Price v. State

Decision Date13 May 1884
Citation72 Ga. 441
PartiesPRICE v. THE STATE OF GEORGIA.
CourtGeorgia Supreme Court

February Term, 1884.

1. Where a husband and wife had separated, the wife returning to her father, and the husband was killed by the father while the former was approaching the house of the latter at night in company with another, it was admissible to show that the husband obtained his companion to accompany him, and stated to such comrade that he had good news from his wife, and wished to meet her and see the defendant and family, with a view of taking her back to his own home, and that his adventure was peaceful, and he meant no harm, having received a letter from his wife to meet her. Such statements were part of the res gestæ .

2. The difficulty between the defendant and deceased having arisen out of the domestic troubles of the deceased and his wife and the latter having left his house for that of her father (the defendant) riding horseback behind another man, it was admissible to show that this man was seen in a private and hidden place about a hundred and fifty yards from her father's house, taking improper liberties with her.

3. That the preliminary examination of a physician as to the pysical condition of the deceased, to show whether or not the latter was in articulo mortis, made with a view to ascertain whether dying declarations were admissible, was conducted in the presence of the jury, was no ground for a new trial, where none of the declarations themselves were elicited, and none were stated.

4. Attacks on the character of a witness by showing contradictory statements may be rebutted by proof of general good character for truth and standing in society.

5. Where the question before the jury involved an attack on the person as well as on the habitation or property of the accused, it was the duty of the court to charge the law touching the defence of person and of habitation, and in regard to the kind of homicide, whether murder, manslaughter or justifiable homicide, and when the law, in respect to each phase which the facts in the case warrant, is fully and clearly explained in the charge it is no ground for a new trial.

6. the charge was full, clear and explicit, and fairly presented the defences to which the defendant was entitled.

7. If the deceased was a mere trespasser, with no evil intent, he was entitled to be warned off; and then if he did not leave that degree of force necessary to make him leave could be used. Such, in substance, was the charge.

8. Where jurors are attacked, they may repel the attack by counter-affidavits.

9. The verdict was not contrary to law or evidence

Criminal Law. Evidence. Res Gestæ . Practice in Superior Court. New Trial. Impeachment. Before Judge CARSWELL. Johnson Superior Court. September Term, 1883

Warren Price was indicted for the murder of Romanus F. Perry alleged to have been committed on August 27, 1882. The evidence for the state was, in brief, as follows: Perry was the son-in-law of Price. After a brief married life, lasting only a few months, Perry's wife left him, and returned to her father's house, which was several miles distant from that of her husband. She went thither riding on horseback behind one Mandel Powell, who was the disturbing element between the husband and wife. After this, she was seen with Powell in a sunken place, which the witnesses termed a pond not very far from the house of her father, and he was seen embracing her. The witness who testified to the transaction did not see any other impropriety; but a warrant was sued out against Powell by Perry for fornication and adultery. Some two or three weeks thereafter, Perry asked one or two of his neighbors to go with him to Price's house. He told one Willoughby that he had good news from his wife, and asked him to go. The latter being unable to do so, Perry turned to one Tharp, who was standing by, and asked him to go, saying that he had good news, and wanted to see his wife, and wanted to talk with her and her father and mother; also that he wanted his wife to come home with him. He also said that he wanted some one along; that he did not want any fuss. Tharp consented to go, and they started before sundown, but were detained by a shower, and reached the vicinity of Price's house between eight and nine o'clock. They strayed somewhat from the way, although Perry had been there several times. They approached the house a hundred yards, or thereabouts, from the gate, by a trail or old path, and, reaching the enclosure around the farm, got over it, and went towards the house, between a corn and cane patch. As they entered the enclosure, a dog began to bark. Tharp said he did not reckon the dog would come down there. Perry replied, no; that they walked a little light until they got near enough to hail; that he expected his wife every minute, and wanted to see if Mandel Powell was there. They proceeded on tiptoe, and arrived within twenty-five or thirty yards of the house, walking along the edge of the cane patch, when Price fired upon Perry with a single-barrelled shot-gun, loaded with shot and a bullet. Perry fell to the ground, and Price said, " I reckon I have got him now," this remark being made to his family, who came out after the shot. Some shot from Price's gun also wounded Tharp, but he was not conscious of it at the moment. He stooped over Perry, who murmured something about " kill." Tharp looked up, saw Price with his gun, and, thinking he would next be shot, ran away, and subsequently discovered that he also was wounded. He then went to the house of Perry's mother, and, in order not to frighten her, told her that he thought Perry had shot him accidentally. Powell was at the house of Price on the night of the homicide, and was made a witness for the state. (The name of this witness is, in the record: " Manson Powell," at the head of his testimony.) He testified that he was in bed when the shot was fired, but arose, put on his pantaloons, and went out on the piazza, where he found Price, his daughter, and the balance of the family; that he heard Price say, " Oh, yes, I reckon I have got you now; " that he went out to where Perry's body was lying, and found him lying on his right side; that there was a pistol lying on his coat-tail, outside of his pocket. Tharp testified that, shortly before reaching the fence, Perry pulled a pistol out of his pocket, and said, " Mr. Tharp, I have got my pistol; I don't mean any harm by it; " and then put it back in his pocket, that the witness saw no more of it, and that Perry did not have it out at the time of the killing. After showing the pistol, he offered Tharp a drink of whiskey from a flask which he had.

One Weeks, a witness for the state, testified that before the day of the killing, Price's little child had a bullet rolling it about: that Price took it from the child, saying that he did not have any large shot; that " there is somebody creeping around my house of a night, and I will creep into them." Price asked Weeks if that would kill anybody. Weeks inquired who he wanted to kill, and Price replied, " Perry," and told Weeks to tell Perry not to come there any more; and this message was communicated to Perry. The same witness testified that, during the day of the homicide, Perry was at his house and said, " he was going up ahead to see his sweetheart," and when asked whom he meant by his sweetheart, replied, " You know." He also slapped his pocket, and said that he had good news in it. This occurred about sundown. Another witness testified that she thought she saw Perry go to his satchel before leaving home on the Sunday evening before he was shot, and that subsequently she found in this satchel a note, which was put in evidence. It was unsigned, but read as follows:

" Mr. Perry:— I seat myself to drop you a few lines to let you know that I want to see you. I want you to come just as soon as you can come, and carry me home, if you please. If you do, go by the house and take the right-hand at the end of the lane till you go across the branch. When you cross the branch, then stop till I come. I will be there."

Another witness testified to conversations with Price after the shooting, in which he said, in substance, that, on the night of the homicide he lay down on his bed; that he seemed to be restless; got up, lit his pipe, and, going out on the piazza, sat down near his door in a chair; that, after sitting there some little time, he looked around and discovered some person near his house; that he reached up, got his gun, and shot him. The witness who testified to this stated that he asked Price if he was expecting Perry there on the night of the homicide, and he replied that he was expecting him at any time. Defendant also said that he had heard threats made against him. Experts testified that, from the nature of the wounds inflicted on Perry, he could not have had his arm extended at the time of the shooting, but must have been in a slightly stooping posture.

The evidence for the defendant was, in brief, as follows: After Mrs. Perry left her husband and returned to her father's house, Perry published in a newspaper a card, charging that his wife had eloped with Mandel Powell, and had gone to the house of her father; that she and Powell were on terms of improper intimacy, and that her father and mother were cognizant of the fact, and were abetting her in her conduct that, on discovering her absence, he had attempted to see her at her father's, but Price had told him to leave— no one wished to see him; that he had treated her kindly, and had given her no cause for this conduct. This card was dated July 11. On August 3, Perry went into a field, where two nephews of Price were working, for the purpose of seeing one of them, and while there, he threatened...

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7 cases
  • State v. Thornton
    • United States
    • New Jersey Supreme Court
    • October 22, 1962
    ...It informed her that he was 'going over to Camden again with Mr. Hunter, on business connected with the Davis matter.' In Price v. State, 72 Ga. 441 (Sup.Ct.1884), an analogous case, a husband and wife separated, the wife returning to her father's home. Some time later the husband was shot ......
  • The State v. Young
    • United States
    • Missouri Supreme Court
    • January 31, 1894
    ...Co. v. Hillman, 145 U.S. 285; Hunter v. State, 40 N. J. L. 495; U. S. v. Penn. 13 Bankr. Reg. 464; State v. Garrand, 5 Or. 216; Price v. State, 72 Ga. 441; Railroad v. Herrick, 29 N.E. 1052; Schlemmer State, 15 A. (N. J.) 836; Johnson v. State, 15 S.W. 647. (3) The judgment of divorce and a......
  • State v. Young
    • United States
    • Missouri Supreme Court
    • January 31, 1894
    ...Com. v. Abbott, 130 Mass. 472; Com. v. Trefethen, (Mass.) 31 N. E. 961; Insurance Co. v. Hillmon, 145 U. S. 285, 12 Sup. Ct. 909; Price v. State, 72 Ga. 441; State v. Johnson, (Tex. App.) 15 S. W. 647. So, likewise, and on the same grounds, was the evidence of Edward Burblinger competent, n......
  • Warrick v. State
    • United States
    • Georgia Supreme Court
    • March 28, 1906
    ...accompanying the act of starting from the house where he had been, was a part of the res gestae, and was properly admitted. Price v. State, 72 Ga. 441; Johnson State, 72 Ga. 679; Thomas v. State, 67 Ga. 460. 2, 3. A witness for the defendant testified, "He [Robert Sellers, the deceased] sai......
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