Hayes v. The State Of Ga.

• Decision Date: 31 January 1877
• Citation: 58 Ga. 35
• Parties: John B. Hayes, plaintiff in err0r. v. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 35

John B. Hayes, plaintiff in err0r. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

[COPYRIGHT MATERIAL OMITTED]

Criminal law. Indictment. Jury. Practice in the Superior Court. Arraignment. Charge of Court. Before Judge Gibson. Richmond Superior Court. April Adjourned Term, 1876.

At the April term, 1875, of Richmond superior court, Hayes was placed on trial for the murder of Henry Key. Before the defendant pleaded, he moved to quash the indictment upon the ground that the names of two of the grand jurors who found it, were not on the jury list of the county, to-wit: John W. Stoy and Seaborn Watford. The jury list being produced showed no such names, but did contain the names of S. Wadford and John W. Stoy, Jr. The sheriff testified that he knew no one in the county named Watford or Wadford except Seaborn Watford, who served on the grand jury which found the indictment; that John W. Stoy, Jr., also served on the same jury, and no other Stoy did so *serve; that there was another John W. Stoy living in the county at the time the indictment was found, but he has since died. The motion was overruled, and the defendant excepted. The exception was certified and entered of record.

The defendant was then arraigned and pleaded not guilty. The case proceeded and resulted in a mistrial.

The case came on again to be heard at the April term, 1876, when the jury found the defendant guilty. The rulings complained of will be clearly presented by the motion for a new trial, and the facts developed by the testimony. The case made by the prosecution was, in substance, as follows:

About 6 ^l/₂ o'clock on the evening of January 23, 1874, the deceased was shot by the defendant in the yard of the Charlotte, Columbia and Augusta Railroad Company. The defendant was arrested, and, on being asked why he shot deceased, stated that the latter had cursed him for a damned son of a bitch, and that he had been abused by parties coming in the yard as much as he intended to be, and he was going to put a stop to it. He also stated that deceased had a piece of wood going out of the yard with it, and he told him he could not carry it out, and deceased laid it down; that he then went about his business; that afterwards he again met deceased with the piece of wood, carrying it out of the yard, and he told him that he could not take it off, or something to that effect; that deceased said he would carry it off, and some words ensued in regard to the wood, when deceased told him to kiss his behind; that he then shot him, and would shoot any other man who would tell him the same thing. Defendant was the night-watchman at the railroad yard. It was customary and proper for night-watchmen to be armed. Deceased was a man that had many difficulties; he frequently became drunk and had fights. When sober, he was peaceable. The wood, about which the controversy arose, was an old piece of scantling, about four feet long, worth very little. It had been given to deceased by a section boss in the employ of the railroad, on theafternoon of the day preceding that on which the homi-cide was committed. It had been placed inside *of, and behind, the gate of the yard, for him. It was the property of the railroad company. It was the habit of the section boss to give away such old timber as was of no use to the road. Deceased, when shot, did not have the appearance of a man that had been drinking. Some one in the crowd, which gathered around the deceased when he was shot, before defendant left, said it was a shame to shoot a man down like a damned dog, when defendant said, "if you will hold him up, God damn you, I will snoot him down again." He also said, "I told you last night to keep out of here, and I reckon, God damn you, you will stay out now." Deceased was also in the employ of the railroad company as a cotton clerk. In his dying declarations, he stated that at about o\'clock on the evening of January 23, 1874, he went to close his cotton-gates; that after doing this, he picked up a piece of scantling wood that was given him on the day before by the section boss; that defendant saw him, and halloed out to him in a very rough manner, that it was against the rules of the yard to be taking wood out; that he replied that it had been given him by the section-master, and was not the company\'s wood; that he then told deceased that he should not take it out, to which the latter replied that he would be damned if he didn\'t; that deceased did not see defendant draw his pistol, but saw the flash of it; that he thought at the time that defendant had killed him; that he was unarmed.

The yard was open at the place where deceased was shot; there was no gate there then; it has been since erected. (It is supposed that the front gate is here alluded to, and not the cotton gates.)

Mr. R. H. Wylly, a former agent of the railroad company, at Augusta, testified for the defense, that defendant was the night-watchman at the railroad yard, and when on duty, had charge of the entire premises; that he had specially instructed him not to allow any wood taken out of the yard; that the hands were in the habit of carrying off wood belonging to the company, to suchan extent that he was compelled to put a stop to it; that he instructed defendant *to allow none of the employees to carry any wood out of the yard without witness\' per-mission; that no subordinate had authority to give permission to any one to take out wood; that witness was aware of the fact that defendant went armed, but had not instructed him to arm himself; that it was the watchman\'s duty to shut the gates; that witness was not agent of the company at the time of the shooting; that he gave defendant no instructions to shoot persons carrying off wood, but expected him to arrest them and put a stop to it.

Charles W. Sheron testified that on the evening of the day of the homicide, deceased was a good deal under the influence of liquor; that he had that appearance.

The defendant moved for a new trial on the following grounds:

1. Because the verdict was contrary to law.

2. Because the verdict was contrary to evidence.

3. Because the verdict was contrary to law and evidence.

4. Because, after the indictment was read to the jury, counsel for prisoner, having called the attention of the court to the following facts, that there had formerly been a mistrial in this case, that the present was a trial dc novo, that in the present trial there had been no arraignment of the prisoner, that the prisoner had not, in this trial, been called on to plead, and that there was, therefore, no issue formed between the state and the accused, objected to the introduction of any evidence before issue thus formed, and the objection was overruled by the court.

5. Because the court refused to give in charge the following request:

"If the prisoner fired even rashly to prevent the deceased from committing a trespass, or what he reasonably conceived to be a trespass, he would be guilty of no greater crime than manslaughter."

6. Because the court refused to give in charge the following request:

"If one kills another under the fears of a reasonable man *that the deceased was manifestly intending to commit a felony on his property, it is justifiable homicide; if under such fears of an injury less than felony, it is not murder but manslaughter."

7. Because the court refused to give in charge the following request:

"If the jury believe, from the evidence in the case, that there was no intention on the part of Hayes to take the life of Key, but that he was actuated by a sense of duty in carrying out the orders he had received from the superintendent of the company in preventing any property of the company from being taken out of the company's yard, and that, in the performance of this duty, he fired rashly and indiscreetly, and the death of Key resulted, then the jury should find him guilty of involuntary manslaughter. Involuntary manslaughter is of two kinds, either in the commission of an unlawful act, or a lawful act without due care and circumspection."

8. Because the court, after remarking to the jury in his gen-eral charge, that while it is your privilege and duty to interpret the law and the facts, you can commit no great error to receive from the court its interpretation of the law. I have no interest except the good of society and the performance of my duty, added the following language: "If I make a mistake as to the law, there is a reviewing court, it will correct it."

9th. Because the court refused to give in charge the following request:

"The possession of the pistol by Hayes, he being a watchman, is not a circumstance from which malice can be implied, and to presume malice, from the circumstances, it would be necessary to show that he had provided himself with it for the purpose of making the attack" but in response to said request, remarking "the fourth request to charge, that counsel for the prisoner have presented, I give with this in addition: the possession of the pistol by him is not a circumstance from which malice can be implied, *and to presume malice is wrong. It would be necessary to show that he had provided himself with it for the purpose of killing Key, and this you are to judge from the evidence, then it would be evidence of malice, " no testimony whatever having been offered tending to show that Hayes had provided himself with the pistol for the purpose of killing Key.

10th. Because the court charged the jury as follows: "Well, did he deliberately intend to do it?" Was there any circumstance to show he had prepared himself to stop people from trespassing in the yard, that he got a pistol, loaded it with a ball, prepared himself for the emergency, and that he had previously, or afterwards, said he was going to stop it? If that was the evidence, what more deliberation can a man have? You are bothered, troubled, and you commit an act, and you say afterwards...