Harris v. State

• Decision Date: 13 May 1937
• Docket Number: 11707.
• Citation: 191 S.E. 439,184 Ga. 382
• Parties: HARRIS v. STATE.
• Court: Georgia Supreme Court

191 S.E. 439

184 Ga. 382

HARRIS v. STATE.

No. 11707.

Supreme Court of Georgia

May 13, 1937

Error from Superior Court, Jackson County; W. W. Stark, Judge.

J. D Harris was convicted of murder, and the brings error.

Reversed.

Syllabus by the Court.

1. The defendant was convicted of murder; and his motion for new trial being overruled, he excepted. He assigns error on the failure of the court to give in charge to the jury the law on the subject of voluntary manslaughter as related to mutual combat. Held under one view of the evidence the case involved the law of voluntary manslaughter as related to a mutual intention to fight, resulting in a mutual combat; and the court committed error in failing to charge the law on that subject. None of the other special grounds of the motion for new trial show cause for reversal.

2. Since the judgment is reversed for the reason stated above no ruling will be made on the sufficiency of the evidence to support the verdict.

Davis & Stephens, of Jefferson, for plaintiff in error.

J Clifford Pratt, Sol. Gen., of Winder, B. Frank Simpson, Sol. Gen., of Norcross, M. J. Yeomans, Atty. Gen., and B. D Murphy and O. H. Dukes, Assts. Atty. Gen., for the State.

HUTCHESON Justice.

J. B. Harris, a negro man, was indicted, together with five other negro men, Harvey Spielman, Wheel Chandler, Charlie Wilhite, Cam Rakestraw, and Lonie Burns, for the murder of Joe Culpepper, a white man, on March 21, 1936, by shooting him with a pistol or other firearm, and inflicting upon him a mortal wound. Cam Rakestraw and Lonie Burns, not having been apprehended, the other four defendants pleaded not guilty. They elected to sever and to be tried separately, which was done. The trial under review in this court is that of J. B. Harris. The jury returned a verdict finding him guilty, with a recommendation, and he was sentenced to life imprisonment. He moved for a new trial on the general grounds, and by amendment added certain special grounds. The judge overruled the motion, and the defendant excepted. It is urged that the evidence is insufficient to authorize the defendant's conviction of murder, either as one of the perpetrators of the homicide of Culpepper or as a principal in the second degree because of conspiracy, or because the defendant aided and abetted therein. We have made a careful and minute examination and study of the evidence before the court and jury in this case, which was substantially as follows:

Raymond Culpepper, a brother of the deceased, testified in substance as follows: On March 21, 1936, the deceased was shot six times with a pistol, which resulted in his death. On this day the deceased and the witness brought a load of 'scrap cotton' to the city of Jefferson, in a two-horse wagon, arriving there about noon. Ernest Sorrell was with them. They went first to the gin and sold the cotton. They then came back to town 'around behind Mobley's store,' and there was a crowd of negroes standing in the road or street. Whereupon the mules pulling the wagon shied at the negroes, and some of the negroes 'said something sort of sassy.' They used a 'fractious tone of voice to' witness and his brother, 'like they wanted to get raw about something,' and witness and his brother jumped out of the wagon and went back to where the negroes were. The negroes were angry 'about the mule shying and running close' to one of them or something. 'He didn't like it, he wanted to get mad about it. I couldn't say I had ever seen any of those niggers there before. I have not been able to identify any of them that was there since. I seen some niggers later that day. I don't know whether in was the ones down there or not. These were the only negroes any of us had any conversation of any kind with that day while we were in Jefferson.' (8italics ours.) On the way out of town, some hour or more later, witness, the deceased, and Sorrell, together with another man named Norville Gee, were together and proceeding by the 'calaboose' and into Main street, and as they turned into this street, a 'bunch of niggers come down that way and met us in an A Model Ford.' On the way 'up the road we saw what appeared to be this same car loaded with these same niggers again.' They were headed in the same direction, and passed this wagon. The car was full of negroes. Witness and the others kept along the road and saw this car again at 'Mr. Drake's filling station,' about one mile from town, and just as they got in sight of the filling station this car drove off. Witness and the others did not stop at the filling station on that trip home, and when they had passed it and reached a point further along the road, about a half mile from the filling station, 'at the old rockcrusher place,' where there was a high bank on each side of the road, witness saw this car of negroes again. Witness stated: 'The first think I notice when we came in sight of this car that was on out there in the road. The car was as far out on the right of the road as it could get, headed up road, and six niggers was standing on the outside of it. I have seen the same niggers since; this one over here [indicating the defendant] and that one back yonder, were there. When I came in sight they were not doing anything to any tire or any part of the automobile that I noticed; they was just standing there in the road, looked to me like. I couldn't tell which way they were facing; they were just standing wadded up in the road. They were facing us when we got up close to them or right even with them. Whe we got there the little short yellow nigger had his hand in his pocket, and he said, 'Who in the hell was that wolfing down there?' and he come out with his pistol and went to shooting us; and when he had done that the mules started to run, and there was several more shots fired.' There were some twenty-five or thirty shots in all fired, and may be more than that. The shooting resulted in the witness and Sorrell being wounded; and the deceased was hit six times, and died. When they got up the road a good distance, the shooting stopped. 'The little short negro was the first one that went to shooting, and by the time he shot they was all ready and went to shooting too. There was four or five of them shooting; you couldn't count the shots, they were firing so fast.' 'The little short yellow nigger is the only one that I seen shoot; there was more than that shot, but I won't say which one done the shooting. The defendant * * * was not the one that started the shooting.' Witness and the others had had something to drink on their way to town that morning, a pint of whisky which they drank at the filling station. As to meeting the car of negroes, this witness further testified: 'We met a car just as we turned into Main Street; they come off the main road, and we went up the road, and they went that way. It was an A Model Ford, closed car, but I don't know if it was a two-door or fourdoor.

We went on out the Gainesville road towards home, and saw another car' right at the edge of town where the paving stopped. 'There was a bunch of niggers in the car, I didn't know none of them. I thought it was the same car I saw down here, I wouldn't swear it was; it looked to be the same car. The one passed out out by Dr. Bennett's was just an A Model Ford automobile. I don't know who was in the car. They went on out the road, and we went on towards home; there was no trouble there. When we got about in sight of Drake's filling-station I saw an automobile leave; it was niggers. Hadn't none passed us but this car, and it was headed up the road; this was the third time I had seen the car. I seen one on the side of the road at the old rock-crusher place. * * * When we drove up I saw six niggers standing around there in the road, doing no more than standing there and stomping around. I was not looking for any trouble. I didn't look to see whether they had a flat tire, or was working on one or not, but there was not any of them working on a tire when I got up there. When we got about even with the car a little short yellow negro commenced shooting at us; and if every one of the tires had been flat I wouldn't have noticed it. * * * When the mules began to run I went to shooting as quick as I could get my gun. Joe done the same thing. I emptied my gun, shot five times, and Joe shot three times.' 'I hadn't known the defendant before this occurred. I might have seen him somewhere before this occurred; I wouldn't say. When shooting like that takes place it is hard to tell about anybody.'

Fred Culberson, deputy sheriff, testified in substance that he was called to look for some negroes that were said to have killed Joe Culpepper; that he went out to Jim Bell's filling station and Bell said some negroes in the kind of car described had just passed. 'We could track them, because they had a tire off; and when we got up on the hill and tracked them down to a Millsaps nigger's and found them the car was standing there in the yard, one tire was off and the other tire was flat. We got Charlie house. Mr. Purcell and Mr. bed in the house. Mr. Purcell and Mr. Stewart got the defendant.' 'Both of these niggers we found at the Millsaps nigger's house were drinking. We asked them where they had been, and they denied all about it at first, and then said they had been to town. The defendant and Charlie Wilhite were together, and they said they hadn't been up there; and we asked them who was with them, and they wouldn't tell us, and we asked them who the other niggers was that run off from up there, and they didn't know that. Wilhite done the talking. He was not doing much talking.' Later Wilhite said 'Spielman and Chandler and them was in the car.' Wilhite and defendant never denied being in town; they denied being up there...