Jones v. State, (No. 6371.)

• Decision Date: 14 April 1928
• Docket Number: (No. 6371.)
• Parties: JONES. v. STATE.
• Court: Georgia Supreme Court

166 Ga. 251

142 S.E. 866

JONES.

v.STATE.

(No. 6371.)

Supreme Court of Georgia.

April 14, 1928.

(Syllabus by the Court.)

Error from Superior Court, Bibb County; H. A. Mathews, Judge.

Robert Jones was convicted of murder, and he brings error. Affirmed.

R. D. Feagin and H. B. Bell, both of Macon, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

HILL, J. W. P. Short was found in a dying condition shortly after 7 o'clock a. m. on October 7, 1927, in the back part of his pressing club on Cherry street, in Macon. His skull had been fractured by one blow on the right side of the head, just above the right ear, with some blunt instrument. A piece of water pipe about four feet long was lying near where his body was found. He died shortly afterwards from the injury, without recovering consciousness. There was no eyewitness to the homicide. No arrest was made for several days. The defendant, Robert Jones, was suspected, and officers began looking for him because he had formerly worked in the pressing club and had had some "argument" with the deceased over a suit of clothes of his which he claimed had been lost by Short's pressing club, and for which Short had given him another suit, and, according to the defendant's statement, had promised to pay him $1.50 "boot." but which difference bad not been paid. The defendant was arrested and put in jail, and was indicted for the murder of the deceased. Shortly after being confined in jail the defendant made a statement to the sheriff, in writing, which was taken down by the court reporter, in which he admitted the homicide, and stated certain facts which, if true, tended to mitigate the crime, and which his counsel contended would have authorized a verdict of voluntary manslaughter. In his statement the defendant claimed, in substance, that he went unarmed into the shop the morning of the homicide, for the purpose of asking Short for the $1.50 due him; that an argument ensued during which Short threatened him and started towards his desk; and that the defendant, believing Short was going for a gun, and alarmed for his own safety, and in the desire to escape, grabbed the iron pipe with which the back door had been fastened and against which the defendant insisted he was loaning as he talked to the deceased, and with one hand struck the deceased one blow with the pipe. The defendant then went to the front door, and looked out, and went back to where the deceased was, called and shook him and felt his pocketbook and (as he says), "prompted by the devil, " be thought that since the deed had been done he might as well get the money that, was due him, and took the pocketbook of the deceased containing about $14. The deceased was a white man about 72 years old. The defendant was a negro 21 years old. The defendant was put on trial on October 24, 1927, seventeen days after the homicide. The court appointed counsel to represent him. In his statement he explained how he had spent the money, and asked the court and jury to "have mercy" upon him. The jury returned a verdict of guilty, without recommendation, and the defendant was sentenced to be electrocuted. A motion for new trial was overruled, and he excepted.

The only ground of the motion for new trial which needs to be elaborated is thefourteenth, in which complaint is made that, during the argument of R. L. Feagin, defendant's counsel, who was making the concluding argument to the jury, and while he was arguing and appealing to their discretion that if they should find the defendant guilty they should do so with a recommendation to mercy, and not impose the death penalty, and that mercy would fully vindicate the law even if the defendant was guilty, counsel stated to the jury that:

"It is a matter of history that the states and the countries that have tried a step in the direction of greater kindliness and mercy, and have abolished capital punishment, appear to have lower homicide rates than the states and countries that still held to it. The state in the American Union (Maine) that has not had an execution for half a century has the lowest homicide record in the Union."

Counsel also undertook to read, as a part of his argument, an article by Prof. J. R. Moseley, in which the above statement was contained. The solicitor general objected to both the argument of counsel as to any comparison of the homicide rates of states and countries which did not impose the death penalty with those which did, and also to the reading by counsel as a part of his argument of the article by Prof. Moseley containing the same statement; and the court sustained the objection and ruled that the argument was improper, and stopped counsel from continuing the argument, and instructed the jury not to consider the argument of counsel as to the comparison of the homicide rates of those states and countries which did not impose the death penalty for murder with those that did impose the death penalty, and refused to allow counsel to read before the jury that part of the article of Prof. Moseley set out in the quotation above, and instructed the jury not to consider the argument on that subject. Counsel in making said argument had stated to the jury that he was making no attack on the Georgia law of capital punishment, that he recognized it as the law and the right of the jury...