Bivins v. State

• Citation: 93 S.E. 213,147 Ga. 229
• Decision Date: 18 August 1917
• Docket Number: 563.
• Parties: BIVINS v. STATE.
• Court: Supreme Court of Georgia

93 S.E. 213

147 Ga. 229

BIVINS v. STATE.

No. 563.

Supreme Court of Georgia

August 18, 1917

Syllabus by the Court.

The evidence in the case was sufficient to authorize the jury to convict the defendant of being an accessory before the fact of the crime of murder.

The court did not err in excluding evidence to show that a certain witness for the state had upon one occasion been guilty of the offense of carrying a concealed weapon. Such evidence was not admissible, over timely objection, to impeach the witness.

Error from Superior Court, Sumter County; Z. A. Littlejohn, Judge.

Honor Bivins was convicted of being an accessory before the fact of murder, and he brings error. Affirmed.

See also, 145 Ga. 416, 89 S.E. 370.

E. F Strozier, of Cordele, for plaintiff in error.

Jule Felton, Acting Sol. Gen., of Montezuma, John Allen Fort, Sol. Gen., of Americus, J. B. Wall, Sol. Gen., of Fitzgerald Clifford Walker, Atty. Gen., and M. C. Bennet, of Atlanta for the State.

BECK J.

Honor Bivins was indicted for the offense of being an accessory before the fact of murder--it being alleged that one Luther Stephens did kill and murder T. E. Gleaton, by shooting him with a pistol; that Stephens had been duly tried and convicted of the offense of murder; and that Honor Bivins, though absent at the time the crime of murder was committed, procured, counseled, and commanded said Stephens to commit the murder. Bivins was convicted. He made a motion for a new trial, and it was overruled.

This is the second appearance of this case in this court. A decision reversing the judgment refusing a new trial after the first conviction is reported in 144 Ga. 340, 87 S.E. 285. The judgment in that case was reversed, because a majority of the court was of the opinion that, in view of the entire record, including the certificates and statements of the presiding judge in certifying the motion for a new trial and overruling it, and in view of the grounds thereof, the defendant had not had a fair and impartial trial, and that the motion for a new trial should have been granted.

The conviction in the present case, as in the former case, rests very largely upon the testimony of the principal, who actually committed the murder, and who was duly executed in accordance with the sentence of the court; but some time before he was executed he made a statement connecting the defendant in the present case with the commission of the crime as an accessory before the fact, and this statement by agreement was introduced as evidence by the state. This statement was in part as follows:

"He told me that Mr. Gleaton tried to have that girl, or Essie, and told me that any man that tried to have a colored girl ought to be killed, and he would be willing to help kill him, and I told him I wasn't; and he said he knowed I wasn't, because I didn't have sympathy enough to hold up for my race; and he told me to go over there and kill him, and told me to look in the drawer and get his pistol, and go over there and kill him, and I done it. When I come back, I give him his pistol and he unloaded it, and then I took and told him to carry me off, to take the buggy and carry me off, and he wouldn't do it; and I asked him to let me ride one of his mules, and he went out to the lot and got it, and told me to ride it as far as I wanted to; and I did. He told me that he could get the mule back by describing it."

Subsequently to the making of this statement, and on the day of his execution, Stephens made another statement directly and circumstantially contradicting his first statement, in which he declared that Honor Bivins was not connected with the commission of the crime. This latter statement was introduced in evidence by the defendant. The jury returned a verdict of...