Whitaker v. State

• Decision Date: 25 March 1887
• Citation: 3 S.E. 403,79 Ga. 87
• Parties: WHITAKER v. STATE
• Court: Georgia Supreme Court

3 S.E. 403

79 Ga. 87

WHITAKER v. STATE

Supreme Court of Georgia

March 25, 1887

Error to superior court, Fulton county; MARSHALL J. CLARKE, Judge.

Gartrell & Ladson, for plaintiff in error.

C. D Hill, Sol. Gen., for the State.

HALL J.

Asa Whitaker was indicted jointly with Chapman Scott, Evans Harris, and Jim Sheely, for the murder of William Drakeford and being found, on his trial, guilty of voluntary manslaughter, he made a motion for new trial, which was overruled; and thereupon he excepted, and brought the case to this court.

The first four grounds of the motion are the usual grounds, that the verdict is contrary to the evidence, etc. The amended motion contains the special grounds, which are: (1) That the court erred in rejecting testimony as to a difficulty between the defendant and Frank Robinson, which occurred a short time before the shooting of McDonald, the uncle of the deceased William Drakeford. This testimony was rejected because it did not appear that the deceased was present at the occurrence, or that it had any connection, immediate or remote, with the shooting of Drakeford by the defendant; the defendant's attorney stating, when called upon, that he did not expect to show that Drakeford entered into any combination with Robinson to attack the defendant.

Defendant's counsel insisted that, although the transaction preceded the difficulty with McDonald and his party, including Drakeford, it was part of the res gest ; that the testimony was relevant to show the peaceable disposition of the defendant, and to show the circumstances under which the defendant left the house, and the intentions with which he left; and that it was admissible to rebut the idea that there was a conspiracy between the defendant and the others, three of whom were jointly indicted with him; and also to show the reasonableness of the fears under which the defendant acted. (2) Because the court erred in admitting, over defendant's objection, testimony of his co-defendant Scott as to his conversation with another defendant, Harris, while they were confined in the guard-house. This examination was had, as the court certifies, for the purpose of laying the foundation to impeach this witness, and was admitted for that purpose, and that purpose only. (3) Because the court erred in ruling out the dying declarations of Drakeford. (4) Because there was error in failing to charge the jury as to the law of involuntary manslaughter, and in not giving them in charge sections 4334, 4335, Code, viz., that all other instances which stand upon the same footing of reason and justice as those enumerated shall be justifiable homicide; and that, the homicide appearing to be justifiable, the person indicted shall, upon the trial, be fully acquitted and discharged.

The case made by the evidence was briefly this: On the night of the twenty-fourth of December, 1885, an entertainment was given by Bomar, at a house on Martin street, in the city of Atlanta, to what was known as the "Nickel Club." The defendant and his party did not belong to this club, and went to the entertainment without any invitation, either from Bomar or any member of the club. They assembled in the street outside of the house, and conducted themselves in a somewhat riotous and disorderly manner. One of the windows of the room in which the guests were assembled was broken by a stone thrown against it, which greatly alarmed the women. Shortly before this the defendant had entered the house, where he got into an altercation and fight with Frank Robinson. Drakeford was not present at this fight. Shortly after it occurred the defendant was requested by Bomar to leave the house, and did so, joining his party in the street. Afterwards McDonald and others belonging to the club came from the house to the street, where some altercation took place, when the defendant procured a pistol from Scott and shot McDonald, giving him a wound in the face. Thereupon the friends of McDonald rallied and made pursuit with a view, as they alleged, to arrest the defendant for the shooting of McDonald. The defendant turned upon his pursuers, and shot Drakeford, giving him a wound from which he died a day or two afterwards. After this occurrence he fled, and some six months after his flight he was arrested in Jacksonville, Florida, and brought back to Atlanta to answer for this offense. His co-defendants Scott and Harris were arrested on the morning after the difficulty, and lodged in the city barracks in different cells. Scott was sworn, and testified on the trial of the defendant as one of his witnesses. The evidence he gave was in favor of the defendant; and the state propounded questions to him with a view to lay the foundation for impeaching his evidence, by showing that he elsewhere, to-wit, while he was confined in the barracks, made statements directly in conflict with the testimony which he gave on the trial. The questions propounded...