Mckie v. State, (No. 5920.)

• Decision Date: 19 November 1927
• Docket Number: (No. 5920.)
• Citation: 140 S.E. 625,165 Ga. 210
• Parties: McKIE. v. STATE.
• Court: Georgia Supreme Court

165 Ga. 210

140 S.E. 625

McKIE.

v.STATE.

(No. 5920.)

Supreme Court of Georgia.

Nov. 19, 1927.

(Syllabus by the Court.)

Gilbert and Hill, JJ., dissenting.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

L. L. McKie was convicted of murder, and she brings error. Reversed.

Pierce Bros., of Augusta, for plaintiff in error.

George Hains, Sol. Gen., Callaway & Howard, and Hammond & Kennedy, all of Augusta, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and John M. Graham, of Atlanta, for the State.

HINES, J. The defendant was tried and convicted of the offense of murder, and the state's evidence made the following case: The deceased and the defendant were husband and wife. They had been for some time estranged. For some reason the deceased had parked his car in a street in the city of Augusta, and had left it. The defendant, who was looking for the deceased, found the car and awaited the return of her husband. She stood around for a while, and then entered a church across the street from the car, sitting within the vestibule from which she could observe the surroundings, but in which she could not be seen. On observing her husband return to his car, she left the church, hastened across the street, approached the car in which her husband was seated at the steering wheel, drew a pistol and fired upon him, from which shot he died soon afterwards in a hospital. According to the state's evidence, the jury were authorized to find that there was no conversation or demonstration between the two after the defendant reached the car and until after the husband was shot. Search after the shooting revealed that the deceased was unarmed. The defendant introduced no evidence, but made a very lengthy statement, beginning with her birth and marriage in a distant state, and telling of continuous disagreements thereafter; of extreme cruel treatment of her by the husband, which had existed almost continuously since the marriage, all tending to show that he was immoral, profligate, shiftless, insensible to the duties of husband and father, preferring the association of the low and immoral, turning a deaf ear to the wife's cries for aid for herself and small children in times of great need, and trickery and fraud upon his part in endeavoring to gain exclusive possession and control of his own property by pretending to be effecting a reconciliation; of a written contract signed by both of them, which was intended as a means of dismissing proceedings at law against him by her, and failure on his part to live up thereto; and finally of the arrival of the wife with her children in Augusta and the meeting on the day of the homicide. She said the husband frequently threatened to kill her. She did not deny killing him. Her statement bases her defense as follows:

"I went up on the next block to see about some necessary supplies. In returning and while passing the loan shop on Jackson street I noticed some pistols in the window. I thought I should have one for my protection. I bought one. I remembered on the trips back and forth in the bus when Junior and I were the only passengers, and I would have to be going back and forth often, and many times alone. In returning to my boarding house on the corner of Mcintosh and Greene, walking on out Jackson, I saw our ear parked a little way from Jackson. It flashed into my mind that if I could see him and tell him about our sick child, my distressed condition, and talk to him, perhaps he could help me. I did so need his help. I had thought of going to Aiken to Mrs. Bishop's. The thought of having my child ill among strangers terrified me. I waited in the car a while. It was stifling hot, the windows only open down halfway. The car was—I don't know what you call it—a California top, or whatever it is. Anyway, the doors are about this wide, and the windows pass each other and they wouldn't let down any further titan this [indicating], and then there is a little panel and then the rear door. It was so terribly warm in the car I walked up and down on the side, and finally stood in the doorway and then in the fruit stand on the corner, and finally going to the railway office, out of the heat. After waiting there some little time, I didn't know how long, I left. I noticed the church across the street. The door was open. I wondered if they were having noon services, as they do in so many of the cities where the churches are close to the business center and where busi-ness and professional people can stop in for a few minutes. Upon finding that this was not the case, I sat down to rest and wait. I forgot to mention it, but the pistol that I had bought was in my purse. Finally I saw Mr. McKie going toward his car. I went over there. He was about to start. I said: 'Honey, please wait. I want to talk to you. Junior is very sick.' He said: 'Didn't I tell you if you ever came to me again I would kill you?' He took his right hand off the steering wheel this way and reached. I thought he was reaching for his pistol. I shot. I shot because he said he would kill me and reached for his gun, and in that instant I thought he intended to do it. Oh, if he had only listened to me and cared for our children, this horrible affair would never have happened. If he had listened that morning, but he wouldn't. Instead, he said he would kill me and reached for his gun, and as he did I raised my arm and the pistol fired; and I remember nothing more. The coming of my children has been the cause of it all. My husband would not provide for them when they were sick and needed attention. I had no means of my own."

The only reference in the record to the manner in which the letters from the wife to the husband were produced on the trial is found in the testimony of W. H. McKie, a witness for the state, who testified as follows:

"I qualified as temporary administrator of this estate while this case is in progress today. I haven't qualified up until to-day. I qualified in compliance with the bank's requirement, to get some of the testimony that is being introduced here. It was in order to get some of the letters. The bank declined to recognize the request of the judge or anybody else to get in the bank box, unless some proceedings along that line were taken. I was appointed temporary administrator in order to get this information, and I got this out of the bank box" (indicating the receipt given by Mrs. McKie to her husband, Exhibit No. 8).

The state in rebuttal introduced several witnesses, who testified to the good character of the deceased, and one who testified that he had spent much time with the couple, and that the deceased had always treated the wife properly and with consideration. The defendant moved for a new trial on the general grounds, subsequently amending the motion by adding 23 special grounds. The motion was overruled, and she excepted.

1. None of the rulings set out in the headnotes require elaboration, except those dealt with in the first, second, and third headnotes. "There are certain admissions and communications excluded from public policy. Among these are—1. Communications between husband and wife. 2. Between attorney or counsel and client." Civil Code 1910, § 5785. It will be seen by examination that this section falls under chapter 2, art. 3, of the Code, which treats "Of Rules Governing the Admission of Testi mony." This fact is important to be borne in mind in construing this section. It has nothing to do directly with the competency of witnesses. The competency of husband and wife to testify for or against each other, and of an attorney to testify against his client, is fixed by section 1037 of the Penal Code. This section is found under article 20, which deals with "Competency of Witnesses." Article 20 is found under the division which treats of criminal cases "from the call of the docket to sentence." On the admissibility of communications between husband and wife, the courts and text-writers have laid down two conflicting rules. In 28 Ruling Case Law, 530, § 119, one of these rules is stated as follows:

"In the view of many courts, the inhibition is as to the husband or wife, and not to a third person; and if the communication is in writing, and is procured by a third person without the consent or privity of either spouse, the reason for the exclusion of communications at common law no longer exists. The fact that the letter may have been illegally intercepted or illegally obtained will not operate to exclude it on the ground that it is a privileged communication. The court cannot take notice of the manuer in which possession of the letter was obtained."

To support this rule the following cases are cited: Hammons v. State, 73 Ark. 495, 84 S. W. 718, 68 L. R. A. 234, 108 Am. St. Rep. 66, 3 Ann. Cas. 912; State v. Buffington, 20 Kan. 599, 27 Am. Rep. 193; O'Toole v. Ohio German F. Ins. Co., 159 Mich. 187, 123 N. W. 795, 24 L. R. A. (N. S.) 802; People v. Dunnigan, 163 Mich. 349, 128 N. W. 180, 30 L. R. A. (N. S.) 940; State v. Wallace, 162 N. C. 622, 78 S. E. 1, Ann. Cas. 1915B, 423; State v. Mathers, 64 Vt. 101, 23 A. 590, 15 L. R. A. 268, 33 Am. St. Rep. 921. In the case first cited, a husband in jail gave to a messenger a letter for his wife. The messenger handed it to a relative of the injured party, and it was held admissible. In that case there were two dissents. In State v. Buffington, there was no statute of Kansas making communications between husband and wife incompetent as evidence; and the court was dealing with a statute which rendered husband and wife incompetent to testify concerning any communications made by one to the other during marriage. In O'Toole v. Ohio German F. Ins. Co., letters written by a woman charged with burning her property to collect insurance, to her husband, which were lost by him and came into the possession of strangers, were admitted in evidence against her. The Supreme Court of Michigan was dealing with a statute which declared that...