Reid v. The State Of Ga.

• Decision Date: 31 January 1874
• Citation: 50 Ga. 556
• Court: Georgia Supreme Court
• Parties: WESLEY REID, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error*.

50 Ga. 556

WESLEY REID, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error*.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Criminal law. Jury. Evidence. New trial. Before Judge Hall. Pike Superior Court. April Adjourned Term, 1873.

Wesley Reid was placed on trial for the offense of murder, alleged to have been committed upon the person of one Amos Martin, on December 25th, 1872. The defendant pleaded not guilty. After the array had been put upon the defendant and one juror selected, the Solicitor General, on account of a defect therein, entered a nolle prosequi on the indictment, the defendant neither consenting nor objecting. On the next day the defendant was again arraigned on a new indictment, and pleaded not guilty. When the array was put upon him, embracing the same juror who had been sworn on the previous day, he challenged the array because it was composed of the *same jurors who had been put upon him under the first indictment. The challenge was overruled, and the defendant excepted.

The evidence for the State made, in substance, the following case: The defendant, his family, George Black and his wile occupied the same house. On December 25th, 1872, the deceased came to this house and asked George Black and his wife where defendant was. They replied that he had gone across the river with his wife. When defendant returned, deceased was in the house. He pushed up against defendant, who said to him, "Let me into the fire, as I am wet and cold." Defendant stood before the fire, dried his gun, and was about to place it on the rack when deceased caught hold of it. Defendant told him to let loose. He replied that he would not.

After some scuffling, and a threat from the defendant that he would knock him down, the deceased let go. The deceased then walked out of the house, and had gone some twenty yards when defendant said to his little girl, "Lucy, here is a bird, " handing to her a bird which he had killed. Deceased turned and asked defendant what he said. He replied,, \' Go along, Amos, I am not talking to you, but to folks." Deceased said, "I am as good a little man as walks in Pike county." Defendant said that he did not like for a man to come to his house and banter him out. Deceased replied that he would rather fight to-day than run a foot race. Defendant asked him if he meant what he said. He replied that he did. Defendant started towards him, when he retired two or three feet and picked up an axe. Defendant said "all right, " returned to the house, got his gun, cocked one barrel and started towards the door, when George Black\'s wife closed it and shoved him back. Defendant told her to let him out. She said she would not. He then went out of the back door. Black\'s wife told deceased to come in, or defendant would kill him. He replied that he would not; that he would go to defendant if he was "as big a nigger as hell." Defendant went around the house, fired at deceased twice, and then knocked him down with the butt of the gun. It was about two minutes *before deceased could speak; he then turned on his right side and said, "West, I did not go to cut you with the axe." Defendant took up the axe and again started towards deceased, when George Black caught him and said, "For God\'s sake stop, as you have done too much already." Most of the shot struck deceased on the right side, below the collar-bone; some few scattered and penetrated different portions of his body. He died from the effects of his wounds. A negro was present by the name of Bob Parks at the commencement of the difficulty. The deceased proposed to Parks, in the presence of the defendant, to go across the river and frolic with the girls. Defendant\'s wife had told him three or four days before the homicide that deceased had offered her $5 00 to let him come to see her as a sweetheart, and for her not to notice defendant. Deceased asked defendant where his wife was, and when he replied over the river, deceased proposed to Parks to go over there and frolic with the girls.

The defendant introduced no testimony, but relied upon the evidence for the State.

The jury found the defendant guilty of voluntary manslaughter. He moved for a new trial upon the following grounds, to-wit:

1st. Because the Court erred in overruling the aforesaid challenge to the array.

2d. Because the Court erred in charging the jury, among other things, that "malice is presumed from the killing, and you should find the defendant guilty, unless he has shown by proof, such facts and circumstances as will make the killing justifiable, or reduce it to manslaughter."

3d. Because the Court erred in charging the jury as follows: "But before the killing can be justifiable on this ground (the seduction of defendant's wife) it must appear from the evidence, that to prevent the seduction of his wife the killing was absolutely necessary, and that the killing proceeded from no other cause than a desire to save his wife from seduction. Notwithstanding the prisoner may have had knowledge of thefact that his wife had been seduced by the deceased, or *that efforts were then being made by deceased to seduce her, still, if prisoner attacked and took the life of deceased for any other cause, or they naturally fought for any other cause, and prisoner killed deceased, he is not then protected on the ground that he was protecting the virtue of his wife."

4th. Because the verdict was contrary to the law and the evidence.

The motion was overruled and defendant excepted.

Boynton & Dismuke; Doyal & Nunnally, for plaintiff in error.

T B Cabaness, Solicitor General, by Peeples & Howell, for the State.

TRIPPE, Judge.

1. The objection is not that the Court permitted a nolle prosequi to be...