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Old News Stories
Harper's Sentence Commuted to Life, 1909

From The Constitution
Atlanta, Ga.
Oct. 22, 1909

DEATH SHADOW FINALLY LIFTED
IN HARPER CASE

Governor Brown Commutes the

Death Sentence to Life Imprisonment

_____________

AFFIDAVIT BY FOSTER
INFLUENCES GOVERNOR

The Only Eye-Witness to the Killing of
Sheriff Ben Keith Swears That Keith Did Not
Give Harper Reason to Know He Was Sheriff.

John Harper will not hang in Murray county today. The gallows was ready and the sheriff of Murray county was in Atlanta yesterday to conduct his prisoner back to the scene of his crime, but Governor Brown intervened and commuted the sentence to life imprisonment.

Inspired to take this course by the affidavit of Carl Foster, the only eye-witness to the tragedy, Governor Brown accepted the view of Chairman G. E. Hutchens, of the prison commission, and of Justice Holden and Justice Evans, of the supreme court. Before the case finally reached the chief executive, all three of the above officials had held that, in view of the statement of Foster, the condemned man was not legally guilty of murder. Harper contended he acted for the protection of his life from one about to commit a felony upon him.

Story of the Killing.

Harper killed Sheriff Ben Keith while being pursued for another murder committed in Fannin county. Sheriff Keith met Harper in a dark road at night, and commanded him to throw up his hands, and without saying who he was or what he wanted, fired on Harper and pursued him 200 yards. Harper then turned and fired on his pursuer, fatally wounding him.

In view of the governor's action, Harper will spend the remainder of his life in the penitentiary. Should he ever be pardoned by any subsequent governor, he must face trial for his original deed in killing a boy in Fannin county.

When told of the commutation of his sentence to life imprisonment, Harper, standing in the shadow of the gallows, exclaimed Well it could have been worse.

Among those who have worked most actively in behalf of Harper, were his attorney, Sam Hewlett, of Atlanta, Mrs. (Name illegible) of the Kings Daughters, Miss Smith of the Second Baptist Church, and Dave B. McAllister, of the Electrical Construction Company. All of them testified in Harper's change of heart and said that he had been truly converted and would devote the remaining years of his life to better deeds.

Order of the Governor.


The order of Governor Brown commuting Harper's punishment to life imprisonment, follows:

"In the consideration of this case, I find that it has been passed upon by the supreme court of Georgia twice. The first time Judge Beverly D. Evans delivered the opinion of the court and the second time Judge Horace M. Holden delivered the opinion. In a letter written by Judge Evans to the prison commission, August 12, 1909, concerning this case, he says, "I think the circumstances attending the trial and the facts establishing the homicide will warrant a commutation of the sentence. The state did not produce the sole eye-witness after the solicitor general in his opening address had said he would prove the crime by eyewitnesses. This witness refused to discuss the case with the defendant's attorneys, as developed in the extraordinary motion for new trial, if his testimony had been considered by the jury there is a strong probability that they would have recommended life sentence.

In a letter written by Judge Holden a few weeks after the above letter of Judge Evans, Judge Holden says, "The circumstances attending the trial of the case will warrant a commutation of the sentence in my opinion. The jury upon the trial of the case did not have before them for consideration the important testimony of the only eye witness to the homicide.

The eyewitness above referred to since the trial has made affidavit to the effect that the sheriff whom Harper killed did not give Harper reason to know that he was the sheriff when suddenly he sprang from a place of concealment and shouted to Harper, "Hold them up," referring to his hands. He, the eyewitness further says, Keith (the deceased) shot several times as he pursued Harper. Finally after he had run some distance, about two hundred yards, Harper turned and shot at Keith.

Harper contends that he was surprised by a person endeavoring to commit a felony upon him and acted accordingly.

Two of the jurors made affidavits concerning the statements made in the affidavit referred to wherein each juror said that had he heard at the trial the statement made in the affidavit, he would not have convicted the said Harper of murder nor would he have agreed to a verdict of murder in said case.

It is more probable, therefore, had the solicitor general introduced the eyewitness, as he informed the jury he would do upon the opening of the case, the verdict of the jury would have been different.

This case finally comes to the executive office, with two members of the prison commission declining to recommend clemency while the third strongly urges by way of argument executive clemency to the extent of commuting the sentence from death to that of life imprisonment.

Under the above conditions I regard it as a most proper exercise of executive clemency to commute the sentence to life imprisonment. It is therefore ordered that the sentence of said John Harper be commuted from death to imprisonment in the penitentiary for life.

JOSEPH M. BROWN
Governor
By the governor.
Charles C. Brantley
"Secretary Executive Department"

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