Nesbit v. The State Of Ga.

• Citation: 43 Ga. 239
• Parties: JEFF NESBIT et al., plaintiffs in error. v. THE STATE OF GEORGIA, defendant in error.
• Decision Date: 31 July 1871
• Court: Supreme Court of Georgia

43 Ga. 239

JEFF NESBIT et al., plaintiffs in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Criminal law. Jurors. Dying declarations. New Trial. Practice. Before Judge Clark. Baker Superior Court. April Term, 1871.

Jeff Nesbit and George Johnson were indicted for murdering John Jordan, with a hoe, in said county, in April, 1870. All the parties were negroes. While empanelling the jury, one Williams, after answering the statutory questions on his voir dire, was put upon the prisoners. Their counsel asked that he be put upon the Court as trior. This was allowed, but when they proposed to ask Williams whether he had formed and expressed an opinion from rumor, the Court refused to allow the question to be asked.

Pending the trial, prisoner's counsel moved to reject the sayings of Jordan, deceased, which appear in the evidence below, because there was no sufficient basis laid for using them as his dying declarations, but the Court overruled the motion.

The evidence on the trial was as follows:

H. H. Hall, sworn: That he knows the defendants and deceased; all the parties were living four miles west of this place, on T. Nesbit's place; witness had charge of the place; John Jordan, deceased, was foreman of all the hands; the defendants were under him; difficulty occurred the 12th of April, 1870, at about seven o'clock in the morning, in Baker *county; heard of difficulty about eight that morning; deceased sent for him; he (Jordan) was not where the difficulty occurred, but about four hundred yards from the place; deceased was suffering a great deal; right eye swollen and closed; he was in buggy, coming to the house; he said "Mr. Hall, let us go back to the house;" deceased said no more until he got on bed; deceased seemed in great agony; said nothing to him till just before doctor came; deceased said that he would die, several times: said that his skull was broken; tried to reassure him that blow was not serious, and tried to buoy him up; deceased repeated, after doctor examined him and my conversation with him, that he would die; told me these statements about nine o'clock in the morning, and thelast time I saw him was ten, when I left; died on the 13th, about twelve o\'clock, a. m.; had been there at eight that morning; he was dying and insensible; said that he never had such a rack of misery in his head before; not conscious between twelve and time he died.

Cross-Examined by Prisoners: Saw deceased about seven o'clock, on the morning of the 13th; knows nothing of his condition from the time he saw him on the 12th until the morning of the 13th.

Statements of Deceased: Said he had the hands divided that morning; had portion of them plowing, the rest replanting corn; went by the plows that morning; remained at plows awhile, then went to where the hands were planting; found prisoners idling; commenced ripping at them, and they commenced quarreling with him; about that time deceased picked up his hoe to go across their rows to get to his; George said, "Uncle Jordan, don't hit me with that hoe;" deceased said, "Go to your work, I'm not going to pester you;" about that time they got into a general fuss; George struck at deceased with his hoe; he defended off the blow with his own hoe; Jeff struck him on the head with his hoe, knocking his senseless; deceased said nothing about his having struck at prisoner; this occurred on Nesbit's place, *in the field; known deceased ten years; he was peaceable; never put me to any trouble.

Cross-Examined by Prisoners: Conversation stated in chief examination occurred with deceased about ten o'clock on the morning of the 12th; did not say he cursed prisoners; was a cursing negro; deceased said he ripped at them, afterwards picked up his hoe to go across their rows to get to his row; George said don't hit me with that hoe, uncle Jordan; said if prisoners struck him more than once he did not know it; Jeff struck him; know nothing against Jordan; knew nothing of his disposition to grumble; he would press hands; knew deceased to be a quiet, peaceable negro with me; know nothing of his conduct to others.

Dr. James A. Fogle sworn: I am a professional man, am a physician; knew John Jordan and prisoners; visited Jordan on the 12th, between nine and ten o'clock; saw contused wound on the head, complained of pain there; was rational but slightly comotose at the time, but slight excitement of the pulse, skin moist, and deviating but little from the natural condition; remained with him but a few minutes; had conversation enough to know that he was rational; saw him on the 14th, at post mortem examination; discovered a depressed fracture in the skull, between frontal and parietal bones; wound inflicted by some dull, heavy instrument; it was mortal, judging from its appearance; sufficient to cause death by congestion and depression; he died from the effect of said wound inflicted on his head.

Cross-Examined: Examined the extent of the wound, could not raise it, from reason of its recency; he was not in a dying condition; never saw him but once; chances for his recovery decidedly in his favor when I first saw him; as a general thing contused wounds are favorable; saw clotted blood about the wound; bone pressing on the brain produces comotose state; could not tell whether it could have been raised or not; did not think that he was going to die, and toldhim so; depression and fracture sufficient to produce death.

*John Neil, (colored) sworn: Know the parties; live on Nesbit's place, where they do work; remembers where difficulty took place in field; heard George say on Monday—me and him were in dispute—he said that some of the head men would get the—— knocked out of them; did not go with old man Jordan to the house; Ben did; was at house when deceased was put to bed; became insensible between ten and eleven the day he was wounded; was there until about two o'clock; was not there when he died; was an hour and half after he died; never went back that night; was insensible at two o'clock; he was out of bed, his wife got me to put him back; called him and he did not answer; called him at night and he did not notice me or answer me, or talk to any one; he could move about.

Cross-Examined: All the reason I had for believing he was out of his head, he would not speak to me; he rolled about in bed and would not answer me; was not there when doctor came, nor while he was there; doctor came after I had carried him into the house; saw him shortly after doctor left; was not sensible a short time after doctor left; spoke to him in the morning before doctor came, not after he left.

Jeff Nesbit, one of the defendants, sworn for the other, says Jordan told witness and Charles that he wanted us to go to replanting corn. Charles took bag on his mule and went on to the field. Uncle Jordan went by the plow-hands. We went to field; met Charles coming back with mule, and we went on to bag corn; took three ears each and shelled it. Went off from bag and heard some one coming behind; looked back and saw uncle Jordan coming before and Charles behind. Uncle Jordan was cursing witness and George for everything he could think of. We went on from there to where we had to replant corn, got there and we were about midway of the field. Met uncle Jordan still cursing. George said, uncle Jordan, you ought not to curse us that way, we have not done nothing to you. He replied, By God, if you don\'t like it, don\'t take it. George said, "Seems more like *you don\'t like it any more than we do." When he said that, he (Jordan) picked up his hoe and walked off from his row and said, "God damn you, just repeat them words again." George then said nothing. Jordan came across to where George was, pulled out his knife and said, "Charles, by God, go home and get my gun." Charles said, "No, uncle Jordan, I don\'t want anything to do with it." Mary was coming to us. Jordan said, "Mary, honey, go home and get my gun." He was Mary\'s uncle. Said to witness he was going to kill them two d—n sons of b—hes, Mr. Whitehead would pay his way out. Mary was going on through field pretty slow, and Jordan said, "If you don\'t go on faster I will give you hell, Mary, and as you go on for my gun, go by John\'s and tell him to come down here and back me, I fotch him here for that purpose." He said to Charles, "Come here and take one of these d—n sons of b—hes." Charles said, "Uncle Jordan, I don\'t want anything to do with it." He came though. Charles said, "Boys, you know uncle Jordan will curse, go on to your corn." We started. Jordan said we should not plant another hill. George said, "We can go home then." Jordan said, "God damn you, go." We started home; he (Jordan) followed, cursing us, and had his hoe. We walked pretty pert and got him a good distance behind us. He caught up with us and struck George, and he struck Jordan back.

Cross-Examined: We were shelling corn by bag, which was not...