Gower v. State, (No. 6586.)
| Decision Date | 12 June 1928 |
| Docket Number | (No. 6586.) |
| Citation | 166 Ga. 500,143 S.E. 593 |
| Parties | GOWER . v. STATE. |
| Court | Georgia Supreme Court |
(Syllabus by Editorial Staff.)
Affidavits impeaching in character as to unimportant details of evidence, not made part of motion for new trial, cannot be considered.
Error from Superior Court, Gwinnett County; W. W. Stark, Judge.
Sam Gower was convicted of murder, and he brings error. Affirmed.
Sam Gower and Joe Price were jointly indicted for the murder of an elderly man, Jim Bennefield. The accused were tried separately. Gower was convicted without recommendation of mercy, and Price was convicted with a recommendation. Gower moved for a new trial on the general grounds, which were amended with special grounds. His motion was overruled, and he excepted. He also moved for a continuance on the ground that he had not been given sufficient time to prepare his defense. The motion was based upon the contention of his counsel that he had been put on trial six days after being indicted; that this was not enough for counsel to know how to advise his client or in which to familiarize himself with the general situation or the venire of jurors, or to consult the witnesses. The homicide occurred on December 16, 1927. There was a commitment trial at which the defendant was hound over to the grand jury. The indictment was returned on March 6, and the case was called for trial March 12, 1928. The defendant excepted to the overruling ot his motion for a continuance, on the ground that it was violative of the constitutional provision of this state with regard to benefit of counsel, copy of accusation, list of witnesses, and compulsory process (Civil Code of 1910, § 6361), and on the ground that it was also violative of the corresponding provision of the Federal constitution (Civil Code), § 6689.
La Grande Sikes, a witness for the state, testified in substance as follows: On the day of the killing he saw Gower and Price at Gower's home, and spent most of the day there cutting wood. About 5 o'clock Gower and Price came in, and one of them told witness that he wanted witness to drive his car. Gower and Price began drinking, and about 10 o'clocb witness cranked the car and they got in and drove away according to directions of Gower. Witness eventually parked the car near a garden fence, and all got out. Gower said to Price that they had to go over there and straighten up things, and that if it took killing they had it; and Price replied in the affirmative. After takinganother drink they approached the home of Bennefield, stopped, took another drink, and entered by the kitchen door. Bennefield and his little boy were sitting by the fire. Bennefield asked all to be seated, which they did, and a friendly conversation began. Directly Gower pulled out a bottle and gave Bennefield a drink. Bennefield said this whisky was better than the last he bought from Gower. The boy had gone in an adjoining room and laid down on some cotton. Gower replied to Bennefield that he did not think this whisky was any better than other whisky; and an argument was started about the whisky and a still. Bennefield reached over to poke the fire, and Gower hit him on the head with a hammer. Bennefield raised up and picked up a chair and said, "You can't do me this way in my house, " whereupon Gower hit him on the head again. The boy ran back in and got between Gower and his father. Gower hit the boy on the side of the head and knocked him to the floor. Gower then knocked Bennefield up against the window shutter, struck him with a chair, and knocked him to the floor. Gower pulled out a butcher knife and gave it to Price, telling him to cut Bennefield's throat. Price slashed Bennefield's throat twice. Gower turned Bennefield over and went through his pockets, finding over $600. Gower gave Price $200 and witness $200. Gower then told Price to take the boy, lay him out on the cotton, and cut his throat. "I stood there and watched him, and when he done that I liked to fell." They took their overcoats and departed. Nothing was said until the car was reached, when Gower put the knife and hammer in the back of the car and told witness to drive by Freeman's mill-pond, which he did. Gower and Price got out at the pond and walked off, Gower having taken out the knife and hammer from the back of the car. Directly they returned and witness drove the car back home, where Gower's wife opened the door. Gower gave his wife his money, but Price retained the money Gower had given him.
There was other evidence, such as the sale to Gower of butcher knives, and evidence to the effect that Gower had killed hogs prior to the homicide. The daughter of the defendant testified that Sikes was not at her father's home on the night he testified about, as her brother had carried him home on Friday morning; that on Friday night (the night of the killing as charged by the indictment) she and the defendant and her three brothers went to her sister's home, carrying their phonograph, and they had music there. Another daughter of the defendant testified about the music, and swore:
That music was played at the home of Alton King also, which her father attended, but which she did not attend. That That Sikes was not at the Gower home the night of the killing, as her brother had taken him home the morning of that day.
The defendant stated that he knew nothing of the crime; that he heard of it Sunday, and suggested to Sikes, his son-in-law, that they go and see about it, which they did; that they went to the Bennefield house, and a man took them in and showed...
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