Williford v. State

• Decision Date: 10 November 1904
• Parties: WILLIFORD v. STATE.
• Court: Georgia Supreme Court

48 S.E. 962

121 Ga. 173

WILLIFORD v. STATE.

Supreme Court of Georgia

November 10, 1904

Syllabus by the Court.

1. A misdemeanor convict, who has escaped lawful confinement, may be recaptured by any peace officer without a warrant. If the escaped convict slay the officer to prevent the capture, the homicide will be murder.

2. Where a motion for a change of venue was made upon the ground of inflamed and excited public opinion, prejudicial to the accused, and the judge, after hearing evidence, denied the motion, and no exception was taken to the refusal to grant a change of venue, the same contentions which were the basis of the motion cannot be again urged as a ground for a new trial. The remedy was to except to the overruling of the motion to change the venue.

3. The charge that a presumption of malice arose upon proof of an unprovoked killing was not open to the objection that it excluded from the jury consideration of evidence introduced by the state tending to show that the homicide was to prevent a capture of an escaped convict without a warrant, which would reduce the offense to manslaughter. A homicide under circumstances pointed out in the first headnote is murder and not manslaughter.

4. The evidence authorized a submission to the jury of the issue of fact as to defendant being an escaped convict from a lawful chain gang.

5. There being no merit in any of the special assignments of error set forth in the motion for a new trial, and the evidence fully warranting the verdict, no reason appears why the conviction of the defendant should be set aside.

Error from Superior Court, Mitchell County; W. N. Spence, Judge.

Whitely Williford was convicted of murder, and brings error. Affirmed.

Scaife & Lane and Sam S. Bennet, for plaintiff in error.

John C Hart, Atty. Gen., W. E. Wooten, Sol. Gen., and Arnold & Arnold, for the State.

EVANS J.

The indictment under which the defendant was tried alleged that he had committed the offense of murder, by unlawfully feloniously, and with malice aforethought killing one Harmon West by shooting the said Harmon West with a certain pistol, inflicting a wound from which wound said Harmon West died. The jury found the defendant guilty, without any recommendation. He made a motion for a new trial, to the overruling of which he excepts.

The evidence disclosed that there was only one eyewitness to the homicide. That witness testified substantially as follows: His father was a justice of the peace, and, the regular bailiff having died, witness had been specially deputized to act as bailiff. On Monday morning, previous to the homicide, he had taken the oath for emergent constables; and, after taking the oath, he requested Mr. West, the deceased, to aid him in the arrest of the defendant. Witness had recently heard that the defendant had escaped from the chain gang, and that a reward of $25 had been offered for his recapture. Witness made an investigation of the whereabouts of the defendant, finally receiving information that he was located at a certain turpentine still. Deceased and the witness went to the still for the purpose of effecting the defendant's arrest. After arriving there and making inquiries, they saw defendant run to the house of a certain woman, and they went to the house and made a casual examination, but were not able to find the defendant. The woman in whose house they were searching informed them that the defendant was not there. They left the house and proceeded to another house, and there determined the defendant must be secreted in the house where the search had just been made. On their return to this house they saw no one in the house, but discovered a hat lying on the floor. In the loft or ceiling immediately above the place where the hat was lying they discovered an opening where a 12-inch plank had been turned back. The deceased handed his pistol to the witness, remarking, "Here, take my pistol." Deceased then got on a chair, and, with the help of the witness, was preparing to go through the hole into the loft, when, just as he caught hold of the ceiling and drew his head into the opening, the defendant fired with a pistol. The weapon was so close that the powder burned the hat of the deceased. Immediately after firing upon the deceased, the defendant fired upon witness, inflicting a wound in his shoulder. The deceased died from the effects of the wound thus received. It further appeared from the evidence of the state that the defendant escaped into Florida, and was there arrested. He confessed to the arresting officers that he had escaped from the chain gang prior to the killing of West. This was substantially the case made out for the state.

The defendant, in his statement, said that some boys came from the commissary at the turpentine still, and told him there were two white men looking for him, and that he had better look out. He desired to get away from them, but everything was so open that he went across to the house where the homicide occurred, and about the time he got into the yard the deceased and his companion started from the commissary, and some one pointed him out to them. He went into the house and hid. After coming into the house and searching for him, they left, but shortly returned. In the meantime he had climbed into the loft through a hole right over the window. When the men who were searching for him came back to the house, one of them said: "The damn son of a bitch is in there, and there ain't no use saying he ain't, and I am going to kill him." This remark scared the defendant. He saw them through a crack in the house as they approached and entered it, and both of them had pistols in their hands. One of them stepped into the window and started to climb into the loft, and the defendant, realizing that he would be caught, and being scared, said, "What do you want with me, captain?" The deceased replied, "I will show you as soon as I get up there," and then raised up, with one hand on the plank and a pistol in the other hand; and, before he could do more, the defendant shot him, and he went back into the hole. His companion then went outside into the yard and ""hollered," "Come here, people!" He had his pistol in his hand, "hollering" to the people at the commissary and watching for the defendant, and, when the defendant ran from the house, turned to shoot him, but defendant shot before he did, and escaped.

1. In the amendment to the motion for a new trial the defendant contends that under the undisputed evidence, the highest grade of offense for which he could be convicted was that of voluntary manslaughter. If the defendant killed the deceased to prevent an illegal arrest, and not in a spirit of revenge the crime would be voluntary manslaughter. Croom v. State, 85 Ga. 718, 11 S.E. 1035, 21 Am.St.Rep. 179. So this contention hinges on the legality of the arrest. "An arrest may be made for a crime by an officer, either under a warrant or without a warrant, if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant." Pen. Code 1895, § 896. Let it be conceded that at the time of the homicide the deceased and the constable were attempting to effect the capture of a misdemeanor convict who had escaped from the chain gang, and that they were not provided...