Ferguson v. State

• Decision Date: 19 October 1964
• Citation: 220 Ga. 364,138 S.E.2d 881
• Parties: Billy FERGUSON v. The STATE. No 22607.
• Court: Georgia Supreme Court

Page 881

138 S.E.2d 881

220 Ga. 364

Billy FERGUSON v. The STATE.

No 22607.

Supreme Court of Georgia.

Oct. 19, 1964.

Rehearing Denied Nov. 5, 1964.

A. Hugh Leatherwood, Douglasville, for plaintiff in error.

Dan Winn, Sol. Gen., Cedartown, John T. Perrin, Asst. Sol. Gen., Dallas, Robert J. Noland, Douglasville, Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanata, for defendant in error.

Syllabus Opinion by the Court

QUILLIAN, Justice.

Billy Ferguson, convicted of murdering Luke A. Brown with a certain pistol, filed an extraordinary motion for new trial alleging the discovery of material evidence subsequent to the trial. The evidence that was the basis of the motion was the testimony of one Harold M. Adams that between 8 and 8:30 on the morning of the homicide, some thirty minutes after the same was committed, he visited the scene of the tragedy, the deceased's repair shop, and saw a pistol lying about a foot or two from and on the west side of the deceased's body. The witness did not identify the pistol further than to describe it as a revolver.

On the hearing of the motion the State made a counter showing. The testimony of Vincent Henderson, an undertaker, Edward Brown, a cousin of the deceased, and James Rainwater, a deputy sheriff, sworn on behalf of the State, was that they were at the scene of the homicide prior to and at the time the witness Adams was there; that they carefully looked around the body and even raised it up and looked under it in search of a pistol and that there was none close to the body or near the place where it was during the time they were present before the witness Adams arrived or at the time he testified he was present. There were other witnesses who testified they were present and did not see a pistol either before or at the time referred to in Adams' testimony.

The record of the trial that resulted in the movant's conviction was admitted in evidence. It contained a written confession of the movant: 'At approximately 5:30 a. m. I got up from my bed in Mrs. McLarty's rooming house and went down to the Douglasville Gift Shop located on 78 highway east of Douglasville. This gift shop and radio and television repair shop was operated by a fellow named Brown. When I got to his place this morning I had to wait for him to get to the shop. I believe he arrived about 6:30 a. m. Brown was going to repair my radio in my car. He told me to tkae the radio out of my car and bring it in. He helped me take it out. Before we got the radio out, two boys came by and one of then I knew as Billy Jackson. I did not know the other one. They left in about five minutes. After they left, Brown helped me take the radio out of my car and took it inside the place. Brown repaired the radio and the two of us put it back in the car. While we were working on putting it in I went inside to get a screwdriver. While in there I saw Brown's gun, pistol, hanging on a nail in the corner of the workshop. I put the pistol in my pocket and went back to the car. We finished putting the radio in my car, then we both went into the shop. Brown walked over to the adding machine. He had his back to me. I took his pistol out of my pocket, aimed at him, I shot him in the back. When I shot him he fell on his back and mumbled something I couldn't understand. Then I shot him twice more. Then I unzipped the pocket of his overalls and took his billfold out. I put the gun and billfold in my pocket and got in my car and drove back to my room at Mrs. McLarty's. I took several ten-dollar bills out of the billfold and put those in my pocket. I had the gun and billfold and the rest of the money in the attic of the closet to my room. I then went to my girl's house, Helen Graham, and then we went to see about an apartment at Mrs. Thompson's on Rose Avenue. Then we went to Villa Rica to the Hospital and had a blood test. On the way back to Douglasville we had gotten to White City and Deputy Sheriff Cooper and Chief Huckeba stopped us and brought me to jail in Douglasville. The gun that was shown me by T. A. Smith is the same gun that I shot Brown with and the same one that I hid in the attic at Mrs. McLarty's. The billfold is the same billfold that I took out of Brown's pocket when I shot him and the same one that I hid in the attic of my room in Mrs. McLarty's rooming house.' The State also introduced a letter written by the defendant subsequent to his conviction. It was...