174 Ga. 719 | Ga. | 1932
James S. Staton was indicted and tried for the murder of Thomas J. Martin. He was found guilty, with a recommendation to mercy, and was sentenced to life imprisonment in the penitentiary. He filed a motion for new trial, which was amended by the addition of two special grounds. The motion was over
The evidence was sufficient to authorize the verdict. It tended to show that Staton was a United States soldier stationed at Fort McPherson in Fulton County, and that on May 20, 1931, between 11:00 and 12:00 o’clock p. m., he shot and killed another soldier named Thomas J. Martin, at or near the corner of Lee and Mickleberry Streets, near Ft. McPherson. The evidence showed that Martin was walking along the street with a young woman named Georgia Phillips, with whom he had attended a dance at the service club at Ft.. McPherson. Miss Phillips testified that she and Martin “watched them dance” for a while, and then together walked down Lee Street; that Staton, walked by them in company with a companion two or three times, and then came up to where they were and pointed a pistol at Private Martin. Martin replied, “You are not going to shoot me, are you?” “Mr. Martin and I were between the second and third car-stop down from Ft. McPherson gate when one of them shot him. At the time of the shooting Mr. Staton said to Mr. Martin: ‘Hands up.’ I didn’t know his name at that time. When this man says ‘hands up,’ Mr. Martin says: ‘You are not going to shoot me are ycm?’ And he says ‘hands up’ again, and shot him. This other soldier that was with Staton when Staton shot him was standing right by his side; this other soldier didn’t say'anything. The one who shot him was the one that had the broken arm and bandage on. The one that did the shooting that night is sitting right over there at that table. It is Mr. Staton. After he shot Martin, Staton turned to me and says, ‘Now, you put ycmr hands up,’ and I ran, and he shot at me but didn’t hit me. This man shot at Mr. Martin two times, and shot at me once. When I broke and ran away and he shot at me, both of them ran away from there towards East Point. When those two men ran away from there, I went out there in the street and stopped an automobile. Those people in the automobile didn’t get out and go over to where Mr. Martin was lying on the sidewalk ; they came up there and waited a few minutes and then came back up there and parked the car right in front of where they was, and they were out there looking at him, and Mr. West came up
Q. “Did you tell this man West or Short or Collins what happened there?” A. “Yes, sir.”
E. W. Johnson, for the State, testified: “In May of this year I was soldiering out at Ft. McPherson, in the service company. The service company takes care of the transportation, preparation of meals, things like that. I know James F. Staton. I have known him probably twelve years. I knew him since he has been in.the service and at Eome, Georgia. I am 26 years old. I don’t know exactly how old Staton is. I have been in the service eight years and two months. I knew him before I entered the service at Eome, Georgia. I lived neighbor to him up near Eome before I joined the army. I knew his mother and his kinfolks. Staton and I were friends and neighbors before I came to the army, and we have been friends since that time. I saw Staton that night that Private Martin was killed between 11 o’clock and midnight; he came in my room after 11 o’clock, and evidently had been drinking. I got close enough to him to talk to him. I could smell his breath and smelled whisky on him; he came in my room that night and told me that he had killed a man, and I stood there and talked to him a little bit, and he started out. He had a gun with him, and I was intending to get it, and he objected and went on out. I merely asked him to let me have the gun, I didn’t try to take it; he just objected. He said: ‘No.’ He stayed in my room there a very short time. Lightfoot was there in the room with me; we just room together. I could not tell anything about the size and caliber of the pistol. Staton did not tell me where he had killed a man or who the man was. At that time I did not know that Private Martin had been shot, I found out next morning that Private Martin had been killed out there on Lee Street near the Fort. I have told the meaning of everything he said, whether it is in the exact words or not I don’t know; there is no reason why I should want to state his exact words to the court and jury.”
F. F. Lightfoot, for the State, testified: “About the 20th of
Private E. Ii. Chastain, for the State, testified: ''I was connected with Ft. McPherson in May of this year, in the capacity of kitchen police. I know where the quarters of Johnson and Light-foot were located about May 20th or May 21st. I remember when Private Martin was killed. I did not go anywhere near- the quarters of Johnson and Lightfoot at that time. I was on kitchen police on Thursday after the killing, and that is as close as I went to the quarters where they stayed. Private Martin was killed on Wednesday night. I discovered some shells about ten steps from the quarters of Johnson.and Liglitfoot. I found the shells about three steps from the kitchen door, right in front, between the door of the kitchen and their door where they slept; they were on the ground; those quarters where Johnson and Lightfoot were sleep
The foregoing and other evidence offered by the State was sufficient to authorize the jury to find the defendant guilty.
There are only two, special grounds in the motion for new trial, numbered 4 and 5. Ground 4 is as follows: “Because, since the trial of the ease on September 22, 23, and 24, 1931, and the rendition of the verdict, certain material evidence; not merely cumulative and not solely impeaching in its character, but relating to new and material facts, has been discovered by movant, and said newly discovered evidence is set out in an affidavit of "Worth Andrews, hereto attached and made a part of this ground, marked Exhibit A. Movant shows that said exhibit shows that said Worth Andrews was an eye-witness to the shooting of Thomas J. Martin on the night of May 20, 1931, the man whom defendant is charged with having shot, and that said Worth Andrews saw that said Thomas J. Martin was shot by a man whose left hand was bandaged, and that said Worth Andrews has looked at and inspected this defendant, and knows that the person who shot Thos. J. Martin was not this defendant. Movant avers: (a) That the probable effect of the said newly discovered evidence, if another trial is had, would be to produce a different result, favorable to movant, (b) That the newly discovered evidence is material to the issues involved in
The general rule is that newly discovered evidence, in order to be sufficient to require a new trial, should be of such character as would likely produce a different result on another trial. Adams v. State, 172 Ga. 260 (2) (157 S. E. 625); and see Webb v. State,
The State made a counter-showing, and introduced the affidavit of E. W. Ginn, who swears that he is a detective on the Atlanta police department, with which he has been connected for ten years; that he was attached to and was a part of the homicide squad of the Atlanta police department during the months of May and June, 1931; that he and L. W. Evans were the detectives who prepared the case of the State v. James F. Staton, charged with killing Thomas J. Martin on the night of May 30, 1931, at Ft. McPherson, Georgia, and he examined a large number of witnesses in the prep
In view of the conflicting evidence presented by these affidavits, the judge became the trior of the issue as to whether the ground based upon alleged newly discovered evidence was sufficient and should cause a new trial. This court has held that where the alleged facts in favor of this ground are contradicted by counter-affidavits, a new trial will not be ordered unless the discretion of the judge is manifestly abused. A grant of new trial on the ground of newly discovered evidence is not favored by the courts. Rushing v. State, 167 Ga. 280 (2) (145 S. E. 453); Hall v. State, 141 Ga. 7 (3) (80 S. E. 307). The discretion of the judge was not abused in the instant case.
Ground 5 of the motion for new trial alleges that the trial judge erred in failing to charge the law upon the subject of alibi. No request so to charge was made.' It is insisted that the failure to submit this issue to the jury and to instruct the jury on the issue of alibi was harmful and prejudicial, and had the effect of denying to defendant his sole'defense to the charge against him; that this issue was raised by testimony of witnesses as well as the statement of the defendant. Movant cites certain evidence which he contends tended to establish an alibi, and contends that the judge should have charged upon that subject. The evidence referred to is the testimony of Sherwood Lindsey and Bert Ashworth. Lindsey testified: “I recollect the night in May of this,year that Private
This evidence did not reasonably exclude the possibility of the defendant’s presence at the scene of the crime, and therefore it was insufficient to establish an alibi, and to require a charge upon that subject. The evidence of Sherwood Lindsey does not exclude the possibility of Staton’s presence at the scene of the killing. The shooting must have taken place before Lindsey arrived at the barracks and made the statement to Staton. It does not appear how
The judge did not err in overruling the motion for new trial.
Judgment affirmed.