Waycaster v. State

• Decision Date: 15 March 1911
• Citation: 70 S.E. 883,136 Ga. 95
• Parties: WAYCASTER v. STATE.
• Court: Georgia Supreme Court

70 S.E. 883

136 Ga. 95

WAYCASTER v. STATE.

Supreme Court of Georgia

March 15, 1911

Syllabus by the Court.

The court committed no error in admitting testimony of statements made by the defendant.

Proof that a witness made previous statements contradictory to the statements he made while testifying is admissible, though the witness testifies that he does not remember whether or not he made such previous contradictory statements.

The credibility of a witness is to be determined by the jury, and it is error for the court to instruct the jury that, if they believe a witness has made previous statements contradictory to his testimony delivered on the trial, such testimony should be disregarded, unless it "is corroborated by other credible evidence, or is corroborated by the proven circumstances in the case."

Error from Superior Court, Floyd County; John W. Maddox, Judge.

Clarence Waycaster was convicted of murder, and brings error. Reversed.

Clarence Waycaster was convicted of the murder of Charlie Pyle (sometimes also known as "Bull Dick"), and sentenced to life imprisonment. To the order of the court overruling his motion for a new trial he excepted. There were no eyewitnesses to the alleged homicide. The body of the deceased was found just off one of the streets of the city of Rome, lying in a ditch close to the sidewalk.

One witness testified: "There did not seem to be but one wound, and that first wound was on his right cheek. It went off his cheek in the right shoulder under the collar bone between the collar bone and the heavy part of the neck, and came out between the fourth and fifth ribs. *** If he was lying down, it was from a shoulder to this point in his side whichever way that might have been. A part of the cheek was knocked off. The wound showed that it glanced down. There was one or two shots in the shoulder, possibly three, that seem to be scattered somehow or other. A shotgun made the wound. The person who made the shot would have had to have been above Pyle."

A physician testified that his examination of the body disclosed a wound on the right cheek, about the upper jaw and running down in between the collar bone and the breast bone, and another wound about the fifth lower rib from below. He further testified: "A part of the liver was protruding from the lower wound. This wound entered the body from above and came out in the side, as I have stated. Both wounds, including the glancing wound on the cheek, in my opinion were made by the same shot ranging downward. The wound described caused Charlie Pyle's death. The party firing to shoot a man that way, to make that wound, would have to be some distance above the party receiving the wound. There was evidence tending to show that the wound was inflicted by a discharge from a shotgun. There was also evidence that a knife was found in the pocket of the deceased, and that a week later a rusty knife was picked up at the place where the body of the deceased was found. Both these knives and a shotgun were introduced in evidence; a witness testifying that he got the gun from the house of the deceased, and that at that time the right-hand barrel was "about a half inch deep in the dirt."

A witness also testified that a pint bottle, a little over half full of whisky, was found in the pocket of the deceased. The body of the deceased was discovered on Monday morning.

Jim Wilder testified that, on the night before the body of the deceased was found, he, the defendant, the deceased, and Sherman Thomas were engaged in a crap game under an electric light on Chambers street, about 200 yards from where the body of the deceased was found. The defendant and the deceased "fell out about the game," and the deceased "picked up two rocks and throwed at defendant. Defendant broke and ran over across the hill in the direction of his home." He further testified: "They done like they were playing to me. I didn't think they were mad much. I did not see any whisky; did not see Pyle borrow defendant's knife. Defendant ran, and Pyle followed him. Pyle throwed two rocks at defendant. I don't know how large they were. I saw Pyle throw the rocks. I don't know how large the rocks were. Did not hear them whiz. I was about 20 feet away. When Pyle picked up the rocks, defendant was about 25 feet away from him. At that time defendant was running. Sherman Thomas told defendant he had better run. Defendant ran after he was told by Sherman he had better run. Pyle ran a few feet after he picked up the rocks before he threw them at defendant. Defendant was running fast. I saw defendant running, and Mr. Pyle after him, about as far as from here across Fifth avenue. I don't think Pyle had gained on defendant when they went out of sight of me." The witness and Sherman Thomas then went up Chambers street in an opposite direction from that in which the defendant and the deceased were running. Before the witness got to his home, which was about half a mile from where the body of the deceased was found, he heard a gun fire. He was then about a quarter of a mile from his house. The witness stated he did not know how the trouble between the deceased and the defendant started.

The sheriff testified that the defendant lived about 100 yards from the place of the alleged homicide, on Perkins street, which ran parallel to Chambers street. This witness further testified: "Defendant was arrested about 11 o'clock a. m. on the day Pyle's body was found. I had a conversation with defendant at the jail on said day. He said, 'I want to see Sherman Thomas, before I talk.' After he saw Sherman, he told me he had shot Pyle, and that he had to do it. He said he had done the killing. In the same conversation he said he had to kill Pyle to save his own life. He told me that they were in a scuffle over a gun, and the gun had got on Pyle's shoulder; that he caught hold of the gun with both hands and pulled it down, and it fired. Said Pyle had been running him. Said he had run him through his home, and that as he ran through his home he got his gun. I know he said he shot him to save his own life, but he did not go into particulars."

J. E. Johnson, the deputy sheriff, testified: "The morning Bull Dick's body was found I had a conversation with Thomas. He said that Bull Dick throwed two rocks at defendant, and that defendant said, 'I will get something and be your equal,' and ran off up the hill, and Thomas said that he himself then said, 'Boys, let's get away from here; that fellow will come back and kill every one of us.' Thomas looked like a sober man to me. He was sober."

Sherman Thomas testified: "I was with the negro Wilder, the defendant, and Pyle, the night Pyle was killed. I saw the beginning of the difficulty between Pyle and the defendant. It commenced over a crap game. We were shooting craps, and they got up a jower over it some way, and they stopped a little bit, and Charlie Pyle borrowed defendant's knife to open a pint of whisky. Pyle gave us all a drink. I don't know where the whisky came from. When Pyle got defendant's knife, the game started again. They got up a little argument. Defendant throwed the dice away and says 'I'm going home.' Pyle says: 'You will have to pay me for the dice first. I want $3 for them. They cost $3.' Pyle had the knife in his hand, and he grabbed at defendant. It was the knife he borrowed from defendant, and Pyle grabbed the defendant on the shoulder and said, 'God damn you, I'll kill you right here, or you will pay me for the dice.' I started off, and defendant ran, and Pyle throwed a rock at him. I told Pyle not to go after him, but he went anyway, and me and Raymond and Wilder went on up the street. The last I saw of Pyle and defendant they were going up the hill, and Pyle was going up behind him and went out of sight. It was not over 10 or 15 minutes after that until I heard the gun fire. *** I remember making a written statement at the jail. I remember something about it. *** I don't remember defendant saying anything at all, as he went away. The last trouble that I speak of between them was after we had all taken a drink of whisky. I remember something about the conversation with Joe Johnson on the day he arrested me, between the place where I was arrested and the jail. I remember telling him something. I don't remember telling him that defendant said there and then, as he started away, 'I will go and get something, so I'll be your equal.' I don't know whether I said that or not. I remember saying, 'Boys, we had better get away.' I remember saying we had better get away from him, defendant. I don't remember telling Mr. Johnson that defendant said, 'I'll go and get something, so I will be your equal.' I do not remember that defendant said that. I'll tell the truth. When I had that conversation with Mr. Johnson, I was about drunk enough to be put in the station house. I was pretty full. I don't remember much I told that day. I remember part of it. I drank whisky that morning at the pool room, Jack's pool room. I don't remember that I told the solicitor general that, when Clarence got away from Bull Dick at the negro house, he just said, 'Wait, God damn you, I'll get you,' and went in the direction of his house. I reckon I drank two or three pints of liquor, helped to do it. *** Defendant told his mother he had shot Bull Dick, and he was in it for life, he guessed; something that way. Said he guessed he was in it for life. Next morning I went with defendant to his nets. As we came back from the nets, defendant sold some fish to some negroes, and came out there further, and somebody told us Pyle was killed up there on the hill. Defendant says, 'That's bad, ain't...