Stanford v. State

1. It is not a conclusion for a witness to state that the defendant was wrought up by certain conduct of the deceased. 2. A ground of a motion for new trial which does not present sufficient facts to enable the court to determine whether the admission of certain evidence constituted error, without an examination of the brief of evidence, presents' no question for decision. 3. Grounds of a motion for new-trial which complain of improper argument by the solicitor-general, and of the competency, bias and prejudice of jurors, and which set up newly discovered evidence, need not be considered, as the grant of a new trial on another ground renders their consideration unnecessary. 4. When the defendant sets up alibi as a defense, the burden of proof is on him to establish this defense, not beyond a reasonable doubt, but to the reasonable satisfaction of the jury. 5. An instruction which put upon the defendant the burden of establishing this defense to the satisfaction of the jury and to a reasonable certainty, imposed upon the defendant a greater burden than the law imposes, and requires the grant of a new trial. 6. Other than the charge upon the subject of alibi, we find no errors which require the grant of a new trial; and as a new trial is granted, we do not pass upon the weight or sufficiency of the evidence.

Indictment for murder. Before Judge Summerall. Bacon superior court. October 6, 1921. J. E. Dedge, Floyd Dedge, and D. Stanford were jointly indicted for tbe murder, on July 10, 1920, of C. J. Meddows, in the county of Bacon. The defendants were tried separately; and Stanford was found guilty, with a recommendation. His motion for a new trial was overruled, and he assigns error on that judgment. The evidence for the State was as follows: C. J. Meddows, the .deceased, between nine and ten o’clock at night on July 10, 1920, was shot in the back in front of his place of business in Alma, there being seven or nine shots found in his person within a diameter of six or seven inches, from which he died. Stanford and Floyd Dedge were in Alma on the afternoon of that day. Floyd Dedge had some repairs made on a Liberty-Six automobile at the garage of E. E. Jarmans. The repairs were made by W. E. Holton. The tires on this automobile were nonskid. Floyd Carter saw an automobile coming from Eockingham and going in the direction of Alma on the night of the 10th of July. It came down the lane from Dave Pittman’s. Two roads come in a northern direction from Eockingham. One comes in at the lower crossing right at the schoolhouse, turns there and comes to Alma. This automobile came down the road there at the schoolhouse, turned and came towards Alma. It came from towards Dave Pittman’s home. There is a road up there that goes on over to Dr. Dedge’s farm. There was but one light on the front of this automobile, and no rear light. There were two separate automobile tracks in the road down there. One track turned up further towards Rockingham than it did when the car was going the other way. It was drizzling rain. One track was a little bit dim from the rain. .From this fact one could tell which track was freshest, which was the one going back. One track came towards Alma, and the other went back. Both were the same, and made the same kind of tread. It was about 8:30 p. m. when Carter saw this automobile. An automobile with only one headlight was seen being driven around the streets of Alma that night. One side curtain was up on this car. There were three people in it, two on the front seat and one on the rear. This car passed the store of the deceased three times, and every time it was thrown out of gear and rolled on. The shooting was at the third time it passed the store and was slowed up. The gun fired from the rear seat of the car. After the shooting, the car went right straight on down the street until it passed Eabonwitz’s building, and turned down the left street. The witness G. W. Courson, who saw this car as it passed the store of the deceased on these occasions, did not recognize any of the defendants as being in it, although he was well acquainted with them. Dr. Dedge was about six feet tall. The men in this car looked to this witness to be small men. The three defendants were seen, according to Johnnie Altman, a stepson of the deceased, sitting in an automobile in Alma that night — Floyd and Dr. Dedge on the front seat, and Stanford on the back seat. One curtain was up by the front seat, but none by the back. All the store lights were shining. One light of the automobile was on. John D. Johnson testified, that D. Stanford was in Thompson’s restaurant in Alma the night of the homicide. A car drove up in front of the restaurant about the 'time he came; or just a short while before he came in. After he went out he stepped back to the car. This was twenty minutes or more before the deceased was killed. Jell D. Flowers testified, that he was fifty-four yards from the scene of the homicide. Heard the sound of the gun. The shot that killed the deceased was fired from near the automobile that was in front of his place. The automobile came from the direction of the depot. It was moving slowly toward the place of the deceased. At the time the gun fired it was right in front of the deceased’s place. After the gun fired they drove on up to Babonwitz’s corner and turned down Decatur street. It did not have any rear light. The automobile was close to the sidewalk. There were two tracks. One was the track of this particular car. We traced it on out. The shooting occurred not earlier than nine o’clock, probably between nine and nine-thirty at night. W. H. Abbott testified, that he Avas in Alma the night of the killing. Saw the light of the gun shooting. The gun was fired from the car. Saw the car before the gun fired. It was going across the street from Young’s wholesale house. It was running a moderate speed. When it got in front of deceased’s store a gun fired. The automobile then moved on swiftly. The wife of the deceased testified, that the defendant Stanford came to her house three or four weeks before her husband’s death, and tried to get her husband to go off with him. He told her husband that Dr. Declge was gone, and that he and Floyd had his car. He wanted her husband to take his gun. This was after ten o’clock at night. He told the deceased to get ready. The defendant asked the deceased what he Avas doing in bed at that time of night, and the deceased told him it was time everybody was in bed. Finally, the deceased said he couldn’t go with him. In about three weeks the defendant came back, trying to get the deceased to go again, and said they would carry him and bring him back. They said they just wanted him to go and ride around with Jim. This was on Friday night before the deceased was killed the next Saturday week. It was late in the night. They had all retired. On that night the defendant wanted the deceased to go with him to marry a couple, and the deceased said, “ No, bring them up here.” The defendant said there were other parties that would interfere, and told the deceased to get his gun and come on. The deceased told him he couldn’t go, that he couldn’t go off and leave his wife, Avho was sick. That was the third and last time. The deceased lived on Dr. Dedge’s farm from May, 1914, to November, 1919. The defendant lived at Dr. Dedge’s place two or three years while the deceased was there. The deceased was looking after Dr. Dedge’s property. The deceased rented the defendant a portion of the land that the latter rented. The defendant and the deceased lived there together, and got along “perfectly peaceful.” When the defendant first came to the home of the deceased he wanted the latter to go off with him, to just ride around. The defendant said he would carry the deceased and bring him back. Defendant was a friend of the family of the deceased. The defendant never showed any disposition to hurt any of the family. There were never any hard words between him and any of them. This witness said she was afraid to trust him. There was some feeling because Judge Meddows handled some claim against the defendant, the foreclosure of a lien on a horse. “They” had a mortgage note on the horse. The defendant got wrought up about it. She knows that the defendant was mad with the deceased about it. The deceased, as justice of the peace, had a mortgage note on a horse of the defendant. Never heard the defendant make any -threats or say anything out of the way to the deceased on that account. The way they acted about paying the note would show anybody that they were mad. The defendant did not come to make any arrangements about it. They had trouble about it. A. IT. Carter testified, that in July, 1920, he was living in the Meddows building in Alma. On Friday, night before the killing the next night week the defendant came to Mr. Meddows’ home. It was just about eleven o’clock at night. Witness and the deceased both lived in the upstairs of this building. Witness was standing right out near the door when the defendant passed him. The defendant did not speak to him until after he had passed the witness. When the witness spoke to the defendant the latter spoke back. It seemed like the defendant changed his voice or something or other. The defendant turned his head kind of from him, it looked like. Witness does not know what passed between the deceased and the defendant on this occasion. There was nothing in the defendant’s acts or conduct to indicate that he went up there for any purpose that was wrong, that the witness knows of. Witness thought a little strange , of the defendant passing him at that time of night without speaking. Thinks anybody would have seen him. A man couldn’t help seeing him. When the witness spoke he said, “ Hello, D. Stanford,” and the defendant said, “ Hello there, Alvie.” J. N. Brown testified, that lie made an investigation of the automobile tracks, at the place of the homicide. He followed the tracks from the front of the door where the deceased was shot. It was a peculiar track. Followed it across the creek and below Bockingham a piece. The track left the scene of the homicide, went to the corner of Babonwitz, turned down the next street by witness’s house, turned to the right street, and crossed the bridge over the railroad. It took the highway from there on towards Bockingham. At Bockingham it turned to the left road at the church, and went from there to a little road out near Dave Pittman’s, turned to the right through a little dull road, went into the other road at the corner of Dave Pittman’s field. Witness didn’t proceed very much farther below Pittman’s before he stopped. At that point where it turned into that road that night he saw where a car had struck a lightwood stump. Saw Dr. Dedge’s Liberty-Six car the next day. He drove the car in. Saw some sign on that car. It had apparently a lick on the right side of the car. The frame was bent in a little. The cuff that holds the spring to the axle was hit and had given away a little bit. There was some wood on the cuff. There was a grease cup short on it. This track was a Firestone non-skid tire track. It was a reasonably large tire. The car that Dr. Dedge was driving the next morning was a big car. It was a five or seven-passenger car. The tires on this car were a non-skid Firestone. This track was made by that kind of tire. Witness swears positively that this track that he picked up at the scene of the homicide was the same track that he traced to the point as far as he went; does not know how near he went to the home of Dr. Dedge; did not see the car that made the tracks which he followed. It was a short time after he heard the shot that he began to make investigation of the track. The non-skid Firestone tire is a common tire in this country. J. S. Thomas, deputy sheriff, testified, that he was in Alma the night of the homicide, heard the shooting, and went to the scene. Tracked an automobile that night, and picked up the track in front 'of the store where the deceased was killed. It was a track that was easily distinguished from other car tracks. It was a nonskid Firestone. Followed it to Dr. Dedge’s home. The tr$,ck left the store, went to the second street going north, turned in an east direction, went two or three hundred yards, turned back another road, crossed the railroad, crossed at the railroad bridge at the depot, struck the public road there, and went in.an east direction; went to the edge of Rockingham, at the schoolhouse or church, turned to the left, went in 'a north direction for something like a half mile, and turned back in an east direction, where it left that road from Rockingham going north; it turned into a right-hand dim road, went on across that dim road into the far corner of Pittman’s field, struck the older plainer road and went on from there to Dr. Dedge’s home. Found the car in Dr. Dedge’s garage. The track that he started from the store was the same track that went on to Dr. Dedge’s garage. When we found that car in Dr. Dedge’s garage, we went to the house and called him up. “ When we turned out on the road going up to Mr. Pittman’s to take this dim road, I saw a stump there that had been struck with a car. It was a fresh track. When the car struck the stump the right-hand wheel ran up on some good large roots that run out from the stump, and lifted up the axle a little to where it slipped up on the stump, and slid until the springs struck the sharp part of the stump and went on until it fastened itself. It had to stop. I saw the car at Dr. Dedge’s. It was a Liberty-Six car. Saw evidences on the car where it had hit something. There was a fender, and there was a bolt through the end of the spring in that fender that held them together. The end of that bolt had been knocked off, and. the fender was torn off from the end of the spring. The end of the' bolt had been knocked off. That was a fresh break. There was a sign on the bottom of the axle where it had skidded on that stump.” Never did see that Liberty-Six car after a clay or two after the homicide. At that time the defendant D. Stanford lived about three or four hundred yards from Dr. Dedge’s. This car that they tracked that night went by the home where the defendant lived, something like fifteen steps to the door. Didn’t know anything about the track followed that night until somebody pointed it out to him. Going over this track found where other tracks had crossed it. When they crossed the railroad-track there was another car that had crossed this one, backing to. Only one or two car tracks had crossed this track from the time he picked it up until he got to Rockingham. It is a public road from there to Rockingham and is traveled a great deal. • G. A. Taylor testified, he was in Alma the night the deceased was killed. Heard the report of the gun. Saw two or three automobiles immediately after the shooting. Saw one across the bridge. This was three or four minutes after the shooting. It had only one front light. The car crossed the bridge and went east down by the side of the railroad. It had no rear light. It was a rather large car, and the curtains were up on one side. After it got up on the bridge it seemed to pick up speed pretty well. Don’t know who was in the car. Saw some other ears. One was going in the same direction as this car was. It had two lights, it was a Ford. B. B. Johnson testified, that he was employed by the Alma Mercantile Hardware Co. He sold the defendant some buckshot shells about ten days or two weeks prior to the homicide. They were H. S. black shells. There were nine shots to the shell. There are 0, 00, 1 and % grades. Those were 0 buckshot that he sold the defendant. For the defendant, Clifford Johnson testified, that he remembered hearing of the occasion of the death of Jack Meddows. Knew Dr. Dedge prior to that time. “ At that time I had a Buick roadster of Dr. Dedge’s, and had let him have a Liberty-Six touring-car. They were figuring on a trade. I loaned him this Liberty-Six ; got it back a week or ten days after the homicide. There was a regular little grease cup on it, like there is practically on any other kind of car. Biley Mebbers testified, that he remembered the night the deceased was killed. Left Alma that afternoon, right about coming of dark. Went the road leading from Alma to Bockingham. Aaron Johnson overtook him while he was going in that direction. Johnson overtook him right this side of the negro church on this side of the bridge. Johnson passed him, and drove on down the road. He did not go to Bockingham. Turned off at the ford of the branch the other side of the bridge. ’ Henry Harvey testified, that he remembered when the deceased was killed. Was at Alma the time he got killed. Had been there about two hours when he got killed. Arrived a little after dark.Came from Bockingham. Met Aaron Johnson on the road, right at the curve of the road across the creek at the bend where you take the old Baxley road. He was traveling toward Bockingham. At that time he lived over at the Dedge farm. Johnson lives about a mile beyond where he met him. Mrs. Aaron Johnson testified, that at the time of the death of the deceased she lived on Dr. Dedge’s farm. Aaron Johnson was at home part of the day, and then went to Alma. He got back about nine o’clock, she supposes, to Dr. Dedge’s house. He stayed there about an hour or a little over, and then they went on home. He did not come back to Alma that night. ' He stopped at Dr. Dedge’s house. She was over at Dr. Dedge’s that afternoon. Went there that evening about sundown. Went over to cook supper for them. The doctor was not at home when she went there, but he came in a few minutes. He got there just about dark. Floyd came with him. When they got there'they stayed around the house and played music. They ate supper. They had just eaten supper when her husband came. She was cleaning the dishes. They all stayed in the house and played music until a little after ten o’clock. After ten o’clock she and her husband went home. Martha Stanford testified, that she was seventy-four years old. The defendant is her son. Remembers the occasion when the deceased was killed in Alma in July last year. That was Saturday night. Heard of it the next morning. At that time she lived near Dr. Dedge’s building where he stayed, just across the creek. She and her son lived over there. He stayed at home all clay. He had breakfast, dinner, and supper there. He stayed in the house pretty much all day. He went over across the creek where a darkey was working for him, late in the evening. He came back pretty quick. They ate supper at their home. They had. supper just about time daylight shut down. After they had eaten supper he went down to the barn, but never stayed over ten minutes. It was sprinkling rain. There is one chimney to the house, and he had a bad spell in the winter, and he moved his bed in there to have the advantage of the fire, and they were both in the same room. She layed down pretty early that night so that she could rest. He just stayed there and read until he got sleepy. She had not gone to sleep when he retired. She never went to sleep until late in the night. Couldn’t sleep more than half of the nights in those days. She is certain he never left that room that night. — Cross-examination: The defendant came to Alma that Saturday. He was in Alma the previous Saturday. He almost always comes orrt to Alma on Saturday. This particular Saturday she knows he did not come back, because it was raining. Floyd Dedge testified that he was in town on the day when the deceased died. It must have been about eleven o’clock or eleven-thirty when he arrived. Dr. J. I. Dedge came with him. Came in a Liberty-Six automobile. Stayed here three hours before he left, and went back home. Went home about two o’clock. Nobody went with him. Dr. Dedge stayed in Alma. He is a dentist, and worked here in town. Witness didn’t carry him back. He came back to Alma a little before sundown. It wasn’t night. Nobody came with him. When he rolled up his uncle got in the car, and they went back through Eockingham, and from there on to Dr. Dedge’s home. When he arrived at Dr. Dedge’s home he found Mrs. Aaron Johnson there. She was there cooking supper. He and Dr. Dedge didn’t go back to Alma any more that night. He did not sit in that car down here by Young’s warehouse at the steering-wheel of that ear with Dr. Dedge and the defendant. Saw the defendant that afternoon, at Dr. Dedge’s home. • That was just a little after we arrived there, going back from there that afternoon on the second trip. Witness was jointly indicted with his uncle and the defendant for the murder of Meddows. When Aaron Johnson got to his house witness had had supper. Mrs. Johnson had finished cleaning up the dishes. He came right in and got his wife and children and went right home. He saw “ us aE ” there that night. That was after nine o’clock. Aaron didn’.t eat supper there. He didn’t go in the house, sit there, and play the graphophone about an hour. The children and the witness played the graphophone before he came. Leon Wheeler testified: He does not recall the date the deceased was killed. Eemembers the occasion. Got to town that afternoon about two o’clock. Went back home part of the way with Johnnie Altman and Mr. Johnson until they turned off, when he got out and walked on home. Does not know exactly when Johnnie and he left there that afternoon. It was after dark. It was after the train came. J. H. Gordy testified: On the afternoon before that homicide occurred he was in Alma. He came about two o’clock. -He expected to meet the defendant here. Wanted to see him. Did not have an engagement with him, but expected he would come over here. Walked up and down the street looking for him. Hung around Barnett’s store and told Mr. Barnett to tell him, if he saw him, where he would find witness. Kept noticing to see if he came in. Never did 'see him. Mr. Barnett’s store is a two-story building on the right. Bill Joe Gordy testified: I was in Alma on the afternoon before the death of Meddows that night. Arrived about twelve-thirty. Made a search for the defendant, after I got here. Looked for him from the time I got here until I left that evening just before sundown. Went from one street to the other looking for him. Didn’t see him that afternoon. Clayton Holland testified, that he was crossing the railroad on the night the deceased met h'is death, right back of Mr. Young’s warehouse. Was right about the corner of it when the gun fired. “ Don’t know hardly how far it was from me over to the deceased’s place. His place was on the opposite side of the street from me. Just as I crossed the railroad there were two cars passed over there. When I heard the sound of the gunshot I looked down that way. Saw some cars about the deceased’s store. Saw two. Couldn’t say what kind of cars they were. They were larger cars than Fords. There was one kind of over on that side of the street, about one car-length ahead of the other, as well as I could tell. They were brought over on the side of the street next to the deceased’s store. One was further over than the other. Couldn’t tell from which one the gun was fired. Don’t know whether it was from the front one or the back one.” Mrs. Willie Carter testified: She was at home on the night of the death of the deceased, in Bockingham. Saw a car pass her house that night, going toward New Lacy. It was a quarter to eleven, by her time. This car went on down and crossed below the depot on the public road from Alma to Bockingham. The defendant made a statement in which he denied having any connection with the killing of the deceased, and declared that he was not in Alma on the night of the killing. He denied that he entertained any bad feeling towards the deceased. J. S. Lee testified: The latter part of May or the first of June, 1920, he went with the deceased to the defendant’s house. Went with the deceased in his car. Saw the defendant. Stayed there something like an hour. The defendant and the deceased had a conversation. This conversation "was out of the presence of the witness. They went out of the house together, and were gone about an hour. For the State, in rebuttal, Gaston Courson, recalled, testified that he knows D. Stanford. Saw him Saturday that the deceased was killed. Saw him in the afternoon some time at Jarman’s garage. On the former trial he testified that he could see the glimpse of three people in the car, two in the front seat and one in the rear. As a matter of fact he does not know who was in the car. Couldn’t say whether it was these defendants at all. G. B. Johnson testified: Was in Alma the night the deceased was killed. Left before the shooting. Saw Leon Wheeler. At the time Leon Wheeler was at the deceased’s store, Johnnie Altman was there. He was there when witness went back. Witness met the passenger-train, and when he went back Johnnie was gone. Leon was there at the deceased’s store. It was something like four or five minutes before Johnnie came. Mrs. Emma Meddows, recalled, testified: She knows Leon Wheeler. He came to the store of the deceased that night. “ Johnnie Altman is my son. He was there at the time I got supper ready. I asked him where Mr. Johnson, his father-in-law, was, and he said he was in town. I said, * Get him, have him come to supper.’ Johnnie was gone a pretty good bit. Mr. Johnson came before he came back. Leon Wheeler did not go with him. He was sitting on the bench in the front part of the store. B. C. Wilson testified: He was in Alma the day the deceased was killed. The sun was about an hour and a half high, or something like that, when he saw the defendant in front of the post-office. Lee Mercer testified: Saw the defendant the afternoon the deceased was killed. “Don’t know just what time I saw him, but it was not much more than an hour by the sun.” Saw him down at the Hurricane Bridge. He was coming to town. Witness was going home. D. S. Pittman testified: “It is about a,mile from where I live to where Dr. Declge lives. I and a fellow were walking down the road towards Bockingham. We found a stump out there that looked like it had been hit by something. Didn’t find any evidence of where the stump had been hit with anything that I could tell. Louis Baines picked up a piece of metal by the side of the stump. It looked like steel or iron. It was about the size of your thumb. It was round looking.” Floyd Carter, recalled, testified: Saw the defendant in Alma the day the deceased was killed, right about an hour by sun, or a little later, out there going across from the front of Jarman’s Hardware store towards this restaurant building. Clarence Carter testified: I was at this stump near Mr. Dave Pittman’s where it is claimed an automobile hit it, on the occasion when Mr. Dave Pittman and Mr. Louis were there, but they were there before I was. I saw it. It was a grease-cup on an automobile.