Wortham v. State

• Decision Date: 14 September 1937
• Docket Number: 11877.
• Parties: WORTHAM v. STATE.
• Court: Georgia Supreme Court

192 S.E. 720

184 Ga. 674

WORTHAM v. STATE.

No. 11877.

Supreme Court of Georgia

September 14, 1937

Error from Superior Court, Polk County; J. R. Hutcheson, Judge.

Robert Wortham was convicted of murder, and he brings error.

Reversed.

Statement of facts by Jenkins, Justice:

Robert Wortham was indicted jointly with Gilbert Evans and Mose Evans for the murder of Otto Wright by a shot from a gun. Upon a severance of the defendants, Wortham alone was tried and convicted, with a recommendation to mercy. He excepted to the refusal of a new trial on the general and on special grounds. Under the undisputed evidence, the actual shot was not fired by Wortham, but there was evidence indicating that it was fired by Gilbert Evans, who was shown to have held the gun just previously. The deceased was present merely as a bystander, coming from a near-by church for a drink of water, did nothing to justify or provoke any assault, and there was no testimony which would have authorized a verdict of either voluntary or involuntary manslaughter. The State contends that, even though Wortham did not fire the fatal shot, the intent of the person firing would be imputed to him and he was guilty of the murder because the homicide took place in the execution of a conspiracy between Wortham and the two Evans brothers to engage in the unlawful enterprise of 'cleaning out' or damaging the drink stand of Jack Johnson, where the killing occurred. According to the uncontroverted testimony the three defendants jointly indicated rode out together in an old automobile at about 5 o'clock on a Sunday afternoon. In his statement to the jury Wortham said that he had been staying at the tenant place of Gilbert Evans; that the wife of Mose Evans drew on her husband a shotgun belonging to Gilbert Evans; that, after Wortham took it away from her, and put it under a mattress in the house of Gilbert Evans, Evans took it and put it in the automobile which belonged to Gilbert Evans. As to the events following, the testimony shows that the three defendants, driving together in the car, stopped, about 5 o'clock in the afternoon, at the home of an insurance agent, where Gilbert Evans paid a premium and Wortham took out a small policy. The three then stopped at the place of business of Denman, about 150 yards from the drink stand of Jack Johnson. Denman saw 'something in the back seat * * * covered up with a canvas,' but could not tell what it was. Wortham was introduced to Denman by a different name. Gilbert and Mose Evans tried to buy whisky from Denman, and, upon his refusal, produced a bottle from which they tried to make him drink. About 30 minutes later, Denman heard the fatal shot. Preceding the firing, and (according to the testimony of one witness) at some time between sunset at 7:06 p. m. and 'dusky dark,' or (according to the testimony of another) at around 7:30 or later, the three defendants went to the house of Mrs. Mattie Hicks and Mrs. Lillian Hicks, where Gilbert Evans tried to engage a room for Mose Evans, who Gilbert Evans said was in trouble at Rome and needed a boarding place. Wortham and Mose Evans got out of the car, and were scuffling. 'They couldn't walk, kind of staggered.'

Over the objection of the defendant, Wortham, Mrs. Lillian Hicks was permitted to testify as to a statement made at her home on this occasion by Gilbert Evans to her, but outside of the immediate presence of Wortham. This was that Gilbert Evans 'couldn't see [Jack Johnson], that he had it in for him, that they give him a dirty deal, and Jack didn't like him * * * that they had a fight over there, and some of them got bloody and wanted to go in and wash, and he wouldn't let them go in; he put somebody out of the back window and called the law, and the law tried to arrest them; he said he came over there, but didn't arrest them, and he said they wouldn't arrest them. * * * He said he would get even with him, Jack Johnson.' As to the actual occurrence of the trouble, one of the State's witnesses, who was present on the occasion referred to by Mrs. Hicks and in the alleged statement, testified Johnson then assisted Evans, and 'there had not been any trouble between Jack Johnson and Gilbert Evans and Mose Evans.'

The uncontradicted testimony shows that, after driving from the Hicks home, the three defendants stopped their car near the drink stand of Jack Johnson. Wortham, who was under the influence of liquor, told those in charge that his name was Bob Hammond (although he denied this in his statement to the jury), ordered and drank a can of ale, and asked particularly as to just what time of night Johnson would be back. He requested that the ale be charged to Johnson, and, upon refusal, paid for it. Mose Evans then came in with a knife in his hand, cursing, and, upon being requested by those in charge not to create a disturbance, threatened to 'shoot the place up.' Wortham then 'got him by the arm and told him to 'Let's go,' and got just on the outside of the door, and Gilbert met them and took him on the other side of the hand, and led him across the cement culvert' toward the parked cars in which the defendants came. One witness testified that, when the defendants left 'Some one hollered, 'Come on, I wouldn't buy nothing from that pimping son of a bitch, Jack Johnson.' That statement came from three men.' They returned to the automobile where an argument ensued as to who should drive. According to the testimony for the State, one said, 'If you don't let me drive, I am going back out there and clean out that place.' According to the defendant's statement, Mose Evans, in the argument with his brother Gilbert, only said, 'If you think I am too drunk to drive, I will go back to Jack's and drink him out,' and Gilbert and, 'That suits me.' The three then went back. There was testimony that the motor was left running; that the witness talked with two men whose appearance tallied with that of the Evans men; and that one carried a shotgun. The witness 'asked them if they were expecting trouble, and they said, 'No,' and I says, 'I allowed you was by being out here with a shotgun on Sunday night;' and the best I remember, they said they had borrowed it and was carrying it back.' Other witness identified Gilbert Evans as the one who had the gun. When the employees of the Johnson place saw the defendants coming back, they cut out the lights and closed up the place. It was shown that an electric clock there stopped at 8:14 p. m. As to any other weapon beside the gun, the State's testimony showed that on the first visit to the drink stand Mose Evans had a knife; but one witness testified that on the second visit 'Wortham had the knife.' There was no evidence that he used or attempted to use it. Wortham requested the deceased, Otto Wright, to 'open up the stand; he wanted some beer.' Wright said that he could not, did not work there, had no key, and for them to search him if they thought he had. Employees told the defendants that Wright had nothing to do with the place. On defendant, unidentified, took him by the belt. Mose Evans was left with Wright; and after further talk between the defendants and employees, Wortham grabbed one of them, Bob Smith, cursed him, and said, 'Get up and get out from here.' Later Wortham said, 'Let's mob him.' Smith struck Wortham with a chair, Mose Evans picked it up and threw it at Smith, who ducked and drew back to hit again, but was then knocked unconscious, with a cracked jawbone and an ear split open. Another employee came out of the stand, and one of the defendants hit him with 'something that felt like a chair,' and he fell. As he started to get up, Wortham cursed him, grabbed him by the arm, and twisted it. Gilbert Evans came up from behind the gas tank between it and the main road, and, while Wortham had hold of the employee, struck the employee 'across the shoulder and mouth with the gun.' Wright, the deceased, was then on the left side of the door. The employee...