Cox v. The State Of Ga.

• Decision Date: 30 September 1879
• Citation: 64 Ga. 375
• Parties: Cox. v. The State of Georgia.
• Court: Georgia Supreme Court

64 Ga. 375

Cox. v. The State of Georgia.

Supreme Court of the State of Georgia

(September Term, 1879.)

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[COPYRIGHT MATERIAL OMITTED]

Criminal law. Murder. Continuance. Jury. Witness. Evidence. Res gestae. Charge of Court. Prisoner\'s statement. New trial. Before Judge Hillyer. Fulton Superior Court. April Term, 1879.

Cox was placed on trial for the murder of Alston, alleged to have been committed on March 11, 1879. The indictment *was found on April 3d following, and the case set for trial on the 29th of the same month. The defendant moved in writing for a continuance, because he was advised and believed that he could not then obtain a fair and impartial trial, on account of the great excitement and prejudice against him in the public mind of the people of Fulton county; that this prejudice was engendered in the public mind, and still exists to an "increased extent, " in consequence of partial and ex parte statements made in the public press in said county, which were exhibited to the court. That in consequence of the serious and dangerous wounds received by this defendant, and his close confinement in jail, and by reason of his great mental and bodily suffering, he has been unable to make thenecessary corrections, and meet and overcome this undue prejudice and public excitement, and to confer with his counsel fully in relation to his defense.

Affidavits were filed both for and against the motion, from which it appeared that the excitement in the county did not extend beyond that which would be produced upon the unexpected homicide of any prominent citizen who had many warm personal friends in the community; that whilst defendant was wounded by a shot through the wrist, which also passed through his mouth, carrying away some of his teeth, and imbedding one of the teeth in his tongue, he was by no means in a dangerous condition, and in fact had had many and frequent consultations with his counsel, some of them lasting for hours. It was shown by two witnesses that more than a week before the trial he said he was well, and ready and anxious for trial, and did not want any delay.

The newspaper articles were mainly regrets on account of Alston's death, portraying his many good qualities of head and heart, his desire to avoid the difficulty, his gallant bearing when it was forced on him, and expressive of the deepest sympathy with his bereaved widow and children.

The motion was overruled. (1st ground of the motion for new trial.)

*The defendant pleaded not guilty. When put upon him, he challenged the array of forty-eight jurors on the following grounds:

1st. Because there was no order of the judge of the superior court of this circuit appointing three commissioners to revise the jury list of the county, as required by the statute.

2d. That by the order of Judge Hillyer, entered on the minutes of the court, only one commissioner was appointed for the purpose aforesaid.

3d. That the jury list of said county not having been revised as required by law, the sheriff had no legal authority to summon said panel of jurors, and said array ought not to be put upon defendant.

4th. Because the sheriff did not summon said panel from the body of the citizens qualified and liable to jury duty, but took an alphabetical list of names from the jury list and served them alone.

In support of the challenge, the following order was read from the minutes:

"State of Georgia—County of Fulton:

It appearing to the court that Clinton I. Brown has resigned his position as commissioner to revise the jury box of said county, and said resignation being duly accepted it is ordered that James R. Wylie be and he is hereby, appointed as one of the commissioners to revise the jury list and boxes of the county aforesaid, and said James R. Wylie has appeared and duly sworn and qualified as required by law.

George Hillyer,

December 28, 1878. Judge S. C. A. C."

Upon demurrer by the prosecution, the challenge was overruled. [2d ground of the motion for a new trial.] The evidence presented in brief, the following facts:

The homicide occurred in the office of the treasurer of the state of Georgia, at the capitol building, in the city of Atlanta, at about half-past three o'clock on Tuesday afternoon, March 11, 1879. On the Saturday preceding, defendant received aletter from Calhoun, Alston\'s law partner, requesting him to come to Atlanta at once. He came *in response to this letter, arriving in the city on Monday morning. Defendant had rented a plantation from Gen. Gordon, in Taylor county, where he then was, the latter agreeing to furnish sixty convicts to cultivate it for the term of eight years, for which (the plantation and the convicts), defendant was to pay him annually fifty bales of cotton. Gordon wished to dispose of his interest in the lease of convicts, and to do so had to negotiate with Cox for the purpose of getting rid of his incumbrance. One Walters had been corresponding with Gordon in reference to buying his interest, and came to Atlanta about the same time that defendant did, for that purpose. He had written to Gordon that he would not buy at all subject to defendant\'s incumbrance. Gordon had telegraphed to him on the preceding Thursday, that deceased would leave Washington on Saturday to come to Atlanta, and that he had full authority to transfer his (Gordon\'s) interest. Walters came to Atlanta for the purpose of purchasing that interest. He arrived early Saturday morning, met Alston at the train later in the day, had a ten minutes\' conference with him, and determined to remain over until Monday morning. All three, defendant, deceased and Walters, met in the office of Nelms, principal keeper of the penitentiary, on Monday morning at from nine to ten o\'clock. They discussed the matter of the sale of Gordon\'s interest in a friendly way. Deceased disclaimed any intention of selling defendant out, but stated that he proposed to sell the Gordon interest subject to his incumbrance. On being asked by deceased whether he would not dispose of his interest, defendant replied that be would sell anything in the world he had except his wife and his children, and nobody wanted them. After some conversation the parties separated, and Walters commenced negotiating with defendant lor his interest, desiring to purchase in order that he might trade with deceased. They finally came to an understanding and went off to find deceased, butwhen found, he said it was too late, as he had sold to Howard for $4,000.00, subject to defendant\'s lease. *This was on Monday afternoon. That evening Walters employed D. P. Hill, Esq., to help him make the trade, and the next morning (Tuesday, the day of the homicide), Hill went to the office of deceased, and the latter said that if Howard did not raise the money by twelve o\'clock Walters should have the contract. Defendant and deceased came into the city on the same train that morning, the former having boarded it at Decatur, and the latter at Kirkwood. They appeared perfectly friendly, were seen on the streets of Atlanta walking arm-in-arm, and there was no reason to suppose that there had been any interruption of the intimate relations which usually between them. About half-past two o\'clock, defendant a saloon with some friends taking a drink, when deceased in. Defendant asked him to join them. He declined to drink, but at the suggestion of defendant took a cigar. Defendant said to him that he wished to see him, and they walked out of the bar-room arm-in-arm, and went into the back room of a neighboring barber-shop, on Marietta street, 150 or 200 yards from the scene of the homicide.

Up to this time there was probably no ill-feeling on the part of defendant to deceased, but he seemed excited about the pending trade, fearful lest his interest should be prejudiced in some way, and possibly apprehensive lest what appeared to be an opportune occasion of selling out his lease of, or interest in, the convicts, should be lost.

What occurred in that back room of the barber-shop can only be known through the declarations of deceased and of defendant made in the interval before the homicide, not exceeding an hour, and probably less, the acts of the parties during that short period, and the statement of the defendant on his trial. One of the main grounds of controversy before this court was the admissibility of some of these declarations.

Deceased went from the barber-shop to the treasurer's office, and thence up stairs to Nelms' office, in the capitol, this office being on the second floor of the building. Nelms *upon his direct examination for the defense, testified as to what passed there, as follows: "It was probably three o'clock in the day that Col. Alston came in and asked me for a pistol, and I said mine was at home shot out, and I asked him what he wanted with it, and he said he had liked to have had a difficulty, and I said come in and tell me about it, and he came in and sat down. I asked him who it was with, and he said it was with Ed. Cox, and told me about it."

On cross examination, when counsel for the prosecution asked witness, "What did he (Alston) say?" alluding to the conversation where it was left on the direct examination, it was objected that the declarations of Alston in the absence of the defendant were inadmissible, and also that the evidence sought to be introduced by the question propounded was but a part of a conversation. The court allowed the question asked, and stated that the defense was entitled to all the conversation. [7th ground of the motion for new trial.]

The examining counsel then said to the witness, "state all that conversation, " and the witness answered thus: Deceased said: "Why Nelms, he carried me in to take a drink with him. I took this cigar. (He had a cigar in his hand at the time.) And then he took me into a back room of a barbershop, shut the door and said, 'Bob, I want to see that power of attorney you have to sell Gordon's interest, ' and I...