Opinion
15029.
JANUARY 5, 1945.
Murder. Before Judge Hooper. Fulton superior court. July 24, 1944.
Hamilton McWhorter Jr., John F. Echols, and Howard, Camp Tiller, for plaintiff in error. T. Grady Head, attorney-general, John A. Boykin, solicitor-general, Durwood T. Pye, Reuben A. Garland, and Victor Davidson, assistant attorney-general, contra.
1. The evidence was sufficient to authorize the verdict.
2. Under the facts in this case, it was not error to charge the law with reference to drunkenness as a defense to crime.
3. The defense of accident was properly submitted to the jury.
No. 15029. JANUARY 5, 1945.
J. C. Adkins was found guilty, with a recommendation of mercy, of the murder of Adelaide Smith by shooting her with a pistol.
A summary of the evidence for the State is as follows: Mrs. H. G. Benton testified: that on March 10, 1944, she lived next door to the defendant's brother, W. F. Adkins; that at about five o'clock that afternoon she saw the deceased when she came to the Adkins's house; that the deceased was talking to a soldier, and the witness did not see the deceased enter the Adkins's house; that at about nine o'clock that night she heard a gunshot and went out on her porch, which was just across a driveway from the Adkins's house; than when she walked out on the porch she heard the deceased say, "Where did you get that gun? Put that gun down," and then heard some mumbling and scuffling and heard the deceased say, "Give me that gun," and the deceased's voice sounded as though it was coming from the kitchen of the Adkins's house; that about twenty minutes later she heard a second shot and walked out on her porch and saw a soldier standing in the driveway and heard the deceased groaning.
Mrs. Thelma Gaddis testified: that she lived in an apartment in the same house where the defendant's brother, W. F. Adkins, lived; that a hallway divided her apartment and the Adkins's apartment; that she arrived home about 7:20 on the night of the homicide and left the door of her apartment open; that she could see into the Adkins's apartment and saw the defendant and the deceased standing in the living room; that she later heard two shots, the second shot being fired about fifteen minutes after the first; that after the second shot was fired the defendant knocked on her door and said, "Come here, Mrs. Gaddis," and when she objected and said she had heard two shots, the defendant said, "I didn't fire them;" that after she heard the second shot she didn't hear a word spoken; that she heard no noise or trouble nor any evidence of it; that the deceased was a daily visitor to the Adkins's apartment; that she didn't see any one else in the apartment with the deceased on the day of the homicide except the defendant; that around 9:30 she saw a soldier standing out in the driveway. This witness further testified: "I said I had seen a soldier in the apartment. I saw him talking to Adelaide there at the sink. The soldier was standing between the bed and the sink. He came in with his coat on but he pulled it off. I didn't see J. C. Adkins at the time he came in. . . As to where the soldier was and how far he was from Adelaide, I would say he was a very little distance. I didn't say he went to bed; I didn't look. He went into the bedroom. . . When I first saw the soldier he was talking to Adelaide. I never saw him any more. When the first shot was fired, I didn't see the soldier out there; I didn't see any other person present except Adkins. I did see the soldier after the second shot was fired, standing out in the end of the driveway. He was out there when Mr. W. F. Adkins arrived."
Dr. J. C. Blalock testified that he was a county physician and examined the body of the deceased in an undertaking parlor on March 13, 1944; that she had a wound over the left ear, which went directly through to the other side of the head; that the gunshot wound produced death; that there was no evidence of powder burns on the deceased, and if the gun was held in eight or nine inches of the body, the body would have shown powder burns.
Joan Lambert testified that she was nine years old and lived with her stepfather, W. F. Adkins; that the deceased and the defendant lived on Pulliam Street; that the defendant is her stepfather's brother, and the deceased was her mother's sister; that the defendant came to her stepfather's house first, and the deceased came about an hour later with a soldier; that the deceased and the soldier took a drink; that "that was after Cooper [the defendant] came in, about two hours after that; when he came in, he had been drinking." The witness testified further that she heard a shot and nobody was in the kitchen except the soldier, the deceased, and the defendant; that the defendant came out of the kitchen; that she was scared and went and telephoned her stepfather from Mrs. Gaddis's telephone; that later the soldier came out and she walked down the street with him; that fifteen or twenty minutes later, while she was in her mother's room, she heard a second shot; that then the soldier was standing in front of the house fixing his automobile, and she didn't know how long the soldier had been out of the apartment when the second shot was fired; that when the police arrived, the defendant was sitting on the porch; that she didn't know what his condition was; that "he was drinking, but he was not drunk; he was drinking back in the kitchen. He was able to walk. He walked out of there from the kitchen."
K. A. Wooster, a police officer, testified that he arrived at the Adkins's home at about 9:20 or 9:30 on the night of March 10; that he saw the defendant and his brother, W. F. Adkins; that the defendant "seemed to be a little intoxicated and that was all." Another police officer testified that he questioned the defendant about the shooting, and that the defendant said it was accidental.
Mrs. E. Morris testified: that she knew the defendant and the deceased, but that she knew them under the name of Mr. and Mrs. Smith; that the defendant rented a room in her house on Pulliam Street, and he and the deceased were living in the room in her house at the time of the homicide; that she did not know whether the defendant lived in any other place.
W. F. Adkins testified as follows: "I live at 220 Bass Street. J. C. Adkins, the defendant on trial, is my brother. I got a telephone call on March 10, this year, about 9 o'clock p. m. I got the 'phone call from the defendant and Adelaide Smith over the `phone of Mrs. Gaddis. I don't know exactly what time it was, but it was around 8:30 or 9 o'clock. I went home and got there in about fifteen minutes later. I found my brother alone. He had taken my gun that I had in that home. He said he wanted to take it home with him; he was scared Joan would get hold of it. That is all I can recollect that he said. He did not tell me at that time that he had shot and killed Adelaide Smith. He didn't say anything about her. He didn't say anything about shooting her. When they called me, they told me to come on home, he had shot into the ceiling; that he had shot into the ceiling, but nobody was hit. When I got there, it was probably about fifteen minutes after I got the telephone call. I came after I got the second call. I talked to Mrs. Gaddis and Joan. It was, I imagine, around ten minutes after I got the second call from 220 Bass Street before I got there. . . When they called me they told me to come on home, Cooper had shot into the ceiling. The little girl told me he had shot into the ceiling. I got there probably fifteen minutes after I talked to her over the telephone. I didn't talk to Adelaide then. I talked to Mrs. Gaddis and Joan, and I imagine it was ten minutes after I talked to them I got in the car and went to Bass Street, or fifteen minutes. . . When I got home, I saw a man there, I don't know his name. He was standing there at the alley by the house. . . When I got home, I reckon it was around 9 o'clock or a little afterwards. I don't know what time it was. When I got home, J. C. Adkins was in the living room near the door. He was standing up. I asked him what was the matter, and he said Adelaide got shot but he didn't say who shot her. I didn't ask him at the time that particular question of who shot her. I took the gun away from him and put it in the bureau where I kept it. It was a Remington gun, a 32-caliber. I don't know where the gun was when I left home that morning; he said he had gotten it out of the drawer. I kept it in may bureau drawer. I kept it loaded. Adelaide Smith was my wife's sister. Her husband is overseas somewhere, in the army. She lived with my brother. He was not married to her; not that I know of. Her husband went in the army in September. I didn't know her by the name of Mrs. J. C. Adkins. I knew her by the name of Adelaide Smith. I know where she lived on Pulliam Street. . . When I walked into my house, Adelaide Smith was lying under the table in the kitchen. . . I don't remember seeing any dishes broken in the kitchen. The table was turned around a little; but there was no evidence of any struggle except the table was turned around a little. The table could easily have been turned around. I know what furniture was in the kitchen. There was a large refrigerator, a good-sized one. There was a kitchen cabinet and a gas stove, and the table was over by the kitchen cabinet. There is a third table that sits over here. I said I talked to the defendant, Cooper Adkins. I asked him what happened to Adelaide. I had known Adelaide for a long time. I don't remember whether Cooper talked like he was intoxicated or not. I couldn't tell whether he was intoxicated or not. Adelaide didn't talk over the `phone like she was intoxicated."
The defendant made the following statement to the jury: "Gentlemen, I am awfully sorry about what happened to this lady. I went to my brother's house at 220 Bass Street, at least I reckon I did, I only know I usually go by there every night to get supper for me, Mrs. Adkins, or Adelaide, one. I didn't have a car, and Adelaide generally came by and did things for her sister. At that time there was an automatic pistol there that my brother bought and he had it there in his dresser drawer. He said he wanted to keep the gun in the house. I saw the gun there and I thought it was unloaded. I didn't know how it worked mechanically. I understood if you pulled the trigger the gun would shoot. I took the gun and I thought I would take it around to where I lived so that the little girl would not get hold of it. I put the gun in my pocket, and I went in the kitchen where Adelaide was and told Adelaide it was an unloaded gun. She said she didn't want to see it and to leave it there — to put it away. That was around 7:30 or a quarter to 8, I don't know the exact time, I got there about 7 o'clock; I came from work every day and that day I got there about the same time. When I went in the house, Adelaide was there and she was drinking. I saw another man there; I don't know who he was, and I suggested that we all take a drink. I think he had been there some little time, and after a little he walked out and I asked him where he was going. He was pretty drunk. He was reeling. He went in the bedroom and laid down on the bed. The few minutes he was there I didn't know who he was, and I found out who he was and I said, `What is that man doing here?' After a while he got up and went on out. I didn't pay much attention to him. After a while I raised the gun, and pointed the gun, and she said it wouldn't shoot. I worked with it a little bit, and it went off and hit the ceiling. She said: `Look, you shot a hole in the ceiling. What will my sister say when she sees that?' I stuck it right up to her and she didn't pay much attention to it. I didn't pull the trigger or nothing like that and nothing happened. It was around ten to fifteen minutes I was standing there by that chair, just standing there like I would at home, and was waiting to get something to eat. She came around to me; I don't know what she said; I put the gun in the waistband of my trousers, and she reached over and got the gun, and when she reached and grabbed the gun I caught her hand. I said: `Adelaide, let the gun alone;' I said: `Adelaide, give me the gun.' We were struggling with it, and the gun went off. I didn't know where it hit her; I didn't know it had hit her. She kind of leaned over and I took the gun; I didn't know what had happened, and I walked into the other room and put it back in the drawer. I heard her fall and I went to get Mrs. Gaddis, and asked her to help me. She called the police and the ambulance. I was there when they came, and they asked me about it. I didn't know what had happened. I never had been in anything like that before. They came and told me about it; I knew I didn't do it. It occurred like that, gentlemen; that is the way it happened."
The defendant's motion for a new trial on the three general grounds, and by amendment on two special grounds complaining of excerpts from the charge to the jury, was overruled. The exception is to that judgment.
1. There was sufficient evidence to authorize the verdict; and, the verdict having the approval of the trial judge, the judgment refusing a new trial on the general grounds will not be disturbed. Compare Hill v. State, 164 Ga. 500 ( 139 S.E. 23).
2. The first special ground complains of the following excerpt from the charge: "There is some evidence in this case of alleged drunkenness on the part of the defendant. That fact seems to be referred to in the evidence and the court does not state that as a fact, but it is for you to say whether it is or not a fact; but assuming that there was, in fact, any drunkenness in this case upon the part of the defendant, then these instructions would be for your consideration. Drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness was occasioned by fraud, artifice, or contrivance of another person for the purpose of having the crime perpetrated; then the person so causing said drunkenness, for such malignant purpose, shall be considered a principal and suffer the same punishment as would have been inflicted on the person committing the offense, if he had been possessed of sound reason and discretion. Voluntary drunkenness is not an excuse for crime. The fact that one accused of a crime was drunk at the time of the alleged crime may be shown as illustrative of his motive in the transaction, but one voluntarily drunk is presumed to intend the consequences of his act, and the question is whether he intended to do the act and whether he intended the consequences of the act. If a drunken man is sufficiently intelligent to know, understand, and intend to do the act, and understand, and that a certain consequence is likely to result from it, and does the act, he is criminally liable for the consequences of his act. However, if because of drunkenness one's mind should become so impaired as to render him incapable of forming an intent to do the act charged, or to understand that a certain consequence would likely result from it, he would not [be] criminally responsible for the act. Whether that was true or not, is a question for the jury — that would be a question for the jury to decide."
It is contended in this ground that this charge was not authorized by, or adapted to, the evidence, and injected into the case a question not made by the evidence or by the defendant's statement; that the probable effect of the charge was to create in the minds of the jury the belief that the defendant was pleading drunkenness in extenuation or mitigation of the killing, and was seeking to avail himself of a defense to which the court said he was not entitled; that the probable effect of the instruction was to confuse the jury with reference to what defense the defendant was actually making, and to minimize his real contention that the killing was entirely accidental. It is not contended that this charge was not a correct statement of the law relative to drunkenness as a defense; but it is contended that the charge as a whole was error, in that it was not authorized by the evidence or the defendant's statement.
The identical question here raised was decided in Overby v. State, 183 Ga. 353 (4) ( 188 S.E. 520), and was decided against the contentions of the plaintiff in error in the instant case. Two Justices dissented in the Overby case, but not on the question here raised. The opinion is, therefore, unanimous as to this question. We are requested to review and overrule the Overby case. Some of the Justices are of the opinion that the rule as laid down in the Overby case is sound, and the request is denied. Speaking for myself, I am of the opinion that the Overby case should be overruled and the judgment in the instant case reversed. In the Overby case, and in the instant case, such evidence as was offered with reference to drunkenness was produced by the State and could have been offered for one purpose and one only, that of illustrating the state of mind on the part of the defendant. The State did not thereby inject into the case any contention or theory that drunkenness is or is not an excuse or justification for crime. The defendant did not insist upon any theory of drunkenness as a defense. I think that, under these circumstances, the charge should have been limited to the purpose for which the evidence was introduced, that of illustrating, if it did, the state of mind of the accused; and that the injection into the case, by the charge of the court, of the law of drunkenness as a defense to crime was harmful error.
3. Ground two complains of the following excerpt from the charge: "Gentlemen, the defendant in this case contends that the shooting of the pistol referred to in this case was accidental, and he says he is not guilty; but that, if he did the act and caused the pistol to be discharged and caused the deceased to lose her life, it is attributable to accident." The criticism is that the language, "but that, if he did the act and caused the pistol to be discharged and caused the deceased to lose her life, it is attributable to accident," was erroneous, in that it incorrectly stated the contention of the defendant with reference to how the killing occurred. It is argued that the defendant did not contend that he caused the gun to fire, but that the deceased grabbed the gun and he grabbed her hand, and in the scuffle over the gun it was accidentally fired. The effect of the excerpt here complained of was to instruct the jury that the contention of the defendant was that the gun was accidentally discharged, regardless of who had actual possession of the gun at the time it was fired. This was a proper instruction to be given the jury under the evidence and the contention of the defendant in this case.
It follows that the judgment refusing a new trial must be affirmed.
Judgment affirmed. All the Justices concur.