Oneal v. The State Of Ga.

• Decision Date: 31 July 1872
• Citation: 47 Ga. 230
• Parties: THOMAS ONEAL, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

47 Ga. 230

THOMAS ONEAL, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Criminal law. Special terms. Juror. Newly discovered evidence. Charge. Before Judge Hopkins. Clayton Superior Court. December Term, 1871.

Thomas Oneal was placed on trial for the murder of Joseph M. Anthony. The defendant pleaded not guilty.

The case was called at a special term held for the trial of criminal cases. The defendant objected to the trial on the ground that said cause was regularly called and continued at the September term of said Court next preceding said special session, and was therefore not in order for trial. The objection was overruled and defendant excepted.

The following evidence was introduced for the State.

J. McConnell, sworn: "I knew Joseph M. Anthony who was killed; it was last year, Christmas eve night, on December 24th, 1870; I saw defendant that night; I had been helping in McConnell & Elliott's; he came into the grocery; he walked back to the fire to warm, and Rufus Oneal came walking out of the bar-room; Anthony was standing a little in front of him; I heard some few short words; I do not know what they said; it appeared there was a little difficulty between them; Rufus Oneal run his hand in his pocket; Anthony asked him if he was going to draw his knife; Rufus is the brother of defendant, I believe; I did not see a knife drawn, norweapon of any kind; Anthony put his hand on Rufus Oneal\'s shoulder and said, \'My friend I am not mad *with you;\' they stepped back two or three steps from where I was; I told them they must have no fuss; defendant was behind Rufus and stepped round to the right and shot Anthony in the right temple; at the time Rufus and Anthony were talking, he was about six feet from the fire; they were facing each other; Anthony\'s back was to the fire; I think he had on a black cloth coat; Rufus Oneal was just in front of deceased; I was at the fire place rather to the right of them; I was right at them—not more than six steps off; defendant was a little off to the right—behind his brother—not more than a step or two. At the time of the shooting, they were to the south—towards the door—about three steps; defendant jumped around to the right and shot deceased in the right temple; I never saw deceased strike a lick; they appeared in sort of a scuffle backing; the ball hit him in the temple; he fell like a beef; he had no weapons on him, or stick, that I saw; deceased said, \'my friend, I am not mad with you, don\'t draw your knife on me;\' I never saw a knife drawn; I suppose the room is about sixteen feet by eighteen or twenty feet; the expression made by deceased was loud enough to be heard; others were standing by, and could have heard it; deceased had been in only a little while; the Oneals had been there pretty much all day long; I was keeping bar then; nothing was said to deceased when he came in, that I recollect; I have testified to all I heard between them; I do not know why Rufus Oneal attempted to draw his knife; I heard no quarrelling; they never spoke to each other; defendant was right close to him when he fired at him—rather too far off for powder to burn; the pistol was about a medium size Colt\'s pistol; defendant was four feet off; when he fired he stepped to the right. After firing the pistol they (Rufus and defendant) both broke and ran; my btother caught defendant, I think; Hightower caught Rufus; defendant was caught right in the centre of the house; my brother jumped over the counter and caught defendant in the middle of the room;my brother turned the weapon over to the officer; he took it away from defendant; all *this occurred in McConnell & Elliott\'s grocery, Clayton county, State of Georgia."

Cross-examined: "I had been in the house all day; I do not know how many were present; there were several, I guess there were a dozen or very near it; I don't think they were all in that room; they were passing backwards and forwards, I think; Mr. Mann was there, and Wiley Steward; Thomas Tucker was there; he was drinking and playing billiards; Geo. Mansfield was in there; I never saw him until after dark; he may have been a little drinking; they weredrinking right smart; I don\'t think deceased was drinking much; he had not been in long. I had seen them (defendant and his brother) often in and out; I was in front of the fire; deceased was a little to the right of me; Rufus was in front of deceased, a little to my right; he came in from the bar-room; I turned round; there looked like there was a little jawing; I told them to have no fuss; the door is south; the counter was rather east; the fireplace was in the west; I could not hear what was said at first; it looked like there was going to be a difficulty; I told them not to have a difficulty in the house; deceased put his hand on R. Oneal\'s shoulder, and said, "my friend, don\'t draw your knife on me;" Rufus\' face was towards me; deceased was a little to my right; he was nearer to me than Oneal; deceased was facing Rufus Oneal. I was sworn on the committing trial in this case; I think I swore about same as I do now; 1 don\'t think I said the words, "slap on his shoulder;" my evidence was taken down; I believe it was read over to me at the time; deceased had his hand on Rufus\' shoulder; the party rather went south; Rufus gave back, and seemed as though he was going to draw his knife; he stepped back soon as I told them they must have no fuss; then I saw defendant jump round; he came right behind Rufus. I do not recollect whether defendant was in at the start or not; I saw defendant jump round, and saw him shoot deceased; I tried to stop it; I do not know positively the time defendant came in, whether with Rufus or not; defendant was right behind Rufus Oneal; I was next to the fire when it commenced; "they sort of backed a few steps; defendant never spoke to deceased at all; deceased had not his hands on Rufus\' shoulder at the time defendant shot; deceased was sort of following, and Rufus was backing sort of; I saw no other scuffle at all but that; I never noticed those that stood by the fire. It was very still times for Christmas eve; there had been right smart excitement during the evening, but not during the night; there was no quarreling during the evening that I knew of; I do not know that I was excited when I went to the fire; when a pistol is fired it will excite most any man who has any feeling about him; I think Mr. William Tucker and Thomas Tucker were there; the marshal had been in there; I don\'t know if he was there at the time of shooting; my brother was behind the bar at the time; I never heard defendant speak a word; don\'t think he spoke at all; I don\'t think any other person tried to suppress the difficulty; if he did, I did not hear him; I requested them to have no difficulty in the house; I suppose deceased would weigh one houndred and forty pounds, may-be more; I guess Rufus Oneal would weigh one hundred and thirty-five or one hundred and forty pounds; deceased was about twenty-eight or thirty years of age—perhaps a little older or younger; I don\'t know his age; I do not know the age of these two young men; I think Rufus is a young boy, hardly grown, from his appearance."

J. T. Mann, sworn: "I knew deceased; I was present when he was killed; I know defendant when I see him; that is he (identifying prisoner;) I don't know how far apart they were at the firing; I was in the room at the time; I was sitting at the fire; deceased was standing on my right; he was talking to Rufus; Rufus had been talking some little time before the difficulty; I paid no attention to the difficulty; heard deceased say to Rufus, 'I am not mad, and don't get mad;' right after that he asked, 'what is in your hand?' immediately he stepped back in rear of me and said something, I do not know what it was; I rose and turned around; about the time Iturned around deceased fell up against the door; I do not know whence the shot came; I did not see defendant *at the time; I did not know who did it; I did not see Rufus Oneal then; deceased was standing with back to the fire; Rufus was in front of him (deceased), at the time deceased asked \'what is that in your hand;\' I had seen defendant and Rufus on that night, but I had not noticed them; I don\'t know how long before; I don\'t know where defendant was at the time this was passed; deceased was not far from me; not more than three feet; I was sitting in the chair; he was standing; I heard deceased say \'I am not mad, and don\'t get mad;\' in a very short time he (deceased) asked what is that he had in his hand; I examined deceased after he fell; I went to him and said: \'Joe, are you hurt much?\' he did not answer, and I just raised up and turned and said: \'Boys, catch him; they have killed Joe Anthony;\' some man remarked, \'I have got the man that done it, and his pistol; you go back to Joe;\' when deceased spoke, he said it in common language; he did not speak angrily; I did not think he did; he spoke in ordinary tone of voice, and said, \'I am not mad, and don\'t get mad, myself;\' if there was any words passed between them, I did not hear them; they broke and scuffled out; I don\'t know if they were trying to get away or not; I went right to deceased; my recollection is that it was after the train went; between nine and ten o\'clock; deceased laid till fifteen minutes before or after three o\'clock; had not spoke so I could understand him; I asked him if he knew me; I should say the shot killed him; I don\'t think the ball came out; it went on the right side of his temple; deceased had no stick or weapon that I saw; I think deceased had on his common, every day clothes; he had on an overcoat; I don\'t know if it was buttoned up or not. (Did deceased use any angry expressions during the conversation?) None at all, that I heard; all this occurred in Mr. McConnell\'s billiard room, in Clayton...