Long v. The State Of Ga.

• Decision Date: 31 December 1868
• Citation: 38 Ga. 491
• Parties: JOHN A. LONG, plaintiff in error. v. THE STATE OF GEORGIA,defendant in error.
• Court: Georgia Supreme Court

38 Ga. 491

JOHN A. LONG, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1868.)

[COPYRIGHT MATERIAL OMITTED.]

Murder. Motion for new trial. Decided by Judge Parrott. Bartow Superior Court. September Term, 1868.

John Pong, as principal, and John C. Duff, as accessory, were indicted for murdering Abraham B. Echols, in Gordon county, Georgia, on the 16th of October, 1866. The bill of indictmentwas silent as to where they resided. Because a jury could not be had in Gordon county, in April, 1868, the Judge, on motion of prisoner, ordered that said case should be tried in Bartow county. On the 21st of September, 1868, the case was called, and the defendant\'s attorneys stated that they intended pleading insanity, and asked the Judge for an officer to send for witnesses; but he said it would be time enough when the issue was made. On the 24th of September, 1868, the case was called for trial. When Long was arraigned his attorneys wished to plead nothing but insanity; the Court required a plea of "guilty" or "not guilty, " and thereupon they plead "not guilty" and insanity at the time of the killing. Simultaneously Long moved for a continuance upon the grounds: 1st. That Nicklin was his attorney, on whom he mostly relied, and whom he had partly paid; that he was absent, as he believed, because he had not been informed that said case had been transferred from Gordon county; that Long himself did not know of this transfer till the 22d instant, when the officer went for him to Milledgeville, Baldwin county, where he had been confined since the finding of the bill of indictment; that he had had no opportunity of corresponding with Nicklin; that he believed Nicklin believed said case would *be tried in Murray or Dade county, he particularly having exerted his influence in having the venuechanged; that he was satisfied neither Nicklin nor his counsel knew that this case would be called in that Court till the week before or the week before that. 2d. Because of the absence of Johns Hays, T. L. Cox, R. B. Hackney, William Thompson, E. J. Kiker, William Black, Aronstead Abbott, V. Carter, and J. C. Fain, (of Gordon county, he believed;) that he had ordered subpoenas for them, and believed they had been served; that they were not absent by his consent or procurement, and that he expected to get their testimony next term; that he expected to prove by said witnesses that when Echols was killed, Echols was approaching him (Long) with a pistol in hand and another man by his side with a gun in his hand, and both in the act of shooting at Long, and expected to show such acts on the part of deceased as would make out a complete justification for Long; that he positively knew that three or more of said witnesses were present at the time, knew all the facts, and would be compelled to testify as aforesaid, and finally, that this motion was not made for delay, but to obtain a fair trial.

The Judge asked what facts the defendant expected to show by each of said witnesses, but his counsel would notchange the form of the motion. The continuance was not granted, but for some cause, unexplained by the record, the case did not proceed then.

The case was again called on the 28th of September, 1868. The attorneys reiterated his showing for a continuance as to Kicklin's absence, and asked a continuance for the further reasons of the absence of J. N. Carter, of Hall county, T. L. Cox, of Whitfield county, who had been subpoenaed, and of Wm. Lewis, of Pickens or Gilmer county, whose name he had just ascertained, by whom he would prove the facts aforesaid as to Echols approaching him with a pistol at the time of the killing. The formal parts of the showing were all correct. His attorneys introduced John Hays to prove that Lewis and Cox were present at the killing, and Hays stated, that there were three other persons present in Court who were present *at the killing. The Court refused to allow the continuance. A special jury was empannelled to try the issue of insanity.

On the 29th of September, 1868, they again moved to continue, submitting as a showing an affidavit by Long that he was not ready to proceed with the issue of insanity because of the absence of Campbell Wallace and twenty-seven other witnesses, (naming them,) of Walker county, Georgia, by whom he expected to prove that, at the time of the killing, Long was laboring under insanity or mental aberration, and that he had been, for some time previously, so afflicted, and because of the absence of said Lewis, said Cox, and said Carter, by whom he expected to prove the same facts. With this was an affidavit by Jesse A. Glenn, one of Long's attorneys, stating that on the 21st of September, 1868, he had asked for an officer to send for these witnesses, having stated his intention to plead insanity as aforesaid, and that the Court would not then send, and that, at each calling of the case since, he had notified the Solicitor General of his intention to rely on said plea. The Court ordered the case to proceed. The defendant's attorneys offered no testimony, nor would offer any. Thereupon, the Court ordered the plea of insanity stricken, and that the case should be tried under the plea of not guilty.

The case was submitted to the jury, and a witness for the State was sworn and was about to be examined. Then Long's attorneys moved to quash the indictment because the indictment was silent at Long's residence; it wanted the words "of the county and State aforesaid" after the defendants' names.

The Court overruled the motion, holding that that averment was unnecessary.

The testimony for the State was as follows:

R. C. Boon sworn said: I was present when deceased was killed, in October, 1866, I think the 10th, in Gordon county; I first saw Long at Calhoun; he was in search of a horse on Wed-nesday evening; I and Mr. Echols went home from Court; I was eating supper and heard a noise in the lane; sent myson out to see; heard some one coming, and saw Long threatening to shoot my son, with pistol in hand; Long said he would shoot me if I came where he was; he then got on his horse and galloped off between my house and Echols\'; 1 know Long, and know it was the same man with Duff, and that the horse Long had, there was a dispute about; Long rode off up the lane; he was bareheaded and the horse was without a saddle; I was standing in the yard; he rode on back; deceased was feeding his hogs as Long rode back; Long called to deceased to come to him; deceased said he would be there in one minute; deceased went to the porch, set his bucket down, turned back toward where Long was, and asked Long what he wanted; Long said he was hunting an horse thief; deceased asked Long what kind of an horse; Long said a gray horse, as well as I recollect; deceased asked who stole the horse; Long answered "Adair"; deceased said nothing more, that I heard; Mr. Cox asked Long if he were not the man who passed there a few minutes before; Long said he was not; Cox asked Long why he had no saddle, and why he was bearheaded; Long said he lost his hat while hunting this thief; Cox asked Long who were with him; he said two or three men were with him, and then fired at deceased and killed him; I remember nothing that was said, if anything was; Long then rode off and hallooed; Cox said, "follow him, gentlemen;" Long hallooed back and said, "come on and I will wait for you;" the pistol ball struck deceased just over the left eye, and the ball lodged in the back part of his head; I examined the wound; Long was about three feet from deceased when he shot; there was only deceased\'s fence between them; deceased was on the side of the fence next to his house; the killing was between sunset and dark; deceased had been home some hour before he was killed; deceased was Clerk of the Superior Court; it was two hours, by the sun, when I and deceased went home; when the pistol fired deceased dropped back and fell; don\'t suppose he moved after he was shot; Long went away, after the shooting, as fast as his horse could go; I saw Long several timesbetween Monday and Wednesday; never saw the horse till Long, Duffy and King *brought him in and were disputing about him; Long did the shooting; Cox was somewhere in the yard when Long came up; Miller was in the yard, between the house and the fence; Cox was by the side of the deceased when he was shot; Miller was on the left and Cox on the right of deceased when he was shot; I was a juryman, that week, in Gordon county; was in Court Monday, Tuesday and Wednesday, and deceased was discharging his duty as Clerk; my house is some fifty yards from deceased\'s; I was sworn on the committing trial in this case; I swore then that deceased was about feeding his hogs; I was saddling my horse as Long camebetween deceased\'s house and mine; I heard the conversation between Cox, Long and deceased; deceased was standing against the fence, and had his foot on it; the fence was some forty feet from deceased\'s house; I am not positive whether it was Monday or Tuesday, when I first saw Duff; I served on the jury three days that week; was on the petit jury; I have had no conversation as to what I should swear in this case; I was some thirty feet from deceased when he was shot.

William Miller sworn, said: I was with deceased when he was killed, not more than five feet from him; it was in Gordon county, Wednesday night, 10th October, 1866, between sun-down and dark; deceased was standing at his gap, in front of his dwelling-house, on the inside of the fence, about fifteen steps from his dwelling-house; I saw him when he went to the gap; he and I first went to the gap; we were going to feed the hogs, and were at the gap to pour in their slop; I returned to set my bucket down, and returned to the piazza; I and deceased walked on in the direction of the gap; the man who shot deceased was sitting on his horse at the fence; deceased said to that man ...