Georgia, J, 1833-1991, Undated

Online content

em a ee eee is Pee
No appeal.

JACKSON, Will, black, hanzed at Cartersville, Georgia, November 1, 1901.

"Cartersville, Georgia, November 1, = Without a word of prayer or a tremor of fear, Will
Jackson, the negro who assaulted Mrs. Smith, the wife of a well-ta-do farmer of this
county, paid the penalty of his crime in the presence of the woman, her husband and about
6,000. other whites, about 600 of whom were @@M@&XX women, and about 500 negroes divided
‘about equally between the two sexes. ‘The negro had been notified by the sheriff that
no singing or campmeeting exercises of any kind would be permitted on the scaffold and
that. all such preparations would have to be attended to before leaving the jail. At
daybreak this morning people began to fill the streets, coming from all adjoining coun-
bies. A few hours before the hanging Sheriff Griffin drove up to the scaffold and _
inclosed it with cotton bagging in order that the execution might be private, in com-
sliance with the law. But the shierff had no more than gotten out of sight of the scaf-
fold before the assembled multitude, proceeded to tear the bagging down. The sheriff had
. his guards and deputies stationed near the jail by 9:20 0 clock, a few minutes before
the negro was taken from the jail and carried to the gallows in a bus surrounded by
guards. With the condemned rode the sheriff, Drs. Griffin, Green, Battle and Turk, and
Reve Ae Je Wilkeson, the Methodist preacher who had been Jackson's spiritual adviser.
"After reaching the gallows the sheriff immediately led the negro up the steps of the
scaffold, stopping him about one foot from the trap. Deputy Sheriff Bradley bound the.
negro's. hands, and after leading him upon the trap door bound his feet and legs. The
prisoner showed no signs of nervousness except a slight tremgling of the knees, The
deputy had no more ‘than slipped the loop around his neck and placed the black cap over
his face when Sheriff Griffin, without a word or signaltreached down and pulled the
triggerxthat sent the soul of Jackson to eternity. He was pronounced dead and cut down
in 20 minutes and the body was turned over to his relatives who were present to claim the
bodys" — nl car : 7
JOURNAL, Atlanta, Georgia, November 1, 1901 (1/6&7.) 3

4 c °

"Cartersville, Georgia, ‘October 10. = (Spectial.) Will Jackson, the negro who committed
an assault on Mrs, Thomas Smith near here Monday, was, at 3:30 this afternoon: sentenced
to hang on’ Friday, November 1, The term of the superior court called by Judge A. W,.
Fite to try the case convened this morning at 8 o'clock, A full grand and traverse ~
jury had been empaneled, Jt included many of the best citizens of the county, The
grand jury passed on the indictment at once after convening, finding a true bill, and the
case was immediately given to the traverse jury’ which was made up from the first two
panels of 12 each, The prisoner was given counsel, consisting of three of the city's
lawyers, who did their best with the hopeless case they had, The scene was a pathetic
one when the victim, a frail, delicate woman, carried in a chair, because of weakness

from her experience, came in, with her mother accompanying her, carrying the babe in
her arms, Stout men bit their lips with indignation, but restrained themselves when they
saw the law in speedy process of vindication, The courthouse was packed with men from
all parts of the county, but the best order prevailed, Judge Fite, on opening the
court, said bailiffs were stationed at the door and all citizens would be allowed in the
vourtroom who were without arms, It had been feared by the judge and the officers
that the prisoner might be lynched, necessitating a good deal of cool and careful work
to keep him away from those who would summarily handle him, The Bartow Guards, the
county's military company, made up of young men from this city and Kingston, was called
out to protect the prisoner should any attempt be made on his life. They were lined
up in the rear end of the courthouse yard during the trial, The defense offered no
evidence and that of the state was full and convincing, showing the negro designedly
went to the woman, whom he knew to be alone in the field, and assaulted her, admitting
to negroes to whom he told of the act, that he had to 'beat her,' The negro maintained
a strained and fixed silenceduring the tiral, but was visibly affected when the sentence
was pronounced. He is about 25 years old and extremely black, The swift but thorough
work shown in the trial seemed to meet with sanction from the crowd, in which were many
gray heads that showed deep interest. When the verdict of guilty was announced in just
3 minutes after the jury left the box, there was a great burst of applause, which was

HATHFX mildly but firmly checked by the court, Judge Fite at the close of the case, made

an impressive talk to the tgs pis pe that the law was being upheld, He said =

with. him. outside the. law &nd to. uphold | and aid, to. stand.up, The officers and. every _
man in the courtroom was, at, once on, his. fect," ne ope Atlanta, Georgia, bigs

ly, 1908 bed aH hance eee he fa

ee SE ee ey ¢: gi ct ¥ t, r btied es £07 wks
“ ¢ bint Nees

"Calhoun, Gae, October 9 - (Special. ) - SIV cacson,t the negro charged with attempting .
assault upon Mrs. Tom Smith,. near Cartersville, was brought to Calhoun last night and ~~

placed in Jeil. for safe. keeping. Officers came this afternoon’ and ‘took him in a buggy,
going south, : “t is; presumed they. are. taking him to Cartersville, where. he will be ‘tried
tomorrow. in -a special session of the superior. court. Sie a
CONSTITUTION, SARs Paige: “Cte ite Bas oP. ay bk btn thee: Seay pane

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ndatesirte, Gass" Oct. Te - puch aay = walt Jackson,’ a negro atvolstel os years old,
attempted a ‘criminal’ assault on Mrs, ‘Smith, “a young ‘white woman, ‘near here, this: athernoon,
Jackson was driving along 4 “road throuph 4 field where Mrs, Smith, with her husband,
Thomas emith, was picking’ totton. He stopped nedr Smith and’his wife’ and ‘had a shart:
conversation with -them, © “the husband ” thoughtlessly told nis wife in thepresence of thers:
negro that he was going’ to town, The negro-drove off slowly, saying he was foing’to-a
farm'a half mile ahead, -and was very soon overtaken and KassE by Smith and passed while:
he was watering his horse at a’ brarich, THe nerroy knowing ‘the woman was alone, remo" ©
turned to where shé was, “adhd, léaving-his buggy, went upto her’ According to KKH the
woman's statement, a tervitle | scuffle took place, ‘and her screams and resistance ss \0
availed ‘but Little agaéinst the superior’ strength of VeaUG On «TS e Siiithy after thes: 9:
she could watch it, and at once proceeded: to: her niomé °, nghiere she ’ found tists: tea dRiasths :
ready to leave for town, and told him the story, Her face and neck showed many bruises:
and scratches made by the fingers of the negro, who choked ‘her and shoved ‘her.violently
@bout. The negro came to Cartersville, where he was employed, and leaving the ‘horse

and buggy, quietly departed,.. Sheriff Griffin, who, had, been informed of the crime by .

the husband, with a posse of six men was soon on Jackson's track, He was captured
after achase of about 5-miles. Though there is much. indignation over the erime,.it.is
believed the law. will.be allowed to,take its course, The negro was quietly committed

to jail." CONSTITUTION, Atlanta,. Cae, Octe 8, 1901 (6 /3kte ) ;

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26 Ga.

held that: “If a claim is properly presented
to the trustees of a municipal corporation
and is allowed by them and’ their action ac-
cepted by the claimants, it becomes a valid
and binding contract and can be avoided only
for a cause sufficient to invalidate their con-
tract.” MceConoughey v. Jackson, 101 Cal.
265, 35 P. 863, 40 Am. St. Rep. 53. In the
answer filed by the present mayor of Abbe-
ville he neither admits nor denies certain
allegations of the petition .as to facts that
should be within the direct knowledge of
the officials of the city; for instance, that
there had been no funds in the treasury to
pay the warrants, with notice to the plain-
tiff. This information was within the exclu-
sive knowledge of the city officials, and a
special demurrer ealling for this information
on the part of the plaintiff was properly
overruled. Raleigh & G. R. Co. vy. Pullman
Co., 122 Ga. 700, 50 S. E. 1008; Hudson v.
Iludson, 119 Ga. 657, 46 8. B. 874; MceFl-
murray vy. Blodgett, 120 Ga. 9, 47 8. B. 531.
See 88 CG. J. SOL. The court did not err in
striking the answer as a whole, as not setting
up any issuable defense.

(8] In Hitchcock v. Galveston, 96 U. 8. 341,
350, 24 L. Ed. 659, a recovery was allowed for
the value of the benefits conferred upon the
muncipal corporation, notwithstanding the
contract to pay in bonds was illegal and void.
In the opinion it was said: “Tt matters not
that the promise was to pay in a manner not
authorized by law. If payments cannot be
made in bonds because their issue is ultra
vires, it would be sanctioning rank injustice
to hold that payment need not be made at
all. Such is not the law.” It was also said:
“The doctrine of want of power pees tag
cannot be invoked to aid a party to perpetrate
a wrong and injustice.” Marshalltown Stone
Go. vy. Des Moines Brick Mfg. Co., 149 Iowa,
141, 147, 126 N. W. 190, 192. Here the city
of Abbeville bought fire hose and a hose reel
for which the warrants were issued, and the
hose had been worn out in the use by the
city, and the reel was still in its possession
and use. Although warrants had been issued
for the same and repeated promises had been
made to pay them, payment of the warrants
was finally refused. In such circumstances,
to deny the right of the plaintiff to recover
for such articles would be rank injustice. And
it has been held that the doctrine of estoppel
is one of fundamental justice. Its applica-
tion must depend upon the circumstances of
each particular case, and courts have gone
a long way in applying it to prevent manifest
injustice and wrong. See, in this connec-
tion, Wiegel v. Pulaski County, 61 Ark. T4,
32 8. W. 116; Tuxcra v. Jonesboro, L. C. &
KE. R. Co., 83 Ark. 275, 108 S. W. 605, 13 I.
hr. A. (N. S.) 157, 419 Am. St. Rep. 139; Mont-
gomery vy. Atlanta, 162 Ga. 534, 134 S. E. 152,
47 A. L. R. 288; Horkan vy. Moultrie, 136 Ga.

ie >».
— Tv J
, %

170 SOUTH PASTERN REPORTER

561, 71 S. E. 785. So we conclude the court
below did not err in overruling the general
and special demurrers of the defendant, in
sustaining the motion to strike the answer,
and in making the mandamus absolute.
Judgment affirmed.
All the Justices concur.

JACKSON v. STATE.
No. 9666.

Supreme Court of Georgia.
June 19, 1933.

Criminal law €=762(3).

Statement in instruction withdrawing
confession from jury’s consideration that
court had no reference to another designated
confession held not erroneous as intimating
court’s opinion regarding what had been
proved or regarding accused’s guilt (Pen.
Code 1910, § 1058).

Syllabus by the Court.

1. The court’s ruling of which complaint
is made did not express or intimate an. opin- .
jon as to what had or jad not been proved
or as to the guilt of the accused.

2. A ground of the motion for new trial
js as follows: ‘Movant contends that the evi-
dence against the defendant being based on
his confession, though corroborated by facts
and circumstances, he should not have been
found guilty of murder with [out] recommen-
dation and receive the death penalty because
movant contends the same is contrary to law
and the principies of justice.” This, as it ap-
pears in the record, apparently contains an

inadvertent error in statement. It is without ;

merit under any possible construction.
3. The verdict is supported by evidence.

Error from Superior Court, Worth County ;
R. Eve, Judge.

Rochelle Jackson was convicted of murder,
and he brings error.

Affirmed.

Perry & Perry, of Sylvester, for plaintiff in
error.

W. GC. Forehand, Sol. Gen., and R. S. Foy,
poth of Sylvester, M. J. Yeomans, Atty. Gen.,
and B. D. Murphy and Jno. T. Goree, Asst.
Attys. Gen., for the State.

GILBERT, Justice.

Rochelle Jackson was convicted of murder, ,
and received the death penalty. His motion
for new. trial, consisting of the general

€=>For other cases see same topic and KEY NUMBER in all Key Number Digests and ludexes

JACKSON yv. STATE Ga. oT
170 S.E.

grounds and two grounds of amendment, was had no reference “to the confession testified
overruled, and he excepted. The state prov- about by the sheriff.” The court did not ex-
ed the corpus delicti. Evidence of a confes- press or intimate an opinion that any confes-
sion made by the defendant to the witness sion had been proved, nor did the court state

i vi jecti é at that the sheriff had stated. Chief
5 1 was admitted w ithout objection. any fact t r t i
oe Justice Simmons in Oliveros vy. State, 120 Ga.

The first special ground of the motion PIC” 237, 47 S. E. 627, 629, 1 Ann, Cas. 114, stat-
sents the contention that the penalty of death ed: “Technically, there is q difference be-
should not have been inflicted, for the rea- tween evidence and proof. Evidence tends
son that the same is “contrary to law and the to establish or disprove an alleged matter
principles of justice”; the verdict having of fact in issue. Proof is the effect at eee
pees eres on his eco ss though cor gence, while evidence is merely the means
roborated by facts and circumstances. of making proof. A fact is not proved un-

The second ground is as follows: “When less it is established.” In this case the judge
both sides closed, the court made the follow- made no reference to what had been proved
ing announcement and ruling: ‘Gentlemen or established. For a discussion of the gen-
of the jury, the witness D. §. Hudson, put up- eral topic with collection of authorities, see
on the stand by the State, testified as to 2 Reed vy. State, 163 Ga. 206, 216, 185 S. E. 748.
certain alleged confession made to him by There is an additional reason why the judg-
the prisoner. The court being of the opinion ment refusing a new trial should be affirmed.
that such confession made under the condi- phere is no conflict on the fact the pris-
tions as described and outlined by the State’s oner did confess the crime. On the trial
witness, being of doubtful admissibility, MOW yo evidence was introduced for the accused.
withdraws that alleged confession from your jJJe made a statement to the jury tg ithe fol-
consideration. You will not consider it as be- jowing words: “Gentlemen of the jury, I
ing in the case, that is, the alleged confession jaye not got but one life, and I ask you all
testified about by the witness D. S. Hudson. to save it, so I can be able to see my little
I have no reference to the confession testified pildren.” That is all that he said to the
about by the sheriff.’ Movant contends that court and jury on the tria}]. It constituted
the court erred in the statement ‘I have NO’ merely a plea for mercy. Moreover, counsel

reference to the confession testified about DY for the accused, neither in their brief nor in

the sheriff,’ because movant contends that tne grounds of the motion eomplaining of the
the same was an expression of an opinion Janguage of the judge, insisting that if was an
that the defendant had confessed to murder- expression of opinion, deny the fact that the
ing his sister with others, and movant fur- accused did make the confession to the sher-
ther contends that it was prejudicial to the iff. The evidence abundantly justifies the
defendant and to his defense. That said verdict, and there is no ground for reversal
statement placed undue stress upon the. tes- of the judgment. The language here com-
timony of the sheriff in his testimony as ae plained of was obviously used before the
the confession of the defendant, and movant judge began to deliver his gharge to the jury.
eontends that said statement was an intima- After withdrawing the evidence of Hudson,
tion of an opinion of the court that the testi- the only remaining evidence having reference
mony of the sheriff as to the confession, to a confession was that of the sheriff ; so
without the testimony of D. S. Hudson, was that in charging the jury on the subject of
sufficient to authorize, if not demand, 4 Vel~ confessions the judge necessarily was direct-
dict of guilty in the case.” The Penal Code ing himself directly to that evidence of the

1910, § 1058, declares: “It is error for the cneriff. The charge contained a full and

judge of the superior court, in any case, dur- ¢aiy instruction on the swhject of confessions.

ing its progress, or in his charge to the jury, It distinctly informed the jury that even
to express OF intimate his opinion as to what though the testimony was admitted, “it is
has or has not been proved, or as to the guilt then to be passed upon finally by the jury,
of the accused ; and a violation of the provi- and the jury could determine whether or not
sions of this section shall be held by the Su- the confession was voluntarily made,” ete.
preme Court to be error, and the decision in Also, whether in fact any confession had been
such case reversed, and a new trial granted, made, in the following language: “if @ con-
with such directions as the Supreme Court fession has been established in the manner
may lawfully give.” From that section it is contemplated by the law, in the opinion of
clear that what the statute condemns is an the jury, you will of course sive it such
expression or intimation by the eourt of any weight and credit as you see fit to give it.”
opinion as to what has or has not been In another part of the charge the court cau-
proved oF Ba to the guilt of the accused. tioned the jury that in instructing them on
Peek y. State, 155 Ga. 49, 116 8S. E. 629. The She taw of the case he did not express or fa
court did not express any opinion as to the timate any opinion as to what had been
guilt of the accused, in the language used. een tie ‘what had not been proved by the
The court, in voluntarily withdrawing the Adee in the case.

testimony of the witness Iludson “as to ee

certain alleged confession made to him by
the prisoner,” also explained that the court

Judgment attirmed.
All the Justices concur.

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70 SOUTHEASTERN 2))5
JACKSON, Thomas, black, hanged Valdosta, Georgia, on Dec, 8, 1911.

"at the very last moment Friday, before noon, when Tom Jackson of Valdosta, had been
prepared for the mllows and led forth for execution, the hanging was stopped by a re=
spite from Governor Slator, which will operate until December8, during which time

the negro's attorneys intend to make one more desperate appeal for commutation to the
prison commission, Tom Jackson killed his wife and mother-in-law, He has been re=
spited over and over again, but the prison commission and higher courts all event-=
ually turned him down, Governor Slaton granted the respite only after he had been
beseiged throughout the entire morning by telegrams and telephone messages from
Valdosta citizens." JOURNAL, Atlanta, Georgia, December 1, 1911 (page 1, column2,)

"Refusing to extend any clemency toward Tom Jackson, the negro who was hanged in
Valdosta Friday morning, Gov. John M, Slaton went into the case in detail, and gave
hiss reasons why he believed no mercy could justly be shown, lhe negro killed his
wife and mother-in-law, according to the evidence, without any provocation except
that he saw his wife walking with another negro man, The jury said it was down right
murder, and made no recommendation to mercy, After numerous respites, the higher
courts refused to interfere with the execution, and the prison commission refused

to extend clemency. ‘the last appeak was made to Gov, Slaton, In Gov, Slaton's
opinion the evidence shows it was a cold-blooded murder,"

JOURNAL, Atlanta, Georgia, December 8, 1911 (7/2)

ee ee ee a ee ee

_ SGP ON, Andrew, hanged Ga. (Atlanta) March 18, 1908

In looking for an old letter for identification purposes in 1977, I
found a citation to a book BLASTED, BELOVED BRECKINRIDG®S (1973) by
Reve Mark Féeester to a case in 1898 in which a gang leader named

Pug Ryan shot and killei a law officer (name or jurisdiction not
identified). Ryan had held up a gambling gang at Denver, Colo.,
hotel. Was not s captisl case . "vidently jurisdiction was Brecken-
Ridge, Coloredo. Was not captured for four yeers and then sentenced
to life imprisonmant. Letter states Ryan became mentally deranged
in prison and died in 1931. You might want to try to get the book
through inter-library loan. These are all facts contained in letter
From Summitt Historical Scciety, Box 77, Dillon, Colorado 8035,

I may have already sent you a copy of what I have on this. If not, I
will condense entry on Barge Card taken Brom Brownwood 3ulletin, 3rown-
wood, Texas of May 15, 1925; May 16, 19253 May 18, 19253; June 1, 1925;
June 2, 19253 April 13, 1926 %& Avril 1h, 1926. Also from 280 SW 300,
Don't believe I have actual newsvaper clinvings but the following is a
condensation: John Smith wes 23-yesr-old black laborer, native of
Alexandria, La. (father minister) who left home in 1919, He and ano-

on 5-15-1926. Presence discovered bv brakeman and when Smith pulled

Q ther black webe riding freicht train which they boarded in Brownwood

a pistol, brakeman told then to go to another carm where they would not
be discovered, He then wired Colemsn County, Texss Sheriff Dick Pauley
and told him where to find them on car. When Sheriff attempted to appre-
hend, Smith shot with bullet lodging in spine and parslyzing. when they
were captured there was considerable telk of lynching, Sheriff Pauley
died on afternoon of 5-16, but before doing so identified Smith ss

firer of fatal shot. Change of venue to Brown County and Smith's com-
panion released after testifying as material witness, Smith electrocuted
on April 16, 1926.

Am going through some old notsewto make certsin they were transcribed,
Some of this I may have algeady sent. Have more informetion on most

\ but no copying facilities and don't know when I will go to Tuscaloosa,

1) Andrew Johnson ("Black Sport") hanged Atlanta, Georgia on March 18,

Zs, 1908, for murder of Police Officer J, N. Manier which occurred on "ec, §,

. diese

1907. Affirmed 60 S # 160

2) "Arthur HocBes, aged 21, was electrocuted at Arkansss State Prison on
December 18, 191h, for the murder of Constable Morgan Garner near Amity,
Clark County, Karkansas, in July, 1913, when the officer srrested him for

ASHLEY COUNTY EAGL", Hamburg, Ark., Dec, 2h, 191i. This is 911 I have
on small card, so evidently I have nothing else on this so would avpre-
ciste anything further that you might develop.

7 a petty offense. The date for the execution hed been fixed four times,"

3) a list of sources that I want ultimately to check and had jotted down.
One of these concerns you, so if you get the information, please send me

S a covye The Kansas Sity, Missouri TIMSS of March 2, 1918, is supposed

carry an_article, in tretrospegt, concerning the hanging about 0 yeears
previously of a man named Green who had been convicted of the murder of

Deputy Marshal Henry Hughes. I have four other Miss @ =
but they evidently do not concern a peace officer. ) ‘S [Ss Ee
FEB | 7 1986

60 SE 160

JOHNSON, Andrew ("Black Sport"), hanged at Atlanta, Georgia, on March 18, 1908,

"At 11 o'clock to the second, Wednesday morning in the north wing of the county jail and
on the top floor where the grim gallows always wait for their prey, Andrew Johnson, some-
times known as ‘Black Sport', convicted of the murder of Patrolman J, A. Manier, in At-
lanta on Friday, Dec, 26, last, and given every opportunity for his life that the law
knows, dropped through the trap of the scaffold and paid the death penalty for his crime,
"Sheriff John W, Nelms himselfothrew the lever that sent 'Black Sport’ to his death,

The negro dropped straight through the black hole that suddenly yawned beneath his feet,
and hung motionless at the end of the taut rope. A minute passed, and his shoulders
slowly drew-up, and his knees bent with a straining quiver, Fourteen minutes after the .
drop he was pronounced dead, The fall had lacerated his spinal cord and paralyzed him
and his death had followed by strangulation, .At 11:20 he was cut down,

"Dr. F, L. Eskridge, the acting county physician, officiated in the examination that was
made of the hanged negro, He was assisted by Dr. J. F. Freeman, Dr. J. We. Mitchell, Dr.
T. C. Davidson, Dr. G. Adolphus and Dr, Robert Westmoreland.

"'*Black Sport’ had weakened during the morning and was quivering on the verge of a
mental and physical collapse an hour before the execution, Injections of morphine had
already been given him, but these were followed at 10 o'clock by injections of nitro-
glycerine and opium, He was stricken with the horror of his impending doom so that he
hardly had nerve to even demur when the call came for him to leave his cell,

"During the whole morning ministers and.religious workers of his. own race were with him,
ministering what.comfort they could, They did. their work bravely, singing death hymns
with him while he. was yet standing weakly within his cell, .'Black Sport', joined with
them from time to time in their songs, tut his thoughts continued to. turn to the ghastly
cloud of death that hung over him, The ministers were with him when he walked to the
scaffold, and administered their comfort until the last minute, The negro's arms were
bound behind him, his legs were tied together, and the noose was slipped over his head
and tightened while Sheriff Nelms read the order of the court, He had been assisted up
the stairs of the scaffold at 10:55 o'clock and was weak as he stood on the trap.

"tare you ready to go?! asked the sheriff,

""Yes, sir. Hang me now = I'm ready now,' answered the negro,

"tHave you any statement to make?! asked Sheriff Nelms,

"No, sir. I ain't got nothing, but God's done forgive me all my sins, and I'm ready to
go,' was the reply.

"A negro mjnister prayed briefly, and pronounced a benediction, The cap went on the con
demned man s head anid he stood alone on the trap.

"twell, I'll tell you goodbye, Sport,' said Sheriff Nelms, He waited a couple of seconds,
but there’ was no reply, 'Goodbye,' he repeated; and the doors opened under the feet of
the negro, He dropped like a sack of dirt, and hung motionless,

"A large crowd of several hundred people nad collected in the street eataiae the jail,
They were denied admittance, None gained entrance except officers of the law, newspaper
men, and personal friends of the sheriff,

"With Black Sport, Sheriff Nelms has hung ten men during his iawabaiey of office, It
is the ninth hanging in.the Tower, The sheriff possesses a gold watch fob, presented

to him by the presiding judge after his first hanging, for being the first sheriff on
record for performing his own duty, The usual practice is for sheriffs to shun the actual
work of hanging, hiring somebody to do it for them; but Dr, Nelms is not so delicate,

He oulls the lever himself,

"It wag strange coincidence that just at the hour that Andrew Johnson, or"Black Sport,"
was paying the death penalty, a police escort was being formed to pay a last tribute to
the victim of his crime by accompanying his body to the train on which it will be taken
to New York for interment in the Masonic cemetery in that city, The body of Officer
Manier was re moved from a vault at Oakland Cemetery on Tuesday to the undertaking es-
tablishmentof Harry G, Poole, and on yp was taken to New ) York." JOURNAL, Atlanta,

Georgia, March 18, 1908 (1/7. ) FAoto to fog,

"Policeman J, Ae Manier, formerly a ge was shot and instantly killed Friday after-
noon about 2 o'clock by a negro called Black Sport, the shooting occurred at the corner
of Haynes and Peters Streets and aroused intense excitement in the neighborhood, Officer

Manier was one of the best men on the force, being a tall, heavy built, fine looking man

of exceptional intelligence,

He served the police department as sergeant and made a good
officer, but was put back in the ranks at the last election, when the personnel of the
board of police commissioners changed, Officer Manier's wife is a musician, She was for-
merly a musician at the Piedmont hotelk.and it was while on duty on the beat in front of
the hotel that Officer Manier became enamored of the young woman and sought her hand,

Their wedding was the consummation of a pretty romance..,lhe beautiful yofing wife is
prostrated at the tragic news.

"Black Sport was reeling down Peters street in a drunken spree when Officer Manier called

to him, ‘Without a moment's warning the negro wheeled and fired, .the.ball.struck the

officer on the right side of the chin, fnflicting a mortal wound, He fell to the pavement
and never spoke, Within a few mintues the officer expired before he could.be removed

from the sidewalk, where he lay in a pool of his own blood. Though the negro escaped after
the shooting, he was captured fifteen minutes later near the lerminal Station by Officer

W. F. Harper and placed in a patrol wagon to be carried to police headquarters, the po-

lice reserves who were called out responded at once and soon had the crowds which Batheréd
near the scene of the shooting under control,

"The negro slayer of Officer Manier is said by negroes who knew him to be Andrew Johnsog,
better:known as 'Black-Sport,' It is said that the negro, Johnson, came reeling in a

drunken condition down Peters Street, cursing and threatening to kill whoever interfered,
with him, Officer Manier heard and saw the negro and at once made for him, seizing him —

by the coat to put him under arrest, Quick as a flash the negro drew a lil) calibre Colt
revolver and flired, the heavy ball penetrating the officer's neck and just under the right
side of his chin and going into the back part of the head, He fell like a log to the

street, the blood burstingand spurtine from She fearful wound and incarnidating the street for
yards with his life blood, It was his death wound, and he was not conscious after receiving
it, expiring where he fell in a few moments, After doing his bloody deed, the negro assassin
ran up Haynes St,’ to Walker St,,.pursued by some negroes, On Walker St,, opposite the Metho~
dist churchyparsonage, he dodged under a house, and here he was brought to liXabay by four
negroes who pursued him, Armed only with rodks, and knowing that the murderer was armed with
a revolver of heavy caliber, these ); negroes nevertheless had the courage to approach the
murderés's higing place. Bartow Blackman, one of the negroes, advanced, and dragged Johnson
out from under the house and. turned him over to Police Officer Harper. Officer Manier has
one child, a boy four years old,

"Johnson was brought to police headquartersabout, 1:30, Four officers came with him on the
patrol wagon and the officers were crying for sympathy for their. dead friend and fellow
officer, Brought before the station sergeant, Johnson could make no statement, Hither be-
cause he was too badly frightened or was too drunk, the police could get’ nothing out of

him. +he police, however, believe that he feigned drunkeness. Johnson was taken back to
the s tate cell and a charge. of murder was entered against, him on the date docket, He is

a negro of the criminal type, as head is clean shaven, and he is a man of little more

than medium height,..,! JOURNAL,. Atlanta, Gas, December 6, 1907 (1/7.) !

dehtly his head was: bloody after arrest and he claimed Manier had struck him on head.

a4 Ray Blark , . ] =) F . . ‘ - $ + 4} J
However, Bartow Plackmon, the black who captured him said the injury and blood came
about when he (Blackmon) hit Johnson's head ageinst a fences

JOUR fh Dias he tal a . AaANne a sats P 3 a 71 . on
JOURNAL, 12-13-1907 (1-7) announces conviction and death-sentencee When asked.if he had
anything to say, Johnson replied: "Nothing, except that I'd like for you to be merciful.
if I've got to be hung, I'd like a little time so's I could see my folks.”

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of the frame house in the swamp-
lands, near the small settlement
of Almon, Georgia—where James Berry
and his wife had lived for years—car-
ried a rifle or shotgun. Two men were
holding coils of heavy rope. Lean, hun-
gry-looking dogs—as if grasping the
tenseness of the morning—clung to the
heels of their masters. Occasionally
one of the dogs would howl, weirdly.
The men said nothing, but kept
staring down a small, narrow, muddy
road that led back through the swamp-
lands about four miles to the town of
Covington. The officials would be
coming that way soon. More men, with
their rifles and dogs, kept appearing
with strange suddenness from the
murky woods surrounding the Berry
home. They joined the other men with
a more than a nod of recogni-
on.

At 10 o’clock on that cold Sunday
morning—February 4, 1945—a black
sedan drove down the road and stop-
ped in front of Berry’s house.

Two men from the gun-toting party
stepped up to the side of the auto.
Sheriff W. G. Benton, from Covington,
opened the car door and stepped out
onto the wet grass. Behind him was
Major W. E. Spence of the Georgia
Bureau of Investigation, and two more
State officers, Another car, just be-
hind the black sedan, carried more
County and State officials.

“Glad you got here, Sheriff,” one
man from the gun-party said. He car-
ried a double-barreled, 12-gauge shot-
gun.

Fer of the men gathered in front

d Covington, Georgia, Police

as Their Only Real

e Woman's Murderer When Hun-

People Owned a Similar Instrument?

After identifying himself as Alec

hart, he gave a sharp command to

his black, long-nosed dog to stop snif-
fing the Sheriff. and lie down.

Bonhart, with a faint gesture to-
wards the man standing beside him,
said, “This is J. C. Cordell, Sheriff.
Cordell and me and the rest of these
men here are rarin’ to get goin’. We
think the bird that killed Mrs. Berry
is hidin’ back here in the woods and
we want to git after ‘im, "fore he
butchers up some of the rest of our
families.” , ,

Sheriff Benton nodded: “I under-
stand.” He glanced at the front door
of the frame farmhouse. A tall,
gangling man stood there, straight and
silent as a tree. : :

THE reason we didn’t do nothin’ ’til

you got here,” Bonhart continued,
“is we want to do this accordin’ to law.
You tell us where to start lookin’ and
we'll look.” |

“Wait here ’til Major Spence and I
have a look around inside the house,”
the Sheriff replied. “That’s where the
dead woman is, isn’t it?”

Bonhart nodded and said tightly,
“The guy that did it must’ve been
a fiend. It—it’s awful.”

Benton and Major Spence hurried to
the front door of the house. The other
officers spread out in a circle around
the clearing in the marsh-lands where
the Berry house stood. ;

When the Sheriff and the State of-
ficer stepped upon the front porch of
the house, the man who had been
guarding the entrance there said, “I’m

NLeabire ber (94S
YUE OO Nopereben (FES

d Neely. I called you about the
rder. Come inside. ‘Mr. Berry is in
re.”
‘he inside of the house was cold and
nal. A small, kerosene lamp burned
a square, wooden table located near
big wood stove. The bright, cheery
vers in the small glass vase on the
le seemed out of place. For on the
er side of the room, lying on the
1r beside the heavy iron bed, was the
y of a middle-aged woman. Her
d was crushed almost beyond recog-
on. An ever-widening pool of her
1 blood had found its way back un-
we sewing machine, five feet from
bed.
‘itting on the edge of the bed, his
e buried in his rough, work-lined
ids, was James Berry, husband of
woman, Suffering from grief and
ck, he apparently didn’t notice the
cers until Neely walked over to him,
ched him on the shoulder and said,
. the Sheriff’s here.”

{EN Berry looked up. Tears still
flowed down his rough cheeks. And
dimmed eyes were red from crying.
{e didn’t say anything, but motioned
a couple of chairs which were cov-
d with cushions which Mrs. Berry
i made herself. Then he buried his
e in his hands once more.
‘he character of the dead woman
wed plainly in the neat, clean ap-
-rance which she had given her sim-
home. Small, flowered, home-made
rfs covered the dresser and a small
st of drawers. Everything seemed
order.
nly one thing stood out against
neatness of the place—the lamp
mney was blackened. Strange that
s. Berry overlooked that.
“he woman was fully clothed in a
shly-ironed, cotton dress, as if she
i been planning to go visiting when
suddenly had been struck down.
e only thing she wasn’t wearing
‘e shoes and stockings. They were
ier the dresser on the far side of
room.
Mr. Berry,” the Sheriff said, adjust-
the bone-handled, 45-caliber pistol
his overcoat pocket, “I want you to
me just what happened here this
rning—everything you can remem-
that might help us catch the mur-
er of your wife. I know it’s difficult

yuh SCT Om

where she had lived

Shortly after Mrs. wan't bes s body was found in this house, S James’
‘or years, neighbors formed a *
posse to search the sremps for her bludgeon-kiler

for you to talk now, but every minute
counts.” :

Berry, without «looking up, said
softly, bitterly, “If I only hadn't gone
to town this mornin’... if I'd just
stayed here at home with Mama, she’d
still be alive now ...or both of us
would be dead . . . that would be better

I don’t want to live without Ma-

“When did you go to town this morn- -
ing?” Sheriff Benton asked. Major -.

Spence stood next to the nearby win-
dow, watching closely the group of
Berry’s neighbors gathered in the yard.

“I went to town—to Almon—about

eight o'clock this morning,” Berry said,

his voice choked with emotion.

“You went by yourself?”

“Yes. I walked down to the store to
get the Sunday paper. Mama didn’t
want me to go—she said it was so damp
and misty this mornin’. But I always
go down there on Sunday at eight
o’clock to get the paper. I go down
right after breakfast. I haven't missed
in years.”

The coroner arrived and began his
examination of the body. Berry turned
away so he couldn't see him, Sheriff
Benton went on with his questioning.

“Was your wife alone when you left
her?”

Berry edded.

“Did you expect anyone to come by
the house?”

“No.”

OUR wife is dressed up as if she
were going some place,” Sheriff
Benton said. “Was she?”

Berry nodded. “Yes. To church.
She always goes to church in Almon on
Sunday mornin’. Mama was a very
religious woman. The best woman
that ever lived.”

“Did. you intend to go with her this
morning?” :

“Yes. Ted often comes by in his car
and takes us, but Mama said just be-
fore I went to town that he wouldn’t

ch a a aaa at

be by today. She didn’t say why, but
I supposed maybe he’d gone up to At-
lanta to visit. He does that sometimes
over the weekends.”

“Who is Ted?”

“Ted Haverill. Lives on “down the
road about a couple of miles. Very
religous man. Hard worker, too.”

Sheriff Benton hesitated & moment,

“Jooked around the room. *“Anything

missing from the house whet-you got -
back from Almon?”
“No. At least nothin’ that. I could

“and you don’t have any idea who’
murdered oe wife?”

“Ohno. . Mama was so good

Pe don’t ie rare anyone would kill
her...she was always doih’ nice
things for people...” And Berry
started crying again, helplessly.

“Hay anyone around the house Iate-
fh wate for you?” Sheriff Ben-

ec: ory aE ” Berry replied, still cry-
ing. “L. C, Johnson and Jack Seller.

helped me for a couple of weeks last. i,

December.’ But they wouldn't do a
thing like this ... if that’s what you're:
drivin’ at.”

-‘Maybe not,” Benton ‘said, “put we
can’t overlook a thing.”

Sheriff Benton got up from the chair
where he had been sitting and walked
over beside the coroner. One thing
had aroused the Sheriff’s curiosity.
from the moment he had stepped into’
the death-room. Mrs. Berry had been
attacked by someone in a furious rage.
If that person had wanted only to mur-
der her, it would not have been neces-
sary to beat her so mercilessly as the.
killer had done. Someone hated this
good and kind woman most intense’
And since Berry had assured the of-
ficers that nothing had been stolen
from his home during the morning
while he was gone, then revenge was
the only possible motive that Benton
could make to fit.

, the slain woman's husband, is

standing ‘at the door through which the killer °
‘imetiming the crime perfectly—had entered

Tye

Yee

But who.could want revenge on this
warm-hearted meek woman?

Berry said that for years he had
been going for the paper at the Almon
store every Sunday morning at the
same hour. If that was so, then this
habit of his probably was known by
all the people living in the marsh-
lands. And the killer undoubtedly had
planned his crime carefully—probably

had been waiting in-the. darkness. of...

the swamps until Berry left his home.

HERIFF BENTON turned suddenly

to the husband. “You and your wife
never had any serious trouble, did
you?”

Berry appeared startled and hurt.
“Oh, good Heavens no!” ;

“It’s my duty to find out who mur-
dered your wife. And to clear you,
we'll naturally have to check your ac-
tions—so there will be no doubt in
anyone’s mind as to your innocence.
It is all routine, you know.”

“I'd want you to do that, Sheriff.
I understand.”

The coroner had finished his ex-

- amination now. He said that Mrs.

‘Berry had not been criminally . as-
saulted. The woman had been hit over
the head with some kind of a hard,
wooden club and she had died almost
instantly. As yet, the coroner was
unable to determine the exact time
that she was slain.

Sheriff Benton and Major Spence
assigned men to check on the two hired
hands Berry had had working for him
two months before. Another officer was
sent after Haverill, to see why he had

- decided not to come by the Berry home

that morning. And still another officer
was sent to the little swamp town of
Almon to confirm the fact that Berry
had gone to the store there for a paper.

Then Benton and Major Spence ac-
cepted the assistance of the neighbors
and friends of the Berrys who had
gathered at the home to form a posse
to search the surrounding swamp-

lands—just in case the killer was hid-
ing out there.

The men were divided into. four
groups and set out in different direc-
tions from the farm home.

Other officers were sent to each
neighboring farm to check on all per-
sons seen in the neighborhood that
morning—particularly any strangers.

Not overlooking any possibilities,
Sheriff Benton then telephoned Chief

‘Leo Nahlik of the De Kalb County po-

lice and asked him to bring the county
bloodhounds and come to the Berry
home to assist in the search. Nahlik
said he would start, out immediately.

ACK in the gloomy, misty swamps,
the howling of the dogs belonging to
Berry’s neighbors could be heard now.
But these dogs had been trained for
hunting, not for tracking down human
beings. Chief Nahlik’s dogs, however,
were trained to trail men.

Benton had asked Fred Neely, Ber-
ry’s neighbor who had telephoned him
about the killing, to remain at the
Berry home with. the bereaved hus-
band.. Benton also. wanted to ask this
man more questions. He took Neely
to his car where they could talk with-
out being disturbed. He asked Neely
then to relate his complete actions that
morning.

Neely said he arose about six o'clock.
He made a fire in his kitchen stove,
then went out to his barn to do some
of his morning chores. He lived down
the narrow road about a quarter of a
mile from the Berry home. He could
see the house plainly.

“T noticed smoke coming from Jim’s
chimney,” Neely said, “and a little
later I saw Jim outside, getting some
wood. I ate breakfast, did the rest of
my chores and went back in the house
to do a little reading. I was in the,
house about nine o’clock when Jim
came running in and said to call the
ee that someone had killed his
wife.”

The victim's daughter is being con-
soled by her father during the trial
of a man suspected of the killing’

Typical of the men who gathered to
hunt down the murderer, is J. C. Cor-
dell, shown guarding one of the paths

“Did Mr. Berry say anything about
ee thought had murdered his
wife ”

Neely shook his head, “Jim was so
upset, he didn’t say anything but just
what I told you. I called you fast as I
could, then went back to his place with
him to be sure Mrs. Berry was dead. I-
saw she was, so I waited there. I called
some more of the men around here and
told them what had happened and
asked them to bring their guns and
dogs and come down and help us out
soon as the law arrived.”

‘“You saw no one else around the
Berry home this morning, then, except
Mr. Berry?”

“That’s right.”

“You know of any trouble Mrs. Berry
had with her husband or anyone else
around here?”

Neely shook his head, but said noth-

ing.

“When is the last time you saw Ted
Haverill?” .

To Benton’s surprise, Neely said,
“This morning. Why?”

“I thought,” Benton said suddenly,
“that you saw no one around the Berry
home this morning.”

444 DIDN'T. I saw Haverill when I

was taking the cows down to the -
back pasture. Haverill was walking
down the trail that’s a shortcut to Al-
mon, The trail goes through the woods:
at the end of the back pasture. That’s
where I saw him.” —

“Was he dressed up—like he was go-
ing to church?”

“No.”

But Benton’s curiosity was aroused.
Leaving Major Spence at the Berry
home, Benton asked Neely to take him
to this back trail that was a short-
cut to Almon. The trail actually was
a foot-path and nothing more. It led

(Continued on Page 55)

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continued its vigil through the drizzle.
Major Spence, in Atlanta, had sent out
pickup orders for a dozen men of ques-
tionable character and Sheriff Benton
had exhausted his list of suspicious per-
sons, most of whom were paraded into
his office, questioned and released when
they gave satisfactory explanations for
their whereabouts on Sunday morning.

T was late that night when Benton

went home, determined that his first
task the next morning would be to re-
turn to the scene of the crime. “That
battling stick has got to be somewhere
around because nobody would carry it
with him,” he told a deputy.

Early Monday morning, Sheriff Ben-
ton stopped at a service station on his
way out’ to the farmhouse, and while
the attendant put gasoline into the auto-
mobile’s tank, replenished the supply
of water in the radiator and wiped off
the windshield, the Sheriff went around
the back to the wash room. Something
caught his eye—a bit of cloth flutter-
ing in the breeze at the end of .a twig
of a bush.

He tugged at it. It was a handker-
chief of the bandana type used by la-
borers and farm hands, but what set
Benton to thinking was the way the
kerchief was splotched with a dark
brown stain. There was no mistaking
the stain; it could be only one thing—
blood.

Quickly returning to the front of the
station, Benton asked the attendant:

“Anybody been around here this
morning for the back room?”

“Nary a soul; you're the first one,”
the attendant replied.

“How about yesterday?”

“Gosh, Sheriff, that’s quite a ques-
tion,” the man responded. “Probably
lots of ’em. Folks goin’ in and out all
the time.”

Benton was persistent. “Any of them
act suspicious?”

“Waal,” the attendant drawled, “I
kind of thought one lad was acting a
bit queer yesterday morning. He looked
all around before he went back, and I
never did see him come out front
again. He must have ducked through
the bushes in the rear and taken .a
short cut.”

He noticed the man about 8:30 A.M.,
he said. He knew the time because his
radio was tuned in to a popular morn-
ing program.

Pressed to describe the man, the em-
ployee said he didn’t pay particular at-
tention to him, but “I thought it was
kind of funny for a fellow to be out
on the road walking in all that rain.
He wore overalls and no hat. He had
black, curly hair and that’s about all I
know.”

A man in overalls. That tied in with
the bandana type handkerchief. Ben-
ton telephoned his office.

“Get some men around to all. the
farms in the neighborhood again,” he
ordered, “and check up on the help.
Find. out if anybody was away yester-
day morning.”

The sheriff drove on to the Berry
farm, where a member of the state
patrol stood guard.

Benton greeted the policeman, spoke
briefly to him and set out for the
clump of bushes where the blood-
hounds had lost the scent the day be-
fore. From there he entered the woods,
making his way laboriously and search-
ing under every tree for the missing
battling stick. Though: he found slats,
broken branches, brush and pieces of
wood of various types, he was positive
that the murder weapon could have
been only one thing—the battling stick
used by Mrs. Berry, and that some-
where on the Berry property or near

it, he would find what he was hunting
for.

For three hours he trudged vainly,
and it was past noon when he left the
woods, to enter a cornfield. Another
hour dragged by when suddenly he was
rewarded, for there, soaked by rain,
was a hickory stick.

If the stick was the murder weapon,
any blood which might have covered
it had been washed away, for the stick
was drenched.

“And fingerprints will be erased too,”
Benton muttered, disgustedly. Never-
theless, he knew that there was just a
bare possibility that the battling stick
might have been tossed away before
it rained heavily, and that prints could
possibly be on the under side—the side
next to the ground, where rain might
not have seeped. He knew it was a
long chance, but he picked the stick
up gingerly, tucked it under his coat
to protect any possible tell-tale evi-
dence and hastened from the cornfield.

He went to his automobile and

‘rushed from the farm, heading for At-

lanta, and the state police fingerprint
bureau.

Less than two hours later, Sheriff
Benton was back in his office with one
set of prints—taken from the under-
side of the battling stick. And on his
desk was the stick which he had found
after painstaking search.

Awaiting him, on his telephoned or-
der to a deputy, was James Berry.

“Did you ever see this stick?” Ben-
ton asked the farmer.

“Tt looks like the one Ezna used to ,

stir her laundry,” Berry sighed.

“Then, I think we’ll soon have the
man who killed your wife,” the sheriff
said, directing a deputy to “find that
Johnson crook.”

The fingerprint on the under side of
the battling stick; Benton told the
farmer, was that of L. C. Johnson, a
farmhand employed less than two miles
from the Berry farm.

“He made the mistake of stealing a
bicycle a year ago and was sentenced
to a short term on public works,” Ben-
ton added. “If he hadn’t stolen that
bike, we wouldn’t have had his prints
on file.”

Finding Berry’s battling stick was a
good deal more ‘difficult than picking
up Johnson, 19-year-old farmhand, who
was at work when the sheriff's men
walked into his employer’s front yard.

OHNSON, however, was indignant

when informed that he was wanted
and declared that at the time Mrs.
Berry was slain he had been in Eaton-
ton. He gave names of persons with
whom he had talked and addresses of
places where he had been.

“Okay, we'll let you prove it,” the
deputy said. “Let’s go right over to
Eatonton.”

But at Eatonton, Johnson's alibi blew
higher than a kite. He had been there
Sunday afternoon, but not Sunday
morning. Johnson was taken before
Sheriff Benton.

“Why, I know that chap,” farmer
Berry declared. “He’s done a bit of
work for me once in a while, and he
used to come over occasionally on a
Sunday to look at the comics in the

per.”

Johnson began to perspire under Ben-
ton’s hammering, and took a handker-
chief from his pocket. It was a ban-

SAVE YOUR

WASTE PAPER!

WASTE PAPER IS
AMMUNITION!

dana type, of the same pattern as the

bloodstained kerchief the sheriff had
found.
“Ever see this before?” Benton

asked, holding the laundry stick a few
inches in front of Johnson’s eyes. The
youth was. silent.

A technician from the state bureau
of investigation entered the room,
placed the cast of a footprint on the
sheriff's desk and looked intently at
Johnson’s shoes. He nodded his head
knowingly.

Confronted with the evidence against
him, Johnson broke down and admitted
the brutal slaying, an admission which
he later signed in the office of Major
Spence in Atlanta.

Knowing that Berry would be away,
he said, he walked to the farmhouse,
intent upon stealing the money he
knew the Berrys kept in a cup in the
pantry. When he reached the house, he
called to Mrs. Berry and asked it he
could see the comics.

Mrs. Berry told him that her hus-
band had gone to town for the papers
and ordered him not to come in_be-
cause she was dressing. Johnson said.
“She told me to wait outside until her
husband came back with the papers.”
However, intent on getting his hands
on the money, he decided to go to the
spring where he knew there was a hea-
vy stick, “just in case there was any
trouble getting the money.” At the
spring, he accidentally slipped and
stepped into the mud. It was this mud
which he tracked inside the house.

He tried to sneak unnoticed into the
house but Mrs. Berry saw him and
started screaming. He ordered her to
stop but she screamed louder Afraid
that the cries would bring help to the
woman, he struck her with the batt-
ling stick; continued to rain blows
upon her head until she dropped
the floor and lay still.

Realizing she was dead, he dared not
take the time to look for the money
He knew Berry probably would be re-
turning soon, so he wert out the rear
door. Hurrying in the rain he cut across
to the field and then to the clump of
bushes.

He took refuge there for a while
but it continued to rain and he wanted
to get as far from the farm as possi-
ble, so he went on his way, tossing the
stick into the cornfield. Later, he
washed the blood from his hands, dried
them with the handkerchief and after
discarding the kerchief he returned to
his employer's farm. After lunch, fear-
ful that he had left incriminating evi-
dence at the murder scene, he went
to Eatonton in a desperate attempt to
establish an alibi.

Johnson was not the man who
robbed the Duckworths in Sumter
County, it was proved, for he was in
Eatonton at the time.

On Monday, February 5, he
charged formally with murder and
lodged in Fulton Tower. The next day
Judge James C. Davis of the Stone
Mountain Circuit ordered him bound
over to the grand jury and prepara-
tions were made to speed his indict-
ment and trial.

Georgia justice moved swiftly and
Johnson was brought to trial within a
few days. On Wednesday, February 14,
a Superior Court jury in Covington re-
quired only six minutes to convict him
of murder in the first degree and he
was returned to Fulton Tower to await
execution.

Was

Editor’s Note: The names, Cravyn,
Timpkin, North and Denton, as used
in this story, are fictitious in order to
protect the identity of innocent per-
sons and save them embarrassment.

590 Ga.

spondent. It would be inequitable and un-
just, under these circumstances, to permit the
bank to hold these funds and not to pay these
checks. Creditors of a bank do not stand
in any better position than the bank itself,
and should not be permitted to take these
funds away from the plaintiff.

The cases cited by counsel for the bank are
distinguishable from the case which we have
in hand. They refer to transactions which
are entirely different from the case at bar.
In Schofield Mfg. Co. v.* Cochran, 119 Ga.
901, 47 S. E. 208, the deposit was general, and
not a special. In Spiroplos vy. Scandinavian-
American Bank, 116 Wash. 491, 199 P. 997,
16 A. L. R. 181, the facts were insufficient to
establish a special deposit, and the funds
were not turned over to the bank under an
agreement that the bank was to transmit them
to Spiroplos at Athens, Greece. In the in-
stant case, the deposit was in the nature of a
special deposit, and the funds were turned
over to the Salzburger bank for transmission
to the plaintiff at Savannah. Furthermore,
in the case we have under consideration, the
funds turned over to the Salzburger bank
swelled its assets. Other cases cited by coun-
sel for the bank involved merely the purchase
of drafts from banks which subsequent to the
purchase became insolvent. So we are of the
opinion that the fourth count of the petition
set forth a good cause of action; that the trial
judge did not err in overruling the general
demurrer.

.5. We do not think the rulings of the judge
upon the various special demurrers require a
reversal.

Judgment affirmed.

All the Justices concur, except ATKIN-
SON, J., who dissents,

‘

JOHNSON v. STATE.
No. 8450.

Supreme Court of Georgia.
Noy. 11, 1931.

1. Homicide €=300(14).

Requested instruction on reasonable fears
as justification for homicide held properly re-
fused for omitting to state that murder must
not be committed in spirit of revenge (Pen.
Code 1910, § 71).

2. Criminal law €=829(1).

Refusal of instruction requested does not
warrant reversal, where subject-matter was
covered in instructions given.

161 SOUTH EASTERN REPORTER

3. Homicide €=309(5).

Where state’s evidence made clear case
of unprovoked murder, and defendant's evi-
dence tended to show self-defense, refusal of
charge on voluntary manslaughter as related
to mutual combat held not error.

4. Homicide €>63.

“Mutual combat” appears, as regards de-
gree of homicide, where there is mutual in-
tent to fight, and one or more shots are fired.

[Ed. Note.—For other definitions of “‘Mu-
tual Combat,” see Words and Phrases.]

5. Homicide €=250.
Evidence held sufficient to authorize con-
viction for murder.

Syllabus by the Court.

1. A request for instruction upon reason-
able fears set up by the defendant as a justifica-
tion for the homicide, which omitted the princi-
ple that the killing must not be committed in a
spirit of revenge, was inaccurate; and the trial
judge did not err in refusing to give such in-
struction to the jury. Besides, a new trial
should not be granted, because the law upon this
subject was clearly and fully given to. the jury,
and covered all that was correct in the request
to charge upon this subject.

2. Voluntary manslaughter arising from
mutual combat was not involved under the evi-
dence in this case; and the trial judge did not
err in refusing to give an instruction on this
subject when so requested by the defendant.
Where the evidence introduced by the state
made a clear case-of unprovoked murder, and
the evidence introduced by the defendant and
his statement tended to establish that he killed
the deceased in self-defense or under the fears
of a reasonable man that the deceased was about
to commit a felony upon his person, the judge.
did not err in refusing, on request of the defend-
ant, to give in charge to the jury the law of
voluntary manslaughter as related to mutual
combat.

8. The evidence authorized the verdict.

Error from Superior Court, Dougherty
County; B. C. Gardner, Judge.

Major, alias Slick, Johnson was convicted
of murder, and he brings error.

Affirmed.

Johnson was indicted for the murder of
Tobe Roberts. He was convicted without
recommendation, and sentenced to be electro
cuted. He moved for a new trial upon the
general grounds; and by an amendment ste?
ed two special grounds, The court overrule:
the motion, and the defendant excepted.

In the first special ground the defendant

ta
assigns error on the refusal of the court t
Le eee

. ms 7 7 es
€ For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Index

JOHNSON v. STATE Ga. 59]
161S.B,

give in charge to the jury a requested: in-
struction as follows: “If you believe from
the evidence in this case, including the state-
ment of the defendant, that the deceased. im-
mediately prior to the homicide, drew a pistol
upon the defendant in a menacing manner,
and if you believe, under all of the circum-
stances in the case, including the statement
of the defendant, that such conduct of the
deceased, if there were such upon the part
of the deceased at the time in question, was
such as to excite the fears of a reasonable
man, in the situation of the defendant, that
a felony was about to be committed upon him,
or that his life was in danger, and that at
such time the defendant acted under those
fears and took the life of the deceased, then
you should acquit him. Or if, under the cir-
cumstances which I have stated, you believe
the defendant was actually in no danger, and
that, if he had not killed the deceased, the de-
ceased would not have committed any felony
upon him or have taken his life, but if you
believe that the defendant, acting under the
fears of a reasonable man, believed in good
faith that he was in such danger, then it
would likewise be your duty to acquit the de-
fendant. Or if, under the circumstances
which I have stated, you believe that the de-
fendant was actually in no danger, and that,
if he had not killed the deceased, the deceased
would not have committed any felony upon
him or have taken his life, but if you believe
that the defendant, acting under the fears of
a reasonable man, believed in good faith that
he was in such danger, or if you have a rea-
sonable doubt resting upon your minds as to
whether the defendant, acting under the fears
of a reasonable man, believed in good faith
that he was in such danger, then it would
likewise be your duty to acquit the defendant
and find him not guilty.”

In the second special ground the defendant
assigns error on the refusal of a request to
tive in charge to the jury the following in-
struction: “Whenever the homicide is the re-
Sult of that sudden and violent heat of pas-
sion which is supposed to be irresistible and
Without any malice or deliberation, the kill-
ing is voluntary manslaughter, and not mur-
der, If, upon a certain quarrel, the parties
fight upon the spot, and one of them is killed,
such killing is voluntary manslaughter, no
matter who strikes the first blow. There need
Not be mutual blows to constitute a mutual
combat. There must be a mutual intent to
fisht; and if this exists and but one blow be
Struck, the mutual combat exists, even though
the first blow kills or disables one of the par-
ties. If you should find from the evidence,
including the defendant's statement. that the
defendant and the deceased, upon a certain
Warrel, each being armed with a deadly
Weapon, mutually engaged in mortal comhat,
fach using his weapon and intending to kill
the other therewith, then it would be your

duty under such circumstances to find the
defendant guilty of manslaughter.”

The wife of the deceased testified in he-
half of the state, and gave this account of the
killing: At the time of the killing, the de-
ceased, herself, the defendant, Eyelyn John-
son, and Helen Wiley were in the room. The
deceased was standing with his back to the
door, facing the defendant. He had his hand
on the knob of the door fixing to go out the
back. The defendant was between the .de-
ceased and his wife, and was very close to
the deceased. She did not see the first shot.
When she looked around, her husband was
falling on the bed, and the defendant was still
shooting him after he hit the bed. The de-
fendant shot twice after the deceased fell
on the bed. Prior to the shgoting, the de-
ceased did not say anything at all to the de-
fendant. Witness did not hear any one say
anything, except when the deceased started
out he turned and said, “I am going out in
the back yard.” Witness said, “Don’t go
out there now.” The deceased replied. “Yes,
I am going out in the back yard.” He started
to the door, and she started to the dresser.
That was why her back was turned. That is
all the deceased said. She then heard the
defendant call, but did not know what he
said. The defendant said Something to the
deceased that caused him to turn around.
The next thing she heard were the shots.

Evelyn Johnson, who testified in behalf of
the state, gave this account of the killing:
She is a niece of the defendant and of the
wife of the deceased, who were sister and
brother. She was standing inside the door
opening into the bedroom where the shooting
took place. Nothing was said by the deceased
or the defendant just prior to the shooting,
except that the deceased said he was going
out into the backyard, and he had his hand
upon the knob of the door gping into the
kitchen. The defendant told the deceased to
turn around. He turned, and the defend-
ant shot him. The deceased fell on the bed
after the defendant shot him; and, after he
fell on the bed, the defendant shot him twice.
The deceased had no pistol. He did not pull
a pistol out in the room and say he was going
to shoot everyone in the room. After the de-
fendant ceased shooting the deceased, he ran
out of the front door.

In his statement to the jury, the defend-
ant gave this account of the homicide: He
had gone up town and got a bottle full of
whisky. He had not drunk any of it. We
asked the wife of the deceased if he could
take a lemon and egg and make her a toddy.
She said, “No whiskey. I don't want to hear
the name of it. My husband is killing me.
Ile has been drinking all the week, and is
drunk now.” In the meantime the deceased
got up and went ont. He was going back
there to take a drink. The wife sent Evelyn

“Zc6T £6 *qeq ‘(£41948n0G.)--eTB100n peynoorzoete fxzofen *‘NoeNHOor

Bea stan SF

a aR

Sneee Paeeie

92 Ga.

Johnson to take it away from him, and he
turned it up and drank it all. Mrs. Goodman
was there and saw it. The little girl went
back there, and defendant thinks she slapped
the deceased, and he got in a passion and
slapped her and she fell on the table. The
wife of the deceased jumped out of bed and
tried to-fight him. The defendant said, “Sis-
ter, Tobe is right. You ought to make that
baby behave. She has got no business slap-
ping a man.” The deceased came over to the
dresser, pulled the drawer open, and got his
pistol. The defendant said: “Tobe what
are you going to-do with a gun. You don’t
need a gun. We are all friends. Nobody is
going to harm you or bother you.” The de-
ceased cursed, and said, “I am damn tired
of living this way. I am not going to put up
with it. Iam not going to stand for it.” The
defendant took his side, and got after his
sister and told her she ought to make Evelyn
‘mind Tobe, because he was taking care of
her. She said if Tobe was not drunk, and
would take a switch and whip her, she would
not mind it; but that she was not going to
let him beat her up when he was drunk. The
defendant then said, “Well, let him go on;
there is no use in quarreling with him. It
will make matters no better.”. The defend-
ant talked to the deceased, and he lay down
across the bed. Then he said, “Sister, what
are you going to do about tomorrow’s gro-
ceries?’ She said, “I will get the paper and
see what we need.” She then said she was
going to call up her husband’s brother, and
the little girl went into the room to call him.
Then the deceased awoke and said, “What
the hell is all this going on?” The defendant
did not say a thing. The wife of the de-
ceased said, “I have called up your brother.
I am going to get you sober. I am going to
stop this drinking. You have spent every
nickel you have made all the week on whis-
Key. I haven't hardly got enough money
for groceries.” The defendant said, “Sister
you don’t have to have any grocery money.
I will get some money.” The deceased said,
“T have put up with this as long as I am
going to.” He got off the bed and said, “T
am going to kill every damn one of you.”
The defendant turned around to get his coat
and put it on. He had his pistol sticking out
of his coat. His sister said, “Oh Lord, don’t,
for God’s sake don't.” Helen Wiley said,
“Look out.” The defendant turned, and the
deceased was drawing his pistol. He did not
know what to do. He thought it was his life,
his sister’s life, or probably all of them; and
he commenced to shoot. Whether the de-
ceased shot he did not know; he was shooting
so fast. After the shooting, the defendant
went out, got in his car with Helen Wiley,
and went and surrendered to the police.

Helen Wiley, who testified in behalf of
the defendant, gave this account of the homi-
cide: She went with Evelyn to the picture
show on the afternoon of the killing. After

161 SOUTH EASTERN REPORTER

she got back, she heard a conversation be
tween the deceased and his wife. They were
arguing about the deceased drinking. Ue
had been drinking practically all the week.
She heard a conversation between Evelyn and
the deceased relative to whisky. His wife
wanted Evelyn to fix him some hot salty wa-
ter and get him to drink it. She fixed the
water, but the deceased would not drink it.
Ife turned to get a drink of whisky. Evelyn
slapped the deceased, and he slapped her
The defendant was there at that time. Wit-
ness did not hear any conyersation between
the defendant and the deceased up to that
time. When the deceased slapped the litt'e
girl, his wife was in bed, and she aske«l
somebody if he did not slap Evelyn. Nobody
said anything. She walked in the kitchen
and told him not to put his hands on her
any more. They had a few words in the
kitchen, and she came back and lay down
on the bed. She asked the defendant. if he
thought it was right for the deceased to slap
Evelyn when he was drunk. The defendant
replied, ‘Sister, it is not right for her to
slap him even if he is drunk, when he works
for her and raised her.” The wife of the
deceased replied, “I can tell you one thing:
he is not going to put his hands on my child
while he is drunk.” The deceased and his
wife went back after they had the words
about him slapping Evelyn. The wife called
Evelyn and told her to go and call the broth-
er of the deceased and get him to come and
do something with the deceased. The de-
ceased then went back in the bedroom and
sat down on the bed. He lay down, but did
not go to sleep. ‘There was a conversation
relative to the groceries for the next day.
The wife of the deceased told Evelyn and
witness to get the grocery list ready. She
handed the witness $3, and told her and de-
fendant to go up town and get the groceries.
Mrs. Goodman, who had been in the room of
the deceased, went back into her room. The
defendant went back in there and asked her
if he did not owe Mr, Goodman a laundry
bill a right smart while. After he came back.
he told the deceased and his wife to hush
arguing; that, if they did not, Mr. and Mrs
Goodman, who occupied ene end of the duplex
dwelling in the other end of which the de
ceased lived, were going to move. The de
fendant and witness started out the door to
go and get the groceries. They got as far a¢
the front room, and the wife of the deceased
called them back and said, “Don't leave me
here by myself while Tobe has his pistol.
The witness and the defendant tried to get
the pistol away from the deceased, and asked
him to let them have it and put it. up until
he got sober, and then he could have it. The
deceased would not let them have it. He
told the defendant to go ahead. The defend:
ant went to get his overcoat to start up towh
The deceased got off the bed and started
the kitchen, and then turned around and

i
&
b4
;
+
4
F
g

JOHNSON y. STATE ; Ga. 592
1615S.E. oe

said, “I am going to kill every damn one of
you.” The witness screamed to the defend-
ant to look out. The deceased pulled his pis-
tol out of his pocket when he said he was
going to kill every damn one of them. The
defendant said to him, “Don’t do that, don’t
do that.” The witness saw the pistol of the
deceased in his hands. During that day and
during that entire time witness did not hear
a cross word between the deceased and the
defendant. Did not hear a cross word be-
tween the defendant and any member of the
family. When the deceased pulled out his
pistol and said he was going to kill every
damn one in there, the defendant pulled his
pistol and started to shooting. When the de-
ceased got to the back door of the bedroom,
he turned around and pulled out his pistol and
said he was going to shoot every one in there.
He held his pistol straight out, pointing it di-
rectly at the defendant, just like he was going
to shoot him. Witness could not say whether
the deceased shot or not.

J. W. Smith and S. B. Lippitt, both of Al-
bany, for plaintiff in error.

Robt. B. Short, Sol. Gen., of Newton, Ben-
net & Peacock, of Albany, Geo. M. Napier,
Atty. Gen., and T. R. Gress, Asst. Atty. Gen.,
for the State. ~

HINES, J. (after stating the foregoing .

facts).

[1,2] 1. The court did not err in refusing
to give in charge, as requested, the instruc-
tion set out in the first special ground of
the motion for new trial. This request did
not present a correct statement of the law
upon the subject of the fears of a reasonable
man as a justification for a homicide. To
authorize an instruction. upon this subject,
“it must appear that the circumstances were
Sufficient to excite the fears of a reasonable
man, and that the party killing really acted
Under the influence of those fears, and not
in a spirit of revenge.” Penal Code, § 71.
The instruction requested wholly omitted the
essential element that, to make the killing
justifiable upon the ground that it was com-
mitted under the fears of a reasonable man,
it must appear that the homicide was not
committed in a spirit of revenge. This
made the instruction incorrect. It did not
State an accurate and correct principle of law
upon the subject of reasonable fears as jus-
tification for a homicide. Head vy. State, 168
Ga. 843, 149 S. E. 145. For this reason the
court did not err in refusing to give the in-
Struction requested. If the request had em-
braced an accurate and correct statement
upon the subject of reasonable fears as jus-
tification for homicide, the failure of the
Court to give it in charge would not require
the grant of a new trial, for the reason that
it was fully embraced in the charge as’ giv-
€n by the court to the jury. In so far as it

161 S.E.—38

stated correct principles of law applicable
to the case, the request was covered by the
general charge. McLain y. State, 71 Ga. 279
(8); Greer y. State, 142 Ga. 66, 82 S. E. 484,

The judge gaye in charge to the jury see-
tion 71 of the Penal Code in full. In this
connection the judge further charged the
jury that “in determining whether or not
the circumstances were sufficient at the time
of the killing to excite the fears of a reason-
ably courageous man that a felony was about
to be committed upon him, or that his life
was in danger, you will consider all the cir-
cumstances and facts given in the evidence
of this case, together with the defendant’s
Statement, I further charge you in this con-
nection, that an apparent danger is just as
effectual for the purpose of a defense as a
real danger, and the defendant is to be now
judged by you in the light of the cireum-
stances as they appeared to him, as a reason-
ably courageous man, at that time and under
Such circumstances. If you believe from the
circumstances of the case, as the same has
been presented to you by the evidence in the
case, including the statement of the defend-
ant, that the situation at the time of the
homicide was such as to excite the fears of
a reasonable man in the situation of the de-
fendant that a felony was about to be com-
mitted upon him, or that his life was in dan-
ger, and that the defendant acted under
those fears, and not in a spirit of revenge,
and took the life of the degeased, then you
should acquit him, and you should do so not-
withstanding you may believe the defendant
was in no danger, and that if he had not act-
ed the deceased would not have committed
any felony upon him. It is not necessary
that there should have been pny actual dan-
ger of a felony about to be committed on the
defendant, provided the defendant, acting
under the fears of a reasonable man, believed
in good faith that he was in such danger.”
It will thus be seen that the doctrine of rea-
sonable fears was fully presented to the
jury; and that the request for instruction
upon this subject, as far as it went, was
clearly and fully covered by the more extend-
ed and correct instruction given to the jury
by the judge upon this subject.

[3,4] 2. Did the court err in refusing to
give to the jury, on request, the instruction
Set out in the second special ground of the
motion for new trial? The court gave to
the jury the definition of manslaughter em-
braced in section G4 of the Penal Code, and
the definition of voluntary minslaughter em-
braced in section 65. The complaint is that
the judge did not go further and give in
charge the law of voluntary manslaughter
arising from a homicide committed in mnu-
tual combat. It is insisted by counsel for the
defendant that this srade of manslaughter
Was involved under the evidence, and that

Seep ONE NR

SS eS 2 GeO i Suen ci OE

161 SOUTH EASTERN REPORTER

this reason, the court did not err in refusing
to give to the jury the requested instruction

594 Ga.

for this reason the court should gts ——
- ao ee eee te ne Gate upon this subject.
it is insiste : .
te ae of manslaughter was not in- [5] 3. The swidenes authorized the verdict
volved under the evidence, and that for =a and the judge, under vhs rulings : mad
if the request set out a correct charge did not err in refusing to grant a new
anes at subject, the court did not err in Tidement dhiceak
peat eit Before looking to the evidence ‘ eee
ah mace whether the law applicable to All the Justices a
wishes cites committed in mutual com-
bat was here involved, we shall refer to
some of the decisions of this court. If up-
on a sudden quarrél the parties fight —
the spot, or presently agree and fetch or _
their weapons and fight, and one of them ;
killed, such killing is but voluntary we
slaughter, no matter who strikes the et
blow. Being suddenly aroused by ig _
mutually intending to fight, the law o —
tual combat is involved. Such combat _ :
ciently appears where it is shown that pi ;
was a mutual intent by the accused an 1. Evidence 0=478(1).
ceased to fight, and one or more shots i Peultiacny af wba dnbec We eek halite :
Send. JE makes no GMisrenee whe Sree . ther’s deed, that father seemed to have =
first shot, nor is it necessary that bate sed mee aut 1k chatiaces indicated com
c= he Osan ore sd -~ a a plete loss of mental control held admissible.
Ga. 148; Caruthes v. 4
oa See E. 837; Giles y. State, 126 Ga. 2. Deeds 6=78.

540, 55 8. 206; Beller v. State, 48.Ga, Aged grantor’s mental incapacity and un-

Sede beg ing - gg sone mar _ due influence held questions for jury in suit
Ga, 866, 113 S. E. 87; ocu " ,

r ide deed.
Ga. 131, 121 S. B. 116; Daniels v. Seats, 587 to set aside
3a. 780, 122 . E. 223. Under the decision fo
bse ae ta af combat, does the evidence in Error from Superior Court, Echols County
Flavooee chew W. E. Thomas, Judge.

i in mu-
is case show a homicide committed
ne pat Pee In the statement of facts pre- Suit by A. J. Rice, Jr., against S. T. Rice

i- i de-
ceding this opinion, we have set out the = and others. Judgment for plaintiff, and
dence bearing upon this subject, and the de- fendants bring error.
fendant’s statement. The eens Adivined”
state makes a clear case of unprovoke KF: Rice, Gr. was married ‘theese times

vi introduced by the defend-
ron oy iia date tended to establish and died at the age of 71 years on Octo

i iving heirs,
that he killed the deceased in self-defense or 25, 1929, leaving as his ~ gen dle
‘ shasller the fears of a reasonable man that the A. J. Rice, Jr., a son wd ~ - “cae iss
deceased was about to commit a felony upon and Mrs. Stella —— ae cecil
ete ; idence submitted A. J. Rice, Jr., filed a pe ye
i ails ook coon Stella Trammell Rice (hereafter referre
a akes a case of unprovoked Stella Tr: lees
te. pas the evldsnes introduced by the as defendant), and the “ accel ae
def ndant and his statement make a case of of Valdosta, Ga., ~~ ef oct aa oo
justifiable homicide, the evidence does not interest Po the peace ee ae hiikseettalty
ae sine i
i d require the court to charge tition as wine j nage
reagan the subiect of mutual combat the following: A. 4 Rice, a Rahat nd
at of voluntary manslaughter, either gen- the time be go See ee Se eek aad
tual combat. the defendant du Ei ad
erally or as applicable to mu “— fee acs ee
5 5 . E. 747; they lived together ee
Jordan vy. State, 117 Ga. 405, 43 S as a tha ee ao
t , 123 Ga. 548 (5), 51 S. E.577; the date o ht . 1, child
rset stig 149 Ga. 485, 100 S. E. 633; of the ge cep Dighesi gsi ee nies aes
; 107 S. BE. of A. J. Rice, Sr., 4
Brown v. State, 151 Ga. 497, 501, : : i ta tetait
121 S. ally in his estate w ; ;
—_o ee in Aton been no es on xen
ly or any
vee tam set out in the statement of facts tate, nor is a enieacicrage Be tee by OF
the ines of the eyewitnesses touching the a i patina aateececonegr™
anner in which this homicide was commit- estate. Petit cow tae coal and noth
ted From this evidence it clearly appears persons interestec
-Oa, s &

that mutual combat was not involved. For —
F N Ze. nd Indexes
€=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests a
to)

RICE et al. v. RICE.
No. 8537.

Supreme Court of Georgia.
Nov. 13, 1931,

tn
Ww ge juri aboring
are of lawful age, sui juris, and labor
: __

RICE y. RICE : Ga. 595
161S.E,

under no disabilities. A, J. Rice, Sr., at the er's title. The real estaye and personalty
time of his marriage to defendant, was ap-. are the property of the estate, jointly owned
proximately 66 years of age, and had aceu- by petitioner and defendant, On September
mulated considerable property. He was at 8, 1927, defendant induced A. J. Rice, Sr.
that time in possession, besides other prop- to make a trip to Live Oak, Fla., and to
erty, of a farm in Suwanee county, Fla., of | surrender to the bank his five shares of stock
the value of $2,800; a small farm in Echols and to have issued a new stock certificate
county, of the value of $1,000; an interest (No. 125) in the name of defendant. The
in his father’s estate, of the value of $350; transfer Was void, and was done when A, d:
the home place and surrounding realty in Rice, Sr., was wholly incapable of transact-
Statenville, Ga., of the value of $1,500; five ing business, and the interest as represented
shares of stock in the First National Bank by the five shares held by defendant’ is the
of Live Oak, Fla., of the value of $1,500. Lo- property of the estate. Of the funds illegally
cated on property owned in Statenville was obtained by defendant, there are now $2,000
a pecan grove from which he derived a sub- held on deposit in the First National Bank
stantial income, and he had an income from of Valdosta in her name, such sum having
the bank stock above set out. His income was heen derived from the sale of the farm lands
more than sufficient to support himself and described, and from other funds owned by
his wife in comfort, without encroaching on A, J, Rice, Sr., prior to his death. The trans-
the corpus of his estate. Me did not spend, fer of the funds to defendant was at a time
at any time during his lifetime, any more when A. J. Rice, Sr., was mentally ineapaci-
than the income from his property. During tated to make a valid transfer of his prop-
the last few years of his life, and particularly erty, and the money held on jleposit is in fact
after his marriage with defendant, he was the property jointly of petitioner and defend-
not physically and mentally sound, and was ant, and should be impressed with a trust
easily influenced by defendant to do things for the benefit of petitioner. At the time of
that he would not have done had he been in all the transfers, A. J. Rice, Sr., because of
Possession of all his mental and physical fac- his old age and due to his generally infirm
ulties. After his marriage with defendant, physical condition, had suffered the loss of
he was induced to part with the farm in Su- his memory, and Was not at the time of any
wanee county, Fla., for which he received of the transfers, nor thereafter during his
82,800, and with the Echols county farm, for ‘life, possessed of mind and reason equal to
which he received $1,000, and with the $350 a full and clear understanding of the nature
interest in his father's estate. The proceeds and consequences of his acts in making the
of the property were turned over to the de- transfers of his property, and all of the trans-
fendant, and she is now in possession of them fers are void. After the marriage of defend-
or has dissipated them, and she should in ant and A. J. Rice, Sr., and while his mind
equity be required to account to petitioner was in a generally weakened condition, and
for half of the Sums as money belonging to during all the times when the alleged trans-
the estate. Defendant was well acquainted fers were made, he was completely dominat-
with the condition of A: J. Rice, Sr, and ed by defendant, who was a woman of strong
knew he was not at the time physically and mind and will power; and the transfers were
mentally capable of making a valid gift, sale, due to the influence she had over him, and
°r other distribution or disposition of his were not fair, honest, and free from such in-
Property. In July, 1927, A. J. Rice, then 70 fluence; they were without consideration,
years of age, in addition to his other troubles and, except for the domination and dictation
and infirmities, suffered a stroke of paralysis, on the part of defendant, they would never
and his brain became affected, and he was have been made. All of the transfers were
hever thereafter in possession of sufficient caused by persuasions made by defendant
mental capacity to make a rational disposi- with the sole view to defraud petitioner out
Non of his property. Defendant prevailed of his interest in the estate of his father.
Kai him to make a warranty deed to her, Defendant was dictatorial in her manner to-
mating to fonvey to her in fee simple, ward A. J. Rice, Sr, and he was in fact
no ptember 8, 1927, for a consideration of afraid not to comply with hey every wish:
natural love and affection” and the sum of they were the only persons living in the home
10, seven described tracts of land in Echols together, and in all business matters she was

eee The deed was recorded on October tho sole dictator, and particularly after July,

1927; and all the transfers after that time

Defendant also prevailed upon him to make were dictated by her, and were not his free
te her what purports to be a bill of sale or will and act. The transfers were fraudulent
feed to all the personal property owned by and void so far as petitioner is concerned.
Bim. The bill of sale is dated September 21, Except for property derived from the estate,
M27, and the consideration is expressed as defendant is insolvent; she has dissipated
natural love and affection” and the sum of the funds except as to parts of the property
$10, The deed and bill of sale are void, and described. and would be in np position to
thould be canceled as a cloud upon petition- answer this complaint for half of the funds,

JAMES (WILLIAMS), Tony, black, hanged Darien, Ga., June 29, 1883.

The following, sant by Jim Massey, was condensed from the
Savannah MORNING NEWS, 6-3021883 (1-3) (article not sent?

"The victim, Prince Anderson, had been on the Georgia maina&and
SK drinking with his friend, Tony Williams. On their way home to
one of Georgia's Champney Islands, the offender got rowdy and
splashed water on a black woman. When they reached shore,
Anderson slapped Williams for his failure to apologize to the
woman; Williams pulled a gun, shot and killed Anderson,

The detials strongly suggest that Anderson was black."

April 16, 190, (GAT

JENKINS, Jim
Affirmed, memorandumg 6 SE 628,

"Moultrie, taey April 16, 1904, =< Jim Jenkins, the negro
who was convicted last fall of the murder of his wife, ex-
piated his, crime on the gallows yesterday at 11:30. Jen-
kins went to the scaffold with perfect composure. He
made a short talk stating he was prepared to die, then
pave some advice to his race; the drop fell at 11:33.
Jenkins said he preferred to have the execution take

place in forenoon as he wanted to leave on the ‘morning
train,'" JOURNAL, Atlanta, Georgia, April 16, 190h (2:1.)

Hanees On hs 30th BIRTHDAY, per
The State. Blumbie se 4/! fm

Cet Qurr@r Cask

1 es “os ois ~ 1. 8 5 3
slave JERRY, hanged Randolph County, Georgia, July ’

Slave - Georgia

(Need confirmation, ) |

"HORRID TRAGEDY-It is Our painful duty to record one of
the most horrid tragedies that has ever occurred within
the limits of our State. One night last week, a negro
man, belonging to Mr, Stewart, of Randolph Gounty, enterec
the house of lp, Norton, a Son-in-law of Mr, Sey and with
an axe killed Mr, Norton, and one of his children, and so
Severely wounded Mrs, Norton, that her recovery was con-=
Sidered extremely doubtful, le then left the house and
took to the woods, and nothing was heard of the murder un<
til the next morning, when some gentlemen was riding by tr
house, and hearing two small children crying, and the

house a pearing to be, otherwise untenanted, he alighted
and went in uber he witnessed the herrid spectacle above
a

related. The nepro was pursued and overt en, and made a
full confession of the crime, His object was plunder,

erior Court
i is trial at the next Sup
He is in.jaik to tee Peart Stewart and Norton were both

+ - BUENA VISTA VADEMECUUM,
Ll who knew them. pene ma
ramet Se CONSTITUTIONALIST AND REPUBLIC, Augusta,
JULY 3 @ }
Georgia, 7-7+1853 (2/5.)

"yo

. PAGE ONE THE NORTON MURDER

This tragic incedent 1s being recorded because it affects the
children,grandchildren and all other generations of the Walter Hodges-
Lena Bethea family.It happened in 1853 and involves Aunt Christian, the

sister of Charlotte Stewart Hodges.
On the night of June 16th,1853 a little less than ten years bef

fore the War betweeW the States, the Daniel Benjamin Norton family, living
on a farm near Coleman,Ga. Was preparing for ped.sChristian Stewart had

married Daniel Norton,who was @ widower with a six year old son,John K.

They had two children of their own,Charles Peter,3# years old and a young

baby ,Eleanor Missourxi(Kennie Sanders' mother).
The two boys were asleep on the trundle bed and the baby Miss-
ouri was put in the tester bed where she slept with her parents.

The Nortons were not a wealthy family and owned only one slave,

Jerry,about 26 yrs.old.He helped on the farm and around the house and yard,

bringing water from the well,cutting wood,etc.
, After Christian had tucked the baby in she retired and listened
to her husband washing his dusty feet on the side porch.It was a hot night 3
and as he retired he left the door open to let in some cool night breeze.
Daniel fell asleep {mmediately,since he was tired after a long trip to
Cuthbert where he had sold a load of last year's cotton.

When the dark figure waiting outside thought all were asleep,he
entered the house.Suddenly little six year old John raised himself on his
elbow and cried "Jerry!".A swift stroke of the little small kindling axe

silenced the cry,but not before Daniel Raised upone stroke killed him
also.Christian awakened,caught hold of the axe handle and struggled with
Jerry who continued to strike her head with the axe until she was dragged
from bed and left for dead by the frightened Negro.He fled,taking with

him a small .trunk he’ thought contained the money from the sale of the

cotton and some sugar for his coming wedding feast."“e hid these in a

along feacefully minding our own busi-
ness, and I don’t think anyone would
want to do us any harm.”

“Well, someone did you some harm,”
Benton said, “and there must be a
reason for it. Can’t you think of any
reason why somebody would come here
on a Sunday morning while you were
away? Maybe someone who knew you
wouldn’t be home?”

“No, sir, I can’t think of a soul.”

“Were you and your wife fond of
each other?” the sheriff .inquired.

Berry stared at the officer and asked,
“What makes you ask such a question?”

Ignoring the query, Benton repeated
his question and added, “Did you and
your wife quarrel?”

As the import of the sheriff's words
dawned on the farmer, he bristled:

“Mister, I don’t think there’s any
call to ask me that. Show me a mar-
ried couple and I’ll show you a man
and a woman who have a little spat
once in a while, but when you’ve been
married as long as Ezna and I, you get
to know each other’s faults and make
allowances for them, and you take your
happiness in the good points of your
spouse. Sure, my wife and I had a
little tiff once in a while, but no dif-
ferent from anybody else. There wasn’t
a ching she wouldn’t do for me, and
there’s nothing I wouldn't do for her.”

ALLING North and _ Timpkin
the officer questioned them again,
and they corroborated Berry’s statements

- . og

your friends to help look for the mur-
derer. Have them report to me here as
soon as they can.”

The rain had lessened into a steady
drizzle. Benton went outside and sur-
veyed the muddy road. He saw many
footprints, for several persons had: used
that road. ;

The only automobile tire marks found
on the road were those made by the
sheriff's and the coroner’s «cars, indi-
cating that if a stranger had come to
the house that morning he had not
driven there; at least, he had not turn-
ed off the main highway into the road
leading to the farmhouse. The killer,

therefore, must have walked to the.

house.

Returning indoors, Benton studied the
floor of the bedroom. Mud had been
brought from the back, and the kitchen
floor also was tracked with mud. Ben-

‘ton was puzzled. Berry had said he had

left the house and returned by the front

door, and the coroner’s doctor had placed,

the time of the crime as between 7:45
and 8:45. It had not started to rain
until considerably after 8:30.

If the murder had been committed
before 8:30 by someone using the back
door, why had his shoes been muddy?
Benton followed the tracks. They led
away from the rear of the cottage to
the edge of a field.

Another set of muddy tracks led from
the back door to a spring a short dis-
tance from the house, and back again.

“There’s sure been a lot of walking

PN GUDA VE ks €

After an exhaustive search, Sheriff Benton found the mur-
der weapon lying in the brush at the foot of. this tree.

that he went to Almon every Sunday
morning about the same time. They bore
witness to his peaceful, happy life with
his wife. Both men said they had been
in their own homes until Berry's shrieks
broke the quiet of the country atmos-
phere and Timpkin raced to North's
home.

Benton suggested that Berry go to
the home of one of his neighbors until
uiter the autopsy on his wife's body
had been performed.

“There'll be some men out here pret-
ty soon and they'll have to go through
the house looking for clues,’ he ex-
plained, “Later you can make arrange-
ments for the funeral.”

Berry departed with Timpkin, and
Benton told North:

“I'd like you to organize a posse of

’

around here,” Benton murmured, half
aloud.

A short time later, Captain Ed Fos-
ter, of De Kalb County police, arrived

with a pair of bloodhounds. Also, aides

of Sheriff Benton soon were on the‘

scene, and the quiet countryside was
alive to the fact that something unusual
was happening. Word travels fast in
that section of Georgia, and John North
was passing the news along. Telephone
wires were humming, and party lines
were busy.

From all directions came grim-faced
neighbors armed with loaded shotguns.
North, himself, brought a gun.

Benton, grateful for the help, instruct-
ed the posse to trudge through the near-
by hills and “keep an eye out for people
you don’t know.” He instructed them to

Grief-stricken James Berry, hus

band of the murdered woman.

Berry discovered the crime and immediately summoned help.

a POT ie sore SL

dee

The farmhouse near Covington, Georgia, in which Mrs. Berry,
preparing for church service, was cruelly beaten to death.

go out the front door, and he kept them
out of the bedroom and kitchen, so
that their footprints would not obliterate
those of persons already in the house.
Quickly advising the newly arrived
police of the morning’s events thus far
determined, Benton soon was heading
an intensive hunt—a hunt for a mur-
derer. .

66 ON’T take the law into your own

hands,” he warned the depart-
ing posse members. “If you find any-
body you’re suspicious of, bring him
here, bue. be. sure you don't try to set
p your own form of: justice. Remember,
you might have the wrong person.
‘ “There’d be plenty of room on this
farm or in the hills to hide the murder
weapon,” he remarked to Captain Fos-
ter. “Too bad the rain had to come up,

because unless the weapon's been hidden
where it’s protected from the rain
chances are that any fingerprints will
be washed away. But, we'd better look
for a hammer or a club of some kind.”

To an aide he gave instructions to go
to Almon to “make sure Berry was
there and find out just what time he
arrived and left.” Another member of
his staff he directed to “check up to see
if Berry’s neighbors were home all
morning until they learned about the
killing.”

To still another, he gave an assign-
ment to learn the names of all persons
who had been in church and to find
out who had not attended services

He asked members of the state police
bureau to visit all homes in the vicinity

(Continued on Page 30)

SY og
Captain Ed Foster of the De Kalb

County police

supplied a

pair of bloodhounds in an attempt to track down the killer.

voice. The other man, John North, met
Sheriff Benton at the foot of the porch
steps.

After introducing himself, North said,
“I’m the one who telephoned, Sheriff.
I suppose first thing you'll want to see
the body. I'll take you to it.”

Casting a quick glance at the men
on the porch, Benton followed North
into the house. They passed through a
combination living room and kitchen and
entered the bedroom.

The body of Ezna Piper Berry,
clothed except for her shoes and stock-
ings, lay on the bare floor. A pool of
blood extended from the side of the
bed to a sewing machine standing a few
feet away. Inspecting the room, Benton
found the various pieces of furniture ar-
ranged in orderly fashion and the bed
linen spotlessly clean.

Seconds later, the two doctors arrived
and Dr. Mitchell knelt beside the body
to make a preliminary examination.

“I've never seen anything quite so
vicious,” be said. ““Her head has been
bashed in and it looks as though the
person who did this used either a mighty
heavy instrument or exerted unusual
strength. There are at least eight distinct
blows, any one of which appears severe
enough to crush the skull. However, one
thing’s in your favor, Sheriff. She hasn’t
been dead long—probably an hour and
a half.” It was then 9:30 on the morn-
ing of February 4, 1945.

Dr. Swann observed that the wom-
an’s clothing was torn in places, “prob-
ably where she broke loose from who-
ever held her.”

Sheriff Benton turned to North, who
explained that Peter Timpkin had told
him of Mrs. Berry’s death.

“Timpkin came running tg my house
and asked me to telephone you,” he said.
“I called you right away and then I
came over here. Timpkin’s been trying
to calm James down and I’ve been sort
of standing guard like you said, so no-
body could touch anything. The way
James has been carrying on, I was
afraid he’d bust in here and try to do

something to himself, but he seems
now to have gained control of his emo-
tions.”

Examination of the body completed
for the time being, Dr. Mitchell covered
it with a blanket, and Benton motioned
to Timpkin and Berry to join him in
the bedroom.

“Suppose you tell me how you hap-
pened to go to Mr. North’s house,” he
suggested to Timpkin.

“Tt was around nine o’clock when I
heard a scream,” the neighbor answered.
“IT was in my house and when I heard
it, I ran outside. James was coming
down the road that connects our houses
and he was acting like he was mad. He
was wringing his hands and babbling. It
was some time before he could quiet
down long enough to tell me what was
wrong, and when he said his wife was
dead, I hurried over to John’s house.”

He went there, he said, because North
had a telephone.

“After I asked John to call you,” he
continued, “I came back here with
James. John came over a couple of
minutes later.”

Benton motioned to the coroner and

Dr. Mitchell to remove the body, and -

as they did so, Berry shrieked, “My
darling; my darling,” and the sheriff
had a difficult time comforting him.

It Was several minutes before the
man could be quieted sufficiently to per-
mit questioning, and Benton realized that
he was losing much valuable time in
getting an inquiry underway, time that
might enable a‘ murderer to get far from
the scene of the crime. He asked North
to go and telephone the state police
headquarters in Atlanta, as well as his
own office.

“Tell them I’m alone out here and
that I need some help on a murder
case,” he directed. “Tell them I said the
quicker I get help, the better, and ask
them to’ send bloodhounds. And come
right back; I’m going to need you.”

Placing his right arm around the
shoulders of the bereaved Berry, Benton
said, “I realize you've suffered a dread-

“T walked toward the front porch.
and I whistled. I always whistle when
I come near the house. There wasn't
any answer, and I whistled again. |
walked into the bedroom and found—
and found her on the floor. It was hor-
rible. I don’t know what I did, but the
first thing I realized, I was telling Peter
about it.”

Almon was only a mile away. “What
took you so long?” Benton asked.

ERRY seemed surprised. “So long?

Why, it’s a good 20 or 25-minute
walk each way. I always go there on
Sunday morning for the paper, and I
always leave about the same time. While
I’m gone, Ezna usually fixes the bed
and straightens up a little. She bathes
and dresses and then we go to church.”
He gave the sheriff the names of the
stores where he had been.

Benton glanced at the unmade bed.
and noticed a basin, a wash cloth and
soap. The water in the basin contained
suds.

“This morning. she apparently bathed
before she made the bed.” he said
“Have you any idea why she changed
her routine?”

The farmer shook his head. “I hadn't

- noticed.”

Though the house was neat, the fur-
nishings were severely simple, and their
accessories were plain. Certainly, there
was no indication that the Berrys had
any extra money for luxuries. Could this
murder possibly have been committed

Officer points to rock at spring. The killer slipped from
, rock into water and so left muddy footprints in farmhouse.

ful shock, but your wife has been mur-
dered, and it’s mighty important that you
tell me everything you know, so we can
start our hunt for the killer. Now,
just what happened here?”

“T don’t know; I wasn’t here,” Berry
answered weakly.

“You' weren't here? Where were you?”

Berry fought to hold himself together.
“Well, sir, about eight o’clock I left
the house and went to Almon to get
my Sunday paper and a sack of flour.
I came back just before nine o'clock.”

Benton interrupted him. “When you
left, did you go out the front or the
back door?” He had noticed that the
back door was open.

“The front way,” Berry replied.

“And when you came home, what hap-
pened?”

during an attempted burglary?

“No, we don't have any’ money for
fancy things,” Berry stated. “I manage
to make a living off the farm and we
get by. We don't need too much.”

There seldom was more than a few
dollars in the house, he said. He led
Benton to a cup in the pantry, where
a small amount of silver and four
crumpled dollar bills had been hidden.
And in Mrs. Berry’s pocketbook were
a few more dollars. Robbery could not
have been the motive for the slaying.
Benton was positive.

“Did you and your wife have any
enemies?” he inquired. “Were you on
the outs with anybody?”

“Why, no; we get along all right
with everyone. We never bothgr folks
and they don't bother us.: We just go

YOU TOO CAN

Appear SL

Look
Feel

IMMER

YOUNGER

BETTER

Ins tan tly /

SUPPORTER

me Bs z
MAKE THIS
TEST RIGHT

iase your hands
ver the abdomen,
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first degree!” he stated.

As the death sentence was pronounced,
Jerry said, aloud, “Well! Can you
imagine that?”

His lawyer filed an appeal to the
supreme court and Jerry was taken to
the East Cambridge jail. It was here, on
Dec. 2, 1926, that he first tried to
escape. A relative visited him regular-
ly. On December 2, she brought him
a treat, a roasted chicken. The jail of-
ficials accepted it and probed the fowl
with a long fork. It hit something
metallic. Investigating, they discovered
a fully loaded gun hidden inside:

Jerry Gedzium was transferred to the
Charlestown State Prison. But he didn’t
give up trying. Six months later a trusty
came to the warden with an amazing
story. Fourteen men, all heavily armed,
were to come and “spring” Jerry. Police
and jail officials set a trap and waited,
but Jerry got wind of the setup and
postponed the attack, He was moved to
a special cell.

After months of search for other
members of the gang, the police. finally
located one in prison in Maine, serving
a life sentence for murder committed
in that state.

On a bitter cold morning, February
28, 1928, Jerry Gedzium’s luck ran out.
At ten minutes past midnight Jerry the
Pole was electrocuted at the Charles-
town State Prison,

Captain Hurley, for 28 years chief
inspector of the Cambridge police, des-
cribed Jerry the Pole as, “the most
dasing and elusive crook I’ve encounter-
ed in 46 years of police work.”

Several years after Jerry Gedzium’s
execution, word kept trickling in to
Capt. Hurley that the police had made
a terrible mistake in regards to Joseph
Rinko, who had been sentenced to life
imprisonment. Evidence began to pile
up that Rinko wasn’t connected with
any of the daylight robberies and never
even knew Jerry the Pole. Capt. Hurley
went out of his way to investigate and
proved to his own satisfaction that Rin-
ko was innocent. Then he fought for
the man’s parole! The sentence was
reduced to 10 years and Rinko was
paroled. The prints on the armored car
were never explained.

Charges against Peggy Foster were
dismissed when witnesses failed to iden-
tify her definitely as the driver of the
bandit car. No trace was found of other
members of the gang, but the daring
payroll robberies ceased with the cap-
ture and execution of Jerry Gedzium.

Editor’s Note: The names, Peggy Foster,
Jean Matty, Joseph Rinko and Steve, as
used in this story, are fictitious in or-
der to protect the identity of innocent
persons and save them from all possible
embarrassment.

stained clothing; from the appearance
of all that blood on the floor, the killer
must have gotten plenty of it on him.”

Captain Foster had his hounds sniff
the tracks near the back door, and the
animals quickly took up the scent. They
followed the same trail that Benton had
noticed, but at the edge of the field,
where the sheriff had. lost the tracks,
the dogs pushed straight ahead. Through
the field they went, straining at their
leashes. For them there was no wasted
time; they were pursuing a scent that
was as clear to them despite the rain
as if it had been on soft, dry dirt with
prints plainly outlined.

For a half mile they surged forward,
and then, as by signal, both animals
ran around in a circle. They sniffed,
but did not move forward. For several
minutes they. circled, and “again, sud-
denly, they sprang to one side, follow-
ing the trail about 200 yards to a clump
of bushes. where once more they ap-
peared to be stymied.

Thick branches, pieces of board and
bits of cloth, all apparently exposed to
the weather for a long time, were on
the ground. Nothing seemed to bear a
stain. Had the murderer stopped at the
bushes, seeking protection from the
driving rain?

Benton frowned as he watched the
hounds, undoubtedly baffled as the scent
was lost. “If it hadn’t been for the rain,
these dégs would be able to go through
these woods without hesitation. I’m sure
the killer went this way. Unless . . .”
He paused,’ struck by a sudden thought.
. “Let’s bring these dogs back to the
house and have them follow the other
trail,” Foster suggested. “You know, the
one you said led to the spring.”

He whistled, and a posse member
came running.

“Stand guard here,” Foster. directed.
“If the killer did come to this clump
of bushes, there’s always a bare chance
that he’ll return.”

ITH difficulty, the dogs were led
back to the farmhouse, and once

‘and keep a sharp eye peeled for blood-

more Captain Foster set them at work
following a trail. Again, they sniffed,
and quickly leaped toward the spring.
But they did not halt at the edge of
the spring. They crossed it and then
turned around, heading back toward the
house, In through the back door, they
went, sniffed and ran out again, this
time taking up the trail to the field and
the clump of bushes, where they halted.

“One thing’s sure,” Benton said. “The
murderer came to the back door, walked
to the spring, returned to the house.
hit Mrs. Berry and went out the back
door, into the field as far as those bush-
es. Then, he must have crossed through
the woods, but the rain has destroyed
his trail. I wish I knew why he went
to the spring.”

The officers trudged back to the farm-
house, where Arthut Dinton, clad in hip
boots, long overcoat and a cap, stood
with his shotgun aimed at a frightened
youth, who stood cowering on the porch.

“He was asking too many questions,”
Dinton reported. “Never saw this fellow
before and he admits he don't live
around here. Claims he was hitching a
ride to Atlanta and saw the posse.”

The. youth, wearing a coat sweater
over his shirt, said he was Lawrence
Crayn of Greensboro.

“I’m on my way to Atlanta to try
to get a job,” Crayn explained. “I got
a ride as far as Social Circle. The man
was going to Monroe, so he turned off

route 12 to route 11, and I started look- | 4
ing for another ride. I got a hitch to}

Covington and then began walking.”

Benton was studying the youth. |
“Kind of strange, isn’t it, your going |
from Greensboro to Atlanta in this |

weather and wearing only a sweater?

No coat or windbreaker. You couldn't |
have got rid of your coat because it |
got spotted with paint—or blood— |

could you?”

Crayn._ blanched. “I don’t know what |
you mean. It wasn’t cold when I left:
home and it wasn’t raining. I didn’t |

need any coat.”

“I'm afraid we're going to have to|
interrupt the trip to Atlanta while we !

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check your story,” Benton said, in-
structing an aide to take the youth to
the sheriff's headquarters and start an
investigation, “Be sure you check what
time he left Greensboro,” he directed.
“And remember, Greensboro’s nearly 40

Why Be Skinny?

GAIN WEIGHT

and perhaps Have Those Full . ”
~“ miles from here.
= yeaah patting Admire | Careful inquiry disclosed that James
| By, we!'tet | Berry had, indeed, been in Almon.

awhiel weight help to round oat your curves

| ay Nature intented them to be. Men admire | Moreover, he had been there from about
| Ther epoedite ead tern, maui! women, 8:25 to 8:35 A.M. Therefore, he must
-) mins probably cause many underweight con- have left his home at close to 8 o'clock,

Mittens. You may eat three meals a day. yet

TOR TAS uineral starved. BEATTY |and he could not have -returned earlier
FORM TAKS contain Vitamins A. BL,

1), amt G (H2) plus calcium pantothenate. | than 8:55.

phe herun mm —w hic! 7 he

Vitamin amd mineral asunstement: wr acer | “Of course, we can’t overlook any
oh ” *
Weight that often means ached curves on possible angle, Benton told Captain

for that improved appetite and ackled
your figure.

" “ .
A well develoned, shapely, normal fieure Foster. but Someone walked to the

ank_romance, Tae the ‘Hire fa love | spring and back to the house, then over
aml romance, y th BEATTY FORM-
METHOD is hel vou gain normal weieht, | to the field and through the woods, and
Sarable Teenied aaa tear Aaore bate 18,06 somebody was a stranger. The mur-
FRE E,'" crety order: xpectat | der took place some time after Berry
PROVE the speccrance ot teee Cutuoe {left the house and before he returned.
Ore ' nmACrY yh tod Only $2.00 It must have been committed by ae
meter the oe M-ME ay y $2.00, .
bestbaid if remittance accompanies order. ar C.0.D. plus | body who knew the habits of the couple
sauteed eves amends ie ean vour money. "“** ** |well enough to know that Berry would
SEAUTY AIDS be away. All the neighbors seem to be
89 Flatbush Ave., Dest. 8-ABM, Breoklyn 17, N. Y. | accounted for; no regular churchgoers
were absent this morning, and not one
of them was out of his home except for
of bg? tad tag —— i -
—_ JO.DRE SSES $439 a few moments before leaving for ser
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ER set. Drv cleaned and pressed. Sizes 12
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vices. If only we could find out why
the killer made that trip to the spring.
$1.00 deposit with ‘order, balance €.0.D. | It might help a lot.”
plu: postage. Satisfaction guaranteed of

RECTAL OF rERY Reiected dre, oo. | [ERENTON sucdenly darted toward the
niet _og_tn ihe minute stylee. Oriaine! salves spring. He was out of breath when
Selisene. “Sh sioes, 9 eta ‘pai he got there, but Foster could tell that
a aDen ‘Male Guana on” Caine he was looking for something—some-
Dest. 37-w New York 13. N.Y. [thing specific.

A boiler hung on a hook screwed into
*|a tree; it was one of those old-fashioned
metal vats used for boiling laundry.
Nearby was a washboard, but what Ben-
ton was seeking was not to be found.
He reached into the spring, but in
vain.

Foster simply watched the . sheriff,
but said nothing. He followed Benton
back to the house, where the latter
made a careful search.

At length, Benton spoke. “You know,
Taking Jou miserable. unhapoy? Don't gire wp hove. De | Captain, in these days of modern im-
ero Siretally ‘prepare joo a Registered Sere, provements, we're likely to forget that
ingiiienta,, property aed MilWelly tiered tte | all People don’t enjoy. the same con-
crcommended to relieve and soothe local irritations. | veniences. For example we have wash-

Exveth f xt iT wed pimples. Aids in clearing | . ° P
the “skin uf unelehtls” Blartheade, eavine the shin sot |ing machines, All we need to do is put

FREE“ each order: a highly recommended Diet, the clothes into a compartment, add
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logether with a generous sample of Cover-Up Lotion *:

jdlemish com eater) 8 womder powder base for oily atin. and the machine does the work. But
Comuitte, only 82.58 Mt sents ie beet ait naan ii | out here, Clothes aren’t washed that way.

©.0.D.. $2.35). Full. simple directions included. SATIS- “ 2
FACTION GUARANTEED. or money refwoted. No, Mrs. Berry had to bring a
A. MARCELLUS CO.. Dest. VG-8 washtub of water from the spring. Then
*s. she set it on the stove and put the

Box 144, Evxsex . Besten, Mass.
clothes in to boil. But there’s no fancy,

L
191 Canal St.

f “a automatic gadget to stir the clothes, so
gokow . she had to use a stick of some kind. A
: battling stick, it’s called. It could be

SOKES GAGS ast the end of a broom, or the end of a

were!” These’ fehen. certeene” Se ‘ mop, or, if she was really able to per-
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frente cracks that wilt
wake rome oupeler im ony
roma Oniher your teak tn.

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LARCH CO, Dogt.nd- 420. sem Bt. MY ti

specially manufactured hickory stick
about an inch thick and three feet long.
Such a stick would do a lot of damage
if brought down on a human skull. I
couldn’t find the stick at the spring,

and it’s nowhere in the house. If we
Z 10 for 3” can find a battling stick around here
‘ee we'll find the murder weapon.”
ORIGINAL VALUES UP To $14.00 | He dispatched a group of men to
shel cggalhiet tas Page Eat ‘or {scour the woods in search of such a
$5.98. Sizes 3R iw—5 ft 3.00. As j ; }
sorted salen Sate siens desired. Sent 50e stick, with the caution to be careful
with order balance C.0.D. plus postage. | not to obliterate any possible prints if
MERCHANDISE GUAKANTEED or pur- .
chase price refunded. Hundreds of other thev found it.
eee aches: snd weed clothing With the arrival of technicians from
Atlanta to make plaster casts of foot-
prints, and search for fingerprints, Ben-
ton departed for his office, to get a

for entire family, FREE ILLt STRATED CATALOG.
IDEAL MAIL ORDER CoO., Dest. 8
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IS EPILEPSY INHERITED? | xn te etenion of young Crvn
WHAT CAUSES IT?

209 Thatferd A Breokiys 12. N.Y
meager developments. He recalled that
in October, 1943, Fannie Smith, a De
A booklet containing the opinions of famous | Kalb County spinster, had been found
doctors on this interesting subject che be sent | slain in her home near the Atlanta city
FREE, while they last, to any reader writing |). _ , r : : d
to the Educational Division, 535 Fifth Avey limits. and that the crime still was uf

Dept. VG-8, New York. N.Y solved. In that case, however, robbery

was definitely the motive for murder.

Although many aspects of the Smith
murder were similar to those in the
killing of Ezna Berry—early morning
intrusion, entry through the back door,
muddy footprints and disappearance of
the criminal through a field—Benton
could not help doubting that the two
crimes were the work of the same per-
son, for robbery as a motive for Mrs.
Berry’s bludgeoning seemed definitely
out.

Could Mrs. Berry have been slain
by a maniac? Could she have been mur-
dered while fighting to protect her
home? The torn clothing would indicate
a vidlent struggle. Benton determined
to speed the report on the post mortem.

+
AS soon as he reached his office, he
communicated with Dr. Swann.

“We've just finished the autopsy,” the
coroner reported. “Death was caused by
a fractured skull, and you can depend
on the accuracy of Dr. Mitchell’s esti-
mate of the time the crime was com-
mitted.”

So Benton was right. He knew that
if the word ever got around to the
armed posse that the ‘63-year-old, peace-
loving, God-fearing farm woman had
died struggling against a violent attack,
there would be no holding the posse
back if it caught the killer.

“Sure as shooting, that murderer’s
life wouldn’t be worth a plugged nick-
el,” he declared, warning his aides
against a leak. “Let them think it was
only a surprised robbery.”

He telephoned Major Spence, who
assured him that records of all persons
ever arrested in recent years for violent
offenses would be checked, and an in-
tensive hunt launched for any such
persons at large.

“I'd like a list of every man in the
country, who during the past couple of
years, has been arrested for any sort
of crime,” Benton said. The sheriff then
began. a systematic search of his own
records.

Meanwhile, inquiry showed that young
Crayn had, indeed, left Greensboro that
Sunday morning without a coat or wind-
breaker. He had left his home at 7:45
and could not possibly have been at the
farmhouse during the time the murder
was committed, and Benton released
him with apologies.

From Sumter County, nearly 90 miles
away, came a startling report. Mr. and
Mrs. Starling Duckworth, aged resi-
dents of the county, had been beaten
and robbed by an unidentified man.
Mr. Duckworth was working in a field
near his home when he was attacked
and trussed up. The robber then went
to the house and beat Mrs. Duckworth.

Bloodhounds put on the trail almost
at once followed the man more than
a mile, then lost the track.

The similarity between the Duckworth
tobbery and the Berry murder was
striking. In each case, bloodhounds had
lost the trail. Could the criminal pos-
sibly have been the same? Although
the locales were about 90 miles apart.
the methods were alike, and Sheriff
Benton telephoned Sumter County.
seeking additional details.

The Sumter County robbery had oc-
curred at two o’clock—ample time for
a man to have gone from Covington by
automobile. Had the murderer, making
good his escape from the Berry farm
reached the highway and hitched his
way south, to continue his nefarious
work? Benton dispatched an aide to
Sumter.

Twelve hours had elapsed since the
body of Mrs. Berry was found in her
home, and the slayer had, apparently
covered his tracks sufficiently well to
clude police and the armed posse, which

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Ce OS RI UT TRAE OME — — = er

THE LAW UPHELD. |

JERRY JEFFREYS HUNG FOR THE
MURDER OF TLE MAULDER. |

a ee <

_ His Last Statement Was. ‘that He Was
Resigned—Meets His Fate Stoically
and Says He is Ready to Go— 7
Says a Root Doctor ‘Caused =~

All His Trouble se

The ining of the law was carried

“ out on yesterday and Jerry Jeffrey's

life paid the penalty of murdering
Tip Manlden Jast December. :

JERRY JEFFREYS, ~~
[From a Photograph taken last week.)

The banging took place in the jail
corridor and was strictly private.
', ‘There were not over eight or ten eye

witnesses present inside, though the
jail outside was surrounded with a
big crowd ‘of curious whites and
blacks, mostly blacks. The preacher,
kev. O. A. Thrower, arrived at about
11 o'clock and, after afew questions
to Jerry about his condition, which
he auswered clearly and firmly, stat
ing that be bad made his peace with
God and felt sure of His forgiveness.
the condemned man was brought out
of bis eell and as he knelt on the jail
‘floor Mr. Thrower delivered a short
and earnest, prayerio his behalf. The
doomed man then walked up on the

scaffold without assistance, femark-)
ing that he was ready to go and anx-
fous to get out of bis trouble. As he
etvod on the scaffold, he was asked if
he had anytling to say before dying.
His LYING ETATEMENT.

His acswer was a surprise ood
somewhat of a shock to those present,
showing, as it did, how. deeply ims
bued vegro nature is with foolish

aod, £e0u after, death turned over to

his people, who, ¥li bury ‘ft’ in the
4 opps pario of the county tomorrow.

_ SEETCR OF THE CRIME.

The erime for which Jerry Jeffreys
was hung was the murder of Consta-
ble Tip Maulden, of the Morven dis-
tnet Justice court, on the night of

= December Ist, 1894. The two Jeffreys

pegroes, J erry avd Sherman, were in
& crowd of negroes on. tbe public
road about nine o'clock at night,
when Constable Maulden came np
and inquired if Jerry was in the
crowd, The constable had no war-
rant for Jerry, and only wanted to
getsome information from him about
another negro for whom he was Jook-
ing. "Jerry's reply was to draw his
pistol and shoot Maulden down:
His brother, Sherman, also fired at
Manulten with a Winchester rifle, but
some one knocked up the rifle, and

| hisaim miscarried. Thetwo negroes

escaped, and were not captured uns
til several days later when they were
rundown ina fodder loft on a ne-
groe’s place In Lowndes couuty. They
were brought to Quitman and placed

= |in jailbere. During the Febroary] .

adjoarned term of Brooks Snperior

_|court they weretried and both found

guilty of murder. At thetrial Jerry
made a statement that Mat.jen
had drawna pistol,and was’ trying
to shout him. The evidence brought
out in the trial however proved
this statement to be altogether un-
trae, The result of the trial was tbat
Sherman was sent to the penitentiary |
for life and Jerry to be hung on Fri-
day, April5th, which sentence was
duly carried out today. © ;

These two negroes had been loafing] _
around in the ueighborhood ju which
the crime was comuitted for some |
time. They went heavily armed and
called themselves Frank and Jessie|.
James, swearing that no man should]:
ever arrest them. “They murdered
poor Maulden, not for any provocas
tion, but simply because the epirit of
marder was in their bearts.

County Commissioners Court,
MAR. TERM, 1595.

The following pauper orders were
feened: Win. Grewn, $1.50; Eliza
Dampier, $1.50; Easter Sermons €2.50;
Lucretia E. Renfroe $2.00; Sarab
Lamp, €1.50; John Jackson $2; Lethy
Ann Pitts, $2.50; Mrs. Boatright $1.50;

Mr. Renew §2.00; Buck Holland,}.
$2.50; John Becton, €4.00;} Warren
— enmerstifion. His last worde were | Daniels, £1.50; Melia Edwards £2.00;

———.

ft.

x, : ® | *
7 }ixperiments i}
“here thak'the best cotton fertitizer shoul
“3 to 47 Actual
Any failures to this crop can be trace
in the fertilizers used,
We will gladly send you oxr pamphle

They ase sent free, It will cst you rotting to
dolar, ‘ :

- Ghi EAN EALDV

of E.S. Ja

- Sete ee

rom ay “he
Liquidati«

Co. we ha
Ireceived
WHITE GOOD

which is about
Real Value,

‘Our Store is
| Place. Some o
oe names are as fo

Fine Jacanets, Fr
~ Organdies, Colore
— Stripes: Printed
ted Sattecnss

‘In Fact the Disp
se one of a
Queen Flora and
Would delight to Re
Bright and Dainty

i sibgallag fron

ere

Y sale
of them, and for §
a $2.00 Umbrella.

FANS, Silk Mitts,

°S69T *S TTudy ‘eTsa0ep Suswqytny pesuey fyoeTq Shader fg

“ae
“we A iees 4
oe cea Hs

Sais ti
deere:

ga dare.

toy

te ae tateq

Sate tee ae
, i: i

witnesses present fogide, though the
jail outaide was surrounded with | a
‘big crowd “of curious whites and
. blacks, mostly blacks. The ‘preacher,
_ kev. 0. A. Thrower, arrived at about

_ 11o’clock and, after ‘afew questions

to Jerry about his condition, | which
he auswered clearly and firmly, ‘etat
_ ing that he had made his peace with
Ged and felt sure of His forgiveness,
the condemned man was brought out
of his eell and as he knelt on the jail
floor Mr, Thrower delivered a short
aod earneat,prayerin his behalf. The
doowed man thea walked up on the

» scaffold without assistance, remark-’

- ing that he was ready to go and anx-
fous to get out. of bis trouble. As he
stood on the scaffold, he was ‘asked ‘it
he whad anything to say before dying.
His DYING STATEMENT. i

His ‘answer was & saieslae and
somewhat of a shock to those present,
showing, as it did, how. deeply ims

_,bued negro_ ‘pature is with foolish

‘superstition. His last words were

'“Iwant to say to you men what
. caused all my trouble. A littie while

before I'shot Mr. ‘Maulden I had &
scrap with a young negro up aboye.
We hada fight and I cut him. - He
got mad and said he was going to
kiilme. Hedidn't get a chance to
kill me, and Went and give a Root
Doctor $3.00, and this Root Doctor
got me into all ‘this trouble.
This | Doetor’ ‘worked on me,
and ‘made me kill Mr. Maulden
_to get me into trouble. I didn’t know

what I was doing when I shot Mr

Maulden,” The negro was thorough-
ly in earnest as he uttered these
words. He said that old man Henry
Berrian was the root doctor and a
_ young negro named Joe Hepworth
“ the one who gave “the Hoodoo the
$3.00,

his head, his feet and hands tied and
at 11:24 o’clock Sheriff Conoly sprang
the trap that launched him {nto eter~
nity. At11:46, 22 minutes later, he
Was pronounced dead by Doctors
Lucas, Gaulden and Humphreys, who
were present. ' The execution was
carried through without a break or
unfortunate feature. The drop was
7} feet and examination after he was
cut down showed that his neck was
. brokenin the fall, His death was
evidently painless, only a few convul-
sive quivers following the drop. He
could doubtless have been sefely pro~
nounced dead sooner, but the doctors

Waited until there was no intimation

¢ E
The black cap was then placed o over |

true, Thé result of the trial was that
Sherman was seat to the pen ry
for life and Jerry to be hung tie
day, “April5th, which sentence was
duly carried out today.

These two negroes had been loafing ve

around in the neighborhood in which
the crime ' was ‘committed for some
time. They went heavily arined and
called themselves Frank and Jessie

James, swearing that no man should |
ever arrest them. They murdered | ;

poor Maulden, not tor any provocas |
tion, but simply because the spirit of |
murder was ‘fo their hearts,

County Commissioners Court. ae

ce ny iprelles.

MAR. TERM, 1895...’

! "The ‘following pauper Ae ‘were
issued: -Wm. Green, © $1.50; Eliza

z Dampier, $1. 50; Easter Sermons $2.50;

Lucretia E. Renfroe $2. 00; Sarah
Lamp, $1.50; John Jackson $2; Lethy
Ann Pitts, $2.50; Mrs. Boatright $1.50;
Mr. Renew $2.00; Buck Holland,
$2.50; John, Becton, ’- . $4.00; ‘Warren |
Daniels, $1.50; Melia Edwards $2.00;
Jesse W. »Haddock, ° $1.50; Vina
Lewis, $2. 00; Frank Mobley $1.50; se
Elmira Jones$1.50; ;SallieMobley, $2.00
Tom Gales, $2.50; Rob. Dean, $5. 00;
Berry © Robinson, $1.50; Lucinda
Starling, $1.50; John Lane, $5.09;
Martha Williams, $1.50; Thos.
Palmer, $1.50; Mary E.Renfroe, $2,00;
Mr. and Mrs. J. W. Benton, 85, 00;
Cheney Swain, $1.50; Cage Albritton
and wife, $2.00; Bob See, 2.00; Lizzie
Cliff, 3.00; John Comer, 200; Jane Me-
Leod, 200; Ida Donaldson, 200. -

1. GENERAL ORDEa5,
A. J. Conoly jail account | 77.93

bad 6s as

W. B. Boaase salary co. Judge .
March 1895. _ i! > 80,00
8. M. Smith work on court house 7.75
P, B. Phillips work on hehe
Turnpike - . “8.50
John Tillman Jock oe court

house ‘1.001

G. W. Avrett fitting ‘up ators !
-and for ap{ttoons oe * "8,20

M. F. Jones registrar - 100.00
8. 8. Meadows examining .
Treasurers books» 50.00

8. 8. Rountree service as.comsr. 15.00
J-N.McLean “ “%. * 15.00

R.L. Groover “ % % 15.00

J. VW. Hitch * © + 15.00
M. Brice ete 10.00
Specialty Mfg. Co, vault fix-

tures 475.02

J.J. Hodges and V. P. Hunter, ma-
jority of committee appointed to re-
view and mark out a proposed new
pablic road, leading from D. F. Chap-
mans to Greenfield road made report
that the road would not be of public
utility.

M. F. Jones, Tax Goltectey, made
settlement with the county for tax
collected for 1894. Net ammount
paid Treasurer $3,623.29.

Court adfocrned until éth SN 1

acting diff. co. court ' “2.00

we ot

ON gates

worn ee

BS eps

~ Minds Guc ;

- Queen Pia.
“would delivi: +
Bright and Ji

2 be

UA mk}

Pe them, an

. PANS. Silk i.
oo ai S
Dib our

plete,

“SUMMER +

prees, ¢:

dren ac
Quality «> |
ee
Ns a
‘

}

bead 7
; - f | ive
Schofielas ©,

- Ae ae

The Largest, Best £2

MaNnuFactTuRs- ~
Schoficld’s Pet

ees
The mos st SUTS-— 4,
too aie otk ae
Pacs? Ss ©

ehotield’s So"
5
AY

Schofiela’s Port:

, and St am BE

Infour Ecziae and Boiler Py eo.
work are yen a Rene sho

SEAFTING, POLLET 23s
LTY.

ist

JEFFRIES, Jerry, black, 22, hanged, Quitman, Ga., 4-5-1895,

Thrower, pastor of the Methodist church

parece ae

, sent up an earnest prayer in his behalf. -
| Jeffreys walked upon the scaffgid without

“TBRPRBYS HANGED..

Tip Mauldin's Marder Avenged by tho
> Negras Death,

HE SAYS HE WAS CONJUREO INTO IT

4 Boot Doctor Put « Spell on Him, and
‘ Caused Him To Kill the Con-
atabie.

| Quitman, Ga. April 5—(Special.)—at
11:2 o'clock this morning, the trap was
sprung that launched Jerry Jeffreys into
eternity and avenged the murder of Con- |

stable Tip Mauldin, who was shot down |
by him on the public highway’ last De-

cember. The negro met his fate with won-

' derful nerve and expressed: himself as

having made his peace with God, and being
anzious to get out of his trouble. The

| | JEFF JEFFRIES.
The Negro Who Killed Bailiff Mauldiy |
Last Year. hee

hanging passed off without a hitch’-@r.
unfortunate feature from the time Sheriff
Conoly sprung the trap until the dectérs
Pronounced the murderer dead. “

At about j1 o'clock the Rev. .0O, a

here, arrived and asked Jerry a -few ques-
tions as to his condition. /The negro. speke.
and acted as if he was thoroughly

and bad no dread of the future. The née-

gro was then brought out of his cell and
as he knelt on the jail floor the preacher

assistance and as he stood there, was
asked what he had to say before dying. *
His reply was probably as straight a
statement as was ever uttered on the gal-
lows:

“I want to tell you men,” he said, “what
brought this trouble on me. A little while
before I shot Mr. Mauldin, I had a fuss
with a young negro. We had a fight and
I cut him. He got mad and said he was
going to kill me. He didn’t get a chance
to kill me and went and paid a root doc-
tor $3 to put me in trouble, and this root
doctor made me shoot Mr. Mauldin. This
is the whole truth, men. This root doctor
worked on me.and got me into trouble by
making me shoot Dr. Mauldin.’

The negro seemed thoroughly in earnest
while he was talking and there is no reas-

on to doubt but he died believing the |

hoodoo doctor was the cause of all his
troubles. The negro's death seemed to be
painless. The drep was 74, feet and an ex-
amination after he was cut down showed
his neck to be broken. The drop fell at
11:24 o’clock, and at 11:46 Drs. Lucas,
Gaulden and Humphreys, who were pres-
ent nronounced him dead.

of Georgia ever produced. Like the Jef- @is and went to
| fries negroes, he was worthless, fearless et Mr. Isom, who was al

‘ whom ‘he had some conversation. .In reach.
“ten or twelve miles through the same coun-

Jeffreys was a young negro about
twenty-two years old. There was a big
crowd of negroes in town, but all were
quiet and orderly.

The Story of the Crime.

Jeffries was one of two brothers who
lived in the turpentine flelds of Brooks
county, and was reputed to be one of the
most lawless and desperate characters in
that section of the country. He and his
brother rarely ever worked, but were
known among the negroes of that section
as sharpers. They preyed upon the honest
hard-working negro, and when pay day
came around, or one of them was seen with
a dollar, he fell a victim to the Jeffries
boys and their associutes at the crap-game

or cards.
One of the most intimate associates of Pike Millis iIsem. ‘

the Jeffriees negroes was Wave Pike, an- “Den’t run over me, Pike,’ called out)
other worthless character, a character at Mr. 2som, recognising the negro. ;
desperate and dangerous as the swamps - With an oath, Pike pulled « pistol from:
He fred
under his
and elways ready for a row. During the heree’a feet, and the ball went. straight
latter part of last year Bailiff Mauldin, one te the. mark, Mr. Isom dropping dead in
of the best known and most popular men fis ¢racks.
of Brooks county, was given a warrant J¢-ween't Jeng -
calling for the arrest of a negro charged @ssaa@ination was
with stealing a pig. The bailiff sought the gemed @odles of. men. were ecouring

| megro at one of the turpentine mills, where,

he was in the habit of loafing, and at the," ~ ! oR it
mill came in contact with quite a hutnter Santry tor Shere 73 gr te ‘OP
of pegroes who were not at work. In the aaeagy gs
crowd there was an abundance of liquor : ay ewere
ané when Bailiff Mauldin asked where the fou ee ae end for three days
negro he wanted was, one of the Jeffriesoe section The @ county was
negroes replied that he could not get hime oo governor took cognizance
One of the Jeffries negroes was armed with oe eng nin ; Se ea @ company
a repeating rifie, and the other had “pd the inf “th t :
pistol. The one carrying the rifle leveledpag tee ene E genlypore ave of the county
it at the officer and told him to leave. an taken = the matter and secured
Bailiff Mauldin made some reply to the gpm :
demand, and asked the negroes not to in soa search g tend was most thorough
terfere with him in the discharge of Mit There was for idle ‘Was never captured
Guties. Jeffries pointed the gun right #t).o) Anaye e oe - 4 ostnion prevalent
the officer and told him if he did not go... of tthe 90 n the woods by
there would be a dead man in that vicimitypoon so, ‘there but to ig, Be Bac
soon. Beeing that it was useless to attempt pg sa evidence of the
to effect the capture of the man he wanted, 54. the cg ings yleaepoed
bens bailiff turned to ride away, the negroes f Mauldin by Jeffries, several liv s
yelling at him derisively. He had gone dest ‘in - “6 esiane e
but a few steps when Jeffries, egged. on oo h y, and yesterday
by the shouts of hin companions, pulled the 6 :oartial an ee hanging was
trigger, and the bailiff dropped dead. ing nig Guisies onanee: of the murders he
Swearing Revenge. oy a
The killing was a cold-blooded murder.
and when it reached the ears of the ped-
ple of Quitman there was great indignation,
an@ every attempt was made to capture
the Jeffries boys, but the two negroes man-
eged to keep out of the way of the officers
successfully until a short time ‘defore
Christmas, when they were captured by
Mr. Isom, a long-time friepd of the bailiff
and were carried to Quitman and jailed.
Both negroes were popular with their race, ~
and when it became known that the Jeffries
had been captured by Mr. Jeom, who lived
in that section of the county, af of their
hatred turned toward him, and his itfe
was threatened more than once. But Mr.)

\
Isom paid no attention to the threats. ;
‘Wave Pike, the close friend of the Jef. 48
remembered what be had mate

fries, however, ;
sworn to do—get even with Isom—and two
Gays before Christmas he kept his promise.
On that day he was in Quitman, and while

there came in contact with Mr, Isom,
ing hia home, Mr. Isom had ‘to travel about

try over the same roed Pike traveled. He
reached his home about dark, and, after

Pree we Pee eee S

ORTER
174 SOUTH EASTERN REP
238 Ga.

i cht
to Atlanta he said he thoug
ar the scene. it. On the way
st er arene Eee a short he could raise $150. He said that would be
The condition

4 three
liars apiece for us all [there were
here the body was fifty-do
distance from the place W

Pp ki ] a
found plainl show that stru le had oc- besides ames 10 the auto ob
y a £E per sons J 1 utom ile n
ed a

d The length made b we wo ki i 0 made
cur uld take care of him for that. I

re of the tracks y.

the Reruiiant at this point indicated that she him hush. Barber nods my son-in-law and
had been running. myse ere in the car.

later James was apprehended —The clothing and shoes gpegehoae za she
perenogy t ninety miles from the con- were positively identified as ase en : 3
at a point shes my itted that he had escaped James on the morning of September :
vied oe = gue « in Banks county. He There was evidence that tracks ‘leading des
Sega, sae eee pitt and placed in jail. and from the wash place where Se
= = = ‘ ns testified to the follow- at work towards the scene of the —
The jailer at een James while he waS were made by a person wearing the te
mn ee cas pte jumped him several which were found. On the — —
mates im. He said undertook to put on one 0 =
wiles from _ are Nace lg ie ek pains but stated “I can’t get it on.” ir
er years he had done in Banks was evidence that the shoes were found ome .
peloton pence! him leave; then he said the hot sun after having been ngs be pon nah
anty, . "hi ight, up; the strings with which
beges . os ers eae iat iets on pt sep the young woman were tied hpi
“a4 ~—o heat him that was a pretty torn from a flour sack ppebees a da
” i said prand “White Silk”; that this br
ace tpieeag eto ado apap Wie en shail at the convict camp, and wed tt
ogre oa ati pets! when the sheriff [of yicts used the empty sacks for one
daripani wis coming for bim; said he ¢lothes’; and that a ~~ s . ‘oot
” ion; he James at the time he
ould ave 1k tou fr roeten, De worn bees goon ofthe wardens
See temiootead I said I would sug- the chain gang in Banks county.
gest i to the sheriff. I didn’t tell the _—— James was tried November 1, 1933, “ -
what he was charged with, and he didn’t tell indictment charging him with the — er #
me anything but that the negroes ran ase the young woman. A motion forac pein
off when they saw in the papers what he had nue was overruled. The evidence

. y he -
done in Banks County. He just said that ste was substantially as stated above. —

rae af : j . He made
they would have to prove it i a 4 accused did oe — ee ak tes acu
i make any con ment in whic

phe ee county testified that, while san seataal his flight as follows: “AS os
8 os y in
being brought from Athens to Atlanta, oe as harming anybody I don’t know a ore
“made a statement to me freely and volun ou the world about that all, agua I'd be
ily. He told me, ‘I'm coming clean, “— vag Made the fourteenth of a - Re
coming clean.’ I asked him where he as, made 17 years for trouble I g0 - t didn't
when this woman went up to the store. wae didn’t have nobody to get me eae te
gaid she was in a buggy with Mr, Payne ‘whe ee BO Way to get out, end I wee frye

lives with his old maid sister. >. am free.”

: id she come back . he
pesmi i eat a caught himself ‘The bill of exceptions assigns error 0” :
first; then he s

, me overruling of the motion to change the —
<a — 2 sata hap te arian ok and of a motion for = ed sina me he
ree! ; -field the motion to change the ve a
standing there at the head of the corn fiel ee pony
pseu pe nage : age ~ forts ae ae a him to obtain an unbiased ant
ate er bt on par he stopped and impartial jury in Banks county, ane Laon
a aa 2 about it’ I if he should be acquitted, there was pro yern
Ee er i ae tracks where danger of lynching or other violence. oer
moog hear: i 3 pe phos did them gro- motion an attorney for the oteuiee’ eae
acsigaiee yo she she was? and he in his place that he had conferred pisnie pet
peeapteay to reed a thems over there. number of citizens in Banks county ; sme
mga poet wee asn’t guilty; he the feeling against the defendant -. vid
Soo rd : boss ;’ be didn’t high; that it was necessary to prote oat
a Te ee parc aan iting to do with defendant by baving the militia on usar
say he or

“ree, Asst. Attys. Gen., for the State.

“a In refusing to grant a change of venue.
HL

TAYLOR v. CLEGHORN BROTHERS Ga, 239
174 8.E,

the trial; that in his opinion, if the defend-
ant was acquitted, he would be in grave dan- 3. Only one of the special grounds is ap
ger of violence; and that, on account of prej- proved by the trial judge, and all are mere
udice aroused by the facts surrounding the elaborations of the general grounds, and noth-
homicide, he did not believe that the defend- jing contained in any of them requires the
ant could obtain a fair trial in Banks county grant of a new trial.

at this time. The state traversed the motion, f :

and the sheriff of the county and a county = pagar Git pet are te setae te
commissioner testified that the defendant ee ee oe

could obtain a fair trial. The sheriff testi- Judgment affirmed.

fied: “In the event he should be acquitted, we | All the Justices concur.

have 65 men here to protect him. I think it
is necessary to have the men here to protect
him, but not from the jury. I believe the jury
will give him a fair trial. There was a good
deal of talk about lynching him back before
we caught him, I haven’t heard anything of
it since. I had the militia here today because

I thought it was necessary, but not to con-
trol the jury.”

[2] 2. The evidence authorized the verdict.

TAYLOR v. CLEGHORN BROTHERS.

No. 10110.
The state contends that there is not a prop-

et exception to the overruling of fhe motion
to change the venue; that exception pen-
dente lite or direct bill of exceptions was nec- Syllabus by Editorial Staff.
essary; but that, in any event, the overruling

of the motion was correct. Only the general Appeal and erver ©=71 (3). . ‘

. fj Interlocutory order merely dissolving, re-
grounds of the motion for new trial are under voking, or setting aside temporary restrain-
consideration. The bill of exceptions specifies ing order cannot be reviewed by writ of er-
“the original motion for a new trial, with the ror.
entry of acknowledgment of service thereon,
entry of filing, and all other entries, including E
the order of the judge setting the hearing on Error from Superior Court, Carroll Coun-
the motion for a new trial at Commerce, ty; L. B. Wyatt, Judge.

Georgia.” The original motion in the record Proceeding between J. C. Taylor and Cleg-
contains only the grounds that the verdict horn Brothers. To review a decision, the
's contrary to and without evidence to sup- first-named party brings error.
AEN it. The brief of the plaintiff in error
nsists upon certain grounds of amendment z “a Pe

to the motion for piece but the bill of ee oe Oe
etceptions does not specify such amendment Boykin & Boykin and Leon Hood, all of
&s material to a consideration of the case, and Carrollton, for plaintiff in error.
it is not incorporated in the record.

Supreme Court of Georgia,
April 12, 1934.

——_—_>——

Writ of error dismissed.

J. W. Cole and Willis Smith, both of Car-
R. C. Scott and Sam iKimszey, beth of Cor- rollton, for defendant in error.
cella, for plaintiff in error.

Syllabus Opinion by the Court.
Clifford Pratt, Sol. Gen., of Winder, J. B.

Iogan and Jones Griffin, both of Homer, GILBERT, Justice.

RJ, Clower, of Atlanta, and M. J. Yeomans, “There is no provision of law for review-
Atty, Gen., and B. D. Murphy and Jno. T, ing by writ of error an interlocutory order
merely dissolving, revoking, or setting aside
a temporary restraining order.” Barrett v.
American Securities Co., 173 Ga. 57, 159 S.
BH. 866; Swinson vy. Dublin, 178 Ga. 323,
173 S. B. 93.

'M] 1. The judge did not abuse his discre. Writ of error dismissed.

Syllabus Opinion by the Court.
GILBERT, Justice,

All the Justices concur.

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

escent. GCF t-

752 Ga.

defendant, Asa Johnson, “about this time
anywhere around there. .* # eo I did
not see him that night.”

The statement at the trial, by the defend-
ant H. T. Johnson, was as follows: “We
got started to the church, and this girl was
standing out there, and this boy and me, and
this here boy walked up there, and I said,
‘Come here,’ and he said, ‘You want me to
come?’ and I told him, ‘No, you ain’t no
girl,’ and he said, ‘T’ll come anyhow,’ and
he caught this girl, and we argued at one
another, and I told him I would slap the
p- out of him when he told me he would do
something to me, and he said, ‘Wait, and
I will get a gun and come back,’ and he
went out to his car and went around the
schoolhouse, and we was out there to our-
selves then, me and them girls, and he
come right back to me and says, ‘Well, Iam
back, and he started out with the pistol,
and I shot him. I didn’t shoot to kill him;
I shot him to keep him from killing me.”

The statement by the defendant Asa
Johnson was: “Well, my business up
there was going to class, trying to help
Mr. Mack with the class, and he was bring-
ing the boys from Locust Grove over there.
I did’ not know the row was started. I
was on the outside trying to see about some
gas, as I had run out of gas, and I had
seen him about some gas, and he told me
‘No,’ and I went out to see how much was
in my automobile, and I was back around
next to the car, and I heard the shot made,
and I went out there where the car was,
and some one said it was my brother, and
T didn’t know whether it was him that done
the shooting, and I went hunting him, and
they said he was the one who done the
shooting.”

A summary of essential statements in
the affidavits of alleged newly discovered
evidence, which were supported by other
affidavits as to associates and good
character of the witnesses, is as follows:
Arvin Pullen swore that he was in front
of the McDonough colored schoolhouse at
the time of the homicide, and “saw fire
from the pistol, but did not see the shoot-
ing;’” and that Henry Lowe, a witness
who testified for the State at the trial,
“was not up at the schoolhouse when the
shooting took place,” but when the wit-
ness passed Lowe’s house down the road,
Lowe “came out to the road from his back-
yard, and asked what had happened up
there, deponent said, ‘They tell me that
the Solomon boy got shot,’ and Henry

27 SOUTH EASTERN R

EPORTER, 2d SERIES

Lowe said, ‘Oh, that’s mighty bad, I sure
do hate that,’” and “then went on up to-
ward the school-house.’ Ross Thompson
and Oscar Wynn made similar affidavits.

Ezra N. Downer, boy scout field execu-
tive for colored youth, stationed at Griffin,
made affidavit that he saw the shooting
while he sat in an automobile, and saw H.
T. Johnson fire a pistol, “but no one was
holding [the deceased] at all when he was
shot;”. and that testimony given at the
trial as to two persons holding the de-
ceased was untrue,

The affidavit of Clarence Davis also

stated that at the time of the shot Asa

Johnson was not holding the deceased or
“doing anything” to him; although this
witness said that, shortly before the shot,
“Theotis Walker came up and caught hold
of [the deceased] and wanted to know
what he was fussing about, but Walker
had already turned [the deceased] aloose
when H. T. Johnson came back, and did
not have hold of him at all, and nobody
had hold of [him] when [H. T.] fired the
pistol.”

In an affidavit by John Brantley, he
stated that “nobody was holding [the de-
ceascd] when H. T. shot him,” and that
although “Asa Johnson was there er aa
he did not have hold of [the deceased] at
all.’ He made this further statement:
“Theotis Walker walked up and asked
‘What was [the deceased] talking or
mouthing about?’ and asked ‘What was the
matter with him?’ and then H. T. come
up where [the deceased] was, and while he
was talking [the deceased run his hand in
his pocket, and H. T. shot him. ;;* -* *
[He] ran his hand in his pocket, and when
he did H. T. shot him.”

In a counter-showing by the State,
Henry Lowe made an affidavit in explana-
tion of statements in the preceding af-
fidavits, attempting to impeach his testi-
mony at the trial and stated as to why he
was at his home when affiants passed there
after the shooting. He swore that when
the shooting occurred he was standing by
an automobile with his sister and his
brother-in-law; that she became excited,
and they drove away with him; and that
the reason he had asked other affiants as
to who was shot was that he “was not
positive who it was that had got shot,”
although “he. had seen and heard the

‘trouble.’ He again swore to the state-

ments he had made at the trial.

JOHNSON y. STATE Ga. 753
27 S.E.2d 749 3

Ruby Dabney and John Dabney, Lowe’s
sister and brother-in-law, made affidavits
corroborating him as to his presence at
the shooting, and as to why he had left and
was seen at his home.

The defendants and their attorneys
who represented them in their motion for
new trial and before this court, make one
affidavit, each making oath that “he did not
know of the evidence * * * as set out
in the amended motion for new trial, be-
fore and prior to the trial of said case,
* * * and that such evidence could not
have been discovered by the exercise of
ordinary diligence.” No facts relating to
such diligence were stated. One of the two
counsel also made oath, and it was so
stipulated, that he was not employed and
did not participate in the case until after
the trial and the filing of the original mo-
tion for new trial by the attorney who
alone represented the defendants at the
trial.

The record shows that the defendants
were indicted on March 22, 1943, and tried
on March 24; that the homicide occurred
on May 22, 1942, and a commitment trial
was had in June, 1942, following which
Asa Johnson was released, and H. T. John-
son was released on bond.

R. O. Jackson and E. L. Reagan, both
of McDonough, for plaintiff in error.

Frank B. Willingham, Sol. Gen., of
Forsyth, T. Grady Head, Atty. Gen., and
Maud Saunders, of Atlanta, for defend-
ant in error.

Syllabus Opinioa by the Court.

JENKINS, Presiding Justice.

[1] 1. “A new trial may be granted in
all cases when any material evidence, not
merely cumulative or impeaching in its
character, but relating to new and material
facts, shall be discovered by the applicant
after the rendition of a verdict against
him.” Code, § 70-204. Under these pro-
visions, newly discovered evidence that is
merely impeaching in nature will not au-
thorize a new trial, even though such evi-
dence may relate to the only testimony on
some vital point. Arwood v. State, 59 Ga.
391; Levining v. State, 13 Ga. 513; More-
land v. State, 134 Ga. 268(2), 67 S.E. 804;
Herndon v. State, 75 Ga. 887; Wright v.
State, 34 Ga. 110(2); Jackson v. State,
93 Ga. 190, 18 S.E. 401; Key v. State, 21
Ga.App. 795, 95 S.E. 269.

27 S.E.2d—A8

[2,3] “Cumulative evidence” is loosely
defined by the Code, § 38-102, as “that
which is additional to other already ob-
tained.” But the true test as to whether
evidence is cumulative depends not only on
whether it tends to establish the same fact,
but it may depend on whether the new evi-
dence is of the same or different grade. It
is only when newly discovered evidence
either relates to a particular matcrial issue
concerning which no witness has pre-
viously testified, or is of a higher and dif-
ferent grade from that previously had on
the same material point, that it will ordi-
narily be taken outside the definition of
cumulative evidence, and afford basis for
a new trial. Brinson v. Faircloth, 82 Ga.
185, 187, 7 S.E. 923; Moore v. Ulm, 34
Ga. 565, 571; McKinnon v. Henderson,
145 Ga. 373(3), 374, 89 S.E. 415; Malone
vy. State, 49 Ga. 210(15), 220; Georgia 5.
& F. Ry. Co. v. Zarks, 108 Ga. 800(2), 34
S.E. 127; Fellows v. State, 114 Ga. Zan}
237, 39 S.E. 885; Thomas v. State, 52 Ga.
509, 514; Dale v. State, 88 Ga. 552;001;
15 S.E. 287; Blount v. King, 51 Ga.App. 4
(2), 179 S.E. 198; 39 Am.Jur. 178, 179
($§ 173, 174), and cit.; 46 C. J. 271-273
(§§ 239-241). But, as an exception to this
rule, it is recognized that where the new
evidence, though it be of the same or even
inferior grade, tends not merely to
strengthen the correctness of the conten-
tion on the particular material issue pre-
viously sought to be established, but such
new proved fact or circumstance, if be-
lieved, would in and of itself establish or
disprove the controlling point in contro-
versy, or would establish or disprove it by
supplying a link or gap missing in the pre-
vious testimony, it will afford basis for a
new trial. Cooper v. State, 91 Ga. 362(2),
366, 18 S.E. 303; Saylors v. State, 9 Ga.
App. 227(2), 229, 70 S.E. 975; Hines v.
Commonwealth, 136 Va. 728, 117 S.E. 843,
35 A.L.R. 431; Myers v. Brownell, 2
Aikens, Vt. 407, 16 Am.Dec. 729.

[4,5] 3. All of the alleged newly dis-
covered evidence was plainly cither cumu-
Jative of the defendant's previous testi-
mony or impeaching of the State’s testi-
mony, except new evidence by one affiant
that, just before this defendant shot, the
deceased “ran his hand in his pocket.”
This related to a fact as to which no wit-
ness testified at the trial, and the defend-
ant in his statement to the jury said, “he
started out with the pistol and I shot him,”

ene BS

ee, Oe Lt

and “I shot him to keep him from killing

me.” :

(a) However, even though it be as-
sumed that such newly discovered evidence
related to a material fact and was not
merely cumulative or impeaching in
character, the defendant in his motion for
new trial must show not merely that
neither he nor his attorney knew of such
evidence at the time of the trial, but must
also show by facts the exercise of due dili-
gence on the part of both himself and his
attorney, under which the new evidence
was not and could not have been discover-
ed. A recital, as in this case, that the new
evidence was unknown to the defendant or
his counsel before and at the time of the
trial, and “could not have been discovered
by the exercise of ordinary diligence,” is a
“mere opinion on their part, and [gives]
no facts by which the court could judge of
whether they had used due diligence or not,
and whether the evidence could have been
discovered [before] by such use.” Taylor
v. State, 132 Ga. 235(3) 237, 63 S.E. 1116,
1117; Patterson v. Collier, 77 Ga. 292(3),
296, 3 S.E. 119; Wheeler v. Salinger, 33
Ga.App. 300(9), 125 S.E. 888, and cit.;
Tyre v. State, 35 Ga.App. 579, 134 S.E,
178; Holder v. Farmers’ Exch. Bank, 30
Ga.App. 400(6), 118 S.E. 467; Schaefer
v. Schaefer, 46 Ga.App. 789, 790, 169 S.E.
256; Trammell v. Shirley, 38 Ga.App. 710,
727, 145 S.E. 486; Baggett v. State, 42
Ga.App. 389, 390, 156 S.E. 276; Allison
v. Garber, 50 Ga.App. 333, 336, 178 S.E.
158. Especially is there no abuse of dis-
cretion, where, as in the instant case, the
homicide occurred in the presence of a
crowd, and several months elapsed be-
fore the trial, during which the defendant
was at liberty under bond, and where there
was no explanation or showing why the
names and testimony of the new witnesses
could not have been ascertained through
other bystanders who testified at the trial.
See Roach v. State, 63 Ga. 362, 365;
Hutchins v. State, 70 Ga. 724(2). From
the foregoing rulings, the court did not
err in refusing a new trial on the ground
of newly discovered evidence.

[6,7] (b) Moreover, in addition to the
preceding requirements, newly. discovered
evidence must be such as would probably
cause a different verdict to be returned,
if introduced at another trial. Mallory v.
State, 56 Ga. 545(2); Cooper v. State, 91
Ga. 362(2), 366, 18 S.E. 303; Burge v.
State, 133 Ga. 431(2), 66 S.E. 243. It can-

27 SOUTH EASTERN REPORTER, 2d SERIES

not be said that the only new testimony not
of merely cumulative or impeaching
character, by one witness that the déccased
merely “ran his hand in his pocket” before
he was shot, would probably cause a ver-
dict of acquittal, in view of the dying
declaration of the deceased and all the
other testimony at the trial, not only that
he was unarmed, but that he had not made
any menacing gesture before the fatal shot.
For that additional reason, the court did
not abuse his discretion in refusing a new
trial on this ground.

[8] 5. On the only remaining grounds,
which are merely general, the evidence
amply authorized the verdict.

Judgment affirmed.
All the Justices concur,

“nme

JOHNSON v. STATE.
No. 14674,

Supreme Court of Georgia.
Noy. 9, 1943.

{. Criminal law €=942(1)

Newly discovered merely impeaching
evidence will not authorize new trial after
conviction of crime, though such evidence

relates to only testimony on some vital
point. Code, § 70-204.

2. Criminal law €=941(2)

Ordinarily, newly discovered evidence
will be taken outside definition of “cumula-
tive evidence” and afford basis for new
trial only when it relates to particular
material issue concerning which no witness
has previously testified or is of higher and
different grade than previous evidence on
same material point. Code, §§ 38-102, 70-
204.

See Words and Phrases, Permanent

Edition, for all other definitions of
“Cumulative Evidence”.

3. Criminal law €=945(2)
Newly discovered evidence of same
grade as, or even grade inferior to that

JOHNSON vy. STATE Ga.

“I

ol
ot

27 8.B.2d 754

of, previous evidence on same material
point, but tending, not merely to strengthen
correctness of defendant’s contention on
particular material issue, but to prove fact
or circumstance establishing or disproving
controlling point in controversy or supply-
ing link or gap missing in previous testi-
mony, affords basis for new trial’ after
conviction of crime. Code §§ 38-102, 70-
204.

4. Criminal law C=954(1)

In motion for new trial on ground of
newly discovered evidence, defendant must
show, not merely that neither he nor his
attorney knew of such evidence at time of
trial, but facts showing exercise of due
diligence by them to discover evidence, and.
recital that new evidence was unknown to
them before and at time of trial and could
not have been discovered by exercise of or-
dinary diligence is insufficient as mere opin-
ion and stating no facts. Code, § 70-204.

5. Homicide €=319

After conviction of murder, court prop-
erly refused defendant a new trial on
ground of newly discovered evidence that
deceased ran his hand in his pocket just
before he was shot by defendant, in ab-
sence of showing that defendant and his
attorney exercised due diligence to dis-
cover such evidence before or during trial
or any explanation or showing of why
names and testimony of new witnesses,
who were in crowd present at time and
place of homicide, could not have been as-
certained through other. bystanders before
trial. Code, § 70-204.

6. Criminal law €=945(1)

Newly discovered evidence, to entitle
defendant to new trial after conviction of
crime, must be such as would probably
cause return of different verdict on an-
other trial. Code, § 70-204.

7. Homicide 319

After conviction of murder, court did
not abuse his discretion in refusing defend-
ant a new trial on ground of newly dis-
covered evidence that deceased ran_ his
hand in his pocket just before he was shot
by defendant, as such evidence would not
probably have caused verdict of acquittal,
in view of deceased’s dying declaration
and other testimony at trial that he was
unarmed and made no menacing gesture
before fatal shot. Code, § 70-204.

8. Homicide ©=250
Evidence held sufficient to authorize
conviction of murder.

—

Error from Superior Court, Ilenry
County; G. Ogden Persons, Judge.

Asa Johnson was convicted of murder,
and he brings error.

Affirmed.

K. O. Jackson and E. L. Reagan, both of
McDonough, for plaintiff in error.

Frank B. Willingham, Sol. Gen., of
Forsyth, T. Grady Head, Atty. Gen., and
Maud Saunders, of Atlanta, for defend-
ant in error.

Syllabus Opinion by the Court.

GRICE, Justice.

[1-8] The record in the instant case is
identical with that in Johnson v. State,
Ga.Sup., 27 S.E.2d 749. Both plaintiffs
in error were tricd together; and the evi-
dence being the same, and the grounds of
their respective motions for new trial be-
ing the same, the rulings in one case neces-
sarily control the other.

Judgment affirmed.

All the Justices concur,

A mee

JOHNSON, James, black, elec. Ga. (Fulton) 11-13-1926

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THIS IS TO CERTIFY THAT THE ABOVE IS A TRUE }@PRODJCTION OF THE ORIGINAL
RECORD ON FILE WITH VITAL RECORDS SERVICE, C:ORGI\ DEPARTMENT OF HUMAN
RESOURCES. THIS CERTIFIED COPY IS ISSUED UNDE’ THi AUTHORITY OF CHAPTER

31-10, VITAL RECORDS, CODE OF GEORGIA.

DATE QCT O 1 991 atu STA"E RE ISTRAR & CUSTODIAN
DIRCTOR VITAL RECORDS SERVICF

(VOID WITHOUT IMPRESSED SEAL OR IF ALTERED OR COPIED)

OP /B4A/FL
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him, swinging away with both hands.
Paul staggered up against the wall be-
fore the force of this sudden onslaught.
Before he could recover, Curly swung
a roundhouse right and knocked him to
the floor. Then he stood over him kick-
ing Paul in the ribs. I sprang out of
my chair and uttered a scream.
“Curly,” I said, “are you crazy?
ro" kill him, For heaven’s sake lay
° Pad
“T ought to kill him,” yelled Curly.
But he let me lead him away. ;
Paul got up, wiping the blood from
his face. Curly glared at him.

“Look, rat, maybe pa are telling the
truth but I doubt it. 1 want you to bring
me a check from this dame first thing”

tomorrow morning. If you don’t you'll

wake up in hell to find a bullet in your
head.”

Paul’s face was white, I knew that
Curly was a tough guy and doubtless
Paul knew it even better than I did.

“You'll get the check,” he said.
“You'll find out that I wasn’t crossing
you.”

AUL was,as good as his word. He

came over to the medium joint the
next day and handed Curly a check for
twenty thousand dollars made out to the
Federated Security Corporation, That
was a phony name-under which Curly
kept a bank account.

“You see,” said Paul, “I was level-
ling all the time.”

I was relieved to see that he had been.

“Well, forget it,” I told both of them.
“Write it down as a drunken brawl and
shake hands.”

“They did so and Paul left. After he
a gone Curly paced the floor thought-
ully. -

“Check or no check,” he said slowly,
“I still think there’s something screwy
about this. Why didn’t she kick in
sooner. It’s funny she did it, only after
I’d threatened Paul.” at

I couldn’t think of any answer to that,
either. I kept my mouth shut not want-
ing to start any more trouble.

Curly jammed on his hat. “I’m going
down to her bank and get this check

P \
you saw Salem hurrying down the path.”
‘ Re Sheriff. Anything I can do to
elp.”

s the men passed the bedroom door,
Neely said to Berry, still sitting on the
edge of the bed, “Back in a few minutes,
Jim. Sheriff wants me to go run a little
errand with him.” —

Berry looked up. He nodded, but said
nothing.

actly fifteen minutes to reach.the pasture
Neely had told him about. . Benton

uiries from so-called “hopeless” cases especially invited.
UNCON, 342-L State Life Bidg., Indianepelis 4, Ind.
92

clocked it. The time element might

At took Sheriff Benton and Neely ex-~

certified before I deposit it, Things
don’t look quite kosher. to me.”

He went out. I bathed and dressed
and read a book. I had nothing to do
until my first appointment at half past
two in the afternoon.

It was about one o’clock when the
doorbell rang.- I opened it to find two
thickset men on the threshold. One of
them said, “Madame Dolores?”

“Ves,”

The other man laughed. He held out
his hand and showed a police shield.
“Come, along, baby,” he said. “It’s all
over now.”

“What’s over ?”

“The racket. The boys are down at

. headquarters now spilling their guts as

fast as they can get, their breath,”

I was aware of a sudden empty sensa-
tion in the pit of my stomach.

“What boys ?”

“Your pals, Paul and Curly. Get your
coat, sister. I’ll take you down and
show you.”

He showed me, all right.

It seemed that Paul had planned to

_ elope with Carmen that night. But he

had no mind to split any of the take with
us. In order to stall Curly from doing
anything until he was well: out of the
way, Paul had stolen one of Carmen’s
checks and forged her name to it.
When Curly had presented it at the
bank for certification, he had been ques-
tioned. Not having any of the right
answers he was held. In a rage he had
told the entire story, implicating Paul.
After Paul had been picked up he"had
laid all the blame on Curly and me, It
was the old, old tale of thieves falling out.
Every dime I had saved out of the
racket went-to the bondsmen and law-
yers. And even at that it didn’t do me
much good. I was sent to the women’s
prison on an indeterminate sentence,
while. Curly and Paul, who were no
novitiates to prison life drew stiff ten
year terms,
The only person who got any good out

of the deal was Carmen. She got rid of .

Paul who would have led her a miser-
able life. She saved her money and I’m
willing to bet that today she is as sceptical
of spiritualism as Albert Einstein.

Swamplands

[Continued from page 57]

mean a lot in this case. The farmers, all
gathered about in the front: yard still
waiting for some word from the sheriff,
watched suspiciously as “the law” and
Neely left the Berry home. But none of
them attempted to follow the two men.

Neely took Benton to as near the spot
where he had seen Salem as he could
remember, Then he pointed to an open-
ing in the woods about two hundred
yards away, said that was where Salem
had been walking when he had seen him.

Benton nodded and started for the
spot, When he reached the place, he

saw the
nothing
of foot:
ground.
of the B
in the op
Bento:
lead ?”
“To A
“It’s a
around h
Bentor
tracks ck
the track
man, B
piece of
of the fc
Started fc
tion of th
Only t!
Bob Sale:
pasture, t
into the ;
Swamp. T
for appro
then the t:
trail and
to the left.

ENTC
The
as if to $a
The She
the woods
tracks, W
footprints l
into the o;
about fifty )
After that,”
other track
had come ti
derer of the
One farm:
- Neely almo:
from the wo
sheriff’s side
“My name
shifted his d
his right ar:
friend of Be
“Not yet,”
Another n
He, too, was
hard lines of
not here to pl.
but Sills ‘mo:
nod of his |}
Cordell, He
in any way w
hunch some n
to get him bef
of our women
Benton nod
Sills went
guns—all of v
this swamp f;
You give us t
like a blanket.
“Thank you
can help best r
here in the ya:
Pick up any c
left here. B
worry.”
Sills nodded
Sheriff,”
Benton. told
the Berry hom:

ings

assed
o do
past

1 the
{| two
ne of

Jd out
shield.
(t’s all

ywn at
ruts as
”

sensa-

ret your
wn and

nned to
But he
ake with
m doing
t of the
Zarmen’s
it.
it at the
een ques-
the right
re he had
ing Paul.
up he*had
id me, It
alling out.
wut of the
and law-
in’t do me
‘e women’s
sentence, ~
) were no
w stiff ten

ny good out
e got rid of -
er a miser-
ney and I’m
sas sceptical
istein.

ie farmers, all
mt yard still
m the sheriff,
the law” and
But none of
the two men.
; near the spot
n as he could
-ed to an open-
two hundred
3 where Salem
2 had seen him.
tarted for the
| the place, he

saw the trail was just a foot trail and
nothing more. There were only two sets
of footprints visible in the muddy
ground. One set went in the direction
of the Berry home. The other set went
in the opposite direction.

Benton said, “Where does this trail
lead ?”

“To .Almon,” Neely quickly replied.
“It’s a shortcut for people who live
around here.”

Benton knelt down and examined the
tracks closely. It was then that he saw
the tracks had been made by the same
man, Benton took out his pen and a
piece of paper, made a careful drawing
of the footprint. Then he and Neely
started following the trail—in the direc-
tion of the Berry home.

Only thirty feet from the spot where
Bob Salem had come into view of Neely’s
pasture, the trail disappeared once more
into the seclusion of the trees and the
swamp. The two men follédwed the tracks
for approximately a quarter of a mile,
then the tracks turned suddenly from the
trail and started off through the woods
to the left,

BENTON looked around at Neely.
The latter shrugged his shoulders
as if to say, “What now?” °

The Sheriff answered by diving into
the woods in an attempt to foJlow the
tracks, With difficulty they followed the

footprints until the tracks came suddenly .

into the open ground once more—just
about fifty yards from Jim Berry’s home.
After that, they were lost in the maze of
other tracks made by the farmers who
had come to try to help locate the mur-
derer of the highly respected Mrs. Berry.

One farmer spotted Sheriff Benton and
Neely almost the instant they emerged
from the woods, He came quickly to the
sheriff’s side.

“My name is Berry Sills,” he said. He

shifted his double-barrelled shotgun from.

his right arm to his left. “I’m a good
friend of Berry’s. Find anything yet?”

“Not yet,” Benton said simply.

Another man ‘stepped up beside Sills.
He, too, was carrying a gun. The grim,
hard lines of his face showed that he was
not here to play games. He said nothing,
but Sills motioned at him, with a curt
nod of his head, said, “This is J. C.
Cordell. He and ‘Tare ready to help you
in any way we can, Sheriff. We have a
hunch some maniac did this, and we want
to get him before he hacks up some more
of our women.”

Benton nodded. -

Sills went on. “We have lhe and
guns—all of us men here—and we know
this swamp from one end. to the other.
You give us the word, and we'll cover it
like a blanket.”

“Thank you,” Benton said. “But you
can help best right now by just remaining
here in the yard until we get a chance to
pick up any Clues the killer might have
left here. But we'll use you—don’t
worry.”

Sills nodded. “Just give us the word,
Sheriff.”

‘Benton, told ‘Neely he could return to
the Berry home now ; then Benton hunted

up one of his deputies whom he had
patrolling the area. He'told the deputy

. to locate Bob Salem as soon as possible
_ and bring him back for questioning.

Benton then headed back to the room
where the woman had been murdered, but
he was stopped by Major W. E. Spence,
of the Georgia Bureau of Investigation.
Spence and several of his state troopers
had entered the case at the invitation of
the sheriff. Spence had been doing a
little investigating of his own. Strangely,
his find centered upon the same,type of
evidence which Benton had just located.

Spence said he had found a set of foot-:

prints at the rear of the Berry home.
The footprints had comé from the woods
back of the Berry home—in exactly the
opposite direction from the footprints
Benton had located. The tracks led up
the steps at the back of the Berry home,
then returned in the same direction, dis-
appearing in the woods.

“Tried: to follow the tracks in the
swamp,” Spence said, “but it was im-
possible.”

“Let’s have a look at those tracks,”
Benton said. “I have a hunch maybe
we're following the same clue.”

But Benton was mistaken, When he
saw the footprints, he realized immedi-
ately that those tracks had been made by
a different person. The shoes were larger,
narrower, And the heel of the left shoe
was ‘missing. Benton made a drawing
of this set of tracks also.

Then Benton told Spence what he had
found.

“What the devil,” Spence said. “Do

‘you suppose two men were in on this

killing ?”

At least Benton’s answer was honest.
“T don’t know what to think,” \

Major Spence remained outdoors to
keep things under control there, and Ben-
ton, still puzzled, returned to the house
to have a talk with Jim Berry.

Neely had his neighbor friend drinking
a cup of black coffee when Sheriff Benton
re-entered the bedroom where the woman
had been beaten to death. Berry was in
better condition now, and, without being

asked, said he’d like to tell Sheriff Benton °

just what had happened that morning,

Berry said that he and his wife had
gotten up at the usual time—6:30—that
morning and had gone about as usual.
Berry had gone out to get wood, had
started the fire, then his wife had begun
breakfast. He had noticed nothing un-
usual about the house.

They finished breakfast about eight
o'clock, then Berry put on his overcoat
and started for the little village of Almon
to buy the Sunday morning papers.

“When I got home at nine o'clock,”
Berry said, his lips quivering, “I found
the front door locked. I thought that was
strange. I knew Mama never locked the
front door. I knocked several times but
Mama didn’t open the door. I thought
Bob and his wife had come by and they
had gone on to church—but they always
waited for me, and anyway, we didn’t
usually go to church till about 10:30, I
went around to the back door, came in-
side, and . . . found Mama on the bed-

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_ Billip,” he said finally,

room floor and saw she was dead. I
ran to Fred’s place fast as I could and
told him to call the law.”
' Berry bowed his head, covered his
forehead with his hand. He wiped his
eyes with his handkerchief.

“Who is this Bob?” Sheriff Benton

~ asked. i

“Bob Salem. We often walk to church
with him and his wife—up to Almon.
Just a little ways from here.”

Benton’s eyes narrowed, “You didn’t
see Salem before you left to go to Almon
after the morning paper ?”

“No, I haven’t seen him all day, Don’t
know where he is,”

Benton didn’t know Salem’s where-
abouts either, but he was quite sure he
was going to find out, and very soon.
Before he said another word to Berry,
he got a deputy and sent him to Almon
to try to find out whether or not Bob
Salem had been to the village that morn-
ing and if so, check on his actions. Then
Benton returned to continue his talk with
Berry. 2.

“Is it your usual habit,” the sheriff
said, “to go to Almon on Sunday morn-
ings to get the newspaper ?”

Berry nodded his head weakly. “Been
doing it ever since I can remember. Rain
or shine, I always went to Almon to get
the paper.” ;

-“Your wife didn’t seem nervous or
worried when you left her this morn-

ing?”
“No. Don’t think so, Didn’t notice it
anyway.”

— you have no idea who killed
her?”

“Sakes no, Mama was the best woman
who ever lived, I can’t understand it, I
just can’t.”

“Was anything missing from your
house ?””

“Don’t think so. I couldn’t find any-
thing gone,”

“And your wife didn’t have any en-
emies that you knew of?”

Berry looked up incredulously. “Who,
Mama? Sakes no! That’s why I think
some crazy man did it—and I think he’s
hiding now right out there in the swamps.
And the rest of my friends think so, too.
We ought to be hunting for him.”

Sheriff Benton said that Chief Leo
Nahlik, of the DeKalb County Police,
was on his way to the Berry home now
with expertly trained dogs to search the
swamps, As soon as he arrived, the hunt
would get under way. That seemed to
make Berry feel better. He sighed,
leaned back on the bed.

“There was no one at your house this
morning then before you left for Al-
mon?” Benton said, continuing his ques-
tioning,

“No. No one but Mama. And there
was no one here when I got back.”

“Have you had any hired hands work-
ing for you lately ?” ie

-“Had a couple about three months ago,
but no one lately,”

“Who were they? We can’t overlook
anyone in this case.””

Berry frowned, as if he hated to give
the names.. “L, C. Johnson and Oscar

}

“Where are they now?”

“TI don’t know,”

Benton took down the names, gave
them to a deputy, asked him to check on
the two men. ae

The sheriff was much relieved when
Chief Nahlik arrived with his hounds.
It would at least give the crowd in the
front yard something to do, and if the
man who had murdered Mrs. Berry was
hiding in the swamps the dogs might be
able to ferret him out. But Benton had
no such hopes for an easy solution to the
crime,

This looked like a carefully planned

murder. Someone who knew Berry and -

his wife—someone, who knew of Berry’s
habit of going to Almon every Sunday
morning at eight o’clock for the paper—
had waited until the opportune time,
murdered the woman, then quickly
slipped away. Berry was gone only one
hour. That didn’t give the killer much
time to accomplish his’ crime and make
his get-away. The murder had to be
planned !

NAUK let his dogs get a smell of
the victim’s blood, then turned the
dogs loose. They went down the back
steps of the house, started on the trail of
the footsteps that led to and from the
back door of the Berry home.

Nahlik told the neighbors who had
gathered at the Berry home with their
guns and dogs to divide into four separate
groups and strike out in four different
directions from the scene of the crime.
If any of the dogs picked up a trail,
Nahlik was to be notified immediately.

Then the man hunt was’ under way.

Sheriff Benton had intended to join it,
but when his deputy came in with Bob
Salem, Benton changed his mind. He
had too many interesting questions he
wanted to ask Salem. And right now
was the time to do it,

Salem was a tall, slender man. But
he carried himself with unusual dignity.
Benton met the man on the front porch of
the Berry home, and instead of bringing
him inside to talk, they went to Benton’s
car,

“Is her body still inside the house?”
Salem asked. His voice was reverent.

' Sheriff Benton’s right eyebrow lifted
slightly. “Oh, you know about the mur-
der ?”

“Yes, Your deputy told me on the
way over, Horrible thing to happen.
And to Mrs, Berry, too. I can’t under-
stand it.” ;

Benton said, “Do you have any idea
who murdered this woman ?”

Salem was indignant. “I should say

not!”

“Let me have a look at the soles of
your shoes,”

“Why not?” Salem held up his feet
so that the sheriff could see,the bottoms
of his shoes. Benton looked closely. The
shoes were not the ones that had made
the tracks along Old Skull Creek Trail.
But then, Salem wasn’t wearing the same
clothes either. When Neely had seen
him, Salem had on his work clothes. Now
he was dressed in’a neat, freshly cleaned
-blue suit,

“Yes,
I could

little bus
. them.”

understa
go to chr
that busi
hours lat
b “To be
erry and
about som
I wanted |
about the
ture of a f:
“All rig
I want to k
The dep
hands Ber
with little ;
ohnson at
Said he had
of the crim
Show he hac
in the Covi
transient wo
- & month bef
One ‘had see;
since then,
But if the '
Couraging, th
Nahlik tad }
blood pressur
dogs, followi:
lowed the tra
door of the F
There the offi
the tracks lon,
Pressing’ ‘ahea
underbrush of
their way for
they stopped s
brush, Nahlik.
digging in th:
pole about thr
inch in diamete
When Nahili}
Sheriff looked
this looks like é
around here to

James Be
Sunday stroll to the to

Almon for newspapers
while he was gone,

rry went for his
wn of

and
dire

tragedy had struck his home.

Benton slowly lighted a cigarette.

catch him.”

The sheriff took a coupl

against the cold, glass win
a position where he could

“About what time was i

place and told you that his wi
“About nine o’cléck. Maybe little after.” »

“By himself?”
“Sure.”

“Had you been at your

came?”
“JT was inside and out.

Jim came down. Got up a
breakfast, got in some wood an
when Jim came down, so upset, I was afra

pass out.”

“Did you notice anyone around the Berry house in’ the
morning while you were ou

“Just Jim. Saw him cutting wood earl

“You never saw Mrs. Berry outside?”

keep his eye on Neely’s home.
t when Berry came down to your
fe had been murdered ?”

I was in the house reading when =
bout six, did the chores, ate

e of deep puffs, blew the smoke
dow. He leaned against the wall, in

house all morning—until Berry

tside doing the chores te.

“No. ”
“Nor any strangers?”

Neely shook his head.
Sheriff Benton turned directly to Neely and asked, “Berry

and his wife been having any trouble among themselves—seri-

ous trouble?”

“Not that I’ve heard of.”
Neely answered the question before he grasped, apparently,

what ‘Sheriff Benton was driving at. His answer had come
casually but the question which quickly followed it was filled
with an anxious tenseness. ,
“Sheriff, you don’t think Jim .. . ,
“T’ye got to look up every angle. Naturally, I’ll have to
check up'on Berry. I’d be a hell of an officer if I didn’t.”
“Well, I can tell you one thing. You're wasting your time
there. No better man in these parts than Jim Berry.”
Sheriff Benton said, “While you were outdoors this morning,
did you see anyone else around this area—anywhere oe
Neely, still perturbed by the question Benton had just asked
him, said, “No.” But he stopped suddenly. “Wait a minute.
While I was takin’ the cows down to the pasture, I saw Salem
going down Old Skull Creek Trail. He was afoot. Seemed
to be in a hurry.”
“Who is Salem?”
“Bob Salem. Lives down the trail about a mile. Got a
little shack down there.”
“ow was he dressed ?”
“Had on his work clothes, and
his old brown overcoat.”
“Did you say anything to
him ?”
“No. Started to, but he was

’

When police hounds ‘were
used to track down the assas-
gin, they lost scent by stream.

“Don’t worry, We'll

Found a half-mile away from the Berrys’
home was the blood-stained murder club.

d was just takin’ it easy so far away that I didn’t bother to call after him.”
id he was going to “Was he carrying anything with him?”
“Not that I saw.”

. Benton started walking toward the front door of the house.
He pulled his overcoat up tightly about his neck. He said,

Pia

y this morning.” “Comme on, Neely. I want you to go down to your pasture with
me and show me where you were when [Continued on page 92).
57

eile oS

Cos

JACKSON, Howard

=) } 9

PLACE — ChsTY,PR war 0s DOE & MEANS

Howard Sachsen Mad ( Cpuetar lo.) Ne espires
Ly GL 4g Milena oles 2 |

RECORD

CRIME DATE OTHERCL A 4 | oF y Uke , Lilueked thot - ug- Lota)
Mindi (24-1952. bath atoub vy pte ibis Ling celal ressiate

Be leathit Victhe Thon “fil Lowiay. di dhots tan

MOTIVE

Sie oe Pa Y fashis hey

SYNOPSIS

4 4

hace furtnre —<LO
Shiw Z eat ttseats hen thet esti sihath Gtr. wi Pay ae ‘OQ Pa wut

fav ate ec, ye Lull, he Zhot~ % ew AG curt: Ads aA cet , yam
See es io. Ara thin c= tte hota} Vn adlaetceee ! Litnit bhi Dobe

Mote of ee arta Caf bua tly Cute Cutt iusuple 1 (SP Bre lel,

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TRIAL

APPE ;

PO. sal

cast WoroDs

EXECUTION

SOURCE

ST Ceormman, Lo, hemi flap be tLe A PLS AT wigig FPO

JACKSON re)

PLACE — CITY OR COUNTY DOE & MEANS

Mitchell Jackson Gae SP (Fulton County) E. July 9, 1937
SOR GR'AGE 26 RACE oe Chauffeur RESIDENCE GEN

Atlanta

CRIME

Murder 5-29-1937

VICTIM AGE R CE METHOD
Mrs. 2, M, Fluker 57 | Witte

MOTIVE

“""RElLedceville, ta., July 9, 1937-Mitchell Jackson, 26-year-old negro chauffemr, died in the elec-
tric chair at the State Prison here Friday for the torch mrder of his employer, Mrs. 2, M. Flu-
ker, Atlanta matron,

"Jackson, who pleadéd guilty, went to his death less than six weeks after he admitted slugging
Mrs. Fluker, stuffing ner nody in a pantry in her home in Buckhead, and setting fire to the house,
Prison OE TAEE ALS gad it was one of the cuickest cases of electrocution on brain Jackson, clad

had been anmeieRe* in the: death : chad, prison officials asked him if he had a statement, "I ain't
got nothing to say," he replied, The negro was mumbling "save me, Jesus Christ," as the switch
was pulled,

"Prison officials said he ate a hearty breakfast Thursday morning, but had eaten nothing since,

He spent most of his last night reading the Bible,

"Jackson was sentenced to the electric chair only a few minutes after he pleaded guilty on June

Ih to the slaying of Mrs, Fluker, Police said Jackson confessed that he kitted the -matron-in-an—
argument over $1.50. had rehired him, police said, the day of her death, Her husband had

ater) if Putte eaNity of ficials: believe it was ‘first such instance in state, Trial, originally
scheduled for Tuesday, washeld on Monday morning without previous public notice, The negro, under
heavy cuard, brought to courthouse and in courtroom he was surrounded by ?0 deputy sheriffs, county
police and investigators of solicitor general's office, Afterwards, hurried out of rear door and
carried back to Fulton Towers, She was beaten and stabbed to death on May 29 and her gasoline=
soaked clothing set afire ina kitchen closet. He said he had been drinking and had engaged in an
argument with her over payment of 75¢.—_in _unsworn statement to-soticitor venerat, stackson said he-
had followed ine reonapiel Pron the kitehen to the living room and struck her on the head with a

and toward a plosat: He drove a ; chisel into her neck and breast as “she fell into closet. He got
some gasoline from garase to wipe up blood on rugs, but as he passed kitchen stove, some of the gas
sloshed out and was ignited by a gas jet flame, burning under the evening meal that she had been
preparing. Frightened, he threw the remainder, bucket ahd all, MMMAMMHH 'toward' the closet con-
taining the body and fled in the Fluker car, JOURNAL, 6-1-1937

Flukers resided at 106 Roanoke ‘venue, Buckhead, meena — hammer and EMME

had been dipped in paint to cover bloodstains and ® prir

after Mrs, Fluker told him that = cena of $i. 50 tor aork ‘about house was excessive and he

er from garage into home, Saw him svsed away trois Fluker yancwrt pl and Leber saw aiske emerging
—from_house, —souRNAL. June, 1937
Mrs, Fluker wife of Atlanta salesman, Jackson arrested after he wrecked the Fluker car against a
ee ee ican tn aehan t ten ee ee
tting fire, Fluker said Jackson had been employed off and on for four year period, JOURNAL.
2 Jackson confessed saying argument was over 754, Officers had intercepted letters
“Eo tfs wife and mother in which he admitted murder, Said he struck her over head three times with
harmer borrowed from neighbor and ten stabbed about throat and breast with wood chisel, He had
tpwercdsschaged by Fluker preceding week for unauthorized use of family car, tad called Mrs. Fo _
on morning of — and asked to be allowed to choo some painting he was doing about plage
had been arir r Ry e ; :
tok him he wotlk have to wait for Fluker' s return. After mur der SirohsGed & i pint of whiskey and

Strate, “recked-car—and- arrested 3 _hours-after_mrders—sjoyrnaL S=31=1937

George Jackson NEW

Hanged at Pallas, Georgia, on
March 26, (880 top murder of
JacK Moss. Both negra.

Fer Mobile Daily Register 3 /38 /89 8:3

680 128 SOUTHEASTERN REPORTER. ae

lished principles of law, the court did not err
in failing to charge the law of manslaugh-
ter contained in section 64 of the Penal Code,
nor the law of.voluntary manslaughter con-
tained in section 65. The evidence for the
state showed the crime committed by the de-
fendant to be murder, and there is no evi-
dence to: reduce the homicide from murder to
manslaughter. And if, under defendant’s state-
ment,:he was guilty of manslaughter, there was
no request in writing to charge upon that sub-

. ject, and the mere failure to charge upon a

theory of the case presented alone by the de-
féndant’s statement is not error.

Russell, C. J., .and Atkinson, J., dissenting.

Error from Superior Court, Rabun Coun-
ty; E. D. Thomas, Judge.

Frank Jackson was convicted of murder,
and he brings error. Affirmed.

Frank Jackson was indicted, tried, and
convicted of the offense of murder. He made
a motion for a new trial, which was over-
ruled, and he excepted. Upon the trial of
the case, George Harris, a witness for the

‘State, testified as follows:

“TI was present at the time of the killing of
Holt Allen in Rabun county-on the 21st of Feb-
ruary, 1925, last Saturday night. Frank Jack-
son, the defendant here, killed him with a
butcher knife. Holt Allen was serving a sen-
tence in the chain gang at the time, and so was
Frank Jackson. Saturday morning, when we
went out to work, me and Frank Jackson
worked pretty close together, and he told—
asked me—says, ‘Haven’t I always treated you
nice,’ and I told him yes. Then the water boy
come down there, and he asked him, “Haven't I
always treated you nice,’ asked him the same
thing, and the water boy says, ‘Yes,’ and then
he says, ‘I am tired of taking foolishness,’
and he said that Holt Allen had been picking at

‘him ever since he had been there, and that aft-

er he got a hearing from his lawyer and he
didn’t seem to do nothing for him, that he
was going to kill him. That is Holt Allen.
This was on Saturday morning, the same day of
the killing, which was that night; and I says,
‘Well, that haven’t got anything to do with
your business,’ and then it was 12 o'clock, and
we knocked of from work then, and Frank
Jackson and Holt Allen was sitting at the heat-
er, and I came in from out at the branch,
where I had been washing, and Frank and Holt
Allen was arguing, and I heard him tell Jack-
son—says, ‘You going on and writing notes to
captain and telling lies on me,’ and says. ‘am
going to drop something on your head.’ Jack-
son didn’t have anything to say to him, only
says, ‘Did you hear me tell anything on you?’
He told him no, and Holt says, ‘I am just tell-
ing you so you wouldn't do it,’ and by that time
I walked back out of the tent and went out
to get some water to take a bath. When I
come back, they was through arguing, and we
come on in the tent, and Jackson was up in the
white end of the tent before they rang the
steel for 8 o'clock, and just as the man hit
the steel, as near as I can estimate, about three
minutes, he walked down the bunks and stood
there something like two minutes, and shortly
after the man grabbed his lantern to search the

chains, while Jackson was sitting on the
foot of his bunk watching across at Holt Al-
len and looking at him across the heater, kind-
er. Well, they goes ahead and the nightman
searches the chains. The chains we sleep on
is a building chain. »That chain has got a
ring in it, and a big chain goes up and down the
aisle, and we is chained to that cot at night.
Tlolt Allen was chained that night, but Frank
Jackson was not; he was a trusty. Well,
Jackson gets up after the night man passes
him—seemed to be waiting to catch his eye;
and when he gets about five or six bunks from
him, and takes his lantern to search the last
man, why, Jackson walks in front. of the
heater and steps across the aisleway, and
lifts his foot over the chain, and I seed him
when he moves the knife from his bosom. He
first went back to the bunk, is what caught my
eye, and he stuck the knife under the apron of
his overalls. He got the knife from the side
of the bed and steps across the chain, and just
as he gets his foot over he goes on Holt Allen
with a pitch. Holt Allen was lying down read-
ing, flat of his back, and was reading the Chi-
cago Independent. Jackson stabs him through
the paper, and says, ‘I/told you about fooling
with me,’ and walks out between the bunks to
run out the aisle, and kinder pulled his: knife
out of him, and then he went out the aisle way,
and Frank Dorsey halloed, ‘Look at Frank
Jackson; he done stabbed Allen,’ and the night-
man says, ‘Where is he?’ and he says, ‘He is
gone out the tent,’ and the nightman went and
called him back in. Jackson had done stepped
outside the tent, and in about two or three
minutes after he went out they come back in
the tent, him and the night watchman, Mr.
Addis; the nightman brought him back, but
he had done stepped out and throwed his knife
away. I saw the knife. It was a butcher
knife, and that is it. That is the Chicago In-
dependent, the newspaper that Holt Allen was
reading at the time he was stabbed. That hole
in the paper was made from the knife at the
time Holt Allen was stabbed. He had the pa-
per in front of his face, and could not see
Frank Jackson. At the time Holt Allen was
stabbed, Jackson drove through the paper with
all the force he had, I guess. He stabbed Holt
just above his left titty—above the heart. He
only live about 15 minutes. When Jackson
stabbed him, Holt Allen jumped straight up
off his bunk and fell on his face on the other
bunk across from him, and says, ‘Lord, have
mercy! send and get Dr, Dover quick!’ Be-
sides working in the camp, Holt worked on the
road. Friday night I heard Holt Allen tell
Frank Jackson that he was the lowdowndest
man in the state of Georgia; said that he tell
lies on people and get them sent to the chain
gang for nothing. They didn't seem to be mad,
even when they were having an argument en
Saturday afternoon, and Holt told Jackson
that if he did write anything to the captain
against him he would drop something oD his
head, He says, ‘I am just telling you before
I get mad.’ Frank Jackson had done nothing
to him, but Holt Allen was mad at Frank
Jackson, telling him he was the lowdowndest
nigger in the state, and would send people t?
the chain gang for nothing. This was on Fri-
day night before he said he would drop some’
thing on his head. He did not say that we
would drop. Frank Jackson did not do 8ny-

xy
ah.
i
MY
a

Ga.) ‘SOUTHERN RY. CO. v. WILLIAMS 681
(128 S.E.)

thing to Holt Allen then. I saw the knife in
front of the stove or heater before he got
it concealed. It was about six feet across the
space there. I did not hear Holt Allen™ say
anything to Frank then. The stove and stove-
wood was closer to Jackson than to Allen. It
was where Allen could reach it. That night
he did not open his mouth to him. On Friday
night Holt Allen was talking to the other boys,
and Frank got into the conversation. He did
not say anything to Frank Jackson, except that
he was the meanest nigger in Georgia, and the
man hit the steel before he got through. I
heard no conversation on Saturday night.”

The evidence of the witness Harris was
corroborated in the essential particulars by
other witnesses introduced by the state. The
defendant made a statement in which, after
reference to certain difficulties and alterca-
tions which he had had with the decedent,
Holt Allen, he said:

“We was sitting there (the place of confine-
ment where the convicts were chained), and
this nigger, Holt Allen, jumps up and says that
somebody was talking to the guards, and he
didn’t lay in on nobody but me, and says,
‘Frank Jackson, you have been going around
telling things and telling Ordinary Will Smith
things,’ and I says, ‘I never have told any-
thing on you, Macon,’ and he says, ‘I am just
telling you that I am going to lay a stick of
wood on your head.’ He was at the wood pile
then, and he put his paper down and come and
got a stick of wood, and I got on the foot, of
my bunk and set there. I didn’t pay no atten-
tion to him—he was cussing and talking and
blowing. I went on out, and these boys come
to me and told me that Allen had a pick at me,
and said that he was ging to kill me, and I
says, ‘That’s all right—haven’t I always treated
you all right?’ and they said, ‘Yes,’ and I
asked the water boy that day on the works if
I hadn’t always treated him all right, and he
Says, ‘Yes,’ and I says, ‘Just wanted to ask you
this.’ That was about dinner time. When the
time come 12 o’clock. to strike off, he went on
out to his dinner, and I wouldn’t go out there
with mine to eat with the rest of the boys,
because I was afraid he would start something,
and I stayed away from him and eat mine.
Well, that night I was sitting at the upper
side of the stove and was sitting on Frank
Dorsey’s bunk, and he set down on another
boy’s bunk, and he come in and says to me,
‘Frank Jackson, I want to let you know how I
feel from last night,’ and went on to say what
he was going to do and all. I says, ‘I thought
You was through with that old argument,’ and
he says, ‘I won’t be through until I lay heavy
on your head.’ He was at the pile of wood
then. I did not want to argue with him, and it
time to turn in then, and I told him so. And
he says, ‘I tell you the very reason I ain't
buying nothing from you, ‘cause you always
telling the white folks everything, and you
always telling something on us niggers.’ He
Was sore at me because I wouldn’t do what he
Wanted me to do. I let him go on, and I went
on out after that and stayed outside most of
the afternoon and come back in the tent, and
he says, ‘I am going to lay heavy on Frank

Jackson’s head to-night.’ I just let him alone,
and went on in the white end of the tent, and
when it got dark and got on the chain, he

‘commenced again and told me again while he

was sitting there at the box of wood, and says,
‘That’s the reason I don’t like you, Frank
Jackson—you always having somebody put in
the chain gang,’ and I says, ‘I ain’t never told
nothing on you,’ and he says, ‘That's the rea-
son I ain’t got no use for you, and I am going
to lay heavy on your head.’ I was sitting on my
bunk then, and he got his newspaper out and
lay down and got up next to the pile of stove-
wood, and come back and pulled his bunk next
to the stove, and my foot was right near him,
and he kept on and got up and set on the
foot of his bunk, and got right close to where
the stick of wood was, and says, ‘Frank Jack-
son, I told you I was going to lay heavy on
your head,’ and I hopped up to the head of my
bed, and I didn’t say nothing to him, but I went
and jumped back on my bed, and he pulled out
this newspaper, and when he done that, I went
up to the head of my bed, and then I Says, ‘I
told you to stop fooling with me,’ and hit him
one lick, but I didn’t intend to kill him—meant
to hit him just enough to make him leave me
alone. That’s all I got to say, gentlemen of
the jury.”

L. C. Dotson, of Clayton, and R. BE. A.
Hamby, of Atlanta, foy plaintiff in error.

Robt. MeMillan, Sol. Gen., of Clarkesville,
and Geo. M. Napier, Atty. Gen., and T. R.
Gress, Asst, Atty. Gen,, for the State.

BECK, P. J. Judgment affirmed. All the
Justices concur, except GILBERT, J., absent
for providential cause, and RUSSELL, C. J.,
and ATFKINSON, J., who dissent, basing
their decision on the principles ruled in
Paschal y. State, 125 Ga. 279, 54 S. EB. 172,
and Dorsey v. State, 126 Ga. 683, 55 S, E.
479.

SOUTHERN RY. CO. v. WILLIAMS et al.
(No. 4868.)

(Supreme Court of Georgia. June 20, 1925.)

(Syllabus by the Court.)
1, Statutory provision.

A deed to land, absolute on its face and
accompanied with possession of the property,
cannot be proved (at the instance of the par-
ties), by parol evidence, to be a mortgage only,
unless fraud in its procurement is the issue
to be tried. Civil Code 1910, § 3258.

2. Mortgages ¢=—=37(2)—Heirs at law of one
tenant In common can show by parol that
quitclaim deed was to secure debt.

Where tenants in gommon of a tract of
land conveyed the same by quitclaim deed to a
third person to secure a loan, but remained in

possession of the land, and the grantee in such

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

SIR NR

290 Ga.

my wife or either one of said children die,
then the share of such deceased shalf go to
the survivor of the three.” Item V—“If
neither of my two children should be in
life at the time of my wife’s decease, then it
is my will and desire that the proceeds of
the sale of my property as herein provided
shall be divided among my mother and my
sisters, namely, Rinday Townsley, Vinella
Jenkins, Mattie Witherspoon, Vivian
Brothers, Louise Brown, Sarah Atkins,
Julia Townsley, share and share alike or to
the survivor of them.” The language of
the judgment of the trial court here except-
ed to is as follows: “That under the terms
and provisions of the said will of said Rob-
ert Townsley, said decedent bequeathed and
devised all of his property, both real and
personal, to the petitioner, Janie Boxton
Townsley, for her use and benefit for and
during her natural life, or until she should
marry again, if she should so wish, she
having the right under said will to sell,
borrow money on, or dispose of, or do any-
thing in reference to said property that she
may deem proper, without any order of
court, and without consent, control, or in-
terfcrence from any other person. That,
under the terms and provisions of said will,
the petitioner, during her widowhood, is en-
titled to the exclusive control and manage-
ment of said property, with the right to
encroach upon the corpus, sell and dispose
of any part or all of the property be-
queathed and devised under said will, or
do anything in reference thereto that she
may desire, without control or interference
from any person or court.” It is contended
that the language, “subject only to the ob-
ligation upon her to pay the taxes, keep
the property insured and preserve it”, con-
tained in Item III of the will, has the ef-
fect of limiting the power of encroach-
ment. It is contended that the power of
encroachment can be exercised only for the
purposes enumerated in the last above quo-
tation. The plaintiff in error cites and re-

72 SOUTH EASTERN REPORTER, 2d SERIES

lies upon Code, § 113-407, Rogers v. High-
note, 126 Ga. 740, 56 S.E. 93, and Kim-
brough v. Smith, 128 Ga. 690, 58 S.E. 23,
as being controlling on the question here
under consideration. The effect of these
authorities is to provide that, “If two
clauses of a will are so inconsistent that
both cannot stand, the latter will prevail.”
This rule has no application to the case
now under consideration. Item III of the
will, in effect, devises to Janie Boxton
Townsley a life estate in the property of
the deceased, with full and complete power
of disposal. The clause requiring her to
pay the taxes and keep the property in-
sured has no reference whatever to her
power of disposal, but simply places the
obligation upon her to pay the taxes and
keep the property insured so long as the
property is not disposed of. The require-
ment, “and preserve it,” is followed by the
language, “in such way as she may deem
best and proper without liability to any per-
son for waste or mismanagement.” Item
IV of the will provides that, upon the
death or marriage of Janie Boxton Towns-
ley, the property of the estate “not dis-
posed of by my wife and not used by her”
shall be sold. This is the last expression
contained in the will concerning the power
of disposal. As has been so often said by
this court, each will case must stand on its
own bottom and decisions in other cases
are of little and doubtful help. Taking the
language of this will as a whole, it is difi-
cult to conceive of language that would
express a more clear intent to give to a
wife during her lifetime complete control
and power of disposal of the property de-
vised under the terms of the will than that
here used by the testator. It follows, the
judgment excepted to was not error.

Judgment affirmed.

All the Justices concur, except ATKIN:
SON, P. J., and ALMAND, J., not partici

pating. ;

JOHNSON vy. STATE
209 Ga. 333 Cite as 72 8.W.2d 201 Ga. 291
JOHNSON v. STAT 7. Criminal Law ¢=>730(7)
. E. In prosecution for murder, where

No. i
0. 17929, Prosecutor, in argument to jury, remarked

that “they had whisky and could lead her
around like a baby after candy” and was
instructed by trial judge to stay within
Defendant was convicted in the Superior ¢Vidence, refusal to grant mistrial because
Court, Jones County, George 8. Carpenter, Of prosecutor’s remark was not e
J., of murder, and he brought error. The ae
Supreme Court, Wyatt, J., held that evidence en eBay

The granting of a mistrial is largely

was sufficient to support the verdict.
Sie i stars within discretion of the court and unless
- it is apparent that a mistrial j i
al is essential
I. i i
Homicide ¢>250 to preservation of right of fair trial, the

Evidence was sufficient to support discretion will not be interfered with
conviction of murder. |

Supreme Court of Georgia.
Sept. 2, 1952,

9. Criminal Law ©=781(5)
2. Jury ©3992) In prosecution for murder, charge
18 ‘Seosceution fhe murder juror sia to jury that a confession, “if made, but not
had not seen the crime colmnitted and hast voluntarily and without being induced by
not heard any testimony delivered on another by the slightest hope of benefit or
oath, but who had expressed an opinion in remotest fear of injury, the jury should
regard to the guilt or innocence of the not give it any consideration at so ions
Prisoner at bar, and who otherwise indicat- CO™®*t Principle of law and was adyusted
ed his competency by answering the statu- to evidence.
tory questions on his voir dire, was not an 10. Criminal Law ©>825(4)
incompetent juror. In prosecution for murder, where
3. Criminal Law €=531(3) court, in charging law relating to circum-
Ie Weseieili: ta nilek enttenhe stantial evidence, charged only language
established that confession was freely and of Code, but evidence in case was not
voluntarily made, and i itis, therefore wholly circumstantial and there was no
properly admitted in evidence. * written request by defendant for further

X Grlsteal tee Stow pence the question, charge was not
In Prosecution for murder, a coat
which was positively identificd as one worn
hy deceased on night of homicide, was —_J. Pierce Anderson, George L. Jackson
’

Properly admitted in evidence. Gray, for plaintiff in error

6 Griaica Law ¢=1064(4) C. S. Baldwin, Jr., Sol.-Gen., Milledge-
in. ae indlae. where ville, Eugene Cook, Atty.-Gen., Rubye G.
Photograph of sole of left shoe allegedly Jackson, Atlanta, for defendant in error.
worn by defendant on night of homicide
ve admitted in evidence over objection
aft i i
: = the shoe itself had been admitted in WYATT, Justice.
: nee, the objection, which was that
thoe itcse j
oe itself was highest and best evidence,
was too indefinite and incomplete to raise

any question for decision b
Coe n by Supreme

Syllabus Opinion by the Court.

Horace Johnson was tried and convicted
of murder without a recommendation to
mercy. He filed his motion for new trial
which was duly overruled. To this judg-
ment the defendant excepted. Held:

& Criminal Law
Wheres ane aes {i} 1. In so far as the general grounds
Sdmission ce pit ae ant from the of the motion for new trial are concerned,
We ground t is shown, there is itis necessary to say only that the evidence
or new trial. was sufficient to support the verdict.

292 Ga.

72 SOUTH EASTERN REPORTER, 2d SERIES

(2] 2. Special ground four complains mitted in evidence over timely objection.

because the court refused to disqua
juror to whom movant objected.
juror as to whom objection was made, upon
the voir dire examination, was asked the
following question: “Have you, from hav-
ing seen the crime committed, or having
heard any of the testimony delivered on
oath, formed and expressed any opinion in
regard to the guilt or innocence of the
prisoner at the bar?” The juror replied
that, although he had not seen the crime
committed nor had he heard any of the
testimony delivered under oath, he had
expressed an opinion as to the guilt or

lify a The objection was that the coat had not
The been properly identified. There is no merit

in this contention. The coat was positively
identified as the one worn by the deceased
on the night of the homicide, and it was not
error to admit it in evidence. See David-
son v. State, 208 Ga. 834, 69 S.E.2d 757,

and cases there cited.

[5,6] 5. Ground — seven complains
because the court admitted, over timely
objection, a photograph of the sole of a
left shoe which was allegedly worn by the
defendant on the night of the homicide.
The objection was that the shoe itself,

innocence of the prisoner at the bar. _The which had already been admitted in evi-
movant objected and moved that the juror dence, was the highest and best evidence.
be disqualified. The court vaca eee This ground is too indefinite and incon
the voir dire questions be asked. 1 ty raise any question for de
The juror qualified on the rest of the ques this court. It is not shown wherein or how
tions. The court then ruled that the juror the admissionaf this evidence, whether or
was qualified. To this ruling, the movant nik erroneous, coud. a any way, have
objected. “To disqualify one from being a harmed this defendant. Where no injury
j in a criminal case, he must have ; shown, there is no ground for a new
frced and expressed an opinion, either ssiak Ae Lee v. State, 116 Ga. 563, 42
from having scen the crime committed, or SE. 759 and Hoxie v, State, 114 Ga. 19,
from having heard the testimony under 30 SE. 044,
oath. One who from some other cause me ape err ae te
formed and expressed an opinion anc [ ,8] 6. pe Lic ieee akan
which is not fixed and determined, and who plains because me : ie te
indicates his competency by answering the a mistrial msg - ae ae
pie md vet ie mois a State, ete Nvenixinet of was as follows,
4 a ai. 6 SE. 44d See nies “They had whisky and could es
a. § .E. ; ;
ante Wire. cited. "There is no merit in around like a baby after — a
i I tion for new trial. contended that this statement was preji
peace nas cial, harmful, and improper. Conceding
: that the statement was improper, the trial
judge instructed the solicitor-general :
stay within the evidence. The matter

[3] 3. Special ground five complain
because the court admitted in evidence,
over objection, a written confession made

and signed by the defendant. ba ob- granting a mistrial is “largely within the
jecti t the State had not shown
jection was tha

- it 4s
; : - and unless it I
: etion of the court;
the circumstances surrounding the con- diser

istri tial to
that a mistrial was essen
panei ialhe le sn: eal was, net Sn vation of the right of fair trial, the
freely an voluntarily made. here is no preserve

i i i interfered with.”
: discretion will not be in _—
ni : pagan 171 Ga. 121, 155 S.1-
merit in this ground of t i anieeire et : :
new trial. The circumstances surrounding Manc

e co ifess on wer te tif , Ww i wa oO I r to re
th { 11 17 It follo s, it s not erro
T i vere Ss i ied to in detail . ’

istrial in the instant cast.
hat the confession was made fuse to grant a mistrial in
and show that the ss d j
frecly and voluntarily. It was not error
to admit it in evidence.
[4] 4. Special ground six complains

because a coat allegedly worn by the de-
ceased at the time of her death was ad-

[9] 7. Special ground nine ee
of an excerpt from the charge of the sige
as follows: “If made, (referring to |
alleged confession) but not voluntarily =r
without being induced by another by ¢t

THOMPSON vy. ARRINGTON Ga. 293
Cite as 72 8.E.2d 293

slightest hope of benefit or the remotest
fear of injury, the jury should not give it
any consideration at all.” .This excerpt
from the charge, while perhaps ineptly
phrased, is a correct principle of law, was
adjusted to the evidence in this case, and
is not erroneous for any reason assigned.

[10] 8. Special ground ten complains
because, when the court below undertook
to charge the law relating to circumstantial
evidence, it charged only the language of
the Code. Since the evidence in the in-
stant case was not wholly circumstantial,
and since there was no written request for
any further charge on this question, the
charge was not erroneous for any reason
assigned. See Williams v. State, 196 Ga.
503, 26 S.E.2d 926; Pippin v. State, 205
Ga. 316, 53 S.E.2d 482; and cases there
cited,

9. It follows, the judgment of the court

below denying a new trial was not error.
Judgment affirmed.

All the Justices concur, except ATKIN-
SON, P. J., and ALMAND, J., not partic-

ipating,

219 Ga. 343
THOMPSON v. ARRINGTON.
No. 17946.

Supreme Court of Georgia.
Sept. 2, 1952,

Sult by H. HH, Arrington against J. T,
Thompson for specific performance of al-
leged written contract to convey realty. The
Superior Court, Worth County, W. C. Fore-
hand, J., struck an amended answer, and,
after trial, directed verdict for plaintiff, and
defendant appealed. The Supreme Court,
held that answer, which averred
that plaintiff? should be denied relief sought
because he failed to comply with oral agree-
ment entered into between parties antecedent
to and inconsistent with written contract,
falled to set up a valid defense.

Judgment affirmed.

Candler, J.,

|, Evidence €=441(1)

Where parties reduce agreement to
writing, all oral negotiations antecedent
thereto or contemporaneous therewith are
merged into, terminated and extinguished
by the writing, and it is not permissible to
prove a prior or contemporancous parol
agreement which has effect of varying
terms of written contract. Code, § 38-501.

2. Evidence €>442(1)

Rule which permits parol proof in case
of apparent incompleteness in written state-
ments of obligations of parties, denies pa-
rol proof, variant from the written terms,
which imposes additional and other terms

dependent upon a prior or contemporaneous
parol agreement.

3. Equity €>62

Equity, which is ancillary and not an-
tagonistic to the law, follows an applicable
tule of the law. Code, § 37-103.

4. Specific Performance G>116

; In suit for specific performance of al-
leged agreement in writing to convey realty,
answer which averred that plaintiff should
be denicd relief sought because he failed to
comply with an oral agreement entered into
between parties antecedent to and inconsist-
ent with written contract failed to set up
valid defense.

5. Vendor and Purchaser ¢=83

Alleged oral agreement of prospective
purchaser of realty to assume prospective
vendor’s responsibilities under a cropping
agrecment was inconsistent with terms of
subsequent written agreement to convey the
realty, which did not mention the cropping
contract, and was not independent of the
written agreement and was merged into it.

6. Specific Performance ¢=64

Where written contract for sale of land
is clear, distinct and definite, fair and just,
for an adequate consideration, and capable
of being performed, equity will, on applica-
tion therefor, decree specific performance
of it.

Robert R. Forrester, Tifton, Ford &
Houston, W. C. Smith, Sylvester, for plain-
tiff in error.

HEX,

Sips Des SE TORE:

eerste ae a

Slit OF -

BURRUSS et al. v. BURRUSS et al.
No. 14683.

Supreme Court of Georgia.
Nov. 9, 1943.

1. Courts ©=99(2)

Where court orders that petition be
amended by setting forth certain facts, and
that in default of such amendment within a
stated time the petition shall stand dis-
missed, and no exception or writ of error
is taken, if petitioner fails to amend, a dis-
missal automatically results, or a formal or-
der of dismissal is proper, since the original
order is the “law of the case.”

See Words and Phrases, Permanent

Edition, for all other definitions of
“Law of the Case”.

2. Pleading C417

Where court orders that petition be
amended by setting forth certain facts, and
plaintiff, without taking any exceptions to
order, secks to amend _ petition, plaintiff
cannot thereafter complain that order was
erroneous.

3. Courts €=99(2)

Where one of grounds for demurrer
was that petition failed to set forth copies
of writings referred to, and court on Jan-
uary 14 sustained each ground of demurrer
and ordered that on failure to amend with-
in 45 days petition should stand dismissed,
court did not err in dismissing petition
where plaintiff failed to present an amend-
ment setting forth copies of writings until
May 31, notwithstanding on February 10
plaintiff filed an amendment and described
with more detail the writing, and the book
and page number of their records,

eed

Error from Superior Court, Fulton
County; A. L. Etheridge, Judge.

Suit by Frances Maddox Burruss and
another against K. H. Burruss and another
for an injunction, cancellation of mort-
gage, a decree of title, and equitable relicf.
Order dismissing suit, and plaintiffs bring
error.

Affirmed.

Frances Maddox Burruss and Lillie
Maddox brought against K. Hf. Burruss
and Gideon Alexander Burruss a petition
for injunction, cancellation of a mortgage
on a lot of land, a deerce of title to the lot

27 SOUTH EASTERN REPORTER, 2d SERIES

in the plaintiffs, and equitable relicf. The
petition was based on a general charge of
fraud and on alleged want of consideration
as to the instruments executed by the plain-
tiffs. The defendants demurred generally
to the petition as stating no cause of ac-
tion; and specially on the ground of mis-
joinder of parties plaintiff, and on grounds
attacking cach of the essential paragraphs
as failing to set forth copics of the deeds,
a mortgage, and other writings referred to
in such paragraphs; as secking to vary by
parol the terms of the instruments; as too
vague, indefinite, and uncertain; and as
stating conclusions of the pleader. On
January 14, 1943, the court entered an or-
der: “That the grounds of special demur-
rer on behalf of both defendants are here-
by sustained on each and every ground of
special demurrer, and on failure to amend
within 45 days the petition shall stand dis-
missed. The general demurrers are not
passed on at this time.”

On February 10, 1943, the plaintiffs filed
amendments to some of the paragraphs of
the petition, and described with more de-
tail the writings in question, the book: and
page of record in the clerk’s office, and
other details of the transactions, but with-
out attaching copies of the writings. The
amendment was allowed, subject to demur-
rer.

The defendants in a general and special
demurrer renewed their original demur-
rer, and attacked on similar grounds the
petition as it was sought to amend, They
attacked the amendment on the ground that
“there has been no bona fide effort on the
part of plaintiffs to comply with the rulings
of the court heretofore passed, with re-
spect to” the demurrer, in “the order
passed by this court on January 14, 1943.”
On May 31, 1943, the plaintiffs presented
another amendment to the petition, then
for the first time setting forth as exhibits
copies of deeds referred to in their peti-
tion as previously amended and in the de-
murrers of the defendants. This amend-
ment was allowed, subject to demurrer,
and was filed in the clerk’s office on June
21, 1943. "The defendants filed a renewal
of their objections to the allowance of the
previous amendment, and objections to
the allowance of the last amendment, as not
being in compliance with the original order
sustaining the special demurrers, and as
setting forth too late the exhibits required
by that order; and also as being a mere
restatement of conclusions in previous
averments, and adding nothing material to

JOHNSON v. STATE Ga. 749
27 S.E.2d 749 ;

the original petition. The defendants also
renewed their previous demurrers to the
petition and the amendments.

On June 21, 1943, the judge entered an
order which recited the terms of the pre-
vious order sustaining the special demur-
rers, and the objections of the defendants
to the amendments, and provided that,
since the amendments did not meet the
previous ruling, “upon consideration of the

- amendments * * * and the demurrers

and objections * * * the plaintiff's
petition as amended * * * be and the
same is dismissed.” The plaintiffs, without
excepting to the original ruling of January
14, 1943, excepted only to this final order
dismissing the suit.

William A. Thomas, of Atlanta, for
plaintiffs in error.

Marvin G. Russell, and W. O. Du Vall,
both of Atlanta, for defendants in error.

Syllabus Opinion by the Court.
JENKINS, Presiding Justice.

[1] 1. Where, on demurrer to a peti-
tion, an order is entered requiring that the
petition be amended by setting forth cer-
tain facts construed by the order to be ma-
terial to the cause of action, and that in
default of such amendment within a stated
time the petition “stand dismissed,” such
order is the law of the case, in the absence
of timely exception and writ of error
therefrom. If the petitioner fails to
amend, a dismissal of the action automati-
cally results, or a formal order of dismissal
is proper.- Howell v. Fulton Bag & Cotton
Mills, 188 Ga. 488, 490, 4 S.E.2d 181, and
cit.; City of Hapeville v. Jones, 194 Ga.
57(b), 20 S.E.2d 599; Smith v. Bugg, 35
Ga.App. 317(1), 133 S.E. 49.

[2] 2. Where, after such an order and
without any exception thereto, the plaintiff
seeks to amend his petition, but the
amendment fails to comply with essential
requirements of the order, he is bound by
the order, not only because it is the law
of the case under a ruling unexcepted to,
but for the additional reason that he has
submitted to the adverse ruling on demur-
rer by secking to comply therewith, and
cannot thereafter be heard to complain
that such order was erroncous, and that the
required amendment which he elected to
offer, but failed to complete in essential re-
quirements, was in fact unnecessary.
Rivers v. Key, 189 Ga. 832(1), 7 S.E.2d
732, and cit.

(a) The decisions relied on by the plain-
tiffs in error, Millbank v. Penniman, 73
Ga. 136(a), Moody v. Muscogee Mfg. Co.,
134 Ga. 721, 729, 730, 68 S.E. 604, 20 Ann.
Cas. 301 and Steele v. Graves, 160 Ga. 120
(3, a-d), 127 S.E. 465, dealt only with
questions as to the necessity of filing ex-
hibits or otherwise amending pleadings
against special demurrer, or other ques-
tions involving the merits of petitions
against such demurrers, and therefore are
not pertinent to the controlling question
here involved, which does not concern the
merits of the pleadings on demurrer, but
only whether the plaintiffs did in fact con-
form to the law of the case as fixed by the
ruling of the court dismissing their action
in the absence of the required amendments
within 45 days.

[3] 3. Since the record shows that the
plaintiff did not, within the specified time,
file the exhibits required under penalty of
dismissal, the court did not err in dismiss-
ing the action.

Judgment affirmed.

All the Justices concur,

O « KEY NUMBER SYSTEM.

aMms

JOHNSON v. STATE.
No. 14673.

Supreme Court of Georgia.
Noy. 9, 1943.

1, Criminal law €=942(!)

Newly discovered merely impeaching
evidence will not authorize new trial after
conviction of crime, though such evidence
relates to only testimony on some vital
point. Code, § 70-204.

2. Criminal law €=—941(2)

Ordinarily, newly discovered evidence
will be taken outside definition of “cumula-
tive evidence” and afford basis for new
trial only when it relates to particular ma-
terial issue concerning which no witness
has previously testified or is of higher and
different grade than previous evidence on
same material point. Code, §§ 38-102, 70-
204.

See Words and Phrases, Permanent

Edition, for all other definitions of
“Cumulative Evidence”.

—)
NO
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750 Ga.

3. Criminal law €=945(2)

Newly discovered evidence of same
grade as, or even grade inferior to that of,
previous evidence on same material point,
but tending, not merely to strengthen cor-
rectness of defendant’s contention on par-
ticular material issue, but to prove fact or
circumstance establishing or disproving
controlling point in controversy or supply-
ing link or gap missing in previous testi-
mony, affords basis for new trial after con-
viction of crime. Code, §§ 38-102, 70-
204.

4. Criminal law C=954(1)

In motion for new trial on ground of
newly discovered evidence, defendant must
show, not merely that neither he nor his
attorney knew of such evidence at time of
trial, but facts showing exercise of due
diligence by them to discover evidence and
recital that new evidence was unknown to
them before and at time of trial and could
not have been discovered by exercise of
ordinary diligence is insufficient as mere
opinion and stating no facts. Code, § 70-
204.

5. Homicide ©=319

After conviction of murder, court
properly refused defendant a new trial on
ground of newly discovered evidence that
deceased ran his hand in his pocket just be-
fore he was shot by defendant, in absence
of showing that defendant and his attorney
exercised due diligence to discover such
evidence before or during trial or any ex-
planation or showing of why names and
testimony of new witnesses, who were in
crowd present at time and place of homi-
cide, could not have been ascertained
through other bystanders before trial.
Code, § 70-204.

6. Criminal law €=945(1)

Newly discovered evidence, to entitle
defendant to new trial after conviction of
crime, must be such as would probably

cause return of different verdict on another
trial, Code, § 70-204.

7. Homicide C=319

After conviction of murder, court did
not abuse his discretion in refusing defend-
ant a new trial on ground of newly dis-
covered evidence that deceased ran his
hand in his pocket just before he was shot
by defendant, as such evidence would not
probably have caused verdict of acquittal,
in view of deceased's dying declaration and
other testimony at trial that he was un-

27 SOUTH EASTERN REPORTER, 2d SERIES

armed and made no menacing gesture be-
fore fatal shot. Code, § 70-204.

8. Homicide €=250

Evidence held sufficient to authorize
conviction of murder.

Error from Superior Court, Henry
County; G. Ogden Persons, Judge.

H..T. Johnson was convicted of mur-
der, and he brings error.

Affirmed.

On March 22, 1943, H. T. Johnson and
his brother, Asa Johnson, were jointly in-
dicted for the murder of Grady Solomon
with a pistol, on May 22, 1942. On March
24, 1943, the defendants were tried jointly.
H. T. Johnson was found guilty, withont
a recommendation to mercy. Asa Johnson
was found guilty, with a recommendation,
and was sentenced to life imprisonment.

The defendants filed separate but similar
motions for new trial, on the general
grounds, and on the ground of newly dis-
covered evidence. They brought to this
court separate writs of error from the re-
fusal of a new trial. Although the general
grounds are not abandoned, they urge
especially the ground of newly discovered
evidence, based upon affidavits filed under
the statute, some of which were resisted
with a counter-showing by the State.

Under the disputed testimony, on the
night of May 22, 1942, the defendant, H.
T. Johnson, shot Grady Solomon in the
abdomen with a pistol, from which death
ensued a few days later. The shooting
occurred near a_ schoolhouse at Mc-
Donough, where a crowd had gathered for
commencement exercises. Solomon was in
the crowd with a girl, Willie Ruth Rag-
land, when H. T. Johnson appeared, and
asked the girl to come over where he was,
but she would not go. Words passed be-
tween. this defendant and the deceased.
The defendant threatened to slap the de-
ceased, who told the defendant that he
was not afraid of him. The deceased left
the place for a few minutes, and went to
his automobile. According to one witness
for the defendant, the deceased said just
before he left that “he was going to get a
gun;” but according to the other witnesses
he did not make such a statement. Accord-
ing to all of the witnesses, when the de-
ceased returned, he had no pistol, knife, or

- JOHNSON vy. STATE Ga. 751
27 S.E.2d 749

other weapon, and none was found after
the shooting; and he only said to the de-
fendant, H. T. Johnson, “Well I am back
now,” without any menacing gesture, be-
fore this defendant fired.

Henry Lowe, a witness for the State,
testified that he did not know what the
trouble was about, but he was standing
with the crowd close to those concerned,

_and saw the defendant Asa Johnson, and

another young colored man, Theotis Walk-
er, grab Solomon, the deceased, just be-
fore “this other Johnson boy * * *
walked up and shot him;” that when the
deceased was shot “he was trying to get
loose,” and had no weapon; and that H.
T. Johnson “was almost close enough to
put the pistol on him.” This witness had
not testified at the commitment trial or
before the grand jury.

Preston Jackson testified for the State,
that he saw the deceased just before the
homicide, and, as he was leaving, “heard
a boy say, ‘All right, let’s get him.’” but
didn’t know who said it, and that then
Asa Johnson and Theotis Walker grabbed
the deceased, “and H. T. shot him;” that
when they grabbed him “H. T. was right
up on him when he shot him with the pis-
tol,” and the deceased was “just trying to
get away;” and the witness did not see
any knife, pistol, or other weapon of the

: deceased. This witness had not testified at

the commitment trial.

Willie Ruth Ragland, the girl who was
with the deceased, testified as to what H.
T. Johnson had told her and the deceased;
that the deceased had not said anything
to that defendant; that when the deceased
left and came back, she “saw all three of
them [the two defendants and Walker]
on [the deceased], and that is when I heard
the shot;” that “no one was helping” the
deceased, “all three were against” him;
but that she did not know who fired the
shot. ;

Lacy Thomas testified for the State, as
to an argument between the defendant H.
T. Johnson, and the deceased, before the
homicide; that the defendant left the
place, and when he returned there was
“some argument; and that is when I saw
H. T. have his gun on [the deceased] and
shoot;” that the witness “did not see Asa
Johnson and Theotis Walker at that time ;”
that the witness was fifteen or twenty feet
away, but it was in the light; that when
he “looked around, H. T. had the gun and
brought it up and fired it; when H.. T.

brought up the gun, [the deceased] reached
for the gun that H. T. had; I did not see
[the deceased] with anything in the
world;” that “when this pistol fired, just
H. T. and [the deceased] were together,
* * * there wasn’t anybody down on
top of each other when it happened, if they
had been I could have seen them; I did
not see Asa Johnson and I did not see
Theotis Walker hold of anybody at that
time; that is all I seen at the time I saw
them when the pistol fired * * * when
I looked around, nobody was holding any-
body.”

Zelma Calhoun, sister of the deceased,
testified that she was a practical nurse at
a hospital, and was there with the deceased
just before his death; that he knew he was
dying, and on the day of his death told
her that “he was going to die,” and asked,
“Has he got those boys locked up?” “I
said, ‘they have H. T. locked up,’ and he
said, ‘They didn’t give me a chance. Asa
held me and this other boy took the pistol
and shot me.’”

Thomas Solomon, father of the deceased,
testified that he heard the shooting, but
did not know his son had been shot; and
while he testified that he saw H. T. John-
son with a pistol in his hand, and that he
“saw Asa Johnson, his brother at that
time,” he also said that he “did not see
anybody but those two,” one who “was
standing upright when he was shot, and
H. T. was standing upright from what I
could see;” but that “there was plenty of
other people there.”

H. M. Amis testified as to a declaration by
the deceased, after being shot and being
told by the doctor that “everybody who had
been brought in with that type of wound
had died,” in which the deceased said that
H. T. Johnson “and his brother had killed
him, and that he shot him without any
cause;” and that “H. T. was the one who
shot him, and that his brother was with
him.”

For the defendant, Sammie J. Price
testified, that when the deceased “went
towards his car * * * ‘he said he was
going to get a gun;” that when the de-
ceased came back in five or ten minutes, or
not that long, all he said was, “Well, I
am back now;” that the witness saw no
weapon on the deceased, and did not hear
him mention having one; and that when
the deceased “got shot, he was not doing
anything * * * I didn’t see him do
nothing.” This witness did not see the

JOHNSON, L. C., bl, elec. GA
(Newton) March 9, 1945

‘MURDER

in the

SWAMPLAN DS

By Clell Morgan

of the bed, his face buried in his work-scarred hands,
apparently oblivious of Sheriff W. G. Benton’s presence.

On the floor beside the bed lay the body of a woman—the
man’s wife. She was fully dressed except for shoes and stock-
ings. They were under the bed, as if she had been planning to
put them on when death suddenly struck. She wore a crisp,
freshly ironed dress, but blood stains smearing ‘the front of it,

Cis G like a child, the middle-aged man sat on the edge

.marred the simple beauty. of the cotton garment.

Mrs. James Berry was dead. Her skull had been merciless
beaten into a bloody mass of hair, flesh and borie that’ was
almost unrecognizable.

The sewing machine, on which she had made the dress just
three days ago, stood against the bedroom wall just three feet
away. Blood from her body wove a slow, ugly stream under
the machine.

The coroner, making a hurried examination of the corpse,
looked up at Sheriff Benton. “I’d say she was murdered two
or three hours ago,” he said. “She apparently died instantly.
No marks of a struggle. She must
have been struck with a club from
the rear and probably never knew
what hit her.”

Benton nodded. His hand
rested nervously on the bofie-
handled .45 caliber pistol in his
overcoat pocket. “Okay. Better
get the body back to the funeral
home at Covington. Finish your
examination there.”

The husband looked up. He
rubbed his reddened, tear-stained
eyes and cried out piteously, “Oh,
Mama... why did I ever leave
you this morning... why...”

He started to get to his feet,
but a neighbor, Fred Neely,
placed his hand on Berry’s shoul-
der. “Take it easy, Jim. You'd
better wait here for awhile.
There’s nothing you can do for
her now anyway.”

Sheriff Benton stood at one

When the police snssobead slayer’s home
they had undeniable proof of his guilt
in a pair of blood-splattered trousers.

DETECTIVE WORLD, May, 1946

side of the room and watched every move, every action of the
neighbors gathered in the house who were trying to comfort
the man. Benton missed nothing. He was one of the most
thorough; perceptive, and fast-action sheriffs that Newton
County, Georgia, had ever had.

Bentor! was well aware of the fact that he couldn’t fall down
now. This atrocious, cold-blooded murder had aroused the
whole swampland. Glancing outside the neatly curtained win-
dow, Benton saw more than fifty angry men, who lived nearby,
milling’ about in the cold, muddy front yard of the Berry home.
The men carried guns. Two carried long, heavy ropes—and
there was no doubt what that was to be used for if the situation
got out of the sheriff’s hands.

Turning his attention back to the scene of the murder, Benton
looked the bedroom over carefully. There was no sign of.
struggle. There was no club that could have been used to
murder Mrs. Berry. He had to agree with the coroner—the
woman had been struck down suddenly, probably without
knowing her killer was even in the room.

And there seemed little doubt
that revenge or hatred had moti-
vated the crime. The ferocious-
ness of the attack upon the
woman brought about this de-

- duction.

According to the coroner, Mrs.
Berry had been. murdered some-
time between seven and ten
o’clock that Sunday morning of
February 4, 1945. Perhaps, she
had been preparing to go to
church when the murderer struck.

As soon as the husband would
quiet down, he might tell them
more about that. He probably
could tell them about a lot of
things, but at present, he was in
no condition to talk.

It had been raining steadily in
the. swamps, now, for four days.
The farmers’ shoes were covered
with mud which they had tracked

into the house and smeared the

—

TITRE a 3

Ss Te tle ange
etre tepwraniane

Sa Tas

RYING lil
t3 of the bec
apparenth
On the floor b
man’s wife, She
‘ings. They were
put them on whe
freshly ironed dr:
-marred the simpl:
Mrs. James Be
beaten into a bk
almost unrecogni
The sewing m:
three days ago, s
away. Blood frc
the machine.
The coroner, 1
looked up
or three h
No marks
have been struck
the rear and prob
what hit her.”
Benton nodde
rested nervously
handled .45 calib
overcoat pocket.
get the body bac!
home at Covingtc
examination ther
The husband }
rubbed his redder
eyes and cried out
Mama... why «
you this morning
He started to
but a neighbor
placed his hand o
der. . “Take it ea
better wait he:
There’s nothing
her now anyway.
Sheriff Bentor

some money, and you were sentenced
to serve from one to five years for
burglary and six months for larceny.
But.the parole board let you out be-
fore you finished your minimum term.
You got a job with the Berrys, but
Mrs. Berry saw right off that you
were a thief. So her husband dis-
charged you. You got another job and
started taking things there, and you
were fired.

“You felt that if it hadn’t been for

Mrs. Berry you might have kept your
job, and you resented it. You swore
you’d get even with her some day.
You knew that Mr. Berry left the
house every Sunday morning to get
the Sunday’ paper and you figured
that would be a good time to kill his
wife, so you left your house early
yesterday and went to the Berry’s.
You remembered that Mrs. Berry
kept her stirring stick on a nail on
the tree back by the spring, so when
you got to the front door you walked
back and then all the way to the tree
to get that stick. It was rainmg yes-
terday morning, and you got your feet
muddy so you made a nice clear track
all the way to the spring and back
to the house.

“The front door was locked, but the
back door was open, and you walked
right into the bedroom where Mrs.
Berry was getting dressed. You hit
her and hit her again, and you got
blood all over your own clothes. After
she was on the floor, you kept on hit-
ting her, and then you cut across the
back to the field and some distance
away, you threw away the stirring
stick, but you didn’t think of wiping
off the fingerprints you left on the
stick.”

He paused. The man in front of him
said nothing. Benton continued:

( Continued from Page 27)

Salt Lake. When he was through, a .

lengthy wire had arrived from the
Alameda County authorities.

The victim had been identified as
Mrs. Agnes Abigail Williams, of San
Leandro, California, where she had
been a schoolteacher. She had had a
gray model A Ford sedan.

Her sister, Mrs. May Weddle, also
of San Leandro, reported Mrs. Wil-
liams had been en route back to.Cali-
fornia after a tour ‘of the middle-

west to visit other relatives and:

friends. As far as she knew, Mrs.
Williams was traveling alone with

two dogs. Her second dog had license -

No. 31.

Mrs. Weddle had no way of know-
ing how much money her sister had
been carrying, but she reported that
Mrs. Williams had owned a very valu-

“The blood on that battling stick is
the same as Mrs. Berry’s. The finger-
prints on the stick are yours — we
found that out because you had‘a
criminal record.” :

“But lots of people have the same
blood type,” Johnson protested: “Sup-
pose I did use that stick; you can’t
prove it belonged to Mrs. Berry, and
you can’t prove it was her blood.”

Benton smiled.. “We can prove it
was Mrs. Berry’s stick, all right. You
know that everybody makes some kind
of mark on the stick to identify it.
Well, this one happens to have a let-
ter ‘B’ carved’ on it, carved by Mr.
Berry; himself.” He drew the stick
from a desk drawer.

“But that isn’t all,” the sheriff
went on. “You got your shoes all
muddy, and you made a perfect trail

with them. We took casts of the foot-

prints, and in your housé we found
the shoes you wore. They match the
casts. What’s more, they’re covered
with blood. I’ll gamble that.it’s Mrs.
Berry’s blood. And I also found the
shirt you were wearing yesterday. It’s
covered with blood, too. Same thing
with the handkerchief you wiped your
hands on: That’s full of blood.”

“TI had a nose bleed,” Johnson ex-
plained, weakly.

The telephone bell rang. Benton
listened a while, then hung up and
turned to. Johnson. “I tofd you there
wasn’t any sense in my going to Eat-
onton. You didn’t get there until yes-
terday afternoon, after the officers
saw you at your house. When you

_tell a lie, be sure it’s a good one. It’s

too easy to get tripped up.” :

A few hours later Johnson’s last
excuse—that the blood on his clothes
came from a nosebleed—went up in
smoke. The blood was of the same

‘able diamond ring that she considered

a reliable source of money if she ever
happened to be short on ready cash.
She would often pawn the ring for
what she needed, and then redeem it
as soon as possible.

There was no way of knowing if
this ring had been in Mrs. Williams’
possession. when she passed through
Vernal. Snyder got in touch with Miss
Taylor, but the waitress could only
say that she did not recall seeing any
ring. “If it was really a good one,”
she said, “I don’t see how I’d have
missed noticing it while she was here
because I’m somewhat jewelry con-
scious and I admire nice things like
that.” :

Armed with this information, the

FBI then made an estimate of the ~

route followed as Mrs. Williams.came

- west from St. Paul, since that was the

_ type as Mrs. Berry’s, and different

from his own.

“All right,. I did it,” Johnson ad-
mitted. “I went to the house to talk
to her. I didn’t intend to kill her; I
wanted to ask her to take me back.
I asked her to let me read the funny
papers, but she told me not to come in
because she was getting dressed and
Mr. Berry wasn’t there. She said I
should wait for him to come back with
the paper.” ;

He then decided to go to the spring
and get the stick, and rob the elderly
woman, he said, However, when he

entered the house he decided to hit

her.
* * *
ENTON obtained a written, signed
confession and moved swiftly. He
had so complete a case against the
19-year-old farmhand that an indict-
ment was returned the next day, and

‘on February 14, 1945, only ten days

after Mrs. Berry had been struck
down, he went to trial. The jury de-
liberated only six minutes and re-
turned a verdict of guilty of murder.
Johnson was sentenced to die in the
electri¢ chair.

Sheriff Benton sighed, for he felt
that if the parole board had not re-
leased Johnson before the expiration
of his minimum term, the murder of
Mrs. Berry might not have occurred.
He. launched an investigation and a
Newton County grand jury, and a
De Kalb County grand jury, as well,
handed up presentments criticizing
the procedure of the parole board in
failing to consult local officials before
releasing convicts.

NOTE: (The names Richard Car-
son and Jack Starke, as used in this
story, are fictitious for obvious rea-
sons.).

last definite place where they were
able to establish her presence. The
higher class loan offices in all the
cities along the way were contacted
by detectives from several dozen
bureaus, and where available, the
FBI men made the search for some
place where Mrs. Williams might
have left the diamond ring.

Two weeks passed as the officers of
several western states laboriously dug
through clues and tips that invari-
ably ended in nothing.

In the meantime, Mrs. Weddle came
to Vernal and positively identified the
body as that of ‘her sister. Sobbing,
the woman said softly, ‘“My sister has
a framed motto hanging on the wall
of her home in San Leandro. It says:
‘Be kind to strangers; they are all
Children of God.’ ”

Sheriff Snyder stared into space for

CERTIFIED DETECTIVE CASES

in .

Heart-broken by his wife’s sudden death
the aged James Berry suffered a severe
collapse and was unable to aid officers.

;
floor. Benton searched each room of the small,
wooden house—which Berry had been painting
white before the rains started—but the sheriff found
no trace of the death weapon.

From the rear kitchen window, Benton searched
| the sloping area that led down to the small creek,
| about a hundred yards away, which bordered the
thickly wooded section covered by thick underbrush

i where bugs, mosquitoes and snakes lurked. Over

if to the far side of the clearing, Benton spotted a

| narrow trail, wide enough for a wagon or a car,

Ht which led back into that foreboding looking swamp.

His eyes followed the trail until they came to rest

on a small cabin, almost hidden in the heavy fog

and mist which covered the area. A curling, wind-
ing stream of smoke rose lazily from the chimney
at the back of the cottage.

“That’s where I live.’’

who was talking to him. It was the man who
alt had introduced himself to the sheriff as Fred Neely.
| He was standing directly behind the officer.

Benton looked out the window once more. He
saw several of his deputies and some state officers,
whom he had called in, plodding their way slowly

} through the mud towards the Neely home now.

He had given them instructions to search the

entire area carefully, look for any possible clue,

check all neighbors to get’ a line-up on possible
suspects.

“I’m the one who called you this morning,” Neely
went on, “Soon as Jim came down to my place and
told me what had happened, I telephoned you. It’s
a horrible thing. We have to catch the fiend who
did this, Sheriff.”

i HERIFF BENTON turned suddenly to see
|
|

James Berry
Sunday stroll
Almon for n«
while he w
tragedy had s

ee ee rer Te Se ee

Benton slow]
catch him.”

The sheriff t
against the cold
a position wher:

Although the criminal made

painstaking efforts to leave bona ral

place and told y

no clues behind, the police ‘ -

About ‘nine «

found clear sets of his foot- “By himself?

prints, that later were used “Sure.” ;

' to identify him as the killer. “Had. you: be
came?”

“T was inside
Jim came dow
breakfast, got
when Jim came
pass out.”

“Did you not
morning while )
“Just Jim. S:
“You never sa

The victim had just finished
dressing when she was struck
over the head so mercilessly
that she died instantly. W. G.
Benton, the sheriff of Newton
County, reconstructs the crime.

Federal Security Agency GEORGIA DEPARTMENT OF PUBLIC HEALTH \ §
U.S, Public Health Service CERTIFICATE OF DEATH “pain tte ne LOO

BIRTH NO. . Militia Dist. Mo. Custodian’s No,
T. Place of Death j | . z Usual Residence (Where deceased lived, If institution: residence belure admission)
s county Tattnall sue Ceorgia _cousty__ Chatham :
“ R yen eet Heltte | STAY tin thie place) yin city Uealte. ATAY tla this place)
= on ° this place City : on ° in this place
> wer. Reidsville LO mofie Town Savannah Unknown
Seay OF
Name of Hos Street Addross or
er me ol Hoty 9 orgia State Prison 15 mos | #7) ‘and DoxNo. LO4 Foll Street
3 Lt a. (First) b. (Middle) C ah 4. hag (Moath) (Day) (Year) :
(Type of Print) “HOTMAN Lee Miller | DEATH June 15, 1954 :
be S. SEX 6. RACE |7. BIRTHPLACE (State or foreign country) couTAy? OF WHAT 115. BURIAL 43) DATE NAME OF CEMETERY OR CREMATORY . rane
REMOVAL a, 7 Renee
M B | Savannah, Georgia ‘ohic | Seeexnon fal aero | Woodsville Cemetery °
“§. DATE OF BIRTH 9, AGE (In years/IF UNDER | YEAR| IF GROER 24 HRS. LOCATION (City or Town) (County) (State) | 16. EMBALMER’S ADDRESS :
d last er Months | Days | Hours Min, ‘ ght
March 6, 1935 Savannah, — Georgia | Metter, Gae ey
10.. MARRIED () NEVER MARRIED Xd] ll Married or Widowed Give Name of Spouse |17, EMBALMER- GNA LICENSE NO. ee
1) WIDOWED (0. DIVORCED (1) ©} 3.4
SEPARATED [J pos) 1535 ats
B Tl. USUAL OCCUPATION (Give kind of work KIND OF BUSINESS OR 18, Sahar iinEeTOR LICENSE NO. ta ks
x mT done during most of working life, even if retired) | INDUSTRY ; a
Ss) . Lawrie! be General, Monroe Funeral Diente 706 we
2 NG WAS pea nejac Sittin IN ny s. Laer pe ety nie ; ) SOCIAL SECURITY NO. |19, FUNERAL DIRECTOR’S ADDRESS ual
es, no, gr unknown yes, give war or dates of service srs
io | nknown 611 We Broad St Savannah, Georgia Bilis
fi 13. FATHER'S NAME 20, INFORMANT vet
5, 14, MOTHER'S MAIDEN NAME : 21. INFORMANT’S ADDRESS i >
Fs Charity Miller Reidsville, Georgia Ae
v ; . INTERVAL BETWEEN Psi NOT WRITE IN ‘ ‘
22. CAUSE OF DEATH Enter only one cause per line for (a). (b) and (c) See Revarse Side ONSET AND DEATH EIN THIS SPACE ‘
ee : 3 ‘
wz| I. DISEASE OR CONDITION CRE
Oo DIRECTLY LEADING TO DEATH (a), 5 Cia w?
| ANTECEDENT CAUSES oa oe “
a BI ' DUE TO (b) hid
1} E DEseoee Sendiions, if “ny, giving . 3. 4.
=| fs| the fd an Srvigtony Echt es LEGAL ELECTROCUTION oe | . sat 7 ae
| “Tf. OTHER SIGNIFICANT CONDITIONS : 3. é. : 5
U| Conditions contributing to the death but not | | ‘
Q| related to the disease or condition causing death, Gert
ti|23. DATE OF OPERATION | MAJOR FINDINGS OF OPERATION 24. AUTOPSY? ry
YosTJ No ae,
25. ACCIDENT (J |} PLACE OF INJURY. (e.g.. in or about INJURY.OCCURRED tt
. SUICIDE (ED | home, farm, factory, street, While at Work 20. I hereby certify that I attended the deceased from a
‘ office bldg., atc.) Not While at Work
HOMICIDE 19. to. 19 that I last saw the deceased
(CITY OR TOWN) (COUNTY) (STATE) TIME (Month). (Day) (Year) (Hour)
| OF alive on , 19 end that
INJURY death occurrock at________-m., from the causeg and on the date stated above.

WOW Dip INJUAY OCCUR? 75. ra a ee a sical aa
Wa be

Rev, 1-1-53

i. DATE REC'D BY LOCAL Vi Xe NATURE ADDRESS DATE SIGNED
ot Gal 5254. ay taney, -Roidevs 11o Ga.
bo a Li git Lim he ehh oF ries die grey wal? anv pits at vs) i, deceit ‘day dais Mey i bia mc PRS ts a ket. saith

THIS IS TO CERTIFY THAT THE ABOVE IS A TRUE REPRODUCTION OF THE ORIGINAL
RECORD ON FILE WITH VITAL RECORDS SERVICE, GEORGIA DEPARTMENT OF HUMAN
RESOURCES. THIS CERTIFIED COPY | IS ISSUED UNDER THE AUTHORITY OF CHAPTER

31-10, VITAL RECORDS, CODE OF GEORGIA.

WihosOR : Barns

e DATE oct 29 1991 STATE REGISTRAR & CUSTODIAN
DIRECTOR, VITAL RECORDS SERVICE

(VOID WITHOUT IMPRESSED SEAL OR IF ALTERED OR COPIED)

SUucCCLvurT _.

172 Ga.

It is not contended that this charge was
not a correct statement of the law relative
to drunkenness as a defense, but it is con-
tended that the charge as a whole was
error, in that it was not authorized by the
evidence or the defendant’s statement.

The identical question here raised was
decided in Overby v. State, 183 Ga. 353(4),
188 S.E. 520, and was decided against the
contentions of the plaintiff in error in the
instant case. Two Justices dissented in
the Overby case, but not on the question
here raised. The opinion is, therefore,
unanimous as to this question. We are
requested to review and overrule Overby
v. State, supra. Some of the Justices are
of the opinion that the rule as laid down
in the Overby case is sound, and the request
is denied.

Speaking for myself, I am of the opinion
that Overby v. State, supra, should be over-
ruled and the judgment in the instant case
reversed. In the Overby case, and in the
instant case, such evidence as was offered
with reference to drunkenness was pro-
duced by the State and could have been
offered for one purpose and one only, that
of illustrating the state of mind on the part
of the defendant. The State did not there-
by inject into the case any contention or
theory that drunkenness is or is not an
excuse or justification for crime. The de-
fendant did not insist upon any theory of
drunkenness as a defense. I think that,
under these circumstances, the charge
should have been limited to the purpose for
which the evidence was introduced, that of
illustrating, if it did, the state of mind of
the accused; and that the injection into the
case, by the charge of the court, of the law
of drunkenness as a defense to crime was
harmful error.

[4] 3. Ground two of the amended
motion for new trial complains of the fol-
low excerpt from the charge: “Gentlemen,
the defendant in this case contends that the
shooting of the pistol referred to in this
case, was accidental, and he says he is not
guilty; but that, if he did the act and
caused the pistol to be discharged and
caused the deceased to lose her life, it is
attributable to accident.” The criticism is
that the language, “but that, if he did the
act and caused the pistol to be discharged
and caused the deceased to lose her life,
it is attributable to accident,” was er-
roncous, in that it incorrectly stated the
contention of the defendant with reference
to how the killing occurred. It is argued

32 SOUTH EFASTERN REPORTER, 2d SURIES

that the defendant did not contend that he
caused the gun to fire, but that the deceased
grabbed the gun and he grabbed her hand,
and in the scuffle over the gun it was ac-
cidentally fired. The effect of the excerpt
here complained of was to instruct the
jury that the contention of the defendant
was that the gun was accidentally dis-
charged, regardless of who had actual
possession of the gun at the time it was
fired. This was a proper instruction to be
given the jury under the evidence and the
contention of the defendant in this case.

It follows that the judgment refusing a
new trial must be affirmed.

Judgment affirmed.

All the Justices concur,

JACKSON v. STATE.
No. 14975.

Supreme Court of Georgia.
Jan, 5, 1945.

1. Criminal law €=398(1)

Testimony of victim of alleged rape
that directly after assault she went to 4
hospital where a strong solution was in-
jected into her female organs and that re-
turn ran over her hand and contained se-
men discharge was admissable over objec-
tions that such testimony amounted to a
mere conclusion and that semen _ itself
would be the best evidence.

2. Rape €=5!(1)
Evidence authorized conviction ot
rape.

Error from Superior Court, Fulton
County; A. L. Etheridge, Judge.

Willie Jackson was convicted of rape, and
he brings error.
Judgment affirmed.

Willie Jackson was tried and convicted
on an indictment charging. him with the
commission of rape. He filed a motion for
new trial on the usual general grounds, and
later filed an amendment to his motion,
based upon his objection to the introductien

BRASWELL v. BRASWELL Ga. 773
Cite as 32 S.E.2d 773 °

of certain testimony which is set forth in
the following ruling.

Francis Y. Fife and Burress & Dillard,
all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., Durwood T.
Pye, and E. E. Andrews, all of Atlanta,
T. Grady Head, Atty. Gen., and Victor
Davidson, Asst. Atty. Gen., for defendant
in error.

Syllabus Opinion by the Court.
GRICE, Justice.

[1] 1. On the trial of a person accused
of the crime of rape, the person alleged to
have been assaulted having testified that
directly after the assault she went to a hos-
pital where she was given an injection of
a strong solution in her female organs, and
that, “that return came back and ran over
my hand. I especially did that for a pur-
pose. Semen, discharge was in that solu-
tion,” an objection to the testimony on the
ground that the semen itself would be the
highest and best evidence, and that the evi-
dence amounted to a mere conclusion, was
properly overruled.

[2] 2. The evidence authorized the
verdict.

Judgment affirmed.

All the Justices concur,

w
© — KEY NUMBER SYSTEM
T

BRASWELL v. BRASWELL.
No. 15057.

Supreme Court of Georgia.
Jan. 5, 1945.

1. Divorce C286

The discretion of the trial judge in
allowing temporary alimony and attorney’s
fees will not be disturbed unless flagrant-
ly abused.

2. Divorce €=213

A husband may be decreed to pay rea-
sonable temporary alimony, although he
may not have property cither at time of the
filing of the libel for divorce or at the
time of the trial, if it appears that he is
capable of performing manual labor and

earning the usual wages therefor but not
equipped to follow any trade or profes-
sion, and at time of the hearing may have
no employment.

3. Divorce C211, 223

Trial court did not abuse his discretion
in allowing wife in husband’s divorce ac-
tion temporary alimony of $40 per month
and attorney’s fees of $75, under evidence.

———>———.

Error from Superior Court, Johnson
County; R. Earl Comp, Judge.

Action for divorce by W. M. Braswell
against Ethel Rowland Braswell, wherein
defendant filed a cross action. To review
a judgment allowing defendant temporary
alimony and attorney’s fees, plaintiff brings
error.

Affirmed.

R. I. Stephens, of Dublin, for plaintiff
in error.

W. C. Brinson, of Wrightsville, for de-
fendant in error.

Syllabus Opinion by the Court

DUCKWORTH, Justice.

[1] 1. The discretion of the trial judge
in allowing temporary alimony and attor-
ney’s fees will not be disturbed unless it
has been flagrantly abused. Taylor v. Tay-
lor, 189 Ga. 110(2), 5 S.E.2d 374; Burger
v. Burger, 196 Ga. 428, 26 S.FE.2d 615.

[2] 2. A husband may be decreed to
pay reasonable temporary alimony, al-
though he may not have property either
at the time of the filing of the libel for
divorce or at the time of the trial, if it
appears that he is capable of performing
manual labor and earning the usual wages
therefor but not equipped to follow any
trade or profession, and at the time of the
hearing may have no employment. Hall v.
Hall, 185 Ga. 502, 506, 195 S.E. 731.

[3] 3. Upon application of the above-
stated principles of law, where to a hus-
band’s action for divorce the wife filed
an answer and cross-action in which she
sought alimony and attorney’s fees, al-
though the uncontradicted evidence at the
hearing was that certain real and person-
al property of the husband was subject to
an indebtedness “practically equal” to the
value thereof, and that the present income
from the property was insufficient to pay
the interest on the indebtedness, his testi-

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TET eTPARCS (PSPIRERSRCERT REL £68

“GEORGIA DEPARTMENT
CERTIFICATE

Fedoral Security Agency
U. §: Public Health Service

OF PUBLIC HEALTH >
OF DEATH AZ000

State File No

Custodian’s No.

BIRTH NO, Milliia Dist, No.
1, Place of Death ;

County Tattnall | 7. “Hy
In City Limita TENGTH OF
YesQ No Faia this ee

2. Usual Residence (Where deceased lived. If institution: residence before admission)

sute_Gaorgin __county_© Clarke __
CENGTH OF

In City Linits
¢ :
giver athens

Unknown

\giuyer Reidsville

; ; Tenor OF
_Mmeoltora gonota State Prison | 10 mos

Steel Addresor 965 Marvin Street

3. NAME OF a. (First) | b. (Middle) c.
DECEASED

(Type or Print) _ Willie. (Altes :Mervin)

“3. SEX .] 6. RACE |7. BIRTHPLACE (State or foreign country){"CITIZEN OF WHAT

uM |B Greensboro, GeorgiporHiny 4,

(Last) 4. Rote (Month) (Day) (Year)

Jackson, Jre beam dune 15, 1954

15. BURIAL DATE NAME OF CEMETERY OR CREMATORY

REMOVAL Cl 6.18=54/Spralding Cemetery

CREMATION ()

‘ss 8. DATE OF BIRTH f° ping (in yearsjIF UNDER 1 YEAR| IF UNDER 24 HRS.

irthday)| Months | Days Hours: Min.
8417-36. t |

LOCATION (City or Town) (County) nae | 16. EMBALMER’S ADDRESS

Athens (Clarke) Gae Metter, Gae

* Ter MARRIED (] NEVER MARRIED 3X] If Married or Widowed Give Name al Spouse
WIDOWED () DIVORCED,.D ~
: SEPARATED [) ™ iy

‘TI, USUAL OCCUPATION (Give kind of work KIND OF BUSINESS OR
done during most of working life, wven if retired) Ba ie

Laborer:

_ {18 FUNERAL DIRECTOR

iE NATURE LICENSE NO.
Thro bi, LL. | iss”
ay 4

LICENSE NO..

Mack and Payne Funeral Home} 866

. 12.-WAS DECEASED EVER IN U.S. ARMED FORCES? SOCIAL SECURITY NO.
, (Yes, no, or ees (If yes, give war or dates of sorvice)

No — Gop Nedbank Unknown

19, FUNERAL DIRECTOR'S ADDRESS

Athens, Georgia

13. FATHER’ 8S NAME

Unknown.

20, INFORMANT

S. Re Lawless

. 14, MOTHER'S MAIDEN NAME

21, INFORMANT’S ADDRESS

Jessie Mae Jackson

CHECK CERTIFICATE CAREFULLY

Raidsville, Gee »or

INTERVAL BETWEE 5 NOT WRITE IN THIS SPACE

Enter only one cause per line for (a), (b), and (c) See Reverse Side

ONSET AND DEATH | 1.

22, CAUSE OF DEATH |

1 DISEASE OR CONDITION © :
DIRECTLY LEADING ed DEATH (a)

ANTECEDENT CAUSES «|i.

G o oy

2 t ‘DUE 10 (b)
Morbid condittons, if any giving

the underiing tian lest sowie v0 GG) 7 ke * LEGAL ELECTROCUTION

Il. OTHER SIGNIFICANT CONDITIONS

Conditions contributing to the death but not’
related tothe disease or condition causing death,

MEDICAL cereercapen

23, DATE OF OPERATION | MAJOR FINDINGS OF OPERATION

24, AUTOPSY?
YesQ No cx

25. ACCIDENT [) | PLACE OF INJURY (e.g., in of about. | INJURY OCCURRED
"... SUICIDE . (| home, farm, factory, street, While at Work

- HOMICIDE. 5 | lfice bldg. ete.) Not While at Work

28. I hereby certify that I attended the deceased from
19, SS es 19

‘(CITY On TOWN) (COUNTY) (STATE) TIME (Month) (Day) (Year) (Hour)
Med INJURY |

_-MOWDID INJURY OcCOR?

29, SIGN Phas,

— re

Be, THERES BY 10C Pi RTL
He: 6-15-54 Ayo ati may :

| THIS IS TO CERTIFY THAT THE ABOVE IS A

TRUE REPRODUCTION OF THE ORIGINAL

RECORD ON FILE WITH VITAL RECORDS SERVICE, GEORGIA DEPARTMENT OF HUMAN

RESOURCES.
31-10, VITAL RECORDS, CODE OF GEORGIA.

}
DATE NOV 1 5 1994

THIS CERTIFIED COPY IS ISSUED UNDER THE AUTHORITY OF CHAPTER

Wyo R: Aor

STATE REGISTRAR & CUSTODIAN
DIRECTOR, VITAL RECORDS SERVICE

(VOID WITHOUT IMPRESSED SEAL OR IF ALTERED OR COPIED)

Yess) No{ |STAY (in this place) ‘

that I last saw the deceased °
alive on 19 and that

doath occurred at___.___§_»s __m., from the iz a on the date stated above, : ee
Degree or fille. e

Seti saiednd tea? Siok Mise cnet died cheeks

ee ee

ceapepepsteney

cere Siety

8. C 174 SOUTH EASTERN REPORTER
236 »&.

and a somewhat det
facts as proven will be necessa
that a right conclusion be reac

on and daughter, moved to Clinton, ie ~<
ork in

ry in order their own accord and secured Ww ee
i that place. The policy of insur

hed in this mill at agg agen

was then canceled, not only for pig oe

; : Ae

pe age! ' that th that no further premiums were souer =

: re, Tes ans were no ,

In the nace pare as so often pro- because en ag oe desl 2 aE
nition of “total dl ne ig hereby again adopt- ployees of V eT veh meric >
nounced by this court 1S f I as ueeniaek ie .
ed and will be adhered to strictly in this opin as able Ge gnides eat ve

i an ouse

a 3 prought in lar work could be gprs a ae
vor ré s cheaper. At Ware Shoals Mrs. 4

On June 2, 1932, two su sie tote tr, Mor
mee ¢ amily and workec

the court of common pleas for nage Cun gan kept rane for the f 2 Pied fe tase

ty against the defendant, the gh rE bis tne mill as a “quarter ae se ee te

and the other by Will Mors” of regular employees when

cae gat pha disability benefits under the noon hour. In this way she ‘wtteed only

piper: policy issued by the defendant as evl- ted'or three hours sisal: er. Mr. Morgen

; ine ‘ regularly while a

denced by certificates held by each ‘ian apparently, worked sine “i 7 Se aati
a ys waren oat DY bigs at suit Shoals until the night work wé s
i Before either

Manufacturing Company. '

was brought to trial, Will Morgan sap

the complaint brought by him was amen¢ ed;

his wife, Carrie Lee Morgan, the beneficiary,

pa re = ogee pins Morgan shows that his work began in Clin-
i the substitute -
action was not changed,

ec ung sa enefits and no 5 his first
tiff cla d bility b fit d ton in September ’ 1930, and that

i ility t death 1 :
7g - tober 1982, term of the r ded on * eptember 20th.
benefits. At the October, . week of wo k en on S 0 For

. +, k
w ked five days; for the wee
; Hi it that week he wor a
nephrin ity —< e e ending September 27th he worked five days;

: & Will Morgan hus i ssing ad 1y now ind then vu ntil

: : : y ' de a on pn 29

Ti rgan and 1 Morgan, a
‘yband a wife, were employed b Ware July 13 1932 He dro ed dead

: 1932. con
ne SAS _ _ Mrs. Morgan worked more hours at SEgee
. Speatintanps™ cw id at Ware Shoals. ne
ufder a policy of group insu ee cies y Ta ek .
: : 3 ul ‘a , 7" - ri ry,
et sag heed reso mp a record shows that she w orked from Februa
and to the latter on Mare 3 ,

; also through the
" claims to have been totally dis- 1931, through agra gt _ er
i ee laim was made remaining mon , se
abled in August, 1930, but no cle Samanta Sins Way. Leper

: ere no proofs of same sub- nei wr
on =. ee i ae The policy ex- Testimony by physicians was offer
mitted until Mare » 1932.

: sae f°

yi inti ; he physical condition 0

ai f Will the plaintiff to show t

i in August, 1930. The claim oO ae
pired in age he was also totally disabled both of the Morgans. It mire safest at
meget = "1, while the policy was of foree, testimony, using Lage = Racal aos

agin gee i ‘hnical terms, that they had s
i i ; thereunder and his tec ¢
but his claim for benefits

i ar i d diseased kidneys,
isabili i] Mareh defective heart action an
1, 198 pee ey oe the high blood pressure of both being but the
1, 1932.

i ications.
more serious complicatio
yees of th a 2
ee ae on ac- However, these examinations W fa pre gor
lies -rigentonseh bag oe ab te prevalent after the policy had lapsed under Vv
customed work and ow :

. Jaims were made.

depression night work was suspended. In or- c 6 ae ea a scan

‘i i t some work might be given to all, the In addition to See reek sin te
der that s 1 out the work as much as_ sicians, the plaintiff testifie gee anton

rerseer spread ot A , S08 Be ' fa
als pe the benefit of those who had been lived at tice Wau eww?

: i ree i were examined by ¢é . Anison: ;

. ‘k at night, the Morgans being ; we or wae

persia tig s i. and is Morgans worked this doctor said they both "8 sain nt
"a aye ee pa during the remainder of pressure and heart trouble and he ¢ s
from time to g

< “y was then in force.
3 y yorki to stop work. The policy was
July and a part of August. While working * es

ailed statement of the si

e defi-

At Clinton the entire family was employed ;
the father, son, and daughter working regu-
larly, and the mother again working es
“quarter hand.” The pay roll record for Mr.

e evidence of

esularly the overseer says that they both The policy provided: sendy cage
me E e “time” and that neither com- shall furnish the Company. W a we
pieined of 9 that while insured under this policy ant

plained of any disability whatsoever.
About the first of September, 1930, the fam-
ily, consisting of Mr. and Mrs. Morgan, their

sixty, he has
fore having attained the age of sixty, ' “
become wholly disabled by bodily injuries

JAMES y. STATE Ga. 937
174 8.E.

disease, and will be permanently, continuous- impossibility of fair. trial, because of local
ly and wholly prévented thereby for life from prejudice, and danger of violence in case of
engaging in any occupation or employment &cquittal, requiring presence of militia at
for wage or profit, the Company will waive trial, held not abuse of discretion.

further payment of premium as to such em-
ployee and pay in full settlement of all obli-
gations to him under this policy the amount

2. Homicide G>250.
Evidence sustained murder conviction.

of insurance in force hereunder upon his life ras a ma ee
at the time of the receipt of due proofs of :
such disability.” Error from Superior Court, Banks County;

. W. Stark, Judge.
There is an insurmountable difficulty to the ¥. ~ 2

progress of the appellant in this case. It is Mack James was convicted of murder, and
the case of Hickman y. Insurance Co., 166 S. he brings error.

C. 316, 164 S. E. 878, 880. We will discuss Affirmed.

this case briefly as applicable to the facts

- On September 13, 1933, Mack James, col-
of the case now under consideration.

ored, who was serving a term on the chain
gang in Banks county, disappeared. He was
a “trusty,” and on the day mentioned was
washing clothes at a place a short distance
from the convict camp, and within a few feet
of a road. Wuring the morning of that day a
young white woman passed along this road
on her way to a country store. She was ac-
companied by another person. James was
seen at the wash place as they passed. The
person who was with the young woman left
her a short distance after they had passed the
wash place. The young woman appeared at
the store at about 9 o'clock a. m., and pur-
chased groceries. The person who accom-
panied her as she passed the wash place on
her way to the store passed the same place at
about 11 o'clock, and again saw James.
About noon James went to the convict camp
As the present case appears to come direct- At that time, according to witnesses, he was
'y under the principle announced in the Hick- perspiring freely, apparently had been run-
man Case, it follows that the judgment of the ning, and was very hot.
cirenit court must be sustained.

There is a marked similarity in the facts
of the present case and the facts of the Hick-
man Case and the principle of law is identi-
eal. In both cases a physician was of the
expressed opinion that a disability existed;
in both cases the plaintiff continued to do
customary work after the total disability was
supposed to exist; in both cases the policy
lapsed for nonpayment of premiums. A re-
covery was denied in the Hickman Case, the
court saying: “While it appeared that plain-
tiff was seriously afflicted, there was no evi-
dence upon which the jury could have predi-
eat®l a finding that she was ‘totally dis-
abled,’ under the court’s construction of that
term as used in a policy of this kind, before

erat the time of the cancellation of her in-
surance,”

His clothing was
wet up to his knees, and he had mud on his
Judgment aflirmed. knees and shoes. He scemed to be excited
and worried. He left the camp, . going

BLEASR, C. J., and STABLER, CARTER, towards the wash place, and did not appear
and BONHAM, JJ., concur. for the noonday meal, A search for him was
instituted, and parts of the clothing and the

shoes which he had worn on that morning

LD were found at points near the wash place.
Later it was discovered that the young white
woman mentioned had not returned to her
home, and about 2 o’clock that night her body
was found at a secluded place a short dis-

JAMES v. STATE. tance from the convict camp and from the

No. 10103. wash place. She had been dead for several

Supreme Court of Georgia. hours. The body was radly mutilated, and

April 12, 1934. according to one of the. witnesses, a physi-

cian, the condition of her body indicated that

Syllabus by Fditorial Staff. a very violent criminal assault had been

'. Criminal law G=121. : made upon her. Her hands and feet were

Refusing negro aecused of murder of ticd together with strings made from a flour
hi . F a > P
white woman change of venue on grounds of sack. The articles which she had purchased
——

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

tu) *ep ‘oats "yoeTq ‘Horm ‘smave

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JOHNSOH, John Wenry

Hanged, Savannah, Ga., Feb. 27, 1880
From Hearn 3/30/1990 - details to follow.)

Black; in March, 1878, had murdered a seaman,
presumably white, named Daniel “eDermott 3
vietim was a member of British bark TEKOMA
which was in the Port of Savannah at the time;
Johnson confessed and said his sentence was
juste

DISPATCH, Richmond, VA 2/28/1880 (3/3)

See New York Herald 2/29/80 4:4. Crime committed 3/16(73.
Followed victim out of whorehouse. and mugged him in the street.
Stabbed to death. Jehnson's age at execution exactly 32 years, 10
months and 26 days. He had ‘two trials.

JOHNSON, Eswie, bleck, hanged at Dawson, Georgia, Feb. 16, 1906,

"GALLOWS SWINGS JOHNSON INTO ETERNITY: PRISON BOARD REFUSED TO INTER}
FERRE, AND THE SLAYER OF AN OLD NEGRESS PAID THE PENALTY. CONFESSED
JUST BEFORE MOUTNING THE DEATH TRAP, Contraby to all expectations,
Essie Johnson died on the gallows in the Terrell county jail Friday for
the murder of 3lize Banks,an old negress eighty-two years of age,
three months ago, A strong peteition, signed by nearly all of the grend anc
triel jurors end endorsed by the judge and solicitor general, requesting a
commutation of the sentence to life imprisonment was presented to the
prison commission but their considering the case that board refused to
interfere, and late Thursday afternoon Sheriff Oxford received notice
to execute the sentence of the law next day. Johnson hed persistently
denied his guilt, and there were circumstances connected with the crime
which caused some citizens to believe there was a possibility that he
did not commit it. This doubt however, was removed by a confession
made a few minutes before the condemned man started to the gallows,
The confession was made first privately to a NEWS representative, but
only after Johnson had been assured that the last chance for him to
escape the gallows was gone and that what he said would not be told
uhtil after he was dead. H@ then confessed tod the murder saying he did
it to prevent the victim from testifying in court against his wife,
who was charged with the theft of some meat. Just before the tran was
sprunz, he said: 'I did it,' in response to ean urgent request by Rev.
A, J. Wilkinson, pastor of the A. M, E, church, who was with him in his
last moments, to say whether he was guilty. The gallows trigger was
sprung at 1:15 o'clock and the victim was one of the calmest and most
self-pbssessed of the 25 or 30 people who were present. Just before
leaving his cell he asked permission to bid his fellow prisoners good-
bye, and after shaking hands with them he ascended the steps to the
gallows without a tremor or assistance, 9nd was anpsrently unaffected
by the fate that was but a minute or two ahead of him. After the noose
had been sdjusted for the drop he asked Sheriff Oxford to tighten
it a little in order that there might be no chance of his neck not
being broken by the fall. The execution was as perfect ss it was possi-
ble for it to have been. The body gave only two or three slight twitches
as it hung in space, and the attenatee physicians pronounced life
extinct in 8 minutes. Johnson at first refused to put on the new suit
of clothes that had been provided Bor him, but he finally consented to
wear them, He insisted, however, on wearing his old shoes, and was
permitted to do so, The crime for which the penalty was paid Friday
was one of the most diabolical ever committed in the county. One night
last fall Hliza Banks, an old negress, heard her chickens squalling
and, with torch in hand, went out to see whet was disturbing them. She
was knocked down and shot three times, but lived several days, and stated
before dying that it was Essie Johnson who made the murderous assault
upon her," NEWS, Dawson, Georgia, 2-21-1906, pace 1/1/

HENRY JOHNSON, alias Ben Bacon, hanged Augusta, Ga., 11-29-1872,

Victim James H, Martin, an old gentleman wha lived near Bel-Air on Georgia Railroad. on
Octe 29, 1872, Martin came to Augusta from his place, about 12 miles from Augusa, with a
bale of cotton which he sold during day, While in city, was approached by Johnson, alias
Ben Bacon, who asked for work, Martin agreed to hire and they left city together that
afternoon for Martin's home, Near nightfall, Martin found unconscious in his wagon about
1 mile.from Bel-Air with wound on side of head, Pocketbook and one xhorse which had been
attached to wagon were gone and Johnson'had disappeared, Johnson seen by several persons
on Milledgeville Road, riding Martin's horse at rapid pace towards Augusta, Police
learned.he had fled to Hamburg and the next ewening when he returned to Augusta he was
arrested, Confessed to police that he had hired self to Martin for purpose of robbing
and that he had struck over h ad with gne of standards of wagin which they were riding.
Martin died on evening of Nov, lst. Johnson immediately indicted and tried a few days
later. Testimony was conclusive, Martin's pocketbook and papers being found on him as
well as confession, ‘as hung on South Commons of Augustapursuant to sentences On, week
of execution was baptized into Catholic Church, On morning of execution, his attorney,
Col.~C, CG Black filed with clerk of court a paper asking that sentence be stt aside on
grounds that sentencing judge had no right to designate place of hanging and that it was
error of judge to sentence him to hang before final adjournment of court, his counsel
having until then to mve for a new trial, Col, Black subsequently withdrew writ,

Before leating jail, he shook hands with several inmates and then arms pnionede ,He marched
to scaffold behind wagon bearing coffin, Between 5 and 6 thousand witnesses, majority

of whom were black, e - ies sii a o

zg
Confession, .

“ z , er nlt O oes maa ae eT
Augusta Jail, Nov, 28, 1872 , I, Ben Bacon, son of Shingleton McIntosh and Posey McIntosh,
the former dead and the latter living in Savannah, was born in Liberty County, I am about
22 years old, I accuse myself of inflicting the blow which caused the death of Martin, with
a wagon standard, and only one blow. Primary object - robbery, Did not intend to murder,
What I said about Ku Klux was false, Of this crime I feel: most, heartily sorry and repent
of it from the very depth of my heart, and willingly give up my life to make reparation
for that act as far as lies in my power----------" :

During reading of confession, he remained composed, gazing at crucifix which he held in
hands, At conclusion, asked Sheriff to say a few words and was allowed, Instrong voice
urged hearers to take warning by his fate and abstain from evil deeds, He then kissed
crucifix which priest held to lips. Knees trembled somewhat when cap placed over head

but displayed no other fear. Drop fell at 11:30 and he was pronounced dead 15 minutes
later, Was first man hung by civil courts since civil war. A white and baack man were
hung by U, S. military authorities near Powder Mills in 1865, a short time after occupation
by Federal forces, CONSIITUTIONALIST, Augusta 11-30-1872 je

In confession after trial, said real name was Ben Bacon and that before emantipation he
had belonged to Edward J, Dennegall of Liberty County in which county he had lived until
three months earlier when he sought and obtained work on Port Royal Railroad, Afterwards
came to Augusta end of road where he worked for some time and then quit and went to
Augusta where he met Martin on afteroon of 31st of Oct, Said: "I first met Mr, Martin,
who was with his wagon on Broad St, near Augusta Hotel on morning of 3lst. I asked him
if he wanted to hire a boy to work for him, He said yes, and asked me if I wanted to
work, I said I did, and he then asked me wnat I could do, I told him I could plough,
hoe or do anything, He told me then to come on and go in the country whith him, We went
dieatto a -arehouse, where I helped him to take a bale of cotton off of his wagon, I
don't think he got the money for it, as I heard him say he couldn't get it right then,

“e then went to Mr, NcDermott's store, where Mr, Martin asked Mr, McDermott to draw

up a contract for me to work with him, I signed the contract, and then me and Mr, Mratin
started out of town together in the wagon, Mr. Martin stopped at a mill and got a sack
of corn, We went on out on the Milledgeville road, This was in the afternoon, After
going down the road about a mile, we met a man who told Mr, “‘artin that the Ku Klux had

been after a black man on Mr, Martin's place, This scared me, and, after going a little

little further, I got out of the wagon and went into the bushes intending to give Mr.
Martin the slip and come back-to Augusta. Mr, “artin went into the bushes.too and told
me to come and get in the wagon with:him and we went on together, After we.got up the
road some distance the old Devil sot in me, and I.jerked out a standard of the wagon
and struck the poor old man on the side of the head with it. He was sitting on the
seat of the wagon, and @ was standing behind: him, He fell with his head and shoulders
over the side of the wagon, and I pulled him in and put his head on a sack of corn,
I struck him only once with the standard, I didn't cut him with a knife. I saw
his pocketbook-hanzing out of his pocket, and took it, unhitched the horse from the
wagon, and rode off, lcme to town and turned the horse loose near the Ice House, I
then went to Broad 5t. and bousht a blanket with some of the money I found in Mr,
Martin's pocketboook. I don't know how mch I pot, I paid $6 for the blanket, I
disremember which, I then went to Hambirg, The next day I,came back to Augusta to b
bring a basket to a colored woman by a boy who had come.over with me to go to the ,
circus, I stood there talking to another colored boy and then walked down the
street with him as far as the market, ‘hen we came up tothe market the boy said he
vanted me to pay his way into the circus, I said I didn't have any money. A police-.
man came up and asked the colored boy if he knew me, The boy said yest. The
policeman said that was all right and arrested me and took me to the guard house,"
when asked if he intended to kill Martin replies: "God knows I didn't strike him to
kill him, -I struck him so that I could get away and come back to town,..e"hen I first
hired to him: I intended taking his money when he got drunk and not taking it if he
did not get drunk, Said he had turned 22 on Sept, 26, 1872 and that he had wife and
two children in liberty County, Described as being very black, of medium height
and stout built, "His features are coasse and repuksive and would serve to strengthen
Darin = could he see him - in his theory, His face, in factg looks more like that of
a gorilla than a man, Fxhibited considerable emotion during interview and tears
several times coursed down cheeks, Speaks more sensibly than the maggrity of uned-=
ucated blacks and tells straight story.

CONSTITUIONALIST, Augusta, XXX¥X November 1h, 1872,

y
©
é

nothing about this killing. ’Course
I’ve heard the folks hereabouts talk-
ing about it. But I never did see the
boys. I stayed home that night, fooled
around a while and then I went to

’ bed.”

“Didn’t you see any person hang-
ing around that day or that night?”
Gatling asked.

“No. Not a soul that didn’t seem as
if they hadn’t ought to be there. But
come to think of it, I do remember
that a car passed my house that night
going up the road. I never did hear
it come back, ’cause I went on to sleep.
They musta been doing a little ‘fire
lighting.”

“Fire lighting—what in the world
is that?” Gatling asked, puzzled. “I
never heard of it.”

“Oh, fire lighting is hunting deer
at night; it’s agin the law, too, but
lots of folks do it. Mostly, they get a
guide. The guide walks through the
forest swinging a lantern from side
to side, and the hunters follow him.
When the light catches a deer’s eyes,
it freezes and the hunters shoot it.”

Gatling went away deeply im-
mersed in.thought. After all, fire-
lighting might be the key to the case.
The crime had been committed ‘in the
dead of night and by a shotgun. The

(Continued from Page 30)
paring to go to church, and Berry had
planned to accompany her, as usual,
on his return from Almon.

“Enza probably bathed and got
dressed while I was away,” he said.

In that event, Benton realized,
whoever killed the woman did so only
a few minutes before Berry’s return,
because it would have taken her some
time to clear away the dishes, wash
them, put them away, scrub the table,
bathe and then be almost fully
dressed. He recalled, too, that when
he had put his fingers into the water
in the basin it was not cold. Obvi-
ously, it could not have been there too
long.

The killer, then, must have known
something about Berry’s custom of
leaving the house every. Sunday morn-
ing, Benton reasoned.

“Do you keep much money around
the house, Mr. Berry?” the sheriff in-
quired.

“Good gracious, no! We just get
along without luxuries and with only
the bare necessities.”

“Did you notice anything missing
from the house?”

The farmer shook his head. Then,
he walked to the pantry. He reached
up to a shelf, and took down a sugar
bowl. In it were five single dollar bills

CERTIFIED DETECTIVE CASES

op ere

thing to-do was to find out who had

been out guiding that night.

The agent decided that he could
best gain this information by indi-
rect methods, so, he disguised himself
as a hunter and went to Newport.
Walking into Sam’s Cafe, Gatling
asked the clerk if he could help him
get a guide. The clerk willingly gave
him the name of several, and he casu-
ally mentioned that some of them
would “fire light.” Gatling hastily
wrote down their names. At last, here
was something tangible.

Patient talking with several indi-
viduals produced the fact that two of
the guides had not arrived home on
the night of the crime until 2:30.
Gatling tensed a bit with carefully
controlled excitement when he heard
that. The long search was narrowing
down.

He immediately set out to question

- the two suspects. Finally, they broke
down and told their story, thereby

clearing up the mystery.
* * *

N the night in question, they had
gone fire lighting with two hunt-
ers, one from New Bern and one from
Washington (both nearby towns).
At the time the tragedy occurred,
they were in a car driving slowly up

and about ninety cents in change.

“Nothing’s missing from here,”
Berry announced. He went to his
wife’s dresser and opened her pocket-
book. In it was another small sum.

“No, sir, nothing’s ‘missing,” he
said.

Surely, no one familiar with the
Berrys could have expected to commit
a profitable robbery. Why, then; was
Mrs. Berry killed? Benton reasoned

. that only revenge might have prompt-

ed the brutal slaying of the defense-
less old woman.

But Berry knew of nobody who
could have borne a grudge against his
wife. “She was the kindest person in
the world,” he declared. “She was
God-fearing and generous. Why, she’d
share her last loaf of bread with any-
body who needed it. She never made
enemies, and she never interfered
with anybody. She did her own work
and she never had any truck with
other people’s affairs.”

Benton was thinking hard. He
hated to ask his next question, but
this was a murder investigation, and
he could overlook no possible angles.

“Did you and your wife get along well

together?” he inquired.

Berry started. Deep hurt was reg-
istered in his face. ‘“‘Good Lord, yes!”
he answered.

I HEN, B LooDHoU nbs Bay

aie ONG

the road. Their headlights were shin-
ing into either side of the woods as
they rode along. The guides were sit-
ting in the back and the hunters up
front. Suddenly, one of the guides
thought he saw the eyes of a deer re-
flecting the headlights, and he im-
mediately thrust his shotgun through
the car window and fired in direction,

of the gleam. The driver stopped and

the man sitting next to-him got out
and walked forward to see if they’d
killed the deer. When he saw instead
the tent with the lantern gleaming
dimly through the canvas, he was
petrified.

With the realization of what hee
happened, came an over-powering
fear. They turned around and drove
rapidly back to Newport. They agreed
among themselves to say nothing of
the affair, and if questioned, they

were to say they had returned home

at 10:30 that night instead of 2:30.
And they didn’t know, until they saw
the local newspapers the following
afternoon, that a man had been killed
that night.

The four were subsequently tried
and convicted of manslaughter.

And that’s how North Carolina’s
famous “fire lighting’
solved.

case was

“Never had any quarrels, eh?”

- “Mister, I know you’ve got a duty
to perform, but that’s a mean kind of
question. Just ask the neighbors
about me and Enza. Of course, we had
a little quarrel once in a while, just
like every married couple, -but there
wasn’t nothing I wouldn’t do for her,
and there wasn’t nothing she wouldn’t
do for me. My God, you can’t possibly
imagine—No, you couldn’t.. Why, I
don’t want.to go on living now that
she’s gone.”

Benton felt that the man was tell-
ing the truth, and didn’t press that
line of inquiry. He asked whether the
Berrys had had any workers around
the farm recently, persons who might
know that Berry left the house at
eight o’clock every Sunday.

“We haven’t had anyone working
here in a long time; we couldn’t afford

it;” the farmer answered. “But last.

summer, a couple of fellows from
nearby helped me out for a day or
two.” He provided the names of the
men, and Benton assigned officers to
question them, just for the sake of
checking every possibility.

* * *

AJOR SPENCE, meanwhile, had
detailed some men to visit all the
nearby farms to determine whether
any strangers had been seen that

dazed to answer.
Finally, Major Spence, who had
been looking through the house, re-

turned and told the elderly farmer, \

“Your wife has been murdered. We
know it’s hard for you to talk right
now, but you'll have to pull yourself
together so we can find the person
who did this and make him pay for
ite,

“T’ll try,” Berry promised. “I left

the house at eight o’clock to walk to .

Almon for the Sunday paper,” he

‘said. He explained that he did that’
_ évery Sunday; it was part of his

ritual.

“It was raining, and Enza didn’t
want me to go,” he continued, “but
T always go right after breakfast, and
‘I didn’t see why I should change’ to-
day. Besides, I wanted to get a bag
of flour; we needed it.”

“How long were you away?” Ben-
ton asked.

“I got to Almon about twenty min-
utes past eight or so—it’s only about
a mile from here—and I bought the

paper and the flour. About half past ~
eight, I started back for home. It

started to rain a little harder so I
walked faster, and it was about ten
minutes to nine, maybé a little before,
when I got home.”

The front door was locked, he said,
so he went around to the back en-
trance.

“Strange about that,” he added. “I
30

PSE LTE cites

tion. Sheriff Benton was trying to
question him, but the man was too.

Bloodhounds trailed the
murder weapon to this
spot. The battling stick,
stained with the blood of
the elderly woman, was
found here by the dogs.

went out the front door, and I didn’t

‘close it. Maybe Enza shut it becausé

it was raining.”

When he entered the house, and saw
his wife’s body on the bedroom floor,
he ran out the back door.

“And that’s all I remember... un-
til I met Dewey Lloyd.” :

‘ Dewey Lloyd, a neighbor, was one
of the group of neighbors at the
house, and when he heard his name
mentioned, he approached the sheriff
and spoke up,

“It wan around nine o'clock, and I
was in my house when I heard some-
shady yelling like mad,” Lloyd said. “I
ran out and saw James coming down
the muddy road that joins our houses.
He was wringing his hands and act-
ing like he’d gone crazy. I finally
quieted him down, and he told me his
wife was all bloody and dead, so I ran
over to Fred Neely’s place and told
him to telephone you. Then I came
back here with James and waited for
you. Fred came a few minutes later,
and pretty soon all these other men
dropped by with guns and dogs and
rarin’ to go. We had a tough time
holding them back. We told them to
wait until you got here, but they’re
all pretty set on getting out- now.
You better talk to ’em.”

After Neely. had ‘ corroborated
Lloyd’s story, Major Spence called the

neighbors together, suggesting that
they divide into parties of two and

’ fan out in a search of the woods.

' “Don’t take the law into your own
hands,” he warned. “If you come
across any suspicious-looking strang-
ers, bring ’em here, but don’t do any-
thing rash.” .

Meanwhile Sheriff Benton had con-
tinued to question the distraught hus-
band. When he had left home, Berry
said, his wife was alone. She was pre-

(Continued on Page 53)

CERTIFIED DETECTIVE CASES

morning, He also communicated with
De Kalb County police, requesting
that bloodhounds be sent to the farm-
house, for he realized that the neigh-
bors’ dogs were hunting animals,
trained to track down game but not
humans.

Everywhere the men turned, they
were given the same answers. The
Berrys were devoted to each other,
and were respected by the entire com-
munity. They attended to their own
affairs, and no one bore ill will toward
them. Moreover, nobody had seen any
strangers that morning.

However, one’ neighbor reported
that on the previous day a man about

thirty years old had attempted to get:

into his chicken coop.

“IT caught him red-handed and

grabbed him,” the neighbor said.
“He said that he was mighty hungry
—he said he didn’t eat for two days,
and he was afraid to come near the
house because he saw my big dog
there. He said he thought it would be
easy to steal just one chicken, then
take it into the woods and cook it. I
felt sorry for the man and brought
him something to eat, and he sure
acted like he was starved. I didn’t
have the heart to turn him in.”
/ The man headed through the woods,
the farmer added, and he could see
that the stranger walked with a limp.
He described the would-be chicken
thief as about six feet tall, weighing
155 pounds, with black hair combed
back and wearing torn overalls.

By this time the rain had stopped,
the sun was out: again and church-
goers were coming home,

Captain Ed Foster, of De Kalb
County police, arrived with a pair of

bloodhounds, and Sheriff Benton:

greeted him warmly. Benton had dis-
covered a set of muddy footprints
near the back door and technicians
had taken casts of them. They also
had taken impressions from the floor
of the kitchen. The tracks led directly
to the bedroom in which Mrs. Berry
had been slain.

The. same tracks led all the way to
a spring a short distance from the
house, but there they seemed to turn
right back toward the house.

What was more, another set of
tracks led to the edge of a field in
another direction from the house,

Foster quickly set his dogs to work.
They sniffed and took up the trail—to
the spring and back and to the field.
However, where Benton had lost the
trail at the edge of the woods, the
dogs surged ahead, cutting thro::gh
the field for about a quarter mile.
Then, suddenly, they began to travel
in circles; the trail had disappeared.
The rain had ruined any chance of
further pursuit. ;

Several times Captain Foster took
the dogs back to the house where the
animals sniffed the blood in the bed-

room, and several times the hounds
cul across the property to the spring,
back to the house and across again
into the woods, but each time they
were stymied. Foster realized this
angle would have to be abandoned.
The mystery of the trail to the
spring puzzled Benton. Did the killer
come from the direction of the water,
go to the house, commit his crime and
then return to wash his bloody hands?
If so, how did he get to the woods?
No, the answer would have to be
found somewhere else. The killer
doubtless went to the house, then to
the water and then back to the resi-
dence again, going from there across

’ to the field. But why did he go to

the spring?

And then, Benton found his an-
swer. Behind the spring was a tree,
into which a spike had been driven,
and on the spike was a metal wash
boiler.

The sheriff, acquainted with the
customs of the plain people who in-
habited that section, knew that in
many of the houses there were no set
tubs. He knew also that there cer-
tainly were no modern washing ma-
chines.

The boiler, suspended from a spike,
was as much part of the daily routine
of the Berrys, he realized, as plugging
in an electric cord of a washing ma-
chine would be in any modern apart-
ment house. He knew that Enza Berry
would have to wash her laundry in
the metal boiler, and he knew, too,
that an important adjunct of the
boiler would be a battling—or stir-
ring—stick. But there was no stick
to be found.

He now was positive that the mur-
derer, familiar with the habits of
farm wives, went to the tree, armed
himself with the stirring stick and
went into the house to commit mur-
der. Finally, he must have cut across
to the field to make his escape.

Benton returned to the spring to
re-examine it for clues, It was then
that he discovered a muddy footprint
there.

In the distance, Benton could hear
the baying of dogs, for though Cap-
tain Foster had given up the idea of
following the trail of the muddy foot-
prints because of the rain, he was still
searching for the death weapon. Fos-
ter was certain that, if they sniffed
the blood of the slain woman, the
hounds would be able to pick up the
scent of the weapon with which death
had been inflicted if it was anywhere
in the vicinity,

And sure enough, several minutes
later the dogs returned, with Foster
holding their leashes, In one hand he
held a stick about three feet long.

One end of the stick was stained
with dried blood. Benton was con-
vinced that it was the murder
weapon. However, he was taking no

chances, and even atter James Berry
had identified it as his wife’s battling
stick, Benton ordered it sent to the
state crime laboratories for analysis.
Meanwhile, the posse which was
combing the woods and all the neigh-
boring terrain, had met a man who
couldn’t answer the questions they
put to him to their satisfaction. Two
members of the’ volunteer group
brought the terrified man to the
farmhouse. Benton and Major Spence
immediately recognized Richard Car-
son, the name the suspect gave, as the
man who had tried to steal Berry’s
neighbor’s chickens the day before.
“I wasn’t doing anything,” Carson
pleaded. “These tough hombres col-
lared me while I was trying to get a
hitch, and they say I killed somebody.

_ Make ’em turn me loose, will ya?”

“If you haven’t done anything,

you’ve got no cause to worry,” Ben-
ton assured the man, “but 1 want to
know where you were and what you
were doing between 8 and 9 0’clock
this morning.”
’ “T was walking across the lot near
this house around half past eight,”
Carson declared, “I slept in a barn
over there (he pointed to a neighbor’s
place) and got started about 8:30, I
was going to Come to this house to
see if I could get some breakfast when
I spotted a man heading towards me.
I was right in back of that stream,
and when I saw him, I doggone near
fell into the water. I slipped on the
edge and I beat it away fast as J
could.”

From there, Carson said, he had
walked through the short cuts to Cov-
ington, where he picked up a meal in
return for washing dishes. He had
been trying to get a ride out of town
when he was picked up by the posse.

Carson was wearing dirty, torn
overalls, which he had obviously not
changed since he was seized the day
before: Benton was convinced that be-
cause of the absence of anything that
looked like bloodstains on them, he
had nothing to do with the murder.
However, his statement that he had
seen a man walking toward the creek
made the sheriff wonder if Carson
might not know something about
what had happened. However, Carson

. insisted that he would not recognize

the man, explaining, “I ran away as
fast as I could.”

The man’s shoes obviously did not
make the prints that led to and frdém
the Berry home, but there was no
doubt in enton’s mind that. the
muddy print he had found at the
spring did belong to Carson.

“That man you saw walking to-
ward you—was he carrying any-
ing?” Benton inquired. _

“No, he wasn’t; I’m sure of that,”
Carson answered.

“And did he see you?”

“I don’t think so, because I wasn’t

CERTIFIED DETECTIVE CASES

quite clear in sight, but I didn’t want
him seeing me. I almost got arrested
yesterday, and I wasn’t taking any
more chances.”

Benton was thinking how unfortu-
nate it was that the man hadn’t seen
Carson. If he had, he might have
been frightened away and Mrs. Berry
might now be alive.

Benton pondered over the queer
quirks of fate. He was convinced that
Carson was in the clear, nevertheless,
he wanted to detain him, in the event
he might possibly be able to identify
the suspect if and when he were ar-
rested.

But if the murderer were to be ar-
rested, it would not be near the scene
of the crime, it now was apparent,
for the posse had made a thorough
search for several miles around with-
out success. Benton and the other of-
ficers returned to headquarters, to
direct the investigation from there.

* * *
HAT afternoon, Dr. Swann, the
coroner, telephoned that the au-
topsy had been completed, but that
it had produced no additional infor-
mation of value.

Benton carefully went over records
of all criminal cases that had occurred
in (Newton County in past months,
seeking to find some connection be-
tween the Berry murder and others.
He recalled the case of Fannie Smith,
a De Kalb County spinster who was
‘murdered in her home in October,
1943. No one had ever been arrested
for the murder. In that case, a sum
of money had been ‘stolen, but Mrs.
Berry’s money was intact. Still, Ben-
ton ordered aides to round up every
person questioned in connection with
the Smith case.

‘The more he studied his meager
data, the more Benton wondered
whether the Berry slaying might not
be the work of a deranged person.
Robbery, apparently, was not the mo-
tive. Somewhere, somehow, the sher-
iff felt, a revenge motive figured;
and who but a person bereft of his
normal senses would kill an elderly,
defenseless woman out of fancied.re-
venge, with such brutal force?

The reports of men who had ques-
tioned the two farm workers named

by Berry were on Sheriff Benton’s.

desk. One of the men, L. C. Johnson,
who lived several miles away, was at
home chopping wood when the officer
called. Neighbors said they had no-
ticed Johnson around the house vir-
tually all morning. The other farm-
hand, Jack Starke, had left his home
early in the morning to go to Atlanta,
about forty miles away.

“He was gone from his house about
half past seven this morning, and he
hasn’t got to the place in Atlanta
where he was headed,” the report
stated.

Benton immediately sent out a pick-

CERTIFIED DETECTIVE CASES

up order for Starke, with a descrip-
tion and the license plate number of
Starke’s automobile, with a request
that he be brought in for questioning.

“He could have done the job,” Ben-
ton remarked.

Through the afternoon and eve-
ning, officers were busy running down
every clue, no matter how vague jit
seemed, and Benton continued to scan
county records.

That evening, young Starke was
located, not in Atlanta but in Athens,
Ga., in the opposite direction from
Covington. When he was picked up, he
said that he had never intended to go
to Atlanta, but he knew that if he had
told his folks he wanted to go to
Athens they never would have per-
mitted him to'use the family auto-
mobile. It seemed they disapproved of
the girl friend he had there.

He produced a detailed alibi, which
was checked carefully. At 8:30 a.m.,
the time set for the murder, he was
at Monroe, about sixteen miles almost
due north of his home, purchasing
gasoline. Moreover, his. automobile
showed no traces of blood, and none
of his clothes bore any stains, Benton
was convinced that another suspect
had been eliminated.

Late Sunday night a report from

. the laboratory on the hickory battling

stick was ready. The blood on the
club was definitely the same type as
Mrs. Berry’s. Several smudged finger-
prints were obtained from the stick,
and efforts were being made to trans-
fer at least one of the smudges to
paper. ~

Long into the night Benton con-
tinued his investigation. A constant
stream of men of assorted reputa-
tions paraded before him, were ques-
tioned and quickly dismissed.

The next morning Benton called on
James Berry again’; there was some
more information he wanted to know
about the case.

“You said yesterday that you only
had two men working for you in the
past year or so; can you possibly re-
call any others?” the sheriff inquired.
But Berry only shook his head.

“Well, why did these fellows only
work a couple of days?” Benton per-
sisted. '

“Young Starke found the work too
hard, and I had to discharge Johnson
because my wife didn’t trust him.”

That was all Benton wanted to
know. He visited several other farm-
ers, all neighbors of the Berrys, and
questioned them specifically about
Starke and Johnson.

’ Eventually, he learned from one
farmer that Johnson had worked for
him, having given the Berrys as ref-
erences, but when the farmer had
asked Mrs. Berry about Johnson she
said she didn’t think he was honest.

“So Il let him go after I started to

miss things around the house,” the

farmer explained. “I told him his ref.
erences weren’t too good.”

So at least one person—Johnson—
might have sought revenge against
Mrs. Berry! Benton realizéd that
Johnson’s alibi would have to be
checked more carefully—and besides
—he was thinking of something he
had uncovered in reading the police
files the afternoon and night before.
Benton drove at once for Johnson’s
home.

* * *

GAIN Johnson was chopping wood.
He glanced up, noticed the sheriff
and greeted him cordially.

“Too bad about Mrs. Berry,” he
said. “I just heard about it.”

But Sheriff Benton was in no mood
for idle talk. He demanded to know
where Johnson had been Sunday
morning.

“In Eatonton,” Johnson replied
calmly.

“But you told officers you were
right here, and neighbors said they
saw you here. How come?”

“T don’t know, but I was in Eaton-
ton,” Johnson bristled. He supplied
the names of several persons with
whom he said he had spent some time,
and Benton suggested that they drive
out to them:and check the man’s
story. :

“Mind if I look around the house
first?’”’ Benton asked.

“Go right ahead; you'll do it any-
way,” Johnson shrugged.

A few minutes later Benton
emerged from the house carrying a
bundle wrapped in a newspaper. He
went directly to his car, where his
deputy was sitting with the farm-
hand. Benton. said not a word as he
drove not’ to Eatonton but to head-
quarters.

Some time later, as Johnson
squirmed impatiently, Benton looked
up from a mass of papers on his desk,
stared at the man in front of him and
declared: ark

“Johnson, you’ve got quite a rec-
ord. Until a little while ago, I didn’t
know~that you killed Mrs. Berry. I
only had an idea that you might
have.”

“That’s a lie!” Johnson _inter-
rupted. “I didn’t do it—I néver killed
anybody! I told you I was in Eaton-
ton and you said you’d check it, but
you didn’t. Why don’t you find out?
My friends’ll tell you I was there.”

“T didn’t go to Eatonton because I
don’t have to,” the sheriff retorted.
“I know now that you killed Mrs.
Berry. But just to make you feel bet-
ter, I’m having someone else go to
Eatonton. But I know what the report
will be. Now,:you just listen to me,
and if you still want to deny you
killed that woman after I’m through
you can, but you’d be much better off
signing a confession.

“In 1948 you stole a bicycle and

ee ee ee

898 Ga.

threatened imprisonment would be in violation
of the law of Georgia and the Constitution
of the state of Georgin; particularly art. 1, §
1, par. 8. which provides that no person shall
he deprived of life, liberty, or property with-
out due process of law; also in violation of
art. 1, §1, par. 21, which provides that ‘There
shall be no imprisonment for debt"; and also
in violation of the Fourteenth Amendment to
the Constitution of the United States. The
prayer is for injunction and general relief.
The defendant demurred to the petition, but
it does not appear that the demurrer was ex-
pressly ruled on. The court, affer hearing
evidence, granted an injunction as prayed for.

The material portions of the evidence are,
in substance, as follows: Sellers swore that
he deposited the check for $108.70 as an ap-
pearance bond for a woman “whose name
was given as Alice Moore,” and her “male
companion,” both of whom had been arrested
by Walden, a police officer in the municipality
of North Atlanta. Sellers talked with Tarri-
son on the telephone, and Harrison agreed
that Walden could accept Sellers’ check for
the amount named as an appearance bond.
Sellers assured Harrison that the check was
good, and that there was suflicient money on
deposit to pay it. At the hearing of the
ense, November 16, 1931, “Alice Moore” did
not appear, but “her companion” was present
and was tried by the recorder and acquitted.
At this trial Scllers stated to the recorder
that “Alice Moore could not be produced by
him in court,” and asked what was going to
be done about it. The recorder stated that
the bond had not yet been forfeited; that he
would let him know later what would be
done. Sellers afterwards discovered that
there was no valid ordinance covering the for-
feiture of bonds. Tle thereupon ordered the
bank to stop payment on the check, On No-
vember 23, 1931, Walden called Sellers on the
telephone, and told him that unless he paid
the amount of $51.85, which was the amount
of the bond deposited by Alice Moore, he
would come and arrest him, Sellers told
Walden that he had no legal right to arrest
him, declined to pay the amount, and then
applied for an injunction.

Counsel for plaintiff swore that “Wdden
told him he was going to arrest plaintiff for
stopping payment on the check.” Other coun-
sel testified that there was no ordinance of
North Atlanta authorizing the forfeiture of
bonds.

Harrison testified: Tle was recorder.
About midnight of November 5, 1931, he was
called on the telephone by plaintiff, who in-
formed him that Walden had two prisoners
under arrest in De Kalb County jail on a
charge of “violating an ordinance” of North
Atlanta, and requested Harrison to allow him
tu give Walden a check for $103.70 for the two
appearance bonds of “the two persons ar-
rested,” who were stated to be Alice Moore

163 SOUTIT EASTERN REPORTER

and “a male companion.” On November 16,
1931, the “companion” of Alice Moore was
tried on a charge of possessing whisky; a°
quart bottle of whisky was produced by Wal-
den as having been taken from the possession
of this party. The “companion” was bound
over to a state court. Alice Moore did not
appear. Plaintiff and his attorney stated
that “he could not produce her.” ITarrison
had not seen plaintiff since the hearing, No-
yember 16, 1931, until the hearing on the in-
junction, had not communicated with plaintiff
in any form, had not heard from him, had
made no threats of any kind against him or to
any one in regard to arresting and imprison-
ing him, and had not connived or framed up
with Walden or any other person for the pur-
pose of arresting or imprisoning plaintiff on
this or any other charge. Harrison as re-
corder of North Atlanta serves without sal-
ary or compensation of any kind. It is ad-
mitted that there is no ordinance governing
the forfeiture of bonds. Harrison further
testified that it was not his intention to have
plaintiff arrested on the check or for any
other charge, as the municipality could en-
force its rights on the check by a civil suit at
law; and that he had no financial interest of
any kind in the bond or the check.

Walden testified to the facts already stated
above. Tle told Sellers on the telephone that,
unless he paid the bond in the amount of
$51.85, he was “liable for arrest.” Scllers
stated that Walden had no right to arrest
him. Walden stated to plaintiff's connsel also
that plaintiff was “liable for arrest.” Walden
had not received from Harrison any instruc-
tion to arrest or imprison Sellers, and there
was no agreement or frameup between them
to arrest him. Walden had not attempted
to arrest Sellers, and has no intention of do-
ing so. The remaining portions of the evi-
denee are not material.

T. B. Higdon, of Atlanta, for plaintiffs in
error.

Edgar Watkins, Jr., of Atlanta, and John
Wesley Weekes, of Decatur, for defendant in
error.

GILBERT, J.

Under the petition and the evidence, it is
obvious that the court erred in granting an
interlocutory injunction. The only evidence
produced by the petitioner to substantiate the
allegations of the petition with regard to ar-
rest was the testimony that Walden, the po-
lice oflicer, had told Sellers on the telephone
that he was “going to arrest him,” or that
Sellers was “liable for arrest” for stopping
the payment of the check, and telling counsel
for petitioner the same. There was no overt
act, and no act of any kind by the defendant,
tending to carry out the purpose of arresting
petitioner. On the contrary, both the police
officer and the recorder testified, on the hear-
ing, that they had no intention of arresting

JACKSON
163 S.E.

the petitioner on the charge mentioned, or
any other. The petitioner does not seek to
enjoin any proceeding in the recorder's court,
nor is there any proceeding against petition-
er pending anywhere, in so far as the peti-
tion discloses. Absolutely all that can be
said, when the facts are reduced to their es-
sential parts, is that the police officer told the
petitioner and his counsel that he would ar-
rest Sellers, or that he was “liable for ar-
rest,” for giving the check in lieu of the bond
and then stopping payment on the same.
Merely because of a suggestion that nonpay-
ment would render him liable for arrest, he
seeks the aid of the extraordinary power of
injunction to restrain the officers of the
municipality who have not arrested him, and
who disclaim any intention to arrest him,
and who are in no way interfering with his
person or his property.

The constitutional points made are without
merit. The court erred in granting an irter-
locutory injunction.

Judgment reversed.

All the Justices concur.

JACKSON v. STATE.
No. 8887.

Supreme Court of Georgia.
April 16, 1932.

Syllabus by Editorial Staff.

{. Criminal law 951 (1).
Extraordinary motions for new trial are
not favored.

2. Criminal law G=1160.

Trial judge’s denial, upon conflicting evi-
dence, of extraordinary motion for new mur-
der trial on ground of newly discovered evi-
dence that accused’s confession was procured
by “frame-up,” held binding upon reviewing
court,

Error from Superior Court, Peach County;
Malcolm D, Jones, Judge.

Albert Jackson was convicted of murder,
and he brings error to review the overruling
of an extraordinary motion for new trial.

Affirmed.

Mr. and Mrs. Hartley were killed in their
own home. Albert Jackson was jointly in-
dicted with Son Strother and Armstead Law-
son, Jackson was convicted of murdering
Mrs. Jeflie Hartley. His motion for new trial
was overruled, and the judgment was af-
firmed. The evidence on which the conviction

v. STATE feet Ga. © 899

was upheld is stated fully in Jackson v. State,
172 Ga, 575,158 S. E. 289. The case is here
now on exception to the overruling of an ex-
traordinary motion for new trial, the basis
of which is that new and material evidence,
not merely cumulative or impeaching, and
which would on another trial probably pro-
duce a different result, has been discovered
since the trial. This evidence consists of an
atiidavit of L. Hl. (Shorty) Anderson, an in-
mate of the Peach county jail at the time
when, according to the evidence on the trial,
Jackson made a confession, the details of
which are stated in the report of the case
when here previously. This affidavit is to the
effect that the mother of Anderson was con-
fined in jail because she had slipped in some
hack saws to Anderson; “If you go up and
get a true confession from Albert, I'll see to it
that your mother does not do a day;” that,
acting upon this promise, Anderson told Jack-
son that he (Anderson) had been talking to
Mr. Fagan, “and from the way they talked
you are shore to get the electric chair”; that
he told Jackson, “Before I would go to the
chair myself, I would send everybody there’;
that Anderson, from knowledge of the man-
ner in which the crime was committed, ob-
tained by hearing the officers talk, construct-
ed a confession which he wrote out on paper
supplied by Fagan; that this was read over
two or three times by Jackson; that Anderson
“told Albert a lot of things about the murder,
about where the bodies were lying, and all,
and told him to be sure to put them in the
confession.” It does not appear that this
confession was signed by Jackson, In many
details the confession introduced on the trial
coincides with the story which Anderson
states he constructed, telling Jackson that he
(Anderson) “would give him a nice line up
on it, so he could tell it straight and it would
sound all right’; that he also told Jackson
Mr. Fagan had said, “If you will confess, Son
and Armstead will get the electric chair,
and you will get a life term in prison”; that
Jackson maintained that he was innocent, but
said, “It is better to serve a lifetime innocent
than to die innocent”; that Anderson gave the
note to Hicks and told him to get Fagan and
send him up there; and that Fagan came up
that night and got Albert and took him down-
Stairs, and came again the next morning and
took him back downstairs.

Also, an affidavit of Marvin Jolly, another
inmate of the jail, to the effect that he heard
Fagan tell Anderson that if he would help
him out in getting a confession from Albert
Jackson, he would help his mother out for
slipping in the hack saws; that Anderson said
he would do it. and “I saw Shorty and Al-
bert talking a lot together, and saw Shorty
writing on some paper which Mr. Fagan gave
him the night we were down stairs. The
morning Albert confessed he told me that he

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$900 Ga. 163 SOUTH EASTERN REPORTER

didn’t know nothing about the murder, but
that he had decided to make a confession to
save his own life and was going to lay it on
Armstead and Son.” Also an affidavit by
Fagan, to the effect that he remembered talk-
ing with Anderson in the presence of Jolly
and telling Shorty that “if he would give me
any help in the Jackson case as to getting up
evidence or getting to the bottom of it, I
would appreciate it and would help out his
mother and speak to the solicitor about her.
Shorty promised to help me, and soon after
that I received a note that Albert was ready
to confess. I went up the night after Hicks
brought me the note and got Albert, and took
him down stairs, and Albert made the con-
fession. I got him again and took him down
stairs, and he repeated the confession.” Also,
affidavits of several witnesses, to the effect
that on the night when the crime was com-
mitted Son Strother, who, according to the
confession introduced in evidence, participat-
ed therein, was present during the entire
night in a house where the witnesses were
with the corpse of a son of Strother.

The state made a counter showing in sub-
stance as follows: The witnesses named by
movant, Albert Jackson, to wit, L. H. Ander-
son and M. L. Jolly, are not newly discovered
witnesses. They were both present at the
original trial of the movant, as witnesses
for the state in this case, and they were in
the courthouse within fifty feet of the trial
throughout the trial, and easily accessible to
counsel for the accused. The said witnesses
are utterly unworthy.of belief, because the
testimony which they now give in their affi-
davits which are included in the extraordi-
nary motion for new trial is entirely at vari-
ance with their statements before and at the
time of the trial, to which statements they
offered to swear as witnesses for the state
in the original trial of this movant. Besides,
both of said witnesses are notorious charac-
ters, and both are convicts; the said L, II.
Anderson being now in the penitentiary for
a term of one hundred and forty years, and
the said Jolly being now in the penitentiary
for a term of forty years. In support of this
counter showing the state attached the af-
fidavit of F. B. Fagan, to the effect that he did
not furnish Anderson with paper upon which
to procure a confession from Jackson; that he
did not instruct Anderson or Jolly to ob
tain sneh a confession, but did tell them
that if either of them “heard anything in
jail that might throw light upon the case,”
he would “appreciate their telling him what

they heard”; that he did not tell them or

anybody else to promise Jackson anything .

for a confession or to threaten him with
any sort of punishment if he did not con-
fess; that he did not tell them of the physi-
cal facts of the homicide of Mr. and Mrs.
Hartley; that he does not know of any way
or means by which they could have learned
of the position of the bodies or any of the
other physical facts as found in the Hartley
home; that when he came to confess, Jack-
son was able to describe accurately the kind
of pistol (an antiquated type), the position of
a shotgun, the location of the bodies of Mr.
and Mrs. Hartley, the sort of clothing worn
by them; that the trunk was open, the tray
put on the bed, and its contents scattered
over the bed; all exactly in accordance with
the physical facts found in the Hartley home.

Geo. B. Culpepper, Jr., and A. C. Riley,
both of Ft. Valley, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon,
Geo. M. Napier, Atty. Gen., and T, I. Gress,
Asst. Atty. Gen., for the State.

Syllabus Opinion by the Court
GILBERT, J.

[1] 1. Extraordinary motions for new trial
are not favored. The defendant, when on
trial, stated to the court and jury that he had
confessed, but that the confession was a
“frame-up” brought about by Anderson, who
was in jail with him.’ The accused must
have known then all that he now incorporates
in his motion, and it was his duty promptly
to advise his counsel. If such had been done,
counsel could and would have quickly ques-
tioned the witnesses. Both of the witnesses

from whom the newly discovered evidence is

produced are felony convicts.

[2] 2. The alleged newly discovered evi-
dence introduced by the accused in his mo-
tion for new trial on extraordinary grounds,
together with the counter showing by the
state, make an issue of conflicting evidence.
The trial judge, who possessed a more inti-
mate knowledge of the circumstances and the
character of the witnesses, overruled and de-
nied the motion. This court must affirm
that judgment. To reverse the finding would
be to refuse to follow an unbroken line of
previous decisions which are binding au-
thority.

Judgment affirmed.

All the Justices concur,

STATON
163

STATON v. STATE. ©
No. 8801.

Supreme Court of Georgia.
April 14, 1932.

1. Criminal law @=572.
Evidence held sufficient to sustain mur-
der conviction as against alibi defense.

2. Criminal law €=938(1).

Motions for new trial based on newly dis-
covered evidence are addressed largely to
trial judge’s discretion.

3. Criminal law €>1156(3).

Supreme Court will not reverse trial
judge's decision refusing new trial for new-
ly discovered evidence unless discretion is
abused.

1, 4. Homicide 319.

Refusing new murder trial for newly dis-
eovered evidence of alleged eyewitness to
shooting that another than accused fired shot,
contradicted by counter affidavits, held not
manifest abuse of trial judge’s discretion.

5. Criminal law €=829(7).

In murder prosecution, where question of
personal identity of accused and fact of alibi
were virtually same defense, court’s omission
to instruct separately on alibi held not er-
ror.

6. Criminal law ©=824(4).

Where testimony for accused did not
show impossibility of his presence at scene of
homicide, failure to give specific charge, not
requested, regarding alibi defense, held not
error.

Syllabus by the Court.

1. The evidence was suflicient to author-
ize the jury to find a verdict of guilty,

2. Motions for new trial based on newly
discovered evidence are addressed largely to
the discretion of the trial judge; and this
court will not reverse his decision refusing
a new trial on such ground, unless it is abus-
ed. The judge did not abuse his discretion in
the instant case in refusing a new trial on
the ground of newly discovered evidence.

3. Where the question of personal iden-
tity and the fact of alibi are virtually the
same defense, the omission of the court to in-
struct Separately on alibi is not error. The
court did not err in failing to instruct the
jury separately on the question of alibi, un-
der the farts of the instant case,

4. The court did not err in refusing a
new trial,

Error from Superior Court, Fulton Coun-
ty; John PD. Humphries, Judge,

y. STATE Ga. 901
8.E,

James F. Staton was convicted for murder,
his motion for a new trial was overruled
and he brings error.

Affirmed.

Wm. G. McRae, Parham & Simpson, Jas.
C. Davis, and Walter BE. HMarclerode, all of
Atlanta, for plaintiff in error.

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

WILL, J.

James IF. Staton was indicted and tried
for the murder of Thomas J. Martin. He
was found guilty, with a recommendation to
merey, and was sentenced to life imprison-
ment in the penitentiary. He filed a motion
for new trial, which was amended by the ad-
dition of two special grounds. The motion
was overruled, and he excepted. The special
grounds of the motion for new trial are (1) be-
cause of certain newly discovered evidence;
and (2) because of the failure of thé judée
to charge the law with reference to the de
fense of alibi.

[1] 1. The evidence was sufficient to au-
thorize the verdict. It tended to show that
Staton was a, United States soldicr stationed
at Ft. McPherson in Fulton county, and that
on May 20, 1931, between 11:00 and 12:00
o'clock p. m., he shot and killed another sol-
dier named Thomas J. Martin, at or near the
corner of Lee and Mickleberry streets, near
It. McPherson. The evidence showed that
Martin was walking along the street with a
young woman named Georgia Phillips, with
whom he had attended a dance at the service
club at Ft. McPherson, Miss Phillips testi-
fied that she and Martin “watched them
dance” for awhile, and then together walked
down Lee street; that Staton, walked by
them in company with a companion two ‘or
three times, and then came up to where they
were and pointed a pistol at Private Martin.
Martin replied, “You are not going to shoot
me, are you?” “Mr. Martin and I were be-
tween the second and third car-stop down
from I*t. McPherson gate when one of them
shot him. ‘At the time of the shooting Mr.
Staton said to Mr. Martin: ‘lands up.’ I
didn't know his name at that time. When
this man says ‘hands up,’ Mr. Martin says:
‘You are not going to shoot me are you?
And he says ‘hands up’ again, and shot him.
This other soldier that was with Staton when
Staton shot him was standing right by his
side; this other soldier didn't say, anything.
The one who shot him was the one that had
the broken arm and the bandaged one. The
one that did the shooting” that night is. sit:
ting right over there at that table. It is Mr.
Staton. After he shot Martin, Staton turned

Gor other cases sce same topic and KEY NUMBER in all Key Number Digests and Indexes

Peel TT

Tere

3
4
r
4
.
4
‘
c
e
t
k
r

296° Ga.

tors were actually in the act of committing
the lareeny, he, the defendant, repented of
his desire and purpose to carry out the com-
men purpose and intent to commit said lar-
ceny, and before the consummation of the
Inrceny he sought to prevent its commission
hy besceching the other coconspirators not to
cominit the act of larceny, and that he in good
faith abandoned the intention to commit the
crime of larceny or to participate in the kill-
ing of Mrs. Hartley, and did not participate
in the commission of the larceny or in the
killing of Mrs. Hartley, then you should ae-
quit him and find him not guilty by your
verdict.”

Movant insists that said charge was erro-
neous and not sound as an abstract principle
of law. This contention is without merit.
Gore y, State, 162 Ga. 267, 134 8. 1. 36.

13,4] 5. Weadnotes 8 and 4 require no clab-
oration,

[7] 6. The trial court did not err in over-
ruling the motion for new trial.
Judgment affirmed.

All the Justices concur, except RUSSELL,
GC. J., who dissents,

COX et al. v. HENRY.
No. 8000.

Supreme Court of Georgia,
April 16, 1931.

Syllabus by Editorial Staff.

i. Mortgages ©=369(7).

Petition to enjoin grantee in security deed
from transferring land and to eancel deed for
breach of agreement to extend time of pay-
ment did not allege fraud authorizing relief,

Grantee in security deed, ou grantor’s

failure to pay debt at maturity, sold land
and beeame purchaser at sale. Grantor
brought equitable suit to enjoin grantee
from. transferring or ineumbering land
and to cancel deed, and in petition alleged
that grantee agreed to extend time for
payment on grantor’s making part) pay-
ment of money due, but that grantee, in
violation of agreement, seld land; that
grantee’s conduct was fraudulent and in-
tended to cheat grantor; and that sale of
land brought only very small sum as com-
pared to its real value.

2. Mortgages C306.

Agreement to extend time for payment
under security deed held without considera-
tion and not binding.

158 SOUTH EASTERN REPORTER

3. Mortgages C269(3).

TInadequacy of price obtained on sale un-
der security deed without fraud is not ground
for avoiding sale and canceling deed.

4. Mortgages C>369(2).

That grantee in security deed sued on
notes after sale under deed was no ground for
avoiding sale and canceling deed.

Error from Superior Court, De Kalb Coun-
ty; John B. Hutcheson, Judge.

Suit by Mrs. Minnie Lee Cox and husband
against W. G. Henry. Judgment for defend-
ant, and plaintiffs bring error.

Aflirmed,

II. fF. Sharp and Frank T. Grizzard, both of
Atlanta, for plaintiffs in error,

Chas. D. Ilurt, Jr., and Underwood, Hans
& Gambrell, all of Atlanta, and Weekes &
Candler, of Decatur, for defendant in error,

Syllabus Opinion by the Court.

BECK, V. J.

Mrs. Minnie Lee Cox executed and deliv-
ered to W. G. Henry a security deed contain-
ing a power of sale, the power to be executed
by the grantee in the deed upon failure to
pay the debt at maturity. Upon the happen-
ing of the contingency, the grantee, after com-
plying with, the requirement as to nadvertis-
ing, ete., sold the land. Subsequently the
erantor and her husband filed this suit fu
equity, seeking injunction against the grantee,
who was the purchaser of the land at the sale
thereof, to restrain him from transferring or
incumbering the land, and praying for can-
eellation of the deed made in her name to the
defendant under the power of sale. It was
alleged that when or just before the debt
secured by the deed fell due the petitioner
entered into negotiations with the defendant.
the grantee in the security deed, and reached
an agreement under which, by the payment
of a part of the money due in a short time,
further time would be allowed her to make
arrangements for the procurement of a sum
necessary to discharge the debt, and an ex-
tension of time was agreed upon between
petitioner and defendant; that defendant.
in violation of the understanding and agree:
ment, advertised the property for sale in
pursuance of the terms contained in the pow-
orof sale; that the conduet of the defendart
was fraudulent and “an effort to cheat and
defraud petitioner out of her property”; that
at the sale the property brought only a very
small sum as compared to its real value; and
that the defendant, the grantee in the se-
eurity deed, brought suit upon the netes,
which had been indorsed by her husband,
in the city court of Decatur. At the hearing

——=

CVPor other cases see same topic and KE Y-NUMBER in all Key-Numbered Digests and Indexes

Mid ighnaee elles

CITIZENS’ & SOUTHERN NAT. BANK y. CLARK Ga. 297
158 S.E.

the defendant filed a moticn in the nature
ef a general demurrer, which the court sus-
taincd, To this judgment the plaintiffs ex-
cepted. TWeld:

{!,2] 1. The court did not err in sustain-
ing the general demurrer. There are no facts
alleged showing such fraud upon the part of
the defendant as would authorize the relief
prayed for, The agreement. upon the part
of the defendant to allow more time to peti-
tiener in which to raise money to pay the
debt was without consideration, and was not
Winding upon the defendant. Druid Ilills,
Ine. ¥. Doughman, 171 Ga. 521, 156 S. EL

{3] 2. Inadequacy of price, in the absence
of frand upon the part of the grantee in the
security deed, is not ground for setting aside
the sale and canceling the deed.

[4] 3. The fact that the defendant brought
suit upon the notes given for the debt of the
grantor in the deed to the grantee affords
ne ground for the relief sought in this peti-
tlon. Montgomery y. Fouche, 125 Ga. 43, 53
S. FE. 767,

Judgment affirmed.

All the Justices coneur,

CITIZENS’ & SOUTHERN NAT, BANK et al.
v. CLARK et al.

CLARK et al. v. CITIZENS’ & SOUTHERN
NAT. BANK et al.

Nos. 7987, 7999.

Supreme Court of Georgia.
April 17, 1931.

!. Appeal and error €>1097(1).

Rulings of Supreme Court on prior review
of same case are controlling, unless facts de-
Yeloped on subsequent trial take case outside
scope of rulings.

Syllabus by the Court,

When this ease was here on demurrer,
this court held that the power of the trus-
feox to retain stocks, other than those in
Which they were authorized to invest trust
funds under our statute Without an order
ef the judge of the superior court, is, in
the absence of coutrary statute or provi-
sion in the instrument creating the trust,
not different from their power to make in-
vestments; that when testamentary trus-
tees receive, as part of the trust estate,
stocks in manufacturing companies, they
ate not justified, in the absence of some
authority to the contrary in the instru-
Ment creating the trust, in retaining such

‘hvestments, though made by,the testa-
—_——- !

tor; that in such case it is the duty of the
trustees to convert such stocks into mon-
ey within a reasonable time, and to invest
the proceeds in securities authorized by
law or by order of the judge of the superi-
or court; that otherwise the trustees are
liable for loss arising from depreciation in
value of such stocks; and that the will of
the testator creating this trust did not
give direction, either express or implied,
to the trustees to retain these stocks.
The above rulings of the court become the
law of this case and are controlling, un-
less the facts developed on the trial take
the case without their scope.

2. Wills C>488.

Parol evidence is inadmissible to explain
will containing no ambiguity on its face; pa-
rol evidence or written statements are inad-
missible to raise ambiguity relating to tes-
tator’s intention or to explain ambiguity thus
raised, where will contains no ambiguity on
its face (Civ. Code 1910, § 3901).

Syllabus by the Court.

Where there is no ambiguity on the face
of a will, parol evidence is not admissible
to explain it; and, where there is no am-
biguity on the face of a will, either latent
or patent, it is never competent to raise an
ambiguity in relation to the intention of
the testator by parol evidence or written
statements extrinsic of the words of the
will, and then explain the ambiguity so
raised by like evidence.

3. Wills 435.

Will, if unambiguous, is obligatory on
court; courts cannot annex provisions to will
which is clear and contains no ambiguity on
its face.

Syllabus by the Court.

When a testator makes a will, it is the
exponent of his intention; and, if that is
clear and if in the will itself there is no
ambiguity, it is obligatory upon the courts;
and it is not within the duty or within the
power of the courts to annex provisions
to those contained in the instrument, as
that would be making a will for the testa-
tor and not construing one he had made
for himself.

4. Trusts €=217(4).

Testamentary trustees held not authoriz-
ed to retain stock in manufacturing corpora-
tion because testator was executor of father's
will under which he held stock of similar cor-
poration; testator holding stock in manufac-
turing corporation for father's estate and tes-
tamentary trustees holding similar stock of
testator held stock at own risk (Civ. Code
1010, §§ 8768, 8765; Acts 1918, p. 160).

Por other ¢

ases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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678 128 SOUTHEASTERN REPORTER (Ga.

leged that he had been damaged by acts of
trespass already committed, and, alleging
that the defendant was insolvent, he sought
to enjoin the defendant from further acts
of trespass. He alleged that he was the own-
er, and was in possession of the premises on
which the defendant was trespassing. He
prayed for an injunction restraining the de-
fendant from further trespassing upon his
said land, and for judgment against the de-
fendant for $200 for damages already done.
In answer to the petition, the defendant de-
nied the substantial allegations upon which
the plaintiff relied for injunction and relicf.
He further set up that the dispute between
them was over the boundary line between
their respective tracts of land; that he only
claimed to the true boundary; that the line
between these tracts had been processioned
and marked anew; that the processioners
marked the line to which he claimed; that

. their report was filed, and no protest was

made by any party; and that the plaintiff
moved the posts and markers placed on the
line by the processioners.

The defendant, by way of cross-petition,
prayed that the correct line, being the line
run by the processioners, be, upon the trial
of the case, established as the true line, and
that all the land in his tract west of said line
may be decreed to be his.

The case was referred to an auditor, who
made a report finding against the plaintiff.
The case was recommitted to the auditor, by
consent, upon the application of the plain-
tiff. At this stage of the proceeding the de-
fendant filed his written motion to have Min-
nie Lou Hammock, the wife of the plaintiff,
made a party plaintiff in said ease. In this
motion he asserted: That plaintiff alleged
himself to be the owner of the premises in
dispute, and that he had occupied the same
by himself and guardian for 20 years; that
plaintiff went into the trial of said case and
took his chances upon a judgment therein;
that, after judgment by the auditor, one of
his attorneys was heard to say that the
plaintiff would now contend that this land,
the boundary of which is in dispute, belong-
ed to his wife and not to him, and that the
judgment in said case would not bind him;
that upon investigation the defendant found
on record in the clerk's office of the superi-
or court of said county a deed from plaintiff
to his wife, dated January 5, 1922, and re-
corded January 12, 1922; that the wife of
plaintiff knew of the bringing of petition for
injunction in said case, and acquiesced in the
same; and that it is necessary and proper
that she be made a party plaintiff in the case,
and be required to submit to whatever judg-
ment may be rendered therein by the au-
ditor.

A rule nisi issued, requiring the wife to
show cause why she should not be made a

abide by the judgment therein rendered,
and why an order should not be passed di-
recting that she be made such party. To
the motion to make her a party, the wife de
murred on the grounds: (1) That the allega-
tions im said motion are not in law sufficient;
(2) that under the facts the defendant has
no right to make her a party plaintiff in this
proceeding; (3) that the allegations of her
knowledge and acqui¢scence in the petition
for injunction are insufficient; (4) that plain-
tiff has no right of action and no title or in-
terest in the property; and (5) that there is
no comity of interest between her and de-
fendant by which she should be made a par-
ty plaintiff. In her answer to the rule nisl
she admitted the execution, delivery, and
record of the foregoing deed from her hus-
band to her, and alleged that it was made
in good faith; but she denied that she knew
that the plaintiff had brought the petition
for injunction against the defendant, and
that her title to said property was involved
therein; and she further alleged that she
neither knew nor was informed that the
plaintiff claimed to own this land, and that
she neither acquiesced in the suit nor con-
sented to it. She prayed that the motion to
make her a party be dismissed, and that she
be not made a party to said proceeding.

It appears from the brief of evidence ta-
troduced before the auditor that the plain-
tiff swore he was in possession of and cultl-
vating a part of the land in question just
before the filing of this suit. On the hear-
ing of this motion plaintiff testified that his
wife did not know that this action had been
brought until after it was submitted to an
auditor, that she was not consulted about
bringing the suit, and had never agreed ‘for
any action to be brought.

After considering the motion and pleadings
in the case, the court ordered and adjudged
that Minnie Lou Hammock be made a party
plaintiff as prayed, and authorized her to
plead and set up such rights as she may have
in said case, and that she abide by and be
bound by such judgment as may be render-
ed therein. To this judgment making het
a party she excepts and assigns error there
on.

Was the court right in making the wife of
the plaintiff, on motion of the defendant. %
party plaintiff over her objection? Ordina-
rily a plaintiff must come into court vol-
untarily. There is no process known to the
law by which one person can compel anothet
to sue him. Frisbie v. McFarlane, 196 Pa
116, 46 A. 358, 79 Am. St. Rep. 696. Some

times a plaintiff can make another @ party

complainant, or can sue in the name of aD-
other, without his authority and. against his
wishes, when such course is necessary to
enable one to assert his rights. Fain *
Garthright, 5 Ga. 6; Hargraves v. Lewis 6

party plaintiff in said case and required to

Ga. 207; English vy. Register, 7 Ga. 387. But

apie se

Ga.) _ JACKSON

v. STATE 679

(128 S.E.)

the remedy of the defendant, where there is
a nonjoinder of a necessary plaintiff, is ei-
ther to demur specially to the petition, where
lack of such necessary party appears upon
its face, or to raise the question by plea,
where the lack of such party does not ap-
pear upon the face of the petition. Then,
if the plaintiff does make the necessary par-
ty a plaintiff with him, his suit will be dis-
missed upon such demurrer or on proof of
such plea. This will always furnish a de-
fendant with an ample remedy in such a
case.

It is true that whenever any extraordinary
equitable relief or remedy is claimed in aid
of any action or defense, the same may be
claimed from the superior courts, or the
judges thereof, either in the original petition
and answer, or by amendment thereto, by
proper pleadings for that purpose. Civil
Code 1910, § 5412. It is likewise true that
any defendant may also, when it is neces-
sary to obtain complete relief, make neces-
sary parties; and may by proper pleadings
and sufficient proof obtain the benefit of ex-
traordinary remedies allowed in equitable
proceedings in the superior court. Civil Code
1910, § 5411. In the present case the defend-
ant in his answer by way of cross-petition
does not assert any equitable rights against
the wife, and in his answer does not seek
any equitable relief against her. He does
seek to have the boundary line between the
tract of land claimed by the husband and
his tract established, and that the strip of

- land in dispute be declared to be his prop-

erty. It is not necessary to have the wife
made a party to this suit in order that the
defendant may successfully defend the same.
If it were necessary for him to set up some
equitable right against the wife in order to
succeed in defeating the plaintiff's action,
then he could, by proper pleadings, have
made the wife a party defendant to his cross-
action, and thus enforce such equity or right.
Civil Code 1910, §§ 5406, 5408, 5409, 5410.
What he seeks is to have the wife made a
party so that her title to the premises in
dispute can be adjudicated against her and
in his favor. This in effect would be set-
ting out a new and distinct cause of action,
and is not permissible.
5683. The status of the wife is not different
from that of any other person who might
have title to this land. The wife denies that
the husband’s suit was brought with her
knowledge and consent; but, conceding such
to be the case, this fact would not authorize
the defendant to move to have her made a
party plaintiff to this cause, against her
wishes and over her objection. Nor does the
fact that the title to land is in the wife en-
title the defendant to have her made a par-
ty against her wishes. She should not be

Civil Code 1910, §|

the defcadant if she does not wish to do so.
She should not be made a party nolens vol-
ens and be forced to take sides with her hus-
band, if she did not wish to litigate with
“the” defendant, or to sever and refuse to
join with her husband in his suit, which
might produce friction and domestic infelic-
ity.

Besides the motion of the defendant to
|make the wife a party shows that the hus-
band did not own this land at the time the
suit was instituted. For this reason he can-
not succeed in this suit. It follows that the
defendant has a conclusive legal defense to
this proceeding, and that no valid reason ex-
ists why the wife should be brought into this
litigation without her consent. In Atlanta
Trust, ete., Co. v. Nelms, 1]5 Ga. 53, 41 S.
BE. 247, it was held that—

“It is not erroneous to deny an application
by a plaintiff to make another person a party
to a pending case, when no sufficient reason
therefor is set forth; and the more especially
js this so when the application, besides being
bad in substance, is attacked by a good special
demurrer which is not met by appropriate
amendment.”

The converse of this proposition must nec-
essarily be true. The grant of an applica-
tion to make another person a party plain-
tiff to a pending suit, over objection, where
no sufficient cause is set forth in such appli-
cation, is erroneous. So we are of the opin-
ion that the trial judge erred in making the
wife, over her objection, a party plaintiff
with the husband in this litigation.

Judgment reversed.

All the Justices concur, except GILBERT.
J., absent for providential gause.

JACKSON v. STATE. (No. 4861.)

(Supreme Court of Georgia, June 22, 1925.

(Syllabus by the Court.)

Criminal law @==828—Homicide ¢==43, 309(3)
—In voluntary manslaughter there must be
provocation and passion or circumstances
equivalent thereto; failure to charge on
manslaughter not erroneous; failure to
charge on theory of defendant’s statement not
erroneous in absence of written request.

Provocation by words, threats, menaces, or
contemptuous gestures will not reduce a killing
from the crime of murder to manslaughter.

Penal Code 1910, § 65. In all cases of volun-

tary manslaughter there must be both provo-

cation as the statute provides and passion.

The provocation must come from an assault or

an attempt to commit a serious personal in-

jury, or from circumstances which are equiv-
alent to an assault or an attempt to commit

a serious personal injury. Mize v. State, 1385

forced to assert her title to this land against

nisi

Ga. 297, 69 S. E. 173. Under these estab-

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

pars

ian lel Aleclaeaaaal

AGE TWO THE NORTON MURDER

| near by. swamp and later,when accused,led the authorities to them.

Little Charles Peter was unhurt,having covered his face with his

arms and the baby Missouri continued to sleep in the bed beside her dead

father.Christian did not die but carried deep scars on her forehead near .
the parting of her pretty auburn coloped hair.She remained unconscious |
all night and was discovered the next morning by a neighbor,a Mr. Dean,
a helper and sort of over-seer for the farm,when he came by to get his
instructions for the days , |
Mr. Dean wUmhoned help and Christian and her two children were ¥
taken to her father's home,where they remained until she married Samuel 3
Toddseveral years later.
Jerry was sauchtb, confessed, tried convicted and hanged béfore

Christian recovered from her wounds,several months later.

V i il 30, 1858
JOHN, Slave, hanged Greene County, Georgia on April ’
? 9 ==)

| a a eee
| “Hanging In Green County, G4,
On Friday last, Jokn, the murderer of Smith
'Jonea, Was publicly execute! about a mile from
Greensboro’, We loarn that an immense throne
! of peuple, both male And femnle—black and white
hconurevated around the gallows (0 Witness the
| ecene “The crowd wag variously eatimuted at from
‘one to six thousand people. "Tha CARE of the glave.
| Thornton, who wag sentenced tn hang on the same
day. hae been taken, by Judge. Cone, to the Su.
' preme Conrt for a new trial
| No county in the State has surpassed Greene
iin her efforts to Suppress crime, by executing the
waite Within the lat thirty odd years, many
j have been made.examples of, to terrify and warn
(the wrong door of the dreadful penalties of the law.
| In February, 1826.» slave of Win. Armor Wa
hone for killing one of Penny's negroes.
| In February, 1835 9 slave of J. fy Boughton
| was hung for the murder of ancther of hig ne.
| proes, —
! In March, 1839, a slave belonging to the estate
(of Wm. Tally,-wag hung for burglary...
| In April, 1847, Warren J, Boon: was executed
for the murder of Alleon. — 7

In October, 1850, Waom..1..Uall was executed ar
the murderer of.Foller. ;

In April, 1852; a-nagro of John L. Tarpley was
hung for an attempt to murder trig master, :

In April, 1858, a, slave of Reuben Bennett was
hung for murdering!Smith Jones: ~

We here gives long list of nnfortunate beingd
who have met! 4 troly: aad fate. ‘Let! the living WHo
are steeped in’ erlme: ‘ahd who love ‘to commit mia.
deeds, rend the sad and melanetiot ly énd ‘of “those
who hsve ‘gone on. before them .io the. path -which
they are (reading. — Tein perainte Critader;” May 6.

Ac eee es - 09 Tie a a

fare (OU) (ibbasey /

5-13 -15S

OS)

HISTORY OF CHATTAHOOCHEE COUNTY, GEORGIA, by Ne Ke Rogers; 19336
Reprinted, 1976, Easley, Se Ce: Southern Historical Press.

Kinnon owns a farm nearby, the supervision of which occupies
part of his time. It happens to be located only a few miles
from land now included in the reservation which was owned
by his grandfather who sold it to Dr. McLester in 1850. For
his mother was a daughter of James McGowen who was born
in 1822 and was one of the early residents of that part of Mus-
cogee later Chattahoochee, but removed to Flmore County, Ala.
His father, Robert L. McKinnon, was born in Rockingham
County, North Carolina, came to Meriwether County, Georgia
and then moved to Alabama between 1840 and 1850. So PD.
McKinnon is a native of Alabama. who in the course of his
duties with the railroad was sent to the county in Gerogia
where his foreparents had lived.

Mr. and Mrs. McKinnon are members of the Methodist
Church and Mrs. McKinnon is active in P.-T. A. work as their
only child Robert and their adopted son Frank are both pupils
in this school. An adopted daughter Eva (Mrs. Hugh Martin)
has two children.

The following story about Mr. McKinnon’s great grand-
father, a pioneer settler in this section of the state, shows a
cross-section of life here in early days.

From census records of 1850: Joseph McGowen age 54, b.
in Screven Co. Ga.: wife Mary N. age 43, b. Mdgefield, 5S. C.

James A. age 30, b. in Screven Co., his wife Mary age 24.
b. in Twiggs Co., Ga., (from Muscogee Co. marriage records)
in. Aug. 27, 1840. Morgan McGowen m. Emily Darden, Nov.
23, 1845: Morgan age 30 and Kmily age 22 (1850), both b. in
Screven Co., Ga.

Joseph McGowen (above) father of James and Morgan was
great grandfather of D. McKinnon.

A. W. McGlaun recalls incidents told by his father of the
days when Joseph McGowen lived in southern part of Mus-
cogee Co., (now Chattahoochee). He says the elder McGowen
was a good judge of horses and a shrewd trader. He owned
several which won sums of money for him upon the race track.

He farmed on a small scale, owned tive or six negroes: one
named Joe to whom he gave a single barreled shotgun. (Note:
As slaves were not supposed to own firearms, Mr. McGlaun
said guns given to them for hunting game were brought into
the masters’ houses at night: and said his own father allowed
certain negroes to have guns for hunting under such regula-
tions).

One day as the stout old Irishman was reclining on his
porch, with his wife sitting nearby, some one shot him, nipping
a plug of fat from his abdomen.

Mr. McGowen told members of his family to get the slave
Joe and his gun, at once. The barrel was still smoking and
Joe confessed that some one who had a grudge against his
master had hired him to make this attempt to take his life.

(228)

He had purposely fired high that he might not strike his-beloved
nistress. Old Mr. McGowen had Joe chained to a tree until
he recovered from his wound, carried him to court for a fair
trial, but secured his wish that he would be hanged for this
attempt to end his master’s life.

Mr. J. F. Chastain, the present Clerk of the Court came
to Chattahoochee in 1915 from Gilmer County where his father
still lives, having celebrated his 81st birthday recently.

He taught the Mt. Zion school for thirteen years and there
married Miss Willie May Johnson, whose parents had moved
to that community from Marion County.

She is daughter of Frank M. and Illa Webb Johnson whose
other children are Emmett I’. m. Lilly Phillips, frank m. Pearl
Ilines, Roy m. Itffie Lancaster, George m. Genie Blythe. Lena
(Mrs. J. T. Bray), Dora (Mrs. D. B. Greene), Liza (Mrs. W.
T’. Harbuck). .

Mr. and Mrs. Chastain have one son Jesse Maurice, the
other Joe Fletcher Jr., having died that year.

Mrs. Chastain is a member of the Methodist Church, while
Mr. Chastain is a staunch supporter of Mt. Zion Baptist Church.
Uhey are quiet, unassuming people well-liked by their friends
and neighbors.

Mr. and Mrs. A. Ff. Owings and Mr. and Mrs. H. R. Zach-
ry are residents of Cusseta who have identified themselves with
the civic, religious and social life of the town and county. There
are also several families of retired sergeants from I*ort Ben-
ning making their homes at Cusseta.

Mr. and Mrs. Marion W. Williams have been ranked
among good citizens of Chattahoochee County since 1920 when
they came to Cusseta from Marion County where Mr. Williams
was reared. His father, Robert Marion Williams b. Jan. 23,
1831 in Talbot County, m. Ann Swann and settled at ‘Taze-
well, Ga., in 1851, where he owned and operated the ‘Tazewell

water mill. He later purchased and remodeled the Buena Vista’
hotel, known as the Commercial House (Lowe Hotel) where.

Marion W. Williams was born.

Robert Marion Williams answered the first call for troops
during the civil war and served as forage master for General
Wheeler’s Cavalry during the entire duration of that war. Dur-

ing this struggle he had an opportunity to visit his home only»

twice, as his duties required his constant presence at the seat
of war. :

Dr. Chas. N. Howard Sr., also one of Wheeler’
men, and he were life-long friends.

His demise in 1907 left many achievements to his credit
for he was one of the pioneers, who converted the wilderness
into a land of prosperous farms with comfortable homesteads.

He reared sixteen children, now scattered throughout this
country, one of whom Joseph Wheeler Williams married Miss

s cavalry-

(229)

*ey S*o9 saZoosny pesuey Suemonow ydesor so sae TS

aor

JOHNSON, L. C.,

black,

Sheriff W. G. Benton, who solved the mystery, here exhibits
the murder weapon in room where Mrs. Piper Berry was slain’

elec. GASP I|INewton) May 9, 1945

BLOODHOUNDS FAILED TO FIND A TELL-TALE
CLUE SO THIS GEORGIA SHERIFF DUG INTO
HIS FUND OF KNOWLEDGE, COMPARED MODES
OF LIVING AND THEREBY AVENGED THE DEAD

outside as the rain slanted

against windows, setting up a
clatter that all but drowned out
the peal of distant church bells.

Sheriff W. G. Benton, of New-
ton County, Georgia, sat at the
telephone in his comfortable living
room. His plans for attending ser-
vice followed by a quiet day of
lounging and paper-reading had
been forced aside by a previous
phone call. He was trying to reach
Major W. E. Spence, of the Georgia
Bureau of Investigation. The con-
nection made, he said:

“Major, this is Sheriff Benton.
There’s trouble out on the James
Berry farm, four miles west of
Covington. Mrs. Berry is dead and
from what I hear it sounds like
murder. I’d appreciate whatever
help you can provide.”

The request granted, he called
Dr. W. K. Swann, Newton Coun-

Cee rivulets formea

ty Coroner and Dr. J. B. Mitchell,
Covington physician, directing
them to go to the Berry farm. He
then dressed for the weather, en-
tered his car and headed for the
farmstead. e

The swishing of his windshield
wiper kept a curious rhythm with
chimes in church steeples summon-
ing residents of the peaceful rural
area to divine services—a “tmust”
regardless of the weather in that
part of Georgia.

Presently he turned off the main
highway and ploughed through a
muddy, twisting road leading to
a small, four-room cottage flank-
ed by tall trees and set back from
the road.

AMES BERRY, the husband of the
dead woman, stood talking to two
neighbors on the porch. He started for-
ward to meet the sheriff but one of his
companions, Peter Timpkin, caught hold
of his arm and said something in a low

} JOHNSON, L. C4

a oe he
/ Shey , ie fade Mereal

black, 19, elec. Georgia (Newton Co.) 3/9/1945,

La lp T ink the any BSG dn.

Nov. 22, 1633
JOHNSON, John

John Johnson, a preacher, was hanged at
Milledgeville, Georgia on Nov. 22, 1833 for
the murder of his 13-year-old sisbpr-in-law.

COURIER, Charleston, SC, Nove a0, 2033 (271)

2e,, to fasta

yur coples ‘of
and Dawson’s
ath, with ‘six
and Princge’s

ented by Mr. }

L upon the im-
al Cullege,.in
d with the ac-
) a's¢lect com-

her 19, 1833.
rt Bills. ,

us of Columbia,
lerior edurt, to
id poor of gard

Hail, to move

rile, in Haber- |:

\lee, t6 author:
1, of Hall ecoun-
se of butidin a

and Barron of
m and brigade
US. ’

‘and Pearce, to
surt to levy and
Tt 3t ck helony-
8 ip, Which the

tll, and Wynn, :

king the road
woutinue ot from
use.

simukes, to au-
arms for Doviy

risof? Pike, . and

the suport ol

‘and, and D. ity
the Hayte and:
Si)

rsifeet, to repeal

ne aul prauis

Sid9,

to authorize

al,

\,
commission

d al of tie,

, ond 3acoth a
tLof Bint: river,

n, and Stewa:t,
ce (0 tue Coun.

of Ovdetuorpe,
WVestioale the

ers’ Bank of Au-

oud-time in their
noer 2), 1833.

. Stick;
iewellen, Lictle,
ford, Millez, An-
d. e . .

remillees to cr’,
fing Of Green. ,

Lenoon, Stark.

Veddy,

the same,4tom its commencement: to the ‘pre.

Scent time,” has been laid before mé and duly
considered. | —_

have already beeh triurismitted to bath branclies
of the General Assembly, at the commeuce.-

‘nent of. the present session, andin as cleat. ahd
distinct’a manner us the meafis' of the depart.’
ment justified, accompanied: by a correspon
dence,:with the superintendent . of the Work

which* will evince the proper atteation and vi--

Moreoyer the annual Reports giving'the official
details of every transaction, relating‘ to this
service are supposed to be on the files of the:
two Houses’ of General Assembly, aod . are
therefore as accessible to either of those bodics,
as they are to the Exccutive, being* copics of
the files, and particularly to the documents ac-
companying my lute annual Message, as afford-
lug all the information in the. . possession: of this
department. * WILSON LUMPKIN.

_ Bills were reported by the following: gent ies
men.

~” Messrs. White, Dye, . Moore of Campbell,

uel, King o! M‘fitosh, Burns, Sims, M*Lennon,

Spivey, Davis of Upson, Harris of | Walton,
Pace.

nm \

report bills, was given by Messrs. White, 1]
Beck, Wilson, Blair, King of M‘Intosh,- Thorn.
tun, Perdue.,

"November 23, 1833.
Commillees appointed to report Biltes ‘=.
Messrs. Beck, Adair and Ash, giving’ Justices
of Peace, pawer to compel-persons to aid thers ty
supe. intending elections.

Messrs. Woe, Collins, and Roberson of Ca
lumbia, to prevent any tedcher of the poor childret
of Columbia county, from regeivinig pay osient, ain.
| Wess previously examined.

Messrs..Perdue; Davis of Upson, and Gibso:.
} to ainead so uch of estray liws. as relates to Uy
tolling dnd advernsing horned cattle. -_

MSI. tosh county ucademy, teestabitsiva “fesuiall
wihbor school, w ith the funds of tie neade my.

Messrs. Blair, My latyre and M'Kivey, o author:
ize the Governor to extend and enlorce : the,, lads
ol this Stare, over that part-of the, tertifory: vi
Lorida, lygng north of. the newline, )

Messrs. Wr bie; Anderson of Wilkes, and Hi hi
bard, ta protect pakchasers at «herif’s Rales,
cer tuin cases, itd make void certain sales made: rT
vidiatioh of the prov isions of said het...
© Messrs. Heard, Walker of Lumpkin, and ae
nar, lo wuthorze the Governor, to issue a gras.
vor dot No, 871, 12in distrie!, ii section of Lum
KC. a

Messrs. Wilson, Rivers of Rando! ph, and Bow :
vty foe the reliel of fraction purchasers on the di
vine, in the Sth. distriet of E arly, and the Tho we
I: snidolph. ,

» BS msrere 'S ‘horutun, Bplvey ano W elibora,” Yo an.
\uoize the Governor, to issue his warrant for tin,
voor school Tund, dne the conniy of Muscogee. |

* Bills were read @ second time in their order. .

oorted:a bill,

. Petition of Jesse G. Butta, and John: Graytit
presented by Mre Sayre, Wis * referred, y

vw hagwe Or

-Most of she — of information ‘called for, :

gilanceof the Executive in regurd ty the subject, |-

| Shick, M‘lilvey, Bowen, Blair, Moore of Eman.

Notice {or the appointment of coin |
rd

| son .wa8' convicted on .circumstantial evidence

Mess:s. King of Mtlaiosh, Dunnam, and Bur
of Liberty, to authonze. the commissioners, «

Mr. Stark fronr*the _ comuniitee appuinted,, a

we oben

for “erante, ‘that the nafional, hot
ished by any other. de:

“ey Wave taken jt.
onor would: be hilt
amt elt eee

Ton the star- shasigion banner,

oh,
er .he land of the free und th on

& may P
c home isang *

of the brave.”

ered

ar LY

ROGEVINL Ry ND

nner: i at ge a ae oe

VEMBER 27, 1893,

denen

The saw sill in: this vicin

work of an. incen-
diary, as the mill on nthe gaic Site. was para ayear
ag, \ : y

ity, owned by, Dr.

‘“” LUXURY.— Those’ Ww

ehell fish may he supplied wi
Cowles. &° Dageett’ £y Pteséry

Thise centle tien were polite enough, t
yal box af this Jaxury,and we ieee
xperiment, eeommend them to our friends,

‘PUBLIC EXECUTION On’ Friday, the
224 inst.. John-A. Johngon was executed at this
ate for the murder of Ellen Bustin... A pain.

‘ul uncertainty still hangs: over this.case. John:

ist rati

alone; he hag never. confessed himself guilty; Sei

and he approached, the awful*moment, with re.
markible composure, and.. firmness, and seemed
10 be devoutly engaged, in the exercise of « re.
ligious feelings, rin preparing to meet his God.—
This case: farnis Jes a strony argument in favor
of a proposal now bofore the. Legislatirre, 90 to
alter the law, as to substitute perpetual imprison.

ment, cath; wherever the convictions (uh ;
da reurhstantial evidence alone, Boe
eae,
A'TTOKNEY.G GENERAL—Benjomia Front

Burtr,of New. Yorks has

one Vv General. of the United §
B. Taney resigned,’

en Appoitied” Ate
ratet, to st! et Rt ;

7 HE SOVE REIGN dh ¢ OF. Ths: STATES :
—There. are’some falsetioods. tdu fg
palpable forthe honesty, or ‘the Pree tr ‘the
Ucorgla Journals but jd using them; our. “neigh.
) bours" can: bat row: the ad ofthe Richmong Whip,
Fath ynprincipled press, Which, for ears ha ip.
ported Adams und Clay, ‘and which. has’: now
abandoned all that was respectable, and honora.
ble insits character, in its codliionwith the nulli.
livrs, the imptucable, -aud vindictite enemies, of
née Prestlients: 'In endeayouring | to give, ‘some
advantage to the: bullifiers, it charges ; the ma.
jority, in. fhe’ Georgina Legislature, withy shaving
denied the sovercizuty ‘of the: Btotes.ETBIS
CHARGE JS F ALSE.:: ‘The Union party in.
she House of Representatives have. rehowed fig
deny the soyereignity. ofthe United States; Bt i

tue¢y have never «denied the. ‘sovereignty Ofte :

8, vera: States, , The pullifiers atthmpted tostrike »
Porn the Tory peve al nt i "

ir false testimony he

me 10:2
Bo!

Se wey day

< ees
Re re

th doudle ex-
“ehhattlen termed

room
5. In a final statement ‘he | Bi
4 himself justified ia play-| Fy
od four. wit- | ff

parts) and four wit
“who had.testified < against |

ig trial im. Albany, 82 his |

\
\ayere: saying, that, through | Br,

false testimony he had been

ded to the chair. 9 --*

the ‘switch was polled, Jobn-

fg body: rome in

body there
aarthly exit

an almost. up-
tion and remained there
4 g minute before it re

peg ge

pap tag eae
seit of Te

¢ the alarm acd { ;
into the burning honte to save
children. | She -nevér reta ed.

PThe dead children”

tad in the ** body

; Georgia’ (Doughterty) on Feb. 9, 19326

Rn ae cos

ia ety UR cel ce va *

nS ‘ ss a
ee Basi aiye? torte gg ih

EP EEE oc. ae,

ois isa eo Ss Qos fea

SS Shue ob ics Whee Ng
> yay x 1\ SYS \
Johnson 4

han

2 inf therefor several

Mrs. Will V. . pt when offeers
» District, panied of vauael I fies Frag (i

ance, of the Cordray district,
‘ag in the Calboun beaser aan!
Zt an er ee 4B.
following the fatal shooting

red at the | :

i time the current was turned Haig,

Patmmediately following the Pro-

sank back. Shortly after Te ncement of death on Marsh, his

saul b

ministered...
trom the| upward jerk of
little to make
tional, a vivid

priser aitt“‘who,.waata* witness
be execution.’ With his farewe!l

niation hardly out of; his mouth,

Found Dead Near |

e on theit lips) ; i ; i!
: se ; t
strapped 191° ATLANTA, Feb. 9. ()-— Toe!
Seigy Carran on “murder |

me ho erence ea |

cadet Carran, Jackson-|,

ch was post |,

a of absence of 1)

And Mother Burn

ved four » “To Death in Home| | :

at bib trial “in Albany, 8s bis )
slayers, saying) that
had “bees.

aes Runs to Streetto) |
Give Alarm, Then Bushes |,
» Back to Death.

ETON, Pa, Feb. 9 )—|
Five small children and their moth- |!
to death today in a):

fire which destroyed. thelr home at!

ded to the chair.

almost a minute

and sank back.

he was exanined, and, when
wate physician discovered

@ bear: iM :
was still beating # #80°°" |p resckow, two miles south of Ha-|!
yy

ck was administered.
Je fromthe upward jerk

éarthly exit sensational, # vivid

trast te the mancer is which he to give the alarm and them rashed

lived and Conducted —higieelf back into the burning home to save

ag bis confinement, he? children. She never returned,
the cap was, plac és @end children were: Da

inbeod Aa 2 w Retty, Te Mercuerite, 4 Joseph,

current owas turbed on and *
I wisp of -amioke crept, skywar?
the electric cap’ burned: into his
“Tie stench ‘of burning fics)
the ‘room ‘and = window w®*
+6 allow the odor to escape:
met. death with almost’
1: nonrhalance, and in |® fina
ment, rade trom the chair, 6°
Aha Campbell ‘was diain >)

f
©

bedy there was little to make mother was. Mrs. Carmen |’
Romanelli. She ran to the street)’

;

'
;

in-which he |

des ; Dunaway seid Johnéon
‘the coolest man ever to he ox-

ferated at the state “prison farm

y old, was *
Temper 1030 of. the murder of

‘Campbell. The Supreme Court r>
and denied a new

zo" today

tad of a Jengthy legal fight to he®

the clectric chair of his life, # fx!
previo’ ,

Aria!, as < investipating® ofMfeers

bstantiated his

om Roberté, sister of Tohdsad
— ‘eof the slsin man, charge!
° on scenes imnae en VES Mera
ser ene aa cise | vocation. Similar testimony wa

sie What precipitated the hoot] tne tee hake san
stayin been definitely learned, | @2ehter of the slain man, sad ethe
oe <n that Mr. cand. inmates of the house. |: 4 ire
tly Pont copia intermit.}. Johnson was convicted on Mitt

elie att ie supposed that an | 2#,\1981;and sentencéd to

veh gd conciliation is what. 8.A® appeslfor’ nea
ried Van be the-telae I ey ae ‘or’ a new trial
Giesines sitet, Supreme Court, auto

y opening day. there

- hats. thine see ee =. “ |
aa meds ma when he: pan betas
7 | Beck jail here. On Janvary|

as ra ended, and when Rus-

pa. taba ZS peteeue clemency, he

date being Yobiuity Perry

Marah; the other gure tn to

~ SP Sat execution, waa con-

reskin et taurder of Walter

grower, Ponape gad “Dae
ys) ret ae night of Octobeasigs “y |

“ pay which his automo.

id Ocill drivi was ar}
a ing Campder
} arrested, Marsh spl /
rig“ enreet at cri |
ted with the liquor traf. =

A 1914 Johnson shot and killed.

ter Silla, but waa never brought

Samer
‘our eliminative

pn
een.
pep Sin & bowe|

ed the slaying 07¢ Of-"self-de-

mvi special term. é-rdianey|
linpeconver: 1930, and. sentenced |.
{ Esha gis , 2931,
4® participant, Jehnson 3 was held ‘in
Jail_there for: severa) | months, batt:
officers failed to establish the
fyi the slayer, Johnson was;

* g the slaying‘and |
a tlaimed self-defense, » plea which}.
y be entered ‘chee iba to trial?

in March.

' trial was con
a fileting, as eye-witnesses gave dif-4>
aferent versions « o? «the affair, |.

bo Helen Wiley, common law wife of

mi Johnson's, substantiated his story,

oy but Mrs, Roberts; sister of Johnion,

iP and wife of the slain man, charged

at #26, 1931, and se ner toldie a

a May 8. An -appeal/for’a new trial, |
led’ with the Supreme Court, auto
tically stayed Johnson's death on
s date, The Supreme Court; after
reral’ months" consideration, r :
d'to ‘grant the slayer & new trial (3

Johnso

p then: hace by ‘his attornty.
Smith, who appealed to both}
Prison Commission, seeking a{
mutation of sentence, and to
ernor Russell. On December 19,
than forty-eight. hours before
fohnson was scheduled: to die, Rus-
Bal granted a 30-day respite. At this
me Johnson wag held in ‘the: ‘death
Beall at the state farm and (was en-

foe avTaying. when n of his stay, of pi! ii ta
- execution was brought to him: |
» Johnson was returued to the AL Rukh BES g 4
; ‘s gary prison and. remained there’ bobo Di baer _BAYER D .
goat: Friday, when he was brougmt; ;
i “te the fait here> On~ Se rat Serres ieee
E> | his respite ended, and when Rus- men
Pell refused further tlemency,. he
wis Tesentenced to the chair, the
Hate being February 9, today.’
: Marsh, the other figure ar to-
lays. double execution, | ¢on-
ted of the murder of | alter ;

sig Dougherty County$Pecan |
« Campbell was slain at nist

bee on the night of October 18,
$30 following which his mutomo.

2S, gave
check on

ed when
hounds.
‘d in the
id if the
erry was.
poli A be
‘nton had
ion to the

a smell of
turned the
n the back
the trail of
d from the
s who had
. with their
our separate
ur different
f the crime.
up a trail,
immediately.
under way.
ed to join it,
in with Bob
3; mind, He
questions he
id right now

sr man, But
usual dignity.
front porch of
id of bringing
nt to Benton's

2 the house?”
as reverent.

eyebrow lifted
ybout the mur-

sid me on the

ng to happen.
T can’t under-

have any idea
in?”
“T should say

at the soles of

ield up his feet
see, the bottoms
ked closely. The
; that had made
‘ull Creek Trail.
vearing the same
Neely had seen
ork clothes. Now
t, freshly cleaned

Before Sheriff Benton could ask him

if he had changed his shoes, Salem said,
“If you are wondering whether or. not I

| came over to the Berry home Sunday

morning, I’ll tell you. Yes, I did. I
could find no one at home, so I left.”

Benton, somewhat surprised at the way
Salem calmly told of his presence at the
home at the time of the murder, was
determined to keep the man talking about
the mysterious visit he had made to the
Berry home. .

“What time did you get here?”

“Around eight o’clock. Don’t remem-
ber for sure. I knocked on the front door
and no one answered. I went to the back
door and knocked and no one answered,
so I went back home.”

“And you saw no. one here?”

“That's right.”

“Didn’t that seem a bit strange to
you?” °

“Yes, it did—but there was nothing
I could do about it.”

BENTON, watching the man closely,
said, “Why were you coming to see
Berry and his wife?”

“Tt was about church work. Just a
little business I wanted to talk over with

~ them.”

“But you were not ready to go to
church when you came here. And I
understand ~~ and your wife quite often
go to church with the Berrys. Couldn’t
that business have waited until three
hours later when you went to church?”

“To be honest,” Salem said, “Mrs.
Berry and I had a little misunderstanding
about some phase of church activity and
I wanted to show her I had no ill feeling
about the whole thing. It was in the na-
ture of a friendly call.”

“All right,” Benton said. “That’s all
I want to know now.”

The deputy, checking the two hired
hands Berry had mentioned, returned
with little accomplished. He had located
Johnson at the latter’s home. Johnson
said he had been at home all day the day
of the crime and there was nothing to
show he hadn’t been. Billip did’ not live
in the Covington area, but had been a
transient worker. He had left the county

. a month before to go to Alabama, No

one had seen him in the neighborhood
since then.

But if the “hired-hand” angle was dis-
couraging, the evidence dug up by Chief
Nahlik and his hounds brought‘ up the
blood pressure of all the officers. The
dogs, following the trail of blood, fol-
lowed the tracks leading from the rear
door of the Berry home to the swamp.
There the officers wére unable to follow
the tracks longer, but the dogs had kept
pressing ahead. Through the tangled
underbrush of the woods, they had made:
their way for about a half a mile when
they stopped suddenly by a big pile of
brush, Nahlik and some of the neighbors,
digging in the brush, found a bloody
pole about three feet long and about an
inch in diameter, ,

When Nahlik handed it to Benton, the
Sheriff looked it over carefully, “Why,
this looks like a stick used by the people
around here to stir their clothes when

washing in boiling water.” The Sheriff
examined it still more closely.

On one end of the club, someone had
carved a five-cornered star.

“Quite artistic.” Nahlik grinned.

“And quite descriptive,” Benton ad-
ded. “That might help us find out whom
the club belongs to. And once we find
that out... .”

Benton turned back to Nahlik. “What
about the dogs? After they found the

yg club, what did they do then?”

“They stopped dead.”

“Does that mean whoever hid that club
there, turned around and came back to
the Berry house?”?-

“Might or it might not,’ Nahlik said,
frowning. “The dogs were on the scent
of that blood. When they found the club
they may have thought that was all the
were supposed to do.” ;

So the. mystery. of where the killer
started from—the house or the woods—
still remained a secret.

Just to make sure, in the meantime,
that the club was the death weapon.
Sheriff Benton sent it to the state labora-
tory for a chemical test comparing it with
the victim’s blood. After that, there was
no doubt. The blood was the same.

The club was tested for fingerprints
also, but there the officers weren’t so’
lucky. There were no fingerprints.

After that, Benton gave the death wea-
pon to a. cotiple of his deputies, asked
them to start a house-to-house canvass
to try to determine who the club belonged
to—after Berry had stated positively
that it had not belonged to him or his
wife, and that he had never seen the
club before.

The deputy, checking on the husband’s
actions the day of the murder, had found
conclusive. proof that Berry had been at
the small general store in Almon from
8:15 until 8:45 the morning of the
crime.

GHERIFF BENTON was beginning:
to feel a bit uneasy. Neighbors were
pene in small groups, talking in

ushed tones, their faces grim with an-
ger. Speculation was running high and
wide about who the killer might be.
Everyone had a different idea. Emotions
were flaming higher and higher. Ben--
ton knew that in such an explosive at-
mosphere, any little untoward’ action
might set the whole thing off and end up
by shedding innocent blood.

Benton himself started a personal in-
vestigation to locate the pair of shoes
that had made the tracks from the rear of
the house to the woods where the death
weapon was found. But he had no luck.

Then, suddenly, things began popping.
And Benton closed his office doors and
held.a secret conference with his fellow-
officers, :

The deputies, checking on the owner-
ship of the bloody murder club, had found
out ‘definitely that the death weapon be-
longed to Berry Sills,

“Wasn't he one of the members of the
posse who was so anxious to help us
catch the murderer?” Benton asked.

“That’s right,” the deputy said. “Had
a double-barrelled shotgun and a long,

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tall, hungry-looking dog, I talked with .

him about thirty minutes when we first
got out to the Berry house that Sunday
morning.”

“We're going to see him, and right
now,” Benton said. “But we've’ got to

_ be careful that no one follows us. We

want to handle-this strictly according to
law—and the people are pretty excited
right now.” | :

The deputy nodded, ’

Sheriff Benton and his deputy met one
another at a small creek a mile from
Covington. They did this to keep the
townspeople from getting wise to their
plans. There, the deputy left his car and
got into Sheriff Benton’s. Ten seconds
later, they were on their way to the home
of Berry Sills, far back in the swamp.

\
GILLs met the officers on a small road
about a quarter of a mile from his
home. He had two dogs with him. He
still had his shotgun. He smiled when
he saw the officers, then said that he had
been hunting,

“Found out yet who killed Mrs.
Berry?” he asked, the smile quickly fad-
ing from his tace.

“We want you to tell us that!” Benton
said,

“Me?” Sills exclaimed.

The Sheriff handed the farmer the
bloody club with the star carved on one
end of it. “Ever see that before? We
understand it belongs to you—that you

use it when you’re doing your washing?

That right ?”

Sills didn’t say anything, but looked
at the club strangely perplexed. He
fumbled it in his hands, looking it over
carefully. “Yeah,” he said finally. “Looks
like mine all right.--But I don’t get it.
Mine is locked up in the wash house back
of our place—at least, it was.”

“We'd better go see if it’s still there,”
Benton suggested,

Sills nodded.

The farmer got into the car with the
officers and his dogs trailed along be-
hind. On the way, Sills said, “My wife
and I are the only ones who have keys
for that lock. I don’t see how this
stick, . . .”

Sills asked his wife, a small, neat-
appearing woman, if she had done any-
thing with the stick. She shook her head.
She said she hadn’t given her key to the
wash house to anyone either. ‘Sills and
the officers then went to the wash house.
Sills unlocked the front door and they
all went inside, ‘

The stick was missing all right

“But, wait a minute!” Sills said
quickly, hurrying to:the back of the wash
house. “That’s not all that’s missing. I
had a suitcase in here too. Had a .22
rifle, a leather jacket and some clothes
in it. It’s gone, too. But how....” :

The deputy pointed at a couple of
boards pulled loose from the rear wall of
the house. “Looks like those have been

* pulled loose lately,” he said.

A minute later, Sheriff Benton had
made a startling discovery. Outside the
wash house, and at the rear of the build-
ing, he found the ‘same set of footprints
that had come from the rear of the Berry

home. The footprints led up, taufhe back
of the wash house where it was

someone had stood while he pulled two.
boards loose from the building’ and-en-
tered the wash house through the open-
ing.

Benton turned suddenly to Berry Sills.
“Have you any idea who broke in here
and took that club and the suitcase ?”

Sills nodded. “I certainly do—L. C.
Johnson !”

“You mean the former hired hand of
Berry’s?” Benton asked, surprised.

“Exactly—and a former hired hand of
mine too.”

Sills explained that after Johnson had
stopped working for the Berrys three
months before the murder, Johnson, had
come to Sills and asked him for a job.
Sills had given it to him. Then Mrs.

Berry had told Sills, sometime later, that .

she didn’t trust Johnson. Sills took her
word for it and fired the young man.
But Johnson had already borrowed some
money from Sills and’ couldn’t pay it
back. So Sills told him he would keep
Johnson’s suitcase until the hired hand
paid him the money he owed.

An hour later, Sheriff Benton, his
deputy and Sills were at Johnson’s home.
They found the strapping, 20-year-old
youn in his front yard, cutting wood.

hen Johnson saw the officers—and saw
Sills—he started to run, but one shot
from Sheriff Benton’s gun, fired into
the air, brought the young man to a
standstill, ;

“Don't shoot !” he screamed. “I'll give
up.’ '

UT when Benton asked him why he

had murdered Mrs, Berry, Johnson

said, “I didn’t kill her. I never killed
anyone in my life.” .

“Where’s the suitcase you got from
Still’s’ wash house ?”

_ “T never got it. I don’t know where
it is.”

‘Thirty minutes searching, however,
and the officers knew where it was. John-
son had it hidden in a box under his
house. There was the .22 caliber rifle
and the clothes Johnson had had in the
suitcase also. And more important, there
were the bloody shoes which matched
the tracks found at the rear of the Berry
pH ‘And a bloody pair of blue trous-
ers

Chemical tests proved the blood on
the shoes and on the trousers were the
same as Mrs, Berry’s. : ‘

After that, Johnson cursed and said,
“Sure I killed that woman. I hated her.
She made me lose my job. She said I
couldn’t be trusted.”

“And it’s very plain,” Benton snapped,
“that you couldn’t be. Mrs. Berry was
right. Too bad, Mrs. Berry had to pay
with her life to prove it.” -

Johnson was immediately charged
with first degree murder and brought to
trial for the crime. On February 14,
1945, he was convicted and given the
death penalty.

. Johnson was electrocuted on March
9, 1945,

Note: The names Berry Sills, Oscar Billip and
Bob Salem are fictitious to save embarrassment to
persons innocently involved in this case. .

iparent ,

home 1
with $1,600
mother’s 5

292 Ga.

tell the truth. I told him he had just as well
get right with the Lord and he started off
and said they planned this thing before
Christmas, he and Son Strother, the first bad
night they would go and do it, that he would
come to Son's house, he said Son told him Mr.
Green Hartley had some money, and he left
home that night and got to Son's house about
12 o’clock and haled, and Son eame to the
door and come out and they talked a little
while, and Armstead Lawson was in the
house and Son said Armstead was all right,
and he said they went below Powersville and
erossed through the woods and through the
field and he went above the house and Arm-
stead went behind him by the chicken house,
and Son went to the door and says, Son
knocked on the door and said, ‘Mr. Green’—
and Mr. Green says, ‘Who is that,’ and Son
says, ‘L have been across the ereck to notify
my son my boy is dead at Mr. Lee Thomp-
son's, and he says they stayed there about
three minutes and he heard some one scream
in the house, and Son says ‘Come on, we have
got them,’ and when he went in Son and Arm-
stead were standing behind the door with
Mrs. Hartley, and they told him to grab her
arms and she said, ‘If you won't kill me I will
tell you where the money is, please don’t kill
me, you have killed my husband,’ and he says
(defendant) ‘Don't kill her,’ and Armstead
says, ‘Yes, kill her she will tell it,’ and he said
they hit her and her head fell side of his
legs and that was the reason the blood was on
his overalls, and they got the money off of her
and cut the sack open and threw the sack
down and counted $100 of the money and
three case half dollars, and he says, ‘Men
let's hurry away from here, ft is getting late
and T have got a long way to go;’ they left
the house and come to the railroad and all
swore they wouldn't know each other, and
Son was to take the money and they were to
meet the next folowing Thursday and divide
it up. and he said he come along the railroad
and he had on two pair of pants and he pulled
oft the bloody pair and laid them down and
put the others on top of them and he went the
same way he eame, and Son and Armstead
went in the direction of the Diamond Fruit
Farm coming towards Fort Valley.”
Cross-examination: “This confession was
made sometime in May. I don't know the
exact date, but about a couple of months after
the crime. I think January 27th was when
the crime was committed. I questioned the
defendant when I first got him on two ocea-
sions, and after I put him in jail several
times he would call me and ask me for a eiga-
rette. I would say that I went to him about
a dozen times when he didm't eall me. My
mother and wife and Mr. Williams, and later,
Mr. Anderson, were present when the confes-
sion was made. I don't remember teliing him
that it would be better to confess and T would
try to get him a life sentence. I didn’t tell

158 SOUTH EASTERN REPORTER

him that me and Mr. Garrett were like this
(holding up fingers), and T didn’t tell him that
I would see Judge Mathews and he would not
let him be executed, but I told him the best
thing for him to do was to get right with the
Lord and tell the truth, that if he was guilty
the best thing to do was to tell the truth be-
cause the truth is the light. I didn't tell him
I would try to save him; I just advised him
to tell the truth. I didn’t promise him if he
would confess I would get him a life sentence.
I only advised him to tell the truth about it.
The negro Anderson in jail is named Shorty
Anderson and he told me some things he
heard. I did not engage him to get a confes-
sion, I told him anything he could help me out
on IT would appreciate it and that was after
he called me to one side and said he had
heard something. I didn’t put the defendant
in the same cell with Shorty Anderson, they
went all the way around, sometimes they got
in the cells together and T’didn't know it, he
might have been in the cell with Shorty An-
derson, but they stayed mostly in the run-
arouud. Mr, Williams and Mr. Anderson and
my mother and wife and my little boy was
present when he made the confession. I don't
believe I have ever heard anybody tell the de-
fendant if he would confess they would try
to see that if was light on him but some
might have said something along that line, I
dom’t remember, T know [I have not, T dont
know who might have said it but there has
been so much talk of this case it has been in
the ears of so many people and so many peo-
ple have asked me so many questions about it,
I have heard people tell him that if he was
guilty the best thing to do was to confess se
it would be light on him. To might have told
him that myself, T says, if you are guilty the
hest thing for you to do is to confess and get
right with God. I told him [ had known of
the court being lighter when a man confessed
and that the court would be lighter on any of
them if they told the truth. I told him ina
lot of cases they are lighter, if the prisoner
confesses but I didn't promise him anything.
I didn't tell him I would use my influeng
with Solicitor Garrett if he would confess, !
told him whenever people confessed the
courts were lighter on them if they confessed
and told the truth but T wouldn't advise any-
hody to confess if he was not guilty. * * *
I had two letters from him, one on one day
and one on the next and I went to sce him
that night after everybody was asleep and It
was after 12 o'clock. I had not talked to him
about the case that day, T hadn't said any-
thing to him in four or five or six weeks, ‘The
letters came to me but IT hadn't said any
thing to him. (At this point the court ad
dressed the jury: Gentlemen of the jury, In
admitting the evidence of confession whether
coming from this witness or subsequent wit-
nesses, the court instruets you in order te
make a confession admissible it must have

Llnieeagcelinaea jy ier; ahudes! F ay!

JACKSON v. STA ‘
158 aie enlgs aes 293

been freely and voluntarily made without be-
ing induced by another by the slightest hope
of benefit or the remotest fear of injury. TTie
court is prima facie admitting this evidence
to you for your consideration as evidence up-
on the confession, but you, after all, are the
Judges as to whether or not this testimony
was freely and voluntarily made, this confes-
sion by the defendant without being induced
hy the slightest hope of benefit or the remot-
est fear of injury. If you find a confession
was freely and voluntarily made, it will be
considered by the jury with all the other evi-
dence in determining the guilt or innocence of
the defendant. If, in the opinion of the jury,
you believe the confession was not freely and
voluntarily made you will not consider it at
all.) I got his message and went up there
about 12 o'clock and eased the door to see
what was going on and I found they were
asleep, and I called him low and he answered,
and I asked him if he wanted to see me and
he said: ‘Yes sir, I want to confess,’ and I
sald, ‘Confess what,’ and he says, ‘Confess
about the Ilartley murder case, I feel bad, I
ein not sleep and I can not rest and I want
to tell the truth, we dont [done] it,’ and he
asked me to take him to the kitehen and I
eald all right and handeuffed him and carried
him down stairs and it looked like he had an
“fane, sweat popping out of him, and I says,
‘Wait a minute, you tell the truth and noth-
Inz but the truth because I have not got any-
thing to promise you, and I ealled Mr. Wil-
Hams and woke up my mother and wife and
told him if he wanted to confess to tell the
truth but not to come down stairs with lies
on his lips to try to put it on anybody else,
and he started off and said: ‘Me and Son
Strother planned it before Christmas but the
weather was not suitable, we planned to do it
en arainy night so as to cover up all signs,
ond this night I left home and come to Lizzie
Jackson's house on. the Smith place and
stayed there a while and then come to Son's
house, and got there about 12 o'clock or a Jit-
He Inter and they had a small fire and I haled
and he come to the door and T Says, ‘It is Al-
bert: Jackson,’ and he says, ‘Mave you come
for business,’ and he says, ‘Yes,’ and they
talked a little while and Son says, ‘We have
get Armstead Lawson in the house and he is
All right.’ and he says, ‘We went on down be-
low Powersyille and got on the railroad and
t Poweud| the trestle and went between the
chicken house and the mule barn and Son told
me to go to the right of the house and Arm-
a ° the left and T will call him out and
Sly come on boys everything will be

nie il That was Son Strother telling Al-
"rt Jackson, and Armstead and Son called

a, pied ri og Hartley asked, ‘Who is
and pee: ’ id says, ‘Iam Son, and Iam wet
to my oss bichiniegs in and warm, I have been
at Lee ntl POSS the creck to tell him my son
chatrs Pilar is dead,’ and he heard

‘Ss moving in there and in three or four

minutes he heard a lady scream, and he says,
‘Come on boys, I have got them,’ and when he
got in there they were beating Mrs. Hartley
and he caught her by the arm and they
knocked her down and her head fell on his
legs, and he said she told him if they wouldn't
kill her she would tell where the money was,
and one of them says, ‘Let's kill her she will
tell, and they cut the money off her body and
there were three case half dollars in silver in
the bunch when they cut the sack open and
counted it. He told me the trunk was on the
bed and the bed tore up and green wood on
the left hand side and said he saw an old
make of pistol, and I asked him why he didn’t
get it and he said he didn’t want it, and he
said he saw it on an old bureau and a shot-
gun in the corner and Mr. Hartley was lying
in the front of the fire place and Mrs. Hart-
ley lying back of the door. I saw the shot gun
in the carner and the pistol on the bureau.
The tray of the trunk was sitting on the bead
and the mattress turned up. The money sack
was lying at the foot of the bed, cut open. He
said he begged them to come on that someone
would catch them, that he had a long ways to
go and they come up the railroad and when
they got to the railroad they swore they

wouldn't know each other or know anything

and they were to come back on Thursday and

divide the money, and he come on up the rail-

road and pulled off his bloody pants and put

the others over the bloody ones, that he had

on two pair, and he cut through the woods

and went back home, and after he left the sun

was up and he stopped and got him a cigarette

and went on down by this negro house and

went to Mr. Jones’ and after he got in the

road he got to studying about the overalls and

he pulled them off and put them in the stump

hole and went on and got there late and Mr.

Jones got after him about being late.”

[1] 1. From the testimony in the case we
are of the opinion that the jury were author-
ized to find the defendant guilty.

[2] 2. Grounds 1 and 2 of the amendment
to the motion for new trial assign error be-
cause the court overruled a motion to rule
out all evidence with reference to the con-
fessions alleged to have been made by the
defendant. It is insisted by able counsel for
plaintif€é in error that these confessions were
not freely and yoluntarily made, but were
obtained from the defendant by the hope of
henetit and the fear of injury. These grounds
of the amendment to the motion for new trial
are as follows:

“1. Because the court erred during the
trial of the case in allowing the witness, I. 3B,
Fagan, to give to the jury a purported con-
fession of the defendant over objection by
the defendant that the purported confession
be excluded because of the statement of the
Witness, FE. B. Fagan, that he told the defend-
ant if he would confess, that punishment

RIVERS:

ts
2

Bch

Lae tit SRS

288 Ga.

[3] 3. Exception is taken to the ruling by -

the court which permitted the state's counsel
to state to the jury that the state would show
a number of facts which counsel for the de-
fendant contended were not only irrelevant
and immaterial, but extremely prejudicial,
and which were entirely disconnected with
and disassociated from the issue before the
jury, to wit, the guilt or innocence of the
accused of the charge of the murder of the
deceased as alleged in the indictment. As
an original proposition, and under the rules
of law as formerly administered in this state,
the writer, for himself personally, would have
sustained the objection of the plaintiff! in er-
ror. Indeed, 2 motion for a mistrial, if made,
would have been sustainable. That the state-
ments made were, in one sense, most preju-
dicial, cannot be questioned, But by grad-
ual evolution, the rule that the character of a
defendant in a criminal case cannot be put
in issue or attacked, has been gradually
chiseled away and finally located in the
shadow of other principles, the application
of which has been deemed necessary for the
enforcement of the criminal laws; and while
the principle still lives in theory as a memory
of the past, it is of little practical effect in
the actual trial of cases, As to the statement
of counsel to the jury of their position and
contentions, the law is of cotrse as it ever
was—that they can only state that they ex-
pect to prove what can be proved according
to the rules of law. The change which has
been effected is that testimony as to other
transactions disconnected with that with
which the defendant stands charged in the
indictment, in’ both time and circumstance,
may be used to show motive, scheme, or plan,
and indeed the very nature or animus of the
defendant when necessary cither to identify
and fix the offense upon him, or indeed to dis-
close the intent with which the accused acted,
if there be doubt as to the intent with which
the crime was committed. It is true that
under the rtle, the jury are to receive evidence
of the commission of previous crimes ouly for
the purposes specified, aud not for the pur-
pose of determining by this alone the guilt of
the accused. In other words, the jury are
forbidden, although they have this evidence
of the character and nature of the defendant,
to convict him “upon general principles,” as
that expres
parkinee. The objection of counsel for de-
fondant to the opening argument in this case
is based upon the principle that the state did
not have the right to prove any of the other
facts and occurrences which he stated he
would prove to the jury. The question, there-

ion is sometimes used in general

158 SOUTIT EASTERN REPORTER

fore, submitted to the trial court was as to
whether he did not have the right to prove
that which he stated. Under the rulings of
this court, and under the general trend of
modern authority, the court held, in’ over-
ruling the objection, that the solicitor general
had the right to prove all that he said he
eould prove. Under the ruling in Frank vy.
State, 141 Ga. 248, SO S. KB. 1016, and the
numerous authorities from our courts cited,
as well as from text-writers and other juris-
dictions, the court did not err in permitting
the solicitor-general to proceed. In Williams
v. State, 152 Ga. 498, 110 S. BK. 286, the rul-
ing of the majority in the Frank Case was
followed, and it has been adhered to in later
rulings by this court. In the present ease,
the transactions which the solicitor general
stated he would prove all occurred after the
commission of the offense alleged in the In-
dictment; and it therefore becomes a ques-
tion whether the same rule as is applicable
to previous acts or crime committed by the
accused is likewise applicable to evidence as
to the commission of offenses of a similar na-
ture subsequent to the commission of the
deed for which he has been indicted. Tn this
case the solicitor general explained that the
facts he would prove were in substantiation
of the fact that the motive of the defendant
in the subsequent robberies or holdups was
to obtain money with which to make his es-
eape by flight. We see no reason why the
conduct of one accused of murder after the
homicide should not afford as true a criterion
by which to determine motive and intent of
him who did the killing as his prior conduct ;
as one of the main reasons upon which proof
of other and distinet offenses is admissible
is that motive and intent and plans and
schemes are concealed within the breast of
the actor, and can perhaps be disclosed by the
conduct of the accused under similar. cir-
eumstances—whether before or after the act
for the dommission of which he — stands
charged as a violator of the law. There are
several assignments of error based upon the
introduction of eyidence over the objection
of the accused, as set forth in the statement
of facts. They need not be dealt with seria-
tim, because each and all of them fall with-
in ‘the rule as stated in Frank vy. State, 141
Ga, 248, 80S. 1B. 1016, and reiterated in. Wil
liams vy. State, 152 Ga. 498, 110 8S. FB, 286.

[4] 4. The evidence authorized the ver-
dict, and the judge did not err in overruling
the motion for a new trial,

Judgment aflirmed,
All the Justices concur,

| OATS RO SE GEIR IR aE S38 Fille

JACKSON v. STATE ‘
158 S.E. Ga. 289

JACKSON v. STATE.
No. 8154.

Supreme Court of Georgia.
April 15, 1931.

1. Homicide C250.

Conviction for murder held authorized
hy evidence,

Nyllabus by the Court.
‘The evidence authorized the verdict.

2. Criminal law G=520(1), 522(1), 736(2).

Confession, to be admissible, must be vol-

untarily made without being induced by an-
other by slightest hope of benefit or remotest
fear of injury; question whether alleged con-
fessions were freely and voluntarily made
held properly submitted to jury under eyi-
cence; whether confession was induced or
was free and voluntary is for jury, where
considerable time elapsed between offer of
inducement to confess and making of confes-
ston,
Syllabus by the Court.

(2,3) To make a confession admissible,
it must have been made voluntarily, with-
out being induced by another, by the
slightest hope of benefit or remotest fear
of injury.

(a) In view of the evidence on the sub-
Ject of confessions, the court did not err
in submitting to the jury the question of
whether the alleged confessions were free-
ly and voluntarily made.

(b) Where a considerable time hag
elapsed between the offer of an induce-
ment to confess and the making of the
confession, the question whether or not
the confession was induced, or was free
and voluntary, is for the decision of the
Jury. ,

Evidence tending to show defendant was
In vicinity where homicide occurred, but not
showing impossibility of presence at scene of
offense, was insuflicient for charge of alibi
(Pen. Code 1910, § 1018).

Syllabus by the Court,
Error is assigned because of the fail-
ure of the court to charge the law of

alibi, even in the absence of a request
80 to charge. This was not error. There
was ho evidence of alibi. Plaintiff in error
Msists that the defense of alibi was raised
by the prisoner's statement and by two
Withesses for the state. This evidence
tended to show that the defendant was in
the Vicinity of where the homicide oe-
curred, and does not show the impossibili-

ty of the prisoner's
clas prisoner's presence at the scene

of the offense at the time of its commis-
sion, Penal Code (1910), § 1018.

4. Criminal law €>1129(3).

Assignment of error for failure to charge
jury as to duty in considering other evidence
if confession was not voluntarily made held
too indefinite for review.

Syllabus by the Court.

The ground of the motion for new trial
that the court erred, “after allowing the
purported confession of the defendant and
evidence relating thereto to go to the jury,
in failing to charge the jury as to their
duty in consideration [of] other evidence
in the case in the event they should find
that the confession was not voluntarily
made without being induced by another
by the slightest hope of benefit or remot-
est fear of injury,” is insufficient to eall
for a decision on the failure to charge
the jury as “to their duty in considera-
tion of other evidence in the case.” The
assignment is too indefinite to raise any
question for decision,

5. Criminal law €=775(3), 828.

Charge on contentions of defendant
charged with murder, including claim that
defendant was not at scene of homicide, held
sullicient charge of defendant's contention ;
defendant, if desiring fuller charge on con-
tention, should have made timely written re-
quest therefor,

Syllabus by the Court.

The criticism that the court in its charge
stated the contentions of the state and
failed to state to the jury the contentions
of the defendant is without merit. The
court did state in its charge to the jury
that the defendant claimed he was not at
the scene of the homicide at the time of
its commission. If a fuller charge was
desired on that subject, a timely writ-
ten request should have been presented
to the court.

6. Homicide @>286(1), 289.

Charge to convict for murder, if defend-

ant and others conspired to commit larceny,
and deceased was struck by one of them dur-
Ing commission of larceny, held
charge to acquit of murder, if defendant con-

proper ;

spiring with others to commit larceny, sought
ty prevent larceny and abandoned intention
to commit larceny or participate in killing,
held proper.

Syllabus by the Court.
(6, 7) Error is assigned in grounds 6 and
7 of the motion for new trial that the
charges therein set out were erroneous
and not sound as an abstract principle of
law. This contention is without merit,

For other
158 S..—19

ases see same topic and KEY-NUMBE

K in all Key-Numbered Digests and Indexes

Sez Syoetq SqaeqTY ‘Nosyovr

pe
f
é

:¥
“Kor:

*ZE6T=L-OL (Yoved) BTsdoep peqnooayzoaTe

RIVERS

2090 Ga.

7. Mction for new trial properly overruled.

Syllabus by the Court,

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

RUSSELL, C. J., dissenting.

Hrror from Superior Court, Peach County:
G. Oxzden Persons, Judze,

Albert Jackson was convicted for murder,
and he brings error.
Aflirmed.

Geo, B. Culpepper, Jr., and A. C. Riley, both
of Fort Valley, and T. PL Stephens, of ‘Lhom-
aston, for plaintiff in error,

Chas, HT. Garrett, Sol. Gen., of Macon, Geo.
M. Napier, Atty. Gen. and T. R. Gress, Asst.
Atty. Gen,, for the State.

TILL, J.

Albert Jackson, Son Strother, and Arm-
stead Lawson were jointly indicted for the
murder of Mrs, Jeffie Hartley. The indict-
ment was returned by the grand jury of
Peach county at the September term, 1930.
It alleged that the homicide occurred on Jan-
uary 21, 1980, and that Mrs. Ilartley came
to her death by reason of wounds inflicted
upon her by the defendants, who used a wood-
en bludgeon, wooden stick, and other instru-
ment of like kind, the same being a weapon
likely to produce death. Upon the call of the
case for trial, the defendants severed, and
Albert Jackson was put upon his trial. The
jury returned a verdict of guilty, without rec-
ommendation, and he was sentenced to suffer
the penalty of death by electrocution, The
defendant made a motion for new trial, which
was overruled, and he excepted,

The primary question of fact in the case
is as to the identity of the person or persons
who committed the crime. There can be no
question under the evidence that an outrage-
ous murder was commitied, and that the mo-
tive for the murder was robbery. It appears
from the evidence in the case that on Thurs-
day January 22. 1950, about 9:00 or 10:00
o'clock a.m. the bodies of Mr. and Mrs. ILlart-
ley were found in their little cabin home lo-
cated in an isolated place on or near the
banks of Mule ereeck in Peach county. They
were aged people about eighty years old.
When found Mr. Tartley was lying in front
of the fireplace with two or three ugly wounds
in his head, which was crushed, and he had
evidently been dead longer than Mrs. Hartley,
because of the fact that his body and muscles
were stiff and the Mood which had flowed
therefrom was coagulated. The body of Mrs.
Hartley was found behind the door leading
into the room where she was murdered. Ler
wounds were in the head also, the lower sur-
fuce of both forearms were badly bruised as

158 SOUTH EASTERN REPORTER

if in an effort to ward off the blows directed
at her head, Tiler body was not as stiff as
her husband's and her blood was only partial-
ly coagulated. The evidenee and. circum.
stanees tended to indicate that the period of
time at which the homicide was committed
could not have been more than 24 hours, or
at the outside 86 hours, before the dead
hedies were discovered. There were live
coals in the fireplace and the fuel used to
make the fire was partially dried pine wood
obtained from limbs of pine saplings. Beth
Mr. and Mrs, Hartley when found were dress-
ed, indicating that the murder oceurred in the
evening or early part of the night. Their
chickens had been shut up in the chicken
honse and the door fastened; their water
bucket was full, and the “night glass” in the
room where the old couple slept had not been
used. A trunk in the room had been opened
and the contents of the tray had been scat-
tered about the room, partly upon the bed
where the tray of the trunk had been placed.
The hed itself had been disarranged indicat-
ing that a search had been made of. the
springs of the bed and between the mattress-
es, Mrs. ILartley’s clothing was thrown over
her head and her person was exposed. A
string was found tied around her waist, a
portion of which indicated that she had been
wearing a little bag, or pouch, attached to
this string next to her body. The bag, which
corresponded to the string, was found on the
floor of the room near the bed, ripped open
and rifled of its contents. There was on the
bureau an old-fashioned long-barrel pistol,
and an old shotgun of the early make of
breech-loading type, was in the corner of the
room, The weapons used to kill these old
people evidently consisted of three sticks of
the wood which was in the room for the pur-
pose of making a fire. These sticks of wood
were found near the bodies of the deceased,
on Which were blood stains and hairs from
the heads of the old couple.

The testimony also showed that Albert
Jackson, the defendant, lived about threes
miles from the scene of the homicide, and
worked for a Mr, Jones, Several nights prior
to the time of the homicide he stayed at the
home of a negro woman who resided about a
mile and a half from the scene of the homi-
cide, The evidence disclosed that he was at
this nezro woman’s house on Tuesday night
prior to the killing; that he stayed there only
a few minutes and while there held his head
down and was not communicative. The next
morning he was seen on the road between her
house and where he lived. About a week aft-
er the homicide of Mrs. Ilartley a pair of
overalls with bloodstains on them, was found
ina clay root, or hollow stump, in the neish-
hborhoad of where the defendant lived. This
stump, or clay revi, Was in the rear of a Mr.

——~7

«tha ST ag aah dd ae

JACKSON y. STATE Ga. 291

158 S.E.

Vraddock’s store. The defendant lived on or
near the paved highway from Braddock’s
store towards Macon. Mr. Jones, for whom
the defendant worked, lived and operated a
store below Braddock’s store towards Perry,
Ga, Braddock’s store is at the intersection
of the paved highway between Macon and
Perry and a road that comes out from Pow-
ersville by way of Houser’s mill, is used by
people who travel between Powersville and
the highway in going to Macon or to Perry.
The overalls, which were found in the clay
reot or stump, were wet and bloody, and had
evidently been in the place where found for
several days. The defendant was arrested
fer the reason that he was the only person in
that vicinity whom the overalls fitted. He
denied that they were his, and stated that his
everalls were at his home. The oflicer who
arrested him went with him to his home and
found a similar pair of overalls, also blood:
stained, The defendant admitted that the
overalls found in his home were his and stat-
ed that the bloodstains on the overalls were
eaused by thé defendant assisting in killing
hogs a few days before that. Tle still denied
any knowledge of the overalls found in the
stump hole. The officer, who made the ar-
rest, detected that there was similar pateh-
work on both pairs of overalls, and that the
needlework in the patching in the two pairs
of overalls was the same, and the defendant
Informed the officer that the patching had
been done by a Mrs. Robinson, and when the
officer went to sce Mrs. Robinson he was in-
formed by her that she had done all of the
patching on both pairs of overalls, and that
hoth pairs belonged to the defendant, Albert
Jackson. When the defendant was confront-
ed with what Mrs. Robinson had stated with
reference to the patching on the overalls, he
admitted that both were his, and endeavored
to explain the concealment of one pair of
overalls in the stump hole by saying that he
had been over to see this colored woman he
had been Visiting, and that the overalls were
Wet with dew and he took them off and put
them in the stump hole to keep his employer,
Mr. Jones, from knowing that he had been
Visiting this woman, because he said Mr,
Jpnes had warned him to stay away from her,
and had complained about his being late in
getting to work in the morning, and he did
het want Mr. Jones to know that he had
walked from the woman's house in the dews
of the early morning.

The defendant persisted in stating that the
blood stains came from the hog-killing. The
chief of police of the city of Macon, Mr. Wat-
kins, cut out of the overalls found in the
‘tuunp hole one or two large patches, or rath-
er the patches were cut out by a doctor at the
Macon hospital in his presence. These pateh-
es Were cut out for the purpose of having the
Wood stains on them analyzed, in order to

determine if possible whether the blood was
human blood. Chief Watkins took the two
patches from the overalls to Atlanta and
turned them over to Dr. George S. Klugh,
Whose laboratory is located on Forrest ave-
nue in the city of Atlanta. Dr. Klugh ana-
lyzed the blood and testified that the blood
which stained these overalls was undoubtedly
human blocd. The officers found in the cuffs
at the bottom of the overalls certain fine
long gray hairs. They also found similar
hairs on the blood-stained pine sticks that
were found at the scene of the homicide. The
hairs that were taken from the overalls were
“mounted on glass slides” and marked “oyer-
alls,” and in a similar way those taken from
the pine sticks or clubs were mounted and
marked “clubs.” Dr. Klugh testified that he
examined these under a microscope, and his
testimony was to the effect that both hairs,
or sets of hairs, came from a human head.
Ne said that it was barely possible that they
same from different heads, but that the in-
dividuals who bore them must have been
about the same age. in about the same con-
dition as affects the general vitality, and that
the same care of the hair had been taken,
and must have been the same kind of hair to
start with. The defendant was confronted
with all of this evidence and circumstances.
Mr. F. B. Fagan, deputy sheriff of Peach
county, and Mr. George D. Anderson. sheriff,
both testified that the defendant made a con-
fession freely and voluntarily, which will be
set out presently. They testified that the
defendant was never promised anything for
telling the truth about the case, or directly
or indirectly threatened in any way. They
both testified that they told the defendant
that if he was guilty it would be better for
him to admit it, but if he was not guilty he
ought not to admit it, and that under no cir-
cumstances ought he to try to connect any
one else with it who was not guilty. Several
weeks after anybody had talked to the de-
fendant he made what the state contends was
a free and voluntary confession of guilt and
around this confession hinges one of the
main questions in the ease.

With reference to this confession Mr. Fa-
gan testified as follows: “I got a letter from
the defendant, but I don't think I have the
letter, and I got a message. IT went up and
ealled him and he answered, and I asked him
what he wanted me for and he said ‘I want to
confess, I can not sleep and can not rest,’ and
IT asked him if wanted te go down stairs or
stay up stairs and he said ‘down stairs,’ and
T handcuffed him and took him down stairs
and he was nervous. I got him down stairs
and told him to sit down and I called Mr.
Williams over the telephone and my wife and
mother came before the defendant started to
make any statement, and [ told him not to
come down with a lie in your mouth but to

“oe

Ga. 158 SOUTH EASTERN REPORTER

204

“‘*Somebody could have told him that in
ordinary cases of this kind when a man con-
fessed it is ordinarily lighter on him but I
don’t remember, there has been so much talk

would be lighter, as it was customary for it
to be lighter for those that confessed. On
the trial of the ease, with the witness, F. B.

lagan on the stand on motion of the defend- ' bene Be om
ste pops was excluded and the following going on—I told him if anybody would tell

evidence was given by the witness, BF. 1. the truth the court was aisha — .
Fagan, as to the purported confession: [Then with them—I heard | one man . —
sues looked like he was going to the electrie chair
and he better get right with God. I don't
know the longest period T ever talked to him
before the confession, it was a pretty good
while, it might have been more than twelve
hours, twenty-four hours more or less,’

follows the evidence of the witness Fagan as
set out in full in the foregoing statement of
fucts.]

“At the conclusion of the wifness’ testi-
mony with the jury retired, counsel for the

: y i . ‘ported confes-
defendant moved that the purported ec : : dae ee
sion be excluded because the statement of Geo. D. Anderson, sheriff of Peach Coun

the witness was that he teld the defendant ty, testified as pices ‘T _— rb cacape ag
that if he would confess that punishment would ene: oe tee tk aa
would probably be lighter as aie ate ek pan a = iting : on beep bonrbes
mary for it to be lighter for those that oe se meres Oe the ale eee
pai ; henefit held out to him was that that was the
“The court overruled the motion of the de- a ee St © Wea elke wan
prieeaialbas pire Ae ieaalbinl iA pein ected his only chance I told him nobody could prom-
ant then and there excepted and here =~ pai ma oie cae Scie ae 40 wee ae aed CS
exeepts and assigus the same as error anc co oe tae 4 8 aa
defendant asserts that the evidence of = Sd Bi bee ce ewe ial ko ostre-wes
witness, fh. B. Fagan, shows that the purport- sts audi’ Micaee io eukape: Esa slerttlc aball”
ed confession was not made by the defendant Is ONT) ~
voluntarily without being induced by another “Fr knew they got Shorty Anderson to try
by the slightest hope of benefit or remotest to find out what he could while he was in
foar of injury and that the court erred in al- jail.
vite. He mie B.D See ““The officers led him to believe he couldn't
meniy to the jury qaetlug the perpattes anaee hurt himself the way the thing was as they
forséon: over the. eppropriate’ objection. of had evidence on him and none on anybody
cyepecl for the defradent.” ; tl else, in other words, it couldn't hurt hea
“Because the court erred in overruling (he Confess. T think L led him to believe it migh
following motion of the defendant, made aft- help him to confess.’
Kee eee Inde f th “In view of the testimony above quoted he
“We move the court to exclude from © IB. Bh. Fagan and George Dp. Anderson, the de-
consideration of the jury the purported con- Dindauk ak ta chone 30 Ges tae made the me
fession on the ground that - om ee tay tebuclede the poiparted confession ih
from defendant by inducement or hope o Maat ty py 3h Bi. Maen and. caped OS et
ward and because it was not gone pny eee wns the written confession identified by E.
lv without being indueed by another by the . Sagan ae-slgncd by the fiedeutent onthe
slightest hope of benefit or the slightest fear cence nek Gat dhdeé 404 detendxnt thin
me IT: and there excepted to the ruling of the court
“To the ruling of the eourt in not exclud- in not excluding the purported vieeeen
ing from the consideration of the jury the from the consideration of the jury _—
purported confession, defendant then and and now excepts and assigns aa jeraapgiis.
there excepted and here and now exeepts and ‘ror on the ground that the evidence ¢ ve
sively shows that the purported confession
Was not obtained from the defendant without
inducement or hope of reward, and because it
Was not made voluntarily without being in-
duced by another by the slightest hope of ben-
efit or the slightest fear of injury.”

assigns the same as error.

“The witness for the State, IE. B. Fagan,
testified with the jury excluded, that ‘lL have
heard people tell him that if he was guilty
the best thing to do was to confess so if would

» lighter on him. To might have told) him
na, eee -T told him IT had known of the Mr. Fagan, a witness for the state, _
court being lighter when a man confessed and fied: “I had two letters from him, a .
that the court would be lighter on any of one day and one on the next and : ni es
them if they told the truth, fF told him in a sce him that night after everybody — hot
lot of eases they unre lighter if the prisoner) and it was after 12:00 o'clock. I + ot
confesses—I told him whenever people con- talked to him about the case that a we
fessed the courts were lighter on them if they hadn't said anything to him in four, a i
confessed and told the truth.’ six weeks, The letters came to me =
hadn't said anything to him.” At this pel

“The witness, fk. B. Fagan, testified on ex- I 2 pel eg?
iii cae the court addressed the jury: “Gentlemen ¢

amination before the jury as follows:

JACKSON v. STATE Ga. ba)
158

the jury. in admitting the evidence of confes-
sons, whether coming from this witness or
subsequent witnesses, the court instructs you
in order fo make a confession admissible it
must have been freely and voluntarily made
without being induced by another hy the
slizhtest hope of benefit or the remotest fear
of injury. The court is prima facie admit-
ing this evidence to you for your considera-
tien as evidence upon the confession, but you,
after all, are the judges as to whether or not
thix testimony was freely and yoluntarily
made, this confession by the defendant with-
ent being induced by the slightest hope of
benefit or the remotest fear of injury. If you
‘ind a confession was freely and voluntarily
made, it will he considered by the jury with
all the other evidence in determining the
xuilt or innocence of the defendant. If, in
the opinion of the jury, you believe the con-
fession was not freely and voluntarily made
you will not Yonsider it at all.”

In view of the evidence on the subject of
confessions, the court did not err in submit-
tng to the jury the question of whether the
alleged confessions were freely and volunta-
rily made. Bailey y. State, 80 Ga. 359 (2),
‘“S. E. 1072; Thomas y. State, 84 Ga. 613 (5),
10S. E. 1016; Cantrell vy. State, 141 Ga. 98
1H, SOS. E. 649. Where a considerable time
has elapsed between the offer of an induee-
ment to confess and the making of the con-
fession, the question of whether or not the
eoufession was induced or was free and vol-
"ntary is for the decision of the jury. Mil-
ner v. State, 124 Ga. 86 (1), 52 S. BL 3 os
Wayeaster vy. State, 186 Ga. 95 (1), 100, 70S.
Eset: Elder v. State, 143 Ga. 365 (2), SSS.
B97: Nix y. State, 149 Ga. 804 (1), 100 8.
M197. Under the evidence in the case the
court did not err in allowing the alleged eon-
fessions to go to the jury under proper in-
structions,

1615. (5) Ground 5 of the amendment to
the motion for new trial is as follows: “Be-
ease the court erred in his charge to the
Inry in stating the contention of the State
IMragraph 3, page 30, brief of evidence) and
Mer so charging the contention of the State,
" failing to state to the jury in his charge
' contention of the defendant, which was
highly prejudicial and harmful to defendant,
in that the jury did not have for its consider-
‘tien from the court the contention of the de-
fondant. and the statement of the contention
wf the State in the charge of jury [court]
Nithout the statement of the contention of
the defendant, might be construed by the jury
“san expression of opinion by the court, and
Movant assigns the failure of the court to so
charge as error.’ This ground is without
™erit. The court charged the jury: “I charge
teu that the defendant enters upon the trial
“f his case with the presumption of innocence
™ his favor and that presumption remains

S.E, =e

With him throughout the trial until it is over-
come by proof to your satisfaction beyond a
reasonable doubt. It the jury has a reason-
able doubt as to the guilt of the defendant
under the facts and circumstances of this
ease, including the defendant’s statement,
then I charge you the defendant would be en-
titled to the benefit of that doubt with which
he enters upon the trial of his case, and it
would be your duty to acquit him. * * *
If you have any reasonable doubt of this de-
fendant being or was a coconspirator, or was
there at the time of the killing of Mrs. Ilart-
ley, although you might find under the cir-
cumstances the crime was murder, you would
not be authorized to find this defendant
guilty.” In the absence of a timely and
appropriate request for a fuller charge, it
Was not error to set out more in detail the
defendant's contentions,

[6] 4. (6,7) In grounds 6 and 7 of the
amendment to the motion for new trial error
is assigned on the following charge of the
court: “6G. If you believe beyond a reasona-
ble doubt that the defendant, Albert Jackson,
in this county and State, at or prior to the
time stated in the indictment, did form a com-
mon intent with others to commit a larceny
from the house of Mr. Green Hartley, and if
you should further believe that in pursuance
of such common intent and purpose, the de-
fendant and such other persons went to the
house of Mr. Green Ilartley with such com-
mon intent and purpose to commit such lar-
eeny, and that in furtherance of such eom-
mon intent and purpose to commit such lar-
eeny, one or more of them present struck
and beat his wife, Mrs. Jeflie Hartley, with
bludgeons of wood or other instruments and
killed her in furtherance of such common
act and intent, and that the defendant was
there aiding and abetting in the commission
of the act, then in that event each and all so-
present aiding and abetting in the commis-
sion of the crime would be equally guilty of
the offense of murder, whether the defendant
actually struck the blows that killed the de-
ceased or not. It is not necessary that the
crime of murder should have been a part
of the original design or not, but it is enough
if the jury believes beyond a reasonable doubt
that the murder of Mrs. Hartley was one of
the incidental consequences of the execution
of a common design and intent and purpose
to commit a larceny from the house of Mr.
Hartley, and that it did appear at the mo-
Inent to one or more of the participants in
the common criminal intent to be expedient
for the common purpose and in consequence
of which Mrs. Hartley was slain in her home
the intent of the actual slayer is imputable
to his coconspirators.” 7, If you believe
that the defendant entered into a conspiracy
to commit a larceny from the home of Mr.
Hartley and that while he and his couspira-

peas he

ORNS att hanes

"te

Se rita t?

912 Ga. 9 SOUTILT EASTERN REPORTER, 2d SERIES

It would in truth be difficult to perceive of
clear proof in this connection, Counsel for
defendant does not in fact argue in his
bricf that the evidence did not show that
the deceased was in the article of death,
but mercly contends that the statements of
the deceased did not relate “to the cause
of his death and the person who killed him.”
The objection is of course not broad enough
to comprehend this point, but it is likewise
without merit. Declarations of a person
since deceased are admissible to show that
he was conscious of his dying condition.
See Gibbs v. State, 190 Ga. 207, 9 S.E.2d
248; Lyens v. State, 133 Ga. 587, 597,
66 S.E. 792.

[7] 4. Objection was made to the tes-
timony of officer M. V. Moss, a witness for
the State, as follows: “TI helped to get him
out of the car, and he told me that he had
been shot in a holdup.” The objection ap-
pears to be that it was not shown that the
deceased believed at that time that he was
in the article of death. Ellis Barrett, Jr.,
testified that on the way to the hospital the
deceased said that they had killed him,
and that he was going to die. Also, that the
deceased complained of severe pain and of
inability to breathe, and that he scemed to
be worried principally about leaving his
children, L. B. MeTyre, who rode in the
car with Barrett and the deceased, cor-
roborated the testimony of Barrett. The
objection has no merit.

([8] 5. In another ground of the mo-
tion for new trial it is averred that the
court committed error in admitting in evi-

‘dence that portion of the testimony of

Calvin Cole, a State’s witness, as follows:
“ T know Jimmie Lee Gibbs, who is joint-
ly indicted with Willie Jenkins, I had a
conversation with him concerning — this
shooting. That was last February. He
made a written statement to me. This
paper which you present to mc is a state-
ment which he made and signed. That is
his signature.” The objection to this tes-
timony was as follows: ‘We ask the
court to rule out all evidence relative to
any conversation or statement signed by
Gibbs, on the ground that there is no evi-
dence to show that it was made in the
presence of the defendant on trial, and
therefore it is not admissible.” It is to be
observed that the testimony which it is
contended the court should have excluded
was merely to the effect that the witness
knew Gibbs, that in February he had a
conversation with him concerning the
shooting, and that he made a written state-

ment which the witness identified. This
testimony, even though inadmissible, could
hardly be held so prejudicial as to require
a new trial. It is not made to appear that
the conversation or statement referred to
was introduced in evidence, or that its con-
tents were related to the jury. The state-
ment referred to by the witness was made
hy Gibbs before the defendant’s arrest, and
it was not introduced in evidence, nor was
it read to the jury. While the neces-
sary inference from the witness’s tes-
timony concerning it was that the state-
ment was a confession by Gibbs, in which
he implicated the defendant, there would
have been no error had it actually been
introduced in evidence. This is true for
the reason that the statement was read to
the defendant, and he agreed that it was
correct with the one exception that Grant
was not with them and had no connection
with the crime. See Gunter v. State, 19
Ga.App. 772, 92 S.E, 314; McCormick v.
State, 176 Ga. 21(1), 166 S.E. 762; Davis
v. State, 114 Ga. 104(7), 39 S.E. 906; Ma-
this v. State, 55 Ga.App. 727, 191 S.E. 272.
It further appears that thereafter the de-
fendant and Gibbs were taken to the scene
of the crime by the officers, and there they
both in the presence of each other related
how the crime was committed and in what
manner each participated. This ground
shows no cause for a new trial.

[9] 6. In the remaining ground com-
plaint is made that the judge erred in
charging the jury on the subject of flight
as indicating a consciousness of guilt.
See Hudson v. State, 101 Ga. 520, 28 S.F.
1010; Barnett v. State, 136 Ga. 65, 70 S.E.
808; Kettles v. State, 145 Ga. 6, 88 S.E.
197. The error assigned is that “there was
no evidence in the trial of the case where-
in it was shown that the defendant fled
at any immediate time after it is alleged
the homicide was committed.” The de-
fendant’s statement to the jury was in part
as follows: “On January 7, 1939, that boy
named Buddy, Oscar Morgan, and Cotton
came down in a 736 Ford and asked me
did we want to go to Dixie Hill. Me and
Charlic, we were in the East Side filling-
station at the corner of Ashby and Greens-
ferry. Cotton got out, and there was no
one that could drive but me. We got to
Dixie Hill, and on the way back Buddy
suggested that we get some cigarcttes.
Charlie got out and Oscar got out. I was
standing on this side of West View Drive,
and when they went to the store, and I
heard something like an explosion, and I

ALLIED MORTGAGE COMPANIES vy. GILBERT Ga. | 913
9 S.F.2d 913

ran off.” Ellis Barrett, Jr., testified, that
about the time of the homicide he was
driving west on West View Drive; that
as he approached the corner of West View
and Laurel Avenue a car was parked al-
most on the corner on West View Drive,
and (in his own words) “When I got al-
most to him, he suddenly started and
swerved into the road, and I had to swerve
in order to avoid being hit, and two ne-
groes jumped in the car as he was going
off. I had gotten past the intersection, and
glanced back and saw a negro running
around the corner, and he jumped at the
car and missed it, and I turned around and
went in the direction that he went. * * *
The negroes that ran to get in the car
came from the south * * *, That was
going away from Mr. Adcock’s store.”
The defendant was arrested some time
after the crime, in a distant State. Un-
der the foregoing evidence the complaint
is without merit. Diligent examination of
the record shows that the court did not
err in overruling the motion for new trial.

Judgment affirmed.
All the Justices concur.

°o KEY NUMBER SYSTEM.

4Anmse

ALLIED MORTGAGE COMPANIES, Inc.,
v. GILBERT et al.

No. 27603.

Court of Appeals of Georgia, Division No. 2.
April 18, 1940.

Rehearing Denied July 18, 1940.

1. Taxation €=493!/,

Boards of arbitrators have power to fix
valuation of property, but not power to de-
termine questions of taxability of property.
Code 1933, § 92-6912,

2. Taxation C493!

The exercise of power of board of arbi-
trators to fix valuation of property was a
“ministerial act” not reviewable by certio-
rari. Code 1938, § 92-6912.

See Words and Phrases, Permanent

Edition, for all other definitions of
“Ministerial Act”.

The board of arbitrators is clothed ex-
¢lusively with purely ministerial powers, and
hence any act performed by board is con-

9 8.E.2d—58

clusively presumed to be a “ministerial act”
not reviewable by certiorari, Code 1933, §
92-6912,
Syllabus by the Court.
It was error to overrule the motion to
dismiss the petition for certiorari.

—_—_—_~->—___—.

Error from Superior Court, Fulton
County; Virlyn B. Moore, Judge.

Proceeding between the Allied Mortgage
Companics, Inc., and H. W. Gilbert and
others, tax assessors. To review the judg-
ment, the Allied Mortgage Companies, Inc.,
brings error.

Reversed, in conformity to answers to
certified questions, 189 Ga. 756, 8 S.E.2d 45.

Hirsch & Smith, Welborn B. Cody, and
Louis Regenstein, Jr., all of Atlanta, for
plaintiff in error.

Spalding, Sibley, Troutman & Brock,
Standish Thompson, Walter C. Hendrix, E.
H. Sheats, and W. S. Northcutt, all of At-
lanta, for defendants in error.

FELTON, Judge.

[1-3] In answer to @ certified question
from this court in thi -ase the Supreme
Court, in Allied Mortgage Companies, Inc.,
v. Gilbert et al., Tax Assessors, 189 Ga. 756,
8 S.E.2d 45, held that the authority vested
in boards of arbitrators provided icr by
Code, § 92-6912 did not include the author-
ity to entertain or determine questions of
taxability of property, and that the only
power with which the arbitrators are vest-
ed is the power to fix the valuation of
property. It follows that such power,
which is identical with that of tax assessors
generally, as respects the power to fix the
value of property, is a ministerial act.
Bower v. Bainbridge, 116 Ga. 794, 43 S.E.
67; City Council of Augusta v. Pearce,
79 Ga. 98, 4 S.E. 104. Since the board
of arbitrators is clothed exclusively with
purely ministerial powers any act per-
formed by them is conclusively presumed
to be ministerial so far as a review of their
acts is concerned. Southeastern Greyhound
Lines v. Georgia Public Service Comm.,
181 Ga. 75, 181 S.E. 834, 102 A.L.R. 517.
It was error for the trial court to overrule
the motion to dismiss the petition for cer-
tiorari.

Judgment reversed,

SUTTON, J., concurs,

STEPHENS, P. J., concurs in the judg-
ment,

—*

908 Ga. 9 SOUTH EASTERN REPORTER, 2d SERIES

it was permitted to provide electrical or
plumbing equipment to its members, it was
not authorized, over the protest of one
member, to lend money to another member
in order that such other member might
construct its plant and thereafter maintain
its own separate enterprise. To thus di-
vert moncy and credits of the Electric
Membership Corporation, engaged in the
business of rural electrification, might well
he taken as inimical to the salutary pur-
poses for which it was chartered. See, in
this connection, Cherokee Tron Co. v. Jones,
52 Ga. 276, 280; Military Interstate Ass’n
v. Savannah, Thunderbolt, ete., Ry. Co.;
105 Ga. 420, 31 S.E. 200; First National
Bank of Tallapoosa v. Monroe, 135 Ga.
614, 69 S.E. 1123, 32 L.R.A.,N.S., 550;
3rinson Ry. Co. vy. Exchange Bank of
Springfield, 16 Ga.App, 425, 85 S.E, 634;
Savannah Ice Co. vy. Canal-Louisiana Bank
& Trust Co., 12 Ga.App. 818, 79 S.E, 45.

Although the averments of fact were
insufficient to show fraud, or that the Cold
Storage Association was only a dummy of
the Electric Membership Corporation, *un-
der the averments as to ultra vires the
petition stated a cause of action against
the Membership Corporation, good against
the general demurrers.

[6,7] 6. Under the Code, § 22-711, a
minority stockholder “may proceed — in
equity” for “acts ultra vires,” not only
against the corporation and its officers,
but “those participating therein.” Al-
though the petitioner, not being a stock-
holder or member of the Cold Storage As-
sociation, showed no cause of action in
secking to enjoin that corporation from
borrowing moncy on its own initiative and
credit from the Federal Rural Electrifica-
tion Administration, with which acts he
has no concern, his averments and prayers,
nevertheless, as against general demur-
rer, stated a cause of action in so far as
they related to the participation of the
Cold Storage Association in the alleged
ultra vires acts of the Electric Member-
ship Corporation, and sought to enjoin
participation in those acts. Under the
preceding rulings, there is no merit in the
special ground of demurrer that there was
a misjoinder of parties defendant as to
the Cold Storage Association, and that
certain allegations failed to show that the
petitioner was entitled to any relief against
that association. While the special ground
of demurrer to paragraph 24, relating to
acts by the Cold Storage Association inde-

pendently of the Electric Membership Cor-
poration, was good, it did not authorize
the dismissal of the entire petition without
opportunity to amend. Sutton v. Adams,
180 Ga. 48(4), 71, 178 S.E. 365, and cit.

[8] 7. The defendants moved to dis-
miss the writ of error of the plaintiff from
the judgment rendered by the city-court
judge, sustaining the demurrers to the
petition, on the ground that the case is
moot, because the defendants did not in-
tend to do the acts sought to be enjoined,
that is, that the Mitchell County Electric
Membership Corporation did not intend to
borrow money from the Federal Rural
Electrification Administration and lend it
to the codefendant, the Cold Storage As-
sociation, but that the Cold Storage As-
sociation intends te borrow such funds di-
rectly from the Federal Administration on
its own initiative and credit; and that
“such renunciation of intention to do the
acts complained of in plaintiff's petition
were set up in a sworn amendment to the
defendant’s answer, and presented at the
interlocutory hearing” on the injunction,
held before the judge of the superior court
who first acted in the place of the disquali-
fied judge, and who granted the injunction.
In response to the motion, the plaintiff
denies the statements that the defendants
do not intend to do the acts charged; and
sets up with copies of the defendants’ an-
swer, referred to in the motion to dismiss,
that the defendants urged the same
grounds before the superior-court judge at
the interlocutory hearing as reasons for
the refusal of the injunction, that. the
judge found against such contentions, and
that no writ of error has been taken from
his judgment granting the interlocutory
injunction. In the present writ of error
from the last judgment sustaining the de-
murrers and dismissing the action, the
plaintiff only attacks the jurisdiction of the
judge who rendered that judgment and its
correctness. The motion to dismiss is
without merit, since the Tesponse to the
motion denics essential averments of fact.
Jones v. Head, 185 Ga. 857, 196 S.E. 725;
Jones v. Johnson, ete., Co., 185 Ga. 323,
324, 194 S.E. 902. Furthermore, the mo-
tion secks to raise questions of fact, which
were presented at the interlocutory hear-
ing, and which are set forth in the defend-
ant’s answer. These matters of fact are
not determinable on this writ of error, in-
volving only tbe petition and the demur-
rers th ;

JENKINS y. STATE Ga. 909
9 S.E.2d 909

the issues, in which their previous consid-
eration at the interlocutory hearing would
not be res. adjudicata. See Reynolds v.
Calvert Mortgage Co., 146 Ga. 534, 91 S.E.
555; Crovatt v. Baker, 130 Ga. 507, 511
(2), 61 S.E. 127; Milltown Mfg. Co. v.
Bray & Co., 149 Ga. 151, 99 S.E. 468 As
to the rule where the question decided at
the interlocutory hearing was entirely one
of law, see Elyea Inc. v. Cenker, 184 Ga
179, 190 S.E. 585, and cit.

8. Under the preceding rulings, it was
error to dismiss the action on the demur-
rers, and to dissolve the interlocutory in-
junction.

Judgment reversed.

All the Justices concur.

JENKINS v. STATE.
No. 13262.

Supreme Court of Georgia.
July 9, 1940.

1. Homicide €>234(5)

Evidence warranted conviction of de-
fendant for murder of merchant who was
shot by third person during robbery of store
on ground that defendant and third person
and two other men entered into conspiracy
to rob merchant and that defendant actively
participated therein by driving automobile
and waiting in automobile a short distance
away while the robbery took place.

2. Criminal law €=59(1)

All participants in plan to rob are crim-
inally responsible for acts of each partici-
pant committed in execution of plan and a
probable consequence of the unlawful design,
even though the particular act may not have
actually been a part of the plan,

3. Homicide €=29

The act of one participant in conspiracy
to rob, in shooting the person robbed, is rea-
sonable and probable consequence of a de-
sign to commit armed robbery, so as to make
another participant guilty of homicide.

4. Homicide <>169(4)
In homicide prosecution against negro
defendant who participated in conspiracy to

rob deceased who was shot by another negro
conspirator, admission of statements of de-
ceased on way to hospital that several ne-
groes entered store and shot deceased was
nov error, notwithstanding that state’s evi-
dence did not then show defendant's connec-
tion with robbery, where state’s evidence as
finally presented clearly established defend-
ant’s connection with robbery.

5. Criminal law @=680(1)
The order of proof rests in discretion of
trial judge.

6. Homicide €=216

In homicide prosecution wherein evi-
dence was suflicient to show that deceased
was in the article of death, statements tend-
ing to show that deceased was conscious of
his condition were admissible. Code 1933, §§
38-301, 38-307.

7. Homicide €=203(3)

In homicide prosecution wherein evi-
dence was suflicient to show that deceased
was in the article of death and was con-
scious of his condition, admission of. testi-
mony of witness that the deceased stated
wher he reached the hospital that he had
been shot in a holdup was not error. Code}
1933, §§ 38-301, 38-307.

8. Homicide €=>338(1)

In homicide prosecution against defend-
ant who participated in conspiracy to rob
leceased who was shot by another conspira-
cor, admission of testimony that witness had
conversation concerning the shooting with
conspirator who shot deceased, and that such
conspirator made a written statement which
witness identified, was not prejudicial, where
conversation or statement was not produced
in evidence and substance thereof was not
related to jury.

9. Criminal law €=778(11)

In homicide prosecution against defend-
ant who participated in conspiracy to rob
deceased who was shot by another conspira-
tor, charging jury on subject of flight as in-
dicating a consciousness of guilt was not er-
ror, where defendant testified that he ran
off, and another witness testified that auto-
mobile driven by defendant suddenly started,
and that defendant's companions jumped in
automobile as the automobile was going off.

Syllabus by the Court,

1. All of the participants in a plan to
rob are criminally responsible for the acts
of each, committed in the execution of the
plan, and which may be said to be a probable

910 Ga.

consequence of the unlawful design, even
though the particular act may not have ac-
tually been a part of the plan,

(a) The act of one of the conspirators
in shooting the person robbed is a reasonable
and probable consequence of the design to
commit armed robbery.

(b) The evidence authorized the jury to
find that the defendant actively participated
in the execution of a plan to rob the de-
ceased, in which the latter was shot and
killed by another one of the participants.

2. The objection to the admission of
certain statements of the deceased that sev-
eral negroes had entered his store and shot
him, on the ground that the evidence failed
to connect defendant with the transaction, is
without merit. The fact that at the time of
the introduction of the statement the evi-
dence for the State may not have shown de-

material. The order of proof rests in the
direction of the trial judge.

3. The evidence was amply suflicient to
authorize the jury to find that the deceased
at the time of making certain statements
was in the article of death. These state.
ments tending to show that the deceasec
was conscious of his condition were admis-
sible for the purpose.

4. The evidence being suflicient to show
that the deceased was in the article of death
and was conscious of his condition, the court
did not err in allowing a witness to testify
that when the deceased reached the hospi-
tal he said that “he had been shot in a
holdup.”

5. The objection to certain evidence in
reference to a statement made by one of de-
fendant’s confederates was without merit.

6. The judge did not err in charging the
jury on the subject of flight.

Error from Superior Court, Fulton
County; Edgar E. Pomeroy, Judge.

Willie Jenkins, alias Son John, was con-
victed of murder, and he brings error.
Affirmed.

Russell G. Turner, of Atlanta, for plain-
tiff in error.

John A. Boykin, Sol. Gen., J. Walter
Le Craw, and E. E. Andrews, all of At-
‘Janta, Ellis G. Arnall, Atty. Gen., Duke
Davis, Asst. Atty. Gen., and C. E. Greg-
ory, Jr., of Decatur, for defendant in er-
ror.

fendant’s connection with the robbery is im- -

9 SOUTH EASTERN REPORTER, 2d SERIES

REID, Chief Justice.

Late in the afternoon of January 7, 1938,
T. W. Adcock was shot in the back with
a shotgun. He died several hours later at
Grady Hospital in the City of Atlanta,
where he had been carried for medical at-
tention. The scene of the shooting was in
a small grocery store operated by the de-
ceased on Laurel Avenue a short distance
from the intersection of that street and
West View Drive. The State accused
four negrocs, Jimmie Lee Gibbs, Oscar
Morgan, J. P. Grant, and Willie Jenkins,
of murdering Adcock. Jenkins was placed
on trial, and was convicted without recom-
mendation. Te assigned error on the
judgment overruling his motion for new
trial,

[1-3] 1. The evidence for the State
made out a clear case of murder against
the defendant. In view of the confessions
of the defendant and Jimmie Lee Gibbs
and the corroborating facts disclosed by
the evidence, the jury was amply author-
ized, if not in good conscience bound, to
find that the defendant and three other
negroes, including Gibbs and Morgan, en-
tered into a conspiracy to rob the deceas-
ed; that pursuant to the plan Gibbs and
Morgan left the automobile being driven
by the defendant, and entered the store
of the deceased, and while Morgan was
in the act of going into the cash register
Gibbs shot the deceased in the back with
a shotgun; and that in the meantime the
defendant waited in the automobile the
short distance away at the intersection of
Laurel Avenue and West View Drive. In
Gore v. State, 162 Ga. 267, 134 S.E. 36, 38,
the following pertinent ruling was made:
“Where three persons conspire to rob a
merchant in his store, and one of the con-
spirators remains in an automobile in front
of the store, with the engine running, in
order that the three may speedily escape
from the scene of the robbery, while the
other two enter the store, and, in further-
ance of the common design to rob, kill the
merchant intended to be robbed, such kill-
ing is the probable consequence of the un-
lawful design to rob, and all the conspira-
tors are guilty of murder, including the
one in the automobile. It is not necessary
that the crime of murder should be a part
of the original design; but it is enough if
it be one of the incidental probable con-
sequences of the execution of their design,
and should appear at the moment to one
of the participants to be expedient for the
common purpose. The intent of the actual

JENKINS v. STATE Ga.
9 S.E.2d 909 911

slayer is imputable to his coconspirators.”
See also Thompson v. State, 166 Ga. 758,
144 S.E. 301; Simpson v. State, 168 Ga.
598, 148 S.E. 511; Lumpkin v. State, 176
Ga. 446, 168 S.E. 241; Wright v. State,
186 Ga. 863, 199 S.E. 209; Adkins v. State,
187 Ga. 519, 1 S.E.2d 420. The general
grounds of the motion for new trial are
without merit.

[4,5] 2. Error is assigned on the ad-
mission in evidence of testimony of Ellis
Barrett, Jr., a witness for the State, ir
which he related certain statements made
by the deceased while being carried to the
hospital by the witness, as follows: “He
kept talking about his wife and kids. He
said that the negroes held him up and
made him turn around with his back to
them and face to the wall, and shot him
with a single-barrel shotgun. He said that
he was about the center of the store, I
think, or in the back; I have forgotten
which. He said something about some
money. If I remember correctly, he said
they [he?] did not have but $2.50, and that
they wanted more, and he did not have it,
and they shot him—that he asked them
please not to shoot him. He said they
made him turn around with his face to the
wall and his back towards them.” The
objection was as follows: “I object to the
testimony wherein he refers to certain
statements that certain negroes entered the
store and held him up, on the ground that
it is not properly connected, and there is
nothing to connect this defendant with it
as one of the parties. I object to it on the
ground that it is inadmissible.” It appears
from what has already! been said that the
evidence for the State, as finally present-
ed, clearly established the defendant’s con-
nection with the transaction referred to.
It may be that when this testimony was
offered the defendant’s connection with the
robbery had not been shown; but since the
State thereafter offered evidence sufficient
for this purpose, no error appears. The
order of proof rests in the discretion of
the trial judge. See Mitchell v. State, 71
Ga. 128 (3); Coleman v. State, 141 Ga.
731, 733, 82 S.E. 228.

[6] 3. The State offered testimony of
Mrs. Adcock, that a short while after her
husband was shot and while he was in the
hospital he stated that “This is a terrible
thing,” and also that she heard him tell
their daughter to “be a good girl * * *
and take care of your mother—good bye.”
The State also offered testimony of the
daughter, that her father while at the hos-
pital told her to “be a good girl and help

your mother, and I will see you in heaven.”
The defendant objected to this evidence, on
the ground that “the State failed to prove
that deceased was in a state of articulo
mortis.” The condition of the deceased
was fully described by the doctor who first
examined him when he was brought to the
emergency clinic at the hospital. He testi-
fied: “At the time I saw Mr. Adcock he
was in a critical condition, suffering from
a gunshot wound in the back, approximate-
ly just to the left of the left shoulder-blade
in the back, almost dircctiy opposite the
heart. That was a very large wound, the
size of a small orange. After it got through
the outside skin, the wound itself would ad-
mit about three fingers. I found innumer-
able buckshot in Mr. Adcock’s back. I did
not determine the depth of the wound. I
saw that he was in a critical condition, and
sent him immediately to the hospital where
he would get better attention. * * *
There were powder burns or the skin
around the wound itself. There had been
considerable loss of blood. His pulse was
very weak, and his clothes were covered
with blood. The blood was pretty generally
spread. The cause of Mr. Adcock’s death
was the direct result of the injury from
the loss of blood and injury to the lung and
injury in the chest. He died at 1:50 a. m.
the following morning. As to whether or
not he was in the article of death from
the time he was shot—the best I can say
is that he was in a very critical condition
from the very beginning; and as to whether
or not he had a chance to recover from the
time he was shot—we always hold out some
slight chance, possibly not more than one
chance out of a thousand.”

“Hearsay evidence is that which does not
derive its value solely from the credit of
the witness, but rests mainly on the veracity
and competency of other persons. The
very nature of the evidence shows its weak-
ness, and it is admitted only in specified
cases from necessity.” Code, § 38-301.
One of the “specified cases” here referred
to is that embodied in § 38-307: “Declara-
tions by any person in the article of death,
who is conscious of his condition, as to the
cause of his death and the person who
killed him, shall be admissible in evidence
in a prosecution for the homicide.” The
obvious relevancy of the testimony objected
to was to show that the deceased believed
that he was in the article of death. The
testimony of the doctor was sufficient to
show that the deceased was in a dying
condition from the moment he was shot.

17 SE 237
JAMES, Mack, black, 29, elec. Gae SP (Banks) 5<11-193h.

"GEORGIA TROOPS RETURN TO HOME. = OFFICIALS FIND REPORTS OF MOB SEEKING NEGRO WERE
EXAGGERATED. 8Milledgeville, Gas, Nove 30, 1933. = (AP) = National Guardsmen who were
assembled in their armory today were dismissed after officialshad convinced themselves
that reports of a mob enroute to the state prison to seize a negro were exaggerated, The
troops were called together unofficially when their captain, F. R. Hargrove, was informed
by officials of the Georgia state prison farm of the report that a mob from north Georgia
was coming for Mack James, negro, under death sentence for having assaulted a white woman
in Banks county, about 30 miles north of Atlanta, Governor Eugene Talmadge in Atlanta
informed prison farm officials that he had been requested by attorneys for the negro for
protection, The attorneys telephoned the voernor last night that they had heard a mob
planned to seize the negro should M&@XWH he be transferred today from the state prison to
the KMXXMHXXME Fulton county jail in Atlanta. The negro was sentenced to be electrocuted
tomorrew but an appeal bo the state supreme court automaticaly stayed the sentenced, The
sheriff of Banks county today plannkd to transfer James from the Milledgeville farm to
the Atlanta jail pending t e @utcome of the appeal. Governor Talmade, informing the
prison farm of the mob reports, told Superintendent B. H, Dunaway not to permit the
negro's removal in view of these reports, There were nororders from the governor or Ad-~
jutant general Lindley Camp calling out the troops but about 20° of the Millefigeville
company gathered in the armory when reports came from the prison farm, They did this in
order to be ready for instant call should it come, When it develeped that Captain
Hargrove and others were satisfied that mob reports were exaggerated, the members of the
company went home," CLARION-LEDGER, Jackson, Miss., Dec. 1, 1933 {11/h.)

Just then officers checking on the
hired hands whom Berry had had
working for him two months before
the murder returned with discourag-
ing news. L, C, Johnson was at his
home ten miles away and said he had
been at his home all morning. And
friends of Jack Seller said he had left
for Alabama on January 4, and had
not returned to Georgia since.

But if that news was discouraging,
the report that came in the next day
from the State Laboratory at Atlanta
about the blood found on the Stirrin’
Stick brought the hopes of the officers
back up once more. For the tests had
proven that the blood on the stick
was that of Mrs, Berry!

HERIFF BENTON and the other of-

ficers were working desperately in

an attempt to locate the owner of the
stick with the star carved on it.

Berry said the stick didn’t. belong to
him and he showed the officers the
Stirrin’ Stick which he and his wife
owned. Nor did he know to whom the
death-weapon did belong.

But it was a different story when
Haverill looked at the death-weapon.

“It doesn’t belong to me,” he said
quickly, “but I’m pretty sure I know
who it does belong to.” .

“Who’s that?” Benton demanded
eagerly. y .

“I hope to hang on a tree if it isn’t
Alec Bonhart’s. I’ve been over at their
house several times when they were
washing. I’ve even used their stick. I
know it had a star on it—just like
this one.” -

The Sheriff frowned and watched
Haverill, The man seemed very sure of
himself and very positive about what
he was saying. The Sheriff remembered
Alec Bonhart. He had been one of the
most enthusiastic members of the vol-
unteer posse which had formed in front
of the Berry home. He was one of the
two men who had come up and intro-
duced himself to the Sheriff when
Benton first arrived. He had a gun and
a dog and he'd said he wanted to help
out in any. way he could.

Benton sent several officers to locate
Alec Bonhart and bring him back at
once to the courthouse.

In the meantime, the Sheriff and
Major Spence pored over the reports
on the murdered woman’s husband.
Everything the officers had dug up
spoke most highly of the man. Berry

had been seen at the small general .

store at Almon at 8:15. He remained
there until 8:45 when he started the
return trip to. his home. Nothing had
been found to dispute the fact that
Berry and his wife always had gotten
along on the best of terms.

“Well,” Benton said, adjusting his
glasses and looking over his desk at
Major Spence, “so far as I’m con-
cerned, that completely clears up that
angle.” 5

Spence nodded. “I agree.”

So it was on Bonhart, the posse
member, that the spotlight of the in-
vestigation suddenly was focused.

Three hours later, Benton received
a report from one of his deputies. Bon-
hart, the deputy said, could not be lo-
cated. The officers had checked at his
home and had been informed that Bon-
hart had gone hunting that morning
bp was not expected back for several

ays, =

41_JE’LL be back before that,” the

Sheriff told Major Spence and
the deputy, grabbing his hat, con-
tinued: “Come on—we're going to do a
little hunting ourselves.” _-

The deputy took Benton and Spence
deep into the marsh-lands where Bon-
hart’s unpainted house stood silent
and lonely, surrounded by tall trees.
Benton had just cut the motor
of his car when he heard a dis-
tant baying of hounds. The. sounds
came from his left, and far back in the
woods. The officers got out of the auto,
stood there for a moment, listening
quietly. ar

A heavy-set woman opened the front
door and stared at the officers from
the porch. ‘oie

After a moment, she called out,
“What do you want?”

Benton didn’t answer her, but kept

listening to the sound of the dogs. The

hounds were coming closer.
The Sheriff walked eg to the porch.
his dogs com-

“I don’t know ... Alec didn’t plan
to come home for awhile .. .”

“HE CERTAINLY took an awful
sudden notion to go hunting.”

. do you want him? He
hasn’t—”

“Come on,” Benton said suddenly to

his fellow officers. “We're going into. h

the swamps to meet him .. . and his
dogs. We're not taking any chances.
We'll take the stick with us.”
Sloshing through those muddy
swamps, in that cold February air, was
not Benton’s idea of a happy way to
spend an afternoon, but he didn’t like
the way things were shaping up in
this case, and he didn’t plan to take

five-pointed star at the end of the
stick handle. He frowned deeply.
Slowly, he looked up at Sheriff Benton.
“This stick belongs to me. What're
you doin’ with it?”

“That’s the club that murdered
Mrs, Berry!” .

“I don’t get it. I keep this stick
locked in the wash house in back of
my place. It couldn’t have been used
to... to kill Mrs, Berry.”

“It was though. Who do you think
may ha gotten it from your wash
jouse?”

“I don’t know. My wife and I are
— only ones who got keys for the
place.” f

The officers, Bonhart and his dogs
started back to the house. The farmer
was deep in thought. He'never said a
thing during the entire return trip.
Even the dogs were strangely quiet as if
sensing that something was wrong.

Detective Features:

Could There Be Two of Mr. X?

Detective Story Sensation

But Why Kill Irma?

Glen Spray, Near Liberty, for

Lest We Lose Vigilance!

Miss Your Copy, Order It Now! -

Coming Next Month

OUR Giant OFFICIAL DETECTIVE STORIES for December
Will Set a Publishing Record. Here Are the Top Fact-

Many Large Cities, Including New York, Were Victimized by a
Forger the Police Could Only Call Mr. X—Because He Hid His
Identity Most Carefully. Then Came a Lead—An Arrest, Trial
And Conviction. With Mr. X in Jail, the Forgeries, Identical in
Technique, Continued, What Followed Has Made Police History
—and Will Be a Rare Treat in Your December Reading

“Cop Killers Can't Get Away with It!"

At Creedmoor, Long Island, Patrolman Hegerich, off Duty, Stopped
Into a Cafeteria for a Snack. He Ran Plump into a Holdup—Shot
It out with Trigger-Quick Hoodlums, Lost His Life. Here Is the
Full Detective Story of Rounding up That Mob, Responsible for a
Series of Holdups as Well as Hegerich’s Untimely Death. It’s a

The Barking of a Dog Sent the New York State Police on a Wide
Manhunt to Find the Killer of a Young Sunday-School Teacher at

Only the €lew of a Boy-Meets-Girl Date—How Could They Find
Her_ Killer? . Why Was She Killed?

More Authentic, Heart-Touching Pictures in the Expose of the Nazi
Concentration Camps—Designed to Unmask and Forever Prevent
A Repetition. of the Greatest Mass Crimes in Human History

These, and. Other Timely, Fascinating Stories of What Law-
Enforcement Officers Throughout the Nation Are Doing to Stamp
Out Crime—Including the Cleaning up of GI Joe's Broadway—
Will Pack OFFICIAL DETECTIVE STORIES for December (Unless
Even More Timely Cases Break to Change This Schedule). De-
cember Issue on Sale Friday. October 19. So That You Won't

the Dog Found Her Body. With

any chances on letting Alec Bonhart
get away. p

Ten minutes later, coming almost in
@ trot down a narrow winding trail
that followed the banks of a small
stream, the officers spotted Bonhart.
He was behind his dogs. His gun was
slung loosely under his right arm.

en he spotted the officers, he stop-

ped suddenly. He looked startled for a
moment, then he grinned.

“Oh, it’s you!” he exclaimed. “Found
out yet who killed Mrs. Berry?” F

“We think we have a pretty good
idea,”’ Benton. said.

“Good!” The farmer shouted the
word. “The rat oughta be strung up.”

“You think so?” Benton hesitated a
moment. Bonhart’s dogs were sniffing
at the officers’ feet. The farmer made
them lay down. Benton said, “We
think you can tell us who killed the
woman.”

Benton took the bloody stick from
his deputy, handed it to the farmer.
“Ever see this before?”

Bonhart took the stick, looked it over
carefully. Then he caught sight of the

Mrs. Bonhart saw the group coming
when they were about 100 yards from
the house, and ran out to meet them.
. “Alec,” she cried, frightened, “is
anything wrong?”

Alec showed her the Stirrin’ Stick.

“Did you get this out of the wash
house?” he asked. | :

“No, Of course not.”

“Did you give your keys to anyone?”

She shook her head ‘quickly.

HE officers walked to the small

building he stopped suddenly. There
on the ground, left in the sticky mud,
were footprints. By close examination
the Sheriff could tell that they were
similar to the ones found at the rear
of the Berry home. He looked more
closely at the wash house now; and
then he saw that two boards had been
pulled loose from the back of the shack.

Apparently the man who had made
those footprints had-~ pulled: those
boards loose and crawled inside the
shack from the rear.

The Sheriff hurried around to the
front of the wash house. Bonhart had
unlocked the door and had just fin-
ished examining the interior of the
shack. Now he was talking excitedly
to Major Spence and the deputy.

Sheriff Benton said: “I’ve found
something important in the back.”

Spence grinned. “So have we.” He
spoke to Bonhart. “Tell him what you
just told us.”

ONHART said, “I’ve just discovered
that a suitcase has been stolen from
here also. I had a man workin’ for me
about a month ago.. I missed some
things from the farm; and had an idea
that he’d taken ‘em though I didn't
have no way of provin’ it. I talked
with the Berrys about him, and Mrs.
Berry said she didn’t trust him none—
that he was a bad type. SoI fired him.
But he owed me some money so I told
him I was goin’ to keep his suitcase of
clothes and stuff until he paid me what
he owed me. I put ’em back here in
this shack. Now I find that the suit-
‘case is gone!”

“Did this hired-hand know what
Mrs. Berry told you?”

“Sure. I told him about it.”

“That settles it. He’s our man—the
only person with a possible revenge
= against Mrs. Berry. Who is

e?’?

“L. C. Johnson.” ‘

Johnson! He was the hired hand
who had been at home when the of-
ficers first checked on him. But they
had no reason to suspect him then and
hadn’t questioned him too thoroughly.
But now—

Everything pointed. to Johnson: The
fact that he undoubtedly stole the
Stirrin’ Stick, that he most likely hated
Mrs. Berry, and that—since he had
worked for him—he must have known
that Berry always left his house at
eight o’clock on Sunday morning to
get the paper.

“What was in that suitcase?” Ben-
ton demanded of Bonhart, .

“A leather jacket and a leather

hunting cap. A single-shot twenty-
two rifle, some shirts and socks and
other stuff.” .
. Thirty minutes later the officers
had driven out to Johnson’s home.
Johnson was cutting wood in his front
yard when the officers drove up. Bon-
hart was with the officers and when
Johnson saw him, he started to run.
But Benton stopped him with a sud-
den shout to halt.

Johnson’s very actions had given him
away. His first wo were, “I didn’t
kill that woman, I didn’t have nothin’
to do with it.” ;

But he broke down quickly when the
officers searched his home and found
the suitcase he had taken from Bon-
hart’s wash house. They also found
a bloody shirt and trousers and a
bloody pair of shoes that matched ex-
actly the footprints found behind the
Berry home and at the rear of the
Bonhart wash house. ‘

au Au right!” the husky, twenty-
year-old Johnson cried out in

anger. “I killed her all right ...I
her ... she caused

my job...” : -

“She didn’t cause you to lose your
job,” Benton replied quietly. “You
did that yourself. You should have
behaved yourself. Looks like Mrs.
Berry had you figured out just right—
although it had to cost her her life!” -

Johnson was charged with first-de-
gree murder. He came to trial without
delay, was found guilty and received
the death penalty. He was electro-
cuted on March 9, 1945.

The mystery surrounding footprints
in front of the Berry home was cleared
up definitely when Haverill told of-
ficials later on that he had come from
that direction when he had visited the
Berrys on the morning of the murder.

The names Alec Bonhart, Jack Seller
and Ted Haverill are fictitious to pro-
tect the identities of persons innocent-
ly involved in this investigation.

a little while ago,” the De-

answered. He held

“Spilled it all, out

i that island. His captain says

yod soldier, but he wants to get

ng off his chest, so he can be
of the uniform.”

Downs
after a defense at-
sked a question of Detective
-which the State claimed was

nt District Attorney J. Irwin
to. handled the prosecution,
4arattan that the whole case
' out the window unless they
id a supporting witness who
id authenticity to the prison-
nal statements.

: basis of what Coleman had

D conferences were going
ition Officer Chenkin was do-
> Seuthing of his own. He
Bet a job done, and this one
: had started wasn’t finished.
while he was sitting through
-lived trial, hearing the State
y retrain from making any

e t

cause ine thing might lati Wrougi.
The draft board was most helpful—

< except . that Chenkin couldn’t see the
} files himself. The chief clerk went

pthrough them, and in a surprisingly
b { time came up with the name of

it. Neely went with him.
‘Ten minutes later, Benton had made

_ what he thought might be an impor-

tant discovery. He and Neely had fol-

- lowed a pair of footprints all along the

trail. Suddenly the tracks turned off
the main trail. Benton followed them.

; About 100 feet through the heavy trees
- the Sheriff came in plain sight of the —
- Berry home. The tracks were headed
straight for the front door of ‘the

a cast of the footprints at once. Nee-
stood by, watching him with inter-

to the Berry house.
Major Spence listened attentively to
wi

y. what Benton had to say about the

' . everything even more mystifying.

“T’ve found some footprints, too,”
' Spence said. “Only these are at the

back!”

The Major took Benton to the rear
door of the home.

There Spence showed the Sheriff
footprints leading from the gulley to
the house and back to the gulley again.

14, 4¥ THEORY,” Spence said, “is

“How far did you follow them?”
Benton asked.
’ “T9 the woods. It’s impossible for a

Did this mean that they would have
to search for two killers?

The two officers still were puzzling
over the meaning of these two differ-
ent sets of footprints when Chief
Nohlik arrived with his bloodhounds.

that these tracks were made by -

RICO OU AC de Ow ren Oe wee

trial for his life.
Greco’s officer inter-
viewed the prisoner in guard house.

a Only One Stirrin’ Stick Killed Her

> through the most dense part of the
» marsh-lands. Benton decided to follow

place
Eats
Bae
lek
ie
pict
eats
4

H
:
:

Ht
ia
a |
ages
i

ety
ue

f
£
5
i
g
o
&

porch the Berry home at 8:15 that
morning—fifteen minutes after Berry
had gone for his paper. The man who
gave deputy this information had

PEL
5
i
RE

given Major Spence and Sheriff <
ton this sensational information, one
of the State officers drove up to the
Berry home with Haverill himself.

He said, “I came over to see Mr. and
Mrs. Berry. Why?”

“Because we have reason to believe
that Mrs. Berry was murdered some-
time between eight and nine o'clock.
That puts you here just about the time
it happened.”

“Oh, my goodness,” the man said,
rubbine his chin. “I see now what you

equia and Sambucci.
‘ore County Judge
Downs, all __ ___ _1en halted their trial
to enter pleas of guilty—not to murder
in the first-degree, for which they were

14 with To
On May

Greco and Eddie Coleman are ficti-

to become useful and law-abiding citi-
zens once more.

: Read It First |
(Continued from Page 23) OFFICIAL DETECTIVE STORIES

mean. I hadn’t thought of that before.
You mean, it puts me in a bad light.”

gus

a
: EF
BRE
i
bt 4
ie

HAVERILL, insisting that he had told
the officers all he knew about the

three-quarters of an inch in diameter.
One end was covered with blood.

“The dogs found this about a half-
mile back in the swamps,” Nahlik said.
“They followed that trail which leads

‘from the back porch of the home
right to that ‘Stirrin’ Stick’ and there

eed
Hie
te poe
ap dig
PEgeCEES
Bee ;
atl
greed
ie iie

HatiHae
ene
aie th
EGE Beeg:!
He fe
Hae
alee ib

é
E
e
f
E
|
g

zuT EE
ae
Bes
Epaple
[sees
ed R 8
ree
ie

z
4
E
é
g
Fi
E

:
5
E
8
g
E
3
g

the front door was locked. And from

to leave the house by the back door.”

at gay

ae ae

"Grim vende
ance struck here
‘in the modest

NLY the swishing sound of the
windshield wiper as it whisked
away the raindrops broke the
silence as the officers headed

out the lonely road toward Covington,
Georgia, that Sunday morning. In the
distance they could hear the tolling
of church bells, summoning the good
people of the farmlands to morning
services,

W. G. Benton, sheriff of Newton
County, glanced quickly at his watch
—9:25 a.m. Only a few minutes ago
he had been listening to a radio pro-
gram in the warmth of his office and
praising the luck that made it un-
necessary for him to be outside in
that miserable weather. But a tele-
phone call had put a speedy. end to
his day dreaming. Benton listened in-
tently for a monient. Then he quickly
summoned Major W. E. Spence, of the
Georgia Bureau of Investigation, and
together the two officers were speed:
ing to the farm of James Berry, four
miles west of Covington.

In another car close behind them
were other county and state officials,
including Dr. W. K. Swann, Newton
County coroner; and Dr. J. B. Mit-
chell, coroner’s physician.

' The sheriff’s automobile turned in-
to a tree-lined road, and soon stopped
at a wooden building which was al-
most entirely surrounded by trees.
From the woods came men: in hip
boots, carrying shotguns and rifles.
Two of them were leading howling,

hungry-looking dogs by ropes.

Two men approached the sheriff’s
car. One was Fred Neely, a neighbor
of Farmer Berry.

“I’m the one who called you,” he.

told Benton.

“I’m mighty glad you got here.
The boys are anxious to get started,
and I had a tough time persuading

them to wait till you arrived: They’re |

mighty anxious to get after that
killer,” the second man, J. C. Cardell,
said.

AS LTIAE.

by R. E. BECKER

THE WHINING AND THE
BAYING OF THE HUN.

Bl GRY HOUNDS MEANT
ONE THING—A MUR-
DERER WAS ON THE:

LOOSE—BUT NOT FOR

LONG!

murder room. He is ex-

stick with which Mrs.

floor beside the bed.

Benton and Spence glanced around.
There were almost a dozen men in the
volunteer posse which had been or-
ganized immediately after word
spread that Enza Berry, 71-year-old
wife of James Berry, had been mur-
dered.

As the officers jumped from their
sedan and strode to the front porch,
a group of men nodded grimly and
opened a path for them. Neely, who

‘had opened the automobile door for

the sheriff and Major Spence, fo)-

- amining the battling |

_ | Berry was killed. Note *
the pool of blood on the =

Sheriff Benton in the eon 4

Ld
,

. CERTIFIED DEVECTIVE CASES ;

aK. oe

The hounds were eager
to get on the killer's trail.
They sniffed the foot-
prints and were off on
the trail like a flash...

lowed them into the house. Dr. Mitchell took one look at the more than an hour and a half or so,”
“No wonder those men are rarin’ prostrate form on the floor, noted the Dr. Mitchell said. “Her skull’s frac-

to go,” said Benton as he saw the aged horribly mutilated head and swore. tured in several places; she was hit

woman's body on the floor of the bed- “This is the worst thing I ever saw!” -at least eight times with a heavy in-

room beside the heavy iron bed. A “The killer can’t be too far away strument,” -

Pool of blood extended several feet’ unless he escaped in an automobile Death would have been instanta-

along near the sewing machine. because Mrs. Berry hasn’t been dead neous, he declared, and since it was’

then 9:40 he estimated the time of the
attack as “between: 8:15 and 8:45, as
near as I can figure it,” .

As Sheriff Benton looked around
the place, he was impressed by the
neatness with which Mrs. Berry un-
doubtedly ran her household. The kit-
chen was spotless—dishes put away,
sink clean, table wiped dry. The bed-
room bureau and dresser were coy-
ered with attractive, homemade |
scarfs, and chairs had gay, home-
made pillows. Benton noticed that al-
though Mrs. Berry was clad in a neat,
freshly laundered dress, she wore no
shoes and stockings. A pair of each
were on the floor near the dresser,

He noticed, too, a basin of soapy |
water on a low table. It was just a
little above room temperature,

Even as. the body was being re-
moved, James Berr , who had been
sitting on a chair in the bedroom all
during the proceedings, oblivious to
everything, seemed to pay no atten-

> ! ;

The husband and.
daughter of the slain wo-
=) man listen sadly to the

account of the brutal
= murder of the defense-
less old lady.

Metadata

Containers:: Box 12 (2-Documentation of Executions), Folder 6
Resource Type:: Document
Description:: Will Jackson executed on 1901-11-01 in Georgia (GA)
Rights:: In Copyright - Educational Use Permitted
Date Uploaded:: June 29, 2019

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Access:: The archives are open to the public and anyone is welcome to visit and view the collections.

Collection restrictions:: Access to this record group is unrestricted.
Collection terms of access:: The researcher assumes full responsibility for conforming with the laws of copyright. Whenever possible, the M.E. Grenander Department of Special Collections and Archives will provide information about copyright owners and other restrictions, but the legal determination ultimately rests with the researcher. Requests for permission to publish material from this collection should be discussed with the Head of Special Collections and Archives.