Newton County GaArchives News.....DEATH SENTENCE AFFIRMED April 4 1873 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/ga/gafiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Phyllis Thompson http://www.genrecords.net/emailregistry/vols/00011.html#0002524 September 6, 2004, 9:12 pm The Georgia Enterprise The following decision of the Supreme Court of Georgia, in the case of CHARLES KELLY, of Newton County, applying for a new trial, is of sufficient interest, we think, to justify its publication in full, therefore we copy the authentic report from the Atlanta Constitution. Charles Kelly Vs. The State. Murder and motion for new trial, from Newton. McCay, J. Charles Kelly was tried at the December Adjourned Term, 1872, of Newton Superior Court for the murder of WILLIAM H. HARDMAN, and found guilty. A motion was made for a new trial on two grounds: 1st, That the Court had erred in admitting as evidence against the prisoner for using opprobrious words, etc., against the deceased, on which some months before the killing, he had been tried, found guilty and punished. 2nd, That the verdict of guilty by the jury was strongly and decidedly against the evidence. The Judge overruled the motion and the prisoner excepted. It was in proof before the Jury, in behalf of the State, that the killing was done on the 19th of August, 1872, in the evening, shortly after dark, that the deceased was shot by an assassin as he stood in or near his own door, from a clump of plum trees on the opposite side of the road from the house. It was further in proof that the prisoner had for some time before entertained feelings of strong enmity to the deceased, that in fact before the killing, he had gone to the defendant's house, which was a mile and a half from prisoner's, and stealthily shot the two legged dog in his own yard. That at another time he told Knight he did not want to do it, but if Hardman bothered him he would kill him, that again he had said to him, next time he would kill the two legged dog. That in the winter or spring before the killing, one Haney had heard prisoner say he intended to put Hardman out of the way with these or something longer, putting his hand where he usually wore his pistols. That at the May term of Newton Superior Court he had been tried and found guilty and punished for having in May, 1871, used to, of and in the presence of Hardman, opprobrious words, to wit; you are a damned liar and a damned coward; and that as he was returning home from the trial, he had said to one Crawford that he had been advised to kill Hardman, but there was a better way; and again, that he never would be satisfied until he tried him with these- putting his hand on his pistol. That in June before the killing he had threatened to kill deceased in presence of Mr. Callahan, and to the same he had, at another time, said- speaking of deceased- "I will shoot his damned heart out." shaking his pistol in his hand. "I told Tom Osborn so this morning." That about a month before the killing, on hearing Mr. Bobo declare that if Hardman said to his face what he had heard, he would kill Hardman or Hardman should kill him, he offered to aid Mr. Bobo in killing deceased. That about three weeks before the killing, he had said to Mr. Gregory that he would take a stick and beat deceased till the life was only just in him, and that he would keep his pistol at his head whilst he was doing it. And that on the very day of the killing, having shot a dove, as he was reloading his gun, he had said to Mr. Callahan (to whom he twice at other times on previous occasions said he intended to kill Hardman) that he was loading his gun this time for bigger game than he usually shot at. It was further in proof that in tracing the track of the assassin it was found that he wore a No. 7 or 8 shoe, and that one of the shoes probably the right, though this was uncertain, had a hole in it so that the big toe and the one next to it made an impression on the soft earth. From the evidence in the record it is fair to infer that this mark of the toes was made when the assassin was crawling, dragging his feet behind him, and when he was running, though from the record this is not clear. It was in proof by Mr. Boyd that on the fourth day after the killing, the prisoner's father's, that prisoner had a pair of shoes which he often wore, having such holes, though from Boyd's statement the hole was only in the upper leather and not in the sole. _____ _______ ______ _____ _________ ____ _______ _____ ____ _____ ___ ____ ___ ___ ________ whether any warrant had been issued that he had told the juryman he had heard they were going to arrest HIM, prisoner, and hoped if he heard of any such warrant he would let him know. It was also in proof that a note had been written in the grand jury, trying to cast suspicion on Mr. Bobo, and on a man by the name of Davis, from certain threats it was supposed they had made. Bobo admitted saying to the prisoner that if Hardman said to his face what he heard, either he or Hardman should die. Davis denied any threats or any ill will in Hardman, and Bobo said he had seen Hardman and found he had not so said, and all was well with them. There was evidence that this note was in Kelly's handwriting, but there was also evidence of the prisoner's brother contradicting this. There were also papers in evidence to enable the jury to make a comparison of hands. But the record contains only copies of these and we do not know their effect. On the other hand it was in proof by prisoner's brother, his male and female cousins, and by his sister that he was at home, a mile and a half or two miles from the scene of the tragedy at the very time it was proved to have occurred. This was also proven by a man named Jeffries, and his, Jeffries', mother, who lived only 250 yards from the house of the prisoner's parents, and with whom he was at that time boarding. His brother and sister and female cousin testifying they heard him and young Jeffries talking and laughing and the male cousin saying he saw him through the door of Mrs. Jeffries house standing by the table at the time was marked by the rising moon, the killing also taking place just as it was rising. Jeffries and mother both declared that prisoner was at their house from before sundown till bedtime and had gone to bed on the floor, and the old lady that 1 1/2 hours, she staid up, having prisoner in sight all the time. Jeffries and his mother were proven by several witnesses to be of bad reputation and not worthy of belief in a Court of Justice. The sister was attacked for the same reason; the evidence of the nephew was open to some strictures as to the probability under the circumstances of seeing a man after dark at the distance of 150 yards, inside of a small house with but one room, and no windows, through the open door, there being no proof of any light, while the brother was shown himself to have made threats as to deceased and to have refused to go to his funeral as that of a damned dog. We have given to this case the greatest consideration. 1. We think there was no error in admitting the record of the indictment and conviction for the opprobrious words. It went to show a motive and to explain the threats and words of the prisoner. 2. The corpus delecti was admitted or incontestably proven. The only question for deliberation was whether the prisoner was the assassin. It is impossible to say that there was not a good deal of evidence going to show that this foul deed was done by him. His deadly enmity to the deceased , his reckless audacity in shooting the dog, and in cursing the deceased to his face, his constant threats, reported in various forms, to different persons, that he would kill deceased, culminating, as they seem to have done, only a few hours before the killing as he was reloading his gun, by his declaration to Knight, to whom he twice before declared his purpose to kill, that he was now loading his gun for bigger game than he usually shot at. Add to this, the coincidence of the shoes, the hole in the shoe exposing two toes, even though weakened as this circumstance is by the uncertainty as to whether it was the right or left foot, and supplement these by his singular and unexplained apprehension that a warrant would be issued for him before any accusation was made, and his subsequent attempt to direct suspicion upon Bobo and Davis, and we have presented a series of facts pointing to him with terrible ____ as the guilty man. It is true, there is another side of the evidence of the alibi, if we were a jury, we should feel deeply perplexed by these conflicts of evidence. But we are not a jury. The facts of _____ on ______ for the decision of the jury, even though a human life hangs on the decision. This Court can and will interfere when there is a want of evidence, so as to show that the jury have noted from passion , prejudices or mistake, but if no rule of law he violated, and the case be one where an honest mind may fairly come to the result, at which the jury has arrived, and if the Circuit Judge, who, with the Jury has heard the tones and seen the faces of the witnesses, and who under the law has and is bound by his oath to exercise, in certain defined limits, a discretion to grant a new trial; if he refuse, this Court has neither the power under the law nor the inclination to interfere. Unless the verdict be illegal, the result of passion, heat or mistake, and nor the honest judgment of fair minds upon testimony, this Court, which corrects only errors of law, has no right to interfere. We think the evidence in this case is of such a character that we cannot say that the presiding Judge committed an error in refusing a new trial, and so thinking we affirm the judgment. A. M. Speer, J. J. Floyd, for plaintiff in error. L. B. Anderson, Clark & Pace, T. B. Cabaniss, Solicitor General, represented by Peoples & Howell, for the State. The Supreme Court then passed the following judgment; "This case came before the Court upon a transcript of the record from the Superior Court of Newton County, and after argument had it is considered and adjudged by the Court that the judgment of the Court below refusing to grant a new trial, be affirmed, and it is further ordered and adjudged, that when this judgment is made the judgment of Newton Superior Court, the presiding Judge do then proceed to sentence the prisoner according to his wise discretion under the provisions of section 4257, of Irwin's Revised Code, according to the evidence as it appears from the record." The section of the law referred to by the Supreme Court vests a discretion in the Judge of the Superior Court, in either inflicting the death penalty or imprisonment for life, the conviction of the defendant being found solely on circumstantial evidence. Additional Comments: The blank lines are for words that were unreadable. 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