Westley Tate v. The State Of Ga.

• Citation: 46 Ga. 148
• Parties: WESTLEY TATE, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Decision Date: 31 July 1872
• Court: Georgia Supreme Court

46 Ga. 148

WESTLEY TATE, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Criminal law. Murder. Charge of Court. Immaterial error. Evidence. Before Judge Andrews. Elbert Superior Court. September Term, 1871.

*Westley Tate was placed upon trial for the murder of Jefferson Tate. The defendant pleaded not guilty.

The following evidence was introduced upon the trial:

Testimony for the State.

Marion Tate, (colored) sworn: I think it was about sunset or between sunset and dark on Tuesday of last week; it was at the Ragland place in Elbert county; on that day Westley Tate struck Jefferson Tate with a pole axe; he hit him on the right side of the head, near the top, more to the right than left. I think he hit him with the head of the axe; it appeared like a pretty heavy blow; knocked him down; the wound was about an inch and a half wide and three and a half or four inches long; can't tell how deep it was; the skin was broken in one small place; was not able to get up; they took him up, spoke to him, called him and he did not answer. They carried him into the house and laid him down; he was knocked down on Tuesday and he lived until Thursday morning; he died in this county. I did not see the commencement of the difficulty between them two; the fuss commenced about some "jowering" about some children; the women were West's wife, Muly and July, Jeffs.' uncle's wife; West. was there before Jeff. came. When the killing took place Jeff. came up and set his basket down and goes in the house and gets a drink of water; when he got the water he came out and walked to the wagon, where his basket was; he stood some few minutes leaning against the wagon, when he spoke to West. and said to him, "I don't think it right for you to curse another man's wife in her yard;" don't remember what he had been saying before that; don't remember what West. was doing; the women and defendant got in a great rage; Jeff. spoke to defendant first; he told defendant that he did not think it was right for one man to be cursing and talking about killing another man's wife in her yard; West. asked him, "Did he take it up?" Jeff. told him, "No ! he didn't take it up in particular, more than he didn't think it was right;" West. *then told Jeff. "That he would hit his wife, " and Jeff. told him "I reckon not;" Jeff. said, "I think God give you more sense than to hit his wife if he were in some foreign country;" there was some few words passed between West. and Jeff. that I don't recollect. West. started to Jeff.; I never saw him; I heard him walking and talking back behind me; don't think that from the time until West. got half way there another word spoke between them; I was sitting with my back to West. and face towards Jeff.; when I looked I saw Jeff. stoop after the double-tree, and as the double-tree was coming up I saw West.'s axe coming under the double-tree; he had raised the double-tree up when he struck; by the time he got the double-tree nearly straight West. struck Jeff. on the right side of his head with his axe; Jeff. and the double-tree all fell backwards and lodged on the hub of the wagon. At the time they commenced talking to each other I think they were fifteen or twenty steps apart, or more; don't think Jeff. moved out of his tracks; didn't examine to see whether the skull was broke or not. After West. knocked Jeff. down he walked off from there very quickly; Jeff. was standing at the fore-wheel of the wagon; the double-tree was separate from the wagon; he caught the doubletree up with both hands; it was a double-tree for a two-horse wagon, the usual size.

Cross-examined: I could kill a man with a weapon like that double-tree; I reckon the double-tree was nearly four feet long; it was lighter than a four-horse double-tree; the double-tree was lying on the ground, nothing attached to it; Jeff. was on the left side of the wagon; the tongue was towards the house; Jeff. was on the upper part of the wagon, on same side with witness, leaning against the fore-wheel; he was standing up between the front wheel and the tongue; there was no part of the wagon between witness and deceased; witness was on the same side of the wagon with deceased; deceased was leaning against the basket of cotton and the wagon; the basket was sitting on the wagon wheel; the deceased and wagon werethree or four steps from the witness; I was sitting *on a work-bench some five or six steps from the house; don\'t know how long I had been there before the difficulty; when I got there there was a difficulty between Muly and July; heard them "jabbering" after I got there; they were "jabbering" about Muly\'s baby and July\'s brother; they had been quarreling; don\'t know how long they had been quarreling before West. came up; witness hadn\'t been there very long before West. came up; they were quarreling about July\'s brother knocking down Muly\'s baby in play and hurting its face while they were playing; Muly was in the family way; she has had a baby since, so I have heard; I heard she had a baby the next night from the chat. When West. came up he picked a chunk and started to knock her down with it for the fuss his wife and she was in; he never knocked her down that I saw; if he had have done it witness would have known it; didn\'t see West. when he came up; he came before Jeff. West. had been pulling fodder that day; deceased, defendant and witness live on the same place; witness and defendant live in the same inclosure; Jeff. lives three hundred and fifty or four hundred yards on the other side of the branch; the gin-house is on this side of the branch; gin-house some four or five hundred yards from where difficulty took place; West. was foreman on the place; don\'t know what privileges he had; I worked with my own squad; Jeff. had a squad of his own; Jeff.\'s wife came with him and came by there; it was on the way to the gin-house; no quarrel had taken place between defendant and Jeff.\'s wife; I heard that West. brought an axe with him from the fodder field; Jeff. said to West., after he came out of the house and lent up to the wagon wheel, "West., I don\'t think it is right to curse another man\'s wife in her yard, and talk about killing her;" I know that West. did not speak to him first; I think West. asked him, "Did he take it up?" Jeff. told him, "No ! not particular, but he didn\'t think it right;" West. told him, I think, "He would hit his wife;" Jeff.laughed, and said, "No ! I think God gave you better sense than that; I don\'t think you would strike my wife if I was *in some fur country;" don\'t know why West. said he would strike his wife; nothing had passed between West. and Jeff.\'s wife. When he was struck with the axe he fell back and lodged against the hub, on the outside of the wheel on the left, and the double-tree fell on the left of him; defendant and deceased were about the same size; witness recognizes prisoner as the one that struck deceased with the axe; July lived in the same inclosure and same yard; I saw nobody but Jeff.

Jim Martin, (colored) sworn: Was present at a difficulty between Jeff. Tate and West. Tate, at Mr. Tate\'s "Ragland place, " in Elbert county, on Tuesday evening of last week; as we came up from the fodder field some women were quarreling about some children; West. came and heard them quarreling and took it up; West. Tate\'s wife, Muly Tate, and July Tate were the women that were quarreling; West commenced cursing Aunt July in her yard, and Jeff. spoke and told West that "He didn\'t think that he was doing right to curse a woman in her yard;" Jeff. told him that "He didn\'t think that he would like for any man to go in his yard and curse his wife that way;" West. spoke and told him that he "would curse his wife or any other God damned man\'s wife that was standing on his toes;" Jeff. told him, "I reckon not, West.; I might go to some fur country or other and God gave you better sense than to hit my wife;" West. said, "God damn you, I\'ll show you, you God damned yellow rascal;" then he made to him with the axe; Jeff. stooped down to get the double-tree and before Jeff. got exactly straight with it West. hit him on the right side of the head with the axe; he knocked him down; he first fell on the wagon hub and lay there a few minutes and then fell on the ground; he knocked him down with a pole axe; he hit him with the butt of the axe; he hit him on his head, on the right side of his head near the top of his head; witness recognizes prisoner as the one that struck deceased with the axe. After West. knocked Jeff. down he threw down his axe and walked a short distance, then struck a little trot; *I saw no more of him until I saw him in jail. After Jeff. fell on the ground we picked him up and carried him in Oliver Tate\'s house; he lived until Thursday morning after he was knocked down; I was with Jeff. nearly all the time after he was struck until he died; he did not talk any; he...