Hill v. The State Of Ga.

Decision Date31 January 1871
Citation41 Ga. 484
PartiesFAYETTE HILL, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
CourtGeorgia Supreme Court

[COPYRIGHT MATERIAL OMITTED]

Criminal Law. Evidence, etc. Before Judge Clark. Sumter Superior Court. August Special Term, 1870.

Fayette Hill was indicted for the murder of John Wormack in said county, on the 1st of August, 1870, with a ball shot from a pistol. The indictment, as originally written, charged the assault on said day in usual form, and in charging the death said Wormack "within one year from the day first aforesaid, " died. Before the trial, but when did not appear, Mr. Whiteley, the Solicitor General, had stricken out said quoted words and in lieu of them had interlined "then and there." After the defendant had been arraigned and had pleaded not guilty, after the jury had been empanelled and sworn and the Solicitor General had "opened the case" to the jury, counsel for defendant moved for a verdict, because of said alteration in the indictment, and proposed to prove that this alteration had been made after the bill was found and returned into Court, and without the authority and consent of the grand jury, or any twelve of them. The Solicitor said he made the alteration in the grand jury room, in the presence of the foreman and others of the grand jury, and with their consent; that he could not say how many grand jurors were present, nor that twelve were present. Nothing else was offered on this point. The Court overruled the motion and ordered the trial to proceed.

*The witnesses pro and con were then examined and their testimony was as follows:

Dr. W. M. Hardwick, sworn for the State: I am a practicing physician. I knew John Wormack in life. I was called to see him some thirty-six hours after he was shot. The ball entered just below the shoulder-blade and came out in the breast. It was a gun-shot wound. I cut out the ball. Never saw weapon—can't say whether it was a gun or pistol—it may have been a rifle or pistol. When I first saw him, deceased seemed to be so quiet I thought he was doing very well, except as to his pulse which was very feeble and quiet. In consequence of his condition otherwise, I at first thought the condition of his pulse might be attributed to the shock on his nervous system. I came to the conclusion that the ball may have struck a rib and passed around the body, and not struck any vital part, and more than that there was no hemorrhage from the lungs. On my second visit, the second day afterwards, he was in such a condition I was afraid he would die. Negroes had employed Dr. Bayley, and in waiting for me did not send for me until second day. On my visit at that time his pulse was still very feeble and had considerable fever; my conclusion was he would die. I think, from what I saw in my attendance on him, he died from the wound. I never saw him afterwards.

Cross-Examined: He lived four or five days after I last saw him. I left him in the hands of Dr. Bayley, and saw him no more. I did not probe the wound; can't say whether the ball went through him straight or round the rib; don't think it could have been probed at the time. It went under the left shoulder blade and was taken out of him opposite; between those points is the covering of the heart and its surroundings. The wound was not bleeding when I saw it; when I cut out the ball it bled a little; it would not necessarily bleed if it struck the pericardium, but if it passed through the auricle of the heart, death must have ensued immediately. Any blow, whether it strikes a vital part or not, would affect the nervous system to a greater or less degree. Deceased was named John Womack; I heard from reputation they *were related as brothers-in-law; were friendly so far as I know personally. Don\'t know the distance of their houses apart; could not say. I did not see him shot; saw him with a gun-shot wound; don\'t know positively when he was shot; saw him twice. He must have lived seven or eight days after I heard he was shot.

Dr. David Bayley, sworn for the State, said: I belong to the Electric school of medicine; am a practicing physician; knew John Womack in life; attended him when wounded. Dr. Hardwick was first in attendance. I attended him afterwards. The wound was from a pistol shot, in the left shoulder, that came through his body. I was called on the night of the 25th July, 1870; did not come until next day, until after Dr. Hardwick had extracted the ball. The wound was caused by a ball that was a pistol ball."

Cross-Examined, says: I did not see him until after Dr. Hardwick did.

Re-Examined by the State: I had a conversation with the deceased as to the cause of his death. He did not say anything that induced me to think he believed his end was approaching. I didn't tell him whether I thought his wound was mortal or not. He said nothing to me on the subject at that time that indicated what he thought on the subject. He did not, even when dying, say anything on the subject, up to two hours before his death that would indicate he thought he was dying.

Joseph Mann, sworn for the State, said: I knew John Wormack in life. I saw him about three hours before he died; he was in a dying condition; he gave me to understand he was dying. Says he to me: "Am I to die in this way without anybody doing anything for me;" somehow that way, don't know exact words. He died at two, and I left him at eleven. His breathing was labored; he could hardly breathe; I saw that death was on him at that time."

Cross-Examined: Doctor David Bayley was there at that time. He was not present when the conversation took place; had a second interview with him Doctor David Bay-ley left about the same time I did. He was out at his *buggy, and I went back with Mr. Bass to find outmore fully about it. I am not a physician; saw him no more after I went away second time; staid that time about fifteen minutes; I went back to ask him more fully some things that I was not satisfied about. I think the words, "am I to die" were spoken when I was in the second time. I wanted to console the dying man, and when he asked me if I though he would die, I said I reckon not.

Miles Bass, sworn for the State, said; I knew John Wormack in life. I saw him about seven o'clock in the morning, and I understood that he died in the evening about two; it was about the 6th or 7th of August, I think; he appeared to be in his right mind, but I thought he was sinking; I think he was conscious that he was dying; he asked me if we were not going to do anything with Fayette Hill for killing him; he made several remarks that would show that he thought he was dying; he said he was so weak he could not talk; that he would like to talk to Mr. Mann if he was able. This statement was made about eleven o'clock, at which time I was there with Mr. Mann; I don't recollect he made any other remarks; I told him he was very low and I did not think he could live, he was sinking so fast; said he did not think so either; this was at seven that morning.

Cross-Examined, said: This conversation was not in the presence of Dr. Bayley; Dr. Bayley was at his buggy, and Mr. Mann and I went back; Mr. Mann did the talking then; I don't recollect of saying anything then; I might—don't recollect. In the seven o'clock conversation it was when he asked me if we were not going to do anything with Fayette for killing him.

Re-Direct: I said to Mr. Mann, in the presence of the dying man, what ever you want to say to this man say it pretty quick, as he wont live long.

Re-Cross-Examined: This was while Bayley was out; while Bayley was in he did most of the talking, and when Mann and I were in there while Bayley was out, Mann did the talking; I don't recollect saying anything more than already *stated;

I may have said something to John, but don't remember, positively.

Re-Direct: In the conversation, at seven o'clock that day, deceased said to me, (I was sitting in my house, by the door,) he said that Fly Crawford was at Fayette's house and called deceased. This conversation I am about to relate took place after he asked me if we were not going to do anything to Fayette Hill for killing him.

Re-Cross-Examined: He seemed to know he was going to die; he was very weak.

Re-Direct: When I first arrived I said, good morning. Hallo, John, is this you? I had no idea it was you that was shot; I told him I thought he was mighty bad off; said he, "Yes sir, " and saidthen, "Mr. Bass, ain\'t you all going to do anything with Fayette for killing me?" I told him I did not know that he wanted us to do anything to him, as I had heard he was shot accidentally; he said he was sinking, and had been since the turn of the night. This was a few minutes after I got there. We talked on a little while before we made those remarks about sinking; the statement we made about the shooting was after these remarks about his sinking; said he got up and started to Fayette\'s house; his wife said, "John, I wouldn\'t go up there."

Re-Cross-Examined: These statements were made after he made the remarks about sinking. He told me he had been shot and I saw his condition was dying. He then went on and told me how it happened. He said he was sinking and had been since the turn of the night. This was before he told me about the fight.

Re-Direct: Says he said to his wife, "oh hell! you are mighty scarry; I am going." He said that when he got to the door Fayette was lying in the bed behind his (Fayette's) wife. He saw the pistol presented in the direction of the door—said he threw up his hands and hallooed "oh Lord!" and jumped out of the door— got about fifteen steps and the pistol was fired. He hallooed "oh Lord! Fayette, you have shot me;" said his wife then helped him to the house; *said he suppose Fayette was in his house when he shot. He said he was about fifteen steps before he was shot.

Re-Cross-Examined: One of the boys, Taylor Adams, asked me to go in and see the wounded man. His wife and mother...

To continue reading

Request your trial
64 cases
  • Brown v. State, 33089
    • United States
    • Georgia Court of Appeals
    • 30 Noviembre 1950
    ...point that the indictment charged that the offense was committed on a day subsequent to the trial itself. Grimes v. State, supra; Hill v. State, 41 Ga. 484(2); Adkins v. State, supra. In all of those cases, though the indictment alleged a date on which the offense was committed which was su......
  • State v. Barnes
    • United States
    • North Dakota Supreme Court
    • 2 Enero 1915
    ...Jordan v. State, 81 Ala. 20, 1 So. 577; Re Allison, 13 Colo. 525, 10 L.R.A. 790, 16 Am. St. Rep. 224, 22 P. 820; Hill v. State, 41 Ga. 484; Hall v. 103 Ga. 403, 29 S.E. 915; Powers v. State, 83 Miss. 691, 36 So. 6; State v. Webb, 74 Mo. 333; Davis v. State, 51 Neb. 301, 70 N.W. 984; McBean ......
  • State v. Barnes
    • United States
    • North Dakota Supreme Court
    • 2 Enero 1915
    ...Jordan v. State, 81 Ala. 20, 1 South. 577;In re Allison, 13 Colo. 525, 22 Pac. 820, 10 L. R. A. 790, 16 Am. St. Rep. 224;Hill v. State, 41 Ga. 484;Hall v. State, 103 Ga. 403, 29 S. E. 915;Powers v. State, 83 Miss. 691, 36 South. 6;State v. Webb, 74 Mo. 333;Davis v. State, 51 Neb. 301, 70 N.......
  • State v. Eubanks
    • United States
    • Georgia Supreme Court
    • 7 Septiembre 1977
    ...a conviction. In this connection see Brooks v. State, 178 Ga. 784(3), 175 S.E. 6; Goldsmith v. State, 2 Ga.App. 283, 58 S.E. 486; Hill v. State, 41 Ga. 484, 501. "The sustaining of a special demurrer, the result of which is either to strike from or add to the material allegations of an indi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT