Woolfolk v. State

• Decision Date: 11 February 1889
• Citation: 8 S.E. 724,81 Ga. 551
• Parties: WOOLFOLK v. STATE.
• Court: Georgia Supreme Court

8 S.E. 724

81 Ga. 551

WOOLFOLK v. STATE.

Supreme Court of Georgia

February 11, 1889

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.

SIMMONS J.

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 F. 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: "(7) The court erred in permitting a witness to testify that, when the hat was drawn from the well, it was claimed to belong to a son of Silas Woolfolk; the objection being that the testimony was hearsay and illegal, and that the witness did not state who it was who claimed that the hat was the boy's. (8) The court erred in refusing, on the next day after it was given, to rule out the testimony of Davis, that after the killing some one stopped him, and said: 'Tell everybody that the Woolfolk family are all killed but one;' and Davis said immediately: 'That one that got away was Tom Woolfolk, and he is the one who killed all the rest.' The motion to rule out was on the ground that this testimony was illegal, as what Davis said to another was not proper testimony, it being only his conclusion." "(12) The court erred in permitting Howard to testify, in answer to the question what Mrs. Woolfolk said to him when she was leaving,--going home, (and afterwards in refusing to rule out the testimony,)--as follows: 'She said her visit was to see me, and to know what to do. Her life was in danger from Tom Woolfolk; the way he treated her, she expected to be killed.' The objection was that the testimony was hearsay; and that even dying declarations could not be given in evidence, unless it was first proved that the person was in articulo mortis, and was conscious of death at the time of making them."

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 properly admitted as a part of the res gestæ. 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 gestæ, 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 justify the court in receiving the testimony of Mr. Howard, the father of Mrs. Woolfolk, as complained of in this ground of the motion for a new trial. If the testimony of Mrs. Edwards was inadmissible, the court should have so ruled; and the state's counsel should not have withdrawn his objection on the supposition that he would in consequence be allowed to put in illegal testimony. We know of no law allowing offsets of this kind. The admission of illegal testimony on one side will not justify illegal rebutting testimony on the other. "Two wrongs do not make a right." Even if the doctrine of set-off could be applied to a case of this kind, the state in this case obtained a terrible advantage. The testimony of Mrs. Edwards was that Mrs. Woolfolk said, in speaking of the defendant's marriage: "Whatever else may be said about him, he has a good heart." The reply to this, as put in by the state, came with crushing and overwhelming force: "She [Mrs. Woolfolk] said her visit was to see me, and to know what to do. That her life was in danger from Tom Woolfolk; the way he treated her, she expected to be killed." It is useless to discuss this further. The mere statement of it is sufficient to show its inadmissibility. On this subject, see Lyon v. State, 22 Ga. 399. For the errors complained of in these three grounds, we are constrained to grant the defendant a new trial.

4. We grant a new trial in this case with less reluctance because of the facts alleged in the nineteenth and twentieth grounds of the motion for a new trial. They are, in substance, that at the conclusion of the opening argument for the state the crowd in the court-room applauded. The judge took no notice of this applause, except to rap with his gavel. And, when counsel for the state was making the concluding argument "from the crowd in the rear of the court-room came, in an excited and angry tone, the cry, 'Hang him!' 'Hang him!' 'Hang him!' and some of the crowd arose to their feet." The court rapped...