Douglass v. State
| Decision Date | 14 December 1921 |
| Docket Number | 2829. |
| Citation | 110 S.E. 168,152 Ga. 379 |
| Parties | DOUGLASS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Two grounds of the motion for new trial have reference to the conduct of the jury, after the case had been submitted to them for their consideration, in visiting the grave of the deceased sheriff, for whose homicide the accused was on trial, and also the grave of a former attorney of that county, who had volunteered to assist in the prosecution of the case. It is insisted that the jury held prayer over the grave of the deceased sheriff, and entered into an informal discussion over the grave of the attorney as to his public services, among which was his volunteer assistance in the prosecution of this case. These grounds are more fully set out in the statement of the case preceding the opinion. While there are counter affidavits, each denying in part the truth of the averments upon which these grounds are based considering all of the affidavits pro and con, a new trial should have been granted on account of the conduct of the jury as shown in these grounds.
Another ground complains that after the case had been submitted and the jury were in the room provided for them, and engaged in considering their verdict, numbers of people gathered in the courtyard in sight of the jurors as they came to the windows and one of the number of people gathered in sight of the jury tied a hangman's knot or noose in a rope, and lifted the same in view of the jurors looking out of the windows, and that this was done several times. There are counter affidavits denying in part the facts stated in this ground of the motion; nevertheless the importance of preserving the purity of trials by jury, uninfluenced by outside demonstrations or suggestions, requires the grant of a new trial on this ground.
It is the duty of arresting officers, under circumstances affording reason to believe that their object and official character are unknown to persons whom they seek to arrest, to so inform the latter. Complaint is made in this case that the court failed to instruct the jury upon this principle of law. Had there been an appropriate written request duly tendered, it undoubtedly would have been the duty of the court to cover that principle of law in the charge. Inasmuch, however, as the case must be returned for a new trial, it is not necessary to decide whether the omission, without such a request, is reversible error.
Under the facts of the case, where there was no evidence that the accused was attempting to escape, and where the offense was a misdemeanor, not committed in the presence of the arresting officer, and where the arrest took place at night, and the sheriff, in undertaking to effect the arrest of the accused failed to disclose his official character, and it did not appear either by direct or circumstantial evidence that the official character of the arresting officer was known to the accused, it was error requiring the grant of a new trial for the court to charge the jury as complained of in the fifth ground of the motion, which ground is set out in the statement of the case preceding the opinion and also quoted in the opinion.
Complaint is made that three of the jurors who served in the case were not fair and impartial, because they at the time entertained preconceived and pre-expressed opinions that the defendant should be convicted. Since the case is to be returned for a new trial, and these jurors could not, under any circumstances, serve again, these questions need not be decided. The remaining grounds of the motion for a new trial also concern issues which cannot arise on another trial, and will not be decided.
Error from Superior Court, Walker County; Moses Wright, Judge.
James Douglass was convicted of murder, and he brings error. Reversed.
A. G Catron, sheriff of Walker county, was killed on May 28, 1921; and on the trial for the homicide James Douglass was convicted of murder, without recommendation. The defendant introduced no evidence, but made a statement to the jury. The evidence adduced by the state on the trial, which was practically undenied by the statement of the accused, was, in substance, as follows: On the day before the homicide Catron and W. A. Wardlaw, a deputy United States marshal, were in Chattanooga, Tenn., and there met one Joe Ivans. Catron made a proposition to Ivans, which the latter, when a witness at the trial, explained to be a promise to pay a reward of $25 for each automobile containing whisky caught by means of aid from Ivans, and Ivans said this contract was confidential. Sheriff Catron and Wardlaw on the same day returned to La Fayette, the county seat of Walker county; and that night, after they had separated, the sheriff telephoned to Wardlaw that he had information that there would be a car of whisky at 3 o'clock on Nickajack Gap. This information came over the telephone from Ivans to Catron. Ivans testified that one Headrick came to him and asked if he wanted some whisky, to which he replied in the affirmative; that Headrick introduced him to Douglass (the accused) and Willie Burt; that he "made a contract with Douglass and Burt for 26 gallons of whisky to be delivered" to him (Ivans) at or near Headrick's house in Chattanooga Valley at 3 o'clock the following morning. Ivans did not know Douglass or Burt prior to this time. Ivans "called Mr. Catron over the phone and told him of the arrangements" which he had made with Douglass and Burt, at what time they would be at the designated point, and that they would be in a Ford car. Ivans testified that he gave the sheriff the details as to when and where the whisky was to be delivered to him. Ivans held no official position at this time, but testified that Catron was to give him a commission as deputy sheriff the next day. Ivans resided in Chattanooga at the time these arrangements were made. Ivans also testified as follows:
After the receipt of the information from Ivans and the communication of Catron to Wardlaw a posse was summoned, including the sheriff, the deputy marshal, the sheriff of Catoosa county, and several other persons, occupying two automobiles, who went in search of the persons reported by Ivans. On arriving at or near Nickajack Gap, where Douglass and Burt were to deliver the whisky to Ivans, some one of the posse, looking ahead, saw an automobile with the top down, standing on the side of the road; but at first none of the posse saw any person in or about the car. The moon was shining and cast a shadow on the running board of the automobile. As the posse approached, Catron said, "Boys, what have you got in this car?" or, "Boys, what are you loaded with?" and two men sprang from the shadow on the running board. One of them [Burt] ran away, and as he escaped the sheriff called out, "Don't let that fellow get away." Sheriff Catron at this moment threw his flash light on the other man, and, as a witness testified, "They went together--I don't know which grabbed first--and the shooting commenced, just one right after the other." Other members of the posse ran with their pistols to the rescue of Sheriff Catron, and fired at Douglass as the two men had grappled. There were several shots, and the sheriff exclaimed, In the excitement Douglass escaped, but was afterwards arrested. After the shooting it was discovered that the Ford automobile contained 26 gallons of whisky. Sheriff Catron died of the pistol wounds the following night. He had no warrant, but was undertaking to make the arrest on the information conveyed to him by telephone from Ivans at Chattanooga. It is also admitted by the state that neither the sheriff nor any one in the party told Douglass and Burt that they were officers, or were undertaking to arrest them or to search their car for whisky. The only words spoken to the accused were by the sheriff, as above stated. Ivans testified that in the previous conversation between them Douglass said, "They would be there if the officers didn't stop them;" that Burt said, "if the officers stopped him, he would run," but Douglass said, "if the officers stopped him, all he was to get his eye on the man that tried to stop him." This statement attributed to Douglass is denied in one ground of the motion for a new trial, based upon newly discovered evidence, where Headrick and Burt swore that Douglass did not make the statement attributed to him. In his statement during the trial Douglass admitted the killing, but denied any knowledge of the purpose and object of the posse when they approached him, and denied that he recognized Catron, and pleaded self-defense. He said:
Douglass also insisted that it was his first trip "to fool with whisky ever in the world," that he had nothing at home for his family to eat, and that this caused him to enter into the arrangement with Ivans. He also stated that when they got to the point where they were to meet Headrick and Ivans they sat down on the side of the automobile for about 10 minutes, rolled and smoked cigarettes, and had just thrown the cigarettes down when they were approached by the posse.
After sentence the defendant filed a motion for a new trial on the general grounds, which motion was subsequently amended by adding grounds as follows:
(1) That J. W. Mahan, who served as...
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