Syllabus by the Court.
Where
on the trial of one charged with murder, he was surrounded
and kept under close guard by two or three bailiffs or
deputies, who stayed in close proximity to him, thus
separating him from his counsel (the defendant sitting behind
one of the courtroom tables, while his counsel were in front
of the table, during the trial), but where no complaint was
made to the court, and counsel were not prevented from
consulting with their client, and no ruling was made as to
such situation, it cannot be held that in these circumstances
the defendant was denied a fair and impartial trial.
Where
during the trial and while counsel were engaged in argument
to the jury, the judge vacated his seat on the bench, going
to the door of his private chambers, which was slightly
without the main courtroom, but was at no time out of the
presence of the jury or the hearing of counsel, and no
objection was raised or ruling made as to his absence
temporarily from the bench, it was not error to refuse a new
trial on this ground. In order for such conduct to become
reversible error, it must appear not only that objection was
made to the judge's failure to suspend the trial, but
that his absence from the bench resulted in some harm to the
defendant.
Where
on the trial of one for a criminal offense, it was shown that
a witness for the state, who had testified on a former trial
and whose testimony had been taken down and preserved, and
who was inaccessible and could not be found, it was not error
to allow counsel for the state to read to the jury such
testimony, where it was shown that the witness was
inaccessible and that diligent search had been made by a
number of witnesses to locate her. The question of
inaccessibility of a witness is one for determination by the
trial court in the exercise of a sound discretion.
A
ground of a motion for new trial should be complete within
itself. Ground 4 of the amendment to the motion for new trial
is incomplete and cannot be considered.
The
charge set out in division 5 of the opinion states a correct
principle of law, and is not subject to the criticism made.
In view
of the remainder of the charge of the court, the instruction
set out in the sixth division of the opinion is not
erroneous.
The
verdict was authorized by the evidence, and the court did not
err in overruling the motion for new trial.
Error
from Superior Court, Fulton County; E. D. Thomas, Judge.
R. H.
Sheppard was convicted of murder, and he brings error.
Affirmed.
See,
also, 165 Ga. 460, 141 S.E. 196.
Evidence
sustained conviction of murder.
Dovie
Braswell, sworn for the state, testified:
"On the 18th day of February, 1927, I was living at 889
Marietta Street. I was living there at the time Homer Fowler
was killed. I am now living right off of Crooked Road with my
grandmother and John Davidson, my uncle. I was present at the
time Homer Fowler got
his injuries. R. H. Sheppard hit him with an
axe-Sheppard's axe. The axe you present to me looks kind
of like the same axe. R. H. Sheppard was boarding with us at
that time. He had a cot up there at our house. We stayed in
the front room, and he stayed in the kitchen. When I say
kitchen, I mean, the second room. There are three rooms to
this house, all in a row, one right behind the other. When
you go in the front door, you go into a room, and that was my
sister's and my room. The room he stayed in was directly
behind the front room. We were not using the back room of the
house at all. On the day that this happened, Homer Fowler
came to my house about 3:00 or 4:00 o'clock; somewhere
along there; in the afternoon. Sheppard and Roy Fowler came
with him. By 'Sheppard' I mean the man who is on
trial. Roy Fowler had been to my house before he came there
with Homer. Roy came there, and Sheppard went off with Roy in
the afternoon; I don't know exactly what time it was.
They went in a car-a truck, if I am not mistaken. They were
not gone but about an hour, I reckon, and when they came
back, Homer was with them. As to whether or not they were in
the same truck, I reckon they were. I think Sheppard came in
first, and Roy behind him; and then Homer Fowler came in.
When Sheppard and Roy came in, the door was closed before
Homer came in. It wasn't but just a few minutes before
Homer came in. When he came in, me and my sister were in the
front room. Sheppard and Roy had gone on into the kitchen,
the middle room. Homer came in and sat down, and went on in
the kitchen where Roy and Sheppard were. He sat down in the
front room. I do not know why he left the front room and went
back to where they were. After he went back in the middle
room with Roy and Sheppard, I do not know anything that went
on in there. I did not go in there. The door between those
rooms was open. Roy called me in there and asked me to go to
the show with him, and I told him I could not go, I had to
stay there with my sister, who was sick. She was up, but she
had just got up out of bed. There wasn't anybody else
living there but just my sister and myself and Sheppard. My
sister had a baby eight months old, and the child was living
there too. Homer and Sheppard were in the middle room when I
went back there to talk to Roy about going to the show with
him. As to our conversation about that-I told him I
couldn't go and I went back in the front room. The next
thing that happened there in the house, Sheppard hit Homer
with the axe. Before this happened, I think Homer called my
sister and asked her to come in there. Sheppard said,
'stay right where you are at;' and told her not to
come in there at all. That happened only one time. I was in
the room where Homer was, at the time he was struck. The axe
was sitting in the corner of the room, and Sheppard grabbed
it up and hit Homer, and then he ran right off and Paul Finch
and Johnnie out of the room with the axe, he told them he was
going to kill that G___ d___ s___ of a b___. He was talking
about Homer Fowler. Roy went out the back, and Paul went out
the front.
"Q. How many times did he hit Homer? A. I think he was
hit twice. Mr. Knight: I object to that, she says she thinks.
The witness: The first time he was hit, Homer Fowler was
standing up by the side of the window, and Sheppard was
standing kind of in the corner. Homer was just leaning up
against the window, standing with his side up against the
window. Homer was drunk at that time. When Sheppard struck
him the first time, Sheppard went out of the room, out doors
on the street. I went out on the front porch. Sheppard went
in the room and pushed the door to, and I heard the axe fall
on the floor. Sheppard then went out on the street. When
Homer was struck the first time with the axe, he fell on the
floor. When I ran out of the room, he was laying on the
floor. He was still, I did not hear him say anything. At the
time Homer was struck the first time, Vena was sitting there
in the front of the door, and when Sheppard picked up the axe
to hit him, she went to the door and asked him not to do it.
I think she said, 'Lord, don't do that;' or,
'Lord have mercy; don't do that;' or something
like that. When Sheppard picked up the axe to hit Homer with
it the first time, the front door was shut, but the door that
went into the dining room and kitchen was open. At the time
this occurred the baby was on the bed in the front room. That
is mine and my sister's room. Homer had not been there
that day, before the time when he was hit. I never heard
Homer say anything after he was struck the first time. I did
not see no money there that day."
John
Fowler, sworn for the state, testified:
"I was at the house where the killing took place, when
it happened. I had started down Marietta Street to the drug
store, and seen his car parked in front of the house. It was
a Ford car with a truck body
on it. I knew his car by sight, and I went on up pretty close
in front of the house, and I heard some cussing goin' on,
and some loud talk, and I went in. In that house was a fellow
by the name of Finch and Vena Black, and Dovie Braswell,
Homer Fowler and Roy Fowler, and Sheppard. One of the women,
and Paul Finch, were in the front room. Homer Fowler, Roy
Fowler, Dovie Braswell and Sheppard were in the next room.
That was a little three room shotgun house. As to whether or
not I went into the second room-I went to the second room-I
went to the door and leaned up against the door facing. When
I got to the middle door there, Sheppard says to me, 'you
are on my side, aint you?' I said, 'No, I am not on
anybody's side;' and Homer Fowler called Vena
Black-she was in the front room-and told her, says, 'come
in here;' and Sheppard spoke up and said, 'don't
you come a damn step; stay where you are at.' Homer
repeated it, and so did Sheppard, and Roy Fowler spoke up and
said, 'Sheppard, let's not get anything started.'
Sheppard grabbed the axe and started at Roy Fowler, and ran
him out the back, and turned around and came back and hit
Homer Fowler with the axe in the head, and started at me and
said, 'G___ d___ you, I will get you too,' but I ran
out the front door. When Homer was struck, he was in the
middle room near about the center of the floor, I reckon. I
saw R. H. Sheppard when he struck him. He was not doing
anything but just standing there when he was struck. I did
not see him have anything in
his hands at that time. I did not hear him say anything to
Sheppard after I got in there. I did not see him do anything
or try to do anything to Sheppard. As to whether he was drunk
or sober-I could not say he was drunk, but he could not stand
up hardly."
W. P.
Finch, sworn for the state, testified:
"That fellow over there asked Homer, Mr. Fowler, would
he do him a
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