McLendon v. State

• Docket Number: 16497.
• Decision Date: 16 February 1949
• Citation: 52 S.E.2d 294,205 Ga. 55
• Parties: McLENDON v. STATE.
• Court: Georgia Supreme Court

52 S.E.2d 294

205 Ga. 55

McLENDON v. STATE.

No. 16497.

Supreme Court of Georgia

February 16, 1949

Rehearing Denied March 16, 1949.

Syllabus by the Court.

1. The verdict was authorized by the evidence.

2. Under the circumstances disclosed by the record, the trial judge did not abuse his discretion in overruling a motion for continuance.

3. It was not error to charge the jury on the issue of insanity that, 'the burden is on the defendant to show to the reasonable satisfaction of the jury that at the time of the alleged commission of the act charged against him he was insane.'

4. An exception to the omission to charge the jury 'on manslaughter,' is too vague and indefinite to raise any question for determination.

5. The refusal to declare a mistrial on motion of counsel for the accused, because of argument by the solicitor-general was not cause for a reversal.

6. Exceptions to instructions by the trial judge, in answer to questions by the foreman of the jury, are without merit.

Upon an indictment charging him with the murder of his wife, E. B McLendon Jr. was tried and found guilty without a recommendation of mercy. His motion for new trial, as amended, was overruled; and to this judgment he excepted.

On the trial of the case, evidence produced by the State tended to establish the following facts: The accused and his wife had been separated several times, the final separation occurring some time previous to the homicide. They had been having considerable marital difficulties, and on four occasions the wife had caused peace warrants to issue against the accused, three of which she had later dismissed. At the time of the homicide, the last peace warrant, which had been issued some three weeks previously, was still in force. During the last separation, the accused had made repeated efforts to get his wife to return to him, but she had refused. The accused had molested his wife at various places. He had gone to the store where she worked and caused disturbances, and on one occasion policemen were summoned to the store. He stated to one of the police officers that he was going to kill his wife, and on other occasions threatened to kill her.

Following the last separation, the deceased moved into a house occupied by J. C. Dinkins and his wife. J. C. Dinkins was a first cousin of the accused. The deceased lived with the Dinkenses for several weeks, but at the time of the homicide she had moved back into her own apartment. On the day of the homicide, the deceased's mother was visiting her, and while in the apartment her mother fell and hurt herself. The deceased called the Dinkinses to help her carry her mother to a doctor's office. After the Dinkinses had gone to the apartment, Mrs. Dinkins and the deceased left the apartment to go to the doctor's office with the mother of the deceased. Shortly thereafter the accused arrived at the apartment. Dinkins and a brother and step-sister of the deceased were still in the apartment. The accused asked the whereabouts of his wife, and was informed that she had carried her mother to the doctor's office. The accused left the apartment, apparently in a good humor, and shortly thereafter Dinkins and the brother and step-sister of the deceased left the apartment to carry the brother to a hospital. When he had been left at the hospital, Dinkins and the step-sister proceeded to the doctor's office. After they had arrived there, the accused arrived just before the deceased, her mother, and Mrs. Dinkins were stepping from the doctor's office into a reception room. They had proceeded to a point near the front entrance when the accused grabbed his wife and began dragging her out the front door. She began screaming, and the accused shot her four times with a pistol. One bullet struck her just below the right shoulder, another in the right breast, and another in the back. She died from these wounds.

J. C. Dinkins, a witness for the State, gave the following account of the homicide: 'He [the accused] came in [the reception room of the doctor's office] and stood there a second or two and he said, 'Jim, come out here. I want to talk to you a minute.' So I got up and went out on the porch, a little porch stoop about this wide (indicating about four feet) and about twice as long, with steps at each end. So he asked me, 'Will you ask Dorothy to go back to me?' I said, 'Yes, E. B., I'll do everything I can if you will straighten up and show her you are going to do right.' He said, 'I have been to church this morning and I am not drinking.' I said, 'I see you are not. Try to keep up the good work,' and somebody said something to me, which was Dorothy [the deceased], and I turned to see what she said, and as I turned I saw my wife and Joanne Whaley leading Mrs. Whaley out of the doctor's office and Dorothy said to me, 'Dr. Jones wants to speak to you a minute before you go.' I turned to go back in and I met my wife and Mrs. Whaley and Joanne, stepped around them, and started on back. I got back to where the step-up is, I would say fifteen feet, and I heard a scream. Dorothy was the one I heard scream. I turned just in time to see him going out the door like this (indicating). He had her in his arms, stepped inside and grabbed her and went out the door (indicating grabbing with arms) out on the little stoop, and time I could make it back to where the door was, the pistol was blazing and she was down in a crumped position. The porch wasn't wide enough for her to straighten out, but her shoulders were against the wall, and she was screaming and hollering and twisting and turning, and he said, 'I'm going to get you too,' and I didn't know who he meant, and I put my arms around Joanne and Mrs. Whaley, and I said, 'Get back into this office.' I saw him shooting his wife. She was down in a crumped position like this, and he was standing right over her shooting, just like that (indicating raising and lowering of pistol between shots)--he shot her four times, but I don't know how many times she was hit. The pistol he used was like that little pistol you have in your hands. She was prostrate on the floor. The porch wasn't wide enough for her to stretch clean out. He was over her, she was screaming and hollering and twisting. When he grabbed her he said, 'Okay, Baby, let's go; here it is; I told you I would do it.''

Other eyewitnesses gave testimony to substantially the same effect. The State proved that the pistol with which the homicide was committed had been purchased by the accused two days prior to the homicide.

No witnesses were introduced by the defense; but the defendant, after detailing his marital difficulties and his many efforts to get his wife to return to him, made the following statement with regard to the homicide; 'My wife came to the door [of the doctor's office]. When she came to the door, I caught her by the arm and said, 'Baby, let me talk with you, please.' She said, 'No, I'll fix you right now.' Inside of this doctor's office this screen door pulls back like this. There is a desk sitting approximately, I would say, four to five feet from the screen door. Her pocketbook was sitting on there. She started for the pocketbook and I went crazy. I lost my mind. I saw Jim Dinkins sitting in there, and I remembered seeing him going under the settee, and I guess it is a good thing he did because I was crazy knowing what I know, but I will never repeat it. It is in my heart and it will stay there until I am gone, for the Bible says you shall embrace your loved ones and God is my witness I have. That is all I have to say, gentlemen.'

Samuel E. Tyson, of Augusta, and Randall Evans, Jr., of Thomson, for plaintiff in error.

Geo. Haines, Sol. Gen., of Augusta, Eugene Cook, Atty. Gen., and Rubye Jackson and Frank H. Edwards, both of Atlanta, for defendant in error.

WYATT Justice.

1. There is no merit in the general grounds of the motion for new trial. The State's evidence abundantly proved every element of the crime of murder.

2. The first special ground assigns error on the failure of the trial judge to grant a continuance. On the call of the case, the following occurred:

Counsel for the accused: 'We would like to make a motion for a continuance in this case. * * * There is a considerable amount of evidence which counsel for the accused has been diligently trying to obtain. * * * I have had this case now for about two and a half weeks. I haven't done anything except work on this one case. Of course, Your Honor understands that I am a young member of the bar and I am not, possibly, as experienced enough to get out and prepare evidence as some older attorney. * * * I would like to point out that there are many witnesses involved in the case, both of the accused and the deceased's families. It has been impossible to even talk rationally with them, members of either families, to find out whether I could obtain anything to help in the defense of this case because of the great emotions existing at this time on both sides of the case. Counsel has endeavored to make approaches to both families in the case and cannot discuss it with them. This lady has not been dead long enough for anybody to get over it and there is a considerable amount of evidence which counsel thinks will be available to him if he has time to investigate the case. I wish to point out to the court that the accused has nothing. He is not able to pay other counsel. I tried to secure the services of other counsel. Counsel would also like to bring before the court the fact that we have had the accused examined by two competent psychiatrists, both of whom are present in court at the present time. Both of these doctors state that they can make no conclusive determination of the sanity of the accused unless he was given laboratory...