
    Butler v. The State. Fews v. The State.
    
      Judgments reversed. All the Justices eonewr.
    
    Nos. 1868, 1869.
    August 17, 1920.
    Indictment for murder. Before Judge Walker. Taliaferro superior court. January 27, 1920.
    In an indictment against Dink Butler and Fate Fews for the murder of W. B. Bainey, both defendants were charged as actual perpetrators of the crime by shooting Bainey with a- rifle. The defendants were tried separately. Butler was convicted without recommendation, and sentenced to be hanged. Fews was convicted, and the jury recommended that he be imprisoned for life. Separate motions for new trial, based solely on the general grounds that the verdict was contrary to law and unsupported by evidence, were overruled, and movants excepted by separate bills of exceptions. In both cases the uneontradicted evidence showed that Bainey was killed by a rifle-shot fired by Dink Butler. Several shots were fired by Butler in the rencounter with Bainey, but only one took effect. The wound was inflicted during the afternoon of Tuesday, December 23, 1919. The bullet penetrated the body and passed through the bowels. Bainey was carried to Augusta several hours after being wounded, to be treated at a hospital, and died on the following Friday, December 26. The indictment was found at January special term. The verdict against Butler was rendered on January 2, and the verdict against Fews on January 3, 1920. Bainey was a white man; the defendants were negroes, related to each other as brother-in-law. Bainey had a wife and children, and resided with them in the country. His house fronted the public road, sitting back about 25 yards, and separated from the road by a yard. His barn was across the road in front of his residence. On one side of the barn, extending up- to the road was a cotton-field, and behind the cotton was a corn-patch. About thirty-five yards behind the barn and about 100 yards back from the public road was the residence of Ben Butler, a brother of defendant Dink Butler. Off one side of the residence of Ben Butler about a half mile away was the residence of Dink Butler. • On the opposite side of the residence of Ben Butler, at a distance of about three hundred yards, was the residence of defendant Fews. Thus the residences of Ben Butler and of the defendants were on the same side of the public road, while that of Rainey was on the opposite side. Rainey’s barn obstructed the view from his house to Ben Butler’s. “Roberson’s” was a place located some distance away, on the public road. Whatever conflict there may be in the evidence, as to the circumstances under which the homicide was committed, will appear in the different accounts given by the witnesses, as will now be stated in substance.
   Atkinson, J.

These two cases involve the same homicide, and are decided together. The only assignments of error are npon the judgments of the court overruling the motions for new trial; the motions being based on the general grounds that the verdicts were contrary to law and the evidence. Upon a consideration of the evidence this court is of the opinion that it was not sufficient to authorize the verdicts finding the accused guilty of murder.

(1) The following statement applies to the case of Dink Butler : A daughter of Rainey, introduced by the State, testified that on the afternoon in question Rainey went to the barn, preparatory to going over to “ Roberson’s.” He • came running back to the house, bareheaded, and got his shotgun and some shells, saying that he was “ going to kill a negro.” Witness and her mother endeavored to prevent him from going, but could not do so. As he left the house with his gun, witness went to the kitchen window 'and watched him. He undertook to slip up and get “behind the barn.” When he reached the corner of the barn a rifle-shot was fired by Dink Butler from the direction of Ben Butler’s house. Rainey fifed, and two other shots were fired by-Dink Butler. The third shot by Dink Butler inflicted the mortal wound, and the drooping action of Rainey’s body showed when he was hit. At that time Rainey was standing behind the corner of the barn from the negroes, trying to shoot. After receiving his wound Rainey shot twice, making three shots in all fired by him. After firing his third shot he started back to the house, running in a leaning position through the cotton-patch. Dink Butler then ran into the corn-patch; and for the first time the witness could see that it was he who was doing the shooting. He pursued Bainey, advancing through the cane-patch, shot at him until he fell, and then left. Eainey fell in the edge of the yard. He never got further than the barn, and during the rencounter he was never out of sight of the witness. She could not see anything that occurred behind the barn, and did not know who was shooting at Eainey until Dink Butler appeared in the corn-patch, shooting with his rifle. Witness did not know, what had occurred before Eainey first returned from the barn and got his gun. Eainey was not an officer of the court. A hat delivered to the sheriff by the wife of Ben Butler, in which was a hole that had not appeared prior to the rencounter, was identified by the witness as the hat which her father had worn to the barn when he started to Boberson’s.” The hat was introduced in evidence, the State contending that the hole was a bullet-hole produced by a shot from the rifle of Dink Butler while Eainey was going to the house for his gun. The State also introduced evidence of statements made by Eainey during the evening of the day he was shot. One statement was to the effect that he was shot by Dink Butler, and that Butler shot first. A statement to another witness was: Dink and Ben got to fussing,” at Ben Butler’s house, “ and I went down there to quiet the fuss,” and Dink Butler said, ‘You are the son of a b— we are after. . . We are going to kill you right now,’ and grabbed his rifle. I did not have a thing but my fist. I. hit Dink and turned him loose, and made a break to get back to the house and get my gun, and Dink shot at me once or twice as I was going off. I got my gun and started back, and just before I got to the barn I shot at Dink and hit Ben accidentally. . . Ben was trying to help me. . . Ben was coming to me to keep Dink from shooting.” Another witness testified, that, about seven o’clock in the evening after the rencounter, Dink Butler appeared at Boberson’s in a drunken condition. He was wounded by being shot in the face, and his shirt was bloody. His manner was boisterous. He said, with an oath, that Eainey had shot him, and that they were going over to Eainey’s house that night and kill him.

Ike Wynne, a negro, and a close neighbor to Fate Fews, but not related to either of the defendants, was introduced by the State. His testimony was in substance as follows: He was at Ben Butler’s at the time of the rencounter. Dink Butler appeared there with his rifle, and Fate Fews came up afterwards without any weapon. Ben and Dink were quarreling in a boisterous manner over some money that Ben owed Dink. Witness tried to get Dink’s rifle from him and to take him away, but he refused to go. The Butlers and Fews were cursing loudly, and Fews told Dink “to go his length.” Bainey heard them, and came down there bareheaded. Fews was cursing the loudest. When Bainey arrived Dink was holding his rifle in a certain position. Bainey took hold of the rifle and demanded that Dink give it up to him. Dink refused and they commenced to “ pull over the rifle.” Fews “ went up and pulled at it.” Bainey hit Dink Butler two or three times, and said, “Do you tempt me?” Dink did not reply, and Bainey said: “You stay here. I have told you damn negroes about this fussing. I will be back here, G— d— you. If you want to fuss, I will help you,” and went to his house and came back. While he was gone the witness tried to get Dink to leave, but he refused, saying he was on his “boss’s plantation,” meaning, “his boss he lived with.” When Bainey got to the comer of the barn, he said: “ Look out, old man. I don’t want to shoot you.” Witness moved, and Bainey shot, wounding Ben Butler. The witness got Ben up. Bainey shot at Dink and missed him; he again shot at Dink and hit him. After this Dink shot, and then Bainey shot again. When Bainey shot the last time, he took rest on the corner of the barn, and sighted around the barn. Dink went around where he could see Bainey, and shot, at which time witness heard Bainey exclaim, and Dink broke and ran toward Boberson’s. While the shooting was going on, Fews went running to his home to get his gun, and returned with it after the shooting was over and about the time Bainey reached the yard and fell, saying that he was going up to Bainey’s house to “finish him up.” Fews’s wife returned with Mm, calling on witness and others not to let Mm go up to Bainey’s house. Witness remonstrated with him, and was threatened by him. Witpess kept talking to him; and he saw Bainey staggering up at his house, and the ladies around him, and did not go. After Bainey had left to go to his house, Dink Butler worked his rifle in some way, and it went off and shot in the ground, and he said: “ It [the rifle] was all right.”

Another witness introduced by the State, who lived about a quarter of a mile away, testified that he there heard shots fired; only two guns were used, one a rifle and the other a shotgun. There were about eight or ten shots in all. The rifle shot was the first; the others were so close together that he could not tell the ord„er in which they came.

The defendant introduced as a witness a lady visitor who appeared at Rainey’s house at the time he was coming out with his gun. She testified that Rainey was bareheaded, 'and greatly excited, and exclaimed that he was going to get a negro; that Rainey’s wife and daughter were present, and that neither of them was doing anything; 'and that the daughter said she did not know what was the matter, and witness being frightened left the place, going through the back yard and field to the public road. Another witness, a doctor, testified that in his opinion Rainey was drinking, and that when he was about to administer a dose of morphine Rainey told him that he had been drinking some. Witness could not tell to what extent he had been drinking. In his statement to the jury, Dink Butler said that Rainey shot him in the side of the face and in the head and left arm and left side, ten or twelve shots in his face, five or six in his hand, 15 or 16 in his arm, one in his eye, and he did not know how many in his side. That morning he had met Rainey, who gave him a dram and he' drank a right smart of it. In the evening, while going to feed his sows, defendant got his gun to shoot a hawk that he saw, but the hawk flew away, and defendant went to his brother Ben’s to collect some money that was owing to him. Rainey came there and endeavored to take defendant’s gun, and, failing to do so, left saying, " Stay here until I get back.” Defendant did not go, knowing that he had done nothing to Rainey. When he came back, he got to the corner of the barn. The first shot hit Ben, and the second hit defendant. "The third, fourth, and fifth shots I made I did not know I had hit Mr. Rainey until I got here in jail. I left there then and went to Roberson’s and told about my shooting Mr. Rainey. Somebody said, Are you shot ? ’ and I was bleeding, and they asked me if I wanted a drink of whisky, and they gave me a quart of whisky, and I drank it and got pretty full.”

(2) The following statement applies to the case of Fews: Ike Wynne, a witness for the State, testified as reported in the case of Dink Butler, but more in detail as to what Fews did, as follows: When Fews came to Ben Butler’s house, Ben and Dink were quarreling about the money Dink had come to collect, and both had their guns. Fews took sides with Dink, and told him to stay there and collect his money. After Bainey had failed to get the rifle from Dink and Fews, and had gone back to his own house, witness tried to get Dink to leave before Bainey’s return, but Dink said he was on his boss’s plantation, and was not going. Fews told him not to go anywhere, his language being: “ G — d d — n it; don’t go. Go your length. G— d — n them, they got the money and don’t want to pay it.” Fews did not say anything to Bainey. While the shooting between Bainey and Dink was in progress, and just before Bainey was hit, Fews, while standing 10 feet from Dink and in his hearing, said in a loud voice: “ God damn it, I am going after me a gun.” He went in a run and brought his gun. When he came back with his gun, his wife came calling, “Gome back, come back.” He got as far as the well, which was about 125 yards from Bainey’s house. Bainey had just got across the road going toward his house. Mrs. Bainey and her daughter were saying loudly, “Don’t let him come here.” Fews said, “Well, I am going over there and finish him.” He was then running, going up toward Bainey’s. He stopped when witness began to talk with him. Later Fews went to Boberson’s, and he threatened to shoot the witness, saying, “ I believe you are taking sides.”

Harwell testified for the State, that Fews’s residence was about 300 yards from Ben Butler’s. The well was about half way between the two places. Fews lived on the public road coming from Boberson’s, about 100 yards off the road. About an hour after the shooting witness got into the sheriff’s ear and started toward Boberson’s in search of Dink. They followed a ear in which Dink and four others were riding. It stopped at Fews’s house. Fews was not there, and those in the sheriff’s car did not see him until a few minutes afterwards. He came walking along the road with Blackwell. Fews did not have anything, but Blackwell had a single-barrel shotgun that belonged to Fews. The gun was not loaded. Fews was right at the well when he was arrested, and he said he was on the way to Dink’s house to get his keys from his' wife who had gone there. Dink was drunk while in the car, and Eis rifle was in the car.

Sturdivant, the sheriff, testified for the State: Saw the automobile with negroes in it, which Harwell testified about; found the negroes at Fews’s house, as testified to by Harwell. Arrested the defendant. Dink had the rifle. Fews was not in the car with the other negroes. He was arrested by Blackwell, and the first witness saw of Fews was when Blackwell brought him into Fews’s yard. Those in the sheriff’s automobile went to Fews’s house in advance of the car in which Fews and others were riding, and got out and put out lights.

Blackwell testified: Arrested Fate at the well. He was going up the road; had single-barrel shotgun; was right on me before I saw him. I squatted down to keep him from shooting me, and as he raised up I threw my gun in his face, and told him to throw up his hands. He didn’t want to turn loose his gun, and I hit him with my pistol, and he turned loose. The gun was loaded, and he had five shells. He was going up the road toward Ben Butler’s, about 7.30 o’clock.

Harwell, recalled, testified: He heard Blackwell’s testimony as to where he arrested Fews. The road in which Fews was arrested was the most direct from Fews’s house to Bainey’s, and it would carry him by Ben Butler’s in going to Bainey’s.

Davis testified: He saw Fews and Dink Butler that night at Monk’s store about 6 or 7 o’clock. They were pretty mad. Fews said he was going back and kill Bainey; that Bainey had done him and his brother-in-law wrong, and he was going over there and kill him. This was said where Dink could hear the statement, but Dink did not say 'anything:.

Monk testified: Saw Dink Butler and Fews in his store on that day, and they were cursing and boisterous. Asked Dink what was the matter. He said, “Mr. Bainey, a. God damned son of a bitch,” had shot him. Fews did not have much to say right then, but finally said they were going over that night to get him. They stopped at the store about 15 minutes, and left together.

The State introduced the verdict against Dink Butler, for the purpose of showing that he had been convicted as principal.

Ben Butler testified for the State. He brought out nothing additional except as follows: The hat exhibited was Bainey’s. While tussling for the gun at witness’s house, his hat fell off, and he left it there when he went back after his gun. About the time lie left to get his gun, Fews left to get Ms gun. Fews told Dink Butler to go Ms route and he would back Mm. That was before Eainey appeared the first time.

Statement by the accused: The fuss started on account of liquor. A day or two before that he was hunting and found liquor in Monk’s pasture. On the day of the shooting he went down there and got drunk and came up to Ben’s house. He found Dink and Ben’s wife disputing; slipped off and got another drink and came back. When Eainey came to grab hold of the gun, he said, “ Uncle Ike, let’s take this gun away from Dink and make him go home.” And he said, “Never mind, you make him go;” and “I walked on off, and they tussled around there, and I says I could not take the gun, and just walked back a little, and Mr. Eainey made a break and run to get his gun. It was then I said: "I am going away from here,’ and I run too. And when I got on my porch I heard shooting; don’t know who shot first. Have nothing against Mr. Eainey. I went to Eoberson’s. and both of us were drunk, and we got the car and came home. And when I got to my house the door was locked, and I felt over the door for the key, and then I put out to Dink’s house to see if my wife was there, to get the key for my house. The car could not go to Dink Butler’s house, and Dink was drunk and had no way to get home, and they left him with me.”

W. H. Locke, introduced by the State, testified: While Fews was in jail in Wilkes County he said he did not know anything about the shooting, except at Monk’s store he heard a girl say Mr. Eainey had been shot.

Ike Wynne, recalled, on direct examination testified: When Fate Fews said to Dink Butler, “ Go your length,” that was before Eainey came the -first time, and he was talking to his brother about the fussing. On cross-examination he testified that after Eainey had gone after his gun, Fews told Dink Butler not to go anywhere. Witness had tried to get them off.

J. 'A. Beazley and Colley & Colley, for plaintiffs in error.

Clifford Walicer, attorney-general, B. C. Norman, solicitor-general, M. C. Bonnet, and A. G. Goluclce, contra.  