McDaniel v. State

• Decision Date: 13 June 1946
• Docket Number: 31254.
• Citation: McDaniel v. State, 74 Ga.App. 5, 38 S.E.2d 697 (Ga. App. 1946)
• Parties: McDANIEL et al. v. STATE.
• Court: Georgia Court of Appeals

38 S.E.2d 697

74 Ga.App. 5

McDANIEL et al. v. STATE.

No. 31254.

Court of Appeals of Georgia, Division No. 1.

June 13, 1946

Syllabus by the Court

1. 'The real ultimate criterion by which the merit of such testimony [newly discovered evidence] should be measured is the probability of a different result; and when that probability appears, the ends of justice require that a new trial be granted.'

2. Special ground 2 does not show reversible error.

Ralph McDaniel and Vernon (Doc) Hammond were convicted on an indictment charging them with arson. They filed an amended motion for a new trial, which was overruled. They assigned error on this judgment.

The State's evidence substantially shows that Joe Pippin testified for the State on direct examination, that about Feb. 14, 1945, he lived out from Eufala (Ala.); that he worked in Quitman County at a place known as the Morning Star; that he slept there; that at about 12 o'clock at night they closed the Morning Star and he went to bed; that the witness and one Ruth Tuck were in charge of the business and were conducting the place for Fletcher Lawrence at the time it was destroyed by fire. He further testified that the owner of the business was not at the Morning Star when the fire occurred. The building in which the business was conducted belonged to Mrs. J. C. Gay. Witness closed the place of business about 12 o'clock on the night of the fire and went to bed. After the business was closed and witness had gone to bed he heard the dog, which was also in the building, make a couple of lunges at the front door. This awakened the witness. He went to the door of the building. The door lacked about an inch and one-half closing. The door was a double one and did not meet. There was a window to the left of the door. The first thing the defendant saw when he looked out of the building was a car light on a pick-up Chevrolet truck. He did not know to whom the truck belonged but the defendant, Doc Hammond, drove it most of the time. The two defendants were standing in front of the lights. The light was burning in front of the building. Doc Hammond had a bucket of something in his hand. Witness did not know what it was, but it was 'mighty inflammable.' Doc Hammond put the bucket under the corner of the building. Ralph McDaniel the other defendant, struck a match and threw it in the bucket and the building blazed up. Flames went nearly to the top of the building. By that time witness had taken the bar from across the door and eased the door back and was looking 'right at them but they didn't see me.' The defendants got in the truck and left. Witness grabbed the wash pan and threw water on the fire, but the water seemed to make the fire burn more. Within a few minutes the defendant returned to the burning building in the same truck. The witness removed the cash register. Ruth Tuck asked the defendants to get the sheriff, but they said they didn't want to. Neither of the defendants tried to help put the fire out. Witness smelled the gasoline in trying to put the fire out. The next day when the witness went to get the money in the 'Rock Cola, to my sorrow' witness found that some one had taken the money out. The night of the fire witness threw the bucket a distance from the house. The defendants had set the bucket under the corner of the house. Witness carried it home with him the next day. When witness moved to Panama City he left the bucket in the house where he lived near Eufala, Alabama.

Cross The witness was 35 years old and had been living in Eufala about nine months before the fire occurred and had moved to Eufala from Columbis, Georgia. He worked at the Morning Star at the time of the fire, the day of the fire being the first day witness had worked at the Morning Star in a week. He worked for Mr. Lawrence at a cafe Mr. Lawrence owned in Eufala and he worked at the Morning Star. They kept at the Morning Star cold drinks, beer and wine and Rock Cola, or (and) juke box and occasionally cigarettes and cigars. Sometimes a couple at a time would dance. The building was straight, about 18 by 30 feet. In addition to the dancing place and the place where the stock of merchandise was kept, there were two bed rooms in the back with a kitchen between them. A number of people besides the two defendants came in the Morning Star to but wine and beer. Witness did not remember the names of any except Mr. Kaigler, the sheriff, who came there about the time that the two defendants were there, previous to the fire. The three were in the building at the same time, but witness did not know whether they were together. They did not leave together. The defendants left first. The sheriff left about 11 o'clock. Witness was not drunk; doesn't drink on the job and was on the job that day for 24 hours. He had dozed off when the dog barked. The dog belonged to Mr. Lawrence, the owner of the Morning Star, and stayed in the building at night. The door had no lock on it. It was closed with a bar. Witness had never had any one to call him after he closed. The road by the building was much traveled and people were riding and walking past all through the night. The crack in the door would measure to the second joint of the index finger of the witness. The door was about 22 or 23 feet from the place where 'the fire broke out.' Witness had a clear view from the crack in the door and the window. The truck was about 30 feet from the highway when the witness saw it in front of the house. It was parked close to the building, parallel with the building and the highway. Witness saw the truck first, then saw the defendants standing in front of the lights of the truck. The floodlight in front of the building burned every night. The defendant didn't say a word or do anything. There was in the building a 32 calibre Smith and Wesson, an automatic shotgun, and a 22 rifle, and 'I didn't get them. I am a man of peace and don't fight unless it is pushed on me.' After the building was burning, the defendants got in the truck, drove around the building and thence toward Georgetown. Witness and Ruth Tuck threw all the water they could get on the fire. Witness called Ruth Tuck to help put out the fire. She did not come out until the defendants had left. Witness did not remember who the people were who came to the fire. He did not remember any of them or how many came except that the two defendants came back. 'I sung it all over Eufala.' Witness told Fletcher Lawrence, the owner, the next day that Ralph McDaniel and Doc Hammond had set fire to the building. Witness knew nothing about the defendants being arrested, but witness was the man who said they set fire to the building. Witness returned to Eufala immediately after the fire. Witness heard that Mrs. Gay, the owner of the building, had $500 insurance on it. Mr. Lawrence, who operated the Morning Star, had no insurance. Mr. Huguley was the first man who talked to witness about the fire and witness told Mr. Huguley that the defendants set fire to the building. Huguley went to Columbus to see the witness. Witness believes that the next person he talked to was Mr. Gormley, with the State police. Witness was positive that he told Mr. Lawrence the next day that the defendants set fire to the building. Witness testified that he had been arrested for 'public drunkenness and the like'; for resisting an officer, and for cutting his wife. When the trial came up for cutting his wife she did not testify against him because 'she knew I didn't do it on purpose.' Witness was under bond in Eufala for resisting an officer. Witness did not know how many times he had been arrested in Eufala, for public drunkenness, because he didn't keep an account.

Miss Ruth Tuck, sworn for the State, testified that in the month of February, 1945, witness worked between Eufala and Georgetown at the beer and wine place known as the Morning Star. Fletcher Lawrence employed her to be in charge. She and Joe Pippin were working at the Morning Star when the place burned. She had retired. She heard the dog barking and got out of the bed. She didn't see anything at that time. The building was not then on fire. Later Joe Pippin awakened her and told her the building was on fire. That was about an hour after she got up the first time. She went out immediately and started to getting things out of the building and trying to put out the fire. She didn't smell any gas fumes. There was a can under the corner of the building that she had not seen before. The two defendants were at the Morning Star about six or seven minutes after the fire. They were at the back of the building shooting rats. Witness noticed the tracks of a truck that had passed by the corner of the building that night. The tracks looked like the tracks of the truck of the defendants. Several persons talked to the witness about the fire after the building burned. When the defendants were down there a few minutes after the fire witness requested them to get an officer and they stated they had rather stay there and shoot rats. They were shooting with a pistol.

Cross: About 8 or 10 people came to the Morning Star between dark and the time of the fire. Joe Pippin and the witness were the only two people there at the time the witness learned of the fire. In a few minutes a negro drove by and stopped to help put the fire out. The defendants were the next people who came along. They were by themselves. Then other people came. It didn't take very long for the house to burn, as it was a wooden building. After the fire witness went to Eufala and spent the night with Joe Pippin. The next day after the fire witness heard Joe Pippin say who he thought burned the building.

Testimony for the defendants: The defendants introduced Joe Crosby and Robert Watkins, soldiers in the United States...