Ratteree v. State

1. When the juror’s name was A. J. Barry, and on the list furnished the defendant’s counsel was A. J. Berry, and it was shown that he was generally called Berry, it was not error in the court to put the juror on the prisoner. 2. The sayings of the deceased which were offered, in evidence, were not part of the res gestee, and even if they had been made in articulo mortis, they were matters of opinion, and not of the facts connected with the killing. 3. The charge of the court fully covered all the provisions of the Code, and also the points involved in the request of the defendant’s counsel which were applicable to the case.

Criminal Law. Jury. Evidence. Bes gestos. Charge of Court. Before Judge Hopkins. Fulton Superior Court. October Term, 1874. James Ratteree was placed on trial for the offense of murder, alleged to have been committed upon the person of W. L. Clifton on December 23d, 1873. The defendant pleaded not guilty. Amongst the jurors put upon the defendant was one by the name of J. A. Barry. The name upon the list furnished to the defendant was J. A. Berry. No such name appeared upon the jury lists for the county, but he stated on oath that though his name was Barry, yet he wasgenerally called Berry. When his name of Berry was called he answered to it. He was then sitting within ten feet of defendant. The court, on objection made, held him competent, and the defendant was thus compelled to challenge him peremptorily. To this ruling he excepted. The evidence showed that the deceased and other friends, were going from the city of Atlanta' to Fayette county in wagons. That when about one-half mile beyond West .End he met the defendant, his two brothers, and a boy by the name of Silvey, coming in the direction of the city with a wagon drawn by oxen. That a controversy ensued, the details of which, in view of the decision, are immaterial here, in which the deceased was mortally stabbed by the defendant. That the deceased was placed in a wagon and carried about two hundred and fifty yards, when he said he could go no further, fainted and fell out of the wagon. That he was placed on the side of the road a.nd rubbed with camphor. That the time that elapsed between the stabbing and the rubbing with the camphor was “ a few minutes.” Under these facts the defendant proposed to prove by a witness by the name of Harbuck that when the deceased was being bathed with camphor, he said “if he died and went to hell it was his own fault; that the boys were not to blame.” This evidence was excluded and the defendant excepted. The evidence further showed that from the place above alluded to he was carried to the house of a Mr. R. W. Wood, where he remained about two weeks, during which time he had divers conversations with Wood, in all of which he expressed the belief that he would recover. The defendant proposed to show by Wood that in one of these conversations the deceased had stated “that he did not want the boys hurt; that he was to blame; that the boy (defendant) was not to blame, that it was his own fault; that all he wanted was to catch them out some time and give them a whipping.” This evidence was excluded and the defendant excepted. The evidence further showed that the deceased died from the wounds received at the hands of the defendant. Various requests were made to charge, all of which were covered by the general charge of the court. The jury found the defendant guilty of voluntary manslaughter and recommended him to the mercy of the court. A motion for a new trial was made, upon the ground that the court erred in ruling the juror, Barry, competent, in the above stated exclusion of the testimony of Harbuck and Wood, and upon other grounds not material here. The motion was overruled and the defendant excepted.