McCloud v. State, 6501.

CourtSupreme Court of Georgia
Writing for the CourtHINES, J.
Citation143 S.E. 558,166 Ga. 436
PartiesMcCLOUD v. STATE.
Docket Number6501.
Decision Date17 May 1928

143 S.E. 558

166 Ga. 436


No. 6501.

Supreme Court of Georgia

May 17, 1928

Rehearing Denied June 13, 1928.

Syllabus by the Court.

The refusal of the judge to give to the jury certain instructions as requested by counsel for the defendant does not require the grant of a new trial, where these instructions, so far as they were correct and applicable, were fully covered by the general charge.

Generally, a trial judge errs if he treats an inculpatory admission made by a defendant as a confession, and gives to the jury the law relating to confessions.

(a) If a defendant makes an extrajudicial statement in which he admits the commission of a homicide, but couples the admission with a statement of facts which excuses or justifies the homicide, such statement is not a confession, and the trial judge errs if he charges the law relating to confessions.

(b) Where there is evidence tending to show that the defendant admitted the killing, and he states no circumstance of excuse or justification in connection with such admission, the trial judge does not err in charging upon the subject of confessions.

(c) Where a defendant charged with murder makes a statement out of court, in which he admits that he committed the homicide because of certain facts which furnish no legal excuse or justification, such a statement amounts to a confession, and authorizes a charge of the law relating to confessions.

(d) The sheriff of the county in which the homicide was committed visited the defendant in the jail of an adjoining county, and during such visit asked the defendant if he wanted to talk with him about it. The defendant replied, "Yes," that he wanted to confess and get right with God, that he killed the deceased, and told the sheriff that the homicide occurred in this manner: The deceased, a policeman, overtook defendant on Broad street, and wanted him to go back to the restaurant; where he had had some disturbance. He started back with the policeman, and told him that he (defendant) was not the man. He walked on back up to Market and Clark streets with the policeman, stopped, and told him that he (defendant) was not the man, and that he was not going any further. The policeman said, "Yes; you are, God damn you, go ahead;" and reached for his gun. When he reached for his gun, the defendant shot him once; he staggered, and defendant shot him again; and, after the policeman fell, the defendant did not know how many more times he shot. Held, that such statement by the defendant that he killed the deceased under the circumstances named furnished no legal excuse or justification for the homicide, amounted to a confession, and authorized a charge of the law relating to confessions.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Confession.]

Where, under the undisputed evidence and the voluntary statement of the defendant last referred to, the defendant had been arrested by the slain policeman for violations of the ordinances of the city in which he was a policeman, and was in the custody of the officer at the time of the homicide, the court did not err in instructing the jury that there was no dispute about the fact that the defendant was in the custody of the slain officer at the time the homicide was committed.

Error from Superior Court, Decatur County; W. V. Custer, Judge.

Medie McCloud was convicted of murder, and he brings error. Affirmed.

Medie McCloud was indicted for the murder of S. B. Arline in the city of Bainbridge, on October 14, 1927. Arline was a night policeman of said city. There were three wounds on his person. One went through his left hand. This wound indicated that he must have been holding something at the time the bullet struck this hand, which was down by his side. Another wound was about midway the right side. The bullet making this wound fractured the second, third, fourth, and fifth ribs on the right side. This bullet went through the transverse colon and the stomach, hit the artery on top of the vertebrae, and lodged in the muscles of the back on the right side of the body. According to the medical testimony, the deceased died from hemorrhage and shock from the shot that ruptured this artery. The wounds were inflicted by pistol bullets. The bullet that caused the wound on the left side of the deceased ranged a little downward. It entered almost straight. The deceased must have been almost on the ground when the bullet that caused the wound on the right side entered, from its range. Two bullets were removed [143 S.E. 559] from the body. They looked like 38's, though they were badly battered.

The defendant was employed as head waiter at the Callahan Hotel in Bainbridge. On the night of the homicide, he got off from his duties at the hotel between 7:30 and 8 o'clock. About 9 or 9:30 Edna Glover met the defendant on the street. She had a conversation with him. He was drinking at that time; she smelled whisky on his breath. He said he was trying to get something to drink, and could not. He left then and was gone about a minute. On his return he asked her to have a drink. He had a pistol in his bosom, and showed it to her. He was seen at the fairgrounds about 10 or 11 o'clock. He was next seen at a dance in the auditorium on Broad street, about 12 or 12:30 o'clock. He went from the dance hall to a restaurant kept by a Greek by the name of Mourmouris. He ordered an egg omelette and a cup of coffee. The Greek gave them to him. He began to curse the Greek, who called the deceased, who was down by the busy corner. The policeman came in three or four minutes. When the Greek called the policeman, the defendant went out of the hack door. When the policeman got down there, the defendant was in the back yard. He went down Clay street to the hotel. The deceased followed him. When the defendant was leaving the restaurant, he asked those there if the policeman was coming. He told them to look around the corner and see if the policeman was coming. Willie Oats said, "Yes; he is coming in a half trot." The deceased came in the front door of the restaurant. About 2 o'clock the defendant went to the hotel and borrowed from the night clerk $3. He seemed to be drunk. He had a .38 pistol in his pocket. The clerk advised him to go home and go to bed. He then walked out of the front door of the hotel to the street running in front of it. About thirty minutes afterwards the clerk heard of the death of Arline.

John Clenney was aroused from his sleep by shooting. He jumped up and ran out in the direction of the shooting. He found the deceased lying on his face, and his left hand under him. His flash light was lying close to his hand. The deceased did not speak. Clenney gave the alarm. It was about 2:30 when Clenney was awakened by the shooting. The shots were about as close as they could he shot. The body was on Clark street, just off of the sidewalk. The deceased was lying right over on his face, with his right hand stretched out, and a flash light lying only a short distance from his right hand. There was evidence of a struggle, about six or eight feet south from where he was; there was scuffling. It looked like he dragged his foot, trying to go north. The flash light was broken. His left hand was somewhat back up under him. His right hand was stretched out. He had a pistol in his scabbard, on his person. He had a blackjack in his hip pocket. Neither pistol nor blackjack was disturbed. His coat was unbuttoned. The pistol had not been fired. None of the chambers were empty. A big arc light was burning near where the body was found. Just a little after daylight, four empty shells and one loaded, of .38 caliber, were found on Water street, in the next block from the restaurant, going east.

H. L. Morgan, a deputy sheriff, arrested the defendant about 8 o'clock the next morning. He went to the defendant's house and searched it. Cobb went with him. He found some shoes, and some .38 caliber short cartridges in the machine drawer. One had been snapped. They were the same as those found on Water street. The one that had been snapped was compared with those found on Water street that had been snapped, and in the opinion of the deputy sheriff the same gun snapped them all. The deputy sheriff got some shoes. He searched for tracks leading from the shells, found some, and tracked them from where the shells were found out across the street over to the Willis lot. They then went angling back and got on the sidewalk, went up Independent street; then crossed from one sidewalk to near the other sidewalk; then went south across to a little garage; then turned around and went back on the sidewalk to the north on Independence street. There the officer lost the tracks on the sidewalk. He found shoes at the defendant's house that fitted these tracks. Those shoes were wet. They fitted the tracks around about the cartridges which he picked up on Water street, and the tracks that went from there on down Independence street, where the officer lost them. There was something...

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