Mercer v. The State Of Ga.

• Decision Date: 31 January 1855
• Docket Number: No. 31.,31.
• Citation: 17 Ga. 146
• Parties: Jacob Mercer, plaintiff in error. vs. The state of Georgia, defendant in error.
• Court: Georgia Supreme Court

17 Ga. 146

Jacob Mercer, plaintiff in error. vs. The state of Georgia, defendant in error.

No. 31.

Supreme Court of the State of Georgia

JANUARY TERM, 1855.

Murder, in Stewart Superior Court. Tried before Judge Crawford, October Term, 1854.

The first error assigned in this case is, that the ques-tion, "Have you any conscientious scruples as to capital punishment, " was put to the Jurors on their voir dire, though the offence was committed prior to the Act prescribing that question. Defendant made no objection, at the time, nor was the Court called in to decide upon the legality of the question.

The main error complained of, was the refusal of the Court to grant a new trial, on the ground that the verdict was contrary to the weight of the evidence.

The evidence submitted to the Jury was as follows:

Wiley King was present the day of the homicide of Lee. It was done at Clem Clements', in Stewart County. The first he knew of the difficulty, Green B. Lee (the deceased) knocked down Samuel Wright and stamped him and told him to. leave, a dam scamp; that he had promised to vote a Whig ticket and had voted a Democratic ticket. Wright, as quick as he could, got up from under Lee. and left the house. Lee was standing in the door cursing Wright when the skirmish took place. Clements and witness were leaning on the counter talking to each other. Witness heard a scrimmage behind him—did not pay much attention to it at first, but hearing such a noise, he turned around to see. He saw Mercer and Lee; Lee was about one pace from Mercer, leaving the house, apparently in great haste. Witness saw blood shining on the floor, and Mercer was standing with a bloody knife in his hand; his hand and his face were both covered with blood, and blood was dripping from both. Witness stepped up to his side, saw him shut his knife and put it in his pocket. He, Mercer, followed Lee out of doors, and witness followed Mercer. Witness saw Lee lying on the ground flat of his belly; Mercer stepped up in 4 or 5 steps of him and stopped. Witness observed to Mercer that he (the latter) had killed Lee, and that he must stay there until the families of Lee and Mercer were both sent for. Witness took hold of Mercer and a short barreled gun which Mercer held in his hand. Upon witness telling him that he had killed Lee, Mercer said, did you see me do it? Witness told him that he did not see him hit him the lick or licks which killed him, 'but that he saw him, with his bloody knife and hisface and hands all dripping with blood; that he saw him shut his knife and put it in his pocket. When witness told him that he, Mercer, after a little while, let loose the gun which he had hold, slipped his hand into his pocket, pulled out his knife and threw it away. Witness told the crowd present where they might go and find the knife; they hunted for it there and found it. Old man Lewis Lee and his family came up about this time and witness gave Mercer up to Lewis Lee —Lewis Lee was bailiff—telling L. Lee that he might do as he pleased with Mercer, and L. Lee said he would try and take care of him. Lewis Lee pressed witness, in behalf of the State, to help guard him that night. Witness said he would do no such a thing, unless he, Lee, got a rope and confined Mercer. A rope was sent for and put around Mercer\'s neck; witness said that somebody might give Mercer a knife to cut loose and suggested to have his hands tied down. Another rope was obtained and Mercer\'s hands tied down with it; prisoner at the bar is the Mercer spoken of by the witness; the difficulty took place a short time after dark, there was a candle burning in the room; witness was not exceeding three steps from where he saw Lee and Mercer, when he turned around to look, after hearing the skirmish; did not see or hear anybody else in the room when he so turned around, except himself, Clements, Lee and Mercer; thinks that if any other one had been in the room, he would have seen him. From what he saw and heard, he thinks only the four persons above mentioned were in the room at that time. Prisoner did not have his gun inside of the room, but as witness thinks, he got it in the porch. Mercer was very bloody, the right side, the right hand and the right side of his face were all bloody and dripping with blood. Green Lee had fallen down, and as witness thinks, was dead when witness and others got out to him; he lay not more than 14 or 15 steps from the house; witness saw the wounds of Lee examined after Lee\'s death; saw six wounds on Lee, one was under the left jaw, and the neck vein was there cut in two; one was below that, just above the collar bone; and the vein was cut in two there also; another was on the. lower part of the head, behind about where the skull and neck join; two others were on the left side, situated rather towards the back; one was nearly, but not quite in the center of the breast. Witness thinks that one of the wounds in the side seemed to reach the hollow, and as some thought, cut his liver; the wound under the left jaw witness thinks was about an inch or two deep; it was large enough to swallow the whole knife blade.

Wiley King, cross-examined for the prisoner, says: that prisoner was, as far as witness knows, a man of peaceable and clever character. Witness had lived near him some 8 or 10 years. Green B. Lee was, as it was said, Mercer's brother-in-law. Witness knows nothing against Green B. Lee's general character for peace and quietude. Witness saw deceased on that day there drunk; deceased had a fight with Samuel Wright on the night of the day of the killing. Samuel Wright was standing near the door doing nothing, when deceased knocked him down and stamped him. Deceased told Wright, he, Wright, had promised him, deceased, to vote a Whig ticket, and that he, a damned rascal, had voted a Democratic ticket. Deceased called Wright a damned rascal and damned scamp, and tod him to leave, and was abusing him up to the time the difficulty took place with deceased and prisoner. Wright did not return after deceased had knocked him down, nor did deceased knock Wright again. Deceased was standing in the door, inside of the house, cursing and abusing Wright. Wright had gone out of the house, as humble as any negro or dog, but witness does not know whether Wright went out in the piazza or out in the yard. Witness saw the fight between deceased and Samuel Wright, but did not see Mercer, the prisoner, at that time. When witness heard the scrimmage, witness turned round, but did not see prisoner strike a blow. Witness heard deceased cursing from the time deceased knocked Wright down, up to the time the scrimmage took place. Witness has frequently seen deceased and prisoner at gatherings together —so fas as witness knows, they were friendly. Witness does not know that prisoner was drunk on the day the killing took place. Witness did not see prisoner drunk. Witness did notsee or hear of deceased being in any other difficulty that day or night. Witness and deceased had no difficulty with each other on that day or night. Witness was a little groggy on the fore part of that day. Witness did not drink any in the evening, according to witness\' best recollection and knowledge. Witness did not drink any after three o\'clock of that day. Witness was not drunk at sunset of that day. Witness did not, after sunset, have out his knife in his hands with his sleeves rolled up, and swear he would have his supper off of that crowd before he left there. Witness does not know anything about his walking about in a rage with his sleeves rolled up after sunset of that day, cursing and swearing. Witness, at the time of the killing, lived about four miles from the place, where the killing took place. Witness moved from the place he then lived at in January last. Witness now lives in Pike County, Alabama, some sixty or seventy miles from this place. Witness was here at last Court as a witness in this case. Witness then lived where he now lives. Witness states, by way of correction, he, witness, was not drunk at sunset, but had liquor in him. Deceased, as witness looked towards the door from where he stood by the counter, was to the right of the door. Witness did not enter into any bonds as a witness, to return here until last Court.

James H. Jackson, sworn upon the part of the State, says: On the 12th day of November, 1853, at Bumbletown, Stewart County, Ga., witness, on the night of that day, had started from Bumbletown, but does not recollect how far, heard a loud noise of talking behind; witness supposing there was going to be a fight, determined to go back and see about it. When witness got back, Wiley King was holding prisoner with one hand and a double barrelled gun in the other. Mr. King said to prisoner, he, prisoner, could not leave there, and told him he had killed deceased, and that he, prisoner, could not leave. Mr. King said to prisoner you have killed Green B. Lee. Mr. Lee was lying on the ground before the door, dead—we kept prisoner there until Mr. Lee, the father of Green B. Lee came, who said prisoner had killed his son, and he should hang—pris-oner spoke very low, and said he had done nothing more that he wanted to do, and did not care if they hung him or what they done with him. Prisoner, after this, spoke to me, witness, very low, and said he had a ten-dollar gold piece which he would give me, witness, if I would cut the rope and let him get away. Witness was called upon by Mr. Lewis Lee, an officer, and required to assist in guarding the prisoner during that night. Witness was guarding prisoner, or acting as a guard, at the time prisoner offered him the ten dollar gold piece to cut the rope and let him get away. Witness went to Bumbletown in the early part of that day. Witness left to go home about a half an hour after night, and had gone some sixty yards, when he heard the noise alluded to above. Witness saw Mr. Green B. Lee and Mr. Sam\'l Wright there on that day drunk, but saw nobody else...