Russell v. State

• Decision Date: 07 July 1943
• Docket Number: 14562.
• Citation: 26 S.E.2d 528,196 Ga. 275
• Parties: RUSSELL v. STATE.
• Court: Georgia Supreme Court

26 S.E.2d 528

196 Ga. 275

RUSSELL v. STATE.

No. 14562.

Supreme Court of Georgia

July 7, 1943

Syllabus by the Court.

1. Photographs of the body of the deceased, showing the nature of wounds received in his alleged murder and showing the position of the body when discovered, as well as conditions appearing at the scene of the crime, were properly admitted in evidence.

2 3. Where an accused freely and voluntarily submits to examination by arresting officers and the prosecuting attorney, respecting his alleged crime, and there is no claim that he was influenced by force, threats, or hope of reward it is not error on his trial to receive in evidence a signed transcript of such examination, containing incriminating admissions. The fact that after giving such a statement in response to questions by the assistant solicitor-general the accused made oath as to the truth of the same does not render it inadmissible, the test being whether it was freely and voluntarily made.

4. Whether the court erred in failing to give in charge the law as to the penalty in case the defendant should be found guilty of involuntary manslaughter (the general law on that question having been given) need not be determined, in view of the verdict of the jury finding the defendant guilty of murder, without recommendation.

5. Since under all the evidence and the defendant's statement the killing of the deceased occurred as one of the 'incidental probable consequences' of the crime of robbery committed by the defendant, the court did not err in refusing the request to charge the jury with reference to a killing by misfortune or accident.

6. The evidence authorized the verdict.

Wm. Schley, Howard Devereaux, F. McClatchey, Harry S. McCowen, and William K. Meadow, all of Altnata, for plaintiff in error.

John A. Boykin, Sol. Gen., Durwood T. Pye, J. R. Parham, and E. E. Andrews, all of Atlanta, T. Grady Head, Atty. Gen., and L. C. Groves, Asst. Atty. Gen., for defendant in error.

REID Chief Justice.

The plaintiff in error excepted to the overruling of his motion for new trial after his conviction and death sentence for the murder of George H. A. Thomas. The facts of the case necessary to be stated in order to give an understanding of the rulings which will be made upon the grounds of motion for new trial are substantially as follows: Thomas was manager of Black Rock Golf Club located on Campbellton Road near Atlanta in Fulton County. On November 23, 1942, he was spending the night alone in living quarters which he maintained at the club-house. On the morning of November 24 it developed upon the arrival of employees of the club that he was missing and unaccounted for. It appeared a robbery had been committed during the night. About the club-rooms near his bedroom certain money and property of the club had been taken; also certain baggage, clothing, and personal belongings of the deceased were missing, including a pistol which he had customarily kept at the head of his bed. Mr. Thomas' Plymouth automobile was also missing. Behind a counter in an adjacent room blood was found on the floor and a towel with bloodstains was located nearby. County police authorities were notified, and a search was begun for Thomas. During the day his body was found at a point in the woods near the golf course about three quarters of a mile from the club-house. He had been shot through the neck with his jugular vein severed, and had been dead for several hours, perhaps as much as twenty-four or more. He was dressed in his night clothes, bathrobe, and house slippers. Two days later certain county officers apprehended the defendant Russell, who had been a former employee of Mr. Thomas and had served as a caddy at the golf club. He was found in a restaurant on McDaniel Street in Atlanta. Apparently suspecting him of guilt, the officers inquired of him where he got a watch which was in his possession, and he said it was his. The officer stated to him, 'No, Bubber, that's Mr. Thomas's watch. Now where is the other stuff and the car.' To this the defendant replied, 'Well, you have got me. I will take you where the car and the other stuff is.' Whereupon, in company with the defendant directing them, they went to a point near Fort Street and Edgewood Avenue, where Thomas' car was found parked. The officers inquired of the defendant where the key was, and he said he would get it at the Savoy Hotel. He accompanied them to a room at that hotel where they found most of the property which had been stolen, including the pistol; and the defendant, who was registered in this room under the name of Joe Wilson, went to a dresser drawer and picked up the keys to the car from under a paper. The officer testified, 'He said he got it at the club-house, and we found all those articles there on the table, the shoes, shirts, golf bag,' three hundred and thirty-nine golf balls, eight or nine cartons of cigarettes, a radio, etc. The officers also took from the person of the defendant a knife which he stated belonged to Mr. Thomas and which he had taken from Mr. Thomas' trousers.

The defendant, according to the evidence, discussed the robbery with the officers without any pressure or urging from them. From the hotel, immediately after gathering up the articles mentioned, he was taken by the officers to the office of the chief of county police, Mathieson, in the court-house. The number of officers accompanying him is not stated in the record, but it appears after they were assembled in Chief Mathieson's office five officers were present. Baker, a county policeman, who had participated in the investigation at the time and who had known both the deceased and the defendant, testified that he took the defendant into the court-house, and either on the way into the court-house or after arrival in Chief Mathieson's office the defendant made a statement to him. Baker testified, 'I told him, I said, 'Bubber, you have killed one of the best friends I ever had.' I said, 'Who did you have with you,' and he said, 'No one,' and I said, 'I can't believe you committed this crime alone,' and he said, 'I knew Mr. Thomas's condition and I knew I could handle him, and I didn't want any help.' That statement was freely and voluntarily made. There was no offer of reward, and no threat, and no intimidation, to induce him to make that statement.' Then appeared in the office, apparently in response to a call from the officers present, Mr. Andrews, the assistant solicitor-general, and one of the official reporters of Fulton superior court. On the trial the court reporter was offered as a witness by the State, and he testified that the defendant was in the room with Chief Mathieson when he arrived, and that the defendant then made a statement in response to questions asked him by the assistant solicitor general. The court reporter recorded it in shorthand by questions and answers, later transcribing them; and a transcript of them was sworn to by defendant Russell. At the trial the reporter identified this transcript. He testified that the defendant was told, before he was questioned, that any answer he might give would be used against him, and was cautioned that he had the constitutional right to refuse to answer; and that the answers to the various questions were made freely and voluntarily. The beginning of the examination by the solicitor-general is reported as follows:

'Q. What is your name? A. My full name?

'Q. Your name. A. John Thomas Russell.

'Q. John, I am assistant solicitor-general * * *. A. Yes, sir.

'Q. Under the constitution nobody can make you make any statement you don't want to make. A. Well, I know that.

'Q. But any statement you do make will be used against you. A. That is all right.

'Q. If you want to tell me what happened in the club-house, I am going to ask you some questions, but you can answer or not as you see fit. A. Yes, sir.'

From that point the assistant solicitor proceeded with an examination of the defendant, inquiring in considerable detail as to the movements and activities of the defendant from the time just before the robbery and killing of Thomas until the time of his being taken in custody by the officers. In response to these questions the defendant gave a detailed story of how, about seven o'clock in the evening of the alleged murder, he boarded a bus and went to the golf club alighting from the bus about a block from the entrance to the club, and of how he continued from that point on. The statement was very lengthy and contained a great many details not necessary here to be stated. The substance of the pertinent portion was as follows: He went to the club-house entrance, found it closed, knocked on the door. Mr. Thomas came to the door, dressed. He inquired of 'Bubber' what he was doing there at that time of night, and asked him if he wasn't drunk. 'Bubber' explained, 'No, I have just had a couple of beers.' Mr. Thomas invited him in, and asked him what he wanted to talk about. He explained that he wanted a recommendation, that he had the prospect of employment and needed a recommendation. Thomas, looking for pen and paper, turned away, and 'Bubber' then said to Thomas, that he wanted to borrow $20. There was some discussion about that; and Thomas, not having agreed to lend him the $20, started back of a counter for some purpose, and Russell grabbed him and hit him 'somewhere in the face,' and Thomas started bleeding. Russell protested to Thomas that he had not meant to hurt him, but that he had to have the money. They then went to a safe, Thomas wiping off his wound with a towel, and Thomas opened the safe by working the combination, having in the meantime agreed to produce the money. After the safe was opened and the money produced (less than $100, all in silver) Russell...