Mccloud v. State, (No. 6501.)

Decision Date17 May 1928
Docket Number(No. 6501.)
Citation143 S.E. 558,166 Ga. 436
PartiesMcCLOUD . v. STATE.
CourtGeorgia Supreme Court

Rehearing Denied June 13, 1928.

(Syllabus by the Court.)

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

Russell, C. J., dissenting, and Atkinson, J., dissenting in part.

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 re-moved 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 back 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 be 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. If 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 unusual about the bottom of these shoes. Soil was attached to them. The soil on the ground where this officer saw the tracks corresponded with the soil on these shoes.

The sheriff took the defendant to the Albany jail, to separate the persons under suspicion, so that he could investigate the case. This was the next morning after the homicide. About three days afterwards the sheriff went back to Albany. The defendant made a statement to him, in reference to the death of the deceased, freely and voluntarily, and without being induced by fear of punishment or hope of reward. The sheriff asked him how he felt. He said he was feeling bad. The sheriff asked him if he wanted to talk with him about it He said "Yes, " he wanted to confess and get right with God, that he killed the deceased, and told the sheriff how he did it. He said Mr. Arline overtook him on Broad street near the colored pool room, opposite a brick pillar, at the old Stultz place, and wanted him to go back to the restaurant where he had had some disturbance, that he started back with Arline, and told him that he (defendant) was not the man, but that he walked back up to Market and Clark streets with Arline, stopped, and told Arlinethat he was not the man, and that he was not going any further. Arline said, "Yes; you are, God damn you, go ahead;" and reached for his gun. Thereupon defendant shot him one time, he staggered, and defendant shot him again, and he fell, and that defendant did not know how many more times he shot. The defendant then stopped talking for a second, and the sheriff asked, "Which way did you go?" He said he went on down by the laundry, which is on Market and Clay streets, on the far corner of the block where the deceased was killed. He said he went on about a block from the laundry and emptied his pistol on the ground. The sheriff told him about the cartridges they found, and where they found them; and the defendant said, "Yes, sir; I emptied my gun there, and walked down to the Coast Line Railroad and walked across the Coast Line trestle, and came back home." The sheriff asked what he did with his pistol, and he said he threw it in the river, in the middle of the Coast Line trestle. He said he had not rested a bit until he had told the officers. The sheriff asked defendant what kind of shoes he wore the night he said he shot the deceased. He said he had on a sport model shoe. The sheriff told him what kind of shoes he found at his house, and he did not deny that he had on that kind of shoes. The defendant told the jailer that he was drunk upon the night he shot Arline. In evidence were the pistol balls and shoes referred to; also ordinances of the city of Bainbridge penalizing acts of disturbance of the peace, drunkenness on the streets, etc.

The jury found the defendant guilty, without recommendation. He excepted to the overruling of his motion for new trial. The grounds of the motion are sufficiently stated and dealt with in the headnotes and the opinion.

W. I. Geer and P. Z. Geer, both of Colquitt, for plaintiff in error.

B. C. Gardner, Sol. Gen., and C. E. Crow, both of Camilla, P. D. Rich, of Bainbridge, Geo. M. Napier, Atty. Gen., and T..R. Gress, Asst. Atty. Gen., for the State.

HINES, J. (after stating the facts as above). [1] 1. The special grounds of the motion for new trial, from 1 to 17, inclusive, complain of the refusal of the judge to give to the jury certain instructions as requested by counsel for the defendant. So far as these instructions were correct and applicable, they were fully covered by the general charge, and for this reason the refusal of the requests does not require the grant of a new trial.

2. A trial judge errs if he treats an inculpatory admission as a confession, and gives in charge to the jury the law relating to confessions. Dmmas v. State, 63 Ga. 600 (5); Jones v. State, 65 Ga. 147; Covington v. State, 79 Ga. 6S7, 7 S. E. 153; Fletcher v. State, 90 Ga. 468, 17 S....

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    ...e.g., Johnson v. State, 30 Ga. 426, 431 (5) (1860) (not error to state a fact that is undisputed by the defense); McCloud v. State, 166 Ga. 436, 444, 143 S.E. 558 (1928) (“[w]hile the judge is forbidden to express an opinion as to whether any particular fact has been proved, yet, when the e......
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