Welch v. State
| Decision Date | 11 April 1940 |
| Docket Number | 13164. |
| Parties | WELCH v. STATE. |
| Court | Georgia Supreme Court |
John Welch was indicted in 1933 for the murder with a pistol of Mattie Jefferson in that year, and remained a fugitive from justice until 1939, when he was tried and found guilty with a recommendation to mercy. The defendant relies on the two special grounds of his motion for new trial: the refusal to grant a continuance because of the absence of a material witness, and the discovery of new material testimony, as alleged. There is no argument or insistence on the general grounds, independently of testimony which the defendant insists would have been developed from the witnesses referred to in the special grounds. In the trial he relied solely on his statement to the jury. In brief summary the testimony for the State by eye-witnesses to the homicide was to the effect: that a number of negroes, including the deceased, had gathered at a small settlement, about dark while a moon was shining, after a Fourth of July baseball game and barbecue; that the defendant came up to the deceased as she was getting ready to return home, and asked her to go to ride with him; that she told him she couldn't go, was going home to her children and husband; that he said, if she didn't go, she wouldn't go to her husband, and then backed off and fired several shots at her, one entering her left breast near the heart, and causing almost immediate death; that there appeared to have been no previous quarrel or dispute between them; that the deceased made no attack on the defendant, and did not say or do anything to provoke the shooting; that she was unarmed with pistol, knife, stick, or any kind of weapon; and that the firing was at close range within a few feet of the deceased. The defendant stated to the jury that the deceased had previously sent her daughter to tell him to come to her house and finish some whisky; that he did not go, and at the time of the shooting she asked him if he had gotten her message; that he told her 'Yes,' and when she asked 'Why didn't you come?' he replied, 'Well, I was coming;' that she called him a liar with an epithet, and he said, 'My mother was too good a woman for you to call me that;' and when she said, 'You run after these other * * * whores and you can't come to me,' she One witness for the State testified that on the night of the homicide the defendant showed him a cut place on his sleeve about his arm, and told him that the deceased had done it with a sharp knife; but the defendant did not show him any cut on his back and shoulder, and the witness saw no sign of any wound or blood.
In the ground relating to the refusal of a continuance it appears that, before the trial on Tuesday, August 29, the defendant had told his attorney in July that he desired to have the absent witness subpoenaed, and expected to prove by the witness that just before the shooting the deceased made an assault upon him with a knife; that counsel for the defendant talked to the witness in the office of counsel on the Saturday preceding the trial, and the witness promised to be present on Monday to testify, but no further inquiry was made until Tuesday, the day of the trial, when a subpoena was issued, and it was discovered that the witness had not been present either Monday or Tuesday; and that the subpoena could not be served before the beginning of the trial because the witness was about fifteen miles distant on a visit to a sick relative. In notations by the judge it appears that in overruling the motion for continuance, he stated to the defendant and counsel that an officer would be furnished and time allowed to get the witness before the case went to the jury; that later the judge again offered to give time to send for the witness, and to furnish an officer to go for him by automobile, 'if you desire for him to be here as a witness,' but 'no request was made by counsel to send after the witness.'
In the ground relating to alleged newly discovered evidence, the defendant produced an affidavit by a witness, who had not testified at the trial, to the effect that about two hours after the body of the deceased had been removed...
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