Burns v. The State Of Ga.

• Decision Date: 31 August 1878
• Citation: 61 Ga. 192
• Parties: Burns et al. v. The State of Georgia.
• Court: Georgia Supreme Court

61 Ga. 192

Burns et al. v. The State of Georgia.

Supreme Court of the State of Georgia

(August Term, 1878.)

Criminal law. Confessions. Before Judge Tompkins. Screven Superior Court. May Term, 1878.

Burns et al. were indicted for murder. On the trial, the evidence for the state was, in brief, as follows: Deceased went to the house of V. H. Burns late one Saturday night in December, 1877; the two had been to the store of the latter, and returned late. The two defendants were in the employment of V. H. Burns, and slept in his kitchen. He invited deceased (McKinny) to eat and stay all night; but the latter declined. He went to sleep while McKinny was eating. In the night B. woke up and saw deceased lying on the floor; did not see any blood. Next morning when he *woke up deceased was gone.

There was a good deal of blood about the room and also outside the house. A sword, which was used about the farm forstripping cane, was left sticking in the ground on Friday; on Monday it was found lying near the cane patch. On discovering the blood on the floor, B. called defendants and told them to clean it up. He again went to sleep; when he awoke his pockets had been picked; defendants afterwards confessed doing this, and a part of the money had been returned. On Saturday night deceased had some whisky about him. Early Sunday, about daylight, deceased went to the house of one Thompson, about 600 yards from where Burns lived; he was bloody; he was drunk at the time, and was given more whisky afterwards, his injury not appearing as bad as it was. He had a gash on his temple; he fell into a comatose state, and died from the effects of the wound. Defendants have confessed to killing deceased with the sword, for the purpose of preventing his seeing them rob Burns.

Defendants' evidence showed that they were respectively twelve and fifteen years of age; that their confessions, though afterwards repeated, were wrung from them in the first instance by the crowd who had arrested them, by the use of tortures of worst kind—the least of which were whipping and pouring hot coals on defendants' heads; and that threats of death were made if they did not continue to make the same statement.

The jury found defendants guilty. They moved for a new trial on the following, among other grounds:

1. Because evidence of what deceased said on the morning when he was wounded as to how he was injured, was rejected.

2. Because the verdict was contrary to law and evidence. The motion was overruled, and they excepted.

Mathews & Oliver; J. C. Dell, by Z. D. Harrison, for plaintiff in error, cited as follows: Verdict contrary to law. *etc. 43 Ga., 256; 56 Ib., 630. On confessions, Code.

§ 3793; 11 Ga, 226; 55 Ib, 136; 52 Ib., 106, 527; 42 Ib., 256; Code. § 3792. On res gestæ, Code, § 3773; 32 Ga, 672; 27 Ib., 288; 11 Ib, 621.

R. N. Ely, attorney general; James K. Hines, solicitor general, for the state, cited, on confessions, Code, §§ 3792, 3793, 3747, 3770, 3773; Hopkins' Penal Code, §§ 557, 565, 569; 21 Ga, 227; 53 Ib, 570; 50 Ib, 249; Hopkins, §'§ 378-380, 525.

Warner, Chief Justice.

The defendants were indicted for the offense of murder, and upon their trial therefor, were found guilty. A motion was made for a new trial, on the grounds therein stated, which was overruled, and the defendants excepted.

It appears from the evidence in the record, that deceased most probably received the injury which caused his death at the house of V. H. Burns, on Saturday night, or early Sunday...