Johnson v. State, No. 14673.

CourtSupreme Court of Georgia
Writing for the CourtJENKINS, Presiding Justice
Citation27 S.E.2d 749
Decision Date09 November 1943
Docket NumberNo. 14673.

27 S.E.2d 749


No. 14673.

Supreme Court of Georgia.

Nov. 9, 1943.

[27 S.E.2d 750]

Error from Superior Court, Henry County; G. Ogden Persons, Judge.

H. T. Johnson was convicted of murder, and he brings error.


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 Rag-land, 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

[27 S.E.2d 751]

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 this 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

[27 S.E.2d 752]

defendant, Asa Johnson, "about this time anywhere around there. * * * I did not see him that night."

The statement at the trial, by the defendant H. T. Johnson, was as follows: "We got started to the church, and this girl was standing out there, and this boy and me, and this here boy walked up there, and I said, 'Come here, ' and he said, 'You want me to come?' and I told him, 'No, you ain't no girl, ' and he said, 'I'll come anyhow, ' and he caught this girl, and we argued at one another, and I told him I would slap the p-out of him when he told me he would do something to me, and he said, 'Wait, and I will get a gun and come back, ' and he went out to his car and went around the schoolhouse, and we was out there to ourselves then, me and them girls, and he come right back to me and says, 'Well, I am back, ' and he started out with the pistol, and I shot him. I didn't shoot to kill him; I shot him to keep him from killing me."

The statement by the defendant Asa Johnson was: "Well, my business up there was going to class, trying to help Mr. Mack with the class, and he was bringing the boys from Locust Grove over there. I did not know the row was started. I was on the outside trying to see about some gas, as I had run out of gas, and I had seen him about some gas, and he told me 'No, ' and I went out to see how much was in my automobile, and I was back around next to the car, and I heard the shot made, and I went out there where the car was, and some one said it was my brother, and I didn't know whether it was him that done the shooting, and I went hunting him, and they said he was the one who done the shooting."

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...

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29 practice notes
  • Timberlake v. State, No. 36470
    • United States
    • Supreme Court of Georgia
    • October 7, 1980 ordinary diligence is insufficient. Mills v. State, 193 Ga. 139, 147, 17 S.E.2d 719 (1941); Johnson v. State, 196 Ga. 806, 807, 27 S.E.2d 749 (1943); Taylor v. State, 132 Ga. 235, 237, 63 S.E. 1116 (1908). This record is void of any reason why the defendant did not acquire this informati......
  • Bowman v. State, No. 35354
    • United States
    • United States Court of Appeals (Georgia)
    • October 7, 1954
    ...892; Jackson v. State, 56 Ga.App. 250(2), 192 S.E. 454; Kennedy v. State, 9 Ga.App. 219(4), 70 S.E. 986; Johnson v. State, 196 Ga. 806, 27 S.E.2d 749; Wright v. State, 184 Ga. 62, 71(9), 190 S.E. 663; Buttersworth v. State, 200 Ga. 13(3), 36 S.E.2d 301. The court did not abuse its discretio......
  • Robinson v. Murray, Nos. 14912, 14913.
    • United States
    • Supreme Court of Georgia
    • December 1, 1944
    ...challenges within the rule above stated. Compare Patterson v. Collier, 77 Ga. 292(3), 3 S.E. 119; Johnson v. State, 196 Ga. 806(3 a), 27 S.E.2d 749. 2. Since the jury found that the plaintiffs were not entitled to recover any sum, it is immaterial whether the judge erred in excluding eviden......
  • Weems v. State, No. S97A0860
    • United States
    • Supreme Court of Georgia
    • June 2, 1997
    ...witness whose credibility would be impeached gave the only testimony on some vital point in the case. Johnson v. State, 196 Ga. 806(1), 27 S.E.2d 749 2. Weems urges that prosecutorial misconduct at his first trial bars his retrial on double jeopardy grounds. "[P]rosecutorial misconduct whic......
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10 cases
  • Timberlake v. State, 36470
    • United States
    • Supreme Court of Georgia
    • October 7, 1980
    ...... Mills v. State, 193 Ga. 139, 147, 17 S.E.2d 719 (1941); Johnson v. State, 196 Ga. 806, 807, 27 S.E.2d 749 (1943); Taylor v. State, 132 Ga. 235, 237, 63 S.E. 1116 (1908). This record is void of any reason why the ......
  • Miller v. State, s. S11A0752
    • United States
    • Supreme Court of Georgia
    • October 17, 2011
    ......Gen., Mary Beth Westmoreland, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher Robert Johnson, Assistant Attorney General, for appellee.THOMPSON, Justice.        [289 Ga. 854] Appellants Tonya and Jabaris Miller (mother and son) were ......
  • N.L. Industries, Inc. v. Madison, s. 70230
    • United States
    • United States Court of Appeals (Georgia)
    • October 4, 1985
    ......, if notorious or actually known to the owner or his authorized representative, or from any state of facts upon which it naturally and necessarily arises." Smith v. Jewell Cotton Mill Co., 29 ...Andrews, 152 Ga.App. 572(3), 263 S.E.2d 491 (1979). See generally Johnson v. State, 196 Ga. 806(2), 27 S.E.2d 749 (1943).         3. The trial court did not err in ......
  • Brown v. State, s. S94A1099
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    • Supreme Court of Georgia
    • November 28, 1994
    ......        Johnson v. State, 196 Ga. 806(2), 27 S.E.2d 749 (1943). Further, "evidence which removes all doubt upon a material point which was before doubtful is not in ......
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