Mcdow v. State, 9214.

• Decision Date: 20 March 1933
• Docket Number: No. 9214.,9214.
• Citation: 168 S.E. 869,176 Ga. 764
• Parties: McDOW . v. STATE.
• Court: Georgia Supreme Court

176 Ga. 764

168 S.E. 869

McDOW .

v.STATE.

No. 9214.

Supreme Court of Georgia.

March 20, 1933

.

Syllabus by the Court.

1. The evidence authorized the verdict.

2. In the exercise of his discretion and upon the evidence adduced, the court did not err in overruling the ground of the motion for a new trial based on the refusal to grant a change of venue. The remarks by the judge in rendering judgment upon the motion for a change of venue neither expressed nor intimated any opinion as to the guilt or innocence of the accused. In overruling the motion, he expressed his opinion upon the evidence as to the state of feeling in the community, but said nothing as to the merits of the charge for which the defendant was indicted.

3. "For the admission of evidence to be a ground for a motion for new trial, it must appear what objection was urged to it at the time."

4. The scrivener's dating the paper containing the alleged dying declaration as of the day preceding the actual date of the homicide was a palpable lapsus pennæ, when the writing is considered in connection with the undisputed evidence as to the correct date of the homicide and the date on which the dying statement was really taken down.

5. Where language was used which may be properly construed as a threat to kill some one, and the testimony indicates that the threat was directed against a person who was afterwards murdered, evidence of the use of such language is admissible against the person making it, on his trial for such murder. This testimony may properly be construed by the jury to enable them to determine whether the language was in fact an idle or a determinate threat, and whether the threat was not one to murder, and to determine the identity of the person threatened.

6. The assignments of error in the other grounds of the motion for a new trial are without merit.

Error from Superior Court, Troup County; L. B. Wyatt, Judge.

J. B. McDow was convicted of murder, and he brings error.

Affirmed.

J. B. McDow was indicted for murder. On the call of the case he filed a motion for a change of venue, on the ground that he could not obtain a fair trial in Troup county, because of a strong public sentiment against him. Evidence was introduced on this issue, and the court overruled the motion. The defendant did not apply for a bill of exceptions to review that ruling. The jury found the defendant guilty without a recommendation. A motion for new trial was overruled, and exception was taken to the overruling of the motion.

The evidence in behalf of the state showed that the accused and his wife, for a considerable period of time, had domestic trouble, and that there had been more than one separation and reconciliation. A few days before the homicide the wife left the accused, taking with her their son. She went to Cleve-land's house on Saturday preceding the killing on Monday. The defendant was a barber. His wife held a clerical positional an office; their places of business being two or three miles apart. Her duties required her to report at. the office shortly before 8 o'clock in the morning. On Monday morning she went to the office two or three hours earlier. Mrs. Cleveland was accustomed to driving a car carrying her husband to work at one of the mills about 5 o'clock, and on the morning of the homicide Mrs. McDow went with them in the automobile. Mrs. McDow was seen writing on a tpyewriter in her office by the janitor, more than an hour before her duties required her presence. The janitor, who was not acquainted with the defendant, but who from a window in the office building observed him in the yard examining a pistol, recognized him as he came in the office where his wife was. He was standing near his wife, but she did not see him. He drew a pistol partly out of his pocket. At this time the janitor came in the room and passed by the accused, who saw the janitor and put the pistol back into his pocket. According to the janitor none of this was seen by Mrs. McDow. After the janitor passed, the accused stopped and talked to Mrs. McDow, and then both of them left the building and went to a caf£ about 200 yards distant, where they sat and talked for a long time, though the witness who saw them there did not bear or understand what they were talking about. They left the cafe and went together to the office building. When they reached the front entrance of the office, the accused jerked a pistol from his pocket and fired twice at his wife. Witnesses heard two shots in quick succession; then after an interval of fifteen to twenty-five seconds three other shots were fired rapidly, and screams of a woman were heard. Witnesses ran and found Mrs. McDow lying on the floor of the office porch, with her face toward the door. The accused was standing over her with a pistol, holding it by the barrel. He charged those who first came not to take the pistol by the handle, because his wife's finger-prints were on the handle; and he declared that she shot herself. The wife, who was screaming for help and praying to God to save her life for her son James, denied the defendant's statement as to shooting herself, and declared that he shot her. It appeared that after she fell she in some way procured the pistol and fired three shots, not at the accused, but in the opposite direction, perhaps in an effort to empty the pistol and prevent the possibility of receiving any additional shots. She was mortally wounded, and apparently conscious of her situation.

After she had been removed to the hospital she made a statement, which an amanuensis reduced to writing, as follows: "April 17. Mr. McDow had been sick and would not tell her anything about it. Her father came to the house Tuesday. Friday her husband said for her father to leave their home. She told her father what was the matter with her husband. She and her father and son moved to Cleveland house. At her office husband walked in. She was writing to sister. She was afraid to go out to his car and talk to him. They went to Davis Cafe. They talked. She told him what was the matter with him. She said she could not live with him. He said he supposed she was about to enter suit. He said he was almost well. He followed her. As she started back to general office Miss Susie Miller had just gone in the general office. As she started up steps her husband shot her twice. Then she took the pistol and shot three times into the ground. Signed. Ruby McDow." This statement was received over the defendant's objections. A sister of the decedent testified that she heard the accused make threats towards his wife, and that during the conversation he said: "You know Eula [his sister] killed her husband and got out of it, and I can do the same thing." The defendant made a statement giving a recital of domestic troubles and separations for years past, and saying that on the morning when the shooting occurred when he and his wife returned from the caf6: "I walked up the stair-steps with her almost to the door, and about that time Miss Miller * * * came up, and I spoke to her. She immediately went inside. I turned again to my wife and begged her for a reconciliation. I told her I loved her, would always love her, but the way she was acting of late was making it almost unbearable and I could not hardly make it under the present circumstances. She said it was all off, said T am going to town today to talk to a lawyer and have him file a suit for a divorce.' This was almost more than I could stand, because I loved my wife better than anything on earth. I had always loved her ever since I met her and I could hardly stand this; so I say, 'Well, it is all off?' She says, 'Yes.' I drew my pistol from my belt, I pulled it out and put it to my temple, and about that time I remember hearing her holler or shout, 'Don't do that' She grabbed my wrist and arm with both hands, and I remember the pistol snapped one time in my temple. She pulled the gun down, wrenched it from my hand, and the other two shots fired, and she was falling, and I caught her and let her down easier. She had the pistol in her hand while she was lying on her right side facing the building, and she fired the remaining shots. I knelt down over my wife and had her head in my arms. The first person I remember seeing when I looked up was Mr. Smith. I didn't kill my wife. It has never been my intention to kill any one except myself. I am done except this fact, that I had had so much trouble it has most run me crazy. * * * As I stated. I did not kill my wife; it was a horrible accident; and all I ask of you is to let me live for the sake of my child."

S. H. Dyer, of Newnan, E. B. Crim, of La Grange, and D. T. Ware, of Roanoke, Ala., for plaintiff in error.

Wm. Y. Atkinson, Sol. Gen., of Newnan, Luther...