Rawlings v. State, (No. 5232.)

• Decision Date: 25 November 1926
• Docket Number: (No. 5232.)
• Citation: 136 S.E. 448,163 Ga. 406
• Parties: RAWLINGS. v. STATE.
• Court: Georgia Supreme Court

163 Ga. 406

136 S.E. 448

RAWLINGS.

v.STATE.

(No. 5232.)

Supreme Court of Georgia.

Nov. 25, 1926.

Rehearing Denied Jan. 15, 1927.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Russell, C. J., Beck, P. J., and Atkinson, J., dissenting in part.

Error from Superior Court, Johnson County; R. Earl Camp, Judge.

C. G. Rawlings was convicted of murder, and he brings error. Affirmed.

J. J. Tanner and C. G. Rawlings were jointly indicted as principals for the murder of G. A. Tarbutton, who, it was alleged, they "of their malice aforethought did kill and murder by shooting the said G. A. Tarbutton with a certain gun which the said J. J. Tanner and C. G. Rawlings then and there held." The defendants elected to sever; and, Tanner having been previously tried, C. G. Rawlings was formally arraigned on August 17, 1925, and pleaded not guilty. Upon the panel of jurors being furnished by the clerk to counsel for the defense, Rawlings in writing challenged the array as the same will hereafter be summarized. In connection with the grounds set forth in the challenge, it was admitted by counsel that on Monday, March 30, when the court reconvened after the trial of Tanner, the case of Rawlings was called, and the defendant presented a motion to change the venue, and, after the same was overruled, presented a bill of exceptions which had the effect of a supersedeas until the appeal could be heard first by the Court of Appeals and afterwards by the Supreme Court of Georgia, and, upon such supersedeas being filed in Johnson superior court, the judge thereupon discharged the jury; also that "the court recessed on March 30, 1925, after the bill of exceptions referred to in the preceding paragraph was filed, until the third Monday in June, 1925, and then recessed uptil the third Monday in August, 1925." After a hearing, the challenge to the array was overruled, and exceptions pendente lite were filed. In the bill of exceptions error is properly assigned upon the exceptions pendente lite. The trial of the defendant resulted in a verdict of guilty, with a recommendation to life imprisonment. A motion for a new trial was overruled, and exception is taken to that judgment. Besides the general grounds, the defendant's motion is predicated upon several special grounds.

The fourth, fifth, sixth, seventh, eighth, ninth, and tenth grounds of the motion assign error upon the admission by the court of certain alleged illegal evidence. The fourth ground complains that Dr. H. B. Bray, a witness for the state, was permitted to testify as follows:

"I was present at the time they held the inquest over Mr. Tarbutton's body. The inquest was held the next day after the homicide. On that occasion Mr. Tanner showed us where he was standing and where Mr. Tarbutton was standing at the time of the homicide. Some stobs were put on those particular spots. Mr. Rawlings was not there when Mr. Tanner made those statements, and they were not made in Mr. Rawlings' presence or hearing. I think my brother Charlie, W. S. Williams, and M. R. Bradley put those marks there. My brother drove down the stob where Tanner said Mr. Tarbutton was lying. It was 15 feet and one inch from the stob where Mr. Tanner claimed to have been standing to where Mr. Tarbutton's feet were."

In the fifth ground complaint is made of the admission of testimony by the same witness—

"to the effect that it was 7 feet in distance from where Tanner said at the inquest he was standing to where Tanner said Tarbutton was stand-ing, and that there was 16 inches fall downwards in the land from where Tanner said he was standing to where Tanner said Tarbutton was standing."

The sixth ground assigns error on the admission of testimony from the same witness—

"to the effect that on the morning after the homicide he witnessed an experiment in which a man was placed at the position where Tanner had said he was standing at the time of the homicide, and another one was placed at the position where Tanner had said Tarbutton was standing, these two men being approximately at the same height as Tanner and Tarbutton, respectively, and the man standing where Tanner said he was standing brought a gun to a level with his shoulder, and then a spirit level was put on the gun and it showed that the shot would have gone straight through Mr. Tarbut-ton's head and about 4 inches from the top of his head, and that the range of the gun was practically on a level; that the above statements of Tanner were made at the inquest over Tarbutton's body the day after the homicide, and said statements were not made in the presence or hearing of the defendant Rawlings."

In the seventh ground complaint is made of the admission of testimony by a witness for the state, Dr. S. M. Johnson—

"to the effect that, if a man of Tarbutton's height was standing where Tanner had said at the inquest, the day after the homicide, that Tarbutton was standing, and another man 5 feet and 9 inches tall was standing at the place where Tanner had said at the inquest that he (Tanner) was standing, and they were 7 feet apart on land that had a fall of 2 inches to the foot, and if the man who was standing where Tanner had pointed out that Tarbutton was standing was shot through the back of the head by a man standing where Tanner had said at the inquest that he (Tanner) was standing, like Mr. Tarbutton was shot, the shot could not have been made except from the shoulder."

In the eighth ground complaint is made that the court admitted testimony by M. E. Crowe, a witness for the state, as follows:

"I was a member of the coroner's jury that held an inquest over the body of G. A. Tarbutton. Mr. Tanner pointed out the spot to me that represented the place where he was standing. He also pointed out the spot where Mr. Tarbutton was standing when he was shot. It was something like 7 or 8 feet between the spot where Mr. Tanner said he was standing and the spot where he said Mr. Tarbutton was standing. It was 7 feet and an inch or two. The course of the shot could not have been traced from where Mr. Tanner said he was standing, because, he said he was to the right of where Mr. Tarbutton was standing, 3¹/₂ feet from where this stob was driven up in the path, 3¹/₂ feet from the path. The path commenced to crook just below the stob where Tanner said they were standing, just below where Tanner said Tarbutton's head was, and then came back and went to where we found the last brains. That was 14 feet. Just before it got to where Tanner said he was, it crooked to the left, about 18 inches crook. The brains were found on a direct line with the stob where Mr. Tanner said he was standing. Mr. Tanner said he was standing about 3¹/₂ feet from that path. I asked him if he meant to tell Us that he stumbled over the bush out there 3¹/₂ feet from the path. He said, 'Well, gentlemen, I don't know where I was standing; I don't know how it happened.' He said he was carrying the gun, holding it down by his right side, and that when he fell he throwed it out to the right, this way [indicating], and fell this way [indicating]. He fell forward. The above statements of Mr. Tanner were made at the inquest the day after the homicide and in the absence of Rawlings."

In the ninth ground complaint is made that the court admitted in evidence the testimony of Mell Brantley—

"that a certain photograph, which witness exhibited to the court and jury, had been made in his presence, that said photograph represented a man of the same height as Tarbutton standing in the position where Tanner had pointed out at the inquest that Tarbutton was standing, and that said photograph also represented a man of the same height as that of Tanner standing at the position where Tarbutton was said to have stood and at the point indicated by Tanner in his statement at the inquest as the point where he (Tanner) had stood at the time of the homicide, and in the hands of the man standing in the Tanner position was shown a shotgun brought to the level of the shoulder on a direct level range with the back of Tarbutton's head; all according to said positions pointed out by said Tanner in his statements at the inquest, the day after the homicide."

The tenth ground of the motion assigns error on the admission in evidence by the court of the photograph described in the preceding ground. The objections offered to the admission in evidence of the excerpts from the evidence were In each case substantially the same: that the testimony, experiment, and photographs were hearsay evidence, based upon hearsay evidence, being based upon statements made by Tanner at the inquest the day after the homicide and not in the presence of the defendant Rawlings, and such statements by Tanner being made after the alleged enterprise had ended.

The eleventh ground of the motion contains the complaint that the court erred in admitting in evidence the testimony of Hyman Joiner—

"to the effect that, over 30 years before the trial of the defendant, Rawlings, he had stated to the witness that years before that, he (Rawlings) had swapped places or plantations down in Johnson county with the Tarbutton boys, and that the Tarbutton boys gave him $10,000 and paid him every uollar of it in two years."

This testimony was objected to on the ground that it was irrelevant to the real issue in the case, and tended to mislead and confuse the jury and to injure and damage the defendant before the jury by injecting into the trial a false and spurious issue inthe case, to wit, the merits of a land trade between Rawlings and Tarbutton more than 30 years before the trial.

In the twelfth ground error is assigned upon the admission in evidence of six described insurance policies which had been issued or assigned to G. G. Rawlings or the firm of Tarbutton & Rawlings, which were originally in the possession of C. G. Rawlings, and which had been turned over and delivered by him some months before the trial to L. B. Holt, of Sandersville, as receiver...