Caldwell v. The State Of Ga.

• Decision Date: 30 November 1864
• Citation: 34 Ga. 10
• Court: Georgia Supreme Court
• Parties: J. A. Caldwell and others, plaintiffs in error. vs. The State of Georgia, defendant in error.

34 Ga. 10

J. A. Caldwell and others, plaintiffs in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1864.

Indictment for Aggravated Riot, in Fulton Superior Court. Motion for new trial decided by Judge Bigham. April Term, 1864.

By consent of parties, this case, at the last Term of the Supreme Court, held at Atlanta, to which the writ of error was made returnable, was set down for argument and decision at the present Term at Milledgeville.

Caldwell and twelve others were charged in the same indictment with the offence of aggravated riot, committed, as was alleged, on the 10th day of February, 1864, in the county of Fulton, by breaking Wesley G. Collier's dwelling house, and shooting with guns into the same, and into his beds and bedding and at Collier himself.

The indictment was found at April Term, 1864; and du-ring the same Term, the case being up in it\'s order, Caldwell and ten of his co-defendants, having pleaded not guilty, announced ready for trial, and moved the Court to be allowed to sever and be tried separately; which motion was overruled, and they were put upon trial and tried jointly.

At the proper stage of the proceedings, they requested the Court, in writing, to charge the Jury, that if the assembly of the defendants was legal, any subsequent unlawful conduct would not make them guilty of riot. This charge the Court refused to give.

A verdict of guilty having been returned, they moved for a new trial on the ground that these two ridings of the Court were erroneous, and because the verdict was contrary to the charge of the Court, contrary to law, and contrary to the evidence and to the weight of the evidence. A new trial was refused, and they thereupon brought a writ of error to the Supreme Court, where two points only were argued, the others being abandoned. The points insisted upon were, that the defendants had a right to sever and be tried separately, and that the verdict was contrary to the evidence.

The case made by the evidence was substantially as follows:

Maj. George W. Lee, a military officer of the Confederate States, attached to the bureau of conscription, and acting under orders from the Secretary of War, had under him a battalion of six hundred and eighty-three men. His duty was to arrest deserters and stragglers, and to enforce the laws ap-pertaining to conscription. His headquarters were at camp, two miles from Atlanta, and the forces under his command were stationed at various points throughout the State. On the 10th of February, 1864, over one hundred of his men were at Atlanta—among them the defendants in this indictment— all of whom were members of the same company, and were of good moral and military character, quiet, orderly, and well behaved, not given to drinking, frolicking, or any thing of the kind. They were all young men—all except one or two entered on the roll as under eighteen years of age—andfor merit as soldiers, they were, for young men, exceptions in Maj. Lee\'s camp. Caldwell was a first lieutenant, and stood high as an officer, soldier, and gentleman—was of good moral character, and not in the habit of swearing or getting intoxicated.

Some gentlemen residing in the neighborhood of Buckhead, a locality six or eight miles from Atlanta, called on Maj. Lee for assistance to arrest a band of robbers and thieves, supposed to be deserters, committing depredations in that vicinity. In response to the call, he issued a written order to Lieutenant Caldwell, instructing him to detail twelve picked men, with two days rations and fifteen rounds of ammunition, and proceed to the neighborhood of Mr. Wash Johnson's, beyond Buckhead, and arrest all such persons at the hazard of their lives and his own. The order charged him to be prompt and prudent, and after crossing Peachtree creek, to inquire at every house where information might bo obtained touching the whereabouts of the characters he was in quest of. It directed him, also, to report all his proceedings to Maj. Lee's headquarters.

This order bore date February 10th, 1864, and was delivered to Caldwell at Atlanta, in the afternoon of that day. At the same time Maj. Lee cautioned him verbally, to be very particular not to let any man between 18 and 45 years of age escape, and repeated the injunction respecting promptness and prudence.

In Fulton county, five miles from Atlanta, on the Peach-tree road, the road to Buckhead, was the residence of Wesley G. Collier. It was the first house beyond Peachtree creek. At about 8 o'clock on the night of February 10th, 1864, Collier, a man forty years old, with his family, consisting of four children, the eldest fourteen, and the youngest between three and four years of age, was sitting by the fire in one of the front rooms of his dwelling. A servant girl was spinning upon a wheel in the same room. The moon had gone down, and though the stars shone, the night was tolerably dark. The house was unlighted except by the glow of some coals, the remnant of a fire almost burned out. The doors were closed and locked; and Collier was about retiring to rest, having for that purpose laid aside his hat and taken off his shoes. Some persons hailed in front of the house, and said they wanted water. He ordered a boy to carry some water to them. Several men had now come into the porch. Hearing knocks at the door, he demanded, "What do you want?" " To come in, " was the answer; and this was followed by the question, " Is your family at home, " to which he answered in the affirmative. They exclaimed, "raise the windows;" and going to a window on the side of the house, commenced pulling at it, saying, " open the door." He told them he would not do it, and to go away and let him alone. They declared they would come in or break out every d—d door and window in the house. Calling for an axe, and exclaiming, " knock the windows out, " they passed from the side to the end of the house, and knocked all the lower sash and glass out of one window, and nearly all out of another. These windows were on cither side of the fire place in the end of the room in which Collier and family were sitting when the persons first hailed.

Up to this time they had not told Collier, nor did they afterwards tell him, who they were, where they come from, what their business was, whether they were in search of any person or not, or whether they had any warrant or other process.

The children had now been sent off into one of the shed rooms; and Collier himself, armed with a double barreled shot gun and a small repeater, stood near the partition which separated the two rooms of the main building. The gun was loaded with buckshot.

Upon breaking the windows, a voice cried, " come on boys, we have the d—d rascal now, " and a man leaped into one of the windows. Collier levelled his gun and fired. Some one asked, " Lieutenant, are you hurt?" The answer was, " yes, I am hurt." They then said, "fire! G— d d—n him, fire !" Eight explosions of fire-arms followed, and aboutthat number of ounce balls and large buckshot were found, on subsequent inspection, to have entered the building. Some came in from the east, others from the south; one or more passed clear through the house; some perforated the beds; one struck just above the children\'s heads, where they were crouching in the back room; one pierced the partition just behind Collier; one hit the broach on the wheel, knocked off the spindle, hurled it against the side of the room, and drove it into the wall.

Some of the crowd outside having called for fire, and said they would burn down the house, Collier, after instructing his children how to effect their escape, left the house by the back door, and ran towards the woods. In going a distance of some twelve steps, he was shot at four or five times. Streaks of fire darted towards, and passed over him. He saw the guns pointed at him; they were but ten or twelve paces off. Gaining the woods, he ran into them; then turned and came back in rear of the garden, where he stopped and stood until he heard the crowd leave his premises. They took his buggy away with them.

"When they were gone, he sent a message to his brother, requesting him to go to town and gather up a force to meet and arrest them. His brother went to Atlanta and communicated with Mr. Jones, the city Marshal. Jones, with two Policemen, some time after ten or eleven o'clock the same night, moved out on the Peachtree road. About two and a half miles from the city they encountered a sentinel posted not far from a large fire in a lane. The sentinel challanged; explanations followed, and Jones passed on to the fire. Before the fire lay a wounded man, shot in the bowels, and apparently in great pain. With him was a party of probably ten or fifteen men, having guns and the accoutrements of soldiers. One of these was Lieutenant Caldwell. A buggy, also, was there.

A conversation ensued, in which the party gave the following account of themselves and their proceedings: They said they belonged to Col. Lee's Battalion;that Lieutenant Cald-well was in command, and that they were out under Colonel Lee\'s orders, for the purpose of hunting up deserters and robbers in the country; that at a house on the other side of Peachtree Creek they called for water, not knowing who lived there, and asked the man to come out, and he would not; that they suspected something wrong—thought him a deserter, and tried to arrest him; that they told him they wanted him to open the door, and he did not; that they tried to get in at the window, and he shot, wounding the man then lying there by the fire. They said the name of the wounded man was Knight; that they had brought him that far in a buggy; that he was suffering so much they could not take him further, and that they had sent for an ambulance. They stated, also, that a Surgeon had been to see him.

While Jones remained with them, which was fifteen minutes, or more, an ambulance arrived, and the wounded...