Error v. The State Of Ga.
| Decision Date | 31 January 1872 |
| Citation | 45 Ga. 43 |
| Parties | JOHN R. HOLSENBAKE. plaintiff in error. v. THE STATE OF GEORGIA, defendant in error. |
| Court | Georgia Supreme Court |
[COPYRIGHT MATERIAL OMITTED]
Criminal law. Before Judge Clark. Macon Superior Court. May, 1871.
Holsenbake was indicted for murdering George W. Fish, in said county, on the 28th of February, 1871, by shooting him. He was tried in May, 1871.
Jacob Odom, a negro, testified that he was at the train about 2 o'clock, A. M., of said day, when Fish came on it to his home, Oglethorpe; that he took Fish's papers to carry for him, and, as they were walking near the Court-house door, some one shot a gun from it. and Fish fell. He added that he ran off for help, told several persons that Fish was killed, and begged them to go to see him. They "went, and found him dying from the effects of bullets in his head and neck.
What Odom said and did, as aforesaid after the shooting, was objected to by prisoner's counsel, but the objection was overruled. The parties whom Odom called up testified that Fish died in a few minutes from the effects of said wounds.
One McNeil testified that, in January, 1871, he was talking with Holsenbake, and that Holsenbake said that, if Fish was having improper intimacy with his (Holsenbake's) former wife, it would do Fish no good. Further he testified as follows: On the 10th of April, 1871, at night, he and the deputy sheriff happened to be near the jail together. Holsenbake and Loyd (who was indicted with him as accessory,) were in the jail up-stairs, in different rooms, and one Stubbs was in jail below Holsenbake. He heard Stubbs ask Holsenbake if Loyd were not the instigator of that matter, and Holsenbake said Loyd was, and charged Stubbs to tell no one of it. He did not suppose Holsenbake was aware that he (O'Neil) was there. Though he remained there about an hour, he did not remember any more of said conversation.
It was agreed that defendant's counsel might move to rule out this evidence, after they had examined the facts and circumstances under which Holsenbake so spoke to Stubbs.
Another witness testified that, two or three weeks before Fish's death, prisoner took a drink at a well; said it would be the last he would ever take there, and that something would soon happen which would not be agreeable news to the Jones family. (Jones was the father of Mrs. Holsenbake, and she and her child resided with Jones.) Another negro testified that Holsenbake several times consulted him as a fortune-teller; and, about two weeks before the killing, asked him if Fish was in the way of his reconciliation with his wife, and whether he (Holsenbake) would ever kill anybody. Stubbswas examined, and testified to a general conversation between himself and Holsenbake, in the evening *before Loyd was put in jail, in which Holsenbake told him that he (Stubbs) was in no danger, for he knew nothing about the killing, but that he (Holsenbake) was in danger of being hung, for parties would swear lies against him; that he staid all night that night at Loyd\'s, but did not know whether Loyd and his wife knew it or not; that he was looking for Colonel Farrow to come down, and wished Stubbs, if Farrow asked him who killed Fish, to say he did not know; that he (Holsenbake) would bring some things to light before Court which would relieve Stubbs, but could not yet. This appearing to be substantially all that occurred between Stubbs and Holsenbake prior to said conversation heard by McNeil, McNeil\'s testimony was held competent over the objections of defendant\'s counsel. Prisoner\'s counsel reserved the right to move to rule out Stubb\'s testimony, when it should appear why Hoisenbake so addressed him.
Colonel Farrow, Attorney General, was introduced. He produced a letter from Holsenbake, not dated, addressed to the civil authorities of Georgia, and turned over to Farrow by the Governor, on the 25th of April, 1872, with instructions to proceed to Oglethorpe, and try to find out whether there was a conspiracy to kill Fish, and who was concerned in it. This letter was introduced as evidence over prisoner's objection. It stated nothing to the purpose, but that prior to Fish's death, Jones, son of Jones, who had been elected to the State Senate as a radical, was discussing the probability of his father being unseated, and said, if he were, Bullock would appoint him District Judge; that when Holsenbake suggested that Fish would likely be appointed, he replied that his father could hire a negro to kill Fish, and it would be charged to some democratic Ku-klux, and his father would get the place at last. (Fish had been appointed District Judge before he was killed.)
Farrow testified that, with this letter, he saw Holsenbake andasked him to explain it, and told him, in presence of *Mr. Wallace, his attorney, that he (Farrow) would not give a cent for any confession of his own guilt, but, if he would disclose who else was engaged in it, he would recommend the Governor to pardon him, and he believed the Governor would regard his recommendation favorably. The record does not show when this was, nor that it was prior to the statement made to Stubbs. Farrow also said that it was arranged, on the day he spoke with H., in Wallace\'s presence, that Holsenbake should make a written statement. Holsenbake made a written statement, at Farrow\'s request, but what that was does not appear. Mr. Wallace testified to the remarks of Farrow to Holsenbake about as Farrow did. And Wallace offered to read a letter from Holsenbake, written to him on the 20th of April, 1871, and his reply of the 26th, in which reply he stated that he had no doubt Farrow would keep his promise, and urged him, meanwhile, to get ready for trial, especially to get ready to prove that he anticipated living with his wife again, and that Fish\'s designs upon his wife were bad. This evidence was all offered to show that the confessions were made under the influence of hope of relief. The Court rejected Holsenbake's letter to Wallace, and Wallace's reply.
Stubbs was again introduced by the State over prisoner's objection. He then testified that since the conversation formerly detailed, Holsenbake told him that he, Holsenbake, killed Fish because of his, Holsenbake's wife, and that Loyd instigated him to do it. He admitted that detectives sent from Atlanta had promised him, Stubbs, a pardon if he would tell all he knew about the matter. Another witness testified to hearing this last conversation.
Here the State rested its case. Prisoner's counsel said they would introduce no evidence, but would read prisoner's statement. The Solicitor General asked if the reading of that statement would deprive defendant's counsel of the concluding argument.
The Court said it would not, but that the State might rebut the statement by evidence. Prisoner\'s *counsel then read a written statement by prisoner. In it he said nothing about killing Fish. He stated in it that during his long absence of four or five years from his wife, she frequently wrote him to return and live with her; that, after his return, he watched Fish going to her room, (as he supposed,) giving this in detail; stated that this made him almost a maniac, and under this influence he might have made improper threats against Fish; that any confessions made were in hope of Executive pardon.
The State introduced a record showing that Holsenbake's wife had been divorced from him, but when the divorce was granted does not appear. Several witnesses testified to Mrs. Holsenbake's chaste and ladylike conduct. While one of them was being examined, defendant's counsel, on cross-examination, asked him what was Fish's character for libertinism. This was objected to. The Court said the question might be asked, but if prisoner cross-examined the witness they would lose the conclusion of the argument. Upon reconsideration the Court said he would not allow the question answered, but would withhold any decision as to the effect of cross-examination of the State's witness upon the right to open and conclude the argument until the point arose. The prisoner's counsel did not cross-examine the witness. Mrs. Holsenbake testified that Fish never had been in her company except in the presence of other persons. Here the evidence was closed. Defendant's counsel opened and concluded the argument.
The Court charged the jury as follows, reading the sections of the Code cited therein defining murder, etc:
Gentlemen: You are called to the discharge of a most solemn duty; one that no good citizen should see, but one that all good citizens who have at heart the well-being of society, and the faithful maintenance of the law, should discharge with faithfulness and fidelity, so as to vindicate the law, acquit their consciences, andmeasure out justice to those accused of crime.
*The defendant is charged, before the bar of the county, with the high crime of murder. If he is guilty of the charge, he has forfeited his life. The law makes that the penalty of thetransgression; it lays its powerful and strong hand upon him, and calls upon him in a most solemn form to answer the charge; it gives him every advantage of counsel, and the privilege of selecting the men as jurors who shall pass upon his guilt or innocence.
This grave responsibility is cast upon you, and you alone can discharge it. If he is guilty, you will, without regard to consequences, go forward and meet the result like honest men. If he is innocent, you will, with equal firmness, throw the protection of the law around him by a verdict of not guilty.
The wisdom of the world has demonstrated that society cannot protect itself against the crime of murder, otherwise than by taking the life of the offender. No other punishment seems adequate to the enormity of the crime, and it is only in those countries where this penalty is promptly inflicted upon the guilty, that human life is protected. It is the certainty of the punishment that deters...
To continue reading
Request your trial
-
Rogers v. Saye
...a correct account of the matters he had seen or heard at the time the statement was written and signed. The plaintiff relies on Holsenbake v. State, 45 Ga. 43(2), and Phillips v. State, 206 Ga. 418, 57 S.E.2d 555. These cases have no application to this case for the reason that they deal wi......
-
Peinado v. State, A96A2125
...in the courtroom and hear preliminary evidence as to whether a claimed confession of the accused was freely and voluntarily made. Holsenbake v. State, 45 Ga. 43 (ftn.2), applied most recently in Stanford v. State, 201 Ga. 173, 186(3), 38 S.E.2d 823. But this is the precise procedure and rat......
-
McVeigh v. State
... ... err in overruling the general grounds of the motion for new ... 2. A ... duly certified public record is admissible in evidence ... without proof of its authenticity by the person who prepared ... the record ... 3. No ... error was committed in allowing a State's witness to ... testify from his own knowledge that dental records similar ... [53 S.E.2d 464] ... to a record introduced in evidence were used in the Army to ... identify deceased soldiers ... 4. It ... is not error to fail to charge ... ...
-
Stephens v. State, 47286
...153. This principle has been recognized and applied by the Supreme Court even in connection with the grave charge of murder. Holsenbake v. State, 45 Ga. 43(5); Wilburn v. State, 141 Ga. 510(10), 81 S.E. 444; Buckhanon v. State, 151 Ga. 827, 833, 108 S.E. 209; Coggeshall v. State, 161 Ga. 25......