McKinnon v. State

• Decision Date: 23 July 1935
• Docket Number: 24646.
• Citation: 181 S.E. 91,51 Ga.App. 549
• Parties: McKINNON v. STATE.
• Court: Georgia Court of Appeals

181 S.E. 91

51 Ga.App. 549

McKINNON v. STATE.

No. 24646.

Court of Appeals of Georgia, First Division

July 23, 1935

Syllabus by the Court.

1. Where the evidence in a case demands the conclusion that the defendant was guilty of assault with intent to murder or not guilty at all, it is not error for the court to fail to charge upon the offense of "shooting at another."

2. Where the evidence in a case fails to show "delusional insanity," it is not error for the court to omit to charge the law pertinent to that subject.

3. The evidence supports the verdict.

Error from Superior Court, Chatham County; John Rourke, Jr., Judge.

Charles W. McKinnon was convicted of assault with intent to murder and he brings error.

Affirmed.

W. G Warnell and E. J. Goodwin, both of Savannah, for plaintiff in error.

Samuel A. Cann, Sol. Gen., and A. J. Ryan, Jr., both of Savannah for the State.

MacINTYRE Judge.

The indictment charges that on May 16, 1934, in Chatham county Ga., Charles W.

McKinnon committed the offense of assault with intent to murder by shooting J. M. Hopkinson with a shotgun. The jury found the defendant guilty of the offense charged, and, his motion for a new trial being overruled, he excepted.

The first special ground of the motion for a new trial avers that the court committed error in failing to charge [without request] the law of "shooting at another," as contained in section 26-1702 of the Code of 1933. The other special ground complains that the court "erred in failing to charge the law of delusional insanity," there being no request that he do so.

We deem the following a sufficient statement of the facts of the case which are material to a decision of the questions raised by the two special grounds:

J. M. Hopkinson was for many years superintendent of motive power of the S. & A. Railroad, and Charles W. McKinnon was an employee of that corporation for a longer period. In October, 1933, it was reported to Hopkinson that the defendant had been "drunk on the job." Hopkinson did not smell any whisky on McKinnon, but McKinnon appeared to be in a "stupor." Hopkinson told McKinnon that if he caught him drunk, McKinnon would lose his job. McKinnon said that he was not drunk, but that he had been sick and was not able to work on the job he had. Hopkinson put the defendant to work at a lighter job in Savannah. It was again reported to Hopkinson that the defendant "was drunk on the job." The defendant appeared to be in a stupor, but there was no odor of whisky about him, and Hopkinson ordered that the defendant be not discharged if he were not drunk. On the same day the defendant reported to Hopkinson that one Phillips had discharged him because of alleged drunkenness, but that he was not drunk; that "they put him in jail, and * * * he got a bondsman and got out." The defendant wanted Hopkinson to "send him a month's pay," which was done. A few days later the defendant called Hopkinson over the telephone and asked if he were going to put him back on the job, and Hopkinson told him that he was not. The defendant then told Hopkinson that he put him in "the same class with Phillips, the dirty lowdown crook, on account of hiring such men as that." Prior to the shooting, the defendant told Hopkinson several times that he was ""going to make him suffer." The shooting occurred on May 16, 1934, after Hopkinson had driven to his home in his automobile and had gotten out of the car.

Hopkinson testified: "I had put the lights out, * * * and walked back to the car when I heard a gun fire, and I thought it was an automobile tire blown out. I turned my head and the gun fired again and hit me in the head. It was a shotgun, and I knew somebody was shooting at me, and I thought 'McKinnon.' I dropped behind the spare wheel, and three shots were fired, and the scars are on the left corner of the car about three inches above my head. I did not see McKinnon, as he was in the dark and I was in the light. * * * I was holding on to the spare wheel on the car, * * * and blood ran all over my head, face, and chest." When confronted with Hopkinson after his arrest, the defendant said: "I intended to do it; if you are not hurt it is not my fault, you two-faced s. o. b." Hopkinson further swore: "I did not see the gun; he was in the bushes in the dark. McKinnon had a gun and a pistol. The first shot was [from] a shotgun, and then there was an intermission between one and two. The second shot hit me. Then I heard the pistol shots. * * * I did not consider him an insane man during the years that he worked with me. He always had a very apt mind-was above the average for a car repairer. He was hard to handle. Would fly off the handle when you would talk to him about his work. When you would tell him if he didn't carry out instructions, that somebody else would be put on the job, he would change. He must be around fifty-eight or fifty-nine years old." The defendant's wife deserted him in 1920, leaving with him a young daughter.

J. D. Harley, an employee of the same railroad for which the defendant was working, testified in part: "I was there when the officers came. McKinnon said that was the old man, and if he wasn't hurt it was no fault of his, 'the two-faced s. o. b.' * * * I have had the opportunity to observe McKinnon about twelve years. I would say the man was sane."

Ernest B. Scott testified in part: "He [the defendant] seemed sore about being discharged. He said he was going to get Mr. Hopkinson and Mr. Harley and Mr. Phillips before he left. * * * I don't know, or can't say, that he was sane or not at the time he shot Mr. Hopkinson." Arthur W. Phillips, another employee of the same railroad for which the defendant worked, testified in part: "I saw him [defendant] again on the morning of May 16th. He made a statement about 'look at it, it is the old man. If you are not hurt it is no fault of mine, you two-faced s. o. b.' * * * That was after the shooting. * * * Yes, he was talking about Mr. Hopkinson. He looked the same as he always did, * * * his work was efficient. He appeared sane."

Ralph E. Woods testified in part: "Yes, I saw McKinnon. He came to my place. It was about two o'clock in the morning. * * * He told me to get up, that he was in trouble. He said that he had killed * * * Hopkinson. * * * He said he shot him twice, * * * was satisfied the man was dead. He said he shot him once and he did not fall, so he shot him the second time and he fell. * * * McKinnon showed us a pine tree where he put the gun. The officers got the gun and we went to Mr. Hopkinson's, and McKinnon said: 'There is the old man. If he is not hurt, it is not my fault, you two-faced s. o. b.' Yes, this is the gun, I am positive it is."

D. H. Mobley testified in part: "Yes, it was early in the morning when I saw McKinnon. It was about 2:15. He woke me up and told me he wanted to use the telephone, that he was in trouble, * * * said he killed the superintendent of the S. & A. Railroad. * * * He said he shot him with a double-barrel shotgun with buckshot, and wanted me to call the sheriff. * * * I have known the defendant about seven years. Yes, he did business with me, and he appeared sane. * * * I knew him to be a peaceable citizen up to that time."

Dr. L. T. Waters testified that he was called to see Hopkinson on May 16th, and found that he had been shot in the head with a shotgun. The witness further swore: "I have known him [McKinnon] about ten years. I have treated him off and on ever since I knew him. * * * From my observation of him, I would say that he was sane. Yes, I saw him the morning Hopkinson was shot. I would say he was sane."

Dr. L. B. Dunn testified in part: "I am a member of the lunacy commission of Chatham county. Yes, I investigated the sanity of McKinnon. * * * It was the unanimous opinion of the lunacy commission that he was sane at that time. * * * I could not say whether he was sane or insane prior to the investigation."

Dr. L. T. Walters, recalled by the state, testified: "I treated McKinnon for colic trouble, bilious attacks, and would see him a few times after a drunk."

D. T. Dowming testified in part as follows: "Yes, he [defendant] made a statement * * * at the time of his arrest. When I walked up to him he asked me if he killed the man. I said: 'You did not.' He said he ought to have killed him, 'the s. o. b.'; that he shot at him twice with a double-barrel shotgun loaded with buckshot. He told us that he hid the gun by a pine tree. We found the gun where he said he hid it." Here the state rested.

John G. Miller, sworn for the defendant, testified in part as follows: "I am special bailiff. * * * It was around June 4th. I went down to see him [defendant] and the other prisoners, to see if he wanted a lawyer. He did not look normal to me. He had an excited look * * * He said * * * he had [a lawyer?] to tell his friend Bill Grayson to come and see him. I could not tell whether he was sane or insane. He looked just like a man over a drunk. I guess he had been in jail fifteen days."

At this time the state introduced Dr. G. H. Johnson, who swore that he was on the lunacy commission that found the defendant sane; that he had never seen the defendant prior to that time; and that he could not say "whether he was sane or insane in May of this year."

Nathan Cohen, a policeman, could not say "whether this man was demented or not." W. L. Edgely swore that he had known the defendant about ten years,...