Clarke v. State, (No. 6188.)

• Decision Date: 14 December 1927
• Docket Number: (No. 6188.)
• Citation: 165 Ga. 326,140 S.E. 889
• Parties: CLARKE. v. STATE.
• Court: Georgia Supreme Court

165 Ga. 326

140 S.E. 889

CLARKE.

v.STATE.

(No. 6188.)

Supreme Court of Georgia.

Dec. 14, 1927.

(Syllabus by the Court.)

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

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

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

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

Walter C. Hartridge, Sol. Gen., and Julian Hartridge, Sol. Gen., pro tern, 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 ad-mission 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 admission was in exact accord with the statement made to the jury upon the present trial, and made out a case of self-defense. (c) The action of the court in charging the jury the law of confessions was highly prejudicial to the rights of this defendant, and was wholly unwarranted by any of the evidence in this case."

In substance, the exceptions to the charge are based upon the contention that there was no evidence authorizing the charge upon the subject of confession. The majority of the court is of the opinion that this contention is sound. The witness Norton, introduced by the state, testified in part as follows:

"He [the defendant] said Rowland gave the $5 to Mr. Hamm, and he said that Rowland asked him for some money to get some whisky with, and he gave him a dollar bill, and Rowland came back, and they then went on towards Cedar Hammock to Thunderbolt, to Burnside, and going to Cedar Hammock, that at a place on Ferguson avenue Rowland demanded pay again, and he said, T have already paid you, ' and Rowland said, 'You have not.' He said, 'We will go back to Mr. Hamm and see about it, ' and on the way back they stopped, and Rowland went to get out to go across the road into the woods, and Rowland said, 'If I cannot get my pay one way, ' with an oath, 'I will get it another, ' and threw his hand on his hip, like I have mine here, and when he did he had his gun inside his coat. That is to say, Harold had his gun, that he had it inside his coat, and Rowland pulled his gun that way, and as he did he...