Morton v. State, 13287.

CourtSupreme Court of Georgia
Citation10 S.E.2d. 836
Docket NumberNo. 13287.,13287.
PartiesMORTON. v. STATE.
Decision Date25 September 1940

10 S.E.2d. 836


No. 13287.

Supreme Court of Georgia.

Sept. 25, 1940.

[10 S.E.2d. 437]

Error from Superior Court, Jefferson County; R. N. Hardeman, Judge.

LeRoy Morton was convicted of murder, and he brings error.


LeRoy Morton was convicted, without a recommendation, of the murder with a pistol of Louis D. Hubbard, a deputy sheriff, who at the time of the homicide was engaged in raiding an alleged still of the defendant. The evidence shows that on a night in October the defendant and three other negroes were engaged in operating the still on a branch, with wooded, swampy surroundings and steep hills at the sides. The still had been run at intervals for about two months. Hubbard (the deceased) and Parrish, deputy sheriffs, and McNair, a constable and town marshal, who had seen the still two or three times, concealed themselves around it; the defendant and his companions came to the still and worked in and around it, using flashlights. The two deputies approached down the branch to within twelve or fifteen steps of the still, but could not get through the thick underbrush thrown in the branch. As they were backing out, two of the persons at the still approached, each with a flashlight. According to the evidence of Parrish, one of them threw his light on the officers, and said, "Here is a man; must I shoot?" saying this twice, and another person at the still said, "Shoot." Parrish then fired at the flashlight. A companion of the defendant testified that it was the defendant who held the flashlight on the deputies and said he saw a man, and that all of the defendant's companions at the still immediately ran "because he said he saw a man." Parrish further testified that after he fired "at the flashlight, " the "light went out, " and the one holding it turned and began to run. "I shot twice more. Hubbard [the deceased] takes out after the negro that I shot at; * * * the negro ran * * * up the hill. Mr. Hubbard was behind him. * * * Where Mr. Hubbard's body was found * * * it was 123 steps going down the hill and 133 steps going up the hill [to the still]-- so there was a right smart hill there. * * * There was no notice by any word from me or Mr. Hubbard that an arrest was about to be made; none at all. We were trying to slip up on them, doing our best not to make any fuss. There was nothing said by me or Mr. Hubbard so that the people at the still knew * * * that it was an

[10 S.E.2d. 838]

officer of the law. * * * I did not hear Mr. McNair's [the constable's] gun barking away. I never did hear his gun fire down there at the still. I would think it was two or three minutes after the firing had ceased at the still before I met [him] up on the hill the first time. When I met [him] * * * the shooting over by the ditch had already taken place. * * * I saw [the deceased's] flashlight turned; [he] had gone up on the hill, and was turned and coming across the hillside toward Reedy creek; and in a few seconds or half a minute, I heard four, three or four or five gunshots, me thinking it was [the deceased] doing the shooting. * * * It sounded like a pistol, four or five rapid pistol fires." Soon afterwards the witness and the constable found the body of the deputy, as the witness said, lying by a gully, the flashlight burning "about at the end of his fingers * * * of his right hand, and his pistol was along about his belt * * * out of the holster. It was lying under his body. * * * It was full with the exception of one empty hull under the hammer."

Parrish and another witness testified that it was the deceased's "custom to carry one empty shell under the hammer of the gun." When the defendant was arrested later, it was found that he had been hit twice by bullets, which were fired at the still location, one striking his right arm, traveling up his arm, and the other grazing his right shoulder from the back. The deceased had been shot in the head with a 32-caliber pistol bullet, which produced instant death, and another bullet had penetrated his leather pistol holster. The deceased deputy and McNair, the constable, had carried 38-caliber pistols. While Parrish carried a 32-caliber pistol, there was expert testimony that the fatal bullet could not have come from his weapon, in addition to his testimony that when he fired, the deceased was behind him, a considerable distance from where the defendant and the deceased ran, and where the body was found. Will Oatman, the defendant's companion, who testified as to the defendant's flashing his light on the deputies, also testified: "Leroy [the defendant] had a still. Each time I would go with him and help operate the still. * * * We come down from Augusta to the still that Saturday evening about two o'clock in the daytime. Leroy came with me down there. When we first came there we went to Nath's [uncle of the witness] house. * * * Nath did tell us something about the still; he said he heard they had found it. * * * When we operated it before, we operated it in the daytime most of the time. We had to be in a hurry to get through with it. We thought the quicker we got through with it the better it would be for us. The reason of that was you want to get there and get through with it as quick as you can in a place like that; somebody is liable to come in on you any time. We come down and found the mash ready to run. We just spoke to Nath, and he told us he heard they had found it, and we wanted to run it off quick before the law got there that night; if they was coming in there, we wanted to get through.

* * * We went by Leroy's house. * * * When he come out from his house, he wrapped up something in a paper. He had a gun in the paper; it was a pistol. It was a long shiny pistol." He further testified that no one at the still had a gun except the defendant. In a written statement, the defendant said that his pistol was a 32. Brinson Sweat, another companion of the defendant at the time of the homicide testified: After a run of the still, the defendant "went off on the left side of the creek and flashed his light, and said * * * 'Here a man, I'm going to shoot him, ' and he said, Oatman said, 'Shoot, ' and then he broke to run. Oatman, Bill Oatman, but Leroy Morton--he was on the left-hand side of the way I was going when he said he was going to shoot, and Bill Oatman was on the right-hand side. He says, 'Shoot' then. Then I heard a pistol fire; that pistol fired and stopped, and then looked like four or five shots was made after that, one right after the other. * * * I am certain that Leroy did say, 'Here is a man; must I shoot?' Bill Oatman said, 'Shoot.'"

Essential parts of the defendant's statement to the jury are as follows: '"I have never been in trouble before. * * * Work give out in August, and me and Bill Oatman * * * started to making liquor; and this Saturday when the still got tore up, that Saturday evening me and Bill Oatman left the city and come down and stopped there at Nath Oatman's house, and he said we had better not go down there, because the people had been down there and tore up everything down there, and there wasn't anything down there.

* * * We got down there, and every-

[10 S.E.2d. 839]

thing was there just like we left it; so we thought he was joking, * * * and we asked Tom Walker what did he know about tearing up the liquor still, and he said he didn't know anything; and then we knowed Nath Oatman was joking then, because he had been trying to keep us from going down there, * * *. We got back down there that night, and I stopped the car at Tom Walker's house, and went on down in the swamp. So later on that night I heard some fuss in the bushes, I thought it was a possum. * * * I got my flashlight and I went up there and looked. I saw a man lying flat on the ground, about my age. I said, 'There is a man down there, ' he said, I will shoot you, I will shoot you, ' and I says, 'Don't shoot me, don't shoot me, please don't shoot me, ' and he shot me in the arm, and I turned and ran, and he ran behind me, and I ran into a tree and knocked myself kind of crazy and fell down, and I says, 'Don't shoot me; I ain't going to run any more, ' and he shot me in the shoulder, and I jumped and run. I didn't know the man, or he never did say nothing. He run behind me, his flashlight blinded me, I run in a gully and fell down. I got out of that gully, and I run in another gully; before I could get out of that gully he was shooting at me, and I says, 'Don't kill me, don't kill me, please don't kill me, don't kill me.' Then I grabbed up my pistol and I shot twice, and I run on up the hill. I don't know whether I had hit him or not, because I didn't shoot at him, I just shot that time to make him stop shooting at me, * * * and I was sorry I ever had shot, but I just shot that shot to stop him from shooting me.

The defendant excepts to the refusal of a new trial on the general grounds and eleven special grounds, the facts as to some of which are not approved by the court. Exceptions to instructions and to refusal of requests to charge, together with such charges and requests, in so far as they are not sufficiently indicated in the syllabus, are as follows: Exceptions are taken to the refusal to charge the law of voluntary manslaughter in the exact language of the Code, § 26-1007, and (to the instructions given on that subject, as erroneous and unadapted to the evidence and the defendant's statement and contentions, such charge being as follows: "Voluntary manslaughter is an unlawful killing, but without malice. It is the middle ground between murder and justifiable homicide. Murder is where one' inflicts a mortal wound and takes the life of a fellow-creature with a deadly weapon, With malice, as I have just explained--malice aforethought. Justifiable homicide is where an assault is made that justifies the killing; and I will come to the law of justification in a little while. But this grade of homicide, manslaughter, is written into the law in...

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