Pound v. The State Of Ga.

• Decision Date: 31 January 1871
• Citation: 43 Ga. 89
• Parties: DAVID POUND, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

43 Ga. 89

DAVID POUND, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1871.)

[COPYRIGHT MATERIAL OMITTED]

Murder. Criminal Law. Before Judge Andrews. Wilkes Superior Court. June, 1870.

On the 25th of February, 1867, Pound killed John E. Harrison, in Hancock county. He was arrested and committed to jail, after a hearing. He was indicted for murder. At October Term, 1867, there was a mis-trial, because the jury could not agree. At the next term, a jury was selected from the grand jurors, by consent, and Pound was again put upon his trial. Another mis-trial was declared, because of the sickness of a juror. By consent, he was again put upon trial, at an Adjourned Term, before a jury taken from grand jurors, and they failing to agree, another mis-trial was declared. By consent, the case was then transferred to Wilkes county, because an impartial jury could not be had in Hancock county. These proceedings were had before Judge Reese.

A copy of the said proceedings having been transmitted to Wilkes Superior Court, Pound was there put upon his trial, in June, 1870.

*The evidence adduced on that trial was as follows: The objections made to it, etc., appear hereafter in the motion for new trial, the recitals of which are true. The regularity of the change of venue to Wilkes county was admitted.

First witness sworn for the State—John Carr: Was present when deceased was killed. It was in February, 1867, on road from Sparta to Linton, Hancock county, Georgia, 12th February, 1867; deceased came to school house where witness was at school, to see witness about buying a horse from Mr. Morris; deceased asked witness to walk to deceased's house, about three or four hundred yards; then deceased asked witness to walk to a field where a negro deceased had hired was cutting logs; when he started he said he would take his axe to help the negro cut, if necessary; negro was nearly done cutting, and deceased asked witness to walk over into a field across the road with him to see if there were any logs over there; when they left negro, heard a gun fire; in crossing the field over the fence, witness heard a second gun fire; witness told deceased he was going down there and see what they were shooting at; in walking across the field a rabbit jumped up, and witness heard Pound say to his children to put a good load in the gun and bring it to him, (Pound); witness then saw it was his (witness') father's hog he was shooting at; witness then told Harrison he would see if Pound would kill the hog; after Pound got the gun he got in the lane and started the hog up towards the road; Pound drove hog to back of garden, and his son and daughter went round to front of Pound's horse lot in the road, went through the yard, when they met; Pound loaded another barrel of his gun. [Diagram shown to the jury.] When witness and deceased reached back of Pound's lot, deceased found his fence down, and asked witness to help put it up; witness at that time had deceased's axe; while putting up fence Pound went back in lane and commenced cursing witness; witness first cameopposite accused, near furthest end of the lane from road, Pound being in his corn field, *and deceased in his with witness; neither said anything to Pound at that place, after loading two barrels; lane seven or eight feet wide where they were putting up fence; Pound told witness his d—d old hog had torn down his fence, and]got in his field, and cut his hog all to pieces; witness asked if he could help what his hog did when witness was not there? Pound said witness had been calling him a coward, and saying he would not fight, and if witness did not believe he would fight, to come over and try him; witness replied he had nothing to fight him with; accused called witness d—d dog soup and maggot soup, and other unpleasant things; accused then stepped on a log in mouth of lane; his daughter then stepped up by him; his daughter said something to Pound which witness did not understand; Pound came up to the road to front of where they were putting up fence; all, fence at that time but last rail was up; deceased had just picked up the rail when Pound cursed him; called deceased a d—d something—witness does not remember what, and deceased told him he would not take it; Pound then told deceased to come over, and deceased stopped to set rail up to his left side; Pound then presented his gun at Harrison, and then took his gun up across his left breast for a few seconds; then Pound presented it at Harrison again and fired. When the gun fired, deceased stepped one foot backwards and said, "Oh, Lord, I\'m killed;" Pound then presented gun at witness, and witness got behind a stump, and turning saw Pound still had gun presented at him. Witness then went home and carried the axe with him, and started after a doctor; went in his house and got his father\'s pistol out of the desk, and carried it with him; Mr. Morris, (witness\' mother and Mrs. Duggin, then went up to where the homicide took place; witness had no weapon but pocket knife; had on vest, and about like he is now; Harrison had no weapon, witness thinks, and had on no coat, only pants and shirt; Harrison carried axe to field, but witness took it, and had axe when difficulty occurred, and witness carried *axe immediately to his father\'s house, about one mile distant.

Cross-examined: At the time Pound was cursing him, witness told Pound he had nothing to fight him with; Pound asked witness if he would fight him at any other time and place, or in any way, and witness replied that he would; Pound had double-barrel shot gun, worth about $8 00 or $10 00; witness says diagram shown is correct; deceased and accused were about six or seven feet apart when the shooting occurred, and deceased was about three feet from fence, on Harrison's side; muzzle of gun was about two and a half or three feet from deceased when he was shot; lane between fields was about a quarter of a mile long; shooting of Harrison occurred about eight or nine panels of fence from mouth of the lane; found Pound shooting hog about one hundred yards from other end of the lane; after Pound left the log where he had been with his daughter, he continued cursing witness until he got where they were; witness does not think he cursed Harrison but one time; witness was then about twenty years old; Harrison was about twenty or twenty-one; Harrison and Pound had been acquainted nearly all their lives Harrison had lived about a mile and a half, or, two miles below Pound the year before, and was at the time of the shooting living about one half or three-quarters of a mile from Pound; Harrison was killed about sun-down; witness has been sworn in this case three or four times, and once in addition before the coroner's inquest; thinks he was also sworn before a magistrate; he thinks he was sworn at October Term, 1867, Hancock Superior Court—is not positive; thinks he was sworn at April Term, 1868; thinks he was sworn at May adjourned Term, 1868—is not certain; witness thinks he has not stated before on oath that Harrison said on the evening of the killing that he was taking the axe along to help the negro cut logs, if he found his help necessary to enable the negro to finishthe field that evening; witness, upon being further interrogated, *says, he don\'t know but what he has; remembers to have heard his testimony in this case commented upon in the

Courthouse (before; witness does not think he heard his testimony commented on as being improbable in this: that it was unreasonable for Harrison to be at that hour of the evening carrying his axe to the field to cut logs; witness and Harrison were over half way from road to where Pound was when the rabbit jumped up; this is the place Where he first heard Pound tell his children to load the gun, where he discovered it was his father's hog Pound was after, and where he said he would go and see if Pound would kill the hog; he went to see about the hog, and Harrison went with him; after witness took the axe he kept the axe in his hand all the while; helped put up the fence—did not put down the axe while helping; there were but few rails thrown off the fence on the ground; when Pound accused witness of having called him a coward, witness asked him who told him so? Pound said he could prove it by good authority; do not remember that he denied having called Pound a coward; do not know but what he testified before that he asked Pound who told him this; Pound accused witness of having killed his dog; does think he owned or denied it; doesn't know whether he killed his dog; last time he saw the dog he was running; don't remember that Pound called Harrison a damned meddlsome rascal; don't remember what he said further than cursing him; don't remember that Pound warned Harrison if he got over the fence he would kill him; don't think he told him so; witness don't think he has stated this in any previous testimony; witness says if he did he may not have intended it, or interrogator may have misunderstood him; when Harrison told Pound, in response to his cursing, that he wouldn't take it, he started towards the fence and stopped; was not putting the rail on the fence when he said this—had not got to it; Harrison was putting up the fence about the time Pound was loading his gun inthe road; witness says he omitted on direct examination to state that *Pound drew back his gun as if he was going to strike him: witness has said Harrison started towards fence with a rail and stopped; witness don\'t know that he has any impression that Harrison was going to the fence with any intention to, put it up; don\'t think he had any idea of getting over the fence; witness can\'t tell what he thought at that time was Harrison\'s motive ingoing towards the fence; witness don\'t remember whether it was a full length rail or not; thinks it was long enough to go on the panel; Harrison never put the rail on the fence;...