Hunter v. The State Of Ga.

• Decision Date: 31 July 1871
• Citation: 43 Ga. 484
• Parties: JIMSEY A. HUNTER, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

43 Ga. 484

JIMSEY A. HUNTER, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

[COPYRIGHT MATERIAL OMITTED]

Murder. Evidence. New Trial, etc. Tried before Judge Alexander. Brooks Superior Court. November Term, 1870.

Thomas M. Alexander, on the night of the 12th of July, 1870, was found in the road, in said county, dead. His death was caused by several buckshot projected from a gun, eight or ten steps off, into one wound, in the posterior part of the right shoulder. A coroner's inquest was had, and subsequently Jimsey A. Hunter was indicted for murdering him. Before going to trial he made affidavit that, "on account of the excitement and prejudice against him in the community he could not obtain a fair trial in the county of Brooks, and moved for a change of venue. The Court held that he ought not to change the venue unless, after trying to get a jury, it should appear that an impartial jury could not be had in Brooks county, and refused then to change the venue.

A jury was impaneled after about two hundred persons had been put upon their voir dire. The Quitman Banner is a newspaper published in said county every Thursday afternoon. Three persons who subscribed for it, and another who was a son of another subscriber, got the paper of that week, and, on Friday morning, were summoned as tales men and sworn to try said case. While the balance of the jury was being made up these jurors had and were reading their said *paper, and Hunter's counsel saw them doing so. The paper contained the following allusions to said case:

The Superior Court.

"The November Term of Brooks Superior Court commenced on last Monday morning—Judge J. R. Alexander, presiding. The local and neighboring bars were well represented, and the business of the term appears to be progressing satisfactorily.

"The call of the civil docket attracted but little attention from others than those interested; but when the criminal docket was entered upon, on Wednesday evening, and the case of the 'State v. Jimpsey A. Hunter, ' charged with murder, was called, the Courtroom was soon filled by an apparently interested and anxious public. For it is a case of great importance—the issue involved being life or death—and the circumstances surrounding the case being of such a character as to astound, and, in a measure, mystify hundreds who have only heard rumors of the circumstances attending the killing of Thomas M. Alexander.

"The prisoner having been brought before the Court, his counsel moved that, for certain specified reasons, the trial of the case be transferred to another county. The motion elicited considerable argument, and occupied the balance of the day. On the following morning, (Thursday) his Honor, Judge Alexander, after a review of the argument, decided to overrule the motion for a change of venue, until after an attempt had been made to secure a competent jury. At this writing the call of the special venire is progressing, and it is our opinion that an impartial jury can be procured."

Defamation of the Citizens of Brooks.

"As a general rule, the eccentricities of certain members of the legal profession are excusable; the display of their oratorical ability, although frequently damaging to their clients, is amusing; but when they override precedent, set at defiance *established rules of courtesy, and in an effort to carry their point, cast oft all restraint, and characterize an entire community as lawless, prejudiced and unjust, we must consider and protest against such a line of argument, as simply infamous.

"In an argument before the Superior Court on last Wednesday, on a motion to transfer the important case of the 'State v. Jimpsey A. Hunter, ' to another county for trial, a zealous advocate from the county of Thomas, took occasion (and it is not the first time) to villify and outrageously slander the entire community of Brooks county.

"He charged that the entire body of county officials, from the Ordinary to constable, were inimical to the defendant, in the case; by implication, he charged that the large, intelligent, respectful and orderly assemblage of citizens then in the Court-room, was a mob, thirsting for the blood of the prisoner; that our entire people, from the devout preacher to the most humble laborer, was prejudiced against the State's prisoner; and that it was utterly impossible to impanel a jury of twelve men who would render an honest verdict in the case under consideration—notwithstanding they would be sworn to render such verdict in accordance with the law and the testimony; that the swelling tide of prejudice would swerve them from the path of duty.

"Of course this is only the honorable gentleman's opinion of the character of our citizens, and, therefore, strictly speaking, is of little consequence; but even if true, our condition might be worse —a greater infliction than all alleged depravity, might be imposed upon us. We thank our God the distinguished lawyer is not a resident of the county!

"We do not censure the gentleman for the exhibition of zeal in the defense of his client; it is right and proper—and we pray God he may be able to produce evidence abundance to free him of the serious charge preferred—but think such zeal should be bounded bya triflle of discretion. The intemperate charges preferred against our people, are, of course, *utterly false and slanderous, and we spurn them as the impotent ravings of one who has lost the vigor of youth, and now mistakes billingsgate for legal lore.

"In this connection, on behalf of the vilified citizens of the county, we tender thanks to Captain H. G. Turner, for his eloquent, vehement and masterly vindication of our character, as order-loving, law-abiding men, and peaceful, moral citizens. It was a grand spectacle to behold the cool, modest and eloquent young attorney (who will, ere long, take position at the head of the bar of Georgia,) hurling back the anathemas and rebuking the aspersions and false conclusions of one whose age and experience should have, at least, counseled moderation and discretion, when assailing the manhood, justice and morality of an entire community of high-toned citizens."

Counsel did not call attention to this matter till after the verdict, though they knew the contents of the paper. It was shown that Alexander had been at the house of Colonel Gaulden visiting his daughter till a late hour that night; that his horse had been hitched near Gaulden's gate and in sight of the public road; that his dead body was found in the road not far from a haw bush, about one o'clock that night, had, in the wound, three buckshot;. and that paper wadding, blood and tracks were found near this bush. The evidence to show that Hunter shot him was as follows:

Henry Frazer, a negro, living with defendant at the time of killing, had been out serenading, and was of the party who found the dead body. He testified as follows:

"We went home, to defendant's; he was at home when we got there; the dogs barked as we came up to the house; defendant said: 'Hello! Serenaders!' We told him what a bad misfortune we had found. He said, 'What was it?' told him we had found Mr. Alexander dead. He said: 'Lord, what a pity!' and told two of us to go into the field and hunt the horses; I and Sampson Maxwell went; we *were gone about one hour; did not get the horses; defendant Ben. Henderson and Sampson Maxwell then went on down to Mr. Alexander's body; I went to Colonel Jones', with Mitchell Harvey, to let Colonel Jones know it; defendant did not send any one to Dr. Alexander's; he made remarks about sending there, but did not send any one; next morning I noticed a mark on defendant's hand; it looked like it was scratched by the briars— the mark seemed to be fresh. Some two or three weeks before this defendant came to Quitman to get his-gun fixed, and told me not to use it any more; it was a double-barrel gun. I never heard defendant say anything about Mr. Alexander more than other gentlemen, but heard him say, 'if he and another young man was going to see a young lady, and the other young man was to cut him out unjustly, he would flog him;' have heard him say, 'he had no use for Mr. Alexander, ' but did not hear him assign any reason for it. The body of the deceased was found in Brooks county; I came down to Quitman with defendant to sell oats; we stayed all night; he and Hardy Hunter came in the buggy together; went back home next day, in the evening; I went also the next day, in the evening; he was at his mother's when I got there; I went on home with the wagon; I came after that back to Quitman with sheaf oats; Edmondson & Peacock sold them; it was late in the evening before they got through it; I suppose I was about a mile from town when dark overtook me; when I got home defendant was absent; went in the house and lighted the lamp; soon after I went out to the lot with my oxen, to take them out; I called to him; he did not answer; he came up after awhile—did not say where he was—but said he could have laid his hand upon me; in going home, I went by Abram Hunter's, Colonel Jones', Captain Gaulding's, and Mr. Morrow's; do not remember seeing any horse at Captain Gaulding's gate that night; got home that night about 10or 11 o\'clock; it was oats made this year; deceased was killed after this, I think; defendant was standing in his *door when we got there, after we found Alexander\'s body. I left Ben Henderson, Mitch Harvey, Rose Maxwell, Sampson Maxwell, Delia Thomas or Thompson, at Mr. Hunter\'s when I started off on the serenade. Ben Henderson and Mitch Harvey came to me at Col. Jones\', after supper; went serenading frequently before this; went one Saturday night with Mr. Hunter to take a bee tree; went over to Mr. Jones\', and failed taking it; loaded our cart with shucks; started back home; as we passed Mr. Gaulding\'s, he insisted that I should go and look at a horse, and see whose it was; went to...