Johnson v. State
| Decision Date | 15 April 1884 |
| Citation | 72 Ga. 679 |
| Parties | JOHNSON v. THE STATE OF GEORGIA. |
| Court | Georgia Supreme Court |
February Term, 1884.
1. Where it appeared that one accused of murder had been accosted by the brother of the deceased, and was the aggressor in a series of altercations which culminated in a deadly struggle between the two, during which the accused wrested his antagonist's pistol from him, and fired a shot or two over his head or at him, when the deceased ran up from the store of his brother to the scene of the fight, and as he approached, the accused turned the pistol upon him, and shot him down, and then turned it again upon his former antagonist, such facts should not have been left entirely unnoticed in charging upon the subject of reasonable fears and an omission to charge concerning them will require a new trial, although the law of reasonable fears, as between man and man, was properly and clearly given. If the facts and circumstances surrounding the accused were such as to excite the fears of a reasonable man that a joint felonious assault was being made upon him, the verdict should be justifiable homicide; it should be voluntary manslaughter, if they were such only as to excite the fears of a reasonable man that some bodily harm, less than a felony, was imminent and impending; it should be murder, if the circumstances were not such as to excite the fears of a reasonable man that he was in any serious danger at all.
2. It was admissible to prove the remark of deceased, as he left the store, as a part of his act in going to the scene of the contest.
3. The dying declarations proved were admissible, as qualified and guarded by the charge; but perhaps it would have been better to have guarded more clearly the words, " whether such death was approaching fast or slow; " and the dying declarations, being merely cumulative, might be dispensed with entirely.
Criminal law. Murder. Manslaughter. Reasonable Fears. Evidence. Dying Declarations. Before Judge BOWER. Dougherty Superior Court. October Term, 1883.
R. M Johnson was indicted for the murder of John Cooper. On the trial, the evidence for the state was, in brief, as follows:
Joseph W. Cooper, the brother of the deceased, had had a misunderstanding with the defendant in regard to the right to sell soda water at a barbecue conducted by one Marshall Merritt, colored. Cooper claimed that Merritt had granted him the right to sell soda water there, and that, just as he was preparing to go, he received a note purporting to come from Merritt, stating that he had previously granted the right to defendant, and requesting him not to bring his soda fountain to the place. Cooper was very indignant at this, and expressed himself in unmeasured and indecent language. Some two or three weeks afterwards, Cooper met defendant at the store of one Shackelford in Albany. This store was located near a store kept by Cooper, and in which his brother, the deceased, clerked. A little further on was a store kept by one Ratliff. Cooper had sent defendant word to stop and see him as he went home, and defendant, for that reason, had a pistol in his pocket. Cooper showed the defendant the note and asked if the latter wrote it. Defendant pulled it out of his hand, tore it in two, and said that he did not know whether he wrote it or not. Cooper said, " You don't know your own handwriting?" Defendant then denied it and said that, if Cooper would go with him to the store of Ratliff, he would prove it. They started to Ratliff's and on the way other abusive language was passed between them. Cooper testified that on the way, defendant said that he did write the note, and was " man enough to stand up to it; " that he (Cooper) said, " Any God-damned man that would forge a note on a negro is a scoundrel, and as mean as a dog, and is not honest; " that defendant said he would not stand that; that Cooper replied, " I don't care whether you do or not; " that defendant whirled round, put his hand in his pistol pocket, and pulled out his pistol; that Cooper pulled out his also; that defendant said, " You draw your pistol on me?" to which Cooper replied, " Yes, you drawed yours; " that defendant invited him to go down to the river and fight it out; that Cooper said, " Here is the place," and that they would fight it out there; that they started on again; that defendant whirled and caught Cooper with his hand; that Cooper struck defendant with his hand, kicked him, and struck him with his pistol, which defendant grabbed and wrenched from him, and saying, " You had the advantage of me, but I have got you now," stepped back and commenced firing; and that he fired the first shot nearly straight up, and the second a little lower. The other witnesses for the state testified that the parties started from Shackelford's to Ratliff's; that Cooper stopped on the road, stooped on the ground, and said, " Here is the place to fight it out; " that he struck at defendant with the pistol, slapped and kicked him, that defendant wrenched the pistol from his hand, and began firing at him. They did not see any pistol in the hands of defendant until he took the one from Cooper. About the time of the first or second shot, the deceased, the brother of Cooper, came from the store towards the place of the difficulty, going rather in the direction of his brother than of the defendant. He said, " Joe, stop your damned foolishness, and come back in the store." Defendant turned and shot him, and then turned and fired at Cooper, his original antagonist, wounding him. Deceased was in his shirt sleeves, and no weapon was seen about him. As defendant was preparing to fire again, one Jones caught him, and one Pinson, who was a connection of defendant by marriage, persuaded him to go to Ratliff's store. Joe Cooper grabbed a pistol from the hand of a negro near by, and snapped it towards defendant. He testified that he had been drinking some, but was not drunk; that defendant was cursing him from the front of Ratliff's store when he snapped the pistol at him; that he (Cooper) did not draw a knife, and had none during the difficulty. The negro, from whom he said he obtained the pistol, testified that it was out of repair; that he had it in his hand because he heard it was against the law to carry it hidden; that he was employed by Cooper, and was crying to think he was shot; that Joe Cooper snatched the pistol from his hand near the door of Ratliff's store, and went over to Ratliff's, and snapped several times towards defendant.
When the deceased started from the store to the place of the difficulty, he asked a person in there to remain until he came back, and said he was going to bring Joe Cooper back.
Dying declarations were shown, which were proved by a witness substantially as follows:
W. B. Bennett sworn, said: John Cooper is dead; I was with him the day before he died; he talked sensible to me Sunday morning; he said he would never get over it; he died on Monday morning, and that was Sunday morning before sun-up; I asked him how it occurred, and he told me that somebody told him that Joe Cooper and defendant were having a difficulty, and he ran out there, and told Joe to stop his damned foolishness, and come in and attend to his business, and he said he turned his side to defendant, and defendant shot him. He said defendant had fired two shots then; the third shot hit him, and the fourth shot hit Joe. He said he took no part in the fuss, only to tell Joe to stop his damned foolishness, and come into the house. He did not say what he had. He said he run out in his shirt sleeves.
The evidence for the defendant was, in brief, as follows:
Threats made by Joe Cooper were communicated to defendant, and he was told that the Coopers were very angry about the note; and he said before going to town, that he supposed the Cooper boys were going to " tackle him." His brother asked him what about. He said about some foolishness, and that there would be nothing of it; that it was about a note, and the Coopers said they were going to kick him, if he came to town that evening. He went; was met by Joe Cooper at Shackelford's store; they started to Ratliff's to settle the question as to the writing of the note. Cooper stopped on the way; said that was the place to settle it; called defendant a God-damned coward; told him he was afraid to draw his pistol, and pulled out his own, defendant having his hand in his pocket. Defendant said, " I will give up; you have got the advantage of me." Cooper slapped defendant with his pistol. Defendant threw up his hand, grabbed the pistol, took it from Cooper, stepped back, and fired on him. The deceased, John Cooper, who was a brother of Joe Cooper, came running up with a pistol in his hand. The defendant fired upon him, and then again fired upon Joe Cooper, and ran into Ratliff's. Joe Cooper grabbed the pistol from his brother's hand as the latter fell, and snapped it at defendant as he ran into the store.
A witness for the defendant testified that the negro, who swore that the pistol last snapped at defendant was obtained from him, had previously told the witness that Joe Cooper did not get a pistol from him during the difficulty.
The note about which the controversy arose was, in fact, written by one Jordan Merritt, a son of Marshall Merritt; and he signed his father's name because he was at the head of the enterprise, and the father had told him to sign his name whenever he wanted to.
The jury found the defendant guilty of voluntary manslaughter. He moved for a new trial, on substantially the following grounds:
(1.) Because the verdict was contrary to law and evidence.
(2.) Because the court refused to allow defendant's attorney to ask B. T. Jones, a witness for the state, whether he had not had a difficulty with Jim...
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