Clarke v. State

• Decision Date: 14 December 1927
• Docket Number: 6188.
• Citation: 140 S.E. 889,165 Ga. 326
• Parties: CLARKE v. STATE.
• Court: Georgia Supreme Court

140 S.E. 889

165 Ga. 326

CLARKE v. STATE.

No. 6188.

Supreme Court of Georgia

December 14, 1927

Syllabus by the Court.

The court did not err in allowing a witness, over the objection of defendant's counsel, to testify that some time previously the defendant had threatened to shoot his wife. This testimony might tend, in the minds of the jury, to weaken the defendant's explanation of his sudden and hasty departure from the county in which the homicide was committed, for in his statement he said that he went to the place at which his wife lived to explain the matter to her.

The court did not err in sustaining the objection of state's counsel to the testimony of a witness who was asked as to "whether or not his testimony was substantially the same as that previously given before the coroner." It was shown that the statement made by the witness before the coroner had been reduced to writing; that it had been filed in court; and that the state's solicitor, had it there. If the defendant's counsel insisted that the witness' testimony before the coroner had not been correctly taken down, he might have asked the witness to restate as well as he could his testimony given before the coroner, and the jury might then say whether or not that testimony "was substantially the same" as that given in court.

The court did not err in permitting counsel for the state, in his argument to the jury, to "hold a pistol up that he had in court, and exhibit it to the jury for the purpose of examination, and allow them to hold the same." Although the pistol exhibited had not been introduced in evidence, and it had not been proved that this pistol was the weapon with which the homicide was committed, nevertheless any pistol might be shown to the jury for some legitimate purpose and be made the basis of some argument. If in his argument counsel made an illegal use of the pistol, the particular improper use to which he put it should have been designated in the objections as set forth in the motion for a new trial.

The court charged the jury in part as follows: "The state's contention is that the prisoner had been drinking to such an extent that he had been forbidden from the house of his father-in-law." This was not error, for the reason assigned, to wit, "that the condition of the defendant three weeks before the homicide could illustrate no fact or circumstance upon the trial of the present case, and was highly prejudicial to the rights of the defendant."

The charges excepted to in the eighth, ninth, and tenth grounds of the motion for new trial were not erroneous for any of the reasons assigned.

There was no evidence in this case under which the court was authorized to charge the jury upon the subject of confession.

Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.

Harold Clarke was convicted of murder, and he brings error. Reversed.

Beck P.J., and Gilbert, J., dissenting.

Robt. L. Colding, of Savannah, for plaintiff in error.

Walter C. Hartridge, Sol. Gen., and Julian Hartridge, Sol. Gen., pro tem, both of Savannah, and Geo. M. Napier, Atty. Gen., and T R. Gress, Asst. Atty. Gen., for the State.

BECK P.J.

Harold Clarke was convicted of the offense of murder, and was sentenced to life imprisonment. He made a motion for a new trial, which was subsequently amended, and upon the hearing was overruled. Clarke, upon the trial in his statement admitted that he had killed the deceased, P. E. Rowland, by shooting him with a pistol, but insisted that he had done so in self-defense. The evidence introduced, except as to the fact of the homicide, which was shown by the admission of the defendant, was largely circumstantial. There were no eyewitnesses of the alleged crime. There was evidence tending to show that the deceased was unarmed at the time, and evidence tending to establish the fact that the defendant had fled, though he subsequently surrendered himself.

1. In the first special ground of the motion for a new trial error is assigned upon a ruling admitting, over the objection of defendant's counsel, the testimony of a witness to the effect that some time previously the defendant had threatened to shoot his wife; the same witness having also testified that, at the time of the homicide, the defendant and his wife were living on good terms. The court did not err in admitting this evidence. The state had introduced evidence tending to show the flight of the defendant after the commission of the homicide, and in his statement he said that he was not fleeing at a certain time referred to by witnesses for the state, but that he went to Guyton to tell his wife. "I got to Guyton and explained it to my wife, and she said nothing was the matter; that I was only excited." The evidence admitted over objection was properly allowed for the consideration of the jury, and it was for the jury to say whether or not it tended to render improbable the defendant's explanation of the alleged flight.

2-4. The rulings stated in headnotes 2, 3, and 4 require no elaboration.

5. In the eighth ground of the motion for new trial error is assigned upon the following charge of the court:

"The state's contention is, that the prisoner, more or less under the influence of liquor, having these words of dispute with the deceased, drew from his pocket that pistol, and shot the deceased in the abdomen, and the deceased turned, and then that the prisoner shot the deceased in the back, and the deceased made his way some 50 yards from the road, and fell upon his face in a ditch, where he was found by two boys from Bethesda."

In the ninth ground error is assigned upon this excerpt from the charge:

"The state's contention is, that the prisoner and his wife were alienated; that some few weeks before he had threatened to kill her; that he had been forbidden from the house where she was living; and that his explanation is not true. On the other hand, the defendant's contention is that it is true. He insists that it was perfectly natural for him to have gone where his friends were, and that afterwards he returned to the city and gave himself up for trial."

And in the tenth ground the following charge is excepted to:

"The state's contention is, that that is not true; that what he stated in Guyton a day or so after the alleged homicide was an afterthought, a self-serving declaration, and, having fixed up (is the contention of the state) the declaration, then he comes down and submits himself for trial; and, when he makes his statement, the contention on the part of the state is that he makes his statement so as to conform to what he had said to Norton at Guyton."

These charges were authorized under the evidence, and were not erroneous for any reason stated.

6. The court charged the jury in part as follows:

"It is contended on the part of the state that this defendant made a confession. See whether he did or not. No confession, or alleged confession, can be considered by you, unless it first appears that a confession was made; that it was freely and voluntarily made; that it was not induced by another; and that it was not influenced by the slightest fear of punishment, or the remotest hope of reward. If you find that a confession was made, measuring up to this requirement of the law, then I charge you that it must be received with great caution, and that a confession alone, uncorroborated by other evidence, would not be sufficient to convict."

This charge is excepted to upon the following grounds:

"(a) It was not contended nor insisted that the defendant had ever made any confession. (b) While he had made an admission, that

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