Mccuffie v. The State Of Ga.

• Decision Date: 30 April 1855
• Docket Number: No. 86.,86.
• Citation: 17 Ga. 497
• Parties: ZephEniah McCuffiE., plaintiff in error. vs. The State of Georgia, defendant.
• Court: Georgia Supreme Court

17 Ga. 497

ZephEniah McCuffiE., plaintiff in error. vs. The State of Georgia, defendant.

No. 86.

Supreme Court of the State of Georgia

APRIL TERM, 1855.

Indictment for murder, in Floyd Superior Court. Tried before Judge John H. Lumpkin, May Term, 1854.

This was an indictment for the murder of John H. Wallace.

A former bill for the same offence was quashed and a new one found. The following points were made on the trial: when the fourth panel of forty-eight tales Jurors was put upon the prisoner, his Counsel objected to the array on the following grounds:

1st. That the High Sheriff was absent from Court and the Court could not legally be held without him.

2d. That two panels had been summoned together.

3. That after one panel of forty-eight, every subsequent panel should consist of a less number.

4th. That the panel had been summoned by persons, some of them Bailiffs, and one a private citizen, whose only authority to act was the order of the Deputy Sheriff. These objections were all overruled by the Court, and the defendant excepts. (The above panel were all set aside for cause.)

Joseph Waters and John Rogers having been appointed by the Court as triors, and one Juror having been sworn in chief, the Court directed one J. W. George, a Juror challenged by the defendant, to be tried by the same triors, without joining to them the Jurymen who had been sworn in chief, the prisoner making at the time no objection, and this is assigned as error.

After two Jurymen, to wit: Thomas and Andrews, had been sworn in chief, they were directed to act as triors, and acted as such through the impannelling of the Jury, without joining to them the other Juryman as they were sworn; and this is alleged as error. A Juror named Russell was objected to by defendant, because he was not a resident of the county at the last revision of the Jury box, so that his name was not in the box; and another named Morris, because he was not of age at the last election for members of the Legislature.

The objections were overruled, and the defendant excepts.

When panel No. 9 was put on the prisoner, it was objected to because twenty-four of the number were the regular panel for the second week of the Court, and had been summoned before the trial commenced; because some of them had already been put on the prisoner in other panels; and also, that many of them had been summoned on Sunday.

All which objections the Court overruled, which is alleged as error. All these Jurors were set aside for cause.

The Jury being impannelled, the following testimony was introduced in the cause:

A. S. Lorring, sworn by the State, says: that on July 18th, 1852, in this, Floyd County, the killing of John H. Wallace by the prisoner accused, he, witness, and Mr. Jones were in copartnership in making brick; they had two yards in one enclosure, and in the evening of the 18th day of July, Zepheniah McGuffie, the prisoner, came to witness to borrow a wheel-barrow to carry some boards to cover a house inside one of the yards, for Mr. Jones. Witness loaned prisoner the wheel-barrow, and the next thing he saw was deceased and prisoner pulling at the wheel-barrow. Deceased pulled prisoner and wheelbarrow both in the direction of Mr. Jones' brickyard. Deceased was attending to the brick-yard for Mr. Jones; was an overseer in the yard where there were about half dozen hands at work; deceased pulled prisoner and the wheel-barrow to where the brick were. Prisoner said to witness, do you allow this damned rascal to have the wheel-barrow? Prisoner then gathered up a stone and followed deceased on to the yard, swearing as he, prisoner, went, that he would use that stone on deceased; the next thing I saw, deceased was loading his wheel-barrow with brick; prisoner went up to where deceased was, and turned the wheel-barrow over; then deceased caught prisoner, took him by the collar, shook him (prisoner) until his hat dropped off, and said to prisoner, go away and let me alone; but deceased did not strike prisoner; prisoner then put on his hat and started off in the direction of Mr. Walker's; thinks prisoner boarded with Mr. Walker; from the brick-yard to where Walker lives, it was between one-half and three-quarters of a mile; the next thing he saw of prisoner he was coming back to the brick-yard with a gun; was gone between half and three-quarters of an hour; prisoner had a double-barrel shot gun, worth about ten or twelve dollars. Prisoner walked into the yard and said to deceased, now God damn you, leave here or I will kill you, and raised his gun to his (prisoner's) face; de-ceased was engaged, with others, at the time, packing brick; and he said, boys, go and take the gun away from him; some of the boys said, Mr. McGuffie, don\'t shoot here; then prisoner took the gun down from his face; prisoner was twenty or thirty yards from deceased; deceased said to prisoner, if you raise that gun again I will throw a brick-bat at you; prisoner raised his gun again, and deceased threw the brick-bat at him, and then deceased jumped over the brick-hack; where he jumped over it was between three and four feet high; when prisoner first put the gun to his face, deceased was standing in the crowd; when deceased threw the brick-bat at prisoner, he jumped over the hack and was in the act of picking up another brick, when prisoner walked round the end of the hack, fifteen or twenty feet and shot him in the lower part of the abdomen with a load from one barrel of the shot gun; the other barrel was cocked; when the gun fired deceased fell; prisoner then passed across the yard to where witness was, a distance of some seventy-five yards, and said, God damn him I have shot him too low; I intended to shoot him through his God damned heart, and he is not the first man I have shot; prisoner came over into the yard where the witness had charge of, and commenced loading the barrel he had just shot; witness then went over to see if deceased was dead; he found him lying on his belly, under the sill of the house Mr. Jones was building; deceased asked witness for water, which he gave him; while there the prisoner came then in fifteen or twenty steps of where they were and asked if he was dead; deceased replied he was not, and that if it was God\'s will he hoped he would not die; prisoner said God damn you, don\'t give me any of your sauce, or I will give you another charge; while loading his (prisoner\'s) gun in the yard, he boasted a good deal and said none of the McGuffie\'s had ever been run over and he would be God damned if he should; there was a fence between where prisoner was standing and where deceased was lying; the fence was made of plank upright, with two inches of space between them; deceased was lying where he could see prisoner, and when prisoner said God damn you, don\'t giveme any of your sauce or I will give you another charge, he took the gun down from his shoulder and put it to his face. Deceased was twenty or thirty yards, when shot, from where the sill was, under which he was afterwards lying, and prisoner tried to go about one hundred yards from where he was loading his gun to the house where deceased was lying; deceased had as much control over the wheel-barrow as witness did; deceased lived four days after he was shot, when he died; witness saw deceased in the time he was confined; was present when he died; witness thinks died from the wounds.

Cross-examined—The enclosure contained about two acres; there was a fence all around; there were two brick-yards within their enclosure; witness and Mr. Jones were in co-partnership in one yard, the other belonged to Mr. Jones, and deceased controlled the hands of Mr. Jones' yards, and witness those of the other; Mr. Jones was having a house built. Mr. McGuffie was in the employ of Mr. Jones. Witness was at work in one yard, deceased in the other, prisoner on the house; the wheel-barrow belonged to Mr. Jones, but the understanding between Mr. Jones and witness was, that the wheel-barrow was as much for one as the other, while they were together; from the time that witness let the prisoner have the wheel-barrow, it was between one hour and half, before he saw them scuffling; witness says that prisoner asked him if he allowed the damned rascal to have the wheel-barrow, and to the best of his recollection so stated it before; witness says the reason why he did not reply to prisoner was, that he knew deceased had as much control over the wheel-barrow as witness did; there was considerable difference in the size of deceased and prisoner; deceased was considerably larger than prisoner; when deceased took the wheel-barrow, prisoner took up a rock and followed deceased; but there was nothing to prevent his throwing the rock. Mr. Jones was not at the yard at the time; prisoner made no resistance when deceased shook him; witness says deceased did not throw but one brick, and thinks he did not say in the former trial that deceased threw more than one brick; witness says there was no difficulty between he andprisoner that he knew of; prisoner accused him of taking his boat, for which witness paid prisoner; witness had some one\'s boat, but don\'t know whether it was his or not.

Samuel Stewart, sworn, says: Prisoner came to him and gave himself up; witness asked him what it was for; prisoner replied, he had shot deceased—had shot him too low—had intended to shoot him through the heart—said take me and hang me or do what you please with me; this was all he (prisoner) said at the time.

Samuel Johnston, sworn, says: He was going down to where the difficulty had happened, and met prisoner, perhaps in the custody of Mr. Wimpee; witness asked prisoner if he was the one who had shot deceased; his reply was, that he was the one; witness then asked if he thought he had killed him; prisoner said no, he thought not—said he intended to shoot him in the heart, but that he was a little frightened, and that deceased was in the act of throwing at him at the time, and let the gun...