DocketNumber： No. 11707
Judges： Atkinson, Headnotes, Hutcheson, Russell, Said, Stated, That
Filed Date： 5/13/1937
Status： Precedential
Modified Date： 10/19/2024
J. B. Harris, a negro man, was indicted, together with five other negro men; Harvey Spielman, Wheel Chandler, Charlie Wilhite, Cam Eakestraw, and Lonie Burns, for the murder of J°e Culpepper, a white man, on March 21, 1936, by shooting him with a pistol or other firearm, and inflicting upon him a mortal wound. Cam Eakestraw and Lonie Burns not having been apprehended, the other four defendants pleaded not guilty. They elected to sever and to be tried separately, which was done. The trial under review in this court is that of J. B. Harris. The jury returned a verdict finding him guilty, with a recommendation, and he was sentenced to life imprisonment. He
Kaymond Culpepper, a brother of the deceased, testified in substance as follows: On March 21, 1936, the deceased was shot six times with a pistol, which resulted in his death. On this day the deceased and the witness brought a load of “scrap cotton” to the City of Jefferson, in a two-horse wagon, arriving there about noon. Ernest Sorrell was with them. They went first to the gin and sold the cotton. They then came back to town “around behind Mobley’s Store,” and there was a crowd of negroes standing in the road or street. Whereupon the mules pulling the wagon shied at the negroes, and some of the negroes “said something sort of sassy.” They used a “fractious tone of voice to” witness and his brother, “like they wanted to get raw about something,” and witness and his brother jumped out of the wagon and went back to where the negroes were. The negroes were angry “ about the mules shying and running close” to one of them or something, “lie didn’t like it, he wanted to get mad about it. I couldn’t say I had ever seen any of those niggers there before. I have not been able to identify any of them that tocos there since. I seen some niggers later that day. I don’t know whether it tocos the ones down there or not. These were the only negroes any of us had cony conversation of cony kind with that dcoy while toe were in Jefferson.” (Italics ours.) On the way out of town, some hour or more later, witness, the deceased, and Sorrell, together with another man named Norville Gee, were together and proceeding by the “ calaboose” and into Main Street, and as they turned into this street, a “bunch of niggers come down that way and met us in an A Model Ford.” On thé way “up the road we saw what appeared to be this same car loaded with these same niggers again.” They were headed in the same direction, and passed this wagon. The car was full of negroes. Witness and the others kept along the
Fred Culberson, deputy sheriff:, testified in substance that he was called to look for some negroes that were said to have killed Joe Culpepper; that he went out to Jim Bell’s filling station and Bell said some negroes in the kind of car described had just passed. “We could track them, because they had a tire oil; and when we got up on the hill and tracked them down to a Millsaps nigger’s and found them, the car was standing there in the yard, one tire was off and the other tire was flat. We got Charlie Wilhite out from under the bed in the house. Mr. Purcell and Mr. Stewart got the defendant.” “Both of these niggers we found at the Millsaps nigger’s house were drinking. We asked them where they had been, and they denied all about it at first, and then said
'Ernest Sorrell testified substantially as-did'Raymond Culpepper. As to the occurrence with the-negroes in Jefferson, he said: “After we turned into the • street - . . there was- a whole bunch 'of niggers down there, and two stood kind of out' in the road; the mules was skiddish of them; and as the mules danced by, the niggers Said something anothér I couldn’t understand; and Joe ■ and Raymond went out the back of the wagon. I grabbed the lines and went on and took out the mules- and went back down there, and Joe and Raymond and the niggers was all gone.” When ■they started-home they went “by the calaboose, and on our way into the highway met á car of niggers. It was an A Model Ford, looked like five or six niggers was in it, coming back into town. . . One of them on the front seat gritted his teeth at us, and 'kincla made a face, . . they did not make any signs when they passed” the wagon on the hill just out of-town. The next time they saw the car was at the scene of the homicide, parked beside the-road. “The niggers were kind of standing around the back end of it and other side of it. The little yellow nigger was shooting dice out-in the roach;-he rolled them kind of back down the •road just once. -He picked them up, stuck them in' his pocket, and 'we got on up there close by them, and the little yellow nigger said, ¿ Which one of you fellows was trying to raise hell with-us down in-town?’ and he had his hand in his pocket and comes out'shooting, and I laid down in the wagon bed. There was five or six niggers standing there. There was lots of shots-made. I couldn’t tell how many were shooting. The defendant and- that one over yonder were up there. . . After this little yellow nigger began to shoot 1 couldn’t tell what the others 'did, because I was laying
Jim Bell testified that he operated a filling-station just beyond the river on the Winder-Jefferson highway. “I didn’t go with the officers in search of the defendant. I heard the defendant make a statement freely and voluntarily. Mr. Purcell and Fred came back down by fhis place’ after they got the defendant and those other boys, . . and the defendant said he was on the back seat, and said something back to Mr. Purcell, and Mr. Purcell hit him. He just told him first before he hit him that he was on the back seat and the other boy was on the front seat. Mr. Purcell and Fred asked my father how many was in the car, .and he said, ‘I couldn’t tell exactly; there was some on the front seat and some on the back seat,’ and the defendant opened up and said he was on the back seat; and that was when Mr. Purcell hit him.”
Norville Gee testifiéd to substantially the same facts as the other witnesses who were occupants of the wagon, as to the trip out of town, meeting and passing the car of negroes, and the happenings at the place of the homicide. He said that in going up the highway, “I noticed a particular car pass us right the other side of the cement out here. It was a Ford of some kind, occupied by some niggers, approximately five or six. . . In going up the road we saw this car next where the shooting occurred up there in the highway. I didn’t see them there at' Drake’s filling-station. . . I seen the six niggers there in the highway. Before we got even with them I didn’t see them doing'anything in thé way of re-' pairing the car or fixing the tires. Just as we got even with them this little yellow nigger walked out and fired, and when the first' shot fired I jumped- out of the back end of the wagon. ' Then it was just like popcorn, them shooting-1 and the next thing-three'
L. N. Stewart, a Jefferson policeman testified that he went with other officers in search of these negroes, and that he saw the defendant “coming around from some little building, out at the barn. I called Purcell, and we got him and searched him; and when I asked him if he had been in town, he denied being in town that evening to start with, and . . finally admitted being in town, but he didn’t know anything about the trouble.” Witness testified that defendant at first persisted in saying that there were only two in the car, and finally stated the truth when Mr. Purcell hit him with a blackjack. He testified that defendant said, “I was on the back, seat, and Wilhite was driving.” Witness stated that he had started from the house where the car was parked to
Eugene Huff, a white boy thirteen years old,' testified that he lived with his father near the scene, of the homicide; that he heard shooting, many shots, and in about five or ten minutes an automobile stopped near his home, and there were lots of negroes in the car; that they got out, and part of them picked up the back end of the car and pulled a tire off; that four of them got back in the car, and two left the car and went out across the field; and that the shots he heard were going just as fast as a person could pull a trigger.
E. S. Drake testified that he operated a filling-station about half a mile of where the killing occurred, that he could not see it from his place, and that on the day of the homicide “some niggers stopped at my place of business. . . They rolled up in a car and wanted two gallons of gas. ■ . . Lonie Burns and Wheel Chandler come on in the house to get a bill changed, and I throwed down two pennies, a dime, and half a dollar, and Lonie Burns said, ‘Cap, I don’t want the pennies; they are bad luck to me.’ I said ‘Well, what you want?’ and he said, ‘Give me two Baby Euths.’ I give him the two Baby Euths, and he said, ‘Here Wheel, take one,’ and Wheel took it. . . The Burns nigger got over at the showcase, . . looking down the road through the window there, and he stood there for a few minutes, and then turned to Wheel and said, ‘Wheel, you going to stick to me?’ and Wheel said, ‘I’ll stick to you until hell freezes over,’ and he said, ‘Well, let’s go.’ They went out to the car and went around the front of the car to the other side, and stood there' and talked a good little bit, and they got in the car and drove off up the road.” This witness testified that no one was in the store but the two negroes named; that from the window they had a straight view of the road about 250 yards; that he was watching out the window at the time; and saw the wagon with the deceased and the others coming about 75 yards down the road; and that in about 30 minutes four of the negroes came back in “an old Model A Eord touring-car with the left rear tire off, and it bumpity-bumpity bump when they come down the road. . . These six negroes drove up to my station [the first time] in an old gray looking A Model Eord touring-car.” The witness again stated that none
Dr. J. S. Stovall testified as to the death of deceased on March 21, 1936, from gunshot wounds. The defendant made no statement in his own behalf.
The court should have charged the jury, whether requested or not, on the subject of manslaughter while engaged in mutual combat. See Code, § 26-1007. There was evidence to show that both groups were armed, that they had been engaged in a previous quarrel arousing their passions, and that subsequently they met in the road, not necessarily by design of the negroes, at least of this defendant, but where they were engaged in shooting craps, and one of the negroes, the short yellow one, precipitated the encounter by making a belligerent and profane inquiry of the group o£ whites, and drew his gun and commenced to shoot, and that they all, negroes and whites, engaged in a general shooting scrape. In such a situation, who fires the first shot is not necessarily material. Gann v. State, 30 Ga. 67; Sapp v. State, 2 Ga. App. 449 (58 S. E. 667); Harris v. State, 2 Ga. App. 487 (58 S. E. 680). “A mutual intention to fight need not be proved directly, but may be inferred by the jury from the conduct of the parties.” Sapp v. State, supra. There were sufficient facts and circumstances in this record to show a mutual willingness to fight from aroused passions. In such a case it is reversible error to fail to charge on the theory of voluntary manslaughter as related to mutual combat or mutual intention to fight, from which the jury might find the defendant guilty of manslaughter. Butt v. State, 150 Ga. 302 (103 S. E. 466); Little v. State, 150 Ga. 728 (105 S. E. 359); Findley v. State, 125 Ga. 579, 583 (54 S. E. 106); Williams v. State, 125 Ga. 302 (54 S. E. 108); Higgs v. State, 148 Ga. 136 (95 S. E. 994); Hart v. State, 135 Ga. 356 (69 S. E. 530); Walker v. State, 100 Ga. 320 (28 S. E. 77). Where there are any facts or circumstances tending to show mutual combat or mutual intention to fight, the court should give this law in charge. Cash v. State, 18 Ga. App. 486 (89 S. E. 603). Even though the accused deliberately sought mutual combat with deadly weapon, the jury might find him guilty of manslaughter if he killed under excitement rather than deliberately. See Dickens v. State, 137 Ga.
The .plaintiff in error assigns error upon the admission, over his objection, of evidence regarding '“the difficulty at the, negro restaurant in Jefferson between the two Culpeppers and the unnamed negroes.” This testimony was admissible as tending to show bad feeling between the two groups. The contention that there was no evidence and no circumstance at all from which the jury could find that the accused now on trial was connected with this “bunch of negroes” is not well taken. The statement of the “little yellow negro,” who seems without dispute to have been an actual perpetrator of the homicide and who has not been apprehended, made when the wagon in which the deceased and the. other white men were riding came abreast of where the negroes were in the highway,’as to which one of the white men had been “raising hell” or “wolfing” with the negroes back in town that morning, was a sufficient circumstance, taken in connection with all the evidence, facts, and circumstances in the record in,this case, to connect each of the negroes comprising the group in the. highway at the scene of the homicide with the negroes with whom the deceased and his brother had had the previous difficulty that same, morning in the Town of Jefferson. See Jones v. State, 63 Ga. 395, 399; Thompson v. State, 166 Ga. 758, 777 (144 S. E. 301); Ledbetter v. State, 51 Ga. App. 560 (181 S. E. 120). Likewise a
Under the evidence there was no error in the charge of the court on the subject of conspiracy. Conspiracy may be shown by acts and conduct as well as by direct prooE or express agreement. It may be shown by circumstantial evidence. It may be established by inference, as a deduction from conduct which discloses a common design. Code, § 26-1901; Bolton v. State, 21 Ga. App. 184 (94 S. E. 95); Durham v. State, 41 Ga. App. 421 (153 S. E. 222); Chance v. State, 156 Ga. 428 (119 S. E. 303); Tanner v. State, 161 Ga. 193 (130 S. E. 64).
There was no error in the failure of the court to charge on the law of circumstantial evidence, in the absence of an appropriate written request therefor. There was both circumstantial and direct proof in this case. Brown v. State, 178 Ga. 772 (174 S. E. 536); Haden v. State, 176 Ga. 304, 312 (168 S. E. 272); McElroy v. State, 125 Ga. 37 (53 S. E. 759). A failure to give the jury the definition of circumstantial evidence as embodied in the Code, § 38-102, will not require a new trial, where not requested.
The court did not err in admitting in evidence the conversation which occurred between Lonie Burns and Wheel Chandler, two of the defendants jointly indicted with this defendant, over the objection that it was not had in the presence of this defendant, and that there was neither proof nor circumstances from which it could reasonably be shown that he acquiesced therein or knew anything about the same. Judgment reversed.