Buttersworth v. State
| Decision Date | 15 November 1945 |
| Docket Number | 15278. |
| Citation | 36 S.E.2d 301,200 Ga. 13 |
| Parties | BUTTERSWORTH v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A defendant being tried for murder, has a right to have the jury kept together throughout the entire trial of his case however, he may waive this right. Where the accused in such a case, before its submittal to the jury, agreed through his counsel, at a private conference between the judge, the solicitor-general, and all of his attorneys, that the jury might be dispersed for the night under instructions from the court, which were given, he will not be heard, to complain for the first time after verdict, and on his motion for new trial, that the consent for the dispersal was given because the trial judge, at such conference, stated, 'If you are not willing for me to disperse the jury, I will complete the trial tonight.' This statement, made in these circumstances, does not amount to such duress as will relieve the accused from the consent so given.
2. Where photographs and physical evidence (two shotguns) are introduced in evidence, by the State, an instruction 'You take the law as given you in charge by the court the evidence from the sworn facts in the case, and the defendant's statement, and from the law so given and the facts thus ascertained, you as honest, conscientious, fearless, and impartial jurors, ascertain the truth of this case and let your verdict honestly and courageously speak it'--is inaccurate but, when considered in connection with the further and later charge,--'Now, gentlemen of the jury, you take this case and apply the rules of law to all of the facts and circumstances, including the defendant's statement,'--is not erroneous on the ground that it only submitted to the consideration of the jury the sworn facts in the case, and excluded the exhibits, and had the effect of withdrawing from the consideration of the jury the oral testimony of witnesses for the defendant concerning such evidence. Standing alone, the except would be subject to the attack made, but when aided by the further charge becomes no longer amenable to criticism. A charge, torn to pieces and scattered in disjointed fragments may seem objectionable, but when put together and considered as a whole, may be perfectly sound.
3. A motion for new trial based upon the ground of newly discovered evidence is addressed very largely to the sound discretion of the trial judge, and his action will not be controlled by this court unless it is abused. It is not an abuse of that discretion to overrule a motion for new trial based upon the ground of newly discovered evidence which, by the exercise of ordinary diligence on the part of the accused or his counsel, could have been discovered before his trial, or upon evidence which has no probative value except for the purpose of impeachment, or upon evidence which would not likely produce a different verdict should a new trial be granted.
Elmo Buttersworth was convicted in the superior court of Johnson County for the homicide of Hilton Pope and sentenced to serve a life term. The defendant excepted to the overruling of his motion for new trial on the general grounds and three special grounds.
The killing occurred at the home of the deceased, where the defendant (a son-in-law) and his wife also resided. At the trial Gladys McTier, a married daughter of the deceased, testified for the State: That he and his two sons-in-law (Elmo Buttersworth and Junior Souls) returned from Scott, Georgia, to the Pope home at from 12 to 12:30, on the night of the homicide; they were all drinking--Junior Souls being so drunk that he could not walk and could hardly talk. The deceased came into the house to change hats; the defendant then came in and told his wife that he was going off some place; all three of the men then left the house, got in the car, and were in the act of leaving when the witness told her father to get off the car, which he did. The defendant and Souls became angry with her, began to curse her, and ran back into her house, throwing tire tools or something at her. Looking back as she entered the house, she saw the defendant and Souls fighting each other; she was in the house for only a short time; a small sister, Pauline, ran through the house and screamed, 'Look out, Gladys, Elmo is going to shoot you.' The witness then left the house by way of the kitchen door, going out back of the house; about that time she heard a gun fire in front of the house, and in a few minutes was told that her father was lying out there dead. She came around the house, saw her father there on the ground, and asked her mother, who was standing in the yard, if she wanted her to get a doctor. The mother replied, 'Yes,' and at this time the defendant grabbed the witness by the collar and said: When she went to her father, she went within three steps or nine feet of him; the moon was shining bright, she could see plainly, but saw no gun by him. She then started off for help, and the defendant caught her and said: The defendant then went back toward the house; she then went to the home of Mr. Foskey for help, and the defendant, traveling by automobile, reached there about the time she did.
Pauline Pope, also a daughter of the deceased, testified: That she was nine years old and had gone to school five years; she was at home the night her father was killed by Elmo Buttersworth; she thumbbolted the door to the front room when her father told her to because Elmo and Junior were coming in fighting; Elmo kicked the door open, went to his room and got his gun; her father was in the house then. She told Gladys to run, they ran to the chimney back of the house, and in about five minutes she heard the gun shoot; then she went around where her father was, getting about two steps from him. She could see him, he was lying down; she did not see a gun by him; it was a moonlight night, and if there had been one there, she could have seen it. She did not see Elmo when she went around where her father was, and did not recall whether the truck was still in the yard or not.
Emma Pope, an unmarried daughter of the deceased, testified for the State: That she was sixteen years of age; she was standing by the door on the front porch when Elmo shot her father; her father was standing up in the front yard with nothing in his hands; Elmo had a gun and bent over a chair and shot her father; Elmo stood there a few minutes and then came down where her father was and bent over him; she could not say that he touched him; she did not see her father with a gun. Elmo knew that she was there on the porch, and when he started in the house he pushed her over against the side of the door. On cross-examination she stated: that she did not testify at the previous hearing that her father had a gun out there that night; and that the first time she went out there she did not go close enough to see whether the gun was out there or not--she wasn't looking to see what was out there. On redirect examination, she testified: That, when she went out the second time she could see her daddy lying out there, the moon was shining, and she didn't have any trouble seeing the gun; but the first time she did not go close enough to see whether the gun was there or not. When her father was shot, he was in the yard and had started around the house; Elmo had just come out of the house; she did not know what Elmo had shot, she could not see her father when he was shot.
Mazie Pope, also a daughter of the deceased, testified for the State: That her mother was standing in front of the front door, and Elmo told her to get out of the way or he would hit her, and she told him to act with some sense. About the time she stepped back, Elmo kicked the door open and went into his room, and she heard him rumbling in the dresser drawer. He 'hollered' for Gladys to bring him the light; Pauline told Gladys to run, and they ran around the house, and in about four minutes heard the shot. In about two or three minutes they went toward the front, and Elmo ran out to Junior Souls and said, 'That is a Lord's blessing,' but she did not know what he meant by that. She went back and stood two or three feet from her father, saw a shape lying there, but could not see him plainly; she could not see a gun if one was there; she never did see one there. She and Gladys then started up to Mr. Foskey's, and Elmo met them 'a little piece above the mail box,' caught Gladys by the collar, and told her she was not going anywhere, and said, 'I done it,' and he would take it on himself; then Elmo went back to the house; they got to Mr. Foskey's just as Elmo drove up. Her father had one shell loaded with buckshot, and that was the only one he had that they knew of; her father kept his shells in his trunk, and said all along that the shell loaded with buckshot was the only shell he had; he always used Gladys' gun; she didn't know how many shells he bought in Scott, Georgia. He went to Scott that afternoon; the witness did not know what he got at Scott; Gladys had a 20-guage shotgun, and that was the gun her father always used when he went hunting; he said he used Gladys' gun because he did not have any shells.
Mrs Hilton Pope, the widow of the deceased, testified for the State: That she was at home the night Elmo Buttersworth killed her husband; she lived in Johnson County, and her husband was killed at their home. She was lying on the bed when the car came up, and got up and started to the door when Hilton, her husband, was coming in, and he told her to take his hat...
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