Palmer v. State

• Citation: 25 S.E.2d 295,195 Ga. 661
• Decision Date: 13 April 1943
• Docket Number: 14462.
• Parties: PALMER v. STATE.
• Court: Georgia Supreme Court

25 S.E.2d 295

195 Ga. 661

PALMER v. STATE.

No. 14462.

Supreme Court of Georgia

April 13, 1943

Syllabus by the Court.

1. A defendant who is charged with a felony, and upon the call of his case for trial files a written waiver of his right for a jury trial and demands that he be tried by the court without a jury, can not compel the court to so try him, and it is not error for the court to overrule such demand.

2. Where a person was on trial for murder by the killing of a city policeman while attempting to arrest the accused for drunkenness on the street, and the validity of the arrest was germane to the issues involved, it was not error for the court to permit the State to introduce in evidence a city ordinance making it unlawful for a person to be drunk on the streets.

3. Where a person was on trial for the homicide of a city policeman, growing out of an attempted arrest for drunkenness; and the State introduced in evidence a city ordinance making it unlawful for a person to be drunk on the streets, it was not error for the the court to charge the jury that the ordinance was legal and made it an offense against the city for any one to appear upon the streets intoxicated; said ordinance having been in force at the time of the homicide.

4. In the trial of a case as above indicated it was not error for the court to charge: 'If you find the defendant was arrested without a warrant, * * * if you find that the defendant was illegally arrested, then you would not be authorized to find him guilty of an offense higher than voluntary manslaughter'; said charge being more favorable to accused than the law required.

5. In the trial of a case as above indicated it was not error for the court to charge: 'I charge you that a violation of a city ordinance is a crime, for which an arrest may be made by the proper officer.'

6. The charge dealt with in the corresponding division of this opinion clearly referred only to an arrest by Officer Denby and whether in view of the charter provision this charge would have been correct if the defendant had been on trial for the killing of Officer Denby, he was as a matter of fact being tried for the killing of Officer Henderson, a separate and distinct transaction; and while the charge was inapplicable as related to the latter transaction, it was not calculated to confuse the jury, or otherwise result in harm to the defendant, for any of the reasons assigned.

Joel Luther Palmer was tried for murder, and was sentenced to electrocution. The killing took place on Main Street in Tifton, on Saturday, July 18, 1942, late in the afternoon and at a time when the streets were crowded. Palmer was tried for killing Joe Henderson, chief of police. Within a few minutes before Henderson was killed the accused had killed another policeman, Mercer Denby. There is some dispute in the evidence as to the exact circumstances in which Denby was killed; and there is a variation in the evidence as to the precise condition prevailing at the time Henderson was killed.

The evidence disclosed that the accused, a soldier on leave and visiting home, came into town that afternoon with his half-sister who was driving the car. The car was parked on the east side of Main Street, about a block north of the railroad crossing, at a point near Jinnette's Sandwich Shop. After parking the car the half-sister got out, leaving the accused in the car, and went north to a point on the east side of Main street near the Tifton Clothes Shop, at which point Policeman Denby was standing talking to his father. At the time the policeman was dressed in 'the usual officer's uniform that he wore when patrolling the streets.' The half-sister approached Policeman Denby and said: 'Come down this way a piece.' The policeman joined the half-sister, and they walked back south toward the car in which the accused had been left. There is no evidence as to what was said between the half-sister and Policeman Denby, but they proceeded to the place where she had parked the car, and as they arrived there the accused came walking from the side of the automobile and met them. What was said between the accused and Denby does not appear in the evidence. The half-sister was not a witness in the case.

The first evidence of any difficulty was that there was a scuffle between the accused and Denby. They fell to the sidewalk and the policeman took a pistol from the bosom of the accused. The policeman then took both of the arms of the accused, pulled them behind his back, and walked him in this manner south across the railroad tracks. The accused was heard to say: 'Don't hold my hands so tight. I am not going to fight any more.' They walked in this manner until they reached the south side of the railroad at a point on Main street near a cigar store. At this point the accused jerked away from the policeman, and they engaged in a struggle. During the struggle the policeman's pistol fell out of the holster, and accused picked it up. At this point there is a dispute in the evidence, the State claiming that the accused shot the policeman without cause, and the accused asserting that at the time of the shooting the policeman had struck him with a blackjack and was attempting to strike him again. This shot killed Policeman Denby, and as a result of this scuffle and shooting considerable commotion was created among the crowd upon the streets, and the subsequent killing of Chief of Police Joe Henderson immediately followed.

At the time of the shooting of Denby, Chief Henderson, P. G. Burke and Alonzo Ross, State patrolmen, were in conversation on Main street, but about one block south of where the shooting took place. Immediately after the shooting some one on the sidewalk said, sufficiently loud for it to be heard by these three officers, 'somebody is shooting in the street.' Burke and Ross proceeded to the scene of the shooting by going up the sidewalk, and Joe Henderson got out into the street just behind the automobiles parked along the east side of Main Street, and went to the scene of the shooting by that route. No one seems to have testified just when Chief Henderson reached the scene; but from the testimony of officers Burke and Ross he must have reached the scene about the same time as Burke and Ross, as Ross testified that when he reached the scene, 'We looked and saw Palmer [accused] waving a pistol, and he throwed it up and shot, and the sign fell out and some of the glass fell on Mr. Burke's head. That was just time we got there, and we stepped off the sidewalk, and we heard another shot, and we started towards where I saw Chief Henderson come out from behind the third car. * * * He was coming out and going down to the next car. * * * I started down there, and Joe [Henderson] was standing sort of crocuched rather, with his pistol, and he shot him. Palmer shot and Joe shot, almost together, and Joe says, 'Oh, my God, I am shot.' * * * I couldn't shoot him, there was so many people there. * * * When he shot Mr. Henderson he was over here on the tracks, approximately forty-five feet from where Joe Henderson fell. * * * When Mr. Henderson and Palmer exchanged shots at the time * * * Henderson was killed, the shots were fired almost together. * * * Palmer shot first, and Joe immediately followed him.'

Officer Burke testified: 'Just as I appeared around the corner in open view of Paimer [accused], this shot was fired and the glass fell. I would say the shot struck the neon sign some eighteen inches above my head. * * * And I came out behind the car on the street, and just as I got out back of the car was the first shot I saw Chief Henderson and Mr. Palmer exchange. * * * Then Chief Henderson moved down north, and they exchanged another shot and Chief, he fell right at my feet. * * * I had on my uniform on this occasion. * * * At the time he fired into the neon sign, I saw Mr. Palmer, and he was backing up Love Avenue, north, toward the railroad, and he had a pistol in his hand. It was after he shot out the neon sign that I saw him exchange shots with Joe Henderson. I couldn't say where the chief was at the time Palmer shot the neon sign. * * * I [heard] several more shots fired, and I knew others were shooting besides Chief Henderson and Mr. Palmer, but I didn't know who else was shooting.'

John Duffy, a deputy sheriff, testified that at the time of the first trouble, when Policeman Denby and the accused were scuffling, he was in the cigar store, and after hearing a shot in front of the store he went to the door and stepped outside. At this time Policeman Denby had been shot and was coming in the front door. 'Mr. Palmer was facing north, and he threw the gun in my face, and I stepped back in the door, and he went on. * * * I couldn't shoot him, there was so many children out there in cars and people on the street; but I stepped out on the street trying to get a chance to shoot Mr. Palmer, but I couldn't get a chance to shoot, and he shot at me but he didn't hit me; the shot went high and hit the neon sign. * * * Palmer shot in my direction, and I thought he was shooting at me. * * * I didn't see Mr. Henderson, but I heard a gun shoot, and I heard a second shot fired, and then I heard--may be a second passed, and I heard a couple more shots, and Mr. Palmer turned and trotted down the sidewalk, and I saw Mr. Henderson slide off the fender of an automobile.'

There was additional evidence as to what transpired following the shot that killed Chief Henderson. There was other shooting by the officers, and one additional shot fired by the accused. The accused retreated, and was arrested near the scene of the killing of Chief Henderson. The accused received three or four bullet wounds, as testified to by Ross: 'He was wounded--he had a bullet wound in his right leg, the...