Wilson v. The State Of Ga.

• Decision Date: 31 March 1862
• Citation: 33 Ga. 207
• Parties: James R. Wilson, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

33 Ga. 207

James R. Wilson, plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

MARCH TERM, 1862

Murder. In Fulton Superior Court. Tried before Judge Bull, at October Term, 1861.

At the October Term, 1861, of Fulton Superior Court, an indictment was found against James R. Wilson, the plaintiff in error, and his father, John L. Wilson, for the murder of Thomas Terry, and at the same term they were jointly put upon their trial.

When the case was called the prisoners announced " not ready, " and made in writing, under oath, the following motion for a continuance:

In open Court appeared John L. Wilson and James R. Wilson, who being duly sworn, depose and say, " that neitherof them are ready for trial at this term of the Court on account of the recent finding of the bill of indictment, and the public excitement and prejudice existing against them on account of the supposed commission of the offense with which they are charged, and the publications made in the Southern Confederacy at and after the time of the commission of the supposed said offence.

And they further swear, that they are not ready on account of the absence of Solomon Kent, Alston Ward, and Henry Stephens, for whom subpoenas have been issued, and who are absent from the Court without the leave or procurement of deponents, and that subpoenas were placed in the hands of J. C. Rosberry, a constable for said county, and he reports that he could not find them, and that he heard that Solomon Kent had gone to Virginia to the war, and that they were in this county when their subpoenas were issued, and that they expect to made diligent efforts to have them in attendance at the next term of this Court, and have made all exertions in their power to have them at this term of the Court. By Solomon Kent deponents expect to prove, that said Kent saw the deceased, Thomas Terry, strike the first blow on the head of John L. Wilson with the stirrup iron of a saddle, with the stirrup leather wrapped around his wrist, and commenced the fight without any provocation on the part of deponents. Also, that they have been informed by W. A. Wilson, the son and brother of deponents, who is now absent, that Alston Ward would be a good witness, and to have him subpœnaed, as he would be a good witness from what he had said to him.

Deponents further swear, that this application is not made for delay only, but to get a fair trial, and subserve the ends of justice, and that they cannot safely go to trial without said witnesses being present."

The motion to continue was overruled, and prisoners excepted. Judge Bull remarks as follows in regard to this motion: " This affidavit was made out and sworn to after the Court had decided upon another and previous one, in which not a single legal ground of continuance was contained, and the only legal grounds contained in this were such as were suggested by the Solicitor General in arguing, or the Court in deciding upon the first showing.

The continuance being refused, the counsel for the prisoners, Messrs. Gaskill and Manning then and there, in open Court, abandoned the case, whereupon the Court appointed Amos. W. Hammond and Moses C. Blanchard, Esqrs, to represent the accused, they being unable to employ counsel.

evidence foe the state.

W. A. Kennedy sworn, says: I saw Thomas Terry at my house, in Fulton county, on 3d of August, 1861; Terry was going by up town; on his coming back, about five o'clock, witness was in his shop, Terry had passed by, Mr. Cowen was in shop with witness, and hailed Terry, Terry bid him good evening; witness also spoke to Terry, and asked him to light, Terry said he did not have time, witness remarked that he had received a letter from his son in Virginia; when witness told him this he readily got down, just as he got down, the Wilsons coming out of town, passed witness' window; Terry came to window and stood in it, the prisoners went on to the corner, where they overtook Mr. McDuffie, then went round and came back; Mr. Terry was already standing there, witness was reading the letter; they all stood quietly until witness had finished reading the letter, when Terry rather stepped back; Mr. Cowen said something to him about a saddle trade, and he and Terry went to about centre of the street; shortly after Terry turned around and came back to his mule, and about that time John Wilson spoke to him, and said he wanted to see him a minute; Terry turned off from his mule, and walked to where John Wilson was standing, and said to Wilson he could see him; Wilson let out with an oath, and about the same time struck Terry in the face with his fist, and Terry struck at Wilson with an old fashioned stirrup, the leather had no buckle, looked as if it had been hanging to the horn of the saddle; the lick did not seem to strike Wilson, but saw afterwards that it had; about that time James Wilson was close by, and had abottle, heard a crash, and saw pieces of bottle falling, James Wilson had the bottle; Terry fell, and John Wilson followed him up, and commenced beating him in the face; witness hallooed to a gentleman to part them, and no one doing so, witness threw down his work, and went out and parted them; John Wilson struggled hard to get loose, and swore he wanted to kill Terry, witness scuffled a good while to get him away, got him off, and witness turned to his son, who had knocked Terry down with the bottle, and told him he had better take John Wilson off from there; witness turned back to Terry; James Wilson was pulling his father down the street towards home; witness took Terry, who had gotten up, by the hand, and led him to witness house; Terry seemed to be badly hurt, and bled freely, he tried to talk, but could not; at the suggestion of Mr. Cowen a doctor was sent for, who came about a quarter of an hour after; Terry complained of being sick, and wanted to lie down; Dr. Gilbert told him to sit mute, and examined his head; witness then took him into the house, and laid him down; he seemed to get worse until he died the next morning at a quarter past two o\'clock; Drs. Gilbert, Beach and Brown came to see him; witness was asked a few days before, by James and Alston Wilson, if he had seen Terry go up town, they said a difficulty was between them, and they intended to whip him, Terry, if they could find him in town; they left the window and went up town; they said there had been a difficulty between Terry and Walton Wilson\'s wife, and that it was on account of abusing Walton Wilson\'s child, said Terry had whipped the child, and had threatened them and Mrs. Wilson, and that they intended to have satisfaction from him; after they returned, they said they had not seen Terry; Alston Wilson went up to his father-in-law\'s, and after he left James Wilson commenced talking about the difficulty between Terry and himself; he said they had had a difficulty some time before that, and that he had gone to Terry\'s house, and Terry came out, and brought a wagon spoke with him, " said he had a pistol, and thought it was concealed, but found it was not, " he found he was not in a position to carry on a difficulty, andwent off; he did not renew it then, but said he was determined to have satisfaction of Terry, that if he could not get to whip him he would waylay him, and if he could not execute it that way, he would go to Terry\'s house and call him out, that he would have something, and pop would go something, and that would be satisfaction; said he was not as good a man as Terry, and when he met him he intended to keep cool; the bottle used was a large champagne bottle, the lower part quite thick, and it was heavy.

Cross-Examined—James Wilson never told witness that he intended to shoot Terry; did not see anything in the bottle used, did not see it until it was in pieces; did not see it strike Terry's head; heard the crash, which sounded like striking a hog—sounded dead; did not see prisoner have the bottle, did not see the lick struck with the bottle; Terry struck old man Wilson with the stirrup; he had the stirrup leather wrapped around his hand and over his wrist. When old man Wilson said, Mr. Terry I want to see you, Terry replied, you can see me now. when witness pulled old man Wilson off he smelt whisky.

Jerome Beers testifies: that after the reading of the letter Terry started to his mule, when John Wilson said he had a word with him, and wanted him to stop out in the road; Terry replied he did not want to have any fuss with him, and should not do it; Terry went to his mule, took his stirrup off, and then went into the road. John Wilson struck Terry first, I think, when Terry struck John Wilson, and then James Wilson struck Terry with a bottle and knocked him down; the bottle was a long champagne bottle, thick at the bottom. When Terry fell, the old man jumped upon and struck him several times with his fist; James Wilson and Kennedy took the old man off; James Wilson took hold of John Wilson before Kennedy came up.

Cross-Examined.—James Wilson had the bottle all the time; Terry took the stirrup off very quick, and approached the Wilsons a little faster than common.

McDuffie and Cowen were also sworn, but there is nothing in their testimony necessary to be inserted here. It was alsoproven by the physicians that Terry\'s death was caused by the wound on his head.

The prisoners introduced no evidence, and the Court having charged the jury, they returned a verdict of "guilty, " as to James R. Wilson, and of " involuntary manslaughter in the commission of...