Atlanta tri-weekly journal. [volume] (Atlanta, Ga.) 1920-19??, 1922-07-15

discussing the charge with REFER
ence to punishment, he says:
Charge Not Erroneous
"No error was shown in this
charge. The jurors were left free
and untrammeled to fix the punish
ment according to their own will
Many cases might be cited where sim
liar charges were held not to be re
versible error. The instruction die
not limit the discretion of the jury
The court specifically informed the
jury that. they might consider any
( thing that they thought ought to b.
| considered as bearing upon the ques
ton of what punishment they should
fix"
Justice Gilbert then proceeds to
discuss in detail a long list of cases
cited on both sides of this point
He then, in summing up with ref
erence to this portion of the
charge, uses the following language
1--WE are reminded that human
life is involved. 1t is true that the
life of the accused is Immediately
| and vitality affected. But this must
not and cannot obscure the further
fact that the lives of millions OF
peaceful and law-abiding citizens
engaged in efforts to earn an hon
est living for themselves and their
| dependents, are menaced by gun
men and bandits intent upon I'm
lawfully obtaining their own ends
although the result be bloodshed
and the making of widows and
fatherless children.
"In the firm administration OF
| the law by the courts lies the only
protection to society. We confident
ly assert that no decision of this
court can be cited where the judg
ment of the trial court was re
! versed on a charge containing Ian
guage subject to so little, criticism.
Comments on Evidence
Justice Gilbert then reviews the
evidence in the case and com
ments thereon at considerable
length and with significant sever
ity regarding the nature of Du
Pres crime. He says:
"a case is rarely encountered
where there is so nearly no defense
The accused fcallouSly and of his
own volition, details a series Of his
crimes, including thefts from his
own kinsman, who had Hospitality
received him as a guest for the
night. After the homicide and be-
fore his arrest, he wrote letter
to The Atlanta Constitution for
publication, in which he complains
of the interception of his telegram
md of the loss of money occasion
ed thereby. With insolent bravadc
he repels the statement of the CHIEF
of Atlanta detectives that he was
in hiding, and says: I am not in
hiding, and do not intend to be-
Except where he says he was
sorry he had to shoot Mr.. West, but
l think he will mind his own bust
ness the next time nowhere does
he express regret or shame for tht
series of crimes which finally culmi
mated in the murder of Walker. He
was pleased to style himself The
Peachtree Bandit"
Justice Gilbert then remarks thai
any person who saw DuPre's theft
of the diamond ring and his effort tC
escape from the jewelry store had {
right to arrest him and to use what
ever force was necessary, and thai
this was true whether such perso
was an officer of the law or a private
citizen. Finally summing up, Justice
Gilbert uses this language:
1.-The instructions of the court tt
the jury were more favorable thar
the law required"
Dissenting Opinion
The dissenting opinion as to tn
admiSsibility of the counter affidavit:
above mentioned was written by JUS
| tees Atkinson and Beck. The dis
senting opinion as to the CORRECTNESS:
| of Judge Mathews charge with ref
erence to the punishment was writ
| ten by Justice Hines.
The views of the three dissenting
! justices as to the improperly ant
| incorrectness of the charge with ref
erence to the punishment are sum
med up by Justice Hines as follows
He. nowhere intimated to then
! that their right was unlimited AM
unrestricted. He did not tell then
that they could recommend the de
PENDANT for mercy with or withou
reason. He did not instruct then
that they could recommend solely be
cause they wished to do So"
| DuPre was represented in his tria
by Attorneys H. A Allen, L. H. Eos
ter and w. 1. Hayward. His cas-
was argued before the supreme cour
by Attorneys Foster and Hayward
Attorney Allen being absent on &C
count of illness. The states cas-,
was argued before the supreme corr
| by Solicitor Boylkin, assisted by AS
sistant Solicitor Stephens. A br;e
for the state also was presented b.
Attorney General Napier.
As soon as he heard of the de
! cision Attorney Allen, leading couu
! sci for DuPre, went to the office o
the clerk of the supreme court il
the state capitol and gave the de
cision a hurried reading. Attorne.
| Hayward arrived about the SAM
| time.