Whitley v. The State Of Ga.

• Decision Date: 30 June 1868
• Citation: 38 Ga. 50
• Parties: EGBERT B. WHITLEY, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

38 Ga. 50

EGBERT B. WHITLEY, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Milledgeville, June Term, 1868.)

Murder. Motion for new trial. Tried before Judge Hutchins. Walton Superior Court. February Term, 1868.

The defendant moved the Court to continue said case, in writing, as follows: That, by reason of the recent occurrence of the fact, to-wit: on the 27th of January, 1868, and the prevalence of popular excitement against him in the county, he believes he cannot go safely to trial at this term of the Court; that in the rencontre in question, deponent received two severe pistol-shot wounds, one through the testicle and left thigh, the other through the body, from the effects of which he has not sufficiently recovered to enable him to endure the fatigue and excitement of the trial; that having *been, since the occurrence referred to, all the while closely confined in jail, under guard, and not allowed to communicate with his friends, and suffering great bodily pain from said wounds, he has had no opportunity properly to prepare his defence, the want of which opportunity is more specially apparent in this, viz: on the day of the occurrence there was a large crowd in town; there are many witnesses to the facts, amongst whom defendant has, as yet, been informed of the name of only one, besides his son Tom, by whom he could prove that, at the moment the difficulty began, he, deponent, snatched the pistol used in the rencontre from his said son: this was —— Stephens, who has, unfortunately, died since the fact occurred; but deponent believes he can produce others, by the next term of the Court, if opportunity is allowed him to do so, by whom he can prove the same fact." This motion was strengthened by the testimony of Dr. N. L. Gallaway, who had been attending physician of prisoner, who testified as to the wounds defendant received, their serious character, not necessarily mortal, but necessarily very painful, especially the one through the testicle; that whilst witness could not say that defendant might not stand his trial without serious injury, he thought there might arise serious consequences, and if the defendant were under the control of witness, as physician, he would not think it proper or prudent for the defendant to stand his trial in his then present condition; he could not say that he would suffer from the trial; wounds all were healed except a small place in his back, and he was in good health. The Court overruled the motion for a continuance.

The Court proceeded to empanel a jury. The first panel having been exhausted, the State put the second panel of tales jurors upon the defendant, who challenged the array because eight of the talesmen were negroes, and not free white citizens, of said county, and not, by the laws of said State, competent to serve as jurors, to try said case. These colored jurors were, by both parties, subsequently excused, but not till the Court had overruledthe objection, and put the array upon the prisoner.

*On selecting the jury, seventy or eighty jurors, on their voir dire, disqualified themselves for cause, on account of bias and prejudice, and of relationship to prisoner. The jury having been empaneled, the State proceeded to the introduction of testimony, a brief of which appears hereafter, and offered in evidence, the sayings of Wommack, the deceased, made a short time previous to his death, to-wit: "That it was hard to be killed for telling the truth; that God knew he told the truth, and Eg. knew it was the truth, " as dying declarations. Defendant objected, on the ground that the sayings were irrelevant, and not admissible as dying declarations, though made in extremis. The Court overruled the objection, and admitted the testimony.

The evidence was as follows:

For the State.

Dr. W. S. R. Hardeman: I was crossing street from Courthouse; Sheats was in front of me; some one in front of me; believe it was 17th January, County-Court day, 1868, Walton county; while crossing, saw Wommack opposite Roberts's store, walking fast; when he got to Roberts's store, son of E. B. Whitley was standing there on stoop; when deceased passed, young Whitley said something to Wommack, didn't hear what it was; Wommack checked his gait, made some reply, think he said "you can't do it;" can't remember, certainly; Wommack passed along slowly, sorter sideways; prisoner came from towards Fletcher's; when approached, asked his son "what the damn rascal wanted;" didn't hear any reply; prisoner said he could give the "damn rascal what he wanted, " I think that is what prisoner said; prisoner continued to approach, and Wommack going along sideways, but watching prisoner; (on the side-walk, this was;) Wommack called to prisoner not to approach on him; prisoner continued to approach, and Wommack going on; about that time Wommack drew a pistol, and, I think, had it out, he reached out; about that time looked, and Whitley drew his pistol, and Wommack fired;couldn\'t say positively where prisoner drew pistol from, but think he had both hands in his coat pockets, *and think prisoner drew his pistol out of his pocket; young Whitleywas on Roberts\'s stoop, a few paces from the firing; firing commenced when prisoner was a few yards; Whitley kept straight on, made no pause; Whitley asked his son what the d—d rascal wanted; Whitley received nothing from his son that I saw; commencing firing, Wommack first, Whitley returned the fire, and Wommack again; Whitley tried to fire again, and pistol failed; Whitley fired soon as he drew the pistol; think pistol was in left hand, not certain; Whitley and Wommack drew his pistols before either fired; I had a tree between me and Whitley, and halted until Wommack ran off; Mr. Wommack ran off around the square; saw him fall, full length, on his face; examined him; I considered him a dead man; he asked me if I could do any thing for him; I told him that I hoped he would not die, I would examine him; I did examine him, and told him he could not live; (he said that it was hard to be killed for telling the truth, and God knew it was the truth, and that Eg. knew that he (Wommack) told the truth; deceased was wounded in right breast, above the nipple, between the third and fourth rib, with a pistol ball, small one; probed, but couldn\'t tell how deep it was; ball didn\'t come out; died in two hours; died from the effects of the wound, by hemorrhage from the wound; knows nothing but what Wommack said about the cause of the difficulty; died in Walton county; am practising physician.

Cross-examined.

Mr. Whitley received two shots; did not examine them by probe: one about the false rib, left side, the other touched the scrotum; did not examine because he would not suffer me to probe them; Mr. Wommack drew his pistol and fired first; I thought he could have fired twice; two first fires almost simultaneously; Wommack then fired again; think pistols were repeaters; I was looking at both at the time; and was in and out of court-house several times during the day.

*Re-cross-examined.

Saw nothing pass between Whitley and his son. If young Whitley did give his father anything, I did not see it. The two fires mentioned, one was by Wommack and one by Whitley.

Wm. C. Smith: Difficulty was on the 27th of January, 1868, in Walton county, on County-Court day. Dad was about to start home; up at Mr. Bullock's store, I saw Mr. Wommack coming in a fast trot from the court-house steps, and Wommack went into Mr. Bullock's store and I followed him; Mr. Whitley was on the steps, but wasn't following Wommack; I met Mr. Wommack coming to the door; Wommack went there to get some money from Bullock for his fees; I heard Mr. Whitley coming in the store, didn't see him; Whitley asked where the damn rascal was that swore a damn lie against him, and that he intended tohave revenge; Wommack was in far end of room; don\'t know whether Whitley was in the house or on the steps; I didn\'t see him; Mr. Wommack jumped out of the back door; last I seed of him he was running around by the well; next time I met Wommack about Smith\'s store and I give him the money Bullock gave me for him; I went back to Bullock\'s and Mr. Whitley was there; he talked a good deal; don\'t remember all he said; said he had paid out $30, and he had $30 more to pay out, when I told him to keep quiet; he was walking about; spoke to his son Tom; son Tom had his pistol; he told him to give it to him, (Whitley,) and his son sorter refused to do it at the start; son was handling the pistol; he asked him for it again and the son gave it to him, (Whitley,) and Whitley put it in his right hand breeches pocket, I think; I went out doors and Whitley staid in the store: after awhile he came out and I told him not to go where Wommack was, that Wommack was prepared for him, and Wommack had said he would kill him, and he was going to die before he run any more; Whitley \'lowed if Wommack could kill him, Whit-ley, before he could kill Wommack, he *had friends that could bury him; Whitley called to his son to come on; he was going towards Wommack; I followed Whitley down and told him he had better not go, that Wommack was prepared and would kill him; followed a good piece, but I stopped; when he (Whitley) put the pistol in his pocket, I went out of the store and left him in there with his sons; we don\'t know who had the pistol when they came out of the store; when they got pretty close, Wommack drew his pistol; Whitley said something I didn\'t hear; Wommack told him (Whitley) to stand back and not to come any further; Wommack backed with his pistol drawed, three or four steps, may be further, may be not so far; Whitley was going forward toward Wommack; presently got to firing; Mr. Wommack had his pistol cocked and up; Wommack fired first, and Whitley fired then; could not see Whitley\'s pistol until he drew it, and Whitley fired as soon as he drew his pistol; Whitley had his pistol out before...