Cawthon v. State

• Decision Date: 25 May 1944
• Docket Number: 30339.
• Citation: 31 S.E.2d 64,71 Ga.App. 497
• Parties: CAWTHON v. STATE.
• Court: Georgia Court of Appeals

31 S.E.2d 64

71 Ga.App. 497

CAWTHON v. STATE.

No. 30339.

Court of Appeals of Georgia, Division No. 1.

May 25, 1944

Rehearing Granted July 24, 1944.

Judgment Adhered to July 29, 1944.

Syllabus by the Court.

Sam Kimzey, of Cornelia, for plaintiff in error.

Hope D Stark, Sol. Gen., of Lawrenceville, and J. B. G. Logan, of Homer, for defendant in error.

MACINTYRE Judge.

The defendant was convicted of an assault with intent to murder upon Farris Brewer, the sheriff of. Banks County, and his son, Verner Brewer. The defendant then moved for a new trial which was overruled, and he excepted. The testimony of the sheriff and his son was to the effect that they, along with Ernest Mason, were riding in the sheriff's car down the State highway which runs between Baldwin and Homer, Georgia that the sheriff's son was driving the car; that the sheriff was sitting on the front seat beside him; and that Mason was sitting on the back seat; that an unidentified Ford automobile passed them and proceeded on down the highway; that this car was traveling at a lawful rate of speed; that they followed the other car along the public road; that the other car then turned off of the said State highway on to the Middle River Road; that they turned and followed this car within a distance of 40 feet down the Middle River Road for approximately two miles without making any sign for them to stop. After following the car for that distance they pulled up to within 8 or 10 feet of the rear bumper of said car and turned their spotlight and siren on; that the said car went on some 50 to 100 yards before it stopped; that the siren and spotlight were on constantly from that time until they stopped; that during this time the sheriff's son had the spotlight all over and in the said car; that they pulled up on the left of the other car (within 4 or 5 feet alongside of it); that just as their car stopped and the sheriff put his hand on the handle of the door to open it, in order to get out, Flemming, the driver of the other car, ran the glass window down and leaned over the steering wheel; that this opened the way for the defendant, who was sitting on Flemming's right, to get on his knees on the seat and shoot a loaded shotgun twice into their (the sheriff's) car wounding both the sheriff and his son; that the front of the sheriff's car lacked "14 or 15 inches" of being even with the front of the other car, and that the sheriff's son had the spotlight turned on the inside of the other car, when the gun was fired. The sheriff's son who was operating the spotlight said that the defendant was the man who did the shooting, and that Flemming was driving the car. The sheriff said that he had no search warrant to search the automobile, nor any warrant for the arrest of either of the two occupants of the car. The sheriff testified, in effect, that he had drawn no gun, made no menacing gestures, and used no threatening words--that he only wished to question the occupants of the car. "I was not trying to search them. I would have gotten a warrant if they had denied me searching it. I had not gotten out of the car. I had not opened the door. I had not spoken a word." The son testified, in part: "I figured that the man doing the shooting ought to have known that we were officers and not hold-up men. I don't know what they thought. We drove behind them a mile or two and during that time we were flashing the spotlight all around that car and in the car and on the tires and tag. We did not turn the siren on for some distance. I don't know what the occupants of the car thought about whether they were going to be robbed instead of it being officers of the law after them. We had given them no other notice then the blowing of the siren that we were officers of the law; what other notice could we give them?" Ernest Mason, the third party in the sheriff's car, testified that the spotlight on the sheriff's car was being manipulated so as to throw the light on and in the other car, and that he could identify the defendant and Flemming, as being the two persons in the other car, and that the defendant was the man that did the shooting. He also testified that he was in the hospital when the officers brought the defendant in the room, where the sheriff's son was a patient; that he did not remember whether the sheriff's son said that he could not recognize the defendant; that he did not tell them that he recognized the defendant; that they did not ask him, but that as a matter of fact he did recognize the defendant; that he figured that the sheriff would tell them; that it was about the time the sheriff came home from the hospital that he told him that he recognized Mr. Cawthon as the man who shot him. "I did not try to arrest anybody in that automobile. I did not try to search them. I never got out of the car until the shooting." Eugene Hollis, a sergeant for the Georgia State Patrol, testified, in part: "I read a statement to the defendant on trial that was transcribed by me at the dictation of Flemming and signed by Flemming, and which I witnessed, along with Sheriff Bell. I read the entire contents--read it to the defendant, Cawthon." The statement is as follows: "Statement of Louis Flemming. February 12, 1943, 9:10 P.M. Statement of Louis Flemming in regards to Farris and Verner Brewer shooting on February 1st 1943, in Banks County. I came to T. O. Cawthon's home in Franklin County on Monday night about seven or seven thirty p. m., and picked him up and he put his shotgun in my car and we went to Habersham County by Toccoa, Ga. We returned back through Baldwin and turned through Baldwin and turned on the Middle River Road and we turned in this road and about a mile this car pulled up and blowed his siren and we pulled over to the right and nearly stopped and they threw their spotlight in my face and they never got out and we thought that we was being hijacked. So T. O. Cawthon said I will stop them, so he reached and got his shotgun and shot out of the left glass of my car back of me two times into the other car and I did not know who the occupants of that car was. I later learned that this car was occupied by Sheriff Brewer and his son and a man, Mr. Mason.

We left the scene of the shooting and T. O. Cawthon said the sheriff is a good friend of mine. We traveled county roads all of the way, except for about a mile on the Lavonia and Carnesville road and we turned to the right and went near T. O. Cawthon's home and he got out and left me and I then went home and as soon as I got home I took the tag off of my car and layed it up on the plate on the front porch. This statement is being made on my free will and accord without hope of reward. Louis Flemming. Witness A. W. Bell Sheriff, Hall County, Ga., Eugene Hollis, Sergeant Ga. State Patrol, Gainesville, Ga." "When the foregoing statement was read to him [which is the equivalent of saying, I made the foregoing statement, not only in his presence, but to him], Cawthon said: 'What in the hell did you all do to that boy. ***' The statement [by Flemming] was made freely and voluntarily. I transcribed it according to what he told me to put down. I went with Mr. Flemming, then in the presence of Mr. Cawthon and read this to Mr. Cawthon and let Mr. Cawthon read it. Mr. Flemming was present at that time. It had been signed and witnessed at that time. Mr. Flemming signed it twice, once on each page. That (indicating) is his signature there and there. As to what Mr. Cawthon said and did when this statement was read to him, he was sitting on the bed and he grabbed the bed like this and said: 'What in the hell did you all do to that boy?' He was the most nervous man I have ever seen. He was in a perfect jerk all over. He never did deny what was said in this statement." A. W. Bell, sheriff of Hall County, testified: "I had occasion to talk to each of these men several times while they were there in jail. Mr. Flemming made a statement in the presence of Mr. Cawthon as to how this shooting took place. His statement was made freely and voluntarily. This (referring to the paper) is the statement that Flemming made there in jail. After this statement was written out, we sent down and brought Mr. Cawthon up. We brought him up to where Flemming was in my room. The statement was made in my presence. Sergeant Hollis wrote it out. He wrote it out at the dictation of Mr. Flemming. I saw Mr. Flemming sign it. I witnessed it; he signed it on both pieces of paper. We insisted that Flemming read it. The statement was read in the presence of Mr. Cawthon. Flemming's statement was transcribed by Mr. Hollis. This (indicating) is the transcript here. It was read to him, Mr. Flemming, by Hollis, and then he read it, and we sent for Cawthon and Cawthon read part of it and then Hollis read it to him and we was all there in the room. We read it to Cawthon. As I remember, it was first handed to Cawthon, every detail, I wouldn't remember. After Cawthon heard it read he made a statement. He made it freely and voluntarily. He turned to Flemming and said: 'What did they do to you to make you tell it?' Flemming told him, 'you know that's not all of it, that's not near all of it.' Cawthon got as nervous as any man I ever seen, he grabbed the side of the bed and walked over to the side of the window and said: 'If I was to admit shooting an officer, it would be dangerous for me to ride the highways of this county. He did not make any denial of it at that time, that is all he said at that time. Cawthon told me that he and Sheriff Brewer were good friends and he would like to get in touch with him. I talked to Cawthon a half dozen times. He said the sheriff was a good friend of his and he had known him a good while and he could arrange things if he could see the sheriff. I asked...