Williford v. State

Decision Date10 November 1904
PartiesWILLIFORD v. STATE.
CourtGeorgia Supreme Court

48 S.E. 962
121 Ga. 173

WILLIFORD
v.
STATE.

Supreme Court of Georgia.

Nov. 10, 1904.


MURDER—CHANGE OF VENUE—DENIAL—NEW TRIAL.

1. A misdemeanor convict, who has escaped lawful confinement, may be recaptured by any peace officer without a warrant If the escaped convict slay the officer to prevent the capture, the homicide will be murder.

¶ 1. See Homicide, vol. 26, Cent. Dig. § 34.

2. Where a motion for a change of venne was made upon the ground of inflamed and excited public opinion, prejudicial to the accused, and。

[48 S.E. 963]

the judge, after hearing evidence, denied the motion, and no exception was taken to the refusal to grant a change of venue, the same contentions which were the basis of the motion cannot be again urged as a ground for a new trial. The remedy was to except to the overruling of the motion to change the venue.

3. The charge that a presumption of malice arose upon proof of an unprovoked killing was not open to the objection that it excluded from the jury consideration of evidence introduced by the state tending to show that the homicide was to prevent a capture of an escaped convict without a warrant, which would reduce the offense to manslaughter. A homicide under circumstances pointed out in the first headnote is murder, and not manslaughter.

4. The evidence authorized a submission to the jury of the issue of fact as to defendant being an escaped convict from a lawful chain gang.

5. There being no merit in any of the special assignments of error set forth in the motion for a new trial, and the evidence fully warranting the verdict, no reason appears why the conviction of the defendant should be set aside.

(Syllabus by the Court.)

Error from Superior Court, Mitchell County; W. N. Spence, Judge.

Whitely Williford was convicted of murder, and brings error. Affirmed.

Scaife & Lane and Sam S. Bennet, for plaintiff in error.

John C. Hart, Atty. Gen., W. E. Wooten, Sol. Gen., and Arnold & Arnold, for the State.

EVANS, J. The indictment under which the defendant was tried alleged that he had committed the offense of murder, by unlawfully, feloniously, and with malice aforethought killing one Harmon West by shooting the said Harmon West with a certain pistol, inflicting a wound from which wound said Harmon West died. The jury found the defendant guilty, without any recommendation. He made a motion for a new trial, to the overruling of which he excepts.

The evidence disclosed that there was only one eyewitness to the homicide. That witness testified substantially as follows: His father was a justice of the peace, and, the regular bailiff having died, witness had been specially deputized to act as bailiff. On Monday morning, previous to the homicide, he had taken the oath for emergent constables; and, after taking the oath, he requested Mr. West, the deceased, to aid him in the arrest of the defendant. Witness had recently heard that the defendant had escaped from the chain gang, and that a reward of $25 had been offered for his recapture. Witness made an investigation of the whereabouts of the defendant, finally receiving information that he was located at a certain turpentine still. Deceased and the witness went to the still for the purpose of effecting the defendant's arrest. After arriving there and making inquiries, they saw defendant run to the house of a certain woman, and they went to the house and made a casual examination, but were not able to find the defendant. The woman In whose house they were searching informed them that the defendant was not there. They left the house and proceeded to another house, and there determined the defendant must be...

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