Woolfolk v. State
| Decision Date | 11 February 1889 |
| Citation | 81 Va. 551,8 S.E. 724 |
| Parties | Woolfolk v. State. |
| Court | Georgia Supreme Court |
On a murder trial, it being shown that some 10 days after the murder a bloody hat was found in a well, defendant's theory being that it belonged to one of some negroes, to whom he imputed the crime, and the state not contending that it belonged to defendant, it was error to allow testimony that when the hat was drawn up it was claimed to belong to a certain boy.
Testimony in reference to the coroner's requiring defendant, during the inquest, to remove his clothing, and the statements of defendant during the investigation, are admissible.
Testimony by a witness that when he first heard of the murder he had said that defendant committed it is inadmissible.
Evidence that one murdered at the same time with the one for whose murder defendant was being tried, stated, five days before the murder, that her life was in danger from defendant, is inadmissible, and is not justified by the fact that it was introduced to rebut testimony that she had stated that defendant had a good heart; the latter testimony being also inadmissible.
Evidence that a third person, who is shown to have worked for deceased a short time before the homicide, threatened to kill him and others murdered at the same time, is not admissible; there being no evidence of any quarrel, or any other facts connecting such person with the murder.
When, on a murder trial, the argument of counsel for the state is applauded, and cries of "Hang him" proceed from the listeners, it is the duty of the judge to ascertain the guilty persons, and punish them to the extent of the law.
It is within the discretion of the court, on a murder trial, to send the jury out during preliminary examination of a witness.
Where the record shows that testimony covering nearly 300 pages was taken after a motion to rule out testimony was made, the motion will be considered to have been made before the jury retired.
Error from superior court, Bibb county; Gustin, Judge.
Thomas G. Woolfolk was convicted of murder, and brings error.
F. R. Walker and Bacon & Rutherford, for plaintiff in error. Hardeman & Nottingham, Guerry & Hall, W. H. Felton, Sol. Gen., and C. Anderson, Atty. Gen., contra.
It appears from the record in this case that on the night of the 6th of August, 1887, Richard F. Woolfolk, his wife, and six children, and Mrs. West, were murdered. The defendant, Thomas G. Woolfolk, was indicted for the murder of his father, Richard P. Woolfolk, and was tried and convicted. He moved for a new trial on numerous grounds. His motion for a new trial was overruled by the court, and he excepted. As the case is to be remanded for a new trial, it is unnecessary for us to consider many of the grounds set out in the motion, such as the overruling of the motion for a continuance, newly-discovered evidence, the disqualification of the juror Lumpkin, etc. We will confine ourselves in this opinion to the questions likely to arise when the case is again tried.
The seventh, eighth, and twelfth grounds will be considered together. They are as follows: " ' "
1. The theory of the state was that the defendant did the killing; the theory of the defendant was that it was done by other parties, —certain negroes who were or had been employed on the plantation. The testimony showed that on the day after the killing the well on the place was dragged, and a shirt and pair of drawers were found in the well. The shirt and drawers had blood on them. The state sought to show that they belonged to the defendant. Some 10 days thereafter the well was cleaned out, and, while the cleaning was in progress, a wool hat was drawn up, which, when examined with a microscope, was found to have blood on it. When this fact was being testified to by a witness, he was allowed by the court, over the objection of the defendant, to say that when the hat was drawn up it was claimed to belong to a son of Silas Woolfolk, a small boy some 10 years of age. The state did not claim that the hat belonged to the defendant, and the theory of the defendant was that it belonged to one of the negroes upon whom he sought to fix the crime. In view of this, we think it was error in the court to allow this witness to testify that, when the hat was drawn up from the well, it was claimed to belong to this boy. This, if true, would entirely destroy the theory of the defendant as to the ownership of the hat; and, if the hat in fact belonged to the boy, it should have been proven by proper testimony, and not by hearsay. It was urged by the able counsel for the state that this declaration was properlyadmitted as a part of the res gestae. We cannot agree with him in this view. We cannot see that the cleaning out of the well 10 days after the homicide, and the declarations made when the hat was drawn therefrom, had any connection whatever with the homicide. If this declaration by an unknown party was admissible as a part of the res gestae, we do not see why anything else that was said on that occasion about the homicide, or about the guilt or innocence of the defendant, would not have been likewise admissible. It would have been equally admissible to give in evidence declarations of any of the parties cleaning the well that the hat was claimed to be the defendant's.
2. While the witness Davis was being cross-examined in regard to certain threats of the defendant to which he had testified in his direct examination, he volunteered the statement complained of in the eighth ground of the motion, viz., that when he was informed of the killing of the Woolfolk family, and the escape of one only, he said that that one was Tom Woolfolk, and he killed all the rest. We think the court should have ruled this statement out, upon the motion of the defendant. It was clearly inadmissible. It amounted to nothing more than the opinion of the witness as to the defendant's guilt. It was just as inadmissible as it would have been if he had been asked his opinion as to whether the defendant was guilty or not. The counsel who argued this case for the state admitted before us in his argument that it was inadmissible, but urged that a new trial should not be granted on this ground, because the record did not show that the motion to rule out this testimony was made before the jury retired to their room for consultation. The motion for a new trial states that the motion to rule out was made the next day after the admission of the testimony. While it is true that it does not allege in words that the motion was made before the jury retired, we think the record shows that it was made before that time. Testimony covering over 300 pages of the record was taken after this motion to rule out was made. We therefore conclude that it was made in time.
3. The next and most serious error complained of is set out in the twelfth ground of the motion. It appears that Mrs. Woolfolk visited her father on Sunday, before she was killed the following Friday night. The court allowed her father to testify to her statements and declarations made to him on that Sunday. This was objected to by the defendant, and the objection was overruled. We think the objection should have been sustained. The declarations and statements which she made to her father on that occasion were clearly inadmissible. If admissible, they constituted one of the strongest circumstances against the defendant developed on the trial, and doubtless had a terrible effect on the minds of the jury. It was urged, in support of this ruling of the trial judge, that when the defendant proved by Mrs. Edwards a statement of Mrs. Woolfolk to the effect that the defendant had a good heart, the state objected, and the court then notified counsel for the defendant that, if he admitted this testimony of Mrs. Edwards, he would admit rebutting testimony upon the same line. But the judge says, in his note to this ground, that counsel for the defendant refused to make any agreement of this sort, but insisted upon his legal right either to have the court rule in Mrs. Edwards' testimony, or rule it out; and that the state's counsel withdrew his objection to the testimony of Mrs. Edwards, and it was allowed to remain in. We do not think that this state of facts would...
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