
    Carter Heard, (a person of color) plaintiff in error, vs. The State or Georgia, defendant in error.
    The verdict in this case was not contrary to evidence. The killing was murder, not manslaughter.
    Murder. In Pulton Superior Court. Tried before Judge Warner. July Special Term, 1866.
    After a verdict against him for murder, the plaintiff in error, by his counsel, moved the Court for a new trial, on the ground that the jury found contrary to evidence and to the weight of the evidence.
    The Court refused a new trial, and that is alleged as error.
    Gartrell & Hill, and Hopkins, for plaintiff in error.
    Hulsey, Solicitor General, for the State.
   Lumpkin, C. J.

The following is the evidence given-in on the trial :

Wm. lecroy, sworn — Witness lives near Peachtree street, on an alley 6 or 8 feet wide, fronting Judge W. P. Hammond’s back yard. Witness’ door fronts on the alley. Sitting in witness’ door, witness can see in Hammond’s yard— can see it better standing. Hammond’s house is two stories. Parties come from second story to yard by stairs in back of house. House has one door and one window down stairs, and up-stairs witness thinks it has two windows. Thekitchen is some 5 to 10 steps from back part of the house. W. P. Hammond lives in the house. Did not know Joseph Bird Hammond, has seen him. Witness heard some fuss about 8 o’clock last Saturday night soon after laying down. Witness went to bed early. The first witness heard was something like a lady crying. There was a window near the head of witness’ bed. The noise seemed to be between the kitchen and well. Well is between kitchen and house. Saw deceased going toward the door of the dwelling house. Young Hammond went into the house — remained on the first floor. Witness supposes that it was 20 minutes before the fatal difficulty. The negro staid in the yard talking to Hammond until deceased came out in direction of negro boy, and he (negro) ran out the back way. Hegro came through the alley — came back in a short time to the house where his mother had been cooking for Mr. Hammond — asked his mother for his knife, saying, mammy, give me my knife ; I want my knife. He did not get the knife at that window then. The negro left the window in the alley. Hegro was not in the yard. Prisoner went out of the alley around the fence which went around the house. After his mother made him some answer, went to the left behind the chimney of the cook house. Witness is not positive. Prisoner’s mother came out and went up the alley by where prisoner stood asking for his knife. In a short time his mother came back in the same way. In a short time the boy came back with a knife in his hand. Witness was very near prisoner; prisoner nearly rubbed him. Could see the knife plainly. It was a moonlight night — the moon shining tolerably bright. Uo light in witness’ house; light up-stairs in Hammond’s house; thinks there was none in first story.

Just as prisoner turned out of alley into the gate, he said, damn him, I’ll fix him now. This called witness’ attention to knife. Had his right side towards witness ; held knife in his right hand; it was long, reaching nearly to his elbow sleeves slightly rolled up. Witness saw the knife very plain. After prisoner went through the gate, he said, damn him, I’ll kill him now, if he fools with me any more. Deceased was up-stairs at the window. Prisoner went to the cook house and either sat on or leaned against a table there; still kept talking; witness supposed he was talking to his mother. Talked some J minutes, and deceased came to the window. Deceased said he (prisoner) must either go out of that yard or hush such a fuss. Prisoner replied to deceased that he should neither leave nor hush, and said if he (deceased) came down there he would take his damn life. Deceased said he did not want to come down, or have any more difficulty with him, but would have it to do if he did not keep less fuss-He repeated the remark he (prisoner) made before, about taking his damn life, and dared him to come. Deceased said, you do, eh ? Prisoner replied, yes, I do; and deceased started to come down. There were some ladies above, who seemed to try to stop him and hinder him (deceased) from coming. They came to the window and told the prisoner to run away — to leave there quick — and about that time deceased came out of the door below into the yard. Witness could see him plain. It was dark from door to well. Where moon was shining, could see the bulk of deceased — hands and legs. Didn’t see him have anything. Deceased went in direction of cook house, and met prisoner’s mother. She raised her hands, as if she caught deceased; baeked.for a step or two, to the best of witness’ knowledge. She had hold of him. Saw prisoner’s hand and arm raised, and he made toward deceased. Prisoner’s mother, when she caught deceased, was saying, “ Oh, Lord! Oh, Lord ! don’t hit him with that stick.” Don’t know to whom she was talking— saw no stick. It was at the same time the prisoner was coming. As prisoner came up his hand dropped down, and he stopped for a moment, and then passed up by the corner of the dwelling house. Deceased started towards the house, and just as he went in the door the prisoner came out the gate and ran down the alley towards Peachtree street. The ladies soon commenced screaming, crying and hallooing. When prisoner raised his hand he was 3 or 4 steps from deceased — raised it as lie left the table, and his hand came down when he was right at deceased. Prisoner djd not go back to deceased ; passed him very close as he was going in the door. Witness saw nothing like a stick, except the raising and dropping of the arm. The only time witness is positive he saw a knife was when prisoner went in the gate. Witness put on his clothes, went around on Peachtree street, and went in the house — went in front door and up-stairs where deceased was. Deceased only breathed a time or two after witness reached him, as well as witness could discover. Saw a man, who witness supposed was a physician, open de. ceased’s breast; saw a cut above right nipple ; he put his two fingers in it. Deceased’s clothing was bloody; the floor also. lie was up-stairs. Witness supposes it occurred in this county; he has not lived here long; it was in this town. Deceased was pronounced dead before witness left. Witness saw no one in the yard at the time but deceased, prisoner, and prisoner’s mother.

Cross-Examined. — The alley was something from five to ten feet. Witness’ house is but a few steps from Hammond’s, will not exceed ten steps from witness’ room to place where deceased was killed. Well is between cookhouse and dwelling —is a step or two from cook-house, probably a little more or less; cook-house is about same distance from witness’ house as from Hammond’s. When prisoner went out he was absent several minutes ; came back to window and asked for his knife; blade was as wide as two fingers, about 1-J inches; about 12 or 14- inches long; extended up his arm about his elbow, above it, if anything — fully to the elbow. Was moving knife in his hand. Said if he (deceased) fooled with him, or came in his way, he would kill him. The table was very near the cook-house. Prisoner was talking at table about é minutes before deceased came to window. Heard deceased’s sisters saying, oh ! Bud, don’t go. Thinks they were not the voices he heard first. Deceased did not stop when he came out of the house until he met prisoner’s mother. Saw no weapon in deceased’s hand; he was swinging his hands. The prisoner’s mother threw her hands against deceased’s breast, and kept them there as though she had hold of deceased.

From where witness saw prisoner’s hand come down, to back door of Hammond’s house, is 2 or 3 steps. When his (prisoner’s) hand came down, his left side was towards witness. Prisoner raised his hand above his head, and it came down quick. Did not see the knife except when prisoner went in the gate. Witness was further off from prisoner when his hand came down than when he went in the gate. He was beyond the cook-house when prisoner’s mother raised her hands. She pitched at deceased quick, as though to stop him. It was not as dark where she put her hands on deceased as where he came out the door.

Re-Examined by State. — The first noise of female voices witness heard were at the cook-house. The door where deceased had to go in to go up stairs was at the corner of the house. A person could reach from corner to house.

M. Lamb, sworn. — Witness lives next door to Mr. LeCroy. There is a store in front, fronting on Peachtree street. There is no opening in the store on the alley. Don’t know whether there is a window or not. There is a door and window that open on the alley from LeCroy’s, and the same from witness’ house. It is about 10 feet from LeOroy’s door to witness’. LeOroy’s window is between the two doors. It is 8 feet from LeOroy’s door to Hammond’s gate. Witness measured it to-day. It is about 8 feet from witness’ door to Hammond’s gate. The gate was at an angle and farther. LeOroy’s door and the gate are exactly opposite. "Witness’ window is near the centre behind Hammond’s kitchen. Witness can see Hammond’s gate from his window ; can see the well from his door. There is a low plank fence behind the kitchen ; about waist high. It is four feet from corner of house to well. The door of the kitchen is on the upper side. It is 10 feet from well to kitchen door, and same to Hammond’s door. It is 10 steps across the yard. Witness was living at the place last Saturday night. Witness was standing in his door, and prisoner came by witness’ door going towards Peachtree street. Witness discovered prisoner had a knife in his hand, and said d — n him, I’ll fix him now; ran by witness and nearly brushed against him. Witness’ wife and boy were in the door with him when prisoner went in gate. His right side was towards witness; and prisoner said, I’ll kill him. The knife was about 12 or 14 inches long. He went up the yard, around the corner of the kitchen, out of sight of witness. Witness could hear him; he said, d — n him, I’ll kill him. He dared somebody to come down there and he would take his life. Heard the young man tell him to go out of the yard or hush his fuss. He said he would not go out of the yard or hush either.

Prisoner again dared the young man to come down; if he did d — n him he’d kill him. Deceased said, you do, eh ? The prisoner said, I do. The young man started from the up-stairs door, and witness heard some lady tell him to stop, not to go down there. He came down and out of the door, and got about half way between the house and kitchen on the upper side of the well. The woman met him and thr ew her hands on him. Prisoner was about a step or two behind deceased, between deceased and the house. He raised his hand and struck down. Didn’t see him (prisoner) strike but one lick. Prisoner stopped about a moment, and deceased started in the house.' Prisoner went towards the upper corner of the house. When deceased stopped on the door, prisoner ran by him out the gate. There is no more than 3 or 4 feet between Hammond’s and the next house.

When the woman caught deceased, she said, “ dont hit him with that stick.” Could see deceased tolerably plain when he came out the door, as plain as a man could be seen in the shade of a house when the moon was shining. Deceased was swinging his hands just as a man would in walking. Did not see him have any stick. Saw deceased afterwards in the house, after he was dead. Saw no wounds. His shirt was bloody. It was between eight and nine o’clock. When the woman caught deceased he was in the edge of the moonshine. The woman went back towards the kitchen out of sight, when the prisoner went out the gate.

W. J. Lamb, sworn. — Witness was on the alley near Hammond’s house, in Meredy Lamb’s house, last Saturday. Witness was eating supper near the window. Heard somebody quarrelling in the alley, cursing, and saw prisoner pass by the window going from the street. He passed out the east end of the alley. He had his collar rolled down and his sleeves rolled up near the elbow. He was going towards the kitchen window at the end of the alley. Heard him say, Mammy, give me my knife; I’ll kill him if he jaws me or says much to me. He went on round the end of the kitchen, away from the street, by the fence; thought he picked up some bricks. Medith Lamb wras not at the house; he (M. Lamb) did not come while witness wrs there. Witness went away; was gone about 15 or 20 minutes. Heard some one screaming and went back. When witness came back, he saw a crowd around prisoner, and witness helped to arrest him. He got away once and was re-arrested.

Cross Examined. — Went to the auction house — don’t know whose — where Tom Kyle used to keep store, corner Peach-tree and Marietta streets. There was a crowd around prisoner ; heard no threats against his life then.

Dr. D. E. Connolly, sworn. — Witness knowns where W. P. Hammond lives; it is on Peachtree street, in Pulton county. Witness thinks the lower part is occupied as a grocery store, the upper part as a dwelling; was-there Saturday night. Witness was passing near there,heard some one screaming,was met by some on, and asked me to come immediately with him to see a man who had been stabbed. Witness walked from Pryor street in the rear of Hammond’s, passed through the lot to the back door and around and up the steps in back room of lower floor. When witness got to the top of the steps, he saw deceased dead; he was lying with his face up, a pillow under his head. Witness made an examination— on his right breast witness discovered a wound to the upper and outer portion of the right breast under the collar bone. Witness had no instruments and introduced his finger into the wound, found the second rib had been entirely severed; failed to reach the bottom of the wound; supposed the wound to be 4 or 5 inches in depth; could not ascertain whether the artery and vein were cut, but supposed so, from the quality and quantity of blood ; the character of the blood was light colored, like blood from an artery; it had coagulated; it was not likely that so much blood would come from a vein ; the wound must have been made by a cut down; it was about ] J or 1J inches wide; it was a punctured wound, smooth; must have been done with a knife; it was a fatal wound. Witness made a slight examination in passage, asked Mr. Hammond for a room, carried deceased there, and made the examination ; did not examine any other part of deceased’s body; the wound passed into the upper lobe of the right lung.

Mary Hammond sworn. — Witness is a daughter of W. P. Hammond, is a sister of the deceased. Witness was living with'the family Witness saw prisoner come into the yard, could not hear what he said. Witness and deceased were sitting up stairs; they went to the window, and prisoner dared deceased down three times, and deceased said he could not take the dare. Witness told prisoner 3 times to go away; deceased started down stairs; he earned nothing with him. Witness went back to the door and saw prisoner meet deceased and hit him; prisoner had been sitting on a table, and when deceased came out of the door, prisoner and his mother came towards Mm ; prisoner’s mother caught hold of deceased, and prisoner struck him. Witness started down stairs and deceased went past her up stairs and fell dead. FTeither party had any stick that witness saw ; witness could see them, but they were all close together. Witness’ father slept in the back room of the store; had gone to bed; called him twice before he got up.

Cross Exami/ned. — Was there all that evening. Witness’ sister, Mrs. Hargroves, was there. Witness does not know how the fuss commenced, did not see deceased throw water on prisoner or strike him ; knows nothing that occurred previous ; there were four rooms between witness and the kitchen. Witness was sitting in the back room, when she heard the negro talking and daring; prisoner was sitting on a table, near the kitchen door; deceased, after the second dare, told the prisoner to leave the yard ; deceased was sitting by the fire place, and went to the door after the second dare ; had been sitting by the fire place about 15 or 20 minutes; deceased had not been down in that time. The window is on the corner and the door at the other corner, and the chimney, between, at the. end of the house. The window was toward the gate, from Where deceased sat, the door in the other direc- . tion.

There was no stick with iron for digging in the yard, as far as witness knows; they met deceased about 3 or i feet from the door; prisoner before, about two steps; saw no stick; they both started at him; thinks the woman got to deceased before prisoner struck; she stepped around deceased and was between deceased and the house; they stepped farther from the door; deceased came running up the steps by witness. Did not hear the woman say anything about a stick; heard her say don’t kill him; don’t know to what she alluded; it was just as deceased and prisoner got together.

Re-examined ly State. — Prisoner and his mother were hired by witness’ father.

Hugh Tomlinson. — Witness found a wound on right breast of deceased, and one large place on the left side under the shoulder blade, and one smaller one under it; the wound seemed to be cut across ; the length ran across the body; the smaller one was a little further back, near the spine. Witness remained until after the burial. There was no inquest. Could not tell how deep the wound was. The body was dressed a little after 12 o’clock.

The State having closed, the defendant offered in evidence the following testimony :

Elvira Heard, sworn. — Prisoner is witness’ son. Witness was sitting in the kitchen and heard prisoner say, quit that, Bud. Witness went to the door and saw Bud walk in the door with another pan of water and toss it on prisoner ; deceased then came and tossed out another pan of water, and defendant lay there and said nothing. Witness went back and heard Bud coming and told prisoner Bud was coming. Deceased came up to the table where prisoner waB laying ; took hold of him by the neck and says, are you mad ? Deceased said, did you draw this (meaning a piece of brick or chip lying on the table) on me. Prisoner said no, sir, Deceased caught up a spade and said, d — n you, I believe you did have that drawn on me, Witness held on to the spade and hollowed for Miss Mary. Miss Hargroves said, Mary, there is Bud down there fighting Carter for nothing. Miss Mary came down, and deceased met them in the door and went up stairs. Prisoner went off — said he was going after a policeman — said deceased struck him for nothing — began for nothing. Prisoner went off; staid awhile and came back; got on the table and commenced talking to Bud, some very insulting words. Deceased said if you don’t hush I’ll come down there and get hold of you again; go out of this yard; prisoner said he would not go out of the yard until he got ready. Deceased said if you don’t go out of the yard I’ll make you go out. Deceased came running down stairs — picked up a digging spade in his hand, and came running to prisoner. Witness stepped between them, put her left hand on deceased, and right hand on prisoner, and said, Lord, Bud, don’t hit him with that stick, please. Witness stepped back to the gate — screamed with all her might. The spade was a straight digger, like a crow-bar; wood, with iron on the end; the handle was about twice as long as an ax handle — the iron was fiat at the end to dig holes; the stick was about as long as a chair-post. Witness was about two steps from the table when deceased came. From the time of the throwing of water to the time they came together was about a half hour.

Cross-Examined. — After the fuss witness went out to a neighbors and lay down; then came back to her own house and staid there until arrested. Witness and prisoner have been in jail together ever since; have been here together, and heard all the witnesses. Witness’ back was towards the alley when they came together ; don’t know how often prisoner cut deceased. Prisoner was not gone more than u quarter of an hour when he went away. First witness knew of his coming back, heard deceased ask him if he had the policeman. Witness staid in the kitchen and did not go out of the yard until after the cutting. Don’t know what the prisoner did with the knife after the cutting. Witness took the spade from deceased, dropped it on the ground, and called for Miss Mary.

There is a piaza in front of the house. Thinks a person could have heard her call from where she was to the front of house.

Was the verdict ol the jury contrary to the evidence? The prisoner does not complain that he did not have a fair and impartial trial; but that he ought not to have been found guilty of murder upon the testimony.

What is there in the evidence to mitigate the offence from murder to manslaughter? Was there any actual assault upon the defendant ? Did Hammond make any attempt to commit serious personal injury on Heard? Taking the testimony of the mother of the prisoner as true, Hammond’s conduct seems to have been sportive in the outset of the difficulty, and throughout he indicated an intention to avoid any altercation. On the other hand, the conduct of Heard shows bad feeling, and a disposition to provoke a conflict. He deliberately prepared a most deadly weapon, and this too when he had ample time, not only to deliberate, but to keep out of the way. So far from pursuing this course, he returns, bent on mischief if an opportunity occurred. He threatens and dares Hammond to come down. Hammond at first declines, and orders him to leave the lot. Heard not only refuses, but replies insultingly to him. Finally, Hammond goes to where Heard is. As they approached, the mother of Heard testifies that Hammond caught up a spade; she importunes him not to strike her son, and she does not pretend that he offered to use the digger. Other witnesses, who had ample opportunity of seeing, testify that they saw nothing in Hammond’s hand. Then Heard, with his knife of formidable dimensions, struck the fatal blows which terminated the deceased’s life.

I will not say that Heard evinced a murderous spirit, but certainly a very bad temper throughout this altercation; looking forward to the opportunity, if not inviting it, when ho might take Hammond’s life.

All the evidence shows a vicious and depraved propensity to take human life, for the preservation of which laws are enacted.

In this age of recklessness and terrible demoralization, if men sow to the wind, they cannot expect Courts and juries to interpose and prevent them from reaping the whirlwind. They must eat of the fruit of their own doings. It has been said heretofore, that few cases of murder in the first degree, such as poisoning and private asassination, were committed by our people. But if passion, without sufficient provocation, is to excuse men from the crime and guilt of murder, then is human life cheap indeed — of no more value than the sparrow’s.

I have lost faith very much in punishment, as a means of amending the offender himself. Its reformatory effect is not much, I fear; still, its punitive power must be felt; and while the glittering blade, wielded by the strong arm of malice is mighty to destroy, still, the small cord, in the hands of the executioner of justice, must be felt to he not less fatal and unerring.

This is an age of Gains, and the voices of murdered Abels come up at every Court, crying aloud to the ministers of the law for vengeance. Let the stern response going out from the jury box and the bench be, whoso sheddeth man’s blood without legal excuse or justification, shall he hung by the neck till he is dead.

Judgment affirmed.  