Mcdowell v. State, 32144.
| Decision Date | 03 December 1948 |
| Docket Number | No. 32144.,32144. |
| Citation | 50 S.E.2d 633 |
| Parties | Mcdowell. v. state. |
| Court | Georgia Court of Appeals |
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Syllabus by the Court.
1. (a) In order for an incriminatory admission made by a defendant to be admissible in evidence against him, it is not necessary that he be apprised of his constitutional rights or warned that any statement made by him may be used in evidence against him.
(b) Where there is evidence that a defendant fired upon another as he fled and that the other fell, and his body was found several days later in such mutilated condition that it was impossible to determine by an inspection of the body, whether or not he died as the result of gunshot wounds, a statement made by the defendant near the scene and at the time the body was found to officers investigating the case that "You won't find any shot in his body, " is such a statement as to authorize the court upon the trial of the case to charge the jury on the rules of evidence governing incriminatory admissions.
2. (a) The learning and experience in a profession such as to entitle a witness to be deemed prima facie an expert, is a matter addressed to the discretion of the trial court.
(b) It is not error for the trial court to permit an undertaker to testify as to what, in his opinion, based on his training and experience in his profession, caused the mutilation of a human body.
3. (a) Corpus delicti means, when applied to any particular offense, the actual commission by some one of particular offense charged.
(b) If the defendant desires an elaboration on the subject of corpus delicti by the trial judge in the charge to the jury, he should duly request the same in writing.
4. A charge on the prisoner's statement in the language of the Code is not only sufficient but has been held to be the better practice.
5. Where there is evidence that two men companions are visiting in the home of another in a community somewhat remote to them, and in the course of a dice game between the two visitors, the host and the defendant who is a brother of the host, a quarrel ensues between one. of the visitors and the host resulting in the host procuring a gun which is taken from him by one of the visitors, and thereupon the defendant says "Wait until I get back, " and then goes to his home nearby, procuring a gun and upon his return shoots the visitor who has previously taken no part in the affray but who flees with the other upon the return of the defendant, it is not harmful error to the defendant for the trial court to charge § 26-1014 of the Code as a defense.
6. Conspiracy may be proved by acts and conduct of the parties. Therefore where evidence is as outlined in the preceding headnote and elsewhere in this decision it is not harmful error against the defendant for the trial court to charge the jury on conspiracy.
7. It is never error for the trial court to charge the jury on the subject of reasonable doubt in the language of § 38-110 of the Code.
8. It is not error in the absence of request, to attempt a definition of the words "reasonable doubt."
9. Where the verdict is supported by some evidence and is approved by the trial court this Court is without authority to interfere.
Error from Superior Court, Butts County; Harvey J. Kennedy, Judge.
Mote McDowell was convicted of voluntary manslaughter and he brings error. Affirmed.
The plaintiff in error, Mote McDowell, hereinafter referred to as the defendant, was tried in the Superior Court of Butts County for the offense of murder. He was convicted of voluntary manslaughter and his punishment fixed at not less than 18 years or more than 20 years in the penitentiary.
He filed a motion for a new trial on the general grounds which was later amendedby adding 13 special grounds. The trial judge overruled defendant's motion for a new trial and this judgment is assigned as error.
W. E. Watkins and Benjamin B. Garland, both of Jackson, for plaintiff in error.
Frank B. Willingham, Sol. Gen., of Forsyth, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts.)
1. Special ground 1 of the amended motion for a new trial contends that the court erred in admitting over objection the testimony of the sheriff to the effect that the defendant stated upon being arrested near the scene where the body of the deceased was found, "You won't find any shot in the body." This testimony was objected to on the ground that the sheriff stated he had a warrant for the defendant for assault with intent to murder Woody Thurman; that he had no warrant against the defendant for any offense involving the deceased; that it is not shown that he apprised the defendant of any of his constitutional rights or that any statement he made might be' used against him as evidence; that a foundation was not laid as to a confession or admission and that it is otherwise illegal.
Special grounds 10 and 11 of the amended motion for a new trial contend that the court erred in charging the jury as follows Here in ground 10 counsel for the defendant set out what he contends the court should have charged in which he adds to what was charged substantially that such statements, when and if made, must have been freely and voluntarily made without being induced by another by the slightest hope of benefit or the remotest fear of injury. It is also contended in grounds 10 and 11 that the charge was incomplete, that it was not comprehensive enough to embrace an adequate statement governing admissions, that it could have led the jury to believe that all that was necessary was that it be scanned with care; that it was not authorized by the evidence, that it could have led the jury to conclude that the defendant made some incriminatory admission when all it amounted to was a declaration of innocence and that it was hurtful to the defendant.
The jury was authorized to find from the evidence that the deceased and Woody Thurman, on the 23rd day of February, 1947, went out in the section of Butts County where the defendant and his brother, O. B. McDowell lived; that while shooting dice in O. B. McDowell's house a quarrel arose between Woody Thurman and O. B. McDowell; that the defendant went to his home nearby for a shotgun and upon his return to the home of O. B. McDowell with the shotgun, Woody Thurman and the deceased ran; that the defendant fired and the deceased fell; that the deceased was not seen again by the members of his family for about one week when the sheriff and others went to a point in the woods near the home of O. B. McDowell and found the deceased in a terribly mutilated condition; that all his vital organs had been removed; that although his head, feet and limbs were somewhat intact his torso was little more than a skeleton; that the sheriff had a warrant for the defendant for assault with intent to murder Woody Thurman; that upon arriving at the scene and finding the remains of the deceased he arrested the defendant and O. B. McDowell; and that the defendant stated "You won't find any shot in his body." This statement inferred to the jury that the defendant already knew that the remains of the deceased were there; that he knew it from the time he had shot the deceased a week previous-ly; that in the meantime he had so evise-rated the body as to leave no trace of the shot. It was, therefore, according to one phase of the evidence an incriminatory statement or admission. It did not amount to a confession of guilt. In Teague v. State, 48 Ga. App. 225, 172 S.E. 571 it was held as follows: "There is a very wide distinction between admitting the main fact, and admitting some minor or subordinate fact or series of facts, which could be true, whether the main fact existed or not." Even had it been a confession of guilt there is nothing to indicate that it was not freely and voluntarily made; nothing to indicate that it was induced by another by the slightest hope of benefit or the remotest fear of injury. It must be remembered that when the sheriff left his office he did not know of the death of the deceased, he having found the body at the scene upon his arrival. He did know about the alleged assault on Woody Thurman and had a warrant for the defendant for this offense. There is no requirement of law that a defendant be apprised of his constitutional rights or that his statements may be used against him. It would have been error had the court charged the law of confessions. Sec Teague v. State, supra. However, that part of the Code, § 38-420 which applies to admissions is that "all admissions shall be scanned with care." The court left to the jury the question of whether or not the statement was made and if made whether or not it amounted to an incriminatory admission. He charged that if it did amount to an incriminatory admission it should be scanned with care.
The assignments of error complained of in special grounds 10 and 11 of the amended motion for a new trial are without merit.
2. Special grounds 2 and 3 of the amended motion for a new trial contend that the trial court erred in admitting over objection, testimony of the undertaker as follows: ...
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