Cobb v. State, 21578

• Decision Date: 14 May 1962
• Docket Number: No. 21578,21578
• Parties: Preston COBB, Jr., v. The STATE.
• Court: Georgia Supreme Court

Page 231

126 S.E.2d 231

218 Ga. 10

Preston COBB, Jr., v. The STATE.

No. 21578.

Supreme Court of Georgia.

May 14, 1962.

Rehearing Denied May 28, 1962.

Syllabus by the Court

1. Grounds of a motion for new trial not insisted upon in oral argument or by brief will be treated as abandoned.

2. Exclusion of a segment of citizens on account of race or color is grounds for timely challenge to the array of grand jurors and traverse jurors, and in some cases the objection to the grand jury may be interposed by plea in abatement.

3. Objection to the composition of a grand jury must be raised by challenge to the array duly presented before the indictment is returned or plea in abatement filed before arraignment. A like objection to the traverse jury must be raised by challenge to the array at the earliest opportunity the defendant has to avail himself of that right.

(a) If he fails to do so, the objection is waived and can not thereafter be made a ground of a motion for new trial.

4. Where a person accused of a crime is not afforded the opportunity to make appropriate objections to the illegal composition of the grand jury or the traverse jury before indictment or during the progress of the trial, he may raise the issue by motion for new trial or by habeas corpus proceedings.

5. Where the accused has attained the age when he may be legally put upon trial for a criminal offense, but lacks intelligence, experience, or knowledge sufficient to enable him to decide upon whether the waiver of a legal or constitutional right is beneficial to his defense, such waiver may be made in his behalf by counsel appointed by the court to defend him.

6. Where, upon the hearing of an extraordinary motion for new trial in a criminal case, competent evidence is submitted to authorize the conclusion that counsel appointed to defend the accused was capable of raising a particular issue, and did not refrain from doing so because of reasons personal to himself, the findings of the trial judge that the court-appointed counsel was competent and not derelict to his duty in the matter can not be disturbed by this court.

Preston Cobb, Jr., was indicted by the grand jury for the August Term of the Jasper Superior Court for the murder of Coleman Dumas, Sr., on June 1, 1961. On August 16, 1961, he was convicted of the offense charged in the indictment.

The defendant's mother, Leathy Cobb, was a household servant in the home of the deceased. She reported for work on June 2, 1961, at which time she found blood on the back of the rocking chair and on the floor beside the chair. She noticed that the deceased's station wagon was not in the driveway and observed that blood was on the driveway at a point where the station wagon was ordinarily parked. She immediately notified Coleman Dumas, Jr., who informed the sheriff and the deputy sheriff of Jasper County of the situation, and he together with a posse of officers from Jasper County, the adjoining county of Jones and members of the Georgia Bureau of Investigation began an intensive search for the deceased and the person who had driven his station wagon away.

At about two o'clock on June 2, 1961, the deceased's son, Coleman Dumas, Jr., discovered his lifeless body lying in a ditch on the public road leading from the Dumas place to Hillsboro, between Barron Fulton's home and General Fulton's house.

Coleman, Jr., summoned the officers who testified that upon their arrival the body had not been moved. They examined the body and discovered bloody trousers also lying in the ditch. The officers from the G. B. I. gave as their opinion that the deceased had been shot with a .22 cal. rifle in the back of his head. At about 5:30 on the same afternoon the defendant Cobb was apprehended in company with Marshall Tinsley leaving the yard of the colored school in Monticello. The deceased's station wagon was being driven by Tinsley.

Upon interrogation, the defendant gave the officers a detailed account of the manner in which he killed Mr. Dumas, robbed him and spent most of the money he found on the deceased's person. The defendant's mother, who appeared as a witness in his behalf, testified that the defendant was, on the afternoon of the homicide, engaged in helping Coleman Dumas, Jr., put gravel out around a fish pond. The deceased was also, according to her testimony, present. She said that some time before 4:30, the defendant left the Dumas place and shortly thereafter she went home, but did not find him there nor did she see him again until after his arrest.

The defendant in a statement to the officers gave an account of his activities shortly before the fatal shooting until the time of his arrest. He related that 'I got on a school bus about 5:30 and went to Hillsboro and a store there and bought cigarettes; started walking and caught a ride on a truck to a grave yard and then walked almost to the Dumas home; returned to Hillsboro and bought more cigarettes, and caught another ride back to the Church in front of my house, and walked back to Mr. Coleman's house; went across the road in front of his house and sat down 15 or 20 minutes; went in the yard and got a rifle from the station wagon, and sat it beside the door steps at the back door; then I went in the house.

'Mr. Coleman looked around and asked me what I wanted, I told him nothing and walked back out the kitchen door and got the rifle and went back in the house, stood by the table in the kitchen and shot him while he was sitting in the chair in the living room; set the rifle back outside the door, and went back in the house and got him and layed him down on the walk next to the car to open the door; put him on top of the spare tire in the back of the station wagon; then went back by the door steps and got the rifle and put it in the station wagon; came back up the road and turned to the right, came by Beck Coggle's house and up the road by Barron Fulton's house and stopped just around the curve from Barron Fulton's house, opened the back of the station wagon, picked him up and put him in the ditch.

'Threw out a pair of bloody pants in the ditch; he was laying on his back; the right rear tire went flat when I left Mr. Coleman's yard, after I put Mr. Coleman in the ditch, I went back to Bud Maddox's store and changed tires, and borrowed a jack from Bud Maddox and the jack would not work; while I was putting the jack back Marshall Tinsley came by and I got a jack from him, and Marshall helped change the tire; then I followed Marshall, who was driving his aunt's car' to Beck Coggle's house. Cobb then described how he picked up several friends and drove to a beer joint near Round Oak where they purchased beer, cigars and wine. He then related that they went to a girl's house, picked her up and returned to the beer joint where they purchased more beer and played records; returned the girl to her home and Marshall drove to Monticello and the school there, left and came by a store where they conversed with one Jessie Thurman; then let a boy out at Beck Coggle's house; 'then Marshall and I went back to the Turner place about 1:30 in the morning and went to sleep and slept till day break;' left there and went to Macon and turned around at a car lot in Macon and came back through Gray to Eatonton about 9:00 o'clock in the morning; parked close to a white barber shop in Eatonton and went to a store where I bought black pants, blue shirt and shoes and red and black socks; went to a supermarket and got some ice cream; then we drove to Shady Dale, picked up another boy at a store there and started to Monticello, and then went to the colored school; 'got out at the school house, and we started to leave and then they stopped me.'

Cobb stated to the officers: 'when I took Mr. Coleman out of the car, his pocket book fell out of his pocket, I picked it up and put it in the car; on the way to Macon I gave out of gas near Round Oak,' and caught a ride back to Mr. Crutchfield's and bought gas, and then drove back and bought more gas; also bought gas in Macon, and a station at the forks of the Eatonton and Shady Dale road. Cobb recounted exactly how much he spent for gasoline at each place and how much he paid for the shoes, socks, and pants, and the shirt the purchased at Eatonton. He said further: beside 'the $20.00 gold piece, which Mr. Ezell got out of my pocket, I got out of Mr. Coleman's pocket book also $28.00; I took all of his papers out of his pocket book, and put them in mine; I tore up the pocket book and put it in front of the brick store at Round Oak. About 2 weeks ago Mr. Coleman and I went fishing; the next day he asked me if I ate all of the fish; I asked him what fish; then he cursed me after I fed the calves I left and went home; on yesterday which was June 1st, I made up my mind to shoot him; while unloading gravel at the fish pond Mr. Coleman brought up about the fish and told me I had better be careful how I talked to an old man like him, he said he was too old to be playing and that he might blow my brains out at any minute; this was about 4:30 and I made up my mind to kill him; I went to my house and got my brother's pistol, and left the pistol across the road in front of Mr. Coleman's house.'

Cobb said that Mr. Dumas was sitting in the chair with his hat on, reading the Market Bulletin; that he subsequently put the hat in the station wagon; that Mr. Dumas was sitting in the chair with his side turned to the door, and he shot him right over his ear; that he threw the dirty pants out of the station wagon in the ditch when he put Mr. Dumas in the ditch; that he unloaded the rifle, he killed Mr. Dumas with, on the back steps, and threw the hull of the shell off on the left side of the back steps in the grass.

By testimony of different witnesses the rifle was identified, the hat with the holes in it, made apparently by the rifle bullet, was found, the pocket book the defendant said that he took from the body of the deceased...