Lewis v. State , 4 Ga. App. 219 ( 1908 )

Russell, J.

The evidence in its entirety showing that the defendant was 'justifiable, the verdict finding her guilty was, for want of evidence, contrary to law, and a new trial should have been granted.

Judgment reversed.

I suppose that paling is about five and a half feet long; it is about four inches wide at the bottom and three inches wide at the top, . . about half an inch thick at the narrow end, and about three eighths of an inch thick at the wide end. It looks to me.like a light sap-pine paling.” “It has two nails,in it and the lower end is split. . . The split end is the one the nail is in, and it is just as I found it. . . It had rained that day. .If the paling-was wet it would be heavier. John Lewis weighed about 160 pounds and was about five feet and nine inches high. He was a strong man!' Carrie Lewis weighed about 120 pounds.”

Emanuel Patterson testified, that on the night John Lewis was. killed he saw Carrie Lewis and Fannie Reddick going along the-road in front of Tom Leonard’s yard, southward, in the direction of a church, and that they stopped in the road; that he went up the road and met John Lewis coming down the road, and John asked if he had seen any women going down the road; that he told John that they were down the road; that John went on and soon came back with Carrie Lewis and Fannie Reddick, and they stopped near Leonard’s house. “John was standing talking to his wife; she walked on up the road, and after a while he took out behind them. They were not running when I saw them. She was running and he was walking fast. She went towards Mrs. McCarthy’s house and was running. I do not know what he had in his hand; I didn’t see anything. I wasn’t looking for anything; do not know what Carrie had in her hand, and do not know what occurred down the road between them. . . I saw John Lewis after he was killed. Mr. Murray, Tom Leonard, and myself got there about the same time. . . He lived a minute, I reckon, after I got there. It was about fifteen or twenty minutes after I saw him going up the road with Carrie Lewis and Fannie Reddick before I saw him dead.” J. W. Shepard testified as to .a fence paling found, in the road near where one had been taken from Joe Alston’s fence, and’ as to a peach-tree switch and broken pieces of switches found near the same place. His testimony -as to the paling was in substance the same as that of the first witness. No other witness-than those mentioned was introduced by the State.

Joe Alston testified, that .on the night John Lewis was killed, John Lewis caught up with Carrie Lewis, when she was on her way to church with Fannie Reddick, and caught hold of Carrie’s hand, and told her that she could not go to church, and said, “If you go-to church to-night you will go over my damn body;” that John held her by the hand and talked to her about ten minutes, and then turned her loose, and they went up the road towards home; that he heard them fighting and heard a noise like the lick of a paling; that they got a paling off his garden, but he did not know which one had it; it was about 40 yards from the house of the witness, where he heard the sounds of the paling. — Fannie Reddick testified, that John Lewis overtook Carrie Lewis and herself in the road, when they were on their way to church, and told Carrie to go back home, threatened to beat her if she went to church, said that if she went to church she would go over his dead body, and hit her with a switch; that Carrie got loose from him and ran towards the house, and he jerked off a garden paling and ran after her; it was dark and the witness did not see what occurred between them afterwards. The accused made the following statement to the jury: “I cut my husband with a knife. I asked him to let me go to church, and he didn’t say that I could go or that I couldn’t go. . . When I got ready to go to church I asked him if he was willing for me to go, and he said, ‘I reckon so.’ We went on down the road and sat down, side the road beside Tom Leonard’s house, and I heard him in the cane patch, coming across the patch, and he was talking scandalous. He come on up to where we were, and he said, ‘You are not going to that church to-night; if you do, you will go over my dead body.’ And he got hold of a stick and run at me and hit me on this arm and knocked the skin off, and I jerked loose from him and run up the road toward the house, and he run across the road and jerked off a paling off the garden, and I run to get to the house, to Mrs. McCarthy’s and them. He overtook me and struck at me that way. Then I run under him and struck at him with the knife. I was scared of him and was scared lie was going to kill me. I knew that he would hit me with anything that he could get in his hand.”

Cited by counsel for plaintiff in error: 89 Ga. 140; 92 Ga. d02 (5).

E. A. Wilkinson, for plaintiff in error. J. A. Laing, solicitor-general, by Reuben R. Arnold and J. B. Ridley, contra.