could not be determined if she had wil-
lingly participated or been raped.

An anonymous caller later gave infor-
mation which directed military inves-
tigators to a dirt road on the Ft. Benning
reservation where they found Hickman’s
clothing. A Toyota belonging to her was
also located. Bloodstains and other phys-

ical evidence found inside and on the veh- |

icle tended to indicate that it was directly
involved in the commission of the crime.

During the month of March, 1978, Col-
umbus police were still actively engaged
in their efforts to apprehend the elusive
Stocking Strangler while military police
investigators pressed their search for Pvt.
Hickman’s slayer. Ft. Benning and Col-
umbus, Georgia, are traditionally very
closely intertwined communities, one
civil and the other military. What in-
volves one usually involves the other.
During the last week of March, Columbus
Chief of Police, Curtis McClung, re-

\

William Hance, the army muni-
tions handler who called himself
Chairman of the Forces of Evil.

\ ‘

ceived ar
McClung
crank lett
U.S. Arr
the letter
of the im;
It went
the letter
Besides C
named Ire
F.O.E. ar
on the rev
bus to ‘‘w
one with '
another b
The tex
blurred.
and a pos
(sic) that
her!!! DE
goals and
jumble in
two wom:
Chief M
trying tot
chairman
tigators w
in that all
concentra
Even a:
developm:


Fg rte, Ae

Friday, April 1, 1994

Georgia execution delayed,
while Texas inmate executed

By The Associated Press

The Georgia execution of a
former soldier convicted of
killing a prostitute was delayed
Thursday night by U.S. Supreme
Court Justice Anthony Kennedy
while the court considered an
appeal.

Corrections Department
spokeswoman Vicki Gavalas said
Kennedy issued a two-hour delay
for the-scheduled 7 p.m. execution
to allow time for the Supreme Court
justices to “pe polled. Kennedy
issued his postponement about 6:30
p.m.

William Henry Hance, a 45-
year-old former Fort Benning sol-
dier, was convicted of murder in
the 1978 bludgeoning death of
Brenda Gail Faison, a 21-year-old
prostitute.

Appeals previously had been
rejected by the Georgia Supreme
Court and a US. District Court,
despite a juror’s insistence that
she never voted for the death
penalty.

His lawyer, Gary Parker, argued
Hance should be spared because of
the juror’s claim. Parker also said
Hance is retarded.

Earlier Thursday, a former con-
struction worker was executed in
Texas for killing the husband of a
restaurant manager during a 1985
robbery. :

In the Georgia case, Gayle
Daniels, who served on the jury
that sentenced Hance in 1984, said
she never voted to impose the
death penalty inside the jury room,
and that she told the judge she had
done so because she felt coerced by
fellow jurors. é

A second juror backed up Ms.
Daniels’ claim.

A death sentence requires a
unanimous vote of the jury.

Hance was accused of writing
letters signed “Chairman, Forces of
Evil” in which he threatened to con-
tinue killing black prostitutes until
Columbus police caught the person
responsible for the slayings of

seven white women in the late
1970s. Faison was black, as is
Hance.

Hance was convicted of two
other murders in a military court
and sentenced to life”

In Texas, Freddie Webb was put
to death by injection hours after the
U.S. Supreme Court rejected an
appeal.

His mother and sister watched a
few feet away from behind glass,
praying aloud, telling them they
loved him and pleading with him to
be strong. He smiled and nodded
toward them, and a tear slipped
down his cheek. He had no final
statement.

Webb was convicted of murder-
ing Leopoldo Cantu, man who was
shot after a robbery at a restaurant
where Cantu’s wife worked. At the
time, Webb was on parole for rap-
ing a child.

“He’s just a predator,” said Bill
May, the former prosecutor who
sent Webb to death row. “Some-
times you have to protect yourself
from predators, even though it’s not
pleasant.”

Webb’s lawyers contended the
jury that sentenced him was given
improper instructions and that his
original appeal was mishandled by
his previous attorneys.

Cantu, 26, and his wife, Eliza-
beth, were abducted at a car wash
after closing the restaurant. They
were taken back to the restaurant,
where Mrs. Cantu was forced to
open the safe and surrender the
day’s receipts. The amount was not
disclosed.

She was tied up with an electri-
cal cord and left inside the building.

Webb and Larry Alfred then
drove her husband to an isolated
area and shot him to death.

Alfred is serving a life sentence.

Webb was the 230th person
nationwide, and the 73rd in
Texas, to be executed since the
Supreme Court in 1976 allowed
capital punishment to resume.
Texas’ total is by far the highest
in the nation.

~ a


Victims’ relatives
seek execution stay

Relatives of two victims in the Columbus
“Forces of Evil” murders asked Georgia’s
clemency board Monday to

Ji a( a. commute the death sentence of

William Henry Hance, who is.
COURTS to be executed Thursday for

one of the slayings.

Hance, a former Fort Benning soldier, was
convicted of murder in the 1978 bludgeoning
death of Brenda Gail Faison, 21, of Columbus. He
directed police to the body of a second victim, —
Irene Thirkield, after his arrest.

His original death sentence was thrown out in
1983 by a federal appeals court, but he was given |
the death penalty again during a 1984 retrial.

Hance’s attorneys asked the state Board of
Pardons and Paroles in Atlanta to commute the
sentence, halting the execution. The board has set
a hearing « on the appeal for Wednesday.

In sworn statements that accompanied the
appeal, family members of Faison and Thirkield
urged. clemency.

The determination of when Hance should die
‘is something which is better left in the hands of
the Lord,” said a statement slgees by Faison’ s
brother, ‘Robert.

A statement from Aaron King, brother of
Thirkield, ‘said family members “do not want
William Hance to be executed.” Thirkield’s
- slaying was used as evidence against Hance at his

resentencing trial.

Bs: . Staff, wire reports

LEDGER-ENQUIRER,
Columbus, Georgia, March 29, 1994 (B2)

EDGER-E

OF SRO EN >... Shursday
ie i ig ee ad wadleia\’ ant'WA _ —

Bi

HANCE | F:om

aia

clemency
‘death-ro'

other murders. -> of,Ire!
kield and Karen Hickman xr
to life. at hard), labor.oeThe,
in 1980,:-but he was nretri
because of the civil
tions icic wi taval S(nGers pied

Hance’s,.death; sentence;
thrown out in.1983 by.a:federal’,
appeals court, and he. was given..|.
the death again 1g
1984 retriali.e \. 9.) 29%q Solo"

Hance was accused of.w. if
letters signed “Chairman; Fore-)))

Wontorant
clemency

rr Bennine SO1M1e:

gia child cy

E 7
i
:

fates “parole
yWednesday
execution i
‘Forces of Evil murders 'in..Col
ballot. the
pleas f

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criminal, . soid- Chairm g

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eorgia UD ef C ve

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Seq MANCE, Baer

Ae each “er yerdiche lia.


STARE WRITER

Woman: says, :

fter 10 yea a ‘sil
A who says she al;
lowed herself to be
cowed into voting to send Wil-
liam Henry Hance to the elec-
tric chair has stepped forward”
to try to save him. .
She may be too late.© ©" !
» The Georgia Board of Par-
dons and Paroles listened im-
passively to Gayle Daniels
Wednesday and then denied
Hance clemency, clearing the ,
way for his execution: this eve-.
ning at 7.
“One of the board’ mem;.
bers told me, ‘I hope you don’t
take this on your shoulders,’ ””

- Daniels said. “But I will live’

with this for the rest of my life. -

“If they execute him now, _,

AM) ent slot 4

10 ye rs later, 's
voted agree thsenté

‘William Hany Hance! *!
is to be electrocuted to> *
night for murder, thou
Gayle Daniels, who was 6)
the 1984 jury that sen- ry
«tenced him,said:the vote »
‘had’ notbeen: ncaa

ese" gnibest nplie Ingrust nay

® vvhen the jig
Nv returned. to, the; 5.

CTH F courtr aapnoey on
unis so COULELOO mh anid von
what Iydid that,day in 1984, anit sth 3

more that Ponswoe i ah 4 wept’, IS
The Saturday before Moth: oan indi sia a

er’s Day 1984, Daniels: says,”

she savadi in to pressure from.”

11 other impatient jurors | who bef

wanted to sentence. Hance to" efore eta she he a

death and get out of count -
dL for death

Her story corroborated ” F901 ® vated oe? grayed 193 08-.-
For hours that,day, Dan- 0 ~ Ny
iels, then 26 years old and the... 80.
only black person on the jury,..
held out for a a sentence for... |

TSF ph al

Hance.

She shad ae Goubt that’
* Hance was guilty of murder- ,

ing a young Columbus woman.
in 1978, and she didn’t oppose

cally. But she felt that he was
too mentally impaired .to_ un;

the death penalty philosophi-. 1 SHEED the juror’. sp ie

and didn’t deserve to die.

“I pushed my, chair away, .not te publicize Daniels's.
1s Fy out-of respect for her
is no way [she would vote for i) cernthat she might. be pr

from the table, and said there,

death],” Daniels said. ,
Another member, of. the,
jury, Patricia LeMay, ¢o.

.,,80. distrau Bk “that. ne r-
,, ranged to meet Hance ir

\éI eck Ais shales

derstand ' what he, had done ong NO: “38

ROY FR a a, Sy
*

/ vay SoS pat “that

om ae prison meeting be-

oe

bad stow «

BIL BIO 9e) OS. 0

Harbison said he pro

<9 cuted for her.flip-flop t

Bion! the, jury, .,room,; and

en COULtLOOM, wis § els Sark? CAD

orated: Daniels’s Lath ; rong sixo soDaniels,-asoftes:

by one,”
sworn affidavit, “the Ni

began to vote for death un

only myself and’a'young black A :
woman, Gayle, were holding se beers .
, out. for life. I finally’gave in.

. Gayle continued to -held

told: the bailiff that a unani-
mous verdict was reached,

When the jury returned

the courtroom and the mem-

. bers were polled individually,

Daniels froze for a moment
before saving she had voted

out. She refused to take partin t toned that ae

ee
‘the vote ne ee eat had been se
Even so, thé jury foreman

-= Supreme Court.-They havi

eal waa bus revel agent sid aa

legal reper-

bee ewes

te
swore ic
they’ Eipnee ators

d
e
olan gr ia
* gued that Hance otleg -
ly be executed iniGeorgig
cause he. ig mildly rah
and has brain damage. '

HF

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George Exe

Allow Review

High Court Saistice Acts 35 Minutes Before Murderer Was to Die

By PETER APPLEBOME
Special to The New York Times .-
ATLANTA, March 31 — The 7
o’clock: deadline passed this. evening

without the execution of William Hen-: sa aroles d
ry Hance after United. States .Su-  ency petition on Wednesday after the
- only black juror, Gayle Daniels, said
“that she. never voted for the death
penalty, believing that Mr. Hance was »

too mentally impaired to be executed,

preme Court Justice Anthony. M. Ken-

nedy ordered. a’ temporary: stay to .

allow ‘the Justices to consider last-

‘States. Court of Appeals for the 11th

Circuit, in’ Atlanta, and the Georgia
Supreme Court refused today to halt

the execution. The Georgia Board of.

‘minute appeals from the former Ma-

rine whose death sentence has gener-

-ated accusations of jury misconduct. .

The stay was ordered 35. minutes

Pardons and Paroles denied a clem-

and that the jury foreman lied in
saying the verdict was unanimous.

‘ Another member of the jury,.Patricia

LeMay, corroborated her story ina

‘before Mr. Hance. was scheduled to.

die in Georgia’s electric chair. He had

been convicted of murdering a prosti-

tute in’ 1978.

The temporary stay, which is not

unusual, added a final element of
uncertainty to. a case that gained no-
toriety because of a statement from
the only black juror on the panel that
she did not vote for and did not sup-
port a death sentence in the case.

Mr; Hance’s case comes a month
after Supreme Court Justice Harry A.
Blackmun issued an emotional dis-
sent saying it was a delusion that
capital punishment can be consistent
with the Constitution. It has highlight-
ed once again some of the wrenching
issues of justice and race swirling
around the death penalty when more
than 2,800 inmates are awaiting exe-
cution in the United States.

Mr. Hance’s lawyer went to the
Supreme Court today after the United

signed affidavit. ;

“If they execute him now, they will
be punishing me for what | did that
day in 1984, more than punishing him
for what he did,’ Ms. Daniels said
after the parole board hearing on

- Wednesday.

‘ Death penalty critics have said ev-

erything about Mr. Hance’s trial,
from the decision to seek the death
penalty, to the racial makeup of the
jury, which included one black, to the
racial slurs that Ms. Daniels and Ms.
LeMay say were used during jury
deliberations, reflected racism in Co-
lumbus, a jurisdiction often cited as a
place where blacks are more likely
than whites to be sentenced to death
in capital crimes.

“This was a case infected with rac-
ism from start to finish,’’ said Steve
Bright, a prominent death penalty
lawyer in Atlanta.

But state and local officials fiercely
defended their handling of the case.
The Georgia Attorney General, Mi-
chael Bowers, called Mr. Hance’s ap-
peals a last-minute stall, saying that
by law jurors cannot challenge their
own verdict and that Ms. Daniels was
duly polled about the verdict when it

was handed down and said she con-.

curred with it: : ;

~The law in this country has long
been a juror cannot come along after
the rendition of a verdict and chal-
lenge the verdict,” Mr. Bowers said.
“If it did, every jury verdict in this
country would be subject to challenge
after the fact. There is not the slight-
est iota of doubt about the guilt of
Hance. What needs to be done is focus
on the woman who was killed, not on
this guy.”

Mr. Hance, who like his victim is
black, was convicted of the 1978 mur-
der of Gail Faison. He was also con-
victed in military court, but never
tried in a civilian court, for the mur-
der of another prostitute, Irene Thir-
kield.

There is little doubt that Mr. Hance
committed the crimes. But his de-

fenders say his trials and the history,

of justice in Columbus reflect the

inequitable way in which the death
penalty is administered and the de-.

gree to which race is a factor.

‘‘My position,’’ Mr. Bowers said,
‘tis the man is guilty of murder — has
been found guilty. The focus should be
on his victims. He has been through
the legal process for a period of 16
years, and he deserves what he gets.”

PERCE RMRR

Georgia prisoner executed, still maintaining innockye®

BY ELLIOTT MINOR
Associated Press Writer

JACKSON, Ga. — A former

soldier went to his death in the.

electric chair for the 1978 blud-

geoning death of a prostitute,

demanding to know: “Why are

s+ you executing an innocent man?
SS Why? Why? Why?”

pone William Henry Hance, 45, was

+ executed Wednesday night de-

- spite his claims of retardation

<= and a juror’s insistence that she

_ never voted for the death pen-'
~ alty. The U.S. Supreme Court —
rejected his final, late-hour ap-

peal.
“Right at this very moment I
can prove my innocence,” he said
in a final statement. “I've been
_&» trying to find a judge, any judge,
who would help me. I’ve been
trying to find alawyer. There’s no

evidence of acrime, nomotive,no —

Hance, who was a Marine and
later an Army specialist at Fort
Benning, was convicted of mur-

leads, no clues, no witnesses.”
S

dering 21-year-old Brenda Gail |

ry

Faison. -

He was accused of writing let-
ters signed “Chairman, Forces of
Evil” in which he threatened to
continue killing black prostitutes
until Columbus police caught the
strangler responsible for the
slayings of seven white women in

be spared because he was re-
tarded, he was convicted by a
racially biased jury, and the lone

black on the jury that sentenced |
him in;1984'said she never voted |
for the death penalty. A death ©
‘sentence requires a unanimous

vote.

the late 1970s. Hance was black,
as was Faison. ..

His lawyer, Gary Parker, had
argued that Hance’s life should

A26_ The Sacramento Bee Final e Friday, April 1,1994 @

Bol

: Killer executed
! despite j jury issue
of TLANTA —A former soldier

‘der of a prostitute in Columbus,

Ga., was executed in Georgia’s

€lectric chair on Thursday even-

ing despite a juror’s sworn state-

ment that she did not vote for his
_ death sentence.

. William Henry Hance, 44, was
pronounced dead at 10:10 p.m.
U.S. Supreme Court Justice

Anthony Kennedy had delayed
the execution for two hours
_ While the court considered an
| appeal.
Hance’s clemency petitions

‘+ were denied although juror:
_ Gayle Daniels said that she had’
not voted for the death penalty, «:
believing that Hance was. too.
mentally. impaired to be execut-"
ed, and’ that the jury foreman:
lied in saying the verdict was”
unanimous. Another juror cor-

roborated her story.

convicted of the 1978 mur-’


Georgia eXeCu

Hy (cA) Sen:
tes ex-

despite juror ‘s plea for lenience

The New York Times

ATLANTA — William Henry
Hance, a former Marine convicted
of the 1978 murder of a prostitute
in Columbus, Ga., was executed in
Georgia’s electric chair on Thurs-
day evening despite a juror’s
sworn statement that she did not

vote for and does not support. his -

~ death sentence.

Hance was put to death after Su- -

preme Court Justice Anthony M.

Kennedy. lifted a temporary stay “°° BR AB oe
tion in the United States with no"; ing him for what he: did,’ ” Daniels’:

major legal challenges in. their, .- 2
path, Hance’s case: may say.more — Pe vemeiae  e board hearing |
about the way the death penalty. i is: Se

administered than. about any de- — .
‘bate about continuing: capital, poy S

that had delayed the execution
originally scheduled for 7 p.m. He
was pronounced dead at 10:10 p.m.

The prisoner maintained his in-
nocence in a seven-minute state-

ment before his execution: at the

state prison in Jackson...

“Why are-you executing an inno-

cent man?” he asked.. sik a Why? -
Why?” ea he
Coming:a: ‘month after. ‘Supreme:

friday 4—- (- oF

William Henry
..Hance was.

| accused of
omurdering < a

-ishment.

Hance was the 2318¢: convict exe-

“cuted since the death penalty wa

‘reinstated by the U.S. Supreme
‘Court in’ 1976. There were 38 last

= Story in a signed. affidavit.

Court Justite Harry A. Blackmun = _year, the greatest number of execu-
issued an emotional « dissent. saying tions since i ee. of. fap

went cestoathe. ner, Gar ‘Court-on

the. Cc sttuton
Hai “on “sday. after. the:11th U.S.’ Cir-

8. ighted “once: AS oe
rennin grissuies Of:

ae ae fused to halt the execution. The
But at a time when more than Georgia Board of Pardons and Pa-
2,800 inmates are awaiting execu- roles denied a clemency petition on

Wednesday after the only black ju-

ror,:Gayle Daniels, said that she

had not voted for the death penal-

ty, believing that Hance was too,:.

mentally impaired to be. executed;
and that the jury foreman. lied: in
saying the verdict was unanimous.

Another member of* the: jury,” |

Patricia LeMay, ¢ corroborated her

<-“If they execute him now, “Shaw :
will be punishing me for what I did

- that day in 1984, more than punish- J

Death’ penalty critics fave said :
everything”

nalty, to the racial makeup of ©
the jury, which included one black, —

_to the racial slurs that Daniels. and

LeMay: say wee ‘used during jury ©
deliberations, reflected racism in —

-state ‘courts:in Columbus, a juris-
“diction often cited as a place where —
blacks are more likely than whites ..
tobe: sentenced to death in ‘capital
WUY. “crimes. eke |
i ae Court: of Appeals:.in. Atlanta .. 2 rime
a caine Georgia Supreme Court re-

oSThis. was a case - infected with...
racism from start to finish,” said
Steve Bright, a prominent death =
penalty lawyer in Atlanta.

is

|

t

ibout Hance’s trial, «|.
from the decision to-seek the death: “ET

W66T*ETCuoreW (se8oosnm) AEVD °OoTe *HoeTQ *kaUSH WEPTTITM *aON TE


Victims’ relatives £&
| ° | W
seek execution Stay *

Relatives of two victims in the Columbus
“Forces of Evil” murders asked Georgia’s
clemency board Monday to
Tia (haem commute the death sentence of DB
William Henry Hance, whois (€
COURTS to be executed Thursday for
a one of the slayings.
Hance, a former Fort Benning soldier, was
convicted of murder in the 1978 bludgeoning Ne
death of Brenda Gail Faison, 21, of Columbus. He
directed police to the body of a second victim,

%
Mm
Ay
Irene Thirkield, after his arrest.
His original death sentence was thrown out in ‘

%-

1983 by a federal appeals court, but he was given
the death penalty again during a 1984 retrial.

Hance’s attorneys asked the state Board of
Pardons and Paroles in Atlanta to commute the ‘
sentence, halting the execution. The board has set
a hearing on the appeal for Wednesday.

In sworn statements that accompanied the
appeal, family members of Faison and Thirkield S
urged clemency.

The aelermination of when Hance should die wy
“ig something which is better left in the hands of »

the Lord,” said a statement signed by Faison’s

brother, Robert. OD
A statement from Aaron King, brother of ie
Thirkield, said family members “do not want XQ

William Hance to be executed.” Thirkield’s
slaying was used as evidence against Hance at his

resentencing trial.

Staff, wire reports

mam splnouly ospuryy ug

Former soldier executed

V66L‘L WadV ‘AVOINS

|

A former soldier was executed in
Georgia’s electric chair Thursday

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insistence that she never voted for the
death penalty. William Henry Hance

a 45-year-old former Fort Benning
soldier, died at 7:10 p.m. PST after th

U.S. Supreme Court rejected his final

appeal, which cited 'the juror’s
statement as proof the death penalty

vote wasn’t unanimous, as legally
required. Hance maintainéd his °.

night for bludgeoning a prostitute to
innocence in a seven-minute
statement before his execution at t

death in 1978, despite a juror’s

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state prison in Jackson. Earlier.

Killer Executed — Juror Swears
She Didn't OK Death Penalty

New York Times

spite a juror’s sworn statement -_
that she did not vote for and does—

Atlanta .
William Henry Hance, a for-

mer Marine canvicted of the 1978 —

murder of a prostitute in Colum-
bus, Ga., was executed in Geor-
gia’s electric chair last night de-

not support his death sentence.

Hance was put to death after”

Supreme Court Justice Anthony
Kennedy lifted a temporary stay
that had delayed the execution,

‘originally scheduled for 7 p.m. —
‘Hance was pronounced dead at

10:10 p.m. a
The prisoner maintained his in- ~

he asked. “Why?:Why? Why?”

nocence in a seven-minute state-.
ment before his execution at the
state prison in Jackson. “Why are
you executing an innocent man?”

Hance’s lawyer, Gary Parker,
went to the Supreme Court yester-

day after the U.S. Court of Appeals’

in Atlanta and the Georgia Su-

preme Court refused to halt the

execution.

The Georgia Board of Pardons
and Paroles denied a clemency pe-

tition Wednesday after the only. ~

black juror, Gayle Daniels, said
that she had not voted for the
death penalty — believing that
Hance was too mentally impaired
to be executed — and that the jury
foreman lied in saying the verdict
was unanimous. _

“If they execute him now, they
will be punishing me for what I did

that day in 1984, more than punish- -

ing him for what he did,” Daniels
said after the parole board hearing

' Wednesday.


956 696 FEDERAL REPORTER, 2d SERIES

522-23, 88 S.Ct. at 1777-78. We hold that
the exclusion of Syble Melton and Mary
Turpin was a constitutional violation re-
quiring reversal of Hance’s sentence.

The state argues that even if Ms. Tur-
pin’s exclusion was a Witherspoon violation
it was harmiess error because she was ex-
cluded only from a pool of possible alter-
nate jurors, and would not have been con-
sidered for this jury or for an alternate
position. The state’s argument is precluded
by Davis v. Georgia, 429 U.S. 122, 123, 97
S.Ct. 399, 400, 50 L.Ed.2d 339 (1976) (per
curiam), which held that the improper ex-
clusion of even one out of 83 veniremem-
bers was grounds for reversal of a death
sentence. The scope of this holding is clari-
fied by Justice Rehnquist in dissent who
refers to it as “a per se rule that precludes
application of even the harmless-error test
of Chapman v. California, 386 U.S. 18 [87
S.Ct. 824, 17 L.Ed.2d 705] (1967).” 429 U.S.
at 123-24, 97 S.Ct. at 399-400; accord
Burns v. Estelle, 592 F.2d 1297, 1299-1300
(5th Cir.1979), adhered to, 626 F.2d 396
(1980) (en banc); Moore v. Estelle, 670 F.2d
56, 57 (5th Cir.), cert. denied, —— US.
——, 102 S.Ct. 3495, 73 L.Ed.2d 1875
(1982). The state’s argument that the
Witherspoon violation was harmless be-
cause two peremptory challenges remained
after the jury was selected also must fall
under the holding of Davis. Burns v. Es-
telle, supra, 592 F.2d at 1299-1300; Moore
v. Estelle, supra, 670 F.2d at 57; Blanken-
ship v. State, 280 S.E.2d 623, 623 (Ga.1981).

[39,40] Petitioner’s argument that the
trial court denied him due process by re-
fusing to exclude veniremember Kathryn
Hamilton for cause after she showed bias in
favor of the death penalty, while excluding
veniremembers Turpin and Melton for their
opposition, lacks merit. We read Adams v.
Texas, supra, 448 U.S. at 45, 100 S.Ct. at
2526, to suggest that if veniremembers can-

14. Dictum in Stroud v. United States, 251 U.S.
15, 20-21, 40 S.Ct. 50, 52. 64 L.Ed. 103 (1919),
reh’g denied, 251 U.S. 380, 40 S.Ct. 176, 64
L.Ed. 317 (1920), indicated “it may well be”
that a challenge for cause to a veniremember
who was “in favor of nothing less than capital
punishment” should have been sustained. Pe-

not be excluded because of their views
against the death penalty unless those
views would substantially impair the per-
formance of their duties, the same standard
should apply to a veniremember in favor of
the death penalty."4 A person who favors
the death penalty can be entrusted to make
the choice between death and life imprison-
ment unless that person’s bias for capital
punishment is unequivocal and absolute.
See Witherspoon, supra, 391 U.S. at 519, 522
n. 21, 88 S.Ct. at 1775, 1777 n. 21. In this
case, Ms. Hamilton indicated that she would
follow the court’s instructions even though
she favored imposing the death penalty.
Because her decision would not be automat-
ic, the trial court’s decision not to exclude
her for cause was not a denial of due proc-
ess.

XI. THE JURY CHARGE ON VENUE

[41,42] Petitioner claims that the trial
court’s failure to specifically charge the
jury on the issue of venue was constitution-
al error. He argues that venue is an essen-
tial element of a criminal offense, Parks v.
State, 212 Ga. 433, 93 S.E.2d 663 (1956), so
under In re Winship, 397 U.S. 358, 90 S.Ct.
1068, 25 L.Ed.2d 368 (1970), it must be
properly charged and proved beyond a rea-
sonable doubt. Although under Georgia
law venue is part of the state’s case and
must be proved beyond a reasonable doubt,
Dickerson v. State, 186 Ga. 557, 199 S.E. 142
(1938), the State of Georgia treats venue as
a jurisdictional fact, id., not as an element
of the offense of murder; therefore, In re
Winship does not apply. See Engel v.
Isaac, 456 U.S. 107, 119-21, 102 S.Ct. 1558,
1567-68, 71 L.Ed.2d 783 (1982). The Con-
stitution does not require that venue be
proved beyond a reasonable doubt. See
United States v. Turner, 586 F.2d 395, 397
(5th Cir.1978), cert. denied, 440 U.S. 926,
99 S.Ct. 1258, 59 L.Ed.2d 480 (1979).

titioner relies on Stroud for the proposition that
a juror should be excused for cause if that juror
is reasonably certain to render a verdict of
death. But Stroud was not a habeas case, and
the Supreme Court did not indicate that the
trial court's refusal to excuse for cause was an
error of constitutional magnitude.

[43—45
court che
of reaso;
evidence
cifically «
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Harwell
708, 709
prima fa:
tradicted
no contre
structed
ment of
beyond a
failure to
therefore
is no qui
constitutic
States v.
Cir.1975)
was mad
reversible

XI. E

re

[46, 47]
a state cc
unless one
U.S.C.A. §
v. Mata, s
at 767-68.
findings a
court. Id.
When a st
tioner a fu
all legitim:
is not req
hearing. |
(5th Cir.), Cc
53, 24 L.Ex

[48] He
to the distr
stitutional
was deniec
these matt:
application
study of tl
State of Ge
a full and

18. Evidenc
cient wher


HANCE v. ZANT

953

Cite as 696 F.2d 940 (1963)

case involving the penalty of death. A
sentence of death imposed after such an
appeal cannot be carried out. The sentenc-
ing hearing in this case was fundamentally
unfair and therefore constitutionally intol-
erable.!?

VII. JURY INSTRUCTIONS—SHIFT-.
ING THE BURDEN OF PROOF

[31-33] Petitioner argues that under
Sandstrom y. Montana, 442 U.S. 510, 99
S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Mason
v. Balkcom, 669 F.2d 222 (5th Cir. Unit B
1982), cert. denied, — U.S. —, 108 S,
Ct. 1260, 75 L.Ed.2d 487 (1983), the trial
court’s jury instructions on intent and mal-
ice impermissibly shifted the burden of
proof to the defense. During the course of
its charge to the jury the court instructed
that intent “may be inferred from the prov-
en circumstances or by acts and conduct, or

it may be presumed when it is the natural
and necessary consequence of the act.”
Even if this charge, in isolation, were im-

permissible, reversal would not be com-
pelled. The petitioner would have to show
that “the ailing instruction by itself so in-
fected the entire trial that the resulting
conviction violates due Process,” Cupp v.
Naughten, 414 U.S. 141, 147, 94 S.ct. 396,
400, 38 L.Ed.2d 368 (1973). The instruction
Should be considered in light of the entire
jury charge and the entire trial. Lamb y.
Jernigan, 683 F.2d 1382, 1889 (11th Cir.
1982).

Immediately preceding the portion of the
charge in question the court had instructed
the jury that the accused is presumed to be
innocent until proven guilty; that a person
will not be presumed to act with criminal
intention; that the State must prove the
existence of criminal intent beyond a rea-
sonable doubt; that intent must be found

fh from the evidence produced at trial; and
= that circumstantial evidence alone would
. not justify a finding of guilt unless the
circumstances are entirely consistent with
the defendant’s guilt, are wholly inconsist-
ent with any reasonable theory of the de-

12, Using the first three factors listed in note 7,
we conclude that the Prosecutor's inflammato-

fendant’s innocence and are so convincing
a3 to exclude a reasonable doubt of the
defendant’s guilt. These prior instructions
make it unlikely that the jury interpreted
the challenged instruction on intent to be
an impermissible burden-shifting or conclu-
sive presumption. Id. Moreover, the chal-
lenged instruction by itself was not uncon-
Stitutional. Unlike the invalidated charge
in Sandstrom which stated that “(t]he law
presumes that a person intends the ordinary
consequences of his acts,” Sandstrom, supra,
442 U.S. at 518, 99 S.Ct. at 2453, this charge
said that “intent ... may be presumed.”
Rather than being a conclusive presump-
tion, one that a reasonable juror would in-
terpret as requiring an inference of intent,
this presumption was permissive. A rea-
sonable jury could only interpret this lan-
guage as permitting the inference describ-
ed—they were allowed to draw the infer-
ence, but they were not obligated to do so.

_Lamb vy. Jernigan, supra, 683 F.2d at 1339-

40; see Ulster County Court vy. Allen, 442
U.S. 140, 157, 99 S.ct. 2213, 2224, 60 L.Ed.2d
777 (1979); United States y. Gaines, 690
F.2d 849, 8538-54 (11th Cir.1982),

[34] The court’s instruction on malice
was also valid. Reading from the statutory
definition, the court told the jury that:
“Express malice is that deliberate intention
unlawfully to take away the life of a fellow
creature, which is manifested by external
circumstances capable of proof. Malice
shall be implied where no considerable prov-
ocation appears and where all the circum-
stances of the killing show an abandoned
and malignant heart.” Ga.Code Ann. § 26-
1101(a) (1976). This instruction tells the
jury that a finding of malice may be based
entirely on circumstantial evidence. It does
not relieve the prosecution from its burden
of proving malice beyond a reasonable
doubt. In light of the court’s explicit prior
directions about circumstantial evidence, we
find no error in the court’s instruction on
malice. Lamb y, Jernigan, supra, 683 F.2d
at 1340.

ry remarks were deliberate, extensive, and
highly prejudicial to the accused.

oP q

f

“ea wy
4


IX. EXCLUSION OF MITIGATING
EVIDENCE

[35] Hance’s testimony in response to
questions from his standby attorney was
the only evidence presented in his behalf
during the sentencing phase of the trial.
At one point counsel stated: “You told us
just yesterday that you didn’t kill these
girls.” After Hance responded that he did
not kill them, the prosecutor objected be-
cause, “that issue has been decided, it’s over
and behind us, it cannot be in mitigation
from punishment at this time.” Counsel
explained to the judge that Hance’s
“thoughts around the subject are relevant.”
He expressed concern that the jury would
“consider in aggravation the fact that he
denied doing something they decided he
did.” He indicated that his questioning was
to allow the jury “to consider his emotions
for denying this crime in mitigation.” The
judge allowed the questioning to proceed.
Hance was then asked if he believed that he
had killed the girls, if he recalled having
killed the girls, if he was speaking to the
court sincerely during his trial and if he
believed his testimony had been true. At
this point the prosecutor objected and the
court sustained the objection, directing
counsel not to follow this line of question-
ing.

Petitioner claims that by sustaining the
prosecutor’s objection the court prevented
the jury from considering relevant mitigat-
ing evidence, thereby violating the Eighth
and Fourteenth Amendments as interpreted
in Eddings v. Oklahoma, 455 U.S. 104, 102
S.Ct. 869, 874-76, 71 L.Ed.2d 1 (1982), and
Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954,
57 L.Ed.2d 973 (1978)."5 We find it signifi-
cant that petitioner has never proffered any
evidence that he was precluded from
presenting. There is nothing in the record
to suggest that the line of questioning that
was objected to would have continued. Ap-
parently, petitioner was trying to show the
jury his reasons for pleading innocent. The
questions that he was allowed to answer

13. In Eddings the Supreme Court stated that
“the sentencer [may] not be precluded from
considering, as a mitigating factor, any aspect

of a defendant’s character or record and any of

954 696 FEDERAL REPORTER, 2d SERIES

were sufficient for this purpose. Petitioner
has failed to make out a constitutional vio-
lation.

X. REMOVAL OF PROSPECTIVE
JURORS WHO OPPOSED THE
DEATH PENALTY

[36] A state may exclude for cause, re-
lated to their opposition to the death penal-
ty, only those veniremembers who “[make]
unmistakably clear (1) that they would au-
tomatically vote against the imposition of
capital punishment without regard to any
evidence that might be developed at the
trial of the case before them, or (2) that
their attitude toward the death penalty
would prevent them from making an impar-
tial decision as to the defendant’s guilt.”
Witherspoon v. Illinois, 391 U.S. 510, 522-23
n. 21, 88 S.Ct. 1770, 1777 n. 21, 20 L.Ed.2d
776 (1968) (emphasis in original); accord
Adams v. Texas, 448 U.S. 38, 44-45, 100
S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980) (“[A]
juror may not be challenged for cause based
on his views about capital punishment un-
less those views would prevent or substan-
tially impair the performance of his duties
as a juror in accordance with his instruc-
tions and his oath.”); Burns v. Estelle, 592
F.2d 1297, 1300 (5th Cir.1979) (“{OJnly the
most extreme and compelling prejudice
against the death penalty, perhaps only or
very nearly a resolve to vote against it
blindly and in all circumstances, is cause to
exclude a juror on Witherspoon grounds.”),
adhered to, 626 F.2d 396 (5th Cir.1980) (en
banc).: The Fifth Circuit has strictly ad-
hered to Witherspoon’s mandate. In Gran-
viel v. Estelle, 655 F.2d 673 (5th Cir.1981),
cert. denied, 455 U.S. 1008, 102 S.Ct. 1636,
71 L.Ed.2d 870 (1982), this Court held that a
veniremember’s exclusion constituted a
Witherspoon violation. When asked if he
could ever vote to inflict the death penalty,
the challenged veniremember had replied,
“No, I don’t think I could.” He was then
asked, “You don’t feel like you would be

the circumstances of the offense that the de-
fendant proffers as a basis for a sentence less
than death.” 102 S.Ct. at 874.

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HANCE vy. ZANT 955
Cite as 696 F.2d 940 (1983)

entitled to take another person’s life in that
fashion?” He nodded and said, “No, I could
not.” The Granviel Court held that these
questions and answers fell far short of the
automatic rejection of the death penalty
required under Witherspoon. Id. at 677
(emphasis in original).

[37,38] Petitioner argues that two
members of the venire, Syble Melton and
Mary Turpin, were improperly excluded for
cause in violation of Witherspoon. We
agree. Their responses regarding the death
penalty were not automatic and unequivo-
cal. On the contrary, they expressed uncer-
tainty about their convictions and ambigui-
ty about their feelings. Their answers did
not indicate that their views about capital
punishment would substantially impair the
performance of their duties as jurors under
oath. See Adams y. Texas, supra, 448 U.S,
at 45, 100 S.Ct. at 2526,

Mrs. Melton’s answers vacillated. In re-
sponse to some questions she appeared firm
about refusing to vote for the death penal-
ty, but her responses to other questions
indicated a lack of conviction.

PROSECUTOR: No matter what the
facts or circumstances of this case might
be, you do not believe that you could
follow the instructions of the Court to
consider the death penalty and vote to
impose it, is that right?

MRS. MELTON: No, sir, as I said before,

I feel there are times when the death

penalty is warranted. I do not believe

that I with my conscience could vote to
impose the death penalty.

PROSECUTOR: No matter what the
facts or circumstances of the case might
be?

. MRS. MELTON: In some cases I might.

» Before excusing her for cause, the judge

© asked a final question.

=. THE COURT: Let me just ask her my
question too, then, are you so conscien-
tiously opposed to capital punishment
that you would not vote for the death
penalty under any circumstances?
MRS. MELTON: As I said before, I be-
lieve there are circumstances where the
death penalty is warranted. I do not
believe that I could vote for it.

Mary Turpin was even less resolute in her
feelings about the death penalty. Although
her initial responses to the prosecutor's
questions indicated that she would not vote
for a sentence of death, upon further exam-
ination she changed her mind.

COUNSEL: If you thought from the
facts you heard in the whole case that
that was the proper decision to make,
that he should be electrocuted, could you
vote that that was what you thought
should be done? ~

MS. TURPIN: Well, this is hard, I don’t
know. I’m just too confused. I don’t
know.

s 2. s. s s s

THE COURT: Well, what we want to
find out is if he should be found guilty,
after you’ve heard all the circumstances
about this case, do you think that there is
any way that you could vote to have him
executed, that is, to find for the death
penalty?

MS. TURPIN: Well, I guess I could.

¢ s s s s s

THE COURT: Well, that’s what we need
to find out whether or not you could vote
for death if the circumstances of the trial,
after you’ve learned all about it, whether
or not you could, not that you would,
whether you could vote to impose the
death penalty?

MS. TURPIN: Well, I don’t know. I just
say that I don’t think I could.

THE COURT: You don’t think you
could? I believe the juror should be ex-
cused for cause... .

If veniremembers who express serious
reservations about the death penalty are
excluded from a jury, that jury cannot fair-
ly represent a cross-section of the communi-
ty. It is a jury “uncommonly willing to
condemn a man to die.” Witherspoon, su-
pra, 391 U.S. at 521, 88 S.Ct. at 1776. Such
a jury lacks the impartiality required by the
Sixth and Fourteenth Amendments. Id. at
518, 88 S.Ct. at 1775. A sentence of death
imposed by such a jury cannot stand. Id. at


Uhh.
sti Thali

i

562 Ga.

4. An admission of the accused in open
court, made as a part of his statement on
the trial, may be treated by the jury as di-
rect evidence of that fact.

5. Where the law applicable to the case
is fully covered by the general charge to the
jury, it is not reversible error to refuse a
request to give a specific charge to the same
effect.

6. The ruling of the court on the admis-
sibility of evidence, as complained of in
ground 12 of the motion for new trial, was
not cause for reversal.

7. Certain assignments of error were
abandoned by the plaintiff in error, and those
not specifically dealt with are without mer-
it. The verdict was authorized by the evi-

dence,
iaeniciincraeenia

Error from Superior Court, Effingham
County; Wm. Woodrum, Judge.

Robert, alias Dobbs, Hargroves was convict-
ed of murder, and he brings error.
Affirmed.

Perry Brannen and Bright, Theus & Bran-
nen, all of Savannah, for plaintiff in error.

W. G. Neville, Sol; Gen., of Statesboro, M.
U. Yeomans, Atty. Gen., and B, D. Murphy
and Jno, T, Goree, Asst. Attys, Gen., for the
State,

HUTCHESON, Justice.

Ilargroves was convicted of the offense of
murder. lis motion for new trial was over-
ruled, and he excepted.

{1] 1. No exception pendente lite was tak-
en to the ruling of the court on the challenge
to the array of jurors, but this ruling was as-
signed as error in the motion for new trial
und in the bill of exeeptions, In this state a
ruling of the trial judge upon such a prelim-
inary issue cannot be considered where no ex-
ception pendente lite was reserved. and the
final bill of exceptions was not filed in time
for the assignment of error to be considered
as a ground of a motion for new trial, This
court can consider only such exceptions as
were taken within twenty days before the
tendering of the bill of exceptions, where no
exceptions pendente lite were taken. Hern-
don y. State, 178 Ga. 832, 174 S. FE. 597; Jones
v. State, 130 Ga. 274, 60 S. BE. 810; Williford
y. State, 121 Ga. 173 (2), 48 S. E. 962; Whit-
ton vy. Barrow, 159 Ga. 57, 124 8S. E. 874; Ben-
ford v, State, 18 Ga. App. 14 (4), 88 S. I. 747,

{2] 2. The accused made a statement short-
ly after his arrest, in which he confessed the
homicide, but claimed that the killing was
done in self-defense, This statement was in-

177 SOUTH EASTERN REPORTER

troduced in evidence by the state; but the
accused, in his statement to the jury, rcpudiat-
ed his former statement and abandoned his
claim of self-defense. Therefore it was not
necessary or proper for the judge to charge
the jury on the law relative to such defense.
The accused cannot complain of a refusal to
instruct the jury on a theory in his interest
in direct conflict with his own statement made
in open court.

[3] 3. Error is assigned on the following
charge of the court: “The question is this—
notice this, now, gentlemen: Was the defend-
ant at the time of. the commis:ion of the al-
leged crime, as a matter of fact, afflicted with
2 disease of the mind, so as to be insane? If
such be the case, did he know right from
wrong as applied to the particular act in ques-
tion? If he did not have such knowledge, he
is not legally responsible; if he did have
such knowledge, he may nevertheless not be
legally responsible if the two following con-
ditions which I will now name you concurred:
first, if by reason of the duress of such men-
tal disease he had so far lost the power to
choose between right and wrong, and to avoid
doing the act in question, as that free agency
was at the time destroyed; second, and if, at
the time the alleged crime was committed, the
act perpetrating the crime was so connected
with such mental disease in the relation of
cause and effeet as for such mental disease to
have been the sole cause of the commission of
said alleged crime. If the two conditions that
I have named occurred at or during the time
of the homicide, you should not convict the
defendant, although you may believe that the
defendant did know right from wrong as ap-
plied to the commission of the homicide in
question.” The question of delusional insan-
ity has often been discussed in this court, but
no better definition or explanation of it has
been made than the ruling in Roberts v. State,
3 Ga. 810, where it is said: “If a man has
reason suflicient to distinguish between right
and wrong in relation to a particular act
about to be committed, he is criminally re-
sponsible, An exception to this rule, how-
ever, is, where a man has reason sufficient to
distinguish between right and wrong as to a
particular act about to be committed, yet in
consequence of some delusion, the will is over-
mastered and there is no criminal intent.
Provided that the act itself is connected with
the peculiar delusion under which the prison-
er is labouring.” That ruling has been con-
sistently followed by this court. Where only
the question of right and wrong is involved,
it is of course unnecessary to deal with the
exception mentioned; and it will be found

.

HARGROVES v. STATE Ga. 563

177
that, in cases where a variance from this rule
is at all indicated, the question of delusion
did not appear. The charge objected to in the
instant case followed almost verbatim the
wording of the charge quoted in Flanagan v.
State, 103 Ga. 619-624, 30 S. E. 550, which de-
cision was based on the Roberts Case, supra,
and in which the stamp of approval was
placed upon the charge herein complained of.
It was a fair and ample statement of the
principle of law involved, and was properly
given in charge by the court. See Danforth
v. State, 75 Ga. 614, 58 Aim. Rep. 480; Carr v.’
State, 96 Ga..284, 22 S. E. 570.

(4] 4. Grounds 7 and 8 of the motion for
new trial assign error upon the failure of the

-court to give certain instruction to the jury.

The charge requested and not given dealt with
two theories of defense: (1) Delusional insan-
ity, which has already been discussed in this
opinion; and (2) justifiable homicide. The
accused made two statements—one while in-
carcerated, which was reduced to writing and
introduced in evidence by the state; the oth-
er to the court and jury on the trial of the
case, In the first statement the accused ad-
mitted the homicide, but stated that the kill-
ing was done in self-defense; and under such
circumstances, of course, no malice would be
presumed. However, in his statement last
above referred to the accused specifically stat-
ed that his first statement was not true, and
that the killing was not in self-defense, but on
the contrary that the deceased was making no
attack upon him or endeavoring to do so. In
view of this repudiation of the first statement,
we do not think the rules laid down in Perkins
v. State, 124 Ga. 6, 52 S. HE. 17, and Green v.
State, 124 Ga. 344, 52 S. BE. 431, are applicable.
The prisoner’s admission in open court, made
as a part of his statement on the trial, may be
treated by the jury as direct evidence as to
the facts. Dumas vy. State, 62 Ga. 58 (3).
Therefore the question of justification could
not be a theory of defense in the case, and the
court properly refused to give the law of
justification in charge to the jury.

(5) 5. The principles of law embraced in
the request to charge, as outlined in grounds
9 and 10 of the amended motion for new trial,
were fully covered by the general charge to
the jury,

S.E.

6. Ground 12 of the motion assigns error
on the admission of certain testimony as be-
ing irrelevant and immaterial and “hearsay.”
In passing upon the objection thus raised, the
court stated just what part of the testimony
would be allowed and what part ruled out.
But, if the testimony was irrelevant, it could
not have been harmful to the accused, and
therefore was not reversible error. .

[6] 7. Error is assigned on the admission,
over objection, of the following testimony of a
witness, D. T. Tillman: “I have heard a lot
of talk about his drinking liquor right smart.
His general reputation is that he was a fel-
low who drank right smart. I suppose he
does drink liquor. He might have been under
the influence of liquor when I saw him acting
curiously, but I don’t think he was. Liquor
will make you act foolish sometimes; they
say it will. It will make you act foolish; and
I don’t swear he was not under the influence
of whisky when I observed him that he did
not act right.” The objection to this was that
it was an effort to put the defendant's char-
acter in issue. We cannot agree with this
view of the evidence, as it seems to indicate
clearly that it was offered for the purpose of
ilustrating mental condition and not charac-
ter.

(7] 8. Error is assigned on the court’s re-
fusal to charge the jury in the language of
the Civil Code of 1910, §§ 2931, 2932, dealing
with the ability to contract marriage, and the
prohibited degrees of relationship; it being
contended by the defendant that one of the
reasons for his weakened mental condition
was the intermarriage within the prohibited
degrees of certain ancestors, The trial judge
certifies that these two sections of the Code
were read to the jury by counsel for the de-
fendant, and that the judge made the follow-
ing statement: ‘The court takes judicial cog-
nizance that sections 2981 and 2932 is the law
of Georgia.” In view of this certificate, the
assignment of error is without merit.

9. Certain assignments of error were aban-
doned by the plaintiff in error, and those not
specifically dealt with herein are without mer-
it. The evidence was sufficient to authorize
the verdict.

Judgment affirmed.

All the Justices concur,


560 Ga.

plaintiff, it would follow that the plaintiff
would have a cause of action over against
Davis upon the indorsement by McLain, his
agent. In the circumstances a cirenity of ae-
tions will result unless a court of equity
should take jurisdiction and grant an injune-
tion to maintain the status and to determine
the rights of all parties in q single action.
The plaintiff has no adequate remedy at law.
The prayers were for injunction against Citi-
zus’ & Southern National Bank and Henry
M. Davis, to prevent the former from paying
and the latter from receiving payment of the
check In question; and for process and gen-
eral relief,

The court did not err in sustaining the de-
inurrer and dismissing the petition; and it
necessarily follows that it was not error to
refuse an interlocutory injunction. The head-
notes do not require elaboration.

Judgment aflirmed.

All the Justices concur, except GILBERT,
J., disqualified.

DAVIS v. WARD.
No. 10164.

Supreme Court of Georgia,
Noy, 17, 1934.

Syllabus by Editorial Staff.

!. Mortgages €>338

In suit by ostensible security deed gran-
tor to enjoin sale under power in security
deed transferred to defendant, on ground of
forgery, charge that defendant had no duty
to inquire of plaintiff or any other person
as to validity of deed held not error,

2. Mortgages €338 i

In suit by ostensible security decd gran-
tor to enjoin sale under power in security
deed transferred to defendant, on ground of
forgery, charge that if plaintiff signed secu-
rity deed and placed it in possession of de-
fendant’s transferor, his purpose in so do-
ing, or his arrangement with transferor, was
immaterial held proper.

3. Appeal and error C>1064(1)

In suit by ostensible security deed gran-
tor to enjoin sale under power in security
deed transferred to defendant, charge au-
thorizing jury to consider, on issue of for-
gery, whether plaintiff received any mouey
from defendant’s transferor held harness to

177 SOUTH EASTERN REPORTER i

plaintiff, even if contradictory of another
charge,
——_>__—

Error from Superior Court, Floyd County;
James Maddox, Judge.

Suit for injunction by H. D. Davis against
Mrs. J. HW. Ward. Judgment for defendant,
plaintiff's motion for a new trial was over-
ruled, and plaintiff brings error,

Affirmed,

Porter & Mebane, of Rome, for plaintiff in
error.

Maddox, Matthews & Owens, of Rome, for
defendant in error.

Syllabus Opinion by the Court.

BECK, Presiding Justice.

The holder and transferee of two notes
and two deeds mate to secure the payment
of the notes was procecding to exercise the
power of sale contained in the deeds, in ae-
cordance with the terms thereof. The former
owner of the land, alleged to be the maker
of the notes and the deeds, filed a petition
seeking to have the sale enjoined on the
ground that he did not sign or execute either
of the deeds or notes, and thus made the Is-
sue of forgery. This issue under the evi-
dence was submitted to the jury, whb return-
ed a verdict in favor of the defendant in the
equitable suit. The plaintiff made a motion
for a new trial, which was overruled, and
he excepted.

1. The evidence authorized the verdict.

[1] 2. Error is assigned upon the follow-
ing charge by the court to the jury: “I charge
you that under the pleadings and evidence in
this case, that no duty devolyed upon Mrs.
Ward to make any inquiry of H. D. Davis, or
any other person, as to the validity of the
two deeds in question, and you would not be
authorized to find in favor of the plaintiff on
any such theory.” This charge was not er-
ror for any reason assigned. If Mrs. Ward,
the defendant, reeeived the notes and deeds,
or had the notes and deeds transferred to her
for a valuable consideration and before no-
tice of dishonor, there was no duty resting
upon her to make inquiries of the maker of
the deeds and notes or any other person as
to the validity of these deeds.

[2] 3. Nor did the court err in giving the
following charge: “If you find from the evi-
dence in this case that 1], D. Davis signed the
two security deeds referred to in the plain
tiff’s petition and placed them in the posses-
sion of Sam J. Davis, I charge you that un-

@For other cuscs see same tupic and KEY NUMBER in all Key Number Digests and Indexes

ot

+ pi tebe i sat

HARGROVES y. STATE Ga. 561
177 S.E.

der the evidence in this case it is wholly im-
material what his purpose was in so doing,
or what arrangement he may have had with
Sam J. Davis with reference thereto, wheth-
er or not he received any of the money paid
by Mrs. Ward for the notes and sccurity
deeds, and whether or not he ever paid any
interest on said notes; for the reason that it
is the law of this State, that where one of
two innocent persons must suffer by the act
of a third person, he who puts it in the power
of the third person to inflict the injury must
bear the loss.’ Sam J. Davis was the hold-
er and transferor of the notes and deeds at
the time Mrs. Ward purchased them, and she
was not affected by any secret agreement be-
tween Sam J, Davis and H. D. Davis, the
plaintiff, unless she had notice thereof, if the
notes were taken without notice of dishonor,
The charge was a correct statement of the
law applicable to the issues in this case.

[3] 4. It is also insisted that the charge
just quoted was error, because the court in
another part of his instructions to the jury
said: “I charge you that you may look to
the evidence and determine whether or not
the plaintiff in this case did receive any
money or anything of value from Sam J,
Davis, as a result of the plaintiff's name be-
ing signed to these deeds to secure debt and
these notes, to aid you, if it does aid you,
in determining whether or not the plaintiff
signed the deeds to’ secure debt and these
notes, and you may consider this evidence,
and see whether or not it throws any light
on the question as to whether or not the
plaintiff in this case signed the deeds to se-
cure debt and these notes.” Even if this last
excerpt from the charge is contradictive of
the charge quoted above, it was not harmful
to the plaintiff,

Judgment affirmed.
. All the Justices concur,

CD

HARGROVES v.STATE. ?
No. 10158,

Supreme Court of Georgia.
Noy. 16, 1934.

!. Criminal law €=918(3)
Rulings on challenge to array cannot be
asserted as grounds of motion for new trial.

2. Homicide €=300(9)

In murder prosecution, where accused's
statement to jury repudiated claim of scl!-
defense, refusal to charge on self-defense held
not error, notwithstanding prosecution intro-
duced statement of accused confessing kill-
ing but claiming that killing was done in self-
defense,

3. Criminal law €=49

One is not criminally responsible, though
endowed with sufficient reason to distinguish
right from wrong as to particular act about
to be committed, where, in consequence of
some delusion, will is overmastered and
there is no criminal intent, provided that act
itself is connected with such delusion,

4. Criminal law €=409

Admission of accused in open court,
made as part of his-statement on trial, may
be treated as direct evidence of fact admitted.

5. Criminal law €=829(1)

Where applicable law is fully covered
by general charge, refusal to give specific
charge to same effect is not reversible error.

6. Homicide €>163(1)

In murder prosecution, defended on
ground of insanity, testimony that accused
had reputation for drinking and that accused
might have been under influence of liquor
when witness saw him acting curiously, but
that witness did not think he was, held not
objectionable as putting accused's character
in issue.

7. Criminal law €=808!/,

In murder prosecution, defended on
ground of insanity caused by intermarriage
of accused's ancestors within prohibited de-
grees, refusal to charge statutes dealing with
ability to contract marriage and prohibited
degrees held not error, where accused's coun-
sel read statutes to jury and judge stated
that court took judicial cognizance that such
statutes were the law (Civ. Code 1910, §§ 2931,
2932).

Syllabus by the Court.

1. Rulings on a challenge to the array of
the trial jurors cannot be properly asserted
as grounds of a motion for new trial.

2. It is not proper for the court to charge
the jury upon the law of a theory of de-
fense which has been abandoned by the ac-
cused.

3. One is not criminally responsible
where, though he has reason sufficient to dis-
tinguish between right and wrong, as to a
particular act about to be committed, yet, in
consequence of some delusion, the will is
overmastered and there is no criminal intent,
provided that the act itself is connected with
the peculiar delusion under which he fs la-
boring,

@For other cass see same topic and KEY NUMBER in all Key Number Digests and Indexes

177 S.L.— 36

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Court iajects killers
last-minute aa
The. Associated Press oalhy
oh An ex-U.S. soldier was ex

‘ed:in Georgia’s: ‘electric’ chain
night for bludgeoning’ a pro: tit
to death in 1978.0
William Henry Hance, tal 45.
year-old former Fort: Ben
-dier, died at 10:10 p.m. after the

US. ‘Supreme Court er ag

- final appeal in a. 5-3 vote. 2

“ Hance - maintained, his’:
cence in a: ‘seven-minute X 20d
ment before his’ executign at}, the
state prison in Jackson. . ”

‘Why are you executing anyin-
nocent man? Why? Why? “Why?”
he asked. *

_ The, scheduled 7 p. m. “8
ition : was delayed while the

a jpreme' ‘Court votedion the appeal.
Justices ., Harry. ‘Blackmun, | Jol
“Pe aati heer Ruth atte

ajectedsby: the’ eal Sore bee
gurt. ‘and a’ MUS. District Coll
pite a juror’s insistence. th

wi espe sae © raed

signed — Chia

~ other murders’ in:a military’ ‘coil

1- .

<gasheynever voted: for the death

Evil” in “Which: Has threatened
continue ‘killing black prostiti ui

until. Columbus . police. caught, the

1 responsible, for: the ‘sla

late 1970s, Faison and ‘Hai
were black. *: “ Ba

-Hance ia “convicted of © tt

Gayle Daniels, who servediion
the: jury that ‘sentenced Hancel

the death penalty inside the j

. 1984, said she “never voted: iE

‘room, and that she told the judge

she had done: 89: because she f
coerced by fell

A Fi oe ack wip

a a a eel

senterjte 7

Parlier’ Destakday, a form .:
construction worker was execiit-
ed. -in: exes for ‘killing the h

2.2 « 2 ee e Fee ee

fk
at

4 : 1k
[hth he res 1110: . lot of
wonderful piace to hive, 1¢’s a wonder- resources 10 this uw <. We really ap-
iful place to work. It is not the most  >reciate that.”

“Bee

[ines F-[- To ore (eg

New fork

) | “The Ben

‘Georgia Execution Is Sta yed

Ae te stat oes os

aaa sy ahd nl

By PETER APPLEBOME
Special to The New York Times

‘ ATLANTA, March 31 — The 7
o'clock deadline for the execution of
William Henry Hance passed this
evening after United States Supreme
Court Justice Anthony M. Kennedy
ordered a temporary stay to allow the
Justices to consider last-minute ap-
peals from the former Marine whose
death sentence has generated accusa-
tions of jury misconduct.

The stay was ordered 35 minutes
before Mr. Hance was scheduled to
die in Georgia’s electric chair. He had
been convicted of murdering a prosti-
tute in 1978.

The temporary stay, which is not
unusual, added a final element of
uncertainty to a case that gained no-
toriety because of a statement from
the only black juror on the panel that
she did not vote for and did not sup-
port a death sentence in the case.

Mr. Hance's case comes a month
after Supreme Court Justice Harry A.
Blackmun issued an emotional dis-
sent saying it was a delusion that
capital punishment can be consistent
with the Constitution. It has highlight-
ed once again some of the wrenching
issues of justice and race swirling
around the death penalty when more
than 2,800 inmates are awaiting exe-
cution in the United States.

Twice-Rejected Appeal

Mr. Hance’s jawyer went to the
Supreme Court today after the United
States Court of Appeals for the 11th
Circuit, in Atlanta, and the Georgia
Supreme Court refused today to halt

. the execution. The Georgia Board of

Pardons and Paroles denied a clem-
ency petition on Wednesday after the
only black juror, Gayle Daniels, said
that she never voted for the death
penalty, believing that Mr. Hance was
too mentally impaired to be executed,
and that the jury foreman lied in
Saying the verdict was unanimous.
Another member of the jury, Patricia
LeMay, corroborated her story in a

ONneEO A india

As Justices Weigh A ppeals

own verdict and that Ms. Daniels was
duly polled about the verdict when it
was handed down and said she con-
curred with it-

“The law in this country has long
been a juror cannot come along after
the rendition of a verdict and chal-
lenge the verdict,"” Mr. Bowers said.
“If it did, every jury verdict in this
country would be subject to challenge
after the fact. There is not the slight-
est iota of doubt about the guilt of
Hance. What needs to be done is focus
on the woman who was killed, not on

_this guy.”’

Mr. Hance, who like his victim is
black, was convicted of the 1978 mur-
der of Gail Faison. He was also con-

‘victed in military court, but never

tried in a civilian court, for the mur-
der of another prostitute, Irene Thir-
kield.

There is little doubt that Mr. Hance
committed the crimes. But his de-

A last-minute note of
further uncertainty
in a stew of murder,
race and justice.

fenders say his trials and the history
of justice in Columbus reflect the.
inequitable way in which the death
penalty is administered and the de-
gree to which race is a factor. °
‘““My position,’’ Mr. Bowers said,
“‘is the man is guilty of murder — has
been found guilty. The focus should be
on his victims. He has been through
the legal process for a period of 16
years, and he deserves what he gets.”’

Texas Executes Murderer
HUNTSVILLE, Tex., March 3]

Featuring

“After Th


ac RPE ENTE : hall mY:

A former soldier was execut-
ed in Georgia’s. electric..chair
- Thursday night for bludgeoning a
prostitute to death in. 1978.

soldier, died at 10:10 p.m. after
the U.S. Supreme Court rejected
his final appeal in a 5-3 vote.

Hance maintained his inno-

cence in a seven-minute state-

ment before his execution at the .

~ state prisonin Jackson.
“Why .are you executing an

1 dies after short reprieve

tion’ was delayed while the Su-
preme’ Court voted on the ap-

peal. Justices Harry Blackmun,

John ‘Paul ‘Stevens and Ruth

William Henry Hance, a 45- Bader Ginsburg dissented.

year-old former Fort Benning .

_ Appeals previously had been
rejected by eer eat Supreme
Court and a USS. District Court,
despite a juror’s insistence that

she never voted for the death

penalty. Hance’s lawyers also
said he wasretarded.
Farlier Thursday,’ a former

construction worker was execut-

innocent man? Why? Why? ed in Texas for killing the hus-

Why?” heasked. band of a’. restaurant manager
The scheduled 7 p.m. execu- — during a 1985 robbery.
: : ; wean d | Beker ae BH ss rer

se SFE anal Qutkes  ammumeial

Awwecticoy (eer

>

—

®@
New fork

[nes G-[-74 poe (4

A

re eet a ar)
wonderful piace to live, 1(’s a wonder-
:ful place to work. It is not the most

’

: ie
110: « lot of
resources 10 this ve .c. We really ap-
reciate that.”

Georgia Execution Is Stayed
As Justices Weigh Appeals

By PETER APPLEBOME
Special to The New York Times

‘ATLANTA, March 31 — The 7
o’clock deadline for the execution of
William Henry Hance passed this
evening after United States Supreme
Court Justice Anthony M. Kennedy
ordered a temporary stay to allow the
Justices to consider last-minute ap-
peals from the former Marine whose
death sentence has generated accusa-
tions of jury misconduct.

The stay was ordered 35 minutes
before Mr. Hance was scheduled to
die in Georgia’s electric chair. He had
been convicted of murdering a prosti-

' tute in 1978.

The temporary stay, which is not
unusual, added a final element of
uncertainty to a case that gained no-
toriety because of a statement from
the only black juror on the panel that
she did not vote for and did not sup-
port a death sentence in the case.

Mr. Hance's case comes a month
after Supreme Court Justice Harry A,
Blackmun issued an emotional dis-
sent saying it was a delusion that
capital punishment can be consistent
with the Constitution. It has highlight-
ed once again some of the wrenching
issues of justice and race swirling
around the death penalty when more
than 2,800 inmates are awaiting exe-
cution in the United States.

Twice-Rejected Appeal

Mr. Hance'’s lawyer went to the
Supreme Court today after the United
States Court of Appeals for the 11th
Circuit, in Atlanta, and the Georgia
Supreme Court refused today to halt
the execution. The Georgia Board of
Pardons and Paroles denied a clem-
ency petition on Wednesday after the
only black juror, Gayle Daniels, said
that she never voted for the death
penalty, believing that Mr. Hance was
too mentally impaired to be executed,
and that the jury foreman lied in
saying the verdict was unanimous.
Another member of the jury, Patricia
LeMay, corroborated her story in a
signed affidavit.

“If they execute him now, they will
be punishing me for what | did that
day in 1984, more than punishing him
for what he did,’ Ms. Daniels said
after the parole board hearing on
Wednesday.

Death penalty critics have said ev-
erything about Mr. Hance's trial,
from the decision to seek the death
penalty, to the racial makeup of the
jury, which included one black, to the
racial slurs that Ms. Daniels and Ms.
LeMay say were used during jury
deliberations, reflected racism in Co-
lumbus, a jurisdiction often cited as a
place where blacks are more likely
than whites to be sentenced to death
in capital crimes.

“This was a case infected with rac-
ism from start to finish,” said Steve
Bright, a prominent death penalty
lawyer in Atlanta.

Official Defend Actions

. But state and local officials fiercely
defended their handling of the case.
The Georgia Attorney General, Mi-
chael Bowers, called Mr. Hance’s ap-
peals a last-minute stall, saying that
by law jurors cannot challenge their

. .

own verdict and that Ms. Daniels was
duly polled about the verdict when it
was handed down and said she con-
curred with it-

“The law in this country has long
been a juror cannot come along after
the rendition of a verdict and chal-
lenge the verdict,” Mr. Bowers said.
“If it did, every jury verdict in this
country would be subject to challenge
after the fact. There is not the slight-
est iota of doubt about the guilt of
Hance. What needs to be done is focus
on the woman who was killed, not on

_this guy.”

Mr. Hance, who like his victim is
black, was convicted of the 1978 mur-
der of Gail Faison. He was also con-

‘victed in military court, but never

tried in a civilian court, for the mur-
der of another prostitute, Irene Thir-
kield. ;

There is little doubt that Mr. Hance
committed the crimes. But his de-

A last-minute note of
further uncertainty
in a stew of murder,
race and justice.

fenders say his trials and the history
of justice in Columbus reflect the.
inequitable way in which the death
penalty is administered and the de-
gree to which race is a factor. °
“My position,” Mr. Bowers said,
“is the man is guilty of murder — has
been found guilty. The focus should be
on his victims. He has been through
the legal process for a period of 16
years, and he deserves what he gets.”

Texas Executes Murderer

HUNTSVILLE, Tex., March 31
(Reuters) — A Texan who killed a
man and kidnapped his wife during a
robbery in December 1985 was exe-
cuted by lethal injection early today
as his mother and sister watched.

The convict, Freddie Lee Webb, 33,
was pronounced dead about 12 min-
utes after state officials began the
flow of lethal drugs into tubes at-
tached to his arms at the state prison
here, about 80 miles north of Houston.

He was convicted of murdering
Leopoldo Cantu, 26, and abducting of
his wife, Elizabeth, a night supervisor
at a restaurant in Corpus Christi,
Tex., and robbing the restaurant.

Prosecutors had called Mr. Webb,
who was on parole for raping a child
at the time he killed Mr. Cantu.

Futures/Options:
Monday through Friday,
in Business Day

_ The New York Times

“Bo

“The Ben
Featuring

“After Th

~~

Nobody B
Bronx, ‘
Jers


way, Sutcliffe had been openly advertis-
ing himself. His photograph had ap-
peared on a leaflet issued by his
employers to potential customers. He
had been the only driver available in
the office when the photographer called.

His ultimate appearance at London’s
Old Bailey was to have been brief in-
deed, with agreement between prosecu-
tion and defense to accept his original
plea of guilty to manslaughter on all 13
killings on the grounds of diminished
responsibility but not guilty of murder.

Psychiatrists were unanimous in the
opinion that he was mad, a paranoid
schizophrenic unlikely ever to be freed
again, and it was also felt that it would
be better in the public interest and to
protect the feelings of relatives not to
make details of the mutilations public
through a trial.

But the trial judge, Mr. Justice
Boreham, was having none of that plea
bargaining in his court and he ordered a
trial to proceed, with the jury, and jury
only, deciding whether Sutcliffe was a
madman not responsible for his actions
or a cold-blooded murderer who knew
what he had done.

Crowds were in near-riot proportion
when the trial opened in the famous
Number One court, some spectators for
the public gallery having queued all
night.

Elegantly-dressed wives of VIPs and
City of London Aldermen contrasted
vividly with sad-faced victims who sur-
vived, relatives of those who didn’t, and
even Sutcliffe’s own wife, who appeared
in court to sit behind the dock against
his express wishes.

Sutcliffe, pale and drawn, seemed
dwarfed by the awesome enormity of the
court, but in front of him below the dock
lay the tools of his trade on an exhibit
table: hammers, a hacksaw, and an as-
sortment of knives and screwdrivers.

He was to claim that the voice of Géd
ordered him to kill prostitutes while he
was digging a hole while employed as a
gravedigger before he became a trucker,
but Attorney General Havers warned
the jury that Sutcliffe had been over-
heard twice in his remand cell saying
that he hoped to fool everyone by saying
he’d heard “voices,” and was hoping to
get off with a relatively short term ina
mental hospital which he had referred
to jocularly as “the loony bin.”

The jury discounted the diagnoses of
the eminent psychiatrists, and by a
majority of ten to two found him to be a
murderer, not a madman, guilty of 13
murders and seven attempted murders.

After the Attorney General had then
told the judge and jury that Peter
Sutcliffe should be locked up for the rest
of his life, Mr. Justice Boreham passed
concurrent sentences on the Ripper of
30 years for each of his 20 crimes.

He told Sutcliffe: “I am not going to

_ seek words to describe the brutality and

68 True Detective

gravity of these offenses. The catalogue
of crime speaks for itself.”

Sutcliffe said not a word and went
quickly to the cells below surrounded by
five prison guards.

Now 25 children are orphaned
through his crimes, his own family has
suffered, and so have the relatives of the
dead and those he tried to kill. Olive
Smelt and Ann Rogulskj. And the other
five: Maureen Long, °42, attacked on
July 10, 1977, in Bradford; Marcella
Claxton, 20, attacked i in Leeds on May
9, 1976; Dr. Upadhya Bandara, 34% at-
tacked September 24, 1980, in Leeds;
Marilyn Moore, 52, attacked. December
14,1977, in Leeds; and Teresa Sykes, 16,

‘attacked November 5, 1980, in Hud-

dersfield.

Now the inquest on the Ripper inves-
tigation itself follows and a ripple of un-
ease is running through the medical
profession, too. Some psychiatrists are
angry that their four colleagues who
diagnosed Sutcliffe as a paranoid
schizophrenic appeared to be on trial at

the Old Bailey and not the killer. They
fear the trail may become a precedent,
with doctors having to explain their
opinions in court, even when both sides
agree..

But Wechiasce ‘Robert Bluglass, pro-
fessor of Forensic Science at Birming-
ham University,“defended the judge’s
decision to put the issué before a jury.
He told a Sunday Telegraph reporter:

“The psychiatrists who: gave their
evidence were well aware they would be
subject to cross-examination. Opinion is
not immutable or immune from criti-
cism.”

The big question is: Would Sutcliffe
have still been killing but for those alert
officers in Sheffield? It’s an open ques-
tion.

Peter Sutcliffe himself says it was a

miracle he was not caught earlier, be-
cause the police ‘had all the facts. He
pointed that out from the witness box.

And miracles are said to come only
from Heaven.....

ooo

Girls Killed by
“Forces of Evil?”

‘(Continued from page 18)

friend’scar on March 5th at the Sand
Hill Bar, a popular black night spot on
Cusseta Road near the boundary of Fort
Benning. It had been parked there since
February 28th, and the boyfriend had
been glad to get it back. He said he’d
lent it to Gail on February 27th, and
hadn’t seen ‘it or her since. The boy-
friend knew her as Gail Faison and
Gail Bogen, but not as Gail Jackson. ~

No one at the Sand Hill Bar—Gail’s
favorite hangout—had seen her since
the night of February 28th. Nor did
anyone know: whom she’d been with
that night. .

An intensive effort by the Columbus
police failed to produce any trace of
Brenda Gail Faison/Bogen/Jackson,
and Chief McClung decided he’d better
respond to the letters even though the
writer’s deadline had passed unheeded.
But he was still inclined to believe that
the letters were-a hoax and that Gail
merely had gone elsewhere to ply her
trade.

The chief chose to reply through an

interview with Columbus Ledger repor- *

ter David Einhorn. In the resulting
news story, published on March 21st,
Einhorn quoted McClung as having
said, “What we have is a couple of let-
ters, rather poorly written and with
vague guidelines and directions as. to
what we're supposed to.do. We have to
accept it as a hoax in the absence of
additional information . . . But we can’t
endanger her (Miss Jackson’s) life by
ignoring these threats.” ;

f

salah

_ The story made it clear that Chief
McClung was acknowledging and reply-
ing to the letters through the interview,
but that-he still wasn’t convinced that
Gail Jackson was even missing.

Replies from the “Chairman of the
Forces of Evil” were received on March
28th by both Chief McClung and the
Columbus Ledger. The chairman’s
latest literary efforts were at once more
ridiculous and more ominous. To the
Ledger he wrote:

“The chief of police was notified a few
days back that we have Gail Jackson. he
was also notified that Gail Jackson will
be executed 1 June 1978. Now if Chief
McClung didn’t call it a hoax, or ina
round about way made fun of one of my
members handwriting or ifhe didn’t ina
round about call us a liar or a bluff Gail
Jackson wouldn’t die. Because of the
chief's actions toward me and the rest of
the organization, Gail Jackson will die.
Instead of finding her body on Wynnon-
ton Rd 1 June 1978, she will be found on
Ft. Benning, Ga 1 April 1978 in re-
sponse to his actions. I sure hope he can
sleep because we have another black
woman. Her name is Irene. She is
scheduled to die 1 June 1978 instead of
Gail Jackson. If Chief McClung call this
a bluff he will find Irene dead earlier
than the date plan. ... Your chief of
police in so many ways have sentenced
Gail Jackson to DIE!!!”

To the chief the insulted chairman
wrote:

. You really upset me when you

i that it was a hoax. Noone saysthat ~

about the Forces of Evil. We are un-
stoppable. We strick unexpected. We

strick unno
woman thai
péd Irene. ¢
to an agre
should rece
sing black v

- OK, Chief,
‘, your head. ©

1 1978. Ap
June 1 Ire
sooner if yo

~ If wish that

could prove
hoax. We cz

cause we bi

both womer
clothes on.
because my
themselves
care about
that we are
we will k
questions a

On and
pages, upt
doubts, thr
of innocent
meet the
Forces of E
so carried a
that he lef
back of pag

\Althoug}

possible ho

genuinely
checked al]
was know:
found no tr:
the ransom
McClung c
And becau
latest lette
would be {
chief brief:
Investigati
and was p!
tion.

The Led;
about the t
sentence re
victim nan
sponse. Stz
Irene Thi:

* mother, he

16th. She
evening at
black sold
seemed to
Chief Mx
sonals coli
simply:

Mr. Cha

Please cc
letters.

A fifth

chief that

April 1st.
sergeant a

a phone c:
Gail Jacks


7 and not the killer. They
may become a precedent,
having to explain their
urt, even when both sides

sor Robert Bluglass, pro-
nsic Science at Birming-
ity, “defended the judge’s
it the issué before a jury.
iday Telegraph reporter:

iiatrists who gave their
- well aware they would be
s-examination. Opinion is
le or immune from criti-

estion is: Would Sutcliffe
1 killing but for those alert
effield? It’s an open ques-

iffe himself says it was a

as not caught earlier, be-
ice ‘had all the facts. He
yut from the witness box.
es are said to come only

ooo

made it clear that Chief
acknowledging and reply-
ers through the interview,
till wasn’t convinced that
was even missing.

m the “Chairman of the
|” were received on March
1 Chief McClung and the
edger. The chairman’s
/ efforts were at once more
id more ominous. To the
‘ote:

of police was notified a few
it we have Gail Jackson. he
fied that Gail Jackson will
| June 1978. Now if Chief
n't call it a hoax, or ina
way made fun of one of my
idwriting or ifhe didn’tina
zall us a liar or a bluff Gail
ildn’t die. Because of the
s toward me and the rest of
zion, Gail Jackson will die.
ding her body on Wynnon-
2 1978, she will be found on
, Ga 1 April 1978 in re-
actions. I sure hope he can
e we have another black
r name is Irene. She is
die 1 June 1978 instead of
If Chief McClung call this
ill find Irene dead earlier
te plan. ... Your chief of
nany ways have sentenced
1 to DIE!!!”

ief the insulted chairman
really upset me when you

‘as a hoax. No one says that
orces of Evil. We are un-

Ve strick unexpected. We

ee
——_

NAT ERM aint
Ree 4
“it ey Hey ij res
one’

sttick unnoticeable, except for that

- woman that got away when we kidnap-

péd Irene. She will die if we can’t come
to.an agreement. In a few days, you
should receive a report of another mis-
sing black woman, which will be Irene.

' OK, Chief, Gail Jackson’s death is on

your head. You will find her body April
1.1978. Apr 1st 1978 she will be dead.
June 1 Irene will die. Irene will die
sooner if you think it’s a hoax with her.
If wish that their were some way that I
could prove it to you that this isn’t a
hoax. We can’t send you her clothes, be-

‘cause we burned them up. That’s right

both women are in our clutches with no
clothes on. They don’t need no clothes,
because my members have to entertain
themselves. Chief McClung, if you don’t
care about anything, and if you think
that we are lying, then, just say so, and
we will kill both right now, no

questions ask...”

On and on it went for ten peeved
pages, upbraiding the chief for his
doubts, threatening) him with the lives
of innocent women and cajoling him to
meet the nebulous demands of the
Forces of Evil. In fact, the chairman got
so carried away with his rambling letter
that he left a clear fingerprint on the
back of page ten.

\Although he still talked publicly of a

possible hoax, Chief McClung was now

genuinely worried. His detectives had
checked all cities in which Gail Jackson
was known to have worked and had
found no trace of her. On the strength of
the ransom demand in the second letter,
McClung called the FBI into the case.
And because the chairman said:in his
latest letter that Gail Jackson’s body
would be found on Fort Benning, the
chief briefed Fort Benning’s Criminal
Investigation Division on the situation
and was promised the Army’s coopera-
tion.

The Ledger, of course, printed a story
about the two latest letters, and a two-
sentence reference to an alleged second
victim named Irene brought a quick re-
sponse. Startled relatives reported that
Irene Thirkield, a 32-year-old black
mother, had been missing since March
16th. She had been seen last on that
evening at the Sand Hill Bgr with a
black soldier in uniform, but. no ‘one
seemed to know who the soldier was.

Chief McClung put an ad in the per-
sonals column of the Ledger. It said
simply:

7 FOE

Mr. Chairman

Please contact me in reference to your
letters.

A fifth letter arrived advising the
chief that at 10:30 a.m. on Saturday,
April 1st, the military police desk
sergeant at Fort Benning would receive
a phone call explaining where to find
Gail Jackson’s body.

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“April Fool, us ‘MoClung rdtteved:
‘glumly as he picked up the telephone to
alert the Army authorities at Fort Ben-
ning. ;

The call came at 12:53 p.m. on Thurs-
day, March 30th. “I'll tell you where the
body is,” a young, black male voice said.
Motioning to his supervisor, M.P.
George Thompson said, “Hold on a mi-
nute, please.” The supervisor, Sgt.
James Harris, picked up an extension
and listened.

“I haven’t got much time,” the
anonymous caller said. “Do you know
where the Sand Hill Bar is?”

“Yes,” Thompson replied.

The caller continued,
forty-five-mile-an-hour sign you come
to, about-100 feet past that sign the body
is off in the woods. Hurry up. I just put
the body there about an hour to an hour
and a half ago. Please bring shovels.”

The caller hung up.

Army CID agents within minutes
were searching a 100-foot radius of the
nearest speed limit sign to the Sand Hill
Bar. At 1:45 p.m., a swarm of flies led .
one of them to a decomposing body in.a

- shallow grave covered with leaves, pine~

.

needles and loose dirt. And it hadn’t
been put there any “hour to an hour and
a half ago.” This body—apparently that
of a black female—had been dead for
weeks. And it wasn’t going to be easy to
identify. It was clad only in a denim
vest, and it had no face.

But. identification wasn’t the Army’ 8
problem. The body was found just out-
side the Fort Benning boundary, and
therefore within the jurisdiction of the
Columbus police. They were called to
the scene, and the body was taken to the
Muscogee County morgue for autopsy.
After his examination, Dr. Joe Martin
Webber reported that “Death was
caused. by multiple compound’ commi-

‘nuted fractures of the face and skull

bones, with damage and evulsion,
which means forcible removal of por-
tions of the brain.”

What he meant was that someone had
beaten the woman so brutally that he
had knocked away her entire face, much
of her skull and most of-her brain. Prob-
ably about four weeks before, but an
exact date would be impossible to ascer-
tain. In any event, she was probably
dead before the chairman’s first letter
was written. :

Evidence Technician George Keller
identified the body. He went to the mor-
gue and took some skin from one of the

’ victim’s fingers. He took that back to

the police station and managed to roll a
fingerprint from it using techniques de-
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gustine,. Florida, Police Chief Virgil
Stuart. He compared that print with the ©
known prints of Gail Jackson.

It was Gail Jackson’s body.

With that grim revelation in hand

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True Detective 71

“We've talked it over, Virgil, and we think
that you ought to take a few days off”

Irene Thirkield, but without success.
Through the news media’ Chief

* McClung appealed to the chairman to

contact him. The chief ‘said he was wil-
ling to discuss any demands made by
the Forces of Evil, including ransom.

The Army, meanwhile, didn’t con-
sider itself completely out of the case.
CID agents were busily reviewing their
files on the September, 1977 murder of
Private Karen Hickman.

Private Hickman’s nude, crushed
body was found near her barracks at
Fort Benning on September 6th, appa-
rently dead only a few hours. Her mur-
der had been vicious. She’d been hit in
the head with a blunt object, then appa-
rently run over repeatedly by an au-
tomobile. ‘he murder couldn’t be recon-
structed because she’d been killed
elsewhere, and the crime scene could
not be found. An investigation that
eventually spread to Army posts around
the world failed to come up with a sus-
pect. What it did come up with, at every
post on which she’d served, was ¢onsis-
tent information that the attractive,
24-year-old white private had liked
black soldiers immensely and exclu
sively. In Columbus she had frequented
the Sand Hill Bar.

A month after. her death, an

‘anonymous phone call from what

sounded like a young black male had led
investigators to Private Hickman’s clo-
thing in an isolated area near a ball
park.

Parallels between the Hickman and
Jackson murders were few and nebul-

72 True Detective

‘ous, but they were enough to revive the

Army’s interest in the Hickman case.
‘The Army’s interest in the Irene
Thirkield case was quickened by a
phone call at 1:15 p.m. on April 3rd. The
anonymous young black caller said he
was a member of the Forces of Evil and
that Irene was dead. “You can go get her
now,” he said. “She’s on Maertens
Range, off Eighth Division Road.”
Minutes later, several CID agents
and more than 100 soldiers were search-
ing Maertens Range. At 3:10 p.m., an
MP found a decomposing body hidden
behind a stack of logs in ‘a wooded area
between the range and a tank trail. It
was dressed in a pair of socks, a ring, a
wristwatch and a necklace. Its head was
missing, but pieces of skull, jawbone
and teeth were found scattered nearby.
A relative identified the ring and

wristwatch as Irene Thirkield’s. The

necklace, she said, was hers. She had
lent it to Irene shortly before Irene had
disappeared.

CID agents spent most of the morning
of the fourth listening to tapes of the
anonymous phone calls. One agent paid
particularly close attention and insisted
on hearing them again and again. He
was sure he had heard that voice. Fi-
nally he had it—it was the voice of a
soldier with whom he’d had previous
dealings.

“I believe that’s Specialist Four Wil-
liam Hance,” he told his colleagues.
“He’s an ammunition handler with the
Tenth Artillery.”

A few minutes ‘later Specialist

x

4

i
Mae

walked into the office and announced
that he had found a girl who had seen
Irene Thirkield the night she
disappeared—in the’ company of a Fort

Benning soldier named “Hence.”
' William Henry Hance, 27, was. ~
_ fetched forthwith to the CID office. CID

Operations Officer Marvin Bessom and

_ Agent Richard Fox began questioning

him at 1:45 p.m.

Hance flatly denied everything. After
supper he was questioned again until
10:30 p.m., and he still maintained his
innocence. At 10:30 he was allowed to go
to bed, under guard, in the bachelor en-
listed quarters.

. When questioning resumed at 8 a.m.

on April 5th, Hance started deviating
from his previous story. Told that he

_ had béen seen with Irene Thirkield on

the night of March 16th he admitted
that he had seen her. In fact, he said, he
had given her a ride to the Sand Hill
Bar. But he had left her there, alive and
well.

Questioned about the Forces of Evil,
Hance admitted that he had heard of
that organization. He’d even been in-
vited to join the Forces. Grilled more
closely on that subject, he admitted that
he had joined. The Forces had
threatened to kill him and his girlfriend
if he refused.

With that wedge in place, Officer Be-
ssom and Agent Fox advised Hance that
a fingerprint found on one of the Forces
of Evil letters to Chief McClung was the
print of his right middle finger. That
brought an admission that Hance had
written the letters—but only because
he’d been forced to do so.

Hance finally admitted that he had
abducted Gail Jackson and Irene Thir-
kield and delivered them to the Forces
of Evil. But he still insisted that he’d

had nothing to do with their deaths, |

hadn’t even been present. Yes, he’d
made those phone calls, but only under
threat of death.

Hance willingly gave handwriting,
samples and said he’d written another

‘letter that the police chief should re-

ceive that day or the next.

After lunch, questioning resumed at
1:20 p.m.—this time by Agent Fox
alone. At 1:50 p.m., Hance lit a
cigarette, took a deep drag, exhaled and
said, “I’d like to confess.” . ie

Agent Fox obligingly recorded
Hance’s confession.

““Approximately 1:30, 28 February
78, I went to the Sand Hill Bar to get a
beer,” Hance began. “When I went in to

‘Hance’s company commander listened |
‘to the tapes. “That’s Hance,” he said.
- As if on cue, another CID agent |

.

get a beer, a girl came up to mie and |

propositioned me for twenty dollars... .
I just got up and said, ‘Come on, let’s go.’
Somehow I just wantéd to get my hands
on her.,

“We drove about 200 yards past the

ie?

Sand Hill Bar. ¢
okay, and I pul)

-, Along the road

clothes off. I -~+
was a crazy i
“She said.

. me?’ I told her s

her. She tried to

- with a karate ch

fell across the d
out of her face.
side and walke
senger side, pul]
left her there.
“I got back ir
thinking that m

* got out and got

back where she
thing. I hit her,

_ couldn’t stop hi

just kept hitting
“I went back t:
grave to put her
ing tool out and
a lot of cars and
noticed, so I ju
leaves and dirt.
road and ditch
bushes. I turned
Sand Hill Bar. <
“I tried to thi
did find her, so
Forces of Evil s
on me. I though
one to take th«
figured no one
writing so I wr
three weeks la
thinking about
“How many
Forces of Evil?’
“Just me,” H
“Where d’ *

- of Evil?”

“] just th

| accc

kield murder v
said she propos
Hill Bar. He a
Maertens Ran;
clothes off sent

“T looked at h
her clothes. Sh
how mad I was
big and I was pn
was wrong wit)
like the rest of
wanted was t
money. She got

“TI did the sar
her a karate c’
opened the tru
and went back
was still breatt
I raised the jac
times and that
. Hance said I
into a Fort Be:

With the tw
up, Agent Fox

ie ae a LL I CL

we

]

EF short distance when
be. Hance stopped

‘tempted to escape, he stm
karate chop” across the he
‘oss the door, bleeding’
ito the woods and returned.
vhere he picked up a jack
‘turning to the woods. Up,
30n still breathing, he hit 4

uy

atil she was dead. Hance alsg

<illing Thirkield.
, 1978, Hance gave

n that statement, Hance indi.

ackson’s proposition had sé
and angered him. He admit-
“something pop” while drag-
the woods. Hance further

he was the only member of
if Evil.”

nical psychologist Lewis R.
stified for the defense that
versonality disorder. Charac-
of the disorder include ego-
inability to empathize with
an r judgment. Dr. Lie
ance had difficulty in
that he had done something
t he would try to cover up a
me others. Dr. Lieberman
-here was no organic basis
sonality disorder, and that
id difficulty controlling his
knew the difference be-
id wrong. Dr. Lieberman
he ability to recognize and
aad done wrong would be a
nent, but on cross-examina-
at people with personality
improve over time, and
not “mellowed” in the six
Lieberman had first exam-

witnesses included First
R. Nelson, an Army offi-
| that Hance was dependa-
, and a good soldier, but
experienced financial and
‘8 and had been under
e in question. Other wit-
hat Hance had not caused

incarcerated. Charles

upset, and grabbed J ch bic

yA Bt ab

Westcott testified that he had known
Hance for twenty years and that Hance
was friendly, courteous, industrious, and
not a problem to the community. Westcott
also stated that Hance’s invalid mother had
died as a result of a physical attack and
rape.

Hance testified that he was divorced dur-
ing March, 197%, and that money was a
problem. Hé’ stated that his mother’s as-
sailant was never caught and that the at-
tack had sickened him ever since. He said
that he did not know why he killed Gail
Jackson, and that she was not personally
known to him. He admitted killing Irene
Thirkield, but alleged that he “had lost all
sense of control” and that his “mind
flipped.” He accepted responsibility for
the Jackson murder, stated that he had
begged God’s forgiveness, and asked the
jury to forgive him. He stated that in the
six years following his first conviction, he
had grown physically and spiritually and
had made peace with God. i

The jury sentenced Hance to death for
the Jackson murder, finding that the mur-
der was outrageously or wantonly vile, hor-
rible or inhuman in that it involved an
aggravated battery to the victim.

II. DISCUSSION

A. Ineffective Assistance of Counsel.

{1] Hance argues that his attorney at
the resentencing trial, Thomas Flournoy,
rendered ineffective assistance of counsel
by failing to effectively investigate and
present evidence of Hance’s mental illness,
and by failing to adequately investigate
Hance’s background or to contact any

2. Although we doubt that Hance has waived his
right to assert the claim of ineffective assistance
of counsel under the circumstances of this case,
we need not affirmatively decide this issue in
light of our disposition of the merits of the
ineffectiveness claim.

3. Hance is not entitled to an evidentiary hearing
to demonstrate that Flournoy’s testimony at the
state habeas hearing was perjury. Hance’s at-
torney at the state habeas proceeding had every
opportunity to adduce evidence of perjury, and
Hance now proffers no evidence that was not
available at the state habeas hearing. Hance
argues that Flournoy had a telephone conversa-
tion with Hance’s habeas attorney shortly be-

HANCE v. ZANT
Cite as 961 F.2d 1180 (11th Cir, 1993)

1183

members of his family.? As for Flournoy’s
failure to investigate Hance’s background,
we must defer to the state habeas court’s
fact finding that Hance instructed Flour-
noy not to contact and involve the members
of his family, and that Flournoy complied
with his client’s instructions because he
feared that if he did not, he would lose
Hance’s cooperation in the defense strate-
gy. Hance v. Kemp, 258 Ga. 649, 373
S.E.2d 184, 190-91 (1988), cert. denied, 490
U.S. 1012, 109 S.Ct. 1658, 104 L.Ed.2d 172
(1989); see 28 U.S.C. § 2254(d).3 Flournoy
testified that he had great difficulty dis-
suading Hance from denying that he had
committed the murders at the resentencing
trial. 373 S.E.2d at 189. Given Hance’s:
conviction and the overwhelming evidence
of guilt, Flournoy thought that this strate-
gy would be implausible and unproductive.
373 S.E.2d at 190-91. Once Flournoy per-
suaded Hance that the better strategy
would be to admit guilt and express re-
morse, he complied with Hance’s insistence
that his family not be contacted or involved
rather than risk losing Hance’s cooperation
in “the only viable defense that he had.”
373 S.E.2d at 190.

Although Flournoy was prevented from
contacting Hance’s family, he did investi-
gate and present substantial mitigating evi-
dence. First Sergeant Ronald R. Nelson
testified that Hance was dependable, trust-
worthy, and a good soldier who got along
well with his peers. Nelson stated that
Hance was not violent and that he had
never seen him lose his temper, but alluded
to Hance’s financial and marital problems.
Charles M. Westcott testified that he had

fore the evidentiary hearing, and that what
Flournoy said in this telephone conversation
contradicted Flournoy’s testimony at the hear-

- ing on the issue of whether or not Hance in-
structed Flournoy not to involve members of
Hance’s family. The state habeas court credited
Flournoy’s testimony that Hance had instructed
Flournoy not to involve his family. There is
ample support in the record for this finding.
We must defer to the state habeas court's im-
plied credibility determination in favor of
Flournoy. Green v. Zant, 715 F.2d 551, 557
(11th Cir.1983), cert. denied, 469 U.S. 1098, 105
S.Ct. 607, 83 L.Ed.2d 716 (1984).


ELLIS v. COFFEE COUNTY BD. OF REGISTRARS 1186

Cite as 961 F.2d 1185 (11th Cir. 1993)
Having found no deficiency with respect California v, Ramos, 468 U.S. 992, 1013-
to the performance prong of the Strick- 14, 108 S.Ct. 3446, 8460, 77 L.Ed.2d 1171
land test, we decline to address the preju- (19838).

| of rehabilitation were poor, “ie oe Done: Hance raises several other issues, includ-
. Lieberman stated that if Heoe . "ing collateral estoppel with respect to
| “ognize and admit that he hada B. Other arguments. whether Hance’s statements following his

[3] The only aggravating circumstance arrest should have been suppressed, inef-
argued to the jury at Hance’s resentencing fectiveness of counsel on direct appeal, the
trial was that the murder involved an ag- trial court’s failure to give a simple battery
gravated WAttery to the victim.” Hance instruction to the jury, and the contention
argues that because the only evidence of that Hance’s death sentence was based
an aggravated battery was the dislocation upon inaccurate evidence. Even assuming
of Gail Jackson’s elbow shortly before her that they are not procedurally barred,
death, the aggravating circumstance of *8° these claims are all without merit and war.
gravated battery was applied in an uncon- rant no discussion.
stitutionally vague and overbroad manner.

However, as the Georgia Supreme Court AFFIRMED.
found, the victim was first struck on the
head with a karate chop. Moreover, while A E aaY RONGEN TOSTON
still alive she was beaten with a tire jack ?
with such force that when her body was
* hot entirely favorable, he did 4 aes rl va “ake pages Fees

ig &, it would be a s
4" Hance argues that Dr.
| -stimony discredited the

hich was that Hance had com

nurder but was remorseful, '’’

ate habeas court found that Pie
evaluated evidence from six,
atal health experts, and that o:
7man was willing to testify thet.
ffered from a mental] disorder and
| ent of mental Capacity. We must
this finding of fact.5 Under the

S.E.2d 287, 291-92, cert. denied, 474 U.S.

which the jury might have per- g
liminishing his culpability. Also, Tee, 106 S.Ct. 606, pricy rot 1985). Coy Dell ELLIS. Nancy D. Ellis; Della
Lieberman testified that : There was ample evidence of the “a Ellis and Joseph T Ellis,
a: was poor, he did state | Negi e manery _eme lated by Plaintiffs~Appellees,
‘nce could recognize and admit te Re $1 (b)(7). _
iy done something wrong, this [4] During its deliberations, the jury at Ms
_ 4 sign of progress. The jury ; the resentencing trial requested a defini The COFFEE COUNTY BOARD OF
7 accepted Hance’s subsequent tion of “life imprisonment” from the trial REGISTRARS, a Public corporation;
__ of remorse as an indication that | court. The court declined to respond tothe § James Hildreth, individually and as a
_ + rehabilitated. question; Hance was sentenced to death member of the Coffee County Board of
0 seems to argue that Flou ' soon thereafter. Hance argues that the > Alfred Edwards, individual-
tive for presenting Dr. Lieber. trial court’s failure to define one of the ly and as a member of the Coffee Coun-
than no expert witness. How- jury’s sentencing options was reversible er- ty Board of Registrars; Mrs. Alfred
jlained above, Dr. Lieberman’s ror. This argument is without merit. See (Elizabeth) Edwards, individually and
ntained both favorable and al indicates that Hance suffers from a personality have used his detailed and generally unflatter-
ements. Under all of the cir disorder with paranoid, dependent, and narcis- ing analysis to argue that Hance is dangerous to
we conclude that Flournoy’s Sistic features, as well as atypical depression. society.
_ Lieberman from the available Dr. Allsopp characterized Hance as impulsive,
, .. alienated, hypersensitive to criticism, paranoid, . O.C.G.A. ~10- 7) li :
s and his decision to use Dr. and argumentative. Dr. Allsopp noted that indi- : Ani gles se or poate
ather than present no expert viduals such as Hance are often sullen, angry, rape, armed robbery, or kidnapping was aura.
| testimony were reasonable. demanding people who excessively utilize a geously or wantonly vile, horrible, or inhuman
transfer of blame mechanism, and that Hance’s in that it involved torture depravity of mind. or
ly argument against our deferring Perception of man-woman relationships is an aggravated battery to the victim.”
| courts’ fact findings is that he © marked by feelings of “sadness, pain, hostility ue
‘n evidentiary hearing based on and homicidal ideation.” Dr. Allsopp also ob- O.C.G.A. § 16-5-24 defines aggravated bat-
rjury jn the state court. We have served that such People’s “seething anger, com. tery” as follows: “(a) A Person commits the
ed this argument. bined with their Sensitivity to criticism and sus- offense of aggravated battery when he mali-
| . Piciousness can lead to unpredictable and vio- ciously causes bodily harm to another by de-
‘ing to note that the testimony of lent outbursts.” Although Dr. Allsopp did con- priving him of a member of his body, by render- |
vhich Hance now proffers, Is not nect Hance’s crimes to the difficulties he experi- ing a member of his body useless, or by serious- \ |
able either. Dr. Allsopp's affidavit enced during childhood, the Prosecution could ly disfiguring his body or a member thereof.”
i}

!
®


1184

known Hance for twenty years, and that
Hance was friendly, courteous, industrious,
and not a problem to the community.
Westcott stated that Hance came from a
hardworking, church-going family, and that
everyone liked him. Westcott also testified
that Hance’s invalid mother had died as a
result of a physical attack and rape. West-
cott concluded that Hance had been rehabil-
itated, that he was a bright and exception-
ally talented man, and that his life should
be spared. Richard Miles, the warden at

the Muscogee County Jail, testified that:

Hance had caused no problems at the jail.
Assistant Warden Daniel Bettis testified as
to Hance’s daily activities at the jail and
stated that he had experienced no problems
with him. Aaron Roquemore, counselor at
the State Prison in Jackson, Georgia, testi-
fied that Hance had caused no problems at
the State Prison, and that he was adjusting
appropriately to his confinement. Finally,
Stephen Clemmons discussed the impor-
tance of mercy and forgiveness and urged
the jury to spare Hance’s life.

Under all of the circumstances, we con-
clude that Flournoy’s decision to comply
with Hanece’s instruction not to contact
family members did not fall below the wide
range of reasonable professional assistance
held to be sufficient under Strickland v.
Washington, 466 U.S. 668, 689, 104 S.Ct.
2052, 2065, 80 L.Ed.2d 674 (1984).

{2] Hance also argues that Flournoy
was ineffective with respect to the evidence
of his mental illness. Flournoy engaged
Dr. Lewis Lieberman, a clinical psycholo-
. gist, to testify on Hance’s behalf. Dr. Lie-
berman testified that Hance suffered from
atypical personality disorder, characterized
by egocentrism and an inability to feel em-
pathy for others. According to Dr. Lieber-
man, Hance is impulsive, suffers from poor
judgment, tries to blame his mistakes on
others, and has trouble admitting that he

4. Hance also argues that Flournoy was ineffec-
tive because he failed to provide information
regarding Hance’s family background to Dr.
Lieberman. As we have already held, Hance’s
instruction that Flournoy not contact his family
effectively precluded Flournoy from furnishing
such information to Dr. Lieberman.

981 FEDERAL REPORTER, 2d SERIES

has done something wrong. Dr. Lieber.
man also testified that he suspected that
Hance had displayed these characteristics
throughout his lifetime and that his
chances of rehabilitation were poor. How-
ever, Dr. Lieberman stated that if Hance
could recognize and admit that he had done
something wrong, it would be a sign of
progress.‘ Hance argues that Dr. Lieber.
man’s testimony discredited the entire de-
fense, which was that Hance had commit-
ted the murder but was remorseful.

The state habeas court found that Flour.
noy had evaluated evidence from six to
eight mental health experts, and that only
Dr. Lieberman was willing to testify that
Hance suffered from a mental disorder and
diminishment of mental capacity. We must
defer to this finding of fact.’ Under the
circumstances, Flournoy’s performance in
selecting Dr. Lieberman was clearly not
deficient. Although Dr. Lieberman’s testi-
mony was not entirely favorable, he did
testify that Hance suffered from a mental
disorder, which the jury might have per-
ceived as diminishing his culpability. Also,
although Dr. Lieberman testified that
Hance’s prognosis was poor, he did state
that if Hance could recognize and admit
that he had done something wrong, this
would be a sign of progress. The jury
could have accepted Hance’s subsequent
expression of remorse as an indication that
he could be rehabilitated.

Hance also seems to argue that Flournoy
was ineffective for presenting Dr. Lieber-
man rather than no expert witness. How-
ever, as explained above, Dr. Lieberman’s
testimony contained both favorable and un-
favorable elements. Under all of the cir-
cumstances, we conclude that Flournoy’s
choice of Dr. Lieberman from the available
psychologists and his decisjon to use Dr.
Lieberman rather than present no expert
psychological testimony were reasonable.®

5. Hance's only argument against our deferring
to the state courts’ fact findings is that he is
entitled to an evidentiary hearing based on
Flournoy’s perjury in the state court. We have
already rejected this argument.

6. It is interesting to note that the testimony of
Dr. Allsopp, which Hance now proffers, is not
entirely favorable either. Dr. Allsopp’s affidavit

i a i aE snp aR crea

EL

Having found no
to the performanc
land test, we decli
dice prong.

B. Other argume

{3] The only ag
argued to the jury
trial was that the
gravated battery |
argues that becau:
an aggravated bat:
of Gail Jackson’s ¢€
death, the aggrava
gravated battery v
stitutionally vague
However, as the (
found, the victim ©
head with a karate
still alive she was
with such force tt
discovered her fac
ing. Hance v. S
S.E.2d 287, 291-92
1088, 106 S.Ct. 606
There was ample |
aggravated batt«
0.C.G.A. § 17-10-:

[4] During its c
the resentencing t
tion of “life impris

- court. The court d.

question; Hance v
soon thereafter.

trial court’s failur
jury’s sentencing o
ror. This argumer

indicates that Hanc:
disorder with paran
sistic features, as +
Dr. Allsopp charact
alienated, hypersens
and argumentative.
viduals such as Ha:
demanding people
transfer of blame m
reception of ma
apices by feelings
and homicidal idea
served that such pe:
bined with their sen
piciousness can lea:
lent outbursts.” Al!
nect Hance’s crimes
enced during child!


sae

(cna octal MIAN clas ati

ee

HANG}, William Henry, black, elec. GASP (Muscogee) March 31st, 1994
yatta Ja 9 V ,

940 696 FEDERAL REPORTER, 2d SERIES

U.S.C.A. § 158(c)."” The order reinstating Elliott, J., summarily denied application for
habeas corpus without evidentiary hearing,
and granted certificate of probable cause to
appeal. The Court of Appeals, Johnson,
Circuit Judge, held that: (1) petitioner was
As hereinabove set forth, the order of the forded opportunity in state court for full

, _ and fair litigation of Fourth Amendment
claim; (2) petitioner waived his right to
counsel; (3) failure to sua sponte conduct

Barlow as an employee of Georgia Kraft is
enforced.

IV. CONCLUSION

Board is enforced.
ENFORCED.

CLARK, Circuit Judge, concurring in
part and dissenting in part:
My dissent is limited to that part of the
majority opinion enforcing the NLRB order
that reinstates Landis Bishop and Jeffrey
Hughes. The testimony cited at note 2 of
the majority opinion and the record reflect
that Bishop and Hughes went to Walker’s
house and addressed him at the doorway. I
take the language “yeah, we'll take care of
you” as a threat, given the context of the
conversation. I refuse to join in sanction-
_ ing strike-related conduct that can generate
fear in a person when he is standing in the
door of his home.

° § cua

(HK William Henry HANCE, Petitioner,

Vv.

Walter D. ZANT, Warden, Georgia
Diagnostic and Classification
Center, Respondent.

No. 82-8342.

United States Court of Appeals,
Eleventh Circuit.

ne
Jan. 24, 1983.  )

Eee

\

The United States District Court for
the Middle District of Georgia, J. Robert

10. This section provides:

The expressing of any views, argument, or
opinion, or the dissemination thereof, wheth-
er in written, printed, graphic, or visual form,
shall not constitute or be evidence of an un-

&) Fa ne e@-

competency hearing was not Pate violation;
(4) pro se defense did not amount to denial
of effective assistance of counsel; (5) in-
flammatory evidence which depicted scene
of crime and was relevant to state’s theory
was admissible; (6) prosecutor’s inflamma-
tory remarks rendered sentencing hearing
fundamentally unfair; (7) jury instructions
did not impermissibly shift burden of proof;
(8) petitioner failed to make out constitu-
tional violation grounded on sustaining of
objection to questioning during sentencing
hearing; (9) improper exclusion of venire
members for cause required reversal of sen-
tence; (10) failure to specifically instruct
~jury on venue was not error under. state
law; and (11) District Court’s denial of
application without hearing was proper.
Reversed and remanded.

1. Habeas Corpus ¢=85,1(2)

In context of habeas petition, presump-
tion of correctness of factual determination
by state court does not apply to legal find-
ings or to mixed questions of law and fact.

28 U.S.C.A. § 2254(d).

2. Habeas Corpus ¢=90

“Factual issues” as used in context of
standard of review of habeas petitions of
prisoners in state custody involve what are
termed basic, primary or historical facts,
ie., facts in sense of recital of external
events and credibility of their narrators. 28
U.S.C.A. § 2254(d).

See publication Words and Phrases

for other judicial constructions and
definitions.

fair labor practice under any of the provi-
sions of this subchapter, if such expression
contains no threat of reprisal or force of
promise of benefit.

29 ULS.C.A. § 158(c).

e€xecufed

3. Habeas Corpus 90
In context of review of |
tions of prisoners in state cust
questions of law and fact” inv:
tion of legal principles to histor
case. 28 U.S.C.A. § 2254(d).
See publication Words and
for other judicial construct:
definitions.
4, Habeas Corpus e990
In context of review of
tions of prisoners in state cust
ascertainment of historical fac’
dispose of claim but calls for in
. of legal significance of such fa
judge must exercise his own ju
such blend of facts and their le
thus, “mixed questions” or ap;
constitutional principles to fact!
Jeave duty of adjudication wi
@udge. 28 U.S.C.A. § 2254(d).
- '§. Habeas Corpus ¢=45.1(4)
Where habeas petitioner w:
opportunity for full and fair |i
‘ :tate court of Fourth Amend
‘that his confessions should be ¢
‘impermissible fruit of warrant!
without probable cause, consid
-fuch claim in federal habeas c
ceeding was precluded. U.S.C

4 _ Amend. 4.

& Criminal Law ¢=412.2(5)
Where suspect never requed
ney and his attorney was nev

B access to him, Escobedo v. Ilin

apply. U.S.C.A. Const.Amend. 6.

7. Habeas Corpus ¢ 113(12)
> On review of denial of habea
determination by Court of A
whether petitioner’s signed writt!
of his Fifth and Sixth Amendm!
valid involved mixed questi
memnd fact. U.S.C.A. Const.Amer

B 8. Criminal Law ¢=412.2(5)

In context of determination o
uspect’s signed written waiver
and Sixth Amendment rights «.

os state must prove intentional relin:
Por abandonment of known right
h lege. U.S.C.A. Const.Amends. 5,

orities released a -

e had been elimi-
the slaying of Mrs.
ose body was found

Hickman’s. Hance |

gal counse] even as
‘oceeded with their
$.

ery meshed gears
17, the chairman of
‘as indicted by the
irand Jury for, the
ida Gail Faison and

ndictment ‘placed
occurring on Feb-
tives Ronnie Jones
stified at the secret
Chief McClung. As
more was learned
orces of Evil letters
sent by the soldier.
ts seven-man mem-
mself as chairman,
mber 2 executor, a
actor (?) and some-
out’? man. The latter
-d as the one who
he condemned per-
: letters also implied
s “an organization
n.’’ In the second
igly implied that he
nt Faison’s murder
f Chief McClung to
ize the communica-
: his attempts. —
aplication was that
e up of Caucasions
murder of black
as supposedly in re-
igulation slayings of
lumbus women. Re-
ide to the fact that
und at several of the
cenes.
| 11, 1978, the Col-

listened to the irate -

ers and managers of
:x located next door
& Club, the estab-
ida Faison was last
itching Hance’s de-
1ent managers stated
zatened at gunpoint
amilies had vacated
1 $63,000 loss in ren-
lescribed as a virtual
incilman advocated
or bar patrons. The
: thought it would be
2stablishment’s bus-
' because the laws
y violated with im-

|, Hance appeared in
uniform. He entered
> charges of murder

1 next page)

and extortion. The judge aiid him
an attorney and remanded him to jail
without bond to await his trial.

In May, another strange letter was re-
ceived in the mail, written in the same,
hand as all the others. This letter was
postmarked May 8 and addressed to The

_ Ledger, a Columbus newspaper. In this
three-page missive, the author contendéd
that Hance was an innocent man and that
the F.O“E. was based outside Columbus.

ult stated that if Hance were freed, there
would be no more murders. The letter,
which was addressed to ‘‘Dear Citizen’’
urged the newspaper to give it front page
coverage. Did police have the wrong man
behind bars? Was Hance innocent?

The answer was no. Police’ worked
swiftly to. éstablish that Hance had writ-
ten the letter while an inmate at Central
State'Hospital located in Milledgeville,
Georgia, where he was undergoing the
usual psychiatric examinations. He slip-
ped the letter to a fellow inmate who
posted it in the nearby town of Athens. It
was a cunning ruse. Reference was made
in the letter to the case of a little girl
named Dawn Worth who was found
drowned with her hands tied. The girl had
died while Hance was in jail. The letter

~ stated that the F.O.E. was responsible for
the crime, the implication being that more
murders would occur unless Hance was
released. It wds a well contrived ploy
which failed simply because Hance could
not’ disguise the scratchy, crude
phraseology, the hallmark of the other
letters ‘he admitted writing.

Hance’ s civilian trial began in De-
cember, 1978, with the GI acting as his

vown counsel, a rarity in capital criminal
cases. ‘He'd been found competent to
stand trial and his defense was that he was
a victim of police mistakes. He told the
jurors, “I've been telling you the truth.
Police. offi icers make mistakes. I never
killed anyone i in my entire life.’ Like any
good defense trial lawyer, Hance had the
utter audacity , to tell the court that he’d
been forced to sign his confessions at gun
point.

Hance called :three witnesses for his
defense including.a former sweetheart
and a former fiancee who'd bore a
10-month-old son fathered by the ac-
cused. Her testimony opened the door for
the prosecution to present evidence of the
assault case ‘in, Hance’s hometown after
he'd been charged with beating a woman
there with an iron pipe. The judge let him
off the hook after he agreed to join the

_ marines.

Hance took the stand in his own de-
fense. He swore under oath that the CID
agent threatened to shoot him if he didn’t
sign written statements and to say after-
ward that he'd been shot while attempting
to escape. The jurors heard those state-

ments of confession during the course of.

the trial.

|

Then the accused adopted anew aby, iy banda to his feet and exclaimed that the

He spoke ofa mystery witness, one who
would testify on his behalf and who, while
perjuring himself, would also give: tes-
timony which would clear Hance of all
charges. The, peyateny witness never ap-
peared.

Hance had beni in jail for eight months
awaiting trial. His trial lasted six days.
When it was over, the jury took one hour
to find him guilty as charged on one count
of murder and one count of extortion.
They retired again to. deliberate his sen-
tence and again one hour was all they
required to determine that he should get
the death penalty.

Subsequent to Hance’s conviction in
the civilian courts, the army rolled out the
big guns in preparation for his trial by
court-martial. Major General William
Livsey, the commanding Officer of Ft.
Benning, handed down the decision to
prosecute Hance upon the recommenda-
tion of the Staff Judge Advocate, Col.
Robert Poydasheff. The maximum sen-
tence that Hance could receive’ if found
guilty would be life at hard labor.

But the:army had the murders of Pvt.
Karen Hickman.and Irene Thirkield on
their books and in order to wipe the slate

‘clean, it was essential that the man who

now stood convicted of slaying Brenda
Gail Faison also be tried on two more
counts of homicide. The Staff Judge Ad-
vocate estimated that it would cost the
army $21,000 to prosecute Hance. The
tribunal members were appointed in
May, 1979. One member, a colonel, was
dismissed after he received a series of
pre-dawn threatening telephone calls

which prompted throwing a security -

cordon around the colonel’s quarters.
Judge Lt. Col. R. Kevin McHugh al-
‘lowed the Forces of Evil letters: to be
admitted ‘as evidence over the protests of
Hance’s defense counsel. Eighteen, wit-
nesses testified as to the location of the
two victims bodies when found. Others
gave testimony about having seen the vic-
tims in the company of Hance just prior to
their disappearance. The desk sergeant

-who received the callin which the caller

exclaimed, ‘‘Hey man, she’s dead,"’ also

testified. Special agents Fox, Martin and

Besson provided the most intriguing tes-
timony in the case when they mounted
the stand to tell how Hance had broken
under interrogation. Written statements
given by Hance which contained explicit
admissions were received into evidence.
The, defendant's signature and initials ap-
peared on each typewritten confession.
Another CID investigator, John Bur-
roughs, testified about the processing of
Irene Thirkield’s mummified hands
which were excised from the victim's
arms and dispatched, to the Military
Police Cl Crime Lab at Ft. Gordon,
Georgia for fingerprint analysis. At one
point during the court-martial, Hance

prosecution had failed to introduce phys-
ical evidence proving his guilt.

Don Quinn, an army handwriting ex-
pert, used blown-up photographs of the
F.O.E. letters to verify his testimony to

- the effect that the missives were penned

in the defendant's own handwriting. Re-
ports and records used by Hance when
assigned as an ammunition handler were
used in the comparison tests.

Dr. Lewis R. Lieberman of Columbus,
Ga., took the witness stand to proclaim
that Hance was ‘‘no more responsible for
his actions than a pre-adolescent child.”
The good doctor also pronounced much
of the text of the infamous F.O.E. letters
as being psychotic.

On Thursday, June 3, 1979, all of the
evidence was in and the board retired to
deliberate their findings. Hance, guarded
by MP’s, was led from the courtroom toa
nearby smaller room without windows to
await their verdict. It was hot and stuffy
in the room. At one point, Hance asked to
be allowed to sit in the air-conditioned
court room. His request was allowed but
he soon returned to the dingy close room
down the hall. Smoking was not allowed
in the courtroom.

Then, at exactly 9:16 p.m., the buzzer
inside the stuffy little room clattered like
an angry rattlesnake to signal the return
of the jury to the courtroom. Hance, his
face a study of pensive anxiety, was led
back to the chambers and seated at the
defense table. The verdict was read.
Hance heard himself convicted on the
two counts of murder as charged. He
winced, then became stoic, his face ex-
pressionless. Later, the military court
handed down a life sentence.

It was noted that the civilian death pen-
alty would supercede the military sen-
tence. Hance had detlared that he felt his
civil trial was unfair. The verdict was
under an automatic appeal.

In November, 1980, an Army appeals

‘court reversed the military conviction

when the U.S. Army Court of Military
Review in Washington, D.C. ruled that
Hance was not apprehended for probable
cause, citing the fact that, in their opin-
ion, he was questioned by MP CID agents
without good reason.

The civilian conviction was reaffirmed
and upheld by the Georgia Supreme
Court. From there it went to the United
States Supreme Court where, in De-
cember, 1980, it was upheld. The
military's case disintegrated and evapo-
rated. Authorities at Ft. Benning stated
that they would decline to re-try Hance
because of both technical and financial
reasons, citing the fact that it would re-
quire close to $30,000 to bring him to trial
for a third time. At the time of this writ-
ing, Hance awaits death in the electric
chair while confined in the Georgia state
penal system.

63


762 Ga.

Mosley got out of the car, that left Mr.
Shepard and Mr. Ward and me and Fran-
ces in the car. Frances and Mr. Shepard
were in the front seat. Me and Mr. Ward
were in the back seat. After my father
and Mr. Mosley got out, Ward pulled up
my dress and felt of me under my dress. I
went and told Daddy about it. He was just
a little piece from the car when it hap-
pened. I went and told my father that Mr.
Ward went and pulled up my dress and felt
of me. After that, Mr. Ward went and got
out of the car. Mr. Mosley got in the back
of the car after he got out. My father was
not in the car then. Mr. Mosley went and
pulled up my dress. As to where my father
was then, Mr. Ward went and taken him
up above the car, he went toward my
father, he went and told him he wanted to
talk to him. After I called my father he
came to the car, Then Mr. Shepard had a
fight, he told Daddy he was going to cut
him. Daddy went and hit Mr. Shepard be-
fore I left there, I don’t know what he hit
him with. As to whether he hit Mr. Mos-
ley any time before I left, I left when it
started, I got scared and left. I hadn’t
been out of the car until the row started.”

The defendant made the following state-
ment: “Well, I went to Mr. Hoke Mosley’s
that night and found his wife and Mr.
Mosley there, and his wife told me that
Money Ward and Clarence Shepard was
gone after some whisky and if I would stay
around I would get some of it to drink
when they came back. So they come back
after a while and we passed the whisky
around and all took a drink apicce, and we
got out there and some of them said some-
thing about going to the store, and we all
agreed to go to the store, and we went to
the store and got some cigarettes and I
don’t know what all they bought, and
started on back down this side of—on the
hill, above Mr.—I can’t think of his name,
above the bridge there. They stopped the
car and me and Mr. Mosley got out of the
car and was standing there talking and
the two little girls got out with us. Well,
Clarence Shepard and my little girl Fran-
ces Mosley was still in the car, and we took
another drink there, and while me and
Hoke was standing there they started the
car off, Shepard did. They rolled on down
above the bridge, and me and Hoke went
on down there where they were, and they
were sitting in the car when we got down
there, and so when I walked up to the car
Ward told me to come there, he wanted to
see me and tell me something, I don’t re-

26 SOUTH EASTERN REPORTER, 2d SERIES

member what he said he wanted to tell me.
We walked behind the automobile and I
heard my little girl holler for me to run
there, and I run up to the car and Hoke
was in the back seat with her and had her
dress up and was feeling of her, and it
made me so mad I didn’t know what to do,
and Ward run up and hit me with some-
thing. I got so mad I don’t know what hap-
pened. I commenced hitting with anything
I could get hold of. I don’t remember
whether I hit with rocks or tire tools or
what, it made me so mad the way they were
doing my little girl, and she told me Money
Ward was doing the same thing just before
I got down there, and all the kids jumped
out and run off after we all got started to
fighting, Inez and Frances got out of the
car and run and the other little kids come
on behind me and Mr. Hoke. That’s all I
know about it.” ‘

W. L. Denton and C. B. McGarity, both
of Dallas, for plaintiff in error.

Hal C. Hutchens, Sol. Gen., and W. A.
Foster, Jr., both of Dallas, T. Grady Head,
Atty. Gen., and R. U. Harden, Asst. Atty.
Gen., for defendant in error.

BELL, Presiding Justice (after stating
the foregoing facts).

[1] 1. The first special ground of the
motion for new trial alleged that the State
failed to prove by sufficient evidence that
the crime for which the defendant was con-
victed was committed in Paulding County,
in that, “the only evidence offered by the
State on this question was that of Floyd
Ward. * * * This witness after testi-
fying to a number of transactions which
happened at a number of places, testified
as follows: ‘This happened in Paulding
County.’ Defendant insists that this evi-
dence is not sufficient to show that the de-
ceased, Hoke Mosley, was killed in Pauld-
ing County.”

As shown in the record, Floyd Ward,
after reciting what had happened on the
night in question, stated, “This happened in
Paulding County.” The statement quoted
was made at the end of the direct examina-
tion of this witness, and reasonably applied
to all the events as to which he had testi-
fied, as if he had said, “all of this happened
in Paulding County.” There was nothing
in his testimony to indicate otherwise, and
we think the statement could be taken to
mean that Hoke Mosley was struck in the
face by Hancock with a bottle, at the same
location where Shepard was struck and fell

HANCOCK y. STATE Ga. 763
26 S.E.2d 760

out of the car, and where both Shepard and
Mosley were later found in the road, each
in helpless condition, and the latter mortal-
ly wounded.

Furthermore, as also appears in the rec-
ord, Clarence Shepard testified: “The next
thing that happened, I got hit on the head
and don’t know what else happened. I was
knocked unconscious * * * . Where I
was at the time I was hit was in Paulding
County, Georgia.” Venue, like any other
fact, may be shown by circumstantial as
well as direct evidence.

We think the testimony of these two wit-
nesses and the circumstances sufficiently
proved that the wounds from which Mosley
died were inflicted in Paulding County.
See Lee v. State, 176 Ga. 215(2), 167 S.E.
507; Berry v. State, 185 Ga. 334(1), 195
S.E. 172; Dickerson v. State, 186 Ga.
557(2), 199 S.E. 142; Martin v. State,
193 Ga. 824(4), 20 S.E.2d 266. The case
differs on its facts from Futch v. State, 90
Ga. 472, 16 S.E. 102, Green v. State, 110
Ga. 270, 34 S.E. 563, and Jones v. State,
113 Ga. 271, 38 S.E. 851, cited for the plain-
tiff in error.

[2,3] 2. The judge in his charge in-
structed the jury: “You will notice that I
have charged you that before you would be
authorized to convict the defendant, his
guilt must be made to appear beyond a rea-
sonable doubt. Those words have their or-
dinary and usual “meaning, that is, the
words ‘reasonable doubt.’ I may say that a
reasonable doubt is an actual doubt that
you are conscious of, after going over in
your minds the entire case, giving con-
sideration to all the evidence and every part
of it, and the defendant’s statement. If
you then feel uncertain and not fully con-
vineed that the defendant is guilty, and
believe that you are acting in a reasonable
manner, and if you believe that a reason-
able man, in any matter of like importance,
would hesitate to act because of such doubt
as you are conscious of having, that is a
reasonable doubt, of which the defendant
is entitled to have the benefit.”

In special ground 2, movant “insists
that when the court used and gave in
charge to the jury: ‘I may say that a
reasonable doubt is an actual doubt that
you are conscious of,’ erred, because an
actual doubt is ndt a reasonable doubt, but
is greater and stronger than a reasonable
doubt. The word ‘actual’ means, certain,
true, authentic, unquestionable doubt.”

It is thus seen that the only criticism
of the charge is that the court used the
word “actual.” We have been unable to
find any decision by the courts of this State
upon the exact question, but this court has
held that an instruction that a reasonable
doubt is one for which a reason can be
given is not error. Vann v. State, 83 Ga.
44(4), 9 S.E. 945; Jordan v. State, 130
Ga. 406(1), 60 S.E. 1063; Hudson v. State,
153 Ga. 695(12), 113 S.E. 519. It would
seem that any doubt for which a reason
could be given would be an actual doubt.
In Dumas v. State, 63 Ga. 600(8), it was
held that there was no error in charging,
“if after an honest and impartial examina-
tion your minds are wavering, unsettled,
unsatisfied, that is the doubt of the law, and
you should acquit; if that doubt does not
exist, you should convict.” A doubt could
not exist without being actual. It is stated
in 20 Am.Jur. 1109, § 1257, that “All the
authorities agree that to constitute a rea-
sonable doubt there must be actual and
substantial doubt of the defendant’s guilt
arising from the evidence, or from a want
of evidence, as contradistinguished from
a mere vague apprehension.” In 23 C.J.S.
Criminal Law, p. 845, § 1274, it is stated:
“As a general rule a charge is correct
which describes a reasonable doubt as an
actual, honest, and substantial misgiving
or doubt of guilt reasonably arising from
the evidence or want of evidence, as op-
posed to a mere captious, possible, or ill-
founded doubt.” See also Holt v. United
States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed.
1021(14), 20 Ann.Cas. 1138; and Hiller
v. State, 116 Neb. 582, 218 N.W. 386, 58
A.L.R. 1322(4). The charge was not er-
roneous as contended,

[4,5] 3. Counsel for the plaintiff in
error argues that “The evidence for the
State did not show any motive, cause, or
malice for the killing,” and “that killings
just do not happen this way.” In Davis v.
State, 74 Ga. 869(4), this court approved
the following charge: “You may inquire
whether there was any motive on the part
of the defendant to induce him to take the
life of the deceased; and if there was any
motive, what that motive was. If you find
there was no motive on his part to comniit
the act, you may consider it, especially if
the evidence leaves the defendant's guilt
at all doubtful, in deciding whether the de-
fendant is guilty or not. Yet, if the evi-
dence shows the commission of the crime,
and you are satisfied, beyond a reasonable

ot ee
: -_-—

“hi?

Seeaguceee et tia aiee tii

ri

*
-
at

a

TRHEi ie

764 Ga. 26 SOUTH EASTERN

doubt, that the defendant committed it with
malice aforethought, either express or im-
plied, and if the circumstances are con-
sistent with his guilt, and inconsistent with
any other reasonable hypothesis than that
of his guilt, then, though the evidence may
not disclose a motive, you would be author-
ized to find the defendant guilty.” See also
Barnett v. State, 136 Ga. 65(2), 70 S.E.
868; Hunter v. State, 188 Ga. 215, 218, 3
S.E.2d 729; Anderson y. State, 196 Ga. —,
26 S.E.21 755. Under the principle ruled
in the Davis case, the failure of the evi-
dence to show any motive for the homicide
did not render the defendant’s conviction
unlawful. However, the evidence in this
case would have authorized the jury to find
that there was a motive for the killing, in
that the defendant became angry when he
was not permitted to drive the automobile.

[6] While the testimony of the defend-
ant’s daughter and the defendant’s state-
ment tended to show mitigation, several
witnesses testified to the contrary. The
evidence authorized the verdict, and the
court did not err in refusing a new trial,

Judgment affirmed.

All the Justices concur,

E key NUMBER SYS Hi

°

PITTMAN v. PITTMAN et al.
No. 14564,

Supreme Court of Georgia,
July 8, 1943,

1. Parties €=40(2)

In vendor’s suit for specific perform-
ance of agreement to convey and sur-
render possession of land to plaintiff after
defendant’s default in payment of notes
for purchase price thereof, where plaintiff
offered in petition to surrender notes to de-
fendant on his surrender of land, added
parties’ answer and intervention, alleging
that plaintiff received deed of land from
her husband with knowledge of his agree-
ment that interveners’ prior decd to him of
their half interest in land was in nature of
power of attorney to scll such interest and
pay half of purchase money to inter-
veners, was not demurrable on ground

REPORTER, 2d SERIES

that interveners had no interest in subject
matter of suit.

2. Trusts C>110

In vendor’s suit for specific perform-
ance of agreement to convey and surrender
possession of land to plaintiff after de-
fendant’s default in payment of notes for
purchase Price thereof, evidence held to
sustain amended intervention, alleging that
interveners’ deed, conveying their half in-
terest in land to plaintiff’s husband without
consideration, was made for purpose of
authorizing him to sell land, that, under
his subsequent deed thereof to plaintiff, she
became substitute trustee for interveners’
benefit, and that she received such deed with
full knowledge that land was to be sold and
interveners paid half of purchase money,

3. Trusts €=92!1,

While fraudulent undertakings or
promises do not raise “express trusts”, un-
less reduced to writing, “implied” or “con-
structive trusts” in defrauded parties’ favor
may be based thereon. Code, §§ 108-104,
108-105.

see Words and Phrases, Permanent

Edition, for all other definitions of
“Constructive Trust”, “Express Trust”
and “Implied Trust”,

4. Trusts €=92!/, 109

While “express trust” can be shown
only by writing, “implied trust” may rest on
express parol agreement, fraudulently
made, by which a person acquires title to
another’s property, and, in such case, ex-
press promise or agreement may be proved
by parol evidence to raise implied, not ex-
press, trust. Code, §§ 108-104, 108-105,

5. Trusts €=96

An “implied trust”, established by facts
and circumstances surrounding conveyance
of realty, is not destroyed by express
verbal agreement constituting part of trans-
action, and’such agreement may be shown,
not as fixing parties’ interest, but as re-
butting inference of gift by grantor, re-
gardless of whether fraudulent intention
existed at time of conveyance. Code, §
108-104,

6. Trusts ¢=9]

“Constructive trusts” are those raised
by equity in respect of property which has
been acquired by fraud or, if originally ae-
quired without fraud, should not in equity
be retained by holder thereof.

PITTMAN v.

PITTMAN Ca 765

26 S.E.2d 764

7. Trusts €=43(3)

A parol trust cannot be engrafted on
absolute deed, but deed must be valid in
substance as well as form, not wholly with-
out good or valuable consideration, or in-
strument under which grantee fraudulently
holds against grantor’s rights. Code, § 108-
104.

8. Evidence €=397(1!)

The terms of written instrument can-
not be varied or contradicted by parol
evidence.

9. Evidence €=419(2), 432

Where deed states consideration, not
merely by recital, but in such a way as to
constitute it a part of terms and conditions
of agreement itself, such terms and condi-
tions cannot be modified incidentally by
setting up new and different consideration,
even under guise of inquiring into consid-
eration; but, where total lack or failure of
consideration is shown, instrument can be
attacked irrespectively of manner in which
consideration is expressed. Code, §§ 29-101,
29-110.

10. Trusts €=43(3)

In vendor’s suit for specific perform-
ance of agreement to convey and _ sur-
render possession of land to plaintiff after
defendant’s default in payment of notes
for purchase price thereof, interveners’
claim, supported by evidence, that their
deed of half interest in land to plaintiff's
grantor was supported by no consideration
except such grantor’s assumption of obliga-
tion to sell land and pay interveners half
of proceeds, was not unenforceable as at-
tempt to engraft extraneous parol trust on
otherwise good and valid absolute deed.
Code, §§ 29-101, 29-110; § 108-106, subds.

?

tl. Trusts €=356(1)

Where a trustee, in breach of trust,
transfers trust property to third person,
beneficiaries can charge such person as
constructive trustee of property, if he is
not in position of bona fide purchaser.

12. Trusts €=358(1)

The right to follow wrongfully trans-
ferred property into its product applies not
only where wrongdoer is express trustce or
fiduciary, but wherever a person wrongful-
ly transfers property in which another has
beneficial interest, whether legal or equita-
ble, and receives other property in ex-
change therefor, in which case, owner of

property transferred can reach product, re-
gardless of its form, by proceeding in eq-
uity and enforce “constructive trust” or
“equitable lien”.
See Words and Phrases, Permanent
Edition, for all other definitions of
“Equitable Lien”,

13. Trusts €=374

A wife, to whom her husband con-
veyed land in which his sisters had half
interest, theretofore conveyed by them to
husband without consideration except his
agrecment to sell land and pay sisters half
of proceeds, was accountable as substitute
trustee to sisters for half of amount for
which wife subsequently sold land to an-
other.

14. Exceptions, bill of C=61

Where legality of decree is questioned
and more than statutory time elapses be-
fore tender of bill of exceptions, excep-
tions pendente lite as to question raised
must be taken.

15. New trial €=24

That a judgment or decree does not
follow or is not authorized by jury’s verdict
or is not warranted by pleadings is not
good ground of motion for new trial.

16. Appeal and error €=267(1)

Where there was no exception to de-
cree as varying special verdict, and excep-
tions as to matters in trial were confined
to refusal of new trial on general and spe-
cial grounds relating to evidence, no ques-
tion arose as to propriety of provisions in
decree granting interveners and defendant
relief prayed beyond that authorized by
verdict.

17. Trusts C=108

In vendor’s suit for specific perform.
ance of agreement to convey and surrender
possession of land to plaintiff after defend-
ant’s default in payment of purchase-money
notes, testimony of attorney, who repre-
sented all parties in procuring interveners’
quitclaim deed conveying half interest in
land to plaintiffs grantor, that parties
agreed that intervencrs should execute such
deed: and receive half of proceeds of land
when sold by such grantor, was admissible
on question of implied trust in him and
plaintiff for interveners’ benefit.

18. Appeal and error €=232(2)
Whcre sole ground of objection in trial
court to admission of testiinony was on


760 Ga.

See Timberlake v. State, 100 Ga. 66, 27
S.E. 158; Eaves v. State, 113 Ga. 749, 39
S.E. 318; Veal v. State, 116 Ga. 589, 42
S.E. 705.

The verdict was supported by the evi-
dence, and it was not erroneous to refuse a
new trial.

Judgment affirmed.
All the Justices concur.

© «© KEY NUMBER SYSTEM

sume

HANCOCK v. STATE.
No. 14588.

Supreme Court of Georgia,
July 8, 1943.

1. Criminal law €=564(1)

Testimony as to assault committed by
defendant upon deceased resulting in death,
followed by a witness’s statement that
“this happened in Paulding County” and
testimony of another witness that the
assault was committed in that county was
sufficient to establish that the wounds from
which deceased died were inflicted in Pauld-
ing County, and that the venue was proved
as laid in the indictment.

2. Criminal law G=1172(2)

Court’s charge on reasonable doubt,
containing the statement that a “reasonable
doubt is an actual doubt that you are con-
scious of”, was not prejudicial on ground
that “actual doubt” is greater and stronger
than a “reasonable doubt”.

See Words and Phrases, Permanent

Edition, for all other definitions of
“Actual Doubt” and “Reasonable Doubt”.

3. Criminal law €=789(7)

Genetally a charge is correct which
describes a “reasonable doubt” as an “ac-
tual’, honest, and substantial misgiving or
doubt of guilt reasonably arising from the
evidence or want of evidence as opposed to
a mere captious possible or ill-founded
doubt.

4. Homicide 233

In prosecution for murder resulting
from an assault committed by defendant

26 SOUTH EASTERN REPORTER, 2d SERIES

upon deceased, failure of the evidence to
show any motive for the homicide did not
render defendant’s conviction unlawful.

5. Homicide 233
In prosecution for murder result-
ing from assault committed by defendant
upon deceased, a “motive” for the killing
was shown by evidence that defendant be-
came angry when not permitted to drive an
automobile.
See Words and Phrases, Permanent
Edition, for all other definitions of
“Motive”.

6. Homicide €=250

Where death resulted from an assault
committed by defendant and the evidence
as to mitigating circumstances was contra-
dicted by other testimony, conviction for
murder was authorized. *

Syllabus by the Court.

1, Under the evidence relating to the
place where the alleged offense was com-
mitted, the jury were authorized to - find
that the venue was proved as laid in the
indictment.

2. The judge charged the jury as
follows on reasonable doubt: “You will
notice that I have charged you that before
you would be authorized to convict the de-
fendant, his guilt must be made to appear
to you beyond a reasonable doubt.. Those
words have their ordinary and usual mean-
ing, that is, the words ‘reasonable doubt.’
I may say that a reasonable doubt is an
actual doubt that you are conscious of,
after going over in your minds the entire
case, giving consideration to all the evi-
dence and every part of it, and the defend-
ant’s statement. If you then feel uncertain
and not fully convinced that the defendant
is guilty, and believe that you are acting
in a reasonable manner, and if you believe
that a reasonable man, in any matter of like
importance, would hesitate to act because
of such doubt as you are conscious of hav-
ing, that is a reasonable doubt, of which the
defendant is entitled to have the benefit.”
Held, that this charge was not erroncous,
as contended, on the ground that “an actual
doubt is not a reasonable doubt, but is
greater and stronger than a_ reasonable
doubt.” j

3. The evidence authorized the ver-
dict, and the court did not err in overruling
the motion for a new trial.

men CIN

SOOO re loi Pome cama

HANCOCK y. STATE : Ga. 61
26 8.E.2d 760

Error from Superior Court, Paulding
County; Wm. W. Mundy, Judge.

Marlin Hancock was convicted of murder
and he brings error.

Affirmed.

Marlin Hancock was indicted for murder
in the alleged killing of Hoke Mosley, and
was convicted, without recommendation. He
moved for a new trial on the gencral
grounds, and by amendment added two
special grounds, one contending that there
was no sufficient proof of the venue as
alleged, and the other assigning error on a
portion of the court’s charge. The motion
was overruled, and the defendant excepted.

The following facts appeared without
dispute from the evidence: The defendant,
together with Floyd Ward, Clarence Shep-
ard, J. B. Cole, and others, were at the home
of the deceased, Hoke Mosley, on the night
of January 17, 1943. Cole and Shepard
had come to the place in an automobile be-
longing to Cole. About ten o’clock Shep-
ard, Ward, Mosley, and Hancock, with
three daughters of Mosley and a daughter
of Hancock, left the house in this automo-
bile and went to the store of Lee Shipp,
where some of them purchased cigarettes
and soft drinks. Clarence Shepard was
driving, and in the front seat with him
were Hoke Mosley, and Frances Mosley, 15
years of age. In the rear seat were Floyd
Ward, Marlin Hancock, Josephine Han-
cock, age 13, and Merle and Inez Mosley,
ages 8 and 12 years respectively. It ap-
peared that the men had been drinking, but
not that they were intoxicated. Before
midnight, Shepard and Mosley were found
lying in the road leading from the store to
Mosley’s home, severely wounded, as by
beating. They were taken to a hospital,
where Mosley died the following day.
Shepard recovered. At the place where
Shepard and Mosley were found. were sev-
eral bottles which had been broken and were
covered with blood and hair, and an auto-
mobile lug wrench which was also bloody
and covered with hair.

The evidence for the State tended to
show that after the party in the automobile
left Shipp’s store, the defendant stated to
Shepard that he wanted to drive the car;
that the deceased objected, and these two

‘got into a quarrel”; that the two younger
daughters of the deceased, and the daughter
of Hancock, became frightened by this dis-
pute and left the car when it was “slowed
up”; that the car was later stopped by
26 $.FK.2d—48'4

Clarence Shepard, the driver, for the pur-
pose of letting the girls re-enter it, when the
defendant struck him with a pepsi-cola
bottle, and “Clarence fell out of the car and
Hancock commenced stomping his head”;
that the defendant then struck the deceased
in the face with a bottle, and also struck
Floyd Ward as the latter left the car; that
Ward and the deceased’s oldest daughter
Frances then went to a nearby residence
secking assistance, and after their departure
the defendant further assaulted Shepard
and the deceased with bottles and an auto-
mobile lug wrench; that before the return
of Ward to the place the defendant had
driven the car a short distance; and that
he was listening to a radio thereon when
Ward and others arrived.

Floyd Ward, after testifying as to what
occurred on the night of the homicide,
stated: “This happened in Paulding Coun-
ty.” Clarence Shepard testified: “As I got
across the bridge I commenced to stop the
car. The next thing that happened, I got
hit on the head and don’t know what else
happened. I was knocked unconscious.
* * * Where I was at the time I was hit
was in Paulding County, Georgia.” As in-
dicated above, the other evidence showed
that when he was hit he fell out of the car;
and it appeared also that the beating of Mos-
ley occurred within about 5 steps from this
point.

Inez Hancock, for the defendant, testi-
fied: “I am 13 years old. I am a daughter
of Mr. Hancock. * * * I went with my
father and Mr. Mosley and Mr. Ward and
Mr. Shepard and the little Mosley girls.
My father and I went to Mr. Mosley’s that
night. After we got there we went to Lee
Shipp’s store in a car driven by Mr. Shep-
ard. Those who went, besides Mr. Shepard
and my father and Mr. Mosley, were Mr.
Ward and Frances and Merle and Joseph-
ine, all Mr. Mosley’s daughters. I didn’t
do anything at the store. We bought some
coca-cola from Mr. Shipp. We started
back home after that. I remember where
Mr. Turner lives and where. Mr. Bell lives.
This trouble happened at the bridge just
beyond Mr. Bell’s house. There had been
no trouble between Mr. Mosley or Mr.
Shepard or my father until we got along
there about Mr. Bell’s house and the little
bridge. Merle and Josephine got out of the
car along about Turner’s house. I didn't
get out there. After they got out the car
come on down there to the little bridge.
After the little girls and my father and Mr,

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894 142 SOUTH EASTERN REPORTER (Ga.

nance referred to in the indictment is repug-
nant to and in contravention of paragraph 8
of section 7 of article 3 of the Constitution
of the state of Georgia (quoting it). The or-
dinance referred to was intended to provide
for the regulation of the sale of milk, and it

as attempted in the same ordinance to give
authority to the health officer to absolutely
prohibit the sale thereof.

(b) The alleged ordinance is unconstitu-
tional, null, and Yoid, in that it purports to
yest arbitrary discretion in a public officer,
without prescribing a definite rule for his
guidance.

(c) The municipal corporation, while hav-
ing the authority to enact ordinances, is with-
out authority to delegate legislative author-
ity to any one individual or public officer
such as the health officer of the city of Sa-
vannah, unless and until the action of said
health officer shall have been approved by the
sanitary board of the city of Sa yvannah.

(d) There is no allegation in the indictment
that the action of the health officer in con-
demning milk was approved by the sanitary
hoard of the city of Savannah.

(e) There is no allegation in said indict-
ment showing -that the alleged exercise of
discretion on the part of the health officer
of the city of Savannah was based upon an
inspection made of the premises where the
milk was produced, or that the exercise of
said alleged discretion arose out of such in-
spection, or that the conditions revealed after
such inspection were the basis of the opinion
of the said health officer in exercising his al-
leged discretion in declaring the milk or
cream unsuitable or unsafe for human con-
sumption, or that said alleged prohibition of
the sale of said milk was made after and. as
a result of such inspection or the result of
conditions found to justify such opinion.

‘(f) Said alleged . ordinance is vague, un-
reasonable, arbitrary, unenforecable, null,
and void, in that it attempts arbitrarily to
yest in: the hands of the health officer of the
city of Savannah the absolute power to pro-
hibit the sale of milk, without such authority
being first approved by a governmental or
legislative body.

(g) Because it fails to show that the said
milk inspectors had inspected the conditions
under which the milk referred to was pro-
duced or kept prior to the time of the al-
leged prohibition by the said alleged health
officer.

(h) Because no facts are alleged or shown,
connected with the conditions under which
the milk of the defendant was produced or
kept, which would justify or did justify the
health officer in ‘attempting to prohibit the
sale thereof, and no allegations are made to
show that the conditions under which said
milk was kept or produced were unsanitary
or would justify the formation of an opinion
sufficient to condemn the milk as unsuitable

or unsafe for human food, or warrant the ex-
clusion of said milk for sale.

(i) Because said indictment fails to allege
the time when and the place where the de-
fendant sold to Gustav L. Walz and William
M. Walz the 18 gallons of milk referred to,
and whether said sale occurred within or
witheut the city limits of the city of Savan-
nah,

(j) Beeause the allegation that, “upon in-
spection of the dairy of the said M. Leontas,
which said dairy was then and there situated
about five miles from the city hall, on the
White Bluff road, conditions were found such
as in the opinion of said health officer ren-
dered such milk unsuitable and /unsafe for
human food and warranted the exclusion of
said milk from sale in the city of Savannah,”
ete., is a conclusion of the pleader, and fails
to state by whom the inspection was made,
and what conditions were found as the basis
of the opinion claimed.

(k) Because the conditions attempted to
be alleged as found are not the conditions
contemplated or intended to be included un-
der the terms of said ordinance, to wit, said
conditions being that the milk in said dairy
had caused acute intestinal poison in three
persons, to wit, one Charlie Stevens, Tacille
Stevens, and one Samuel Macon, in the city
of Savannah—it not being alleged (1), when
or at what time the acute intestinal poison-
ing occurred; (2) where or under what cir-
cumstances the milk was used by said named
parties; (3) there is no relevancy shown to
time and place of the alleged intestinal poi-
soning with the time and place of the alleged
keeping or production of said milk by this
defendant. :

(1) It is nowhere alleged in said indict-
ment, with any degree of certainty whatever.
what caused the death of the said Arling
Tootle, or that his death was eaused by par-
taking of milk containing bacteria, or other
poison the cause of infection, or that the milk
which the said Arling Tootle was alleged to
have partaken of was in fact poisoned, infect-
ed, unfit, or unsafe for human consumption.
or that the drinking of said milk was the
proximate cause of the death of said Tootle.

(m) It is not alleged or shown that the cir-
cumstances under which the milk was trans-
formed into chocolate milk by the addition
of chocolate were such that the addition of
said chocolate in the preparation of said
milk, and the vending of same in bottles, did
not directly cause the death of the said Ar-
ling Tootle.

(un) It is not alleged or shown how long a
time elapsed between the time when sid
milk was delivered by the defendant to the
Walz Bros. and the time when consumed by
said Tootle, nor the conditions under which
said milk was kept during that period.

Respondent says that he was entitled te
have this demurrer heard and considered be-

Ga.) HAMMOND v. STATE 895
(142 S.E.)

fore any steps were taken to forfeit his bond ;
that he now submits, as his reasons for fail-
ing to appear in court, the reasons averred
herein, and which would have been made the
basis of his demurrer. Peters, the security,
made substantially the same answer.

The questions of law and fact arising un-
der the rule nisi, and the answers filed, were
submitted to the judge, who made the rule
absolute. To that judgment the defendants
excepted,

Lawrence & Abrahams and Robt. L. Cold-
ing, all of Savannah, for plaintiffs in error.

Walter CG. Hartridge, Sol. Gen., of Savan-
nah, for defendant in error.

HILL, J. [1] 1. It is declared in article 3,
§ 7, par. 8, of the Constitution of the state of
Georgia (Civil Code, § 6437), that:

“No law or ordinance shall pass which refers
to more than one subject-matter, or contains

matter different from what is expressed in the
title thereof.”

Even if this provision is applicable to the
passage of a municipal ordinance, the ordi-
nance involved in this case is not violative
thereof on the ground that its provisions re-
lating to the “regulation” of the sale of milk
and cream in the city of Savannah, and “‘pro-
hibiting” the sale of such milk and cream,
in the circumstances stated in the ordinance,
constitute a plurality of subjects. The pow-
er to “regulate” the sale of milk includes the
power to “prohibit” the sale of impure milk
as referred to in the ordinance; so that, in
substance, the ordinance only involves one
subject-matter. See Durden y. State, 161 Ga.
537, 540, 181 S. E. 496, and citations. The
exact question ruled above was not involved
in the case of Davis v. Savannah, 147 Ga.
605, 95 S. E. 6, but it was held in that case
that an amendment to the ordinance referred
to above was not violative of the foregoing
provision of the Constitution on the ground
that it referred to more than one subject-
matter.

[2-8] 2. Under former rulings of this court,
if an indictment is void, or subject to general
demurrer on the ground that it fails to allege
that the defendant has committed a penal
offense, such insufliciency may be set up as
a defense to a proceeding to forfeit a bond
given by the defendant for his appearance
in court to answer the charge against him.
Candler vy. Kirksey, 113 Ga, 309, 388 8. E. 8
84 Am. St. Rep. 247; State v. Woodley,
Ga. 285; MeDaniel vy. Campbell, 78 Ga. 188;
Rogers vy. Brown, 138 Ga. 750, 75 S. E. 1131.
The indictment in this case, however, was not
void, or subject to general demurrer for any
of the reasons alleged in the answer of the
respondents to the application to declare a
forfeiture of the bond.

3. The judge did not err, under the facts

of the case, in making absolute the rule to
forfeit the recognizance.

Judgment affirmed.

All the Justices cqucur, except RUSSELL,
GC. J., who dissents. °

HAMMOND vy. STATE. (No. 6341.)
Supreme Court of Georgia. April 12, 192S.
(Syllabus by Editorial Staff.)

{. Criminal law ¢==874—Defendant, convicted
in criminal case, may demand poll of jury after
verdict is read, but before dispersion of jury.

Defendant in criminal ease, who has been
convicted, has legal right to demand poll of jury
after verdict is read, but before dispersion of
jury.

2. Criminal law €=2874—Demand for poll of
jury, if not made until after court’s sentence,
will be too late.

Demand for poll of jury by defendant, con-
yicted in criminal ease, if not made until after
sentence of court has been pronounced, will be
too late.

3. Criminal law €==954(1) —Ground for new
trial for failure tq afford defendant oppor-
tunity to poll jury, modified by court to show
opportunity for poll not demanded, held with-
out merit.

Ground of motion for new trial, alleging that
verdict in criminal egse was returned and pur-
lished, and that court immediately dismissed
jury and passed sentence, without affording de-
fendant opportunity to poll jury, to which court
appended note, stating verdict was received and
jury not dismissed for about five minutes there-
after, during which time defendant's attorney
was present and made no demand to have, jury
polled, and was not prevented from making
demand, held without merit.

4. Criminal law €=2730(12)—Refusal to declare
mistrial for prosecuting attorney's remarks
that defendant was having picture taken held
not error, under instruction to disregard.

In prosecution for murder, refusal to de-
clare mistrial for argument of prosecuting at-
torney that defendant and family were in ante-
room posing for picture for newspaper held not
error. where court instructed jury that it could
see no prejudice to defendant, and that remarks
of counsel should npt be allowed to influence
their verdict, if not based on evidence, and to
disregard remarks not based on evidence.

5. Homicide €=2234(2)—Conviction for mur-
der held supported by evidence of defendant's
conduct before and after homicide and flight.

In prosecution for murder, evidence of de-
fendant’s conduct and statements before and
after homicide and flight was sufficient to sup-
port conviction.

Error from Superior Court, Fulton Coun-
ty: John 8. Wood, Judge.

CFor otber cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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$23,
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PPvaeLegugsde


The Clue of

number of witnesses to give us a background for the case.
Charles Mullins, aged father of the slain woman, took
the stand to tell of the life and associations of his daughter.
It was the typical, story of a well-reared young girl—
school, friends, love and marriage. There was nothing un-
usual to tell; nd nothing that could be called a clue.

wat he told us was corroborated by Mrs. Clara Bates,
an intimate friend of Mrs. Ingram from childhood.
She testified that Mrs. Ingram’s marriage had followed the
only romance of her girlhood; she had had no “affairs.”

Ingram told of finding the bodies of his wife and child.

Woodall and Skelton then described the squeaky voice,
the voice that was already haunting us.

The Coroner’s jury brought in the only verdict possible
from the testimony—that Mrs. Ingram and her son, Lloyd,
had been murdered by a person or persons unknown.

With the holding of the inquest, the real horror of the
crime was made public, and a great hue and cry went up
that the slayer be taken.

From every side we were hedged in by questions which
demanded answers; and of these the motive for the atrocity
was the most baffling.

Was the crime a result of fancied grievances in a dis-
ordered mind?

Was it inspired by an old grudge cherished against Mrs.
Ingram’s husband ‘by enemies of other years and other
localities?

Through Ingram, we learned that on the Right of Jan-
uary 27th,.a week
before the crime, a
masked band of flog-
gers had come to
the former: home of
the Ingrams on
Lindsay Street. Af-
ter they had forced
an entrance to the
house, they seized
and bound Newt In-
gram, Mrs. Ingram’s
brother-in-law, took
him outside and beat
him severely. Mrs.
Ingram had _ recog-
nized several mem-
bers of the mob, and
on her information
the floggers had been
rounded up and ar-
rested.

It seemed likely
enough that some
member of _ this

band, or some of the
band’s friends, had
committed the mur-
der. It was possible
that the slayer had

slipped into the
house and_ killed
Mrs. Ingram, and
then realizing the

possibility of the
child being aroused,
had as an_after-
thought strangled
Lloyd while he slept.

One by one, we
assembled the mem-
bers of the flogging
band in the police
station and submit-

the

Voice 41

ted each to a strange and unusual test—a test of his voice.
We took them singly into a small room, then closed all
the windows and doors, In an adjoining room sat Skelton
and Woodall. Then, one by one, we required each suspect
to pronounce the words:

“I'm looking for the Ingrams.”

The results were negative. After we, had eliminated all
members of the band itself, as well as certain of their
friends, we were at a loose end. But we never lost faith that
with all future suspects this would be the final test.

Then one day at headquarters, where we were consider-
ing the ramifications of this stfange case, the telephone rang
and the desk sergeant answered.

“Some one wants to talk about the Ingram case,” he said,
in disgust. It was just another one of the hundreds of tele-
phone calls we had received on the case.

When one of the officers answered a woman's voice floated
over the wire.

“I Jive on Lindsay Street,” she began, “close to where the
Ingrams used to live. About eleven o'clock on the night of
February third, a man came to my house and knocked on
our door. When I answered it he asked if I knew where
the Ingrams had moved to.”

“Did you tell him where they lived?” the officer asked.

“Yes, | told him they had moved down on Ashby Street,
in the 700 block. I didn’t know the exact number.”

“Who was it?” he inquired feverishly.

“I couldn't tell,” she replied. “You see, | was talking
through the screen and the door (Continued on page 61)

Squeaky

gt abies;

The murderer with his wife and child. He was caught in the police net and submitted to
the amazing ‘“‘squeaky voice”’ test.


November, 1933

The Master Detective

The Clue of the Squeaky Voice

was only open a little. It was so dark.”

The sleuth’s hopes fell. He asked who
she was.

“Now, listen,” he said, making a note
of her name, “was there anything un-
usual or peculiar that you recall about
the man?”

He waited breathlessly.

“1 don’t know what you mean. |
told you I didn’t see him,” she replied.

“Was there anything peculiar about
his voice?”

“Yes, there was,’ she answered
thoughtfully. “It was very peculiar.”
“Yes, yes,” the officer encouraged.

“Well, it was kind of squeaky,” she
said.

Once more, encouraged by this cor-
roboration of the testimony of Skelton
and Woodall, we sauntered forth in a
hunt for the man with a squeaky voice.

By a process of elimination, after
tedious work, we came to forget about
everyone but a man whose only name |
knew as Hammond. He was. known hy
the Ingrams and was our last suspect.
If he proved not to have a squeaky
‘voice, then it looked as if »we “were
beaten. *

Every available man wast put on
Hammond’s trail. We traced him to
Porterdale, a mill town not far distant,
only to find when we arrived that he
had just departed. .The trail led then
to other sections of the state,’ and
wherever we went we found that our
man had left just ahead of us.

BUT from his family and relatives we

obtained one important piece of in-
formation. Hammond had an unusual
voice, a sort of squeaky one.

Close upon his trail we followed, un-
til one day our detectives caught up
with him. He was sitting on a log in a
vacant field near Atlanta, playing
Yankee Doodle on his harmonica. He
was nervous and restless when the offi-
cers approached.

“We want you!” one of our men said.
“What for?” he asked; and they

The slayer, as he appeared when
trapped, playing his ~ harmonica

(Continued from page 41)

gazed at him in surprise. His voice was
high-pitched and squeaky!

e brought him to Atlanta, where
we questioned him at great length. He
denied any knowledge of the crime. He
hadn’t even read about it in the papers,
he said. He had been away from At-
lanta. rs

We thereupon decided to put him to
our voice test.

Again the witnesses, Woodall and
Skelton, were summoned and placed in
a room. Hammond was escorted into
an adjoining one.

Pigg one of the officers questioned

im:

“Now, Hammond,” he directed, “I
want you to do something for me.
Please repeat these words after me.”
He then went through the formula.

“I’m looking for the Ingrams,” Ham-
mond repeated. “They moved from
Lindsay Street the other day and I’ve
got to find them.”

The moment was tense and dramatic.
From behind the partition came a cry:

“THAT'S the voice—that’s it. You’ve
got the right man.”

It was Skelton talking. :

“That’s the same voice we heard out-

side our door,” came the corroboration
of Woodall. .

We immediately lodged a formal
charge of murder against Harold A.
Hammond. He was adamant in_ his
insistence that he knew nothing about
the crime. ‘

For weeks, until the trial was called,
we investigated every possible angle of
Hammond's connection with the In-
gram family, but we were unable to
uncover a motive. That remains a
mystery to_ this day. Was-he sodden
with drink? Or drugged? -How else
could the brutal circumstances be ex-
plained?

But his squeaky voice trapped him.
When he faced a jury in Fulton Su-
perior Court they brought in a verdict
of guilty without recommendation of
mercy, carrying with it the automatic
penalty of death in the electric chair,
to which the judge sentenced him.

Newspaper men and official wit-
nesses were grouped in a corner of that
grim, poorly lighted room of death at
Milledgeville. Officials were tinkering
with the dread contraption known as
the electric chair.

Hammond entered, leaning on the
arm of a guard. A minister followed.
In utter silence they escorted him to
the chair, fitted the gruesome cap
against his shaved head, fastened the
conductors to his leg. There came then
the voice of Judge B. H. Dunaway,
Warden of the State Prison:

“Harold,” he said, “is there anything
you wish to say?”

Hammond cast a look around the
room, a sort of furtive, fretful glance,
taking in each of the small silent group,
and each dropped his eye.

“No. Go ahead,” he said.

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LAST Wows

EXECUTION

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A miscarriage U1 pusuce wo powers —

convicte

killer William Henry

Hance is not granted a reprieve,
say his attorney anda...

Juror haunted —

by decision as

By Peter Mantius
STAFF WRITER

illiam Henry Hance is

to be. ..electrocuted

Thursday for the 1978
murder of a young Columbus
woman, despite a juror’s swo
statement that she was pres-
sured into voting for the death
penalty. ;

His best chance for a last-
minute reprieve appears to rest
on a Georgia law — passed after
he was sentenced — that prohib-
its the execution of retarded
persons.

“He’s just there in his own
world,” said Hance’s attorney,
Tom Dunn. “He’s a model pris-
oner who doesn’t bother anyone.
He doesn’t grasp the reality of
his situation.”

Two psychiatrists have con-
cluded that Hance, 45, is mildly
retarded and suffers from phys-
iological brain damage. His for-
mer teachers and attorneys tend
to agree that he is mentally im-
paired. One elementary school
teacher recalled that although
Hance wanted to be a pilot, his
aspirations were “wildly incon-
sistent with what he was likely to
accomplish.”

And a woman who sat on the
Columbus jury that sentenced
him to death in 1984 now claims
that she never believed Hance
should, be executed. “I did not
believe that he knew what he was
doing,” Gayle Lewis Daniels said
in a recent affidavit. |

Daniels now claims she was
intimidated into going along with
the other 11 jurors, who she says
were eager to turn in a unani-
mous verdict for the death penal-
ty so they could be released for
Mother’s Day. After she refused
to vote for death, the jury fore-
man ignored her and informed:
the bailiff that a unanimous ver-
dict was ready, she said.

“When we went into the
courtroom, I was scared to
death,” said Daniels, who knew
she and the other jurors would be
polled individually. “I was afraid
I would get in trouble for not par-
ticipating in the vote, so I said
‘yes’ [to the death penalty] like
all the other jurors, even though
it wasn’t true.”

Daniels was the only black on
the jury, partly because the pros-
ecutor had rejected seven other
possible black jurors for the sen-
tencing trial.

Hance, who is black, was a
soldier at Fort Benning when he
was convicted of killing Gail Fai-

aS

execution nears.

SPECIAL
William Henry Hance, a
soldier at Fort Benning when
convicted of murder, is to
be executed Thursday.

son, whose body was discovered’
in a shallow grave. He also was’
implicated in the slaying of an-
other Columbus woman, Irene
Thirkiele.

Before Faison was killed, po-
lice received crudely written:
notes from the “chairman” of the.
“forces of evil” saying Faison
and other black women would be
killed unless police solved the
“Stocking Strangler” murders of
seven elderly white women in
Columbus.

But Dunn noted that after a
military jury heard Hance’s case
in 1979, five of nine jurors said
they did not believe Hance had
the mental capacity to commit
premeditated murder.

Georgia outlawed executions:
of the retarded in +1988" after’
strong public reaction to the 1986"
execution of Jerome Bowden, an-"
other black man from Columbus,
with an IQ of about 60. ;

A year after the law was en-’
acted, the Georgia’ Supreme:
Court ruled that the state consti-.
tution granted all retarded citi-
zens the right to be exempt from
execution for crimes.

In 1993, the state executed
Tom Stevens despite evidence
that he may have been retarded
because Stevens’s attorneys
failed to raise the issue of retar-
dation soon enough. Dunn argues
that Hance’s right to avoid exe-
cution can’t be revoked for pro-
cedural reasons.

Robert Faison, the brother of:

Hance’s murder victim, said he
believes the murderer should be
sentenced to life in prison.

“I do not support the execu-
tion of Mr. Hance,” Faison said.
“I believe this is something
which is better left in the hands
of the Lord.”

Anata Toorwdt[eoastiWi/oo

Orta Ga 3/74 (3 4)

HA

NCE,

William Henry, black,

elec. GAS (Muscogee) March 31,

1994.

Georgia probers, the FBI and
Army CID agents could only wonder

about the Fort Benning murders:

WERE BOTH GIRLS

KILLED

BY THE

“FORCES OF EVIL?"

by TERRELL W. ECKER

HIS IS ALL I need,” Police Chief
Curtis McClung told himself as
he read the hand-printed letter.

He hoped desperately that it would
prove to be the hoax it appeared to be.

Columbus, Georgia, already was sha-.

ken to its antebellum roots by the
dreaded “stocking strangler” who had
claimed his sixth victim only 19 days
before, on February 12, 1978. Six dead
women and not a single clue to the
rapist-strangler’s identity—other than
some inconclusive evidence that the
slayer. of the six elderly white women
was black. All Chief McClung needed to
make his life complete was for some nut
to start killing black women in retalia-
tion.

After reading the letter McClung
examined the stationery and envelope
closely. The stationery bore a military
eagle crest in the upper left corner, In
the upper right corner was printed
“UNITED STATES ARMY.” But it
wasn’t official Army stationery. It was a
very common “Army type” stationery
sold by the PX at Fort Benning, a 285-
square-mile infantry training base ad-
jacent to Columbus. The letter was
dated March 1, 1978 and had been .re-
ceived this day, March 3rd. The match-
ing envelope bore an illegible postmark
but no return address.

The chief told his secretary td sum-
mon an evidence technician to his office
and to find out ifa missing person report
had been filed on someone named Gail
Jackson, Then he reread the letter:

16 True Detective
,:

TRUE DET

To Chiefiof Police
Dear Sir:

We are an organization Eraposed of 7
members. I’m writing this letter to in-
form you that we have one of your Col-
umbus women captive. Her name is
Gail Jackson. Since that coroner said
that the S-Strangler is black, we de-
cided to come here and try to catch him
or put more pressure on you. I see 'now
more pressure is needed. At this point
Gail Jackson is still living. If that
Strangler is not caught by 1 June 1978
you will find Gail Jackson’s body on
Wynonton Rd. If he’s still not caught by

1 Sept 1978 the victims will double. This .
is the break that we have been looking

for. Tell that coroner, thanks a lot. From
now on Black women in Columbus, Ga.
will be disappearing until the Strangle
is caught. Don’t forget that date. Gail
Jackson’s life depends on it. From how
to 1 June Gail Jackson is with us. You
better answer us somehow, TV or Radio.

If we don’t hear-some type of reply in 2

days, we will take it as though you don’t

care. If we take it that way, Gail .

Jackson will’ be executed. You have
until Sunday for reply. Don’t think we
are bluffing. Better yet, I'll give you
until. midnight Monday until Sunday.

. Yours Truly
You have until midnight Monday for
reply.
PS.

We are call whe
Forces of Evil.

We are an. organization within an or-

ganization.

A few minutes later, Chief McClung |

was told that there was no missing per-
son report on any Gail Jackson, nor was

‘ECTIVE, October, 1981

Nude bodies of Gail Jackson, 21, and:

Irene Thirkield (below), 32, were
found in wooded area of Ft, Benning,
Ga. Both had been beaten to death,

‘'and Ms. Thirkield’s head was missing

Columbus, Ga. Police Chief McClung
had received. several letters warning
\that Gail Jackson would be killed...
and “her death will be on’ your head.”
‘Letters were signed ‘Forces of Evil’

/

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Certain phone call led investigators to arrest Army Specialist William Henry
Hance, 26, who admitted writing “Forces df Evil’” letters, but under duress

there any Gail Jackson listed in the
phone book or in the city directory. The
chief turned the letter and envelope
over to an evidence technician to be pro-
cessed for fingerprints, then turned his
attention to more pressing matters.
Some idiot’s idea of a joke, no doubt.

The second letter arrived on March
13th, but was handdated 7 March, and
the envelope was’ clearly postmarked
March 8th. This letter, hand-printed on
plain stationery, read:

“The Chairman of All The Forces”
=CONCERN= Gail Jackson (F.O.E.
custody imprisonment 28 Feb 1978)
To: Chief of Police
Dear Chief:

You were informed once before of the
person concerned. We also gave you a
dead line, which was 1 June 1978. We

18 True Detective

also told you to respond to us either
through TV or Radio. I see now that you
think that we are bluffing. I can’t see
how you would think something like
that with someone’s life. You see, Chief,
we are an organization within an or-
ganization. This is the last letter that
you will receive from us. I took this mat-
ter of your actions to the committee. I
am_of course the chairman. The rest of
the Forces wanted Gail executed since
their was no reply from you. But I ruled
that out and pospond her execution
until June 1,,1978. By that time, if the
Stocking Strangler is not. caught, Gail
Jackson will be executed. Every 3
months after that another ‘Black
Woman will be taken and executed.
Their’s 2 ways you could prevent this:
1) Catch and convict the Stocking
Strangler igs ‘

| \

ef pes I bea +4
yr : i
}

4

' 1 ke ; Veaeed } ats eek
2) Get 10,000 dollars to.us by 1 June

+ 1978

So.you see, you can get her back alive.
Maybe they haven’t reported her mis-
sing yet. But they will, you can be sure
of that. We got her 28 Feb. 1978 at 11:38
p.m. ... You should receive this letter
by Friday. So, on TV or Radio no later
than 11:00 p.m. Friday night, we had
better hear something from you, or we
won’t wait until June 1, 1978 to execute

Gail Jackson because by you not talking

to us, that’s telling us you don’t care.
Pleaserfor her sake answer us. .. .
Don’t think that we.are bluffing. We
\ are an organization within an organiza-
tion. We are an organization that makes
our own laws and rules and punish-
ments. Please help Gail Jackson live.
She’s only 21 years old.

Chief McClung still wasn’t convinced
that it wasn’t just a very unfunny joke,
but there were two things about this
letter that he couldn’t ignore. One was
that, if the threat was genuine, the wri-
ter now was trying to extort money from
the police, department. But far more
serious was the problem of the deadline.
It had passed.

The letter was hand dated Tuesday,
March 7th, and the envelope was clearly

is postmarked March 8th. The deadline

was 11 p.m. Friday, March 10th. But it
had taken the United States Post Office
five days to get the letter across the
street and around the corner to the Col-
umbus Police Department. (Well, let’s
be fair—it was only four working days.)
By the time the letter was delivered on
‘Monday, March 13th, the deadline had
passed. If there really was a Gail
Jackson, and if she really had been ab-
ducted, then she was in serious
trouble—or dead.

The second letter, like the first, was
devoid of identifable fingerprints, and
to no one’s surprise the return address
on the envelope proved to be fictitious.

Hoax or not, Chief McClung had no
choice but to order a thorough investi-
gation. At least the second letter had
provided two clues. If Gail Jackson
existed she was, according to the letter,
a 21-year-old black woman who had
' disappeared on February 28th.

Chief, McClung soon learned -from
Vice Detective James Myles that there
was a 21-year-old black prostitute who
went by the name of Gail Jackson, al-
though that wasn’t her real name, and
who apparently had been missing since
February 28th, although no one had re-
ported it. Her real name was Brenda
Gail Faison, and she also went by the
name of.Gail Bogen. Her photograph’
‘and fingerprints were in es ‘depart-
ment’s files—Detective Myles had ar-
rested her four times for prostitution.

Myles said he had found Gail’s boy-
(Continued on page 68)

Do You Fee! Quali;
Enrollment in this C.

Before you start any poli:
Program you should hay.
interest in law enforcem:
of good character. Your |
- taking this training sho:

of the following:

1. To prepare for eatrance te a Re
Academy. Although entrance rec
ordinarily do not require previ
training, this course can help 5
resident training if you are acc
enrollment at a Police Acader

2. Te prepare for examination wt
of police practices count, offer
counties and others to screen a
Police work.

3. To learn police work asa backg

. Ia other areas of law enforcement. /

officer, working insecurity for

; industry, as a park ranger or in

institution, this course can give
background information.

4, Te expand your knowledge of po
your own interest. If you are sinc:
in law enforcement, you may w

' volunteer work or become a res

officer in areas where they are
Perhaps you are interested in pc
and criminal investigation to im
own education.

Highway Patrol » County
Business and Industrial S
City and County Marshals
State and Federal Park R.
Probation and‘Parole Offi
Animal Control Officer « (
Officers « Private Investic
Narcotics Officers + othe
Regulatory Agencies .

Since this course is ne\
We are not able to tell you
about the experience of o
students in getting jobs.

Police Sciences institute, |
4401 Birch Street, Newp


-jels, then 26 years old and the... oe digteaught Nthat ' “she

Woman says, 10 !
voted against 1e d

By Peter Mantius ti
STAFF WRITER

A= 10 years s ofsilence, a

juror who says: she ale, i
lowed herself to be
cowed into voting to send Wil-
liam Henry Hance to.the elec:
tric chair has stepped forward”
totrytosavehim. .. |... vs
~ She may be too late, -* “William Henry Hance! =!
:\ The Georgia Board of Pac is to be’electrocuted to} *
dons and Paroles listened im- night for murder, though:.
passively to Gayle Daniels Gayle Daniels, who was was $B

Wednesday and then denied u that. sen- «
Hance clemency, clearing the . the 1984 jury os:
‘this

way for his execution »etenced himsaid: the: MP fe:
ning at 7. § Ameer
“One of the board. mem: y ced
“bers told me, ‘I hope you don’t’
take this on your shoulders,’?
- Daniels said. “But T will live | ude
with this for the rest.of my life."
“If they execute him now,
they will be punishing. me for |
what I did that day in 1984,"
more than punishing .h him’ for
what he did.” *"
» The Saturday. before Moth-
er’s Day 1984, “Daniels” ‘says,
she caved in to pressure, from,
-11 other impatient jurors who ae
wanted to sentence. Hance. to. "before re saying she
death and get out of court.

retuurne of ib he: i
: “Courtroom and tha: =
ineriberser “polled.

es: Ey Oe

ee

af Wye!

Her story corroborated
‘For hours that -day,. ‘Dan-

——

re

-only black person on, the j jury,
held out for a life A for s,,.. Sait Ed Harbison’ (D-Cal
Hance. . | sy en, ison

‘She had no “doubt, that". bu is), the na Tocal’ ‘Tadio. ge
* Hance was guilty of murder- /: i donatitie acknowledged | “that
_ing a young Columbus. woman “he helped Daniels set ‘up ‘the
in 1978, and she didn’t ODER, ov : inreeulay prison ‘meeting per
the death penalty philosophi- tween. the {urér and, the
cally. But she felt that he was ; ' inmate. e ya whe coh
too mentally impaired.to un-,,,

derstand what he,had done’. No repercussion fears ne se

and didn’t deserve todie.  Harbisoiadia he promised
a pushed my chair away not to publicize Daniels's to-

“ranged to. meet I Hance, int

: = Sete Laie bie

to apologize 't to ‘him, ‘a


1182

receive a telephone call to detail the loca-
tion on Sand Hill where the body was locat-
ed. On March 30, 1978, Fort Benning Mili-
tary Police telephone Operators and the Co-
lumbus Police Communications Department
received telephone calls from a black male
who identified himself as “Chairman of the
Forces of Evil.” The caller described the
place where Jackson’s body was located;
the body was found there that day. Jack-
son’s entire face and the front portion of
her skull had been smashed; portions of
her jawbone, teeth, bone chips, and partial
teeth were discovered near the site. Also,
her left elbow had been completely dislocat-
ed. According to the medical examiner,
the cause of death was multiple blows to
the head that could have been inflicted with
a tire tool or jack handle.

On April 3, 1978, the body of Irene Thir-
kield was recovered on the Fort Benning
reservation. The victim’s head was virtual-
ly missing; she had sustained considerable
skull damage. The cause of death was
massive blunt force trauma to the head
that could have been inflicted with an auto-
mobile jack. There were other similarities
between the circumstances of the deaths of
Jackson and Thirkield. Both bodies were
recovered from wooded semi-secluded ar-
eas not far from access roads, and in the
Same geographical area. Both victims had
been dragged from the road. Both were
black females who were discovered in vari-
ous stages of undress.

Fort Benning Criminal Investigation per-
sonnel learned that Hance was the last
person seen with Irene Thirkield. On April
4, 1978, after being advised of his Miranda
rights, Harice agreed to go to the head-
quarters office. In his Statement to the
authorities, Hance admitted to capturing
the women, writing letters to the Columbus
Police Department, and placing the tele-
phone calls, asserting that his actions re-
Sulted from threats made to Hance by the
“Forces of Evil.” On April 5, 1978, Hance
indicated that he wished to confess, gave a
statement, and signed it.

In his confession, Hance Stated that
Jackson propositioned him for $20.00 at the
Sand Hill Bar and Grill. He left with her,

981 FEDERAL REPORTER, 2d SERIES

and had driven a short distance when she
began to disrobe. Hance stopped the ve-
hicle, became upset, and grabbed Jackson,
When she attempted to escape, he Struck
her with a “karate chop” across the head.
She fell across the door, bleeding. He
pulled her into the woods and returned to
his vehicle, where he picked up a Jack han-
dle before returning to the woods. Upon
finding Jackson stil] breathing, he hit her
in the head until she was dead. Hance also
admitted to killing Thirkield.

On April 6, 1978, Hance ave another
statement. In that Statement, Hance indj-
cated that Jackson’s proposition had se-
verely upset and angered him. He admit-
ted to hearing “something pop” while drag-
ging her into the woods. Hance further
admitted that he was the only member of
the “Forces of Evil.”

At trial, clinica] psychologist Lewis R.
Lieberman testified for the defense that
Hance had a Personality disorder. Charac-
teristic traits of the disorder include ego-
centrism, an inability to empathize with
other people, and poor judgment. Dr. Lie-
berman stated that Hance had difficulty in
ever admitting that he had done something
wrong, and that he would try to cover up a
mistake or blame others. Dr. Lieberman
testified that there was no organic basis
for Hance’s Personality disorder, and that
although he had difficulty controlling his
actions, Hance knew the difference be-
tween right and wrong. Dr. Lieberman
indicated that the ability to recognize and
admit that one had done wrong would be a
sign of improvement, but on cross-examina-
tion admitted that people with personality
disorders rarely improve over time, and
that Hance had not “mellowéd” in the six
years since Dr. Lieberman‘had first exam-
ined him.

Other defense witnesses included First
Sergeant Ronald R. Nelson, an Army offi-
cer who testified that Hance was dependa-
ble, trustworthy, and a good soldier, but
that Hance had experienced financial and
marital problems and had been’ under
Stress at the time in question. Other wit-
nesses testified that Hance had not caused
problems while incarcerated. Charles

; flipped.”

@ Westcott testifi
| Hance for twent

was friendly, co

a) nota problem to |
® also stated that H
' died as a result

rape.

Hance testified
ing March, 1977,
problem. He sta
Sailant was never
tack had sickened
that he did not k

* Jackson, and that

known to him. H
Thirkield, but alles
sense of control’
He acc
the Jackson murd
begged God’s for
jury to forgive hi
six years following
had grown physics
had made peace w
The jury senten
the Jackson murde
der was outrageous
rible or inhuman
aggravated battery

II. DI

A. Ineffective Assi

[1] Hance argue
the resentencing tr:
rendered ineffective
by failing to effect
present evidence of ]
and by failing to 4
Hance’s background

2. Although we doubt ¢!
right to assert the clair
of counsel under the c:
we need not affirmati
light of our dispositi:
ineffectiveness claim.

3. Hance is not entitled

to demonstrate that Fl:

State habeas hearing \.

torney at the state hah:
Opportunity to adduce |
Hance now proffers n:
available at the state |
argues that Flournoy h |
tion with Hance’s hab

WA


f

a

jGeorgia’s capital sentencig
ed.

| Law @641.13(7)

ant was not denied effective’

f counsel during sentené
pital murder trial when def
ed to contact members of de:
ily with regard to defenda:
238, where defendant instru
to contact and involve memt 3
y, and counsel complied becauf
hat if he did not, he would logé
cooperation in defense strategy
= guilt and expressing remorsé, -
onst.Amend. 6. ee)

| Law €°641.13(6) |
e counsel’s decision to present
of clinical psychologist concern-
wnt’s mental illness was not imef-
r) » at capital murder trial,
3)  ogist testified that defen-
ces of rehabilitation were poor;
unsel had evaluated evidence
) eight mental health experts,
ychologist was willing to testify
ant suffered from mental digor-
ainishment of mental capacity,
ogist also testified that if de
ld recognize that he done some-
r, it would be a sign of prog-

>)

.A. Const.Amend. 6. b

“*

» €357(7) |
e at sentencing phase of capital
was sufficient to establish ag-
ircumstance of aggravated bat-
Georgia’s capital sentencing
ctim was first struck on head
. chop, and was beaten with 8
ile she was still alive with such
when her body was discovered,
s completely missing. 0.C.G.A.
17-10-30(b){7). ‘

Law 864 ;
ourt’s failure to respond be
r+ fax definition of “‘life impr
uw entencing phase of capital
/ was not reversible error.

Thomas P. Lenzer, Lenzer & Lenzer,
Norcross, GA, for petitioner-appellant.

Mary Beth Westmoreland, Senior Asst.
Atty. Gen., Atlanta, GA, for respondent-
appellee.

Appeal from the United States District
Court for the Middle District of Georgia.

4
Before ANDERSON, COX and BIRCH,
Circuit Judges.

ANDERSON, Circuit Judge:

Petitioner, William Henry Hance, who
was convicted of murder in state court and
sentenced to death, appeals from the dis-
trict court’s denial of his petition for habe-
as corpus. For the reasons that follow, we
affirm the decision of the district court.

BACKGROUND

A. Procedural History

William Henry Hance was convicted of
attempted theft by extortion and the mur-
der of Gail Jackson; he was sentenced to
death for the murder. Hance’s conviction
and sentence of death were affirmed by the
Georgia Supreme Court. Hance v. State,
245 Ga. 856, 268 S.E.2d 339, cert. denied,
449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 611
(1980). Hance unsuccessfully sought state
habeas corpus relief in the Superior Court
of Butts County, Georgia; the Georgia Su-
preme Court denied his Certificate of Prob-
able Cause to Appeal. The United States
Supreme Court denied certiorari. Hance v.
Zant, 456 U.S. 965, 102 S.Ct. 2046, 72
L.Ed.2d 491 (1982).

Hance then filed a petition for habeas
corpus in the United States District Court
for the Middle District of Georgia. The
district court denied the petition, and
Hance appealed to this court. This court
affirmed Hance’s conviction but granted
Sentence stage relief on the grounds that
the prosecutor’s closing argument rendered
the sentencing proceeding fundamentally
unfair, and that two jurors were improper-
ly excluded in violation of Witherspoon v.

1. Hance later admitted to killing Thirkield also.
The instant proceeding only involves his convic-
tion for the murder of Gail Jackson.

HANCE v. ZANT
Cite as 961 F.2d 1180 (11th Cir. 1993)

Hance

a ra Ky pay 9 Poa ay aor
== =e ntllacae th, ial he, cM, ES

1181

Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20
L.Ed.2d 776 (1968). A new sentencing trial
was ordered. Hance v. Zant, 696 F.2d 940
(11th Cir.), cert. denied, 463 U.S. 1210, 103
S.Ct. 3544, 77 L.Ed.2d 1393 (1983).

At his second trial, Hance was again
sentenced to death. The Georgia Supreme
Court affirmed the death sentence in
Hance v. State, 254 Ga. 575, 332 S.E.2d
287, cert. denied, 474 U.S. 1088, 106 S.Ct.
606, 88 L.Ed.2d 584 (1985). Hance filed a
petition for habeas corpus in the Superior
Court of Butts County, which the court
denied after holding an evidentiary hear-
ing. The Georgia Supreme Court affirmed
the denial of habeas corpus in Hance v.
Kemp, 258 Ga. 649, 378 S.E.2d 184 (1988),
cert. denied, 490 U.S. 1012, 109 S.Ct. 1658,
104 L.Ed.2d 172 (1989). Hance then filed a
petition for habeas corpus in the District
Court for the Middle District of Georgia;
the district court denied the petition with-
out holding an evidentiary hearing. This
appeal followed.

B. The Relevant Facts

On February 27, 1978, Gail Jackson dis-
appeared. The car she had been driving
was discovered on March 5, 1978, at the
Sand Hill Bar and Grill in Columbus, Geor-
gia. Between March 3, 1978, and April 5,
1978, Chief Curtis E. McClung of the Co-
lumbus Police Department received a series
of letters written on United States Army
stationery from an individual who identi-
fied himself as “Chairman of the Forces of
Evil.” The subjects of the letters were Ms.
Jackson and Irene Thirkield, both black
women.' The writer threatened them with
death if the Columbus, Georgia “stocking
strangler” was not apprehended, or, in the
alternative, if the “Forces of Evil” did not
receive $10,000.

A letter received on March 27, 1978, stat-
ed that one of Ms. Jackson’s arms would be
broken and that there would be a sharp
blow to her head to cause death. The
author indicated that the authorities would

was convicted of the Thirkield murder in mili-
tary court, but his conviction was reversed by
the United States Court of Military Review.

{
i
}


HANCE, William Henry, black, elec, GA3P (Muscoge

1180

tion to file a supplemental appendix is de-
nied.

O & KEY NUMBER SYSTEM

4um<

) William Henry HANCE, Petitioner-
7 jee ,
Appellant,

Vv.

Walter ZANT, Warden, Georgia Di-
agnostic & Classification Cen-
ter, Respondent-Appellee.

No. 91-8448.

United States Court of Appeals,
Eleventh Circuit.

co 6, 1993.

After defendant’s state court murder
conviction and sentence were affirmed on
direct appeal, 245 Ga. 856, 268 S.E.2d 339,
defendant petitioned for habeas corpus.
The United States District Court for the
Middle District of Georgia, denied relief,
and appeal was taken. The Court of Ap-
peals ordered new sentencing trial, 696
F.2d 940. Defendant was again sentenced
to death, his death sentence was upheld on
appeal, 332 S.E.2d 287, and his request for
habeas relief in state court was denied, 373
S.E.2d 184. Defendant again petitioned for
federal habeas relief. The District Court,
No. 89-00085-CIV-COL, J. Robert Elliott,
J., denied petition, and defendant appealed.
The Court of Appeals, Anderson, Circuit
Judge, held that: (1) defendant was not
denied effective assistance of counsel when
defense counsel failed to contact members
of defendant’s family with regard to defen-
dant’s mental illness; (2) defense counsel's
decision to present testimony of clinical
psychologist concerning defendant’s mental
illness was not ineffective assistance; and
(3) evidence was sufficient to establish ag-
gravating circumstance of aggravated bat-

eC. q \ "othe OE

981 FEDERAL REPORTER, 2d SERIES

tery under Georgia’s capital sentencing
statute.
Affirmed.

1. Criminal Law €641.13(7)

Defendant was not denied effective as-
sistance of counsel during sentencing
phase of capital murder trial when defense
counsel failed to contact members of defen-
dant’s family with regard to defendant’s
mental illness, where defendant instructed
counsel not to contact and involve members
of his family, and counsel complied because
he feared that if he did not, he would lose
defendant’s cooperation in defense strategy

of admitting guilt and expressing remorse.
U.S.C.A. Const.Amend. 6.

2. Criminal Law @641.13(6)

Defense counsel’s decision to present
testimony of clinical psychologist concern-
ing defendant’s mental illness was not inef-
fective assistance at capital murder trial,
although psychologist testified that defen-
dant’s chances of rehabilitation were poor;
defense counsel had evaluated evidence
from six to eight mental health experts,
and only psychologist was willing to testify
that defendant suffered from mental disor-
der and diminishment of mental capacity,
and psychologist also testified that if de-
fendant could recognize that he done some-
thing wrong, it would be a sign of prog-
ress. U.S.C.A. Const.Amend. 6.

3. Homicide €357(7)

Evidence at sentencing phase of capital
murder trial was sufficient to establish ag-
gravating circumstance of aggravated bat-
tery under Georgia’s capital sentencing
statute; victim was first struck on head
with karate chop, and was beaten with a
tire jack while she was still alive with such
force that, when her body was discovered,
her face was completely missing. 0.C.G.A.
§§ 16-5-24, 17-10-30(b\7).

4. Criminal Law 864

Trial court’s failure to respond to
jury’s request for definition of “life impris-
onment” during sentencing phase of capital
murder trial was not reversible error.

on

orn

executed oS PN aot. a Georgia i

Jet

“Y

Thomas P. Lenzer, |
Norcross. GA, for gyg-tic

Mary Beth Westqore!:
Atty. Gen., Atw#itas_GA
appellee. ‘

Appeal from the Unit
Court for the Middle D

Before ANDERSON, '
Circuit Judges.

ANDERSON, Circuit .

Petitioner, William H
was convicted of murder
sentenced to death, app
trict court’s denial of hi
as corpus. For the reas:
affirm the aw} of

BACKGRC

A. Procedural Histor.

William Henry Hane:
attempted theft by exto
der of Gail Jackson; he
death for the murder.
and sentence of death w
Georgia Supreme Cour
245 Ga. 856, 268 S.E.2
449 U.S. 1067, 101 S.Ct.
(1980). Hance unsucces
habeas corpus relief in
of Butts County, Georg
preme Court denied his
able Cause to Appeal.
Supreme Court denied «
Zant, 456 U.S. 965,
L.Ed.2d 491 (1982).

Hance then filed a |
corpus in the United ‘
for the Middle Distn.
district court denied |
Hance appealed to thi
affirmed Hance’s con
sentence stage relief
the prosecutor's closin;
the sentencing proce:
unfair, and that two j:
ly excluded in violatio

1. Hance later admitted
The instant proceeding
tion for the murder «


‘

a lawyer for the Rao firm
is is not a case of a de-

‘din an accident. Under

’s of the case, the family
go out there.”’

Thursday, April. 9, _

--year-old daughter,
Kenosha, accompanied
y lawyer, Maloney, and
2d her father’s body,
ather,’* she said softly.
d out to Dorff that. her
ad been. gray, almost
n she last saw him, and
d it an auburn color.
Jade’s parents Sonquist
dy was planning to leave
t temporarily. Just be-
rs Callahan had tele-
parents to say Wendy
out to visit them on
because he had ‘‘busi-
10)

business’’ and whether
1 to his sudden death.

an’s murder, Assistant
.. Seth Rosenberg, a
of Morganthau’s staff;

lement investigation is

ing.’’ The number one
3 want to know is where

t Callahan and his jet-
looking for the pot of
inbow ended over the
e on the shore of Lake

irst-rate police work to
ities of the two corpses
ist Phil Sander on his

2 question of who killed

Wendy McDade might
d

lings can be highly im-

19s

lad only in a shirt. The
have been, crushed like
> earth and dried leaves
ver the body to conceal
tounded to find money
nake-shift grave. It was

‘ter which was received

ly was the last of a total

person who mentioned

a future victim. How-
at that the latest victim
-arlier, long before the
vas received by Chief

ing of the leaf-covered

on next page)

1 like to know what Cal-

corpse, police placed an advertisement in
the classified ‘section of a Columbus
newspaper urging the self-identified
chairman of the Forces of Evil to make
contact with them. They received no di-
rect response other than the call placed to
the Military Police Headquarters Desk.
Sergeant with precise directions on how
to locate the remote grave located not too
far from the Sand Hill Bar & Grill.

‘Investigators learned early into their
investigation of this latest homicide that
the victim was last seen in the honky-tonk
on the' night of February .28, 1978, and
that she vanished after that date. They
learned too that Gail Jackson was only an
alias and that the victim’s real name was
Brenda Gail Faison, 21, and a known
prostitute with a police record. In one of
the four letters it was stated that Faison
had been abducted on the night of Feb-
ruary 28. Other information somewhat
clarified the writer's motivation when he
stated that murders would take place in
retaliation for the strangulation slaying of
the seven elderly white women and that
they would continue until the strangler
was caught.

The second ‘letter received by Chief
McClung demanded payment of $10,000.
No directions were given on how this
money should be paid. Other information
in these strange notes stated that the
Forces of Evil was an organization sent to
Georgia from Chicago to ‘make justice.”’
The author implied that the organization
was made up of seven hard-core members
who made their own ground rules and
who also drafted their own particular

‘brand of punishment. - i

Columbus police and the military pul-
led all stops in their concentrated efforts
to identify and arrest the person who'd
drafted the four menacing letters and to

* apprehend those responsible for the rash
of murders believed to be directly related
to the man known as the Chairman of the
Forces of Evil. As they worked to check
out all available leads, they wondered
about the woman named Irene. Who was
she? Had she, too, been murdered? If so,
where was her body? The answer to the
latter question was answered on Monday,
April 3, 1978. net foe

On that date, the Military Polige desk
sergeant on duty at Ft. Benning received
a third anonymous telephone call. Staff
Sgt. Larry W. Lee picked up the receiver

‘ onthe second ring. The voice on the other

end of the line blurted, ‘‘Hey man, she’s
dead!" — ‘‘Who? Who's dead?’ Sgt.
Lee inquired. — ‘‘Irene’s dead, that’s
who,”’ the caller said. He directed the MP
non-com. to send a search team to a re-
mote rifle-range on base and then hung
up. As with the two previous calls, the

mysterious tipster hadn’t stayed on the .

line long enough to have the call traced
through the base switchboard.
Shortly afterward, military. police

investigators located the body of a female
at the location described by the unknown
caller, The victim was headless, decapi-
tated by her slayer. As was the. case with
Pvt. Hickman and Faison alias Jackson,
whoever killed this most recent victim did
so with the utmost savagery. and unbri-
dled fury. The military establishment
vowed to slam the lid on the series of

atrocities which plagued’ their: commun-

ity. ;

Working in close concert with the civil
‘authorities, MP Criminal: Investigative
Division agents were not idle in the inter-

val which lapsed since the finding of the.

nude body of Karen E. Hickman on Sept.

‘6, 1977. The latest victim’was identified

as 32-year-old Irene Thirkield, a mother
of four who'd been reported as being a
missing person during the last week of

*March. Identification was difficult due to

the ferocity of the beating she'd suffered
at the hands of her killer and advanced
decomposition. p
CID agents swiftly learned through
series of interviews that Irene Thirkield
was last seen orthe night of March 8 ina
Columbus honky-tonk accompanied by a
man. Through hundreds of other inter-
views conducted into the slayings of
Hickman and Brenda Gail Faison, police
gleaned sufficient information which

_ tended to indicate that one and the same

was last; seen with both Hickman and
Faison. Also, that this man was'‘a member
of the 197th Infantry Brigade. Of the wit-
nesses interviewed, many described var-
ious patches and insignias worn by the
suspect, which helped the CID agents
zero-in on their target.

At noon on Tuesday, April 4, and
almost exactly 24 hours after Mrs.
Thirkield’s headless body was found on
the rifle range, several unmarked govern-
ment cars pulled up near.a mess hall near
the Kelly Hill Chapel at Ft. Benning.
Several MP officials had already contact-
ed the Ist Sgt. of the 197th Infantry
Brigade, 2nd Battalion, 10th Field Artille-
ry to coordinate a surprise mandatory
post-lunch formation. To retain the need-
ed: element of surprise, they refrained
from telling the C.O. and the Ist Sgt. that
they were looking for a man who: was
5°9”" tall and who weighed about 160
pounds. They did not mention that there
were witnesses on hand who would
secretly view the enlisted-men standing
in ranks, \

Uniformed MP's surrounded the two-
story, cinder block complex which
housed the quarters, dining room and the

day room assigned to the unit to make

sure no one tried to avoid standing forma-
tion. From the military police vehicles
parked nearby, several persons viewed
the formation. Ranks were opened and
extended to provide thema clear view of
each soldier. !

‘Later, ‘several unit officers accom-
panied military police CID agents into the.

\

ranks which stood at attention. The sil-

‘ence was deafening. The contingent

strode almost casually to where a soldier
stood erect, his eyes riveted straight
ahead. One of the commissioned officers
curtly commanded, **Specialist 4th Class
William Hance! Fall out and accompany
these gentlemen. Consider yourself
under arrest.”’ :

The enlisted man was escorted to the
cars parked nearby and driven to the main
post and to Military Police Headquarters.
The 26-year-old GI, an ammunitions
handler, had been fingered by witnesses
who identified him as the man seen with
several of the murder victims prior to
their death. Two of those murders were
believd to have been committed on gov-
ernment property with one, that of
Faison, thought to have been on federal
land and in Muscogee Country and the
City of Columbus.

Shortly after being taken into custody,
William Henry Hance found himself clo-
seted in an interrogation room with sev-
eral CID agents. MarvinD. Besson, Clar-
ence E. Martin and Richard Fox, all
accredited U.S. Army MPCI agents
were variously involved in questioning
the suspect with special agent Fox func-
tioning as the lead investigator. The sus-
pect was carefully advised of his rights.
He waived his right to have an attorney
present during the interrogation and
signed forms averring that he understood
his rights. Military Police personnel abide
by the Uniform Code of Military Justice,
which very precisely defines various de-
grees of crime and their punishments.
The rights of the suspect are also set forth
in considerable detail.

Hance was seated ina chair ata table in
the plainly furnished room which was
without a telephone and soundproofed.
Criminal interrogation is an art in which
emphasis is placed on guarding the sus-
pect against outside noises. Hance
smoked incessantly throughout the hours
of questioning which followed during the
next two days. His questioners supplied
him with smokes and soft drinks, and
made sure he was allowed to visit the
latrine at his request. He got his three
meals, just like any otherGI and he was in
bed when taps sounded at night. |

But his interrogators minced no words
as they approached their assigned mis-
sion. Adroitly but in plain, understanda-
ble English, they informed the ‘suspect
that they wanted to know everything he
knew about three murders. those of
Hickman, Thirkield and Faison: in that
order, with the stress on the first two. The
Faison case would be handled by the
civilian authorities. Hance appeared calm
and completely at ease throughout the
questioning. He denied knowing anything
about the murders during the first day of

(continued on next page)
61


BR eer saree

<a

The ‘Forces Of Evil’ Killings

(continued from page 61)

intensive interrogation.

On the second day, after he’d been con-
fronted with the mass of evidence which
led to his arrest, Hance leaned back in his
chair, sighed with resignation and said,
‘I'd like to confess.”

He told his listeners how he murdered
Mrs. Thirkield by beating her with a jack
handle. He described his victim as a pros-
titute and he said he loathed whores. He
described how he'd cried while he beat
the woman to death and stated that he
tried to force himself not to murder her
but that he ‘‘just couldn’t stop.’’ Hance
told the Cl agents that any time a woman
offered him her body for money, she
didn’t have any business being around.

He elaborated on this theme by de-
scribing how, whenever he was prop-
ositioned, he would entice the hooker toa
remote, secluded area. There he would
allow her to undress while his fury rose
steadily. With his intended victim’s
nakedness serving as an unholy catalyst
and with the blurring rapidity of a striking
rattler, he would strike them down with a
series of karate chops.

Hance then proceeded to confess to the
slaying of Pvt. Karen Hickman whom he
said he picked up in a bar. He told how
they’d drove out to a remote area and
parked. Hance stated that the U.S. Army
private hustled him and that he agreed to
pay for her favors. She'd started to un-
dress and while she was wiggling out of
her panties he whacked her with a vicious
swipe of his hand, stunning her. He useda
branch off a pine tree to hit her again, then
threw her body into the car and drove to
another area. There he noticed that the
girl was still breathing so he stopped and
dragged her to a tree where he propped
her in an upright position and then ram-
med her with the front bumper of the car,
after which he ran the vehicle over her
body.

On the 6th of April, Hance got around
to describing the murder of Gail Faison
whom he said offered him sex in ex-
change for a $20 bill at a Cussera Road
bar. He drove her out to an isolated area
and down a dirt road, according to his
statement. She told him to stop about 200
yards down the road, which he did. He
was using his own car on this occasion.
The woman started to strip. Hance said,
‘It was like pouring gasoline on a fire. I
was burning up inside. She asked me
what was wrong. Then I hit her in the

head with my hand.’’ He described how ,

he dragged her deeper into the woods,

returned to his car and got a jack handle

which he used to batter the victim ‘s skull
to pieces.

62

Hance was aghast upon learning that
this crime had not been committed on the
Ft. Benning military reservation, only in
close proximity. He'd been counting on
being dealt with only by the military for
his crimes. Now he learned that the
Faison murder would be ‘prosecuted by
civil authorities. '

As Hance emerged as the itis
slayer of three, he also by implication
identified himself as the author of those

letters from a secret organization sup-

posedly comprised of seven members de-
dicated to avenging the murders by the
Stocking Strangler. A latent fingerprint
had been developed on one of those let-
ters. That single print was identified as
having been made by Hance. At this stage
of the investigation, lawmen were con-
vinced that the Forces of Evil were a fig-
ment of Hance’s fertile imagination and
that he was the lone member of the
mythical organization.

Reactions were mixed to the news of
Hance’s arrest as a suspect in three horri-
ble murders."Some who knew him de-
scribed him as a quiet, non-violent,
easy-going man. Others, including his
ex-wife, described him as a violent man
capable of committing murder. It was
learned that he'd entered the U.S. Marine
Corps when a judge decreed to suspend
an assault rap if Hance enlisted.

Hance attained the rank of Sergeant in
the marines before leaving to enlist in the
U.S. Army. He participated in a service-
sponsored boxing program while in the
army and had been married and father ofa
child prior to his divorce. His ex-wife told
the authorities, ‘‘To tell you the truth, |
really think he could have done it (the
murders). I think his mind pauls have
snapped.”’

Columbus ‘authorities issued warrants
for Hance’s arrest on murder and attemp-
ted theft by extortion. The extortion rap
stemmed from the bid for $10,000 de-
manded in one of the letters received by
Chief McClung. The one. count of
Ist-degree murder involved the brutal
slaying. of BrendaGail Faison. Hance was

‘so certain he'd killed this victim on gov-

ernment property that he rejected the
MPCI agent’s claim that the crime was
within the jurisdiction of the civilian au-

. thorities.

The U.S. Army deferred prosecution
of Hance on their two counts of murder
and released him to Columbus police in
recognition of their warrants stating that
the statute of limitations never runs out
on a charge of murder. They would have

their day in court after Hance’s trial for

murdering Brenda Gail Faison.

{

Ft. Benning authorities released a
statement that Hance had been elimi-
nated as a suspect in the slaying of Mrs.
Gabrielle Badger, whose body was found
not too far away from Hickman’s. Hance
continued to waive legal counse] even as
Columbus officials proceeded with their
pre-trial arrangements.

The legal machinery meshed gears
smoothly and by April 7, the chairman of
the Forces of Evil was indicted by the
Muscogee County Grand Jury for the
brutal murder of Brenda Gail Faison and
attempted extortion.

The grand jury indictment \placed
Faison’s murder as occurring on Feb-
mary 28, 1978. Detectives Ronnie Jones
and Charles Rowe testified at the secret
hearings, along with Chief McClung. As
the case progressed, more was learned
about the series of Forces of Evil letters
allegedly written and sent by the soldier.
In them, he outlined its seven-man mem-
bership comprising himself as chairman,
a number | and a number 2 executor, a
secretary and a contractor (?) and some-
thing called a ‘‘seek-out’’ man. The latter
was further described as the one who
made contact with the condemned per-
son. The text of these letters also implied
that the F.O.E. was ‘‘an organization
within an organization.’’ In the second
letter the writer strongly implied that he
was seeking to prevent Faison’s murder
but that the refusal of Chief McClung to
recognize and publicize the communica-
tions was obstructing his attempts.

Another strong implication was that
the F.O.E. was made up of Caucasions
contemplating the murder of black
women. All of this was supposedly in re-
taliation for the strangulation slayings of
the seven elderly Columbus women. Re-
ference was also made to the fact that
negroid hairs were found at several of the
strangulation crime scenes.

On Tuesday, April'11, 1978, the Col-

umbus City Council listened to the irate

complaint of the owners and managers of
an apartment complex located next door
to the Sand Hill Bar & Club, the estab-

lishment where Brenda Faison was last.

seen with a man matching Hance's de-
scription. The apartment managers stated
that they'd been threatened at gunpoint
and that frightened families had vacated
the complex causing a $63,000 loss in ren-
tals. The tavern was described as a virtual
den of sin. One councilman advocated
outlawing parking for bar patrons. The
City Attorney said he thought it would. be
unwise to repeal the establishment’s bus-
iness license simply because the laws
were being flagrantly violated with im-
punity.

On Friday, April 14, Hance appeared in
court in full military uniform. He entered
pleas of innocence to charges of murder

(continued on next page)

and extorti:
an attorne)
without bor
In May, :
ceived in tl
hand as all
postmarked
Ledger, a ¢
three-page |
that Hance
the F.O.E. °
It stated th
would be n
which was :
urged the n
coverage. [
behind bar:
The ans:
swiftly to e
ten the lett
State Hosr
Georgia,
usual psyc
ped the le
posted it in
was acunn
in the lett
named D:
drowned «
died while

~ stated that

the crime,
murders
released.
which faik
not disg
phraseolo;
letters he
Hance’
cember, |

own coun

cases. He
stand trial
a victim o
jurors, ‘‘l
Police off
killed any:
good defe
utter aude
been force
point.
Hance
defense ir
and a fo!
10-month-
cused. He;
the prosec
assault ca
he'd been
there with
off the ho
marines.
Hance
fense. He
agent thre
sign writt:
ward that
to escape
ments of
the trial.


=x

Marder, First Class, For Two

The next morning he raved about the
results, and said he had to get some of
those pills for himself. He asked Mrs.
DeCarolis for the pill bottle, so he would
remember the name.

She and the McDades, as she knew
them, became fast friends. When it was
time to leave, Bill chartered a private
plane for the short hop to Barbados, and
invited her along for the flight to the is-
land where she would take a commercial
airliner for the United States. The
‘“McDades”’ left the same day, February
20, for Toronto.

On March 10 the man called Mrs. De-

Carolis’ home in Worcester to extend the.

couple's regards. He said he was phoning
from Toronto. Actually, the couple was
already in Chicago at the Continental
Plaza on that date.

Mrs. DeCarolis did not connect the
name of Callahan with the incident ear-
lier, because she knew the man as
McDade, she told police.

Authorities in Kenosha and New York
City were now putting together a pattern
of Callahan’s movements since he drop-
ped from sight last October.

They had spent four months in the
‘West Indies, on Bardados and St. Vin-
cent, which accounted for their deep sun-
tans. They left St. Vincent February 20
for Toronto. Less than two weeks later
they checked into the Chicago hotel.

Ironically, authorities learned the cou-
ple might have been marked innocently
for death by Wendy McDade’s dancer

friend, Marie Ann Barker. After tracing.

phone calls from the Continental Plaza
Hotel to Miss Barker in New York, inves-

tigators learned from her that she had vis- '

ited the doomed couple twice in Toronto
and again in Chicago only days before
they were murdered.

They believe Miss Barker unsuspect-
ingly led hired killers to Callahan and his
flaming-haired lover whom he wed while
still married to his wife in New York.

Sheriff Sonquist confirmed that Miss
Barker, responding to a call from Wendy,

(continued from page 59)

N

during the visit, Miss Barker said, ‘‘If I
was followed to Chicago, I certainly was
not aware of it,’’ she said. Two days after

she returned to New York the couple dis- .

appeared.

Sonquist described the slayings as-a
highly professional execution. Au-
thorities in Wisconsin and New York be-
lieve a contract was placed on Callahan
out of New York, and carried out by pro-
fessional assassins from one of the
Chicago Mafia families. Miss McDade
was killed only because she would have
been a witness, they feel.

No one from New York would have

-been able to find the sparsely populated
prairie where the bodies were dumped, a
good seven miles off the interstate ex-

~ pressway system.

Wendy’s.body was cremated and sent
back to Seattle after her parents made
formal identification. But. Callahan’s
body lay unclaimed in a Kenosha mor-
tuary.

Paul Rao Jr., a former assistant district
attorney and cousin of Callahan’s legal
wife, Eleanor, questioned whether the

_.body was really Callahan‘s, or just
another trick in a life of deceit.

“I feel like St. Thomas right now. I
want to put my fingers where the wounds
are before I'll believe that’s Callahan's
body,’’ he said. He charged that Callahan

had stolen from a father-in-law ‘‘who-

gave him his bread and butter,’’ and
**cheated on his wife, who gave him three
children.”’

When Coroner Dorff pleaded for a
member of the immediate family to come
to Kenosha to make a formal identifica-

tion of the body, a lawyer for the Rao firm
announced, ‘‘This is not a case of a de-
voted father killed in an accident. Under
the circumstances of the case, the family
is not anxjous to go out there.”’ ’
Finally, on Thursday, April. 9,
Callahan’s

by\ the Rao family lawyer, Maloney, and
officially identified her father’s body.
‘This is my father,’’ she said softly.
She then pointed out to Dorff that, her
father’s hair had been. gray, almost
snow-white, when she last saw him, and
he had since dyed it an auburn color.
From Miss McDade’s parents Sonquist
learned that Wendy was planning to leave
Callahan, at least temporarily. Just be-
fore the murders Callahan had tele-
phoned the girl’s parents to say Wendy
would be flying out to visit them on
March 19, alone, because he had ‘‘busi-

- Ness”’ to attend to.

Sonquist would like to know what Cal-
lahan meant by ‘‘business’’ and whether
that was what led to his sudden death.

Despite Callahan’s murder, Assistant
Manhattan D.A. Seth Rosenberg, a
six-year veteran of Morganthau’s staff,
says the embezzlement investigation is

‘tactive and ongoing.’’ The number one —

thing investigators want to know is where
the money is now.

The flamboyant Callahan and his jet-
set sweetie were looking for the pot of
gold, but their rainbow ended over the
Chiwaukee Prairie on the shore of Lake
Michigan.

It took a lot of first-rate police work to
establish the identities of the two corpses
found by naturalist Phil Sander on his
morning walk. The question of who killed
Bill Callahan and Wendy McDade might
never be answered. .

Professional killings can be highly im-
personal.

The ‘Forces Of Evil’ Killings

cdiiieaa from page 9)

sincerity of the F.O.E. letter. A Military
Police Desk Sergeant at Ft. Benning re-
ceived a strange, anonymous telephone

flew to Chicago on Saturday, March 14,‘ call the afternoon of Thursday, March 30,

and spent the night in a room at the Conti-
nental Plaza at Callahan’s expense.

She brought with her some of Wendy’s
clothes, and described her friend as
‘‘lonely’* when questioned by New York
detectives and FBI agents. During the
brief visit the two women shopped at the
swank Water Tower Place and went
sightseeing. Callahan later joined them
for meals. at several top. flight local
restaurants.

Neither Callahan nor Miss McDade
gave any indication of being in trouble

a: ‘ ie ; rae es 4 ; aS mre

1978,

The male caller cryptically stated,
*‘Gail Jackson can be’ found 200 meters
east of the Sand Hill Bar and approxi-
mately 50 yards to the right into the
woods. She'll. be covered up with
leaves.”” ‘

Within minutia; a contingent of MP’s
and CID agents were enroute to the loca-
tion..A short. while later they located a
badly decomposed corpse partially
buried in a shallow grave which appeared
to have been gouged out with bare hands.

The body was clad only ina shirt. The
skull appeared to have been,crushed like
an eggshell. Loose earth and dried leaves
had been raked over the body to conceal
it: Police were astounded to find money

_$trewn about the make-shift grave. It was

learned that the letter which was received
two days previously was the last of a total
of four sent by the person who mentioned
Gail Jackson as a future victim. How-
ever, it was evident that the latest victim
was slain weeks earlier, long before the
March 24 letter was received by Chief
McClunb.

Prior to the finding of the leaf-covered

(continued on sition)

24-year-old daughter, —
-Eleanor, flew to Kenosha, accompanied

j

corpse, poli
the classifi
newspaper
chairman 0}
contact wit!
rect respons
the Militar:
Sergeant wi
to locate the
far from the
‘Investiga
investigatio
the victim
on the nigt
that she va
learned too
alias and th
Brenda Ga
prostitute v
the four let
had been a
ruary 28. (
clarified th
stated that
retaliation |
the seven «
they woulc
was caugh!
The sec:
McClung ¢
No directi
money sho
in these s
Forces of f
Georgia fr
The autho:
was made
who made
who also
brand of p
Columb
led all story
to identify
drafted the

* apprehend

of murders
to the man
Forces of |
out all av:
about the \
she? Had s
where was
latter ques!
April 3, 19

On that
sergeant o1
a third anc
Sgt. Larry

‘ onthe seco

end of the
dead!"* —
Lee inquir
who,”’ the
non-com t
mote rifle
up. As wi!
mysteriou:
line long e
through th

Shortly


tis eyes,
hen she
ith one

s blow to the head

oroverbial blunt in-

opened their probe
yone who'd known
ffort to recreate her
this manner, they
>r in the Hideaway
/ Hill near Ft. Ben-
ire her brutalized
in the ditch by a
truck. Brutalized
condition of the.
ig the course of the
tion it was learned
d that not only had
2n with both a club
t, but also run over
ar. Vaginal smears
to the U.S. Army

Gordon, Ga., also |

ickman had sexual
2fore her death. It
ied if she had wil-
been raped.

er later gave infor-
2d military inves-
on the Ft. Benning
y found Hickman’s
‘longing to her was
ins and other phys-

side and on the veh- ,

that it was directly
ssion of the crime.
* March, 1978, Col-
ll actively engaged
rehend the elusive
iile military police
heir search for Pvt.
Benning and Col-
traditionally very
>ommunities, one
nilitary. What in-
wolves the other.
*March, Columbus
‘tis McClung, re-

> army muni-
called himself
orces of Evil.

He =
‘ \ f 7
Z ma - poe. re
Oy Perees Cr EN, CroeD, 220 tr ate RRR aed
VS ect T8 oe Werae 10910 anny . a Pa fate) ae oe nf

ce a %4e CAVEF F) ihed! Mae 8
VETER 4 Few dn Ot we -
hare Cale “Theaspg. 1 hé was -niso NoTifieo.
_ THAT C-Ail Sac Es0n Weil bE’ EXECKTED -.«
Vo Suess 97. NOWLE ckKie¢. MOCLANG*
idu'T San sT A Hoaz. deity ia: ch Wa
DANO [Phoar ots May nde. ‘Fun OF ONE.
oy fn) re BERS iNnwdia riTivg :or: aF Ke: a
=A i A ADUUE Abo: eaten uS a... ae
Line OVA fife: Onin Sackion woitlds eee
_ Siz. FEE ase, oF “The CEES. AcTions
To ward ME. AND (TRE WEST off .»,:
THE org pete a A HALL “nek Sows .
well diz, usTénd” of FiwQing WEE: .
body ow Wyn RA. sTuvs 19995:

SKE Will BE ® On FT Benwih. -

Cn I tpre. att “fs bespoige "n ty Qn
KYS Nefow d.Dt Sure hope. cee tobe Me :

CAN SHEP. BEC MME We hAVE

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is TREME, ShE' Or Sk et) Jed Te

| Backepe TwslEn OF. Conte. .
ack © CHEF Meclung Ca)) *

ing A: head ie wa). ys TeEvE
ei ‘ioa Thre TRE dite same”. i

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ary it ChiEr Mee aa has ea
“Fault Thar: peas Meee) cattle: 9

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“was To dies. ee MENS ti
ple he “a Cah TMMAN “ ae vend ;
“yoa wWilpi’ ROE” a Bhi.” é
_ Find Lge

RY Dea: eae

oe te isy 4c yu oy S
3 Sue . Pee | eee

Up The Cher oF Tice is p we Pe oo
“Wm yOur LVvES. Tp he Ane oe
“His a WAL Like The Firs) ove wih
AL Stic ksby Thew RENE wis
AE, AMD Wewill Sash GET enorner |
“Slack wWpeAn: ITS wp TT TKE dvIAeK
C1T2EWS. OF ColunbuS Ca To ware .
“TRE POLE OrpT wp Ro MEET ‘own . |
‘DEMANS. ThE bAcIL WHmE y In

Columbus Ca Gives depenp dW.
hole ‘Ceood diack Kyou peo ple w£Eo. iT,

rT

yt) Fences OF EYL

oats

ay | ‘a 1 Sap
”

He

ae of the letters written by Hanee
and sent to Columbus Police Chief.
Suspect sent additional letter while in
jail to divert suspicion, but ploy failed.

ceived an extremely bizarre and enigmatic ‘missive. Chief
McClung had received crank letters before. This was no
crank letter. Dated March 24, 1978, and crudely scrawled on
U.S. Army stationary, the kind available i in any military PX,
the letter scolded the'chief and claimed that he’d been notifi ed
of the impending death of someone named Gail Jackson.

It went on to mention the “‘organization”’ ostensibly behind
the letter, which, bore the heading, Forces of Evil (F.O.E.).

‘ Besides Gail Jackson, the missive mentioned another woman

named Irene who was described as black, also.in the hands of
F.O.E. and destined to die. One sentence of the letter written
on the reverse side of page one exhorted the people of Colum-
bus to “wake up, the chief of police call this a hoax like the first
one with Gail Jackson, then Irene will die, and we’ll just get
another black woman.”

The text of the letter was confusing, it’s message vague and
blurred. It was signed “Yours, truly, ‘Chairman’ F.O.E.”’
cand a postscript or footnote again warried, ‘‘It’s the chief fault
(sic) that Gail Jackson has to die April 1, 1978. You will find
her!!! DEAD!!!"" What was the writer’s beef? What were his

goals and objectives? No one could say, due to the incoherent:

jumble in the wording of the letter which threatened the lives of
two women.

Chief McClung put the men in his detective bureau to work
trying to trace the two individuals:named in the letter from the
chairman of a group known as the Forces of Evil. The inves-
tigators were at a loss with one of the intended victim’s names
in that all they had. to go on was the first name, Irene. They
concentrated therefore on Gail Jackson.

Even as they commenced their probe, another mysterious.

development occurred which ended all speculation abofit the
(continued on page 60) — rernes

9 ’

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