Opinion
15138.
JULY 3, 1945.
Murder. Before Judge Camp. Laurens superior court. December 21, 1944.
L. F. Watson and W. A. Dampier, for plaintiff in error.
T. Grady Head, attorney-general, and Maud Saunders, contra.
The defendant was convicted of murder. His motion for a new trial, containing only the usual general grounds, was overruled, and he excepted. Held, that the evidence was sufficient to support the verdict. While the jury would have been authorized to return a different verdict, they were not bound to do so under the evidence. The court did not err in refusing a new trial.
Judgment affirmed. Jenkins, P. J., Duckworth, Atkinson, and Wyatt, JJ., concur.
No. 15138. JULY 3, 1945.
Bill Kellam was indicted for murder in the alleged killing of John Meredith, by striking him with a large, heavy, wooden stick. The jury returned a verdict finding the defendant guilty, with a recommendation. His motion for a new trial, containing only the usual general grounds, was overruled, and he excepted. The following is a substantial statement of the evidence, so far as it could be material in determining whether the verdict was authorized.
Monge Thomas testified for the State: "I know Bill Kellam, and I knew John Meredith. On September 3, 1944, I saw John about Walker's store, about good first dark. I saw Bill over there too. They did not have any trouble over at the store. They did not leave the store together. I left the store with Bill Kellam, his wife, and his wife's sister, Viola, and my sister, Tinie Mae, and Therman Landis. My wife's name is Beulah Thomas. We are walking down the road. It had already gotten dark. John overtook us in an automobile. Boose Thomas, Robert Lee Mitchell, and Arthur Steel were with him. He stopped the car just a little below us, and said, `Viola, get in this car.' And she said, `I don't want to ride.' And Kellam said, `John, if Viola don't want to ride, don't try to make her ride.' And Viola walked down the road, and John Meredith overtook her and snatched her around, and Bill Kellam's wife walked up to him and took his arm and said, `Don't hurt my sister, with the baby in her arms,' and he pushed her, and she sat down on the ground. John kept on talking to Viola. He and Viola had been going together as sweethearts. Bill said, `You just wait here a minute until I get back,' and he went down the road. As near as I could tell, Bill went about 25 or 30 feet down the road, and he came back with a pole in his hands. He got the pole in the middle of the old road that comes out in the big road. That pole had been used for a fence post. When Bill came back, he said, `Look out.' And then he hit John Meredith. John wasn't facing Bill when Bill hit him. John was facing me. Bill was on the side of the road that John was on. When Bill hit him, John fell down on his face. John did not get up or holler for help, or make an outcry. Bill started to hit him again, and my brother said, `Don't hit him no more,' and he caught hold of the pole. And Bill's wife said, `Go home,' and Bill went on up the road, taking the pole. John died on the way to the doctor. That pole is about 6 feet long, and comes pretty close to weighing 20 pounds. It looks like wire had been nailed to it. It is sweetgum. There is no rotten place in it, it is good, strong, solid sweetgum. . . I saw where this pole was broken off, and where it was on the ground. He had to give a mighty hard snatch to break it off. That (indicating) is a busted place in it. . . John drove down the road and stopped his car, and switched it off and left the lights burning and opened the door, and said, `Viola, get in.' When he stopped the car, he was right close to where I was. Viola said, `I don't want to ride,' and she walked down the road, and he overtook her. He got out of his car before he told her to get in. The other boys did not get out. When Viola said she didn't want to ride, he said, `God damn it, get in this car,' and he slung Kellam's wife down and opened a knife. . . He did not have his knife out when he got out of the car. He walked up there where we were with his knife. Viola was back up next to the car and I was next to Meredith. John Meredith motioned at Viola once or twice with his knife. . . Viola had a baby in her left arm at the time he told her to get in the car. Bill said, `If she don't want to ride, don't try to make her ride.' Bill's wife went up to John and said, `Lord have mercy, don't hurt my sister with her baby in her arms,' and then John slung her down. Bill was standing down the road then. . . John slung Bill's wife's arm, but he didn't knock her down. She went over backwards. Meredith opened his knife after then — after John slung Bill's wife and she sat down. Then Bill said, `You wait here until I get back,' and he went down the road. When Bill came back with the stick, John was still talking to Viola, telling her `God damn it get in the car.' John still had his knife open, held like this (indicating). Bill's wife was standing down the road. When Bill came back with the stick, there was nothing to keep John from seeing it. The moon hadn't risen. I could see everything going on. It was good first dark. I didn't see Bill when he came back. He was gone 25 or 30 minutes. When he came back, he said, `Look out,' and he hit. I was listening to John Meredith and watching that knife. I hadn't never been off with John when he had been in a fuss like that and I didn't know what he was going to do. . . He has been married twice. His sole purpose seemed to be to get Viola to get in the car with him, and when she refused to get in that is what brought on all of the trouble. When Bill came back with the stick, John did not say anything to him. John was not looking right at Bill when Bill hit him. He didn't look back to see Bill with the stick. He was still talking to Viola. John didn't turn on Bill with his knife — he didn't turn no where. . . When Bill's wife ran up and grabbed ahold of John, John didn't try to attack her. John had not pulled out his knife at that time. When John slung her arm, Bill told John to stay there until he got back. Bill was about 20 feet from John when he told him that. John did not reply to him. He stayed there a good while before Bill came back with a stick and knocked John down. Viola was behind me, talking to John over my left shoulder. Viola did not run. She had me by the back of my overalls. If John had tried to cut Viola, he would have cut me. Viola didn't call for any help. She had a baby in her arms. Jimbo Minces was the father of the baby; he is now dead. Bill has been married one time. John was not living with his last wife. I don't know how long he had been going with Viola. They were sweethearts. John got killed on the other side of the branch, down below Caldwell. That is in Laurens County, the State of Georgia. . . I imagine John's purpose when he came down there was to make Viola get in the car, because that was the first word he spoke. I didn't hear him say he would do anything to her if she didn't get in the car, he just told her to get in the damn car."
H. L. Stephens testified for the State: "I am a State highway patrolman. I would say that stick is 6 feet long and weighs about 40 pounds. It is about 4 inches in circumference at the small end and about 5 inches in circumference at the largest end. I would say it is seasoned gum wood. It looks like it has been used as a fence post. It is good solid wood. That stick is large enough to kill a man with. On or about the 3d day of September, I went with deputy sheriff Wilkes to investigate this case. We found the dead man lying on the left side of the road. The people there said he had been moved from the place that he was killed. I examined the dead man. I would say that he was hit on the back of the head, between the head and the shoulders from the rear. . . I turned the head over and I noticed that the neck was very limber, and I rolled him over, and his neck dropped back. It looked to me like he had a broken neck. . . He was hit just between the base of the skull and the shoulder. There were no marks there at all. I do know he wasn't hit on the head. It had to be the fleshy part of the neck. The reasons for the marks not being there, in my estimation, is because the neck was soft and fleshy at that point, and that is where the neck seemed to be broken. If the neck had been broken on the other side, it would have left a mark on his chin or jaw. I could see no signs where he was hit. If the dead man had been face to face with the person who hit him, it would be the logical thing for him to turn his head to ward off the blow. That (indicating) is a good solid post, which has been broken from the fence. That type of post will break easy. . . I have never seen that knife before (indicating). You could kill a man with that knife. The blade and handle of that knife are about 7 inches long."
Beulah Thomas testified for the State: "I remember when John Meredith was killed. Bill Kellam killed him. I was along with the crowd when John came up and stopped in the car. . . He stopped and asked Viola to get in the car, and she said she didn't want to get in there. He got out of his car and snatched Viola. He opened his knife, and then Bill's wife ran up and grabbed ahold of John and he slung away from her, and kept on talking to Viola. Viola was his sweetheart, and I didn't hear Bill say anything. When I knowed anything, Bill had hit him. . . He did not try to cut Viola behind my husband. If he had tried to cut Viola, she could have run up the road or down the road. She didn't try to get away. John didn't have anything to do with Bill's wife after he slung her away from him. John didn't have anything to do with Bill. . . Nobody tried to take the pole away from Bill. Bill went on down the road and carried the pole with him. . . It was about 10 minutes after John Meredith slung away from Bill's wife before he was hit with the stick. Bill went down the road, and when he came back he had that piece of wood. I did not see Bill coming with the wood. There was nothing said between Bill and John when Bill came back with the piece of wood."
Arthur Steel testified for the State: "I rode down the road with John Meredith the afternoon he got killed. I got out of the car when it stopped. . . Bill Kellam and his wife, and Viola and Thelma were down there. . . John got out and called Viola. I was on the ground on the right hand side of the car talking to Viola. I don't know what John said to Viola, but they clustered up around him, and I said, `Let's go, they are fixing to fight.' Tinie Mae and Thelma and me went on down the road, and I met Bill. There was a little road that turns up, and this pole was in that road like. I walked on down there, and just as I got to that road, he snatched that pole down. The fence was nailed to the pole. That (indicating) looks like the same pole he snatched down. I have been back up there since then. I stepped the distance from where the car was to where that pole was broken, and it was 117 steps — ordinary human steps. When Bill got that pole aloose, he drawed it back on me, and I said, `Look out,' and Thelma said, `Don't you hit Arthur, that ain't John.' And Bill said, `God damn it, tell me something.' And I said, `I done told you so,' and he went on back to the car. . . We went on up the road a piece further, and I heard somebody say, `Look out, look out,' and I heard the lick. It sounded like somebody had hit somebody with that pole. I heard somebody say then, `Don't hit that man no more.' Who said that, I don't know, because I wasn't down there. I went on up the road. When I heard the lick, we were nearly about twice as far as where he broke the pole back to the car. It was around 20 minutes from the time he tried to hit me with the pole until I heard the lick. There were sticks and posts lying all alongside of the road between the car and the place where he got the pole. . . Bill went 117 steps from where the trouble was to where he got that stick. I stepped the distance yesterday — me and Frank Floyd. We stepped it from where the body was lying to where the stick was broken off."
Thelma Landis testified for the State: "John called Viola and told her to go around and get in, and I don't know what she said, because I couldn't understand her. She turned around in front of the car and walked down the road, and he said, `I bet God damn it you do,' and he gets out and takes her back to the car. He caught ahold of her and sorter pulled her toward the car, and they got in the dark, and I couldn't see in the dark. I couldn't tell what any of them said. I didn't see Bill's wife do anything. I did not see that knife (indicating). I didn't hear John say anything about cutting Viola. Viola had a baby in her arms. The car was about as far from the branch as from here to Pierce Orrs or further. When me and Arthur were walking on toward the branch, Bill came running down the road. I guess he broke the stick off, because he had one. He came and drew it on Arthur. . . There was nothing to keep Bill from hitting Arthur if he wanted to. Bill went on toward the car, and me and Arthur went on across the branch. It was something like 20 minutes before we heard a lick back up at the car passed."
Archie Smith testified for the State: "I am the overseer for Guy Weatherly. Bill Kellam worked for me before he got in this trouble. I saw Bill Kellam about 20 minutes before the killing took place. He did not say anything about his trouble with John or anybody. I also saw him about 15 or 20 minutes after the killing. He had a pole in his hands. I asked him what the trouble was up the road, and he said he hit John Meredith, and his wife said, `You killed him.' And he cursed and said, `If I didn't, I will kill the son of a bitch.' I told him to go back down the road, and he went back down the road toward his house. After I went up the road and found the boy was dead, I took Bill in my truck up to McRae and called the law. . . Bill didn't discuss the trouble at all. He just said if he hadn't killed him he would. I didn't question him."
W. G. Edmund testified for the State: "I was in Dublin, back in June one night. I saw John Meredith and Bill Kellam over here. They were around on Five Points, next to the Independent Filling Station. John came walking along, and Bill was standing at Sam Burch's school bus, and Bill said to John, `Hello John, you son of a bitch,' and John said to Bill, `Bill, don't call me that. I wouldn't call nobody that.'. . . Bill repeated it again and ran his hand in his pocket, and John caught him by his wrist, and I asked them, `Boys, don't do that, if you can't behave, I will have to call the law'. . . John started to put on a tire, and Bill walked up over with his hand in his pocket, and I prevailed with him to go away, and Bill walked away and went off and got a brick and came over on the other side of the car with the brick, and I told him that he had better not hit that boy or I would call the law, and he threw the brick down. John rolled the tire down to put air in it, and Bill followed him, and said, `I will get him when he is going down to the quarters, I will kill him if I live.' That was the third Saturday in June."
Robert Lee Mitchell testified for the defendant: "I remember the night that John Meredith was killed. I had been in the car with John Meredith. We had gone to the store and turned around. . . When John stopped the car, he called Viola to the car and told her to get in the car, and she said, `No, I ain't going to get in the car.' And John said, `Yes, hell you will or you will ride with the undertaker before day.' I was sitting in the car, and Boose Thomas called me around there, and I went around there and John had a knife in his hand. John hit Bill Kellam's wife when she went to get the baby from Viola. Bill left the car and came back with a stick. At the time of the lick, I was still in the car, and Boose called me around there and Meredith had a knife in his hand when he fell, and it fell side of him, and I picked it up and put it in my pocket, and Mr. Smith asked me later if I had the knife, and I gave it to him. . . I heard him tell Viola that she was going to be at the undertaker's if she didn't get in the car. I didn't tell you that when you asked me about it a week ago, because I was scared. These folks didn't give me any money to come up here and testify in this case. If John said a word to Bill, I didn't hear it."
Viola Smith testified for the defendant: "I remember the night that John Meredith was killed. . . John called me and asked me to ride, and I told him I didn't want to ride with him with my baby and he was drinking, and I walked on off, and he jumped out of the car, with his knife open, and he caught me in my back and snatched me, and my baby fell over like that (indicating), and my sister caught the baby, and John nearly knocked her down. When John hit Lillie Mae, that is when Bill hit him. That (indicating) is the knife that John had. John cut at me with that knife when he stopped me and then went to stobbing at me. John said, `I bet, God damn it, you get in the car, or you will be at the undertaker's before day in the morning.' That (indicating) looks like the stick Bill used when he hit John. John was still cutting at me when Bill hit him. . . Bill didn't run up back of John and hit him, he just came on him and hit him. The moon was shining as bright as day. I was squatting behind my first cousin when Bill hit him. John wasn't after Bill, because Bill didn't bother him. When John hit Lillie Mae, that is the only time Bill did anything. I wasn't paying any attention when Bill hit John, I was dodging the knife. I didn't know if it made a pretty loud noise when Bill hit him. . . My sister caught the baby, and said, `Please don't cut my poor sister,' and he hit my sister with his fist — his left fist, because he had his knife in his right one. At the time John hit her, she had ahold of him up here around the collar. John did not try to hit her again. He kept on after me. I don't reckon he wanted to be bothered with Bill's wife. When he hit my sister, that is when Bill hit him — just that quick. Bill got that pole down there toward that pond some place. I don't know how long he was gone, I didn't miss him. The fuss hadn't died down none after Bill went off to get the pole. I didn't run off and get away from John because he had me hemmed up. The first time I tried to run is when he drug me back up to the car. Every time I would make a break to run down the road, John would go that way too, and he would stob at Monge and them and try to make them get out of the way. John cut at me until the last of it. Bill married my sister."
The defendant made the following statement: "Gentlemen of the jury; we had been to the store. I had bought some ice and some milk, and was on my way back home. Boose and Arthur and Bob were in the automobile with John, and John overtook us and told this girl to get in the car with him, and she told him he was drinking and she didn't want to ride with him. I am telling you exactly the way it happened. He said, `If you don't get in this car, God damn you, you will be at the undertaker's before day.' I told her, `If you want to get in the car with him, give my wife the baby.' I was ahead of him. He overtook us. My wife went to get the baby, and he hit her. It wasn't no 116 or 117 steps to the pond. I was already standing down there. He hit my wife when she run to get the baby; and the post was standing up side the fence. It wasn't wired or nailed up there. It was just a gap that you could go in there. A piece of wire was crooked over the nail, and I took it off. When he told the girl, `If you don't get in this God damn car you will be at the undertaker's before day,' I told my wife to `get the baby, don't let him take the baby.' I was trying to save the baby and the girl. I would rather for her to get cut than the baby. When he hit my wife with his left arm, I was standing right there looking at him. When he done that, I said, `John don't you hit my wife.' I wasn't standing a bit further from him than from here to that wall. The water was a little distance from that, but it wasn't no 100 steps. When he hit her, I hit him. I think, gentlemen of the jury, you would have done the same thing. If you had met him 10 years from that day, you would have hit him. I did not try to get this girl not to ride with him. She told him, `I don't want to ride with you, because you are drinking whisky.' After that I tried to save the baby. That was all I could do. I didn't have nothing, and I got to the quickest thing I could get to, that stick. He told her, `If you don't get in this automobile, you will be at the undertaker's before day.' That is all I can say."