Opinion
15113.
APRIL, 4, 1945.
Murder. Before Judge Boykin. Carroll superior court. December 4, 1944.
Willis Smith and J. L. Smith, for plaintiff in error.
T. Grady Head, attorney-general, L. L. Meadors, L. M. Wyatt, solicitors-general, and Maud Saunders, contra.
1. A ground of a motion for new trial which complains of the following charge to the jury: "Now, the State in this case insists that the defendant, W. W. Ward, is guilty, as charged in the indictment, and is there fore guilty under the law. If you find that to be true, nothing further appearing, then you would be authorized to convict the defendant," is without merit, where, immediately following the words above quoted, the charge continued as follows: "That is, if you find all the allegations have been proved to your satisfaction beyond a reasonable doubt.'
2. It is not erroneous to refuse a request to charge when the same is inapplicable to any issue in the case.
3. There was nothing in the evidence or the prisoner's statement to warrant giving a request to charge the provisions of the Code, § 26-404, relating to misfortune or accident.
4. An improper argument made to the jury by the State's counsel is not cause for mistrial, when upon objection the statement complained of is withdrawn by the person making it, followed by the court's stating to the jury that, "I instruct the solicitor-general to stay within the record of the case, that is, the sworn testimony in the case. During your deliberations you will not give any consideration whatever to those remarks;" and where, as here, it is fairly certain that whatever influence, harmful to the accused, the remark of the solicitor-general may have made on the minds of the jury was removed by the positive instruction by the court on that subject.
5. The verdict is supported by the evidence.
No. 15113. APRIL 4, 1945.
W. W. Ward was indicted and tried for the murder of his wife, Callie Ward, on September 23, 1944, in Carroll County.
Dr. King, who was called to attend her a few hours before she died, testified that his examination at the hospital showed that she was admitted to the hospital in a state of shock; that there was a laceration on the left side of her scalp about three and a half inches long, extending to the bone; that she had a swelling on the left side of her face; that there were abrasions on the back of her hands and on both knees, skin scratches over her entire body, and a laceration of the outer portion of the vagina, which was not a cut, but could have been produced by the hands; and that these wounds could have caused her death.
Cliff Davis testified that on the morning of September 23 he went to the home of the accused, and he and the accused drove around to a number of places that day, buying some liquor, drinking some, but not much; that in the afternoon of that day the wife of the accused joined them, and they drove in the truck of the witness to a number of places, among them a honkytonk, where the defendant and his wife drank wine, and late that evening while at the honkytonk she fell to the floor drunk, and the defendant sat down by her, also drunk. They were gotten up and put back in the truck, and started for Bremen. The truck had been loaded with scrap iron, automobile casings, etc. After leaving the honkytonk a short distance, the car went off the road into a ditch, but did not turn over and no one was hurt. The defendant and his wife got out of the truck on one side and the witness on the other side. The defendant's wife squatted or sat down behind the truck. The defendant came around to the back of the truck and hit the witness, shoved him against the bank, and reached in his pocket for his knife; after choking the witness, the latter broke loose from him and ran. He explained that he did this because he was afraid the accused would follow him with his knife. After running a short distance, he heard the wife of the accused say, "Oh, Weyman, you are hurting me." The witness ran down into a pine thicket, raked up some pine straw, and spent the night. As soon as he broke loose from the accused, he saw the latter catch his wife by the hair of her head and pull her over on the ground. The next morning, about daylight, he arose and went to his truck, partly unloaded it so as to get it out of the ditch, and then got back on the road. Then the accused came up behind the truck and asked him to go down and get his wife, saying that she was badly hurt. He did not ask how she was hurt, nor who did it. They brought her to her home and placed her on her bed. A few hours later she was taken to the hospital and died that day.
Mrs. Jim Ward, a sister of the deceased (her husband and the accused having married sisters) testified that her husband sent her to see her sister. She found her in bed. "The first thing I noticed was a gash on her head. This eye (indicating) was swollen, where it wouldn't come to, her nose was swollen, and mouth, and she had blue spots all on her neck. I pulled the cover from her body, and her body was skinned and blue all over. I heated some water and bathed her. She didn't say much, only said: `Sallie, do something, I am hurting down the lower part of my stomach.' I noticed something between her things and pulled it out, and it was some underwear. She had red hair." She identified the underwear as that which she had pulled off her sister. Asked if she found any weapon anywhere, she said: "Yes, it was a piece of iron, flat at one end and round at the other. It had some hair on [it] and blood, it was red and gray hair." She identified the piece of iron, and testified that it had two hairs on it, similar to her sister's hair, and that she found it between the end of the doorsteps and the wall. She testified that the accused and his wife had some trouble several years before and they separated, and that the deceased came to live with her for two or three weeks, then returned to her husband. Cliff Davis, recalled, testified that the accused had no such weapon or tool when they were in the truck. Mrs. Jim Ward, recalled, testified that the gash which she saw on her sister's head was "curved around."
Otwell, warden of a convict camp in Carroll County, testified that early on the morning of September 23 he was on his way to work, and saw the truck in a ditch; after going about a half mile further, he saw the accused and his wife standing. His arm was around hers and hers around him. He stopped and asked them if they needed help, and the accused said he would like for him to carry them home; but he was due at the camp at 5 o'clock, and promised to come back and help them. He did come back, but found nobody at or near the truck. The next day he and the officers came there, bringing the accused with them. There he saw fresh tracks, a man's and a woman's tracks, and found a handful of hair, similar to that of the deceased, at two or more places. "There was some tracks in the ditch. I asked him to take off his slippers and put his slippers in the track. Asked him if that was his track. He said, `Yes, I don't know how it come there.'" (This witness was not present when other officers put Davis's foot in the track.) He testified that he saw a puddle of blood about forty steps from where he saw the accused and his wife standing the morning before; also found hair with blood on it at several places, some distance from where the truck was in the ditch.
The defendant made the following statement to the jury: "On Friday, September 23, Mr. Davis come to my house. He was going to my father's to get some scrap iron. I decided to go down there with him. So we left home about ten o'clock in the morning. We come on down to Carrollton, stayed here until after twelve, then we went down to my father's to get the scrap iron, paper, and other things. Then we went back to Villa Rica, by Temple, on to Bremen. We got some whisky. We come back home. We started to go over to Dewey Davis's and eat supper. So my wife got ready and we carried the children over to brother Jim's. Then we started on to go to Bremen, and Cliff Davis said, `Let's go down to the H H.' So we went down there to the H H and stayed around there until about eleven o'clock, and by that time my wife was drinking too much. She fell in the floor and got her up and carried her to the truck. Started home. I got in to hold the gear, the truck would jump out of gear. Turned to the left; was going to turn to that road there. We got about two miles from there and it just went off in the ditch. The doors come open and my wife fell out. We jumped out to try to help her up. We tried to get the truck out and we couldn't. Tried to get somebody to pull us out, or get them to carry us home. I went to two houses and I couldn't get anyone to answer. I come back to the truck, and they were lying down on the bank of the road, and he was having intercourse with my wife, or trying to do it, and I hit him, and my mind went blank and I didn't know anything else that happened that night. That is the truth, so help me God. I don't believe I hurt my wife. I loved her. I know I wouldn't if I knew what I was doing. Next morning when I came to, Mr. Otwell come by and I asked him to carry my wife home, and he said he was in a hurry, he had to go to work, and he would be back in a little bit. So I waited a good little bit and he did not come back. I heard Cliff say he got the truck out. I run over there and asked him to carry us home, and he said he would. I didn't speak to him all the way home. I was good to my wife. We hadn't had any trouble, but I didn't hit her. It has been eight year ago. I don't believe I hurt her."
In rebuttal, the State put in evidence. G. L. Newman testified: "The first time I saw Mr. Ward [the accused] was about eleven o'clock Saturday night. I asked him did he recollect beating his wife up, and he said, if he did so, he was so drunk he didn't recollect it. I asked him, if I let him go home that night and stay with the children, would he and his brother Jim come to my house at three-thirty Sunday afternoon, and he said he would, and they came to my house about three-fifteen Sunday afternoon. . . I heard trooper Lowery ask Weyman Ward [the accused] was he ever jealous of his wife. He said he was not, she had never given him any ground to be jealous. . . He did not say to me anything about anybody else having anything to do with his wife." Lowery testified: "When we were going along the road, side of the road, found hair, and he said it was his wife's hair. We went over there to where the truck went in the ditch, and I says, `Wasn't any wreck over there to cause anything like that?' He said he just didn't know what happened. I asked him if he was jealous of his wife, and he said he wasn't and he brought up Mr. Brock to prove he wasn't jealous." Mrs. Jim Ward, recalled, testified: "I had a conversation with Mr. Ward, the defendant. I says, `Weyman, reckon Cliff could have done that while you were drunk?' He says, `No, I don't think he is that kind of a man.' I had reference to beating her up. I did not ask him whether or not he thought Cliff had tried to have intercourse with her." Otwell, recalled, testified that one of the troopers asked the accused if he was jealous of his wife, and the accused called Mr. Brock to tell him whether he was jealous. The accused said nothing at all about Cliff Davis having anything to do with his wife. Cliff Davis, recalled, testified: "I did not have intercourse nor attempt to have intercourse with her [the deceased]."
The defendant made a supplemental statement to the jury as follows: "I decided not to say anything about it, about his doing my wife this way. Mr. Taylor, I talked with him, he is the little slim trooper, had a black tie and wore glasses, looked like Mr. Brock. He asked me if I though Davis and my wife was having intercourse, and I says, `I think that is an unfair question, under the circumstances;' he says, `I think it is.' He carried me on the bank where I caught them lying, and he seen, he said, where looked like legs print was on the bank. That is all I want to say."
R. M. Taylor, sworn for the State, testified: "I asked him [the accused] if he would pull off his shoes, and he said he would. He sat down and pulled his shoes off, and they matched the footprints. He says, `Yes, that is my footprints.' I says, `Don't you remember anything about it?' He says: `I do not. That is my footprints.' There was a wad of hair about five feet from the place where it looked like his footprints. It was a woman's hair."
The jury returned a verdict of guilty with a recommendation to mercy. The defendant made a motion for new trial, to which was added an amendment complaining of a certain charge given to the jury, and of the court's failure to charge written requests, all of which are quoted and ruled upon in the accompanying opinion. The judge refused a new trial, and the defendant excepted.
1. The first ground of the motion complains because the judge charged the jury as follows: "Now, the State in this case insists that the defendant, W. W. Ward, is guilty, as charged in the indictment, and is therefore guilty under the law. If you find that to be true, nothing further appearing, then you would be authorized to convict the defendant." Immediately following the quoted words, the charge continued as follows: "That is, if you find all the allegations have been proved to your satisfaction beyond a reasonable doubt." This ground is without merit.
2. It is next insisted that a reversal should be had because of the refusal to charge the following written request: "I charge you further, gentlemen of the jury, as a matter of law, if you believe from the evidence that the defendant killed the deceased, but that he had found or caught his wife committing an act of adultery, or if he thought she was engaged in the act of committing adultery, and if this so affected his mind, destroyed his power to discern between right and wrong with reference to the act charged against him, he would not be responsible if he acted during the interval that his mind was so impaired; it would make no difference how long or short a period his mind was so impaired that he did not have the power of discerning between right and wrong; and that, if you believe he killed the deceased under those circumstances, when his mind was so impaired as above defined to you, he would not be guilty of either murder or manslaughter, and it would be your duty to acquit him." Also, because of the refusal to give the following written request: "I charge you further, gentlemen of the jury, that a crime or misdemeanor shall consist in a violation of a public law in the commission of which there shall be a union or joint operation of act and intention. Intention will be manifested by the circumstances connected with the perpetration of the offense and the sound mind and discretion of the person accused. So, gentlemen of the jury, if you believe from the evidence or the defendant's statement that his mind was impaired at the time, and if you believe that at the time he committed the offense he was unable to form a criminal intent or an intent to commit the crime as alleged, he would not be guilty and it would be your duty to acquit him." The only hint in the record to form a basis for such a request is a sentence or two in the statement of the defendant in these words: "I come back to the truck and they were lying down on the bank of the road, and he was having intercourse with my wife, or trying to do it, and I hit him, and my mind went blank and I didn't know anything else that happened that night." There was no plea of insanity, nor was that urged as a defense under the plea of not guilty, unless the portion of the statement above quoted did so. The requests which were refused refer to an impaired mind. This means a diseased mind, and does not carry with it the idea of a mind that was blank — so blank the accused did not know anything that was happening. The requests are apparently based on a State of facts where one's mental powers were not entirely obliterated, but were merely so impaired that he did not have the power of discerning between right and wrong. It thus appears that the requests were not adjusted to any issue that arose either from the evidence or from the prisoner's statement. Compare Jones v. State, 197 Ga. 604 ( 30 S.E.2d 192).
3. The fourth ground of the motion contends that a new trial should be granted because the court refused to charge, upon timely written request, the following: "I charge you, gentlemen of the jury, that no person shall be found guilty of any crime or misdemeanor committed by misfortune or accident, and where it satisfactorily appears there was no evil design, or intention, or culpable neglect." There was nothing in the evidence or in the prisoner's statement to warrant the giving of this request to the jury.
4. The remaining ground recites that the solicitor-general in his argument to the jury stated "that a verdict don't amount to anything, they are usually pardoned or escape, and in Carroll County they don't give death penalties." Upon objection thereto by the movant's counsel, the court said: "Confine yourself to the record, don't go out of the record. Gentlemen of the jury, you will not consider any argument that is not substantiated by the record in the case." Whereupon the solicitor-general stated, "I withdraw the statement I made in that connection." The movant's counsel then moved for a mistrial, which was denied, the judge making the following statement to the jury: "Gentlemen of the jury, the remarks you have just heard the solicitor-general make, which were objected to and withdrawn by him, I instruct the solicitor-general to stay within the record of the case, that is the sworn testimony upon the trial of the case. You will not consider those remarks which were objected to and which were later withdrawn by him in this case. During your deliberations you will not give any consideration whatever to those remarks." Even if it be assumed that the argument was improper, in view of its withdrawal by the solicitor-general and the action of the judge no cause is shown for the grant of a new trial. Goodman v. State, 122 Ga. 111 (3) ( 49 S.E. 922); Wallace v. State, 126 Ga. 749 (2) ( 55 S.E. 1042); White v. State, 177 Ga. 115 ( 169 S.E. 499).
5. The charge of the court was full and fair, instructing the jury on the law of the several grades of homicide. The evidence, though circumstantial, was sufficient to sustain the verdict.
Judgment affirmed. All the Justices concur.