Wall v. State

• Decision Date: 17 April 1922
• Docket Number: (Nos. 3004, 3005.)
• Parties: WALL . v. STATE. LEWIS. v. STATE.
• Court: Georgia Supreme Court

153 Ga. 309

112 S.E. 142

WALL .

v.STATE.

LEWIS.

v.STATE.

(Nos. 3004, 3005.)

Supreme Court of Georgia.

April 17, 1922.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Reasonable Doubt]

(Additional Syllabus by Editorial Staff.)

Gilbert, J., dissenting.

Error from Superior Court, Dooly County; O. T. Gower, Judge.

Buddie Wall and Chess Lewis were convicted of murder, and they separately bring error. Reversed.

Buddie Wall and 19 other negroes were jointly indicted for the murder of Robert Davis, a white man, in Dooly county, on May 17, 1921. The evidence was as follows: On May 17, 1921, W. D. Cunningham, the marshal of Byromville, went to the home of Fate Chapman, a negro, to collect a tax fi. fa. for $1.75, in favor of that town, or, in default of its payment, to levy the same. Chapman said the fi. fa. was not just, and refused to pay it. The marshal then told him he would levy the fi. fa. on one of his mules in his lot Chapman said he should not go into his lot for that purpose. They got into a tussle, when Chapman's wife came out, and said she would pay the tax. The marshal said that was all right, but that he would have to take Chapman to town because he had resisted the marshal in the execution of this process. Chapman told the marshal that the latter could not take him to town. The marshal said he would. The marshal then seized Chapman, and the latter grabbed the marshal, who was pushed back into the yard. Chapman got the marshal's pistol, but the marshal recovered it. In the struggle which ensued the marshal shot Chapman in the leg. Chapman went into his home and told the marshal to wait until he came out. The marshal got behind a tree, waited a second or so for Chapman to come out, and, when Chapman did not come out, returned to town. Later in the day the marshal went back to Chapman's to arrest him on the charge of resisting an officer. When he got there a doctor attending Chapman informed the marshal that Chapman was not able to go or be taken to town. Thereupon the marshal told Chapman that he would come back in the afternoon or next morning, and that Chapman could give a $50 bond for his appearance to answer the said charge. Chapman said that would be all right: "We will arrange it all right, Mr. Cunningham."

Ben Byrom testified that on the afternoon of May 17, 1921, he saw Lawyer West, who told him that the police had shot Fate Chapman about taxes. The witness told West that Chapman ought to have paid his taxes. West said, "There ought to be something done about it." On the afternoon of May 17, 1921, Sam Byrom was passing the home of Ras Cobb, when the latter said to the former, "I expect that I will need you to-night about dark; if I do, I will let you know, and if you come I want you to bring your gun." That morning, after Chapman was shot, Sam Byrom, Lee Adams, Chess Lewis, Jim Bennefield, and Rich Davis, with others, were at Fate Chapman's house. On the same day Lee Adams was at the home of Ras Cobb, and told him that he wanted him (Ras Cobb) to come down there that night and be with them at Fate Chapman's; that he thought there was a crowd coming in on him there.

Buddie Wall, Zolly West, and Jim Bennefield were at the store of Ras Cobb that afternoon about 3 or 4 o'clock. Chess Lewis was at Fate Chapman's at the time he had the trouble with the marshal. He told Fate if he was him he would get a gun and shoot the son of a bitch, referring to the marshal. On the same day Luke West bought from R. W. Espy, a hardware merchant at Montezuma, a box of 25 buckshot shells. On the night of that day, between 7 and 8 o'clock, Rich Davis and Jim Bennefield went to Fate Chapman's house. Bennefield carried a single-barrel shotgun with him. When they got there Lee Adams was there. Rich Davis and Jim Bennefield soon left, and went and took a seat on a bench in front of Lee Adams' house. Bennefield had his gun with him. There they met Ras Cobb, who had his gun. After a while Lee Adams came down there with his gun. Causey Chapman came from around towards Fate's, with a double-barrel gun. After a little Buddie Wall came there. He had a big black pistol. Finally came Chess Lewis, who had a little, bright-looking pistol, and J. T. Davis had a double-barrel shotgun. After they all got together Ras Cobb said, "Let's go back behind the hall somewhere and shoot, so the white folks will come;" and Lee Adams said, "Well, I can do as much shooting as anybody." They then went on down there, and shot off their guns. How many shots were fired is uncertain. There was volley after volley. One witness says they shot 12 or 15 times. One witness says that there were 100 or 150 shots fired.

Hearing these shots in the direction of the negro churches, which stand near the home of Fata Chapman, in the city limits, the marshal went down to investigate. He got as far as the house of the section foreman, who told him that he shot after the other shooting had happened, right at his home, to bluff them off and not let them come and shoot into his home. The marshal did not go as far as Chapman's home. After getting as far as Sarah Prince's house, and seeing or hearing nothing, he returned to the depot, in town. Some boys had been down to Chapman's home, and reported that his yard was full of negroes with guns, who cursed them. In about 30 minutes the sheriff reached the depot where a crowd of about 25 men had collected. He had been called to Byromville, and told they had been having some trouble. The sheriff said, "Let's go to Fate's home and arrest those who have done the shooting." The sheriff and a posse of about 16 went to Fate Chapman's home. When they got there they surrounded this house. The sheriff stopped in front of the house. Some went to the rear. Some went around to the left Cleveland Thorpe and the deceased went into the yard. According to the testimony of the marshal, up to that time not a word was said to those negroes; the sheriff had not said anything to them, and had not commanded them to surrender.

W. C. Kitchens, the justice of the peace, testified, that, when they first got to the house of Fate Chapman, the sheriff told them to lay down their guns, come out from under and in the house, hold up their hands, come to him, and there should not be a man hurt The sheriff testified he told those negroes to come out from in there, and they would not be hurt, and that he was the sheriff of Dooly county. T. T. Thombley, a witness for the state, testified that he did not remember that anything was said to the occupants of the home before they separated and surrounded the home. If the sheriff had made that statement in his presence, before they separated, loud enough to be heard 150 yards, he sure would have heard it.

The sheriff and his posse, including the deceased, went to Fate Chapman's house to arrest these negroes for that shooting. The state admitted that they had no warrant for their arrest. Cleveland Thorpe arrested the defendant, brought him to the fence, turned him over to the marshal, who handcuffed him, carried him to Mr. Middleton, and told the latter to take him up town and lock him up. When Chess Lewis came out of the yard T. T. Thombley, one of the sheriff's posse, halted him, told him to hold up his hands and come there. He did not come until they holloed to him the second time, and told him if he did not put up his hands and come they would shoot him. He then threw up his hands and came walking to them. When searched, a little 32 pistol was found upon him. They chained Chess Lewis to a part of an old wagon wheel. Up to that time no shots had been fired by the negroes or by the sheriff and his posse. Shortly after the arrest of the defendant a pistol shot was fired from under the front of the house, and flashed around towards the northwest corner of the house. This pistol was fired from 3 to 5 times before any other gun fired. Then a shotgun fired several times. The first shot fired from the shotgun went to the northwest of the house in the direction of the deceased. The latter did not fall at the first crack of the shotgun, but fell at the second shot from the shotgun. From this wound the deceased died. Up to the time of the second shot from the shotgun the deceased had not fired a shot, but was in the yard with a shotgun in his hand. No member of the sheriff's posse had fired a shot before the shot was fired from under the house. When the shots came from under the house the members of the posse began to shoot generally. Chess Lewis and Buddie Wall were in the yard before the shooting started. Lawyer West came out of the back yard, and was shot When asked how he came there, he said his father, Luke West, sent him there. When asked, "Whose gun is that?" he saidit belonged to Luke; that Luke gave him the gun and shells, and told him to come there and protect Fate Chapman.

Jim Bennefield was shot down in the lot that night by the justice of the peace, who testified that Bennefield had been shooting at him with a pistol. Who fired the first pistol shots and the first gunshots from under the house is not disclosed by the evidence. Lawyer West came out of the yard. It looked as if he raised up right out from under the corner of the house, and raised shooting. A big army pistol was found under the edge of the house. Lawyer West had a big long shotgun when he fell, which was taken from him that night. One came from the kitchen of Fate Chapman's house, and one from between the mattresses of his bed. Ammunition from the house, from the rifles, and from the pockets of the negroes was exhibited.

After the affair Chess Lewis gave the sheriff the names of all the parties who were there; told the sheriff that he went down to Lilly after Willie Chapman; that Causey sent him down there to tell Willie to come up there and bring his gun. He said that J. T. Davis went with him to get Willie Chapman. When Chess was arrested he was brought to the sheriff, and while there punched...