Wilson v. The State Of Ga.

• Citation: 69 Ga. 224
• Court: Supreme Court of Georgia
• Decision Date: 30 September 1882
• Parties: Wilson. vs. The State of Georgia.

69 Ga. 224

Wilson. vs. The State of Georgia.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

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The following, in connection with the decision, sufficiently reports this case: \'\' Doc." Wilson was indicted for the murder of James Tinley. On the trial, the evidence on behalf of the state was, in brief, as follows: On the afternoon of February 7, 1881, Tinley and Birdsong, a friend of his, went into the bar room of one Loyall in the city of Macon. The entrance to this bar room was through a barber shop, which was in front of it, and from which it was separated by a partition having a double door for entrance to the bar. Wilson was an employ and bar-tender of Loyall. Tinley and Birdsong called for and received drinks. Tinley then called for his account at the bar, and, after going out and obtaining the money, paid it. He said that the account was not correct. Wilson said that it was correct. Loyall, the proprietor, who was present, stated that he did not sell drinks on credit; that if Wilson credited anybody, it was on hisown responsibility, and it was a matter for him. When Wilson said that the account was correct, Tinley told him that he was a damned liar. Wilson said that if he were not at his business he would see Tinley outside. The latter replied that Wilson could see him at any time. He and Birdsong then left. About seven o\'clock in the evening, they again returned to the bar. Loyall went from behind the counter and Wilson took his place. Tin-ley and Birdsong called for drinks, which were furnished by Wilson. They started to drink, when Wilson said to Tinley, " You acted the rascal with me; " to which Tinley replied, " No, you are the one that acted the rascal with me." Birdsong said, " Gentlemen, it don\'t make no difference what passed this evening. Since Mr. Tinley calls for his drinks and pays for them, you have got no right to say a word." Wilson replied, " I won\'t. I won\'t say another word." They then raised their glasses, and while Birdsong was drinking the pistol fired, and when he and the other witnesses looked, they saw Wilson with the pistol in his hand run from behind the counter through the rear of the store and disappear. Tinley said that he was shot through the heart, and turning, started through the barber shop, fell and died in a few minutes, the shot having taken effect under the left nipple. No weapon was found about his person, nor any evidence of his being armed. He had nothing in his pocket save an ordinary pocket knife. Eugene Wilson, the brother of defendant, was present at the time of the killing. He subsequently brought to the coroner\'s jury a knife which he claimed to have picked up at the scene of the tragedy. When arrested in Columbus, defendant used some prevarication about his name, and in conversation he said that Tinley had something in his hand, which he took to be a knife, but was not certain.

The evidence for the defence was, in brief, as follows: On the afternoon of February 7, 1881, Tinley and Birdsong entered Loyall's saloon and drank together. Tinleytold Wilson to charge the drinks to him. Wilson replied that it was contrary to the instructions of his employer to charge any more to him; that he already owed an account of $3.45. Tinley stated he would go and get the money and pay for the drinks. He left, but shortly returned and paid the account. After doing so, he told Loyall that he did not owe the money. The latter responded that it was for him and Wilson to settle; that he himself had nothing to do with charging the drinks. Wilson sought to explain it to him when and where the drinks were taken by which the account was made. Tinley said that if he claimed that the account was true, he was a damned lying son of a bitch, and continued to curse him. Wilson said that if he were from behind the counter, Tinley would not talk to him in that way, or that he, Wilson, would whip him. Tinley said that he would have Wilson\'s friends and relations " hunting his burial ground before to-morrow night;" cursed and abused him a good deal, and two or three times threatened his life. He said that he would kill Wilson in twenty-four hours. Loyall told Tinley that it was contrary to the rules of his house to have such conduct in there, and told Wilson to say nothing more. He also told Tinley that Wilson went off duty at eight o\'clock, and if he wanted to quarrel, to wait until Wilson got out of the house. After the first time that Tinley and Birdsong were in the saloon, and before the shooting, Tinley was heard to say to Birdsong, on the side walk, that he was " a good mind to kill him." Birdsong proposed to go up the street, saying that they would return. Wilson was warned of this threat by one of the employes in the barber shop, who overheard it. Near seven o\'clock in the evening, Tinley and Birdsong again returned to the saloon. When they came in, Tinley had a knife in his hand, which he put into his pocket. They went up to the counter and ordered the drinks from Wilson. Birdsong told Tinley to kill Wilson; that he would stick to him. Wilson said, "You haven\'t come to kill me, Mr. Birdsong? Birdsong said no, he had not, and ran into the barber shop. Tinley said, with an oath, that he had come to kill Wilson, and cut at him over the counter with a knife. Just as he did so, Wilson picked up a pistol and fired upon him. Tinley wheeled, dropped the knife, ran into the barber shop and fell. Eugene Wilson, who had come in to see his brother before Tinley and Birdsong arrived, discovered the knife, picked it up and gave it to the coroner\'s jury.

The prisoner's statement corresponded substantially with the evidence on his behalf, and gave greater details of what occurred. As to the actual shooting, after stating that Birdsong left the room, he proceeded: "Just as he did that, Mr. Tinley turned his overcoat over, open, and struck his knife over the counter at me that way (illustrating). I dropped back in this position (illustrating), reached my hand over my shoulder, grabbed a revolver that was there and fired. I cocked the revolver just after I grabbed it." Defendant stated that he then ran out of the back door, being still in fear for his life. He went to within five steps of the jail gate, and stayed there nearly five minutes for the purpose of surrendering himself, but, seeing the crowd gathering and being afraid that he would be killed, left the city.

There was other testimony as to character, and conflicting testimony tending to contradict and to corroborate witnesses, which it is not necessary to state here.

The jury found the defendant guilty, and recommended that he be imprisoned for life. He moved for a new trial on numerous grounds, all of which are sufficiently stated in the divisions of the decision where they are discussed, except the following:

(11.) Because the court charged as follows: "In other words, when the State proves the killing, the law presumes it felonious until the contrary appears from circumstances of alleviation, excuse or justification, and it is incumbent on the prisoner to make out such circumstances to thesatisfaction of the jury, unless they arise out of the evidence produced against him by the state." [See 9th division of decision.]

(12.) Because the court charged as follows: 'Did the defendant have the deliberate intention to kill James Tin ley at the time he fired the pistol? If he did, does the evidence show that he was justified, or in any degree excusable, in the act of killing? If it does show that he had the deliberate intention to kill, and that he was not justified, or in any manner excusable, then you would be authorized to find him guilty. If, upon the other hand, you believe, from the evidence, that he did not have the deliberate intention to kill at the time, or that he was in some way excusable, or that he was justifiable in the shooting, then you would not be authorized to find him guilty of murder. I charge you further, that if you believe, from the evidence, that the deceased, Tinley, went into the bar room kept by the defendant and asked for a drink, and made no effort to hurt or injure the defendant, but while in the act of drinking he was shot and killed by Wilson, then you would be authorized to find him guilty; or if you believe he went into the bar room, and while there angry word were had between the deceased and the prisoner, and the deceased made no effort or attempt to hurt or injure the person of Wilson, and he shot and killed Tinley for no provocation except the words, then you would be authorized to find him guilty. If, upon the contrary, you believe, from the evidence, that Tinley went into the bar room and commenced or renewed a previous quarrel and drew a deadly weapon and made an attempt to commit a violent injury upon the defendant with said weapon, and defendant, without any malice or mixture of deliberation, shot and killed deceased, he would not be guilty of murder. Or if you believe from the evidence that the circumstances were sufficient at the time to excite the fears of a reasonable man, and he acted on these fears and shot and killed Tinley, then you would not be authorized to find him guilty." [See 10th division of decision.]

(13.) Because the court charged as follows: "You will perceive that in order to reduce an offence from murder to manslaughter, it must be done without malice, either express or implied, and without any mixture of deliberation whatever. * * * If Wilson deliberately shot and killed Tinley with malice, it is murder." This charge was given by the court while charging on voluntary manslaughter. [See 11th division of decision.]

(14.) Because the court charged as follows: "You will perceive that justifiable homicide is the killing of a human being in self-defence or in defence of his person or property against one who manifestly intends or endeavors by violence or surprise to commit a felony on either; you will...