McClung v. State, 16889

• Decision Date: 10 January 1950
• Docket Number: No. 16889,16889
• Citation: 206 Ga. 421,57 S.E.2d 559
• Parties: McCLUNG v. STATE.
• Court: Georgia Supreme Court

Page 559

57 S.E.2d 559

206 Ga. 421

McCLUNG v. STATE.

No. 16889.

Supreme Court of Georgia.

Jan. 10, 1950.

Rehearing Denied Feb. 17, 1950.

Syllabus by the Court.

1. Where evidence is relevant for the purpose of showing flight or to explain conduct and ascertain motives, it will not be excluded because it incidentally shows the commission of another crime.

2. A written confession, when freely and voluntarily made, is admissible in evidence.

3. Where one is present at the time of a homicide, the question of whether or not he participated in the felonious design of the person killing is one to be determined by the jury from all the facts and circumstances of the case.

R. I. Stephens, Dublin, John B. Spivey, Swainsboro, for plaintiff in error.

W. W. Larsen, So. Gen., Dublin, Robert E. Andrews, Eugene Cook, Atty. Gen., Atlanta, for defendant in error.

ALMAND, Justice.

Harry T. McClung was jointly indicted with Drew S. Phillips for the offense of murder, it being charged that on October 31, 1948, they killed one L. M. Barron by shooting him with a pistol. McClung was separately tried and found guilty of murder, with a recommendation of mercy. His motion for a new trial as amended was overruled, and the case is here on exceptions to that order.

1. The first special ground of the motion for new trial complained that the court erred in the admission of certain testimony of Eddie Carberry. This witness, over objection, was permitted to detail the facts growing out of the arrest of the defendant and Phillips on November 17, 1948. The witness, after relating the fact that the police department of Miami, Florida, had been advised by the police authorities of Dublin to be on the lookout for Phillips as being one of two persons who participated in the killing of Barron, testified that he received a radio call as to the robbery of a taxicab driver in Miami on the night of November 17, and, after reciting how he and other Miami officers apprehended the taxicab in which the defendant and Phillips were riding, was permitted by the court to state that the taxicab had been stolen, and the defendant and Phillips were arrested on suspicion of stealing the taxicab and robbing the driver. To this part of the testimony, counsel for the defendant objected, on the ground that the State was undertaking to prove a second offense which was committed in another jurisdiction, and the fact that he was arrested for another offense was inadmissible and prejudicial to the defendant on trial.

The evidence shows that the killing of Barron occurred on October 31, 1948, and that there were no eyewitnesses to the killing. Phillips was identified as one of the two persons participating in the killing, and immediately thereafter the police of Miami were advised to be on the lookout for him. The defendant, in his written confession as well as in his statement to the jury, stated that immediately after the killing of Barron he and Phillips went to Miami, and having knowledge that the police were on the lookout for Phillips, the defendant and Phillips concealed themselves, and on the night of the arrest, in endeavoring to leave Miami in order to escape arrest, they engaged the taxicab, and using the pistol which they had taken from the deceased Barron, they robbed the driver and took the taxicab, and at the time of their arrest they were endeavoring to carry out their purpose of evading the officers of the law.

'The flight of the accused, the time when and the place where arrested, the manner of the arrest, how he was armed, and whether he resisted, and all the circumstances connected with the arrest, we consider proper evidence to be submitted to the jury to be weighed by them for what they are worth.' Wynne v. State, 56 Ga. 113(5), 119. Where evidence is relevant for the purpose of showing flight, it will not be excluded because it incidentally shows the commission of other crimes. Bines v. State, 118 Ga. 320(2), 45 S.E. 376, 68 L.R.A. 33; Wilson v. State, 173 Ga. 275(2), 160 S.E. 319; Johnson v. State, 188 Ga. 771(2), 4 S.E.2d 639; Mimbs v. State, 189 Ga. 189, 192(2), 5 S.E.2d 770. When, in a legal investigation, information and similar evidence are facts to explain conduct and ascertain motives, they may be admitted in evidence, not as hearsay, but as original evidence. Code, § 38-302; Bryant v. State, 191 Ga. 686(4), 13 S.E.2d 820; Phillips v. State, Ga.Sup., 57 S.E.2d 555.

2. Special ground 2 complains that the court erred in admitting in evidence a written statement or confession made by the defendant, over objection that the statement was irrelevant and prejudicial. The record shows that the defendant made the written statement, which was signed by him in the presence of the witnesses, giving in full a detailed account of the killing of Barron; and a prima facie showing was made by the State that this statement was freely and voluntarily made. The record further shows that the statement of the defendant to the jury in many of the essential details corroborated the written confession. A confession reduced to writing, when made freely and voluntarily, is admissible in evidence. Mincey v. State, 187 Ga. 281(1), 200 S.E. 144; Claybourn v. State, 190 Ga. 861(1 a, b), 11 S.E.2d 23; Russell v. State, 196 Ga. 275, 26 S.E.2d 528(2, 3). The court did not err in admitting the written statement.

3. It is contended that a new trial should be granted, because the evidence failed to show that the defendant participated either in the killing of Barron or in the felonious design of Phillips, who actually did the killing.

Where one jointly indicted with another for murder is on trial, if there is no evidence of conspiracy and the person on trial did not inflict the mortal wound, a...