Thompson v. State, (No. 6604.)

• Decision Date: 16 August 1928
• Docket Number: (No. 6604.)
• Citation: 144 S.E. 301,166 Ga. 758
• Parties: THOMPSON. v. STATE.
• Court: Georgia Supreme Court

166 Ga. 758

144 S.E. 301

THOMPSON.

v.STATE.

(No. 6604.)

Supreme Court of Georgia.

Aug. 16, 1928.

(Syllabus by Editorial Staff.)

[COPYRIGHT MATERIAL OMITTED]

Russell, C. J., and Gilbert, J., dissenting.

Error from Superior Court, Murray County; C. C. Pittman, Judge.

Eula Elrod Thompson was convicted of murder, and she brings error. Affirmed.

Clifford Thompson, Eula Elrod Thompson, and Jim Hugh Moss were jointly indicted for the murder of Coleman Osborn. Clifford and Eula Elrod Thompson were husband and wife. Jim Hugh Moss was a negro. The defendants were separately tried. All three were convicted without recommendation. The convictions of the husband and the negro were affirmed by this court. 166 Ga. 512, 517, 143 S. E. 896, 900. The present writ of error is brought to review the judgment overruling the motion of the wife for a new trial. The evidence against her makes this case:

Coleman Osborn conducted a country store, and sold gasoline at his home in Murray county. He was shot in his store, and died on the night of Friday, August 5, 1927. The attending physician testified he died as the result of a pistol shot wound, and from the appearance of the wound it was a 38-caliber pistol. Thedeceased had lived at the place where he was killed for about 14 years. The defendant had lived in this same community all of her life, up to 6 or 7 years before the homicide, and during the latter period had frequently visited the community. She was at the store of deceased about 2 or 3 weeks before the homicide. She knew and was intimate with the deceased and his wife. The defendant's father lived in the same community, a little over a mile from the home and place of business of the deceased. Clifford Thompson and Jim Hugh Moss had never lived in that community. The deceased was accustomed to keep on hand considerable sums of money. This fact was well known in the community. Sawmills of a certain lumber company had been operating in that community for about two years, and the deceased had cashed about all the checks for the people who worked at both of those mills, about 50 men, including a brother of the defendant, who lived about where his father lived, or near by. The deceased had had about 20 bales of cotton stored in his barn at his home, not over 100 yards from his store. He had this cotton on hand at the time the defendant was at his store, about three weeks before his death, but had sold the cotton, or a part of it, about a week before he was killed.

On Tuesday or Wednesday before the deceased was killed on Friday night, this defendant was seen in that neighborhood, in company with her husband and the negro Moss. They were traveling in a Ford roadster automobile, and the white man was driving. They passed the home of Berry Bennett, who lived about 2 miles from the home of the deceased, about 5 o'clock in the afternoon. They were coming from the direction of the home of defendant's father, and going in the direction of Ramhurst. On the same day this defendant drove past the home of John Glass, who lives 3 miles west of Ramhurst and 7 miles south of Chatsworth. She was in a Ford roadster automobile, in company with a white man and a negro; the latter sitting on the right side of the car. The car passed close enough to the witness, who was at his hogpen by the side of the road, for him to have touched the negro with his hand as he passed. On Wednesday, August 3, 1927, Paul Cagle and one McClure left Etowah, Tenn., about 3:30 or 4 o'clock in the afternoon, traveling to Georgia in an automobile. Cagle was acquainted with Clifford and Eula Thompson, and with Jim Hugh Moss. Before reaching Ocoee, Cagle heard a noise that caused him to think he had tire trouble. He pulled his car out to the side of the road, and at this point the defendant, her husband, and Moss drove by him in a Ford roadster automobile. He investigated and found he had no tire trouble. His attention had been attracted by the firing of what he took to be a pistol, which the woman had. Two shots were fired. As he looked back when he first heard the noise, these three persons in the Ford roadster were getting close to him, and he saw the smoke. He looked back, and they fired a second shot. What he took to be a pistol at that time was on the outside of the car. He was perhaps 20 or 30 feet, or a little more, from them. This was between Benton and Ocoee. Cagle drove on, and repassed the defendant and the two men in the Ford roadster before reaching Ocoee. The defendant was sitting between her husband and the negro in the car. Cagle pulled up at Ocoee and stopped, and the defendant and the two men drove up to a little store there, and stopped. Cagle and McClure drove away from Ocoee behind the defendant and the two men, but passed them about 2 miles south of that place, after which the defendant and the two men in the Ford roadster followed just behind them all the way to Tennga, except as they went around a few curves. At Tennga, Cagle and McClure crossed the bridge, and the defendant and the two men in the Ford roadster turned down the road to the right at the state line. That was in Georgia, about 5 o'clock in the afternoon. The defendant was seen by Colvard at his garage at Tennga of the week the deceased was killed. His garage is located just north of the forks of the road leading towards Chatsworth and the one leading towards Shumake, the latter being the right-hand road. The left-hand road crossed the overhead railroad bridge. The defendant was traveling in a Ford roadster automobile with a white man and a negro, the white man driving. They took the right-hand road towards Shumake.

Bill Kirby operates a general merchandise store at Shumake. On August 3d or 4th of the week that the deceased was killed, Kirby saw the defendant, Jim Hugh Moss, and a white man, in a Ford roadster automobile in front of his store, about 6 o'clock in the afternoon. Moss came into the store and bought a box of "Sure tight" tire patching, and something to eat. Kirby, as a witness, identified a box of tire patching exhibited to him as the one he sold to Moss, bearing thereon his mark, put there by the witness himself. The defendant and the two men were headed south from this point, in the direction of Spring Place, about 8 or 9 miles distant. This was on Wednesday or Thursday. The defendant was identified by one Dixon as the woman he had seen at Kirby's store about 5 or 6 o'clock in the afternoon of Wednesday or Thursday afternoon in the week in which the deceased was killed. She was traveling in a Ford roadster automobile with Clifford Thompson and Jim Hugh Moss. Dixon spoke to Moss as the latter came down off of the store steps to enter the car, and told him he had a flat tire, but he got in the car and drove away, going south. Later Dixon passed these persons, where they had stopped their car by the side of the road to fix their casing. He identified Clifford Thompson and Jim Hugh Moss as the two men in the car with the defendant.

S. J. Maples is a merchant, and lives at Etowah, Tenn.; knows the defendant and Jim Hugh Moss, but does not know Clifford Thompson. He identified the defendant. On the day of the night on which the deceased was killed, he saw the defendant and Moss; saw them five or six times. They were together, traveling in a Ford roadster automobile, this defendant and Jim Hugh Moss. Moss came in his store, and the other two, the defendant and her husband, sat in the car. They came to the store about sundown. Maples knew Moss well. Moss traded with him all the time. Moss asked him what kind of a gun he had. He told him he had a 45 automatic. Moss asked him if he would swap guns with him. Moss said he had a.32 or.38 caliber, Maples could not understand which, as Moss was stuttering. He asked Moss what he wanted with it. Moss said he wanted to take a trip. He said to Maples, "How about taking me to Georgia to-night?" Maples said, "I can't go down there." Moss said, "I will give you $25 to take me to Georgia." Maples said, "Why don't you go in that car you are in?" Moss replied: "I don't want that woman to know I am going. I want you to take me and follow them down there, and bring me back before daylight." Moss inquired as to the price of flour when he came in the store door, but did not purchase any.

The defendant, her husband, and Jim Hugh Moss were at the store of one Warlick, at Etowah, about 7 o'clock p. m. of the night on which the deceased was killed. They came to the store in a roadster car. Moss pretended he wanted a pair of shoes, but did not get them. They left the store a few minutes after 7 o'clock, traveling the road leading south, in the direction of Benton, Tenn., and Georgia. The most direct route to East Etowah would be by Fifth street. All three left the store in the car, and were going away from that street. Between 7 and 8 o'clock on the night of the homicide, Clifford Thompson passed the home of Ralph Burris, about 2½ miles north of Benton, and 12 or 13 miles south of Etowah, Tenn. He was going in the direction of Georgia. It would take 20 or 25 minutes to drive from Etowah to Benton. He was traveling in a Ford roadster, '26 model. He was driving the car; his wife was sitting in the middle, and the negro on the other side. On the night of the homicide, Dr. George Keith was at his father's home in Georgia. He and his wife returned from his father's home to their home in Etowah, Tenn., that night, in a car driven by Jim Lowry; left his father's about 9 o'clock; passed the home of Mont Howell about 9:10 or 9:15; saw a Ford roadster standing near Howell's, on the side of the road, headed south. No one was in it. From Etowah to Howell's is about 36 miles. At that time, in the condition of the roads, it would take about an hour to drive that distance. This car had a Tennessee license tag on it. The witness Jim Lowry testified that the Ford roadster was parked on the side of the road, just across the railroad from Mont Howell's house, a distance of 50...