Harrison Westmoreland v. The State Of Ga.

• Decision Date: 31 January 1872
• Citation: 45 Ga. 225
• Parties: HARRISON WESTMORELAND, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

45 Ga. 225

HARRISON WESTMORELAND, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1872.)

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Criminal Law. Jurors. Evidence. Insanity. Tried before Judge Hopkins. Fulton Superior Court. April Term, 1871.

*Westmoreland was charged with an assault with intent to murder C. L. Redwine, by shooting him with a gun. He pleaded not guilty. While the jury was being impaneled a person was presented, and, upon examination, answered as follows: Question. "Have you, from having seen the crime committed, or having heard any of the testimony delivered upon oath, formed and expressed any opinion as to the guilt or innocence of the person at the bar?" Answer. "No; but I have formed and expressed an opinion from rumor." Question. "Have you any prejudice or bias resting on your mind either for or against the prisoner at the bar? Answer. "No." Question. "Is your mind perfectly impartial between the State and the accused?" Answer. "It is." Question. "Are you conscientiously opposed to capital punish-ment?" Answer. "No." The State put him upon the prisoner. The prisoner\'s counsel objected to him because he had formed and expressed an opinion as to his guilt or innocence from rumor. The Court "put such questions to him as to enable the Court to understand the state of his mind." He was asked if he could discard the rumor and do equal and impartial justice between the State and the accused, and he an. sewered that he could. And the Court "being well satisfied of the truth of his answers to those questions, " (including the statutory questions) pronounced him competent. He was challenged by the prisoner; but the jury was made up without prisoner having exhausted his challenges allowed by law.

The first panel of jurors being exhausted before a jury was made up, a new panel was summoned and put upon the prisoner. His counsel challenged the array, and moved to set that panel aside because it had been summoned by a bailiff, and not by the sheriff or his deputy. The motion was overruled.

The frequency of such defenses, and the importance of the principles justify an extended report of the evidence.

To understand the evidence, it is proper to remark that White-hall street, running north and south, is crossed at right *angles by Alabama street. Redwine & Fox's drug store is on the southeast corner of said streets, and diagonally across is Lynch's corner, occupied then as a book store. Each of these streets is about sixty feet wide. To reach the Constitution office from said drug store, the route is up Alabama street, and that office was on Broad street, north of Alabama street. Redwine's boarding house was on Pryor street, and to reach it from the store, the direct route was up Alabama street, on its south side.

Howell testified that he and Redwine, after dark, about 7 o'clock p. m., in December, started to a collation at the Constitution office. They went diagonally across from the drug store towards Lynch\'s corner; in going they were talking, and Redwine had his hands in his pockets, with his thumbs out, and Howell had his arm. As Redwine stepped upon the sidewalk of Alabama street, some ten or twelve feet west of Lynch\'s corner, some one hallooed "look out!" Howell turned, and Redwine turned his head, and immediately a gun fired. Redwine put his hand to his side with an exclamation, and bending over, walked back to his store rather briskly. Howell walked to Lynch\'s corner, where the gun was fired, and saw Westmoreland standing with a double-barreled shot-gun cocked. When he fired it it was all exposed but the butt of the gun which was under his talma. Howell rushed into the side-door of the store at Lynch\'s corner, and said that West more land had shot Redwine, and when he came out again several persons were talking with Westmoreland, and he said something about his gun having twelve buckshot in it, but witness did not hear all he said then. Westmoreland had on a talma, and though a gas-lamp was burning on the opposite corner, and inside the store at Lynch\'s corner, Howell did not recognize Westmoreland till he shot. He remembered seeing a man at Lynch\'s corner, and thinks it was light enough for him to have seen his gun had it been exposed, but he did not see the gun till he fired. When Westmoreland fired he was about twenty-five or thirty feet from *Redwine. Howell went to the store to look after Redwine, and finding him in the hands of physicians, he returned to Lynch\'s corner. Finding that Westmoreland had been carried to the calaboose Howell went there. Wise and two or three policemen were there, and Westmoreland was in a cell, alone. Westmore land was talking about the occurrence when Howell arrived. Howell remembers only two of the remarks made by him. Westmoreland said "he had walked over this matter as long as he could." The cell door was then opened and Howell asked Wise to ask Westmoreland if he knew who was with Redwine when the gun was fired. Westmoreland replied that he did not know who the person was, but that he gave him notice to get out of the way. Howell said he did not remember all that was said, but he heard all that Westmoreland said while he, Howell, was there. When the door opened Westmoreland was crying. Howell said he had known Westmoreland fifteen years; that he frequently saw him at said drug store when he thought by his conversation that he was drinking; he never saw him stagger, nor guilty of any disorderly conduct at such times; he was usually very quiet. (Because Howell did not hear all Westmoreland said defendant\'s counsel moved to rule out what he did hear. The motion was overruled.)

Dr. Redwine testified as follows: A week or two before the shooting he treated Westmoreland with some indifference because he was in the store drunk. On the day before the shooting, Westmoreland was in the back part of the store, standing by the stove, with a knife in one hand and a cane in the other, cursing and making a noise, so that Redwine heard him in the front of the store. He supposed he was cursing Dr. Branham, who was standing with him. Redwine walked to Westmoreland and said, "we have put up with this profanity as long as we can stand it;" said to Westmoreland that he had become a nuisance to the store, and that he must go out and stay out till he could keep sober and behave himself. Redwine took him by the arm and led him *unresisting toward the front door. Westmoreland stopped and said, "Is this your style?" and Redwine replied that he wished him to go out of the store, and stay out. As Westmoreland got out of the front door, and Redwine was standing in it, Westmoreland struck him with the cane, "about as large as one's thumb." It struck Redwine's uplifted arm and broke; Redwine got one piece of it, about eighteen inches long, of the large and crooked end, and Westmoreland retained the other; Westmoreland threw his part of the stick at Redwine, which he dodged, and struck Westmoreland over the head with the piece which he had. Westmoreland's felt hat was not knocked off by the blow. Redwine said to him then that he was an old man, and that he did not wish to hurt him, and wished no difficulty with him. Westmoreland walked off a few steps, and turning, said, "God damn you! hell awaits you;" and walking a few steps further stopped and repeated those words or some like them. Redwine denied kicking him, or at him. That was about three or four o'clock p. m., and Redwine saw no more of him till he was shot by him the next night, about his usual supper hour, seven o'clock p. m.

He then stated the leaving of his store, etc., substantially as Howell did. He said his wound from the shot was on his right arm and in his right side, between the seventh and eighth ribs, below and behind the right nipple. One shot passed through his arm and below the elbow, and one cut the skin above the elbow. He said he was over a month unable to turn, and two months confined to his room, from said wound in his side. He said Westmoreland was habitually at their store, and knew his route to supper, and his usual time of going. He said Westmoreland was habitually drunk and profane; that he had never ordered Westmoreland from his store before, but Pox had; that he (witness) had before asked him to desist from cursing, and sometimes he did.

Westmoreland never staggered from liquor; sometimes his gait was unsteady. Redwine never saw him *too drunk to keep him from recognizing persons, and know what he was doing; he practiced medicine, and had his prescriptions carefully prepared, and knew well what prescriptions were proper. He said that the prescriptions were not usually put up by himself (Redwine), but by his partner and clerks. He considered Westmoreland as a friend to the store; he had had his headquarters there, and paid for all the medicines he bought. Sometimes Westmoreland bought opium and morphine. He testified as to the effects of liquor and opium on the mind, which see hereafter, under insanity. For convenience of reference, all the evidence as to insanity is grouped together.

Dr. Crawford, Redwine's physician, described the wound and said that the shot taken from it were buck-shot.

A witness testified that, as he went to supper that night, he met Westmoreland, about two squares south of Redwine & Fox's store, going up Whitehall Street, toward said store, and away from his home. He had a gun in his hand; they did not speak to each other at the time. Afterwards, say in half an hour, he heard of the shooting.

Mr. Woodding testified that, on the night of the shooting, he heard many things said by Westmoreland, in the guard-house. The only one remembered distinctly was Westmoreland said that he had shot the G—d d—d s—n of a b—h, and that if he did not kill him it was not his (Westmoreland's) fault; said he was not sorry for the shooting, but sorry that he had to do it. This was about an hour or an hour and a half after the...