87 Ga. 579 | Ga. | 1891
Judgment affirmed.
Berry was convicted of rape, and ivas-sentenced to death. He excepted to the denial of a new trial, the grounds of his motion being as follows : (1) Error in admitting the'following testimony of Glass : “Arrested persons (?) on a description given me by Miss Bunn ; Miss Bunn gave me the description”; the effect of which testimon}^ was to put before the jury the declarations made by Miss Bunn the next day after the alleged rape was committed. (2) Verdict contrary to evidence and law, in that the evidence does not sufficiently identify the defendant as the person who committed the crime. (3) Error in failing to charge the jury on the law of an attempt to commit a rape. (4) 'Newly discovered evidence.
Ann Bunn testified that the crime was committed in the county and in the month charged in the indict
Cross-examined: “I am not married. I live at Tunis station on the East Teunessee road. I live about 50 yards from the railroad. It is about 50 yards to the public road. I work for Mr. Moore for a living, and live about 50 yards from him. I went to Mr. Moore and told him what had happened that night after the defendant left. There are some negroes living on Mr. Moore’s place. I think the time the thing occurred was at night between ten and twelve o’clock. . . My attention was first by the door opening. I got up,, struck a match, and he broke open the other door; when he tried to open the front door a button fell, and I got up and struck a match and light a splinter. I was excited. Just as I lit the splinter he grabbed me;
Moore testified that about ten o’clock that night, or between nine and ten, Ann Dunn came to his house, scared nearly to death, and said a negro had committed rape on her; that her throat was bruised like she had been choked; that the defendant, when he left her house, went across the railroad track in direction of Jonesboro, and he did not go in direction of McDonough where he was arrested ; that it is five miles from Tunis to McDonough, and two miles from Tunis to Rock Quarry; and that there were a number of hands employed there at the time of the crime.
Glass, the sheriff, testified: “I arrested John Berry next morning after the night the rape was committed; arrested him here in the depot at McDonough. Several loungers sitting around. I arrested him on the description given me by Miss Dunn. He did not have on a cap when I arrested him ; he hayl on a hat; he had a cap in his bundle when I carried him to Tunis. I searched his bundle ; he had an old valise, and the cap fell out a pair of pants legs that were in the valise. I put the cap on his head. Miss Dunn said he was the right negro. When I arrested him he said he had been
Prisoner’s statement: “My home is down at Juliette, about 4 miles from Juliette. I had been at work up at the Rock Quarry, and went up there to get my money from Mr. Hall. I could not see the boss-man,, and I went back the next day; then he said would not pay off till the end of the quarter ; said be next Wednesday or Thursday the pay-train would come along. The cap I had I got from one of the hands; I worked for it; all the hands wore caps. This woman In ever saw her before. I did not know nobody up here. I passed Tunis that evening about sundown, and went l’ight- on down the railroad track to near the water-tank, and laid down and went to sleep above the depot. We hands all rides on the local, and I was waiting there to take it home. I never saw this woman before. I have got a family in Monroe. I am a farmer and live in Dillard’s district — think that’s what they call it. Mr. John Ohamblin and George Taylor live there.”
The newly discovered evidence was by the justice of the peace who presided on the preliminary trial of the defendant. He made affidavit that when he, as a court, was examining Ann Dunn as a witness, he put this, question to her: “When John Berry had you down,.