Coxwell v. The State Of Ga.

• Decision Date: 28 February 1881
• Citation: 66 Ga. 309
• Parties: Coxwell. vs. The State of Georgia.
• Court: Georgia Supreme Court

66 Ga. 309

Coxwell. vs. The State of Georgia.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

Criminal law. Indictment. Evidence. Prisoner\'s statement. Practice in Superior Court. Before Judge POTTLE Wilkes Superior Court. May Adjourned Term, 1880.

Reported in the decision.

F. H. & J. D. Colley; Sims & Shubrick; S. H. Hardeman, for plaintiff in error.

Clifford Anderson, attorney general; Seaborn Reese, solicitor general, for the state.

Crawford, Justice.

John D. Coxwell, Ernest Walker, Newton Nichols and James Blackburn were indicted for the murder of John Turner alias John F. Awtrey in February, 1880. Walkerwas tried and convicted, Nichols accepted a verdict of guilty with a recommendation to mercy, Blackburn became a witness for the state and was pardoned. Upon the trial of Coxwell, the plaintiff in error in this case, he was convicted, and made a motion for a new trial, which was refused, and he excepted.

The leading facts of the case are material to the clear understanding of the errors assigned, and as appears from the record, are about as follows: Turner was shot and killed on the 24th day of February, 1880, as he was passing along a path in the woods, about three-fourths of a mile from Coxwell's house. On the evening of the day before the homicide, the four persons charged were on this same path and with the view of meeting him. Not, however, seeing him, it was agreed, at the suggestion of the plaintiff in error, that to avoid any suspicion resting upon them by their spending the night with him, that Walker and Blackburn should stay at Barksdale's, and only Nichols should go with him. Before they parted, however, Coxwell pointed out the place of meeting and of ambush, to which they were to return early the next morning.

Walker and Blackburn repaired promptly to the appointed place and secreted themselves as directed. Coxwell excusing himself upon the ground of having some work done before he left, told Nichols that he had better go on and meet the others, as they might get tired and leave, and that he would be over soon. Just as Nichols was approaching the place where they were he saw Turner coming down the path, who also seeing him, turned upon him with an order to "halt, '' drawing his pistol and saying, with an oath, that "I'll fix you." At this moment Walker and Blackburn fired upon him from their hiding place, and thirty-eight shot took effect in his back and arm and one in his temple. The three parties then ran, Nichols returned to Coxwell, to whom he told what he knew, when they returned, found the dead body of Turner, carried it to a swamp near by, and from which that night these four persons, in company with three others, carried it to another secret place, where it was buried in a gully and covered with straw, dirt and rocks, the latter of which weighed from five to thirty pounds.

About two months previous to the murder of Turner. Coxwell shot him twice, and then cut him as deeply as he could with his knife, and says that he would have killed him, but was prevented by his neighbors. Turner, soon after this, went over into South Carolina, where he remained about a month, and then returned with the intent, as claimed by Coxwell, to take his life, and of which he lived in continued fear. The cause of this attempt to slay Turner, and of the deadly feud between the parties, was excluded from the consideration of the jury. Thus we have a general outline of the important features of this case and may now proceed in their light to consider the errors assigned.

These, though very numerous, may be classified so as not only to reduce but to elucidate more clearly the legal questions involved.

I. The defendant demurred to the bill of indictment because it did not allege in the language of the Code that the killing was unlawful. Although this particular word is omitted in the indictment, yet it is alleged that these defendants, on a certain day, in the peace of the State then and there being, with certain pistols and shot-guns charged with powder and leaden shot, did then and there feloniously, wilfully and of their own malice aforethought kill and murder the said Turner alias Awtrey, all of which was contrary to the laws of said state, the peace, good order and dignity thereof.

Under the Code, §4628, the indictment is sufficiently technical and correct when it states the offense in the terms and language of the law, so plainly that it may be easily understood by the jury. This not only meets that requirement, but would also be good at common law.

Arch. Crim. Pr. and Pl., 784 and note 1; Black. Com. App. 445; 1 Blackf., 395.

After the demurrer was overruled the trial proceeded, and the accused relied for his defense upon the desperate character of the deceased for violence and blood, that he had cause of a deadly feud with him; that he, the accused, had failed to have the law enforced against deceased; that said deceased, after absenting himself some weeks from the neighborhood, returned to it and sent him threatening messages; that he lived in daily fear of losing his life, and that the death of the deceased was the only security for its preservation.

2. This being the theory and general line of defense, the plaintiff in error complains that the judge erred in excluding from the jury all evidence as to the attempted rape alleged to have been committed by Turner upon his daughter, as well as the consequences to which it led, involving as it did the origin, progress and culmination thereof in the homicide of the deceased. How far the defendant might have supported this theory by the proof is wholly conjectural, but the question is, did he have the right to submit to the jury these facts?

We recognize in its broadest sense the doctrine that after an injury has been consummated there is no principle of law which justifies an act of individual satisfaction or vengeance. If the law itself is not sufficiently punitive it should be made so, and not left to the moderation or the ferocity of...