Betts v. The State Of Ga.
| Decision Date | 28 February 1881 |
| Citation | 66 Ga. 508 |
| Parties | Betts. vs. The State of Georgia. |
| Court | Georgia Supreme Court |
Criminal law. Continuance. Evidence. Witness. Practice in the Superior Court. Indictment. Jurors. Before Judge HILLYER. Clayton Superior Court. September Adjourned Term, 1880.
Betts was indicted for the murder of H. J. Moore. Upon the call of the case he moved for a continuance, which was refused. He then pleaded in abatement that the foreman of the grand jury who found the true bill had been a member of the coroner's jury who found that Moore came to his death at the hands of this defendant, and that the killing was murder. The plea was overruled and the case proceeded to trial. The evidence for the state was to the following effect: On October 28th, 1880, Moore, who lived in the country, went to town and sold some cotton, receiving four twenty dollar bills and one ten, including some silver certificates. On his way home Betts was seen following his wagon and a short distance behind it. Moore drove into his lot and began unhitching his horses. Betts was seen to go toward the lot, then go to the wood-pile and return to the lot with a maul on his shoulder, and shortly after to leave the lot. Within a few minutes Mrs. Moore, seeing the horses standing partly unhitched, went to the lot and found Moore lying on his back, with his skull crushed, his shirt bloody and his hat knocked between the feet of the horses. His head had evidently been crushed with a blunt instrument, and near his head lay a maul. He died in a few minutes afterbeing found. A short time afterward, on the same day, the sheriff followed defendant, and on coming up with him called to him. Defendant started toward the sheriff and threw behind him some money, which proved to be $131.00, including four twenty dollar bills and some silver certificates. Upon being questioned about it, he denied all knowledge of it. After being arrested, he told the sheriff that he would tell him all about it when he felt better, but never did so. While in jail, a fellow prisoner heard him pray, and in the course of his prayer he said that he was sorry that he had hurt the old man, as he had gotten into trouble about it.
The evidence for the defense was mainly to show that the prisoner had money amounting to over $100.00 before the homicide, and did not obtain that found on him from the deceased; also to show that the prayer of the defendant, testified to by a witness for the state, was not heard by other prisoners near by in the jail.
The jury found the defendant guilty. He moved for a new trial, which was refused, and he excepted.
For the other facts see the decision.
W. W. Black; J. S. Boynton; W. W. Gay, for plaintiff in error.
Clifford Anderson, attorney general; B. H. Hill, Jr., solicitor general for the state.
Thomas Betts was, at the September adjourned term, 1880, of Clayton superior court, indicted for the offense of murder.
The indictment charged him with having, on the first of November, 1880, with a large maul and other instruments likely to produce death, killed and murdered one Hilliard J. Moore, in said county.
When the case was called for trial the prisoner made a motion to continue his case for the absence of Leonard King, Colley Freeman, Annie Smith and Kittie Smith, all of whom resided out of Clayton county, and made a showing what he expected to prove by said absent witnesses. Officers were despatched for said witnesses and the decision on the motion postponed. Two days after, one of the witnesses appeared, and the solicitor general and counsel for the prisoner then entered into a written admission of what the other absent witnesses would testify to, the solicitor general agreeing " not to controvert the truth thereof." In an hour or two after the trial began the absent witnesses appeared in court, and the solicitor general asked permission to withdraw his written contract as to what the absent witnesses would testify, which the court allowed, and prisoner excepted.
On the arraignment of the accused, he filed a special plea in abatement to said bill of indictment, alleging " that James Waldrup, the foreman of the grand jury, who found and preferred said bill, was a member of the coroner's jury which sat to inquire into the cause of the death of deceased, Moore, and said jury had returned a verdict that deceased came to his death by the hands of accused, and the act was murder, and that for this cause, Waldrup was not a competent juror, and that he ought not to be compelled to plead to said indictment." The court overruled said plea.
Counsel for prisoner then demanded that all of the witnesses for the state should be sworn and separated from each other during their examination. When Tigner and Bishop, two of the witnesses for the the state, were, during the trial, offered, prisoner objected because they had not been placed under the rule, as demanded by counsel, and separated from the witnesses testifying. The objection was overruled and witnesses sworn.
Under the evidence submitted and charge of the court, the jury found the defendant guilty of murder, whereupon his counsel made a motion for a new trial,
I. Because the court overruled the motion for a con-tinuance on account of the absence of the four witnesses named, and when the witnesses appeared allowed the solicitor general to withdraw his consent to the written statement of what he had admitted they would testify to.
2. Because the court erred in admitting the testimony of Scott Archer about the prisoner's having money at the time of his arrest, and of his having, at the same time, attempted to conceal the fact by throwing it off his person, there being no evidence that the money belonged to the deceased.
3. Because the court erred in allowing the witnesses, Tigner and Bishop, to testify over the objection of defendant, they having remained in court and heard the testimony of the other witnesses in violation of the request made at the opening of the case.
4. Because the court erred in admitting in evidence, over objections, a plat representing the scene of the homicide, and also a maul, bloody shirt and hat, because none of them illustrated the issue on trial.
5. Because the court erred in admitting the testimony of Andrew Murphy, over objection of counsel for defendant, who testified " that Nash (a witness) said to him (witness) he was going to listen at what defendant was saying, and after he had listened, came back and told said Murphy that the defendant had said 'he was sorry he had knocked the old man in the head, for he had got into trouble about it.' "
6. Because the court erred in overruling the plea filed by the defendant objecting to the competency of Waldrup, the foreman of the grand jury, who returned the bill on the ground that he was on the coroner's jury who had returned a verdict that deceased had come to his death at the hands of prisoner, and that the killing was murder.
7. Because the verdict is contrary to law, to evidence and weight of evidence.
I. We see no error in the judgment of the court, refusing the continuance. The court gave time to defendant...
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