Lingo v. The State Of Ga.

• Decision Date: 31 August 1859
• Citation: 29 Ga. 470
• Parties: Albert J. Lingo, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

29 Ga. 470

Albert J. Lingo, plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1859.

Murder, in Cobb Superior Court. Tried before Judge Rice, at March Term, 1859.

Albert J. Lingo, the plaintiff in error, was indicted for the murder of Robert Duncan. He pleaded not guilty, and the case came on for trial at March Term, 1859.

In making up the jury, after the first panel of forty-eight lad been exhausted, the judge ordered the sheriff to summon a second panel of talesmen, and to notify them as he summoned them, to come into court. The sheriff, after summoning the requisite number reported their names to the judge, who ordered proclamation to be made at the door for all persons thus summoned as tales jurors to come into court. The clerk made out a list of the panel whichwas furnished the prisoner\'s counsel and called over the names thereon before the panel was put upon the prisoner. Two of the persons summoned as tales jurors, and whose names were on the list, and numbered thereon 32 and 33, failed to answer when called. The judge ordered a fine upon them and directed two others to be summoned and put in their places. Counsel for prisoner objected, and requested that the two absent jurors be called at the courthouse door by the sheriff. This the court refused to do, and counsel for the prisoner excepted.

The judge remarks, in relation to this exception, that the jury of twelve men, who tried the prisoner was made up and completed before numbers 32 and 33 on the panel were reached.

The jury being made up the following, in substance, was the evidence on the part of the State:

Elisha H. Lindley testified that at Powder Springs, in the county of Cobb, on the 5th August, 1858, he saw prisoner and Robert Duncan, the deceased, at H. J. Hopkins's grocery. When witness got down to the grocery, Duncan came out at a door at the east end of the house, by the side of the chimney, and prisoner came out into the piazza fronting the street; about that time witness stepped into the piazza and Duncan was at the end and attempted to step in and called on witness to witness that he had been running from prisoner, and that he did not intend to run any more; at that time prisoner made towards Duncan, and witness spoke to him and told him to stop, and that he was about to get into a serious difficulty. Prisoner made no reply, but made at Duncan, who commenced giving back; prisoner continued to press on him; Duncan told him if he rushed on him he would shoot him; made that remark to prisoner several times; prisoner replied, "shoot and be damned, if you do I will kill you.'' Prisoner had his stick behind him, under his coat tail; Duncan retreated, prisoner pursuing him about thirty yards, when deceased said to him, that if hefollowed him three or four steps further (witness does not remember which) he would shoot him; prisoner continued to advance, when Duncan shot at him; both were moving at the time; Duncan retreating and prisoner following, when Duncan shot. Duncan said several times to prisoner that if he followed him further he would shoot, and prisoner replied to shoot and be damned. The pistol that deceased had was a small single-barrel one, four or five inches long in the barrel. After deceased shot at the prisoner he started and ran as fast as he could, and prisoner ran after him; as prisoner started to run he drew the spear out of the stick which he had in his hand; deceased ran, and prisoner after him, around behind Dr. Reynolds\'s blacksmith shop, and they then were out of witness\'s sight. When prisoner drew his spear and started after deceased he said "God damn you, I have got you now, " or "God damn you, I will have you now." Witness went round behind the shop as soon as he could, and when he reached the parties deceased had prisoner by the hair with his left hand, and with his right hand had prisoner by the coat collar; prisoner held deceased by the shoulder; they had hold of each other; saw no weapon then in the hands of either; witness took hold of prisoner, and A. J. McCurdy took hold of Duncan, and they tried to pull them apart, but Duncan held on so tight that witness spoke to him several times to let go; we got them loose, and Duncan walked off a few steps and began to reel like a drunken man; witness still held prisoner, and the spear was lying on the ground; witness and prisoner both grabbed at it at the same time, but witness got it; did not see any blood on the spear; Mr. Keser was standing by, and witness asked him to hold prisoner so that he could go and see what was the matter with Duncan; he had fallen down on the ground; witness went up to him and saw that he was dying; witness then said to Keser that prisoner had killed Duncan; prisoner replied that he did not care a damn if he had. As Duncan fell he said that he was a dead man;he did not speak while witness and McCurdy were parting them; he did not speak a word that witness heard after he reached them, except that he was a dead man, as before stated; he died in two or three minutes after he and prisoner were parted; afterwards witness, with others, opened deceased\'s shirt collar and bosom and found a wound on his left breast a little below the nipple; the wound was small, and looked as if it had been made by the spear (now produced and shown in court.) This spear is the same that witness picked up at the place where Duncan was killed; it is about twelve inches long; deceased was carried into Drs. Cotton and Reynolds\'s shop; Dr. Reynolds and witness then took the spear and ran it into or through the hole in deceased\'s shirt where the wound was inflicted, to ascertain how far the spear ran into the body of deceased, and it passed about six or eight inches through the hole before it became tight. There was another wound on the body, two or three inches from the one just described, and was more around on the side; it was a small wound just through the skin. Prisoner was arrested; deceased limped a little; one leg had been broken, was a little shorter than the other. At the time deceased shot at prisoner they were about 12 or 13 feet apart; prisoner was not hit; saw Drs. Cotton and Reynolds probe the wound; they inserted the probe, and it went in some two or three inches; the wound bled but little externally as far as witness saw; believes that the wound caused Duncan\'s death.

Cross-examined.— (The defendant's counsel exhibited a diagram, showing the situation of the house, and of the door described by witness.)

When deceased came around to the piazza, he had his pistol in his hand, and when he went to get up into the piazza prisoner ran out and met him; by rushing towards deceased, witness meant that he walked pretty fast towards him; when prisoner walked towards deceased, deceased gave back; at that time saw no drawn weapon in prisoner'shand, but he had the stick with the spear in it under his coat tail; at that time prisoner made no effort to strike deceased, for he was not in striking distance, but was ten or twelve feet from him; as deceased retreated prisoner followed, and did not get nearer than 10 or 12 feet up to the time deceased shot at him; when witness saw prisoner come out of the house into the piazza, he seemed very much excited, and seemed to be mad; did not at any time see prisoner attempt to strike deceased, but only saw him running after him with the spear; saw deceased with a stick in his hand, but can not say whether it was loaded with lead or not; the stick was about the size of the sword cane now shown in court; thinks it was a hickory stick; deceased was a somewhat heavier man than prisoner; when witness and McCurdy separated them the hickory stick and the sword cane were both lying on the ground at the same place; about the time that witness first went up to the piazza he heard prisoner say to deceased that he, deceased, had ordered prisoner\'s mother from his, deceased\'s house; witness has understood that deceased married a daughter of Pinkerton Lingo, and that she was a sister of prisoner; prisoner\'s mother is the reputed mother of Mrs. Duncan.

A. J. McCurdy, on the part of the State, testified in substance that he was at Powder Springs on the day that Robert Duncan was killed; saw prisoner about a half an hour before the difficulty in which Duncan was killed; prisoner was in the tenpin alley rolling tenpins; Duncan came in and spoke to all of us who were in the alley, and then turned round and started out, when prisoner spoke to him, and said that he wanted to see him before he left; Duncan replied, "very well, " and walked off down the street to Mr. Hopkins's grocery; prisoner stopped rolling, and put on his coat and picked up his stick, and walked up to witness and pulled the spear out of the stick four or five inches, and told witness that he allowed to whip that damn rascal (referring to'Robert Duncan); wit-ness told him that he had better not; prisoner then went out and went down to the grocery; Duncan was then sitting in the piazza; the fuss between prisoner and Duncan then commenced; witness and Elisha Lindley went down and told prisoner that he had better stop, and have no fuss with deceased; prisoner then rushed on, following deceased up, until he came opposite to Mr. Megell\'s store; as deceased was leaving the grocery, he called on Mr. Lindley and Mr. Hopkins to take notice of what was going to happen; that if prisoner rushed on him he would shoot him; prisoner cursed him and told him to shoot; when deceased got up opposite Megell\'s store, as above stated, he shot at prisoner; deceased was rather giving back, and prisoner rushing on him at the time; prisoner had his stick (the one now produced in court) under his coat behind at the time deceased shot, and as soon as the pistol fired deceased ran and prisoner drew the spear out of the stick, drawing it in his right hand, took after deceased; prisoner pursued him around below Dr. Reynolds\'s shop...