Meyers v. State, (No. 7007.)

• Citation: 169 Ga. 468,151 S.E. 34
• Decision Date: 13 November 1929
• Docket Number: (No. 7007.)
• Parties: MEYERS. v. STATE.
• Court: Georgia Supreme Court

169 Ga. 468

151 S.E. 34

MEYERS.

v.STATE.

(No. 7007.)

Supreme Court of Georgia.

Nov. 13, 1929.

Rehearing Denied Dec. 16, 1929.

(Syllabus by the Court.)

Russell, C. J., and Atkinson, J., dissenting in part.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Arthur Meyers was convicted of murder, and he brings error. Affirmed.

Pierce Bros., of Augusta, for plaintiff in error.

George Hains, Sol. Gen., of Augusta, Jno. M. Graham, of Atlanta, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

HILL, J. The grand jury of Richmond county returned a true bill against Arthur Meyers, charging that on April 1, 1924, he did kill and murder R. F. Gunn by shooting him in the body with a pistol. On the trial the jury returned a verdict of guilty, without recommendation, and Meyers was sentenced to be hanged. His motion for new trial being overruled, the defendant excepted.

1. The evidence was sufficient to authorize the verdict. The defendant offered no evidence, but made a statement, the substance of which will be set out later.

E. D. Devaney, a witness on behalf of the state, testified, in part, as follows: "At the time Mr. Gunn was killed at Steedley's crossing in this State and county, around April 1, 1924, I was a switchman for the Georgia Railroad. I saw Mr. Gunn that day. It was around 6 o'clock that the shooting of R. F. Gunn took place. I recall the incident of a negro getting on the train, but Mr. Gunn was not by him at the time. I saw him on the front board of the engine, between the engine and the cars. The negro got on the train right by the side of Mr. Gunn on the footboard between the engine and the cars; we were backing up. He got on right at Steed-ley's crossing. Approaching Steedley's crossing I saw Mr. Gunn on the front foot-board of the engine. He was on the opposite side of the engine at that time, and approaching Steedley's crossing he stepped over the knuckle to the opposite side, and I know what his business was on there—to catch those fellows for riding trains—and I stepped over to the other side of the engine too, and about the time I got there we were at Steedley's crossing, and this negro stepped up on the foot board. The train was moving. Mr. Gunn took hold of him. The engine had got nearly to Steedley's crossing at the time, and I told the engineer he had better stop and put him off—he might get hurt in getting down; and he stopped. He stopped about half way between Holley Street and Steedley's crossing. He stepped down off the engine with him and caught hold of him and started back to Steedley's crossing, walking down the track. We had started off then, but I was still watching, and I saw the negro feeling in the back of his coat, like that, fumbling for something, and I made the remark to Mr. Pender that we had better stop and go back down there—the negro would get in trouble. We did not stop at that time, but I looked back and saw the negro at Steedley's crossing, and we stopped and went back, and I saw Mr. Gunn in the crowd at Luckey'sstore, and I told the crowd to stand back and give him air. When Mr. Gunn got off the train he had hold of the negro. He had hold of his coat; I don't know whether his lapel or what part of the coat; but he had hold of his coat on the left side, and in that way they alighted off the train. They went down the track towards the crossing in the same manner, with the negro on the left of Mr. Gunn. At that time Mr. Gunn still had hold of him; he had hold of his coat; I saw that myself. At no time between the time he got off the train and going towards the crossing did I see Mr. Gunn in front or behind the negro; he was right on his side, as I have just described. Other than that, there was not anything that I observed between the negro and Mr. Gunn. I did not at any time see any disturbance between the two. I did not see any violence on the part of Mr. Gunn to him; he never touched him nowhere; only had his left hand on his coat. 1 did not hear a shot; the engine was going after he got off the train." On cross-examination this witness testified: "As to whether or not he was concealed, would say he was not in open full view, but from his waist up; couldn't see his legs a bit. When he stepped up he was in full view. Yes, the defendant saw Mr. Gunn when he did step on. Mr. Gunn was in full view, but had no uniform or anything to indicate he was an officer or anything. I did not see his badge."

S. A. Pender, the engineer referred to above, testified substantially to the same effect as the switchman. He further testified: "I watched them until they got to the corner and went around the chicken-coop at Mr. Joyner's store, and as I watched them Mr. Gunn was the least bit in the front of the negro and holding the negro. I did not see them stop at all. I did not see them have any altercation at all—no kicking or anything like that. The negro put his right hand in his hip-pocket and took it out, and then put his left hand on his hip-pocket, and then put it in the front pocket; and that is all I saw. I heard the shot. I did not do anything. I saw the crowd gather up there. I stayed on the engine. I recall the negro that got on the train. That is the negro that got on the train; that is him sitting over there. At the time that Mr. Gunn got off the train with Arthur Meyers, this negro, and walked back the distance I described, he did not have anything at all in his hand. He did not pull a gun or any weapon. If he did, he pulled it after he turned the corner. His position with the road was special agent. I did not see his badge of authority he had, or any policeman's badge."

S. R. Young, a witness for the state, testified as follows: "I was present up at Steedley's crossing when Mr. Gunn got off. I was crossing the street in an automobile at the time. I was crossing the street just as the switch-engine got clear of the crossing and I passed, and I heard the pistol shoot and It attracted my attention, and I looked and saw Mr. Gunn fall; and I told the gentlemen I was with to stop, a man had got shot. He said, 'How do you know?' I said, 'I saw the man fall, and I saw the negro run off.' I went over there, and he was on the sidewalk as pale as a corpse, and I lifted up his shoulders. I said to some gentleman, 'Let's put him over here by the store;' and another man helped me. By that time some other men came to help him, and we got in the car. I saw the man's hand go up and saw him fall, and then I told the man I was with to stop, and I got out of the automobile. It did not take but a few minutes to get over where I was to where the man had fallen; it was right across the railroad. Mr. Gunn did not have a thing in the world in his hand when I got there; he was up on his elbows this way. I did not see anything on the ground, and I did not see any pistol or weapon about him. I was on Railroad Avenue, and I immediately went over there as soon as I got out of the car."

Dr. A. W. Davis, for the state, testified: "I examined Mr. Gunn's body at his father's residence in Warrenton, Georgia. I was called by the deceased's father and Mr. T. L. Anderson, his father-in-law, to remove the bullet that was in his body. I went to his residence and had him just taken from the casket and placed on a table, and I got a steel bullet from about the level of the seventh or eighth rib on the left-hand side, about three and a half or four inches from the spinal column on the left side, about three quarters of an inch beneath the skin. I cut the bullet out and sutured the place over. I couldn't say whether that is the bullet or not; it looks like the bullet I cut out. It was a steel-jacket bullet. I don't know what caliber that is—looks like a.32. My idea from an examination is that the bullet took an upward direction, traversing the spinal column and breaking the spinal column. The effect of breaking the spinal column at the point of Mr. Gunn's body below that point would cause a paralysis below the wound. A person with such a wound in his body, he would fall instantly after having been shot like that."

John J. Evans, for the state, testified: "I saw the plain-clothes man coming with a negro from Railroad Avenue this way [indicating], and the plain-clothes man had the negro in the lapel of his coat, coming along in this direction, and he was walking along with the negro, and had him in the lapel of the coat, and they walked up in front of this store, and then the plain-clothes man turned around this way, and the negro slightly that way, and about then the negro made a motion in his clothes and got his left hand this way [indicating]: like this was the plain-clothes man on this side, the negro was working his hand that way, and before I could yell to him he just shot—shot the man in the abdomensomewhere. At the time the negro was working in his clothes and before he shot, Mr. Gunn had hold of the negro's lapel on his coat in his left hand. I didn't see what his right hand was doing; he did not have anything in it; it was just lax, like you let your hand fall down you know. I did not see the negro's pistol at the time. I saw it as he ran down Augusta Avenue; he had something in his hand; I presume it was a gun. Immediately after this shot, the negro ran south on Augusta Avenue, and Mr. Gunn fell immediately to the ground. * * * At the time I describe Mr. Gunn having hold of him, and as he turned his head and I saw him shoot, Mr. Gunn was not doing anything to this negro, except holding on to him by the lapel of his coat. I did not see Mr. Gunn attack him in any manner. I did not see him kick him or try to shoot him in any manner. At the time Mr. Gunn was shot his face was turned away from the negro towards Sheehan's store, I believe it was, at that crossing. That happened in this State and county. * * * When Gunn fell his gun wasn't on the ground; it was in his hand. You want me to tell you exactly Gunn's position when he fell? Well, Gunn reeled. This...