Johnson v. State
| Decision Date | 09 November 1943 |
| Docket Number | 14673. |
| Citation | 27 S.E.2d 749,196 Ga. 806 |
| Parties | JOHNSON v. STATE. |
| Court | Georgia Supreme Court |
On March 22, 1943, H. T. Johnson and his brother, Asa Johnson were jointly indicted for the murder of Grady Solomon with a pistol, on May 22, 1942. On March 24, 1943, the defendants were tried jointly. H. T. Johnson was found guilty, without a recommendation to mercy. Asa Johnson was found guilty, with a recommendation, and was sentenced to life imprisonment.
The defendants filed separate but similar motions for new trial on the general grounds, and on the ground of newly discovered evidence. They brought to this court separate writs of error from the refusal of a new trial. Although the general grounds are not abandoned, they urge especially the ground of newly discovered evidence, based upon affidavits filed under the statute, some of which were resisted with a counter-showing by the State.
Under the disputed testimony, on the night of May 22, 1942, the defendant, H. T. Johnson, shot Grady Solomon in the abdomen with a pistol, from which death ensued a few days later. The shooting occurred near a schoolhouse at McDonough, where a crowd had gathered for commencement exercises. Solomon was in the crowd with a girl, Willie Ruth Ragland, when H. T Johnson appeared, and asked the girl to come over where he was, but she would not go. Words passed between this defendant and the deceased. The defendant threatened to slap the deceased, who told the defendant that he was not afraid of him. The deceased left the place for a few minutes, and went to his automobile. According to one witness for the defendant, the deceased said just before he left that 'he was going to get a gun;' but according to the other witnesses he did not make such a statement. According to all of the witnesses, when the deceased returned, he had no pistol, knife, or other weapon, and none was found after the shooting; and he only said to the defendant, H. T. Johnson, 'Well I am back now,' without any menacing gesture, before his defendant fired.
Henry Lowe, a witness for the State, testified that he did not know what the trouble was about, but he was standing with the crowd close to those concerned, and saw the defendant Asa Johnson, and another young colored man, Theotis Walker, grab Solomon, the deceased, just before 'this other Johnson boy * * * walked up and shot him;' that when the deceased was shot 'he was trying to get loose,' and had no weapon; and that H. T. Johnson 'was almost close enough to put the pistol on him.' This witness had not testified at the commitment trial or before the grand jury.
Preston Jackson testified for the State, that he saw the deceased just before the homicide, and, as he was leaving, 'heard a boy say, 'All right, let's get him." but didn't know who said it, and that then Asa Johnson and Theotis Walker grabbed the deceased, 'and H. T. shot him;' that when they grabbed him 'H. T. was right up on him when he shot him with the pistol,' and the deceased was 'just trying to get away;' and the witness did not see any knife, pistol, or other weapon of the deceased. This witness had not testified at the commitment trial.
Willie Ruth Ragland, the girl who was with the deceased, testified as to what H. T. Johnson had told her and the deceased; that the deceased had not said anything to that defendant; that when the deceased left and came back, she 'saw all three of them [the two defendants and Walker] on [the deceased], and that is when I heard the shot;' that 'no one was helping' the deceased, 'all three were against' him; but that she did not know who fired the shot.
Lacy Thomas testified for the State, as to an argument between the defendant H. T. Johnson, and the deceased, before the homicide; that the defendant left the place, and when he returned there was 'some argument; and that is when I saw H. T. have his gun on [the deceased] and shoot;' that the witness 'did not see Asa Johnson and Theotis Walker at that time;' that the witness was fifteen or twenty feet away, but it was in the light; that when he 'looked around, H. T. had the gun and brought it up and fired it; when H. T. brought up the gun, [the deceased] reached for the gun that H. T. had; I did not see [the deceased] with anything in the world;' that 'when this pistol fired, just H. T. and [the deceased] were together, * * * there wasn't anybody down on top of each other when it happened, if they had been I could have seen them; I did not see Asa Johnson and I did not see Theotis Walker hold of anybody at that time; that is all I seen at the time I saw them when the pistol fired * * * when I looked around, nobody was holding anybody.'
Zelma Calhoun, sister of the deceased, testified that she was a practical nurse at a hospital, and was there with the deceased just before his death; that he knew he was dying, and on the day of his death told her that 'he was going to die,' and asked, 'Has he got those boys locked up?' 'I said, 'they have H. T. locked up,' and he said, 'They didn't give me a chance. Asa held me and this other boy took the pistol and shot me.''
Thomas Solomon, father of the deceased, testified that he heard the shooting, but did not know his son had been shot; and while he testified that he saw H. T. Johnson with a pistol in his hand, and that he 'saw Asa Johnson, his brother at that time,' he also said that he 'did not see anybody but those two,' one who 'was standing upright when he was shot, and H. T. was standing upright from what I could see;' but that 'there was plenty of other people there.'
H. M. Amis testified as to a declaration by the deceased, after being shot and being told by the doctor that 'everybody who had been brought in with that type of wound had died,' in which the deceased said that H. T. Johnson 'and his brother had killed him, and that he shot him without any cause;' and that 'H. T. was the one who shot him, and that his brother was with him.'
For the defendant, Sammie J. Price testified, that when the deceased 'went towards his car * * * he said he was going to get a gun;' that when the deceased came back in five or ten minutes, or not that long, all he said was, 'Well, I am back now;' that the witness saw no weapon on the deceased, and did not hear him mention having one; and that when the deceased 'got shot, he was not doing anything * * * I didn't see him do nothing.' This witness did not see the defendant, Asa Johnson,
The statement at the trial, by the defendant H. T. Johnson, was as follows:
The statement by the defendant Asa Johnson was:
A summary of essential statements in the affidavits of alleged newly discovered evidence, which were supported by other affidavits as to associates and good character of the witnesses, is as follows: Arvin Pullen swore that he was in front of the McDonough colored schoolhouse at the time of the homicide, and 'saw fire from the pistol, but did not see the shooting;' and that Henry Lowe, a witness who testified for the State at the trial, 'was not up at the schoolhouse when the shooting took place,' but when the witness passed Lowe's house down the road, Lowe 'came out to the road from his backyard, and asked what had happened up there, deponent said, 'They tell me that the Solomon boy got shot,' and Henry Lowe said, 'Oh, that's mighty bad, I sure do hate that,'' and 'then went on up toward the school-house.' Ross Thompson and Oscar Wynn made similar affidavits.
Ezra N. Downer, boy scout field executive for colored youth, stationed at Griffin, made affidavit that he saw the shooting while he sat in an automobile, and saw H. T. Johnson fire a pistol, 'but no one was holding [the deceased] at all when he was shot;' and that testimony given at the trial as to two persons holding the deceased was untrue.
The affidavit of Clarence Davis also stated that at the time of the shot Asa Johnson was not holding the deceased or 'doing anything' to him; although this witness said that, shortly before the shot, 'Theotis Walker came up and caught hold of [the deceased] and wanted to know what he was fussing about, but Walker had already turned [the deceased] aloose when H. T. Johnson came back, and did not have hold of him at all, and nobody had hold of [him] when [H. T.] fired the pistol.'
In an affidavit by John...
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