Cobb v. The State Of Ga.

• Decision Date: 31 March 1859
• Parties: John Cobb, Junior, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

27 Ga. 648

John Cobb, Junior, plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

MARCH TERM, 1859.

Murder, in Fulton Superior Court. Tried before Judge Bull, at October Term, 1858.

The following is the bill of exceptions, upon which this case was heard, and which with the opinion delivered by the Court, contains all the facts necessary to a full understanding of the points adjudicated.

Georgia, Fulton County:

Be it remembered, That during the October Term, eighteen hundred and fifty-eight, of the Superior Court of said county, his Honor Orville A. Bull, Judge of said Court, presiding, the case of the State of Georgia vs. John Cobb, Jr., being an indictment for murder, was called, and with consent of parties, set down for trial on a given future day in said term; after which his Honor, the presiding Judge, advised the Sheriff to cause the different constables of thecounty to summon a large number of persons, qualified to serve as jurors, living outside of the city of Atlanta, and in remote parts of the county, and have them at the court-house on the day appointed, in order that a jury might be had, which the Court thought otherwise impossible. This suggestion was given to the Sheriff, and notice of it was not communicated by the presiding Judge to the defendant, or his counsel, in time to enable them to urge it as a cause of challenge, because the Court had no doubt, and has none now, that the counsel knew it at the time the jury were empaneled. When the day of trial arrived, many of the persons so summoned by the constables, being in attendance under the above named order, were put upon the defendant as tales jurors, though not until after having been selected as such from among the by-standers, by the Sheriff, under the usual order from the Court, given at the time, directing him to take whom he pleased from the by-standers at large; and the panel was made up from the by-standers at large. To this mode of bringing in, summoning and selecting said tales jurors, and to the first above mentioned order and instructions of the Judge to the Sheriff, and through him to the Constables, the defendant excepts and assigns the same for error. No objection being intimated at the time of empaneling the jury, and no evidence offered afterwards that the defendant and his counsel did not know a fact so notorious.

From said tales jurors and others, and from the regular panels, a jury was impaneled and sworn to try the prisoner, when the following evidence was introduced, under the circumstances, and objections hereinafter detailed, to wit:

The State first introduced James Hill, who, being duly sworn, testified as follows: He was coming up the McDon-ough road about three miles from the Court-house, Mr. Little and Mr. Gammon hailed to witness, and said, there was a man in a bad fix; witness got out of his wagon, went down to the body of the man; tried to get him to speak but he could not; made an effort to do so; left him; then came onback to the road, making search if they could find any weapons. In doing so, saw where he had been dragged over leaves and bushes and a couple of poles; got to the edge of the road, a little boy was with them. The boy was looking about, saw a leather string; caught hold of it; pulled it up out of the leaves; a slung-shot was fastened to it. Witness took hold of the ball and looked at it; handed it to some other person. Told Mr. Little and Mr. Gammon to remain there; W. came on to town after the coroner and physician. This was on the 8th day of April, 1858, in the county of Fulton; the body was 30 steps from the slung-shot and near the track where the body was dragged; did not examine the slung-shot very particularly; thinks he would know it if he were to see it; the one exhibited in Court is the one found there on that day. The condition of the deceased was very bloody; his mouth was full of blood; his head was very bloody; saw a vehicle thereabouts next day on the opposite side of the road—one-horse—no animal to it. It had formerly had a top to it, which was sawn off; did not know the deceased; his age was about sixty years; had on home-made, woolen clothes; the deceased lived from Thursday evening until Monday morning; it was between four and six o\'clock; W. went to the place where deceased was; the vehicle was a carry-all and about a hundred yards distant from the road. This was on the McDonough road; you go out McDonough street to get in said road. Mr. Litle\'s brick-yard is on the right hand side of the road; it is on a direct route to the place where deceased was found. The brick-yard is about a mile from town. This brick-yard is two and a half miles from the place where deceased was found. Geo. W. Mobb\'s house is on the road you go from Atlanta to the scene of the killing. His house is about a mile from the place where deceased was found.

The State next introduced Josiah Gammon, who being duly sworn, testified as follows: Witness and his wife were in town; started home, and as they went on saw Mr. Little;he and a negro man about starting down the road; W. and wife stopped a while and went on with them; got down to witness\'s house. Hutchins, Little and W. went on down the road to where deceased was; when they got there he was lying on his side rather; saw Mr. Hill and his wife coming up the road; said to him there was a man in a bad fix. Mr. Casey and family came up; they were looking around; Mr. Casey\'s little boy picked up a slung-shot; said, what is this? The parties present concluded to send Mr. Hill on to town after the coroner and doctor; soon after he left several came up. Mr. Garrison sent to the house, got some rags and water and washed the dry blood out of deceased\'s mouth. He was moved to the house of Mr. Aaron Garrison. It was on the 8th day of April, 1858, on Thursday evening; thinks the sun was about one and a half hours high; it was in the county of Fulton. The slung-shot was found about twenty-five or thirty steps from the body of deceased; thinks he would know the slung-shot if he were to see it; thinks the one exhibited in Court is the same one found near the body of deceased. It was about twenty-five or thirty steps from the road where they found deceased. The slung-shot was found near the road-side and near the place where it was found, was some blood found on the leaves; knows where the brick-yard is, near Mr. Little\'s. There is a house between the brick-yard and Mr. Little\'s; some one was living in it at the time. These points are all on the McDonough road; you go out McDonough street to get into said road in going out from town.

Cross-Examined.— It may he nearly one-fourth of a mile from where W. and Little left the negro, to where deceased was found. It was woods all the way down from the road to where they found deceased; did not see the negro after leaving him until nearly dark. From the time the negro left witness until Hutchins told him of the condition of deceased was about thirty minutes; the negro was going in the direction where the body was found; it was a negro man; thinksit was about two miles from the brick-yard to where the body was found. W. thinks widow Cole lived in the house between the brick-yard and Mobb\'s; thinks it was about a mile from Mobb\'s to where the body was found. The negro was on his way for wood at the time W. left him.

The State next introduced Lawrence Hutchins, who, being duly sworn, testified as follows: Joseph Gammon, Mr. Little and W. were together when they found the body. Mr. Little's black man first told W. about the body. Mr. Little, Gammon and W. went to the place where the body was; the body was about twenty-five or thirty steps from the road; was not acquainted with him; he was badly hurt; did not see any carriage about there that day or the next; saw a slung-shot; was not there when it was found.

Cross-Examined.— Witness was about a half mile from where the body was found.

The State next introduced Dr. Willis F. Westmoreland, who, being duly sworn, testified as follows: He was the physician who attended Mr. Landrum; saw him first in the road near where he was murdered; saw him next at Mr. Garrison's saw many wounds upon him; had several wounds upon the head, some eight or ten; his skull was fractured; broken probably into twenty pieces; he was able to speak when W. saw him, but was not rational; he lived from Thursday evening until Monday morning after. Blows upon the head caused his death. He died at Mr. Garrison's in this county; was first called to him on Thursday, somewhere about 1st of April, 1858; sometimes he would speak and give his right name and then some other. He was not rational; was not acquainted with him before. The wounds were inflicted with a blunt instrument; one of the wounds seemed to be bruised; inflicted with an instrument, bruising with contusion around it; the other was lacerated—torn. (The slung-shot was here presented.) Thinks it would cause such wounds; a number of the wounds must have been inflicted with a round instrument, breaking the skin only inone place in the center and contusion immediately around; saw the deceased\'s coat; it was a short coat with pockets in the side; thinks it was a sack made of yellow or brown jeans; no other garments W. can describe. W. got to the wounded man after dark; the blood was dry on his clothing; thinks it would require several hours to dry as it was.

Cross-Examined.— Thinks he left town about deep dusk to go out; the deceased gave his name several times Samuel Landrum; could not say from the condition the deceased was in when he saw him, when he was wounded.

The State next introduced Silas B. Kent, who, being duly sworn, testified as follows: He is acquainted with John Cobb, Jr.; witness was working at Mr. Williams' brick-yard 1st of April, 1858. It is outside of the incorporation on McDonough road; was working there the time Mr. Landrum was killed; heard of his death the day after it...