June v. State, 19692

• Decision Date: 11 June 1957
• Docket Number: No. 19692,19692
• Parties: Dave JUNE v. The STATE.
• Court: Georgia Supreme Court

Page 70

99 S.E.2d 70

213 Ga. 311

Dave JUNE v. The STATE.

No. 19692.

Supreme Court of Georgia.

June 11, 1957.

Syllabus by the Court.

The evidence against the accused was entirely circumstantial, and was insufficient to exclude every other reasonable hypothesis save that of his guilt.

Rachel Walthour and Dave June were charged with the murder of Albert Walthour, the husband of Rachel Walthour. On the trial of Dave June the jury returned a verdict of guilty with a recommendation of mercy. His motion for new trial on the general grounds, as amended by the addition of one special ground, was denied, and the exception is to that judgment.

The State's witnesses, on direct and cross-examination, testified in substance as follows:

Jerome Keller testified: In October, 1953, he saw the defendant, Rachel Walthour, and the deceased, near the home of the witness. He heard the deceased calling for help and he went to the place they were. Rachel Walthour had the deceased down and was astride him, and the defendant was standing over the deceased and snapping a pistol at him. The witness told the defendant that he should not do that, and the defendant 'slung' the pistol on him. The witness hit the defendant and the defendant fell down and dropped the pistol. At that time the defendant said that he would kill the deceased, calling him a vile name. The defendant is married to a sister of the deceased.

Major Jackson testified: The defendant was at the home of the witness about a month before the deceased was killed. At that time the defendant pulled a pistol out and threatened the deceased and his son, Dave Walthour. The defendant stated to the deceased: 'Me and you done been in it twice * * * the next time I will get your gigler [sic] vein.' The defendant made other threatening statements to the deceased, accompanying them with vile oaths.

Carol Barnard testified: On the date of the homicide the witness and the defendant were working at the same mill. When they were paid that evening the defendant made the statement to her that 'he was going to get full of whisky at McKinley Pyott's and he was going to kill him a son-of-a-bitch that night.'

McKinley Pyott testified: He operates a confectionary. On the evening before the homicide occurred, the defendant, the deceased, Rachel Walthour, Moses Walthour (son of the deceased), and Moses Walthour's wife were at his place of business. The Walthours and the defendant did not engage in any conversation while at his place. After the Walthours left, the defendant left.

Rosa Lee Walthour, daughter-in-law of the deceased and Rachel Walthour, testified: 'On May 4, 1956 I was at home in bed at Albert Walthour's house, * * * I was there when Albert and Rachel Walthour were there. They left home that evening about dusk dark and said they were going to McKinley Pyott's. * * * When I wake up they was in the house. I wake up when Mr. Albert was cut. * * * The first thing I heard when I woke up was Albert said he was cut, and was down there by the foot of the bed down in the floor and he said he was cut and he got up and said I am going to kill you Rachel and went and got on the front steps and Miss Rachel went and got a basin of water and washing his face, and I told Cecil to light the lamp so she could see what she was doing, and Mr. Dave [the defendant] was coming, I don't know what he was coming for, he was coming up there to the house, and he said me and you will kill the [vile name] if he ain't dead yet and so he said I will go and get Mr. Joe and carry him to a doctor, and he went to Mr. Joe's house and when Mr. Joe come he said he was dead, and then I got up and went out outside where Mr. Albert was, lying down in front of the steps. I did not see Dave June when he nade that statement, heard him. * * * He lived about one hundred yards from me. * * * I heard Albert, when he went out to the front steps he called Miss Madelyn [his sister and the defendant's wife] about four or five times and he never did say no more after he called Miss Madelyn, and she answered and said, 'Son, what do you want?' and he never did say anything else. Dave June was coming up there then. * * * I think that the last time I saw Dave June at Albert's house was about before or after Easter. Dave June made a statement at this house that if Albert did not keep his name out of his mouth he was going to kill him. * * * I first saw Albert out there on the front steps, at the front steps. * * * I did not get up until after Albert was dead. Albert came in the house, he was down on the floor, and he got up and said I am going to kill you, Rachel, and he went out on the front steps and called Miss Madelyn. When Mr. Dave came up he was calling Miss Madelyn. Albert was calling his sister. * * * Dave came over there after Mr. Albert was calling his sister. * * * As to whether I heard Rachel make any statement about who killed Albert, no sir, I didn't hear her make no statement. She said she did it. As to whether Rachel made a [sic] in my presence that she had stabbed him and didn't intend to kill him, yes, sir, she said she did it but didn't intend to do it. I did not hear her say at that time anything about Dave June doing anything, * * * If she had said so I would have heard her. * * *'

Frank Givens, the operator of a funeral home, testified that he examined the body of the deceased, and that the cause of death was loss of blood from a stab wound.

Moses Walthour testified: 'I live in my own house about a quarter of a mile front of his house, Albert Walthour's house. * * * I did not examine the place pretty well that night. I examined it next morning. I came through tobacco field and it looked like where somebody was tusseling and I went walking on out in the field and saw Mr. Dave's tracks out there. * * * I know they were Dave June's tracks because he is sparrow toed, his right feet. Well, he had on some work shoes with some label on the bottom of them is the reason I know they were his tracks. I didn't work with him. I would say I saw Dave June every week end, lots of time through the week. These tracks were in the back of the field, about 200 yards I say from my father's house. * * * The ground looked like where somebody had tusseled and tore up the ground and I walked off and saw some tracks. They were going out of the field, they were not coming in. They looked like they, that was in the morning and it looked like sometimes that night. I cannot tell when they were made approximately. He was walking I could tell, * * *. I just saw where he came across the field out there, I thought he might have come out there too, heard mama and them out there in a fuss and come out there to try to stop them. * * * As to whether I recognized anything else at this point that I was telling about a while ago, no, sir. No tracks other than as stated. * * * As to whether I saw more than one set of tracks, no, there was a lot of tracks out there in the field but not where I was at out there but the tracks I saw I know was Mr. Dave's tracks. * * * As to whether I heard my mother make statement that she killed this man, no sir, I didn't. As to whether I heard her say that she did it, yes, sir, I heard her say that. I don't know who the other tracks out there was. I am familiar with my daddy's tracks. I saw some of them there. My daddy is a little sparrow toed in both feet and he had on a pair of shoes that the bottom was about off of them, the half sole of the bottom was about off. * * * As to what else I saw there on the ground, not right there, I saw some blood further off from there. In the edge of the yard. As to which direction that came from, I don't, it was just a little bit a puddle of it, just a little drop of it.'

A. L. Kelly, Coroner of Long County, testified: He went to the home of the deceased on the night of the homicide. He found the deceased lying about four feet from the front steps. His left jugular vein had been cut in two by a knife. The witness saw a bloody cap on the back porch. Rachel Walthour told him that: the deceased hit her on the side of the head, and she told him not to hit her again; he hit her again, and she cut him with a knife; nobody was with her when she cut him; she put the knife under the front of the house. The witness found the knife under the back of the house. There was blood in the yard, at the back of the house, then through the house, and a puddle of blood in the front room.

Paul Williamson, Chief of Police of Ludowici, testified: He examined the deceased on the night of the homicide. The cause of death appeared to be a stab wound in the...