171 Ga. 848 | Ga. | 1931
Moses Darden, Marcellus Darden, and Steve Darden were indicted for the offense of murder. The indictment charged that they murdered Chesley Davis by shooting him with a shotgun. Marcellus Darden was put upon trial; and the jury, after hearing the evidence and the charge of the court, returned a verdict of guilty, with a recommendation to the mercy of the court; and he was accordingly sentenced to the penitentiary for life. He made a motion for new trial, which was overruled, and he excepted. The evidence is very voluminous, and we set out only enough' thereof to show that the jury were authorized to convict the dedefendant.
L. Y. Adcock, for the State, testified: “I live about four miles northwest of Kingston. On Tuesday morning, the 22d of April, or maybe it was the 23d, I was driving along the road leading from my house out to the Dixie highway; that road is the one that goes by D. Wilbanks’ house. When I came along that road the sun was something like an hour high. I discovered an automobile standing on that road. There was a man in it. He was dead. He was sitting up under the steering-wheel, with his right hand on the steering-wheel and his left hand hanging down to his side. In leaving Kingston you go out to the highway over the overhead bridge, and then you take the right-hand road. That is a side road. It goes beyond Barnsley’s. I think that car was standing nearly a mile from the Dixie highway. It was pointed
Ed Wilbanks, for the State, testified: “My name is .Ed Wilbanks. I am seventeen. I live at the same place now that I did when Chesley Davis was killed. I live about two miles and a half south of Kingston. To go to my house you go to Kingston and go right out the highway, go over the overhead bridge and on down the highway, and the first road to the right you take that road, and that leads right on out to my house. That road by my house leads right on to the Barnsley’s schoolhouse. On the afternoon
“When they came up,. I laid my shotgun on the bank of the road. I went up there where they was at, and Mr. Steve asked me if I had any liquor. Steve had not gotten out then. When they drove up, they pulled by us just a little ways. I told him I had some liquor. I asked him how much he wanted, and he said he wanted a quart, and if I didn’t have it he didn’t want nothing, and he didn’t have nothing to put it in, but I told him I would get him that; and Mr. Mose said that he didn’t want no scant; so I went back to the car, and we was talking, and Mr. Steve had done got out and come up there where we was, and Mr. Chesley Davis drawed his gun on Mr. Steve. Yes, and told him, says, ‘Stick ’em up.’ It was a pistol, and he said, ‘Stick ’em up.’ I told him, I says, ‘Now, we don’t want to have any trouble,’ and he taken his gun and stuck it back down under his belt. Then I got on the side of the car with Mr. Mose and Mr. Marcellus, and
'“While we were standing there the Dardens came up there in their Ford, coming from towards Kingston. His car had been killed, the motor; and the car had rolled back in the ditch from towards Kingston, that way [indicating]. They were running when I first saw them, and his car was back like it was going towards Kingston; his car rolled back toward the bank. They stopped on their right, which was Davis’s left of the road. When they stopped, from the front of Davis’s car to the front of their car it was almost even, a very little distance between them. After we traded T took the pistol and put it in my pocket and put the shotgun on the back. The pistol was loaded. You interrupted me where their car had rolled up and stopped. I got out and went up there, and Mr. Márcellus Darden told me I had better get away from there, and I told him that I couldn’t, and Mr. Davis cranked up and rolled up by the side of them, and Mr. Mose he got out of the car with his gun, and Mr. Marcellus told me I had ■better get him away, and Mr. Davis says, ‘What in the hell are you all doing here ?’ and I saw Mr. Mose was going to shoot, and I
33. F. Craddock, for the State, testified: “I live at Kingston. Moses Darden is my son-in-law, married my daughter. I remember the occasion, the day that Mr. Davis was said to have [been] killed that night. Moses Darden lived at that time in my house upstairs. He married my daughter. Moses on the afternoon of that day came down here to Cartersville. His wife came with him. They returned from Cartersville about seven o’clock. I don’t know where he went; he took the car with him immediately after he came home, sometime around seven o’clock or a little after seven o’clock, sometime about that. I never seen Moses any more until the next morning. I heard of Moses next, it was somewhere about nine or ten o’clock; he was at our door. He was at the door leading into our bedroom. I was awakened by a conversation. He and my wife were talking, I suppose he was talking to all of us. I woke up while they were talking. It was about ten o’clock. I didn’t get up. He had some trouble down the road with a man; he said a fellow drawed a gun on him, and
Mrs. M. L. Craddock, for the State, testified: “My daughter married Moses Darden. I live at Kingston. At the time that Chesley Davis was killed Moses Darden and his wife were living upstairs at my house. On the 'day that the killing occurred that night, they had been to Cartersville, he and his wife. When they returned from Cartersville it was, I imagine, seven o’clock. I didn’t look at the time, but I imagine it was that time. After they returned from Cartersville about seven o’clock he left the house and went somewheres. He said he was going to have his car fixed, and left the house in the car. That was sometime around seven o’clock; it might have been seven thirty by that time. He returned to the house that night. He came back there about ten o’clock, I didn’t see him at all; the room was dark was why I didn’t see him, but I heard him. I went to my room door. He talked with me a little bit. That was Moses I was talking to. He said that he had trouble with a man down the road, and that he was going back and kill him. Mr. Craddock was there. I talked with him, Frank didn’t; if he did, I don’t remember whether he was awake then, but he didn’t say anything then I don’t think. I asked him who it was, and he said he didn’t know, and I says don’t you know who it is ? because I was anxious of course, and he said he didn’t know, and I didn’t say any more— left the room then. I just can’t tell you whether he went upstairs or not, because I was so nervous I don’t know what took place about that time. He left the house then. I heard the car going away. It was sometime after he had gone that I got up and made a light and looked at my watch, and it was just about ten o’clock, maybe a little past. That was after he was gone; he left before I made a light. He came back about two o’clock. I talked with him. He said he had killed a man, and he was sorry. He said he had killed a man, and said a right smart why
All three of the accused named in the indictment were sworn and gave testimony. Marcellus Darden, testified as follows: “On the afternoon of this trouble everybody started out in the country to get a farm hand, and we got about a mile or two beyond. We got about two miles beyond Kingston, went out the highway, the Eome pike, and turned to the right and went on over there in the negro settlement. That is known as the Gordon settlement; there are many negro families of negroes over thére. That is sort of a negro community there. That is the community where D. Wilbanks lives. I say we were going out there to see about getting some farm help. We had gone over a hill, and just as we got there we met a car; it was parked on the side of the road; it had the road blocked, and the lights switched off, and as we came up the lights switched on, and we got up tolerably close, about ten or twelve feet, and I stopped and asked him to move his car, and he said, 'Damn it, I will move,’ but says, 'Don’t you move. I have got the drop on you,’ and he pulled his car up right even with us and stopped about even with us, and Moses he stepped out on the
This evidence was sufficient to authorize the conviction of Marcellus Darden of the offense of murder.
Ground 1 of the amendment to the motion for new trial assigns error because the court charged the jury, on the subject of voluntary manslaughter as follows: “I give you in charge, gentlemen, the definition of voluntary manslaughter. Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary upon a sudden heat of passion. In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury upon the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation and malice, either express or implied. I give you in charge, gentlemen, section 74 of the Penal Code of this State: ‘Parents and children may mutually protect each other and justify the defense of the person or reputation of each other.’ This section should be kept in mind in construing the definition of voluntary manslaughter,' and in construing the rest of the charge which I shall give you. In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or his brother, as would be the truth in this
The next two grounds are as follows: “3. Because the court failed to charge the jury as follows: ‘The mere presence
The fifth ground complains that the court erred in admitting testimony as to possession of home brew by the witness at the time specified. The objection to this evidence, as first stated, failed to show upon what ground the objection was based. Then followed a lengthy cross-examination, at the end of which counsel said to the court: “First of all, I want to exclude from the record any evidence about this witness having, at some time in July, had some home brew and a pint of liquor about his place of business. I don’t think it is material or relevant to the issue here; if they could show it was when he was with Mr. Marcellus Darden, of course it would be relevant.” To which the judge responded: •'“I believe I will let it in, Mr. Whitaker.” This was the ruling of the court, and to this ruling no specific exception is taken.
Ground 7 complains that the evidence was not sufficient to show a conspiracy and did not make out a case of conspiracy against this defendant. We are of the opinion that the evidence was sufficient to authorize the jury to find that a conspiracy existed between the three defendants to take the life of the deceased.
The court did not err in overruling the motion for new trial.
Judgment affirmed.