Gann v. The State Of Ga.

• Decision Date: 31 March 1860
• Citation: 30 Ga. 67
• Parties: GANN. v. THE STATE OF GEORGIA.
• Court: Georgia Supreme Court

30 Ga. 67

GANN. v. THE STATE OF GEORGIA.

Supreme Court of the State of Georgia

MARCH TERM, 1860.

Murder, in Cobb Superior Court. Tried before Judge Rice, at September Term, 1859.

This was an indictment against Jeptha Gann, charging him with the murder of William Collins.

It was shown by the proof, that: On the 23d day of April, 1859, in the county of Cobb, the deceased, the prisoner, John Oshields, Joseph White, Alexander Cupp, Nancy Scog-gins, and Fanny Scoggins, were all on their way home from Marietta; that, as they went along, deceased and Nancy Scoggins fell out; that deceased commenced blackguarding Nancy Scoggins with vulgar language, which was, the first beginning of any difficulty; that the blackguarding of Nancy Scoggins, by the deceased, made the prisoner mad; prisoner was in company with Nancy Scoggins; that prisoner cursed deceased, and wanted, to fight him; that when the prsoner said he would whip deceased, if he did not mind, deceased replied that that was as good a time, he reckoned, as he would ever get; that the altercation then, ceased, and the parties made friends, and drank together at Gault's grocery, the prisoner buying the liquor; that the prisoner and his immediate company, consisting of Nancy Scoggins, Fanny Scoggins, and Alexander Cupp, left the grocery first, and started on home; that after they had gone on some little distance, the deceased, Oshields, and White, also left the grocery, and went on towards home, along the same road; that after going along, and getting near to Mr. Hunton's, the deceased and Oshields began to sing a song about the Fillmore boys; that the words of the song seemed to be harmless, but the manner of singing the song, or something else, offended Nancy Scoggins, who had a child named Fillmore; that thedeceased and Oshields were told by prisoner that if they wanted to sing, either to stay behind or go on before; that deceased, Oshields, and White then passed by prisoner and the Scogginses, and again commenced singing the song; that prisoner again cursed them, saying that any man who would: sing such a song as that before decent women was of no account, and that he was the best man that ever made a track on Marietta hill, and he could whip any Collins or Oshields of the name; that deceased replied, "No, you can\'t—you can\'t whip Scott Oshields, " to which prisoner rejoined, "Yes I can; I can whip him the best day he ever saw;" that Oshields and deceased were told not to sing any more or say anything else to prisoner, as he was drunk and did not know what he was doing; that in going about seventy-five yards, White and Oshields got before the deceased about thirty steps; that when about that distance ahead, they rather stopped, and heard three licks back behind them, that they turned and went back and found deceased retreating from prisoner whilst prisoner was advancing on deceased; prisoner had something in his hand that looked bright; that it was dark, and the prisoner was drunk, and the deceased was sober; that when White and Oshields got back to the place of rencounter, deceased said that prisoner had cut him badly, to which prisoner replied, "Yes, and I am sorry for it;" that White caught hold of deceased by one arm and Oshields took him by the other, asking him if he was sick, and when asked the \'second time, replied that he was, and began to sink down; White-and Oshields then let him down in the lock of the fence, and he died in a short time; White and Oshields heard the blood spouting, or bubbling from his wound; that when deceased was caught by White and Oshields, he had an open knife in his right hand, which one of the witnesses took from his hand and put it into the witness\'s pocket; that prisoner had a double-barrel shot-gun, which Nancy Scoggins was carrying at the time; prisoner also had a pistol, but the evidence did not show that he was carrying the gun or pistol with any reference to deceased, or that he drew or attempted to use either of them against deceased, except that one of the witnesses testified that after deceased had been let down in the lock of the fence, prisoner said to deceased, not to crowd him, or rush on him, for he had his repeater drawn; deceased was stabbed on the shoulder, under the collar bone, with aknife, and the wound caused his death; that prisoner had the knife shown in court on the night of the difficulty—it is called a Spanish dirk, but is not above the size of a pocket knife, and shuts up, and is carried in the pocket. On the night of the homicide the prisoner was arrested at a house in or near the Camp Ground, and when arrested, was in bed with Nancy Scoggins, who is an unmarried woman, and Alexander Cupp, all three being asleep in the same bed; that blood was seen on the under-dress of Nancy Scoggins, who said it got on her dress as she stooped down to see if deceased was dead; that prisoner was, when arrested, searched for weapons and none were found on him; the coat-sleeve and the arm of prisoner was cut with a knife, and there was also a cut on the left breast of his coat; that from the place where White and Oshields heard the three licks down to the place where they took hold of deceased when they went back, there was blood along on the ground; that there was but one wound of any importance on deceased; that during the altercation between prisoner and deceased, about whipping Scott Oshields, prisoner said, "O, God damn you, Dorse, here I come;" there was a pistol, and the knife aforesaid, found next day at the place of rencounter, both of which were shown to belong to prisoner; the knife which was taken from deceased was shown in court, and identified as his. The jury found the defendant guilty.

Defendant, by his counsel, moved the court for a new trial in said case, on the grounds:

1. Because the finding of the jury was contrary to the evidence in said case.

2. Because the finding of the jury was contrary to law.

3. Because the jury found a verdict in said case which was decidedly and strongly against the weight of the evidence in said case.

4. Because after the court, in compliance with the request of defendant's counsel, had charged the jury that, "whilst voluntary drunkenness is no excuse for crime, yet the drunkenness of the defendant, at the time of the killing, may be considered on the question whether the defendant was excited by passion, or actuated by malice in committing the homicide." Qualified said charge by adding thereto the following, to wit: "In case it is proven that any such provocation was given, as the court has already mentioned, that is a prov-ocation not by words, threats, menaces, or contemptuous gestures alone, whether said or sung, but an actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing.\'\' In connection with this, the presiding judge further certifies, that he charged the jury that, "in all cases of voluntary manslaughter, there must be some actual assault upon the person killing by the person killed, or an attempt by the person killed to commit a serious personal injury on the person killing."

5. Because after the court, at the request of the defendant's counsel, had charged the jury as follows: "If you believe from the evidence, that, at the time Gann killed the deceased, the deceased had a knife drawn, and was cutting at Gann, or attempting to cut or stab him, and that Gann killed deceased to save his own life, or killed deceased under the influence of a reasonable fear that deceased would kill him, or inflict upon him serious bodily harm, or was trying to kill him at the time, then the defendant Gann is not guilty of murder, and you ought not to find him guilty of murder." Qualified said charge by adding thereto the following, to wit: "But if the prisoner first advanced on, and assaulted the deceased with a knife, or other deadly weapon, then the deceased might defend himself, and if, in defending himself, he cut the clothes, or even the person of the prisoner, that would not justify the prisoner for killing deceased, unless the prisoner had, after he assaulted deceased, really, and in good faith, endeavored to decline any further,...