Myrick v. State

1. A presumption of malice may arise from a reckless disregard for human life. A wanton and reckless state of mind is sometimes the equivalent of a specific intent to kill; and such state of mind may be treated by the jury as amounting to such intention when the wilful and intentional performance of an act is productive of violence resulting in the destruction of human life.

2. Where trial jurors petition the trial judge to grant a new trial, and he declines to do so, no meritorious question of law is presented to this court that would authorize a judgment of reversal.

No. 15135. MAY 9, 1945. Willis Myrick Jr. was convicted of the murder of Charles R. Grimes and sentenced to death by electrocution. Only the general grounds of the motion for new trial are presented for determination by the writ of error.

The evidence relied upon by the State may be summarized as follows: The accused, a boy of about 15 years, lived in the country near a large swamp. Grimes was a hunter and trapper. On the morning of the homicide he was seen by the accused going in the direction of the swamp. The grandfather of the accused, with whom he lived, sent him in the direction of the swamp to see about some cows. Before leaving the house, and without the knowledge of his grandfather, he took a 32 rifle and a cartridge with him to the swamp. In a statement subsequently made, he said: "I decided to go to the swamp when I saw Mr. Grimes pass, because somebody had been leaving the cowgate down and the cows had been getting out. So I decided to go down there and shoot over his head when he came out of the swamp so that it would scare him." He went towards the swamp about 7 a. m., and returned to the house about 10 or 11 a. m., and told his grandfather that he heard someone hollering in the swamp. His grandfather sent him back to the swamp to see about the cows, and he got a horse and stated that he was going to find out about the hollering. He approached close enough to Grimes (the person who was hollering) for Grimes to tell him that he had been shot and to instruct him to get word to a neighbor to get a doctor; though not close enough to be identified by Grimes. The accused made this report to the neighbor about 2 p. m., and subsequently Grimes was removed to a hospital and died. He was shot in the back of the neck with a bullet, which paralyzed him from the waist down. About 40 steps or 40 yards from the scene of the shooting, it was found that someone had previously built a fire, and a small bottle which had contained kerosene was found there. Myrick was suspected. His finger print was found on the kerosene bottle. He made two different statements about the shooting. At first he said he was near the scene of the shooting, but that he was squirrel hunting and shot at a squirrel. This statement, dated February 14, 1944, was as follows: On "Sunday, February 13, 1944, I got up a little after sunup. I stayed around the house about an hour and then I walked down into Hollingshed's swamp and I built a fire about 50 yards from where I later found Mr. Grimes laying in the road. I had brought a bottle of kerosene with me from the house, and I used part of it to start the fire. I hung around the fire for about 30 minutes until I heard a squirrel. I then walked around where I had heard the squirrel and got in between the squirrel and the swamp. I saw him come down a tree and start up another one. I made a noise with my feet and the squirrel stopped about 5 or 6 feet up the trunk. I shot at him but missed. I unloaded the gun and then started on home. After I had walked past where I saw Mr. Grimes's truck parked, I heard somebody holler. I thought it was probably somebody yelling at their dogs so I went on home. I got home around 10 o'clock and told my daddy about hearing somebody holler. He said it was probably somebody lost or hunting. At about 1 o'clock I rode the horse back down to where I had heard the yell, and I found Mr. Grimes lying on his back. I asked him if he could get up and he said he couldn't. He told me to go get Dr. Binion and an ambulance. So I left and rode on home and told my daddy about Mr. Grimes being shot and needed a doctor. My daddy told me to go up to Mr. Hollingshed's house and tell them to call the doctor, so I did. The rifle I shot at the squirrel is a 32, and the bullet is a pistol bullet Ira Johnson gave me about three or four months ago, and it is the only one that I had. My daddy didn't know that I had carried the rifle with me that morning, and I didn't tell him about shooting at the squirrel. From where I shot at the squirrel Mr. Grimes was found in a direct line to where I was aiming." When taken to the scene, he designated a point about 100 yards from where the wounded man was found as being where he stood when he shot at the squirrel. There was testimony that because of a hill between the two points it would not have been possible for a bullet so shot from that place to have struck the deceased. Ten days later, on February 24, 1944, he made another statement as follows: "February 13, 1944, I got up a little after sunup. I went out to the lot and fed the horse, and while I was out there I saw Mr. Grimes pass. He was going in the direction of Hollingshed swamp. I don't know what time this was but it must have been after 8. After I finished feeding the horse, I went back inside and stayed around the house for a while. I decided to go to the swamp when I saw Mr. Grimes pass, because somebody had been leaving the cowgate down and the cows had been getting out. So I decided to go down there and shoot over his head when he came out of the swamp so that it would scare him. I left the house about 8:30 or 9 o'clock, and took my grandfather's 32 rifle with me. I also carried some kerosene in a half-pint bottle which I had drawn out of a lamp the night before. On the way down to the swamp I fixed a fence post, and then went on down to the big oak which is on the edge of the swamp. I stood there a few minutes to look for a squirrel, and then walked back toward the swamp road and built a fire about 60 yards from the road. In about 15 minutes after I built the fire, I heard Mr. Grimes coming. I was on my knees and watched him as he walked along the road. When he got to a small clearing I aimed about a foot and a half over his head and fired. It looked like Mr. Grimes ducked, and I turned and ran down to the big oak because I was expecting Mr. Grimes to shoot back. I then worked back across the field and came back on the road between where Mr. Grimes truck was parked and my house. I first heard Mr. Grimes holler as I got back on the road. He was yelling, `Help!' I thought that maybe he was trying to fool me, so I went on home. After I got home, I could hear him hollering for help all the morning. I told my grandfather that I had heard somebody hollering in the swamp, and he said that it was probably somebody lost or yelling at their dogs. At about 1 o'clock I asked my grandfather if I could ride his horse down to the swamp and see who that was hollering, and he told me to go ahead. My grandfather didn't know that I had carried the rifle to the swamp that morning, and I did not tell him about shooting over Mr. Grimes's head. I rode directly down to where I had last seen Mr. Grimes, and I found him laying on his back. He told me to go call Dr. Binion to send an ambulance, that he had been shot. I went back to our house and told my grandfather that Mr. Grimes was shot, and he told me to go up and tell Mr. Hollingshed, which I did. I didn't have but one bullet with me that morning and it was a 32-pistol bullet and there were only two bullets at the house and they were the same kind and belonged to my grandfather. I did not know that I had shot Mr. Grimes until I went back to the swamp, and then when I saw him lying in the same place that I had aimed the rifle I knew that my bullet had hit him. The reason I didn't tell the truth about this at first is, because I thought people would think I shot him on purpose."

There was other evidence to the effect that, when the accused returned to his home from the swamp the first time, he did not bring the rifle back. The bullet which killed the deceased could not be identified as having been fired from the rifle which the accused had, because the cartridge was a pistol cartridge and would not fit the rifle barrel compactly, but would be loose in the barrel and the rifle would not shoot true, and the bullet would have a tendency to go astray. 1. Under the general grounds, the question here presented is whether the evidence is sufficient to authorize a verdict for murder.

It has long been the law that, when the State produces evidence sufficient to establish that the defendant killed the deceased in the manner and in the county alleged in the indictment, a prima facie case of murder is thereby established, unless such evidence shows justification or mitigation. Mann v.State, 124 Ga. 760 (53 S.E. 324, 4 L.R.A. (N.S.) 934);Johnson v. State, 152 Ga. 457 (110 S.E. 211); Key v.State, 177 Ga. 329 (5) (170 S.E. 230); Smithwick v.State, 199 Ga. 292 (34 S.E.2d 28). In a trial for murder, if the accused has admitted a wilful and intentional killing without any negation of malice, a presumption of malice will ordinarily arise; but this is not the case, and no presumption of malice arises, where he adds an exculpatory explanation of justification, excuse, or mitigation. Green v. State,124 Ga. 343 (4) (52 S.E. 431); Ricketson v. State, 134 Ga. 306 (67 S.E. 881); Brown v. State, 184 Ga. 305 (191 S.E. 108); Miller v. State, 184 Ga. 336 (2) (191 S.E. 115);Daniel v. State, 185 Ga. 58 (194 S.E. 360). A presumption of malice may arise from a reckless disregard for human life. A wanton and reckless state of mind is sometimes the equivalent of a specific intent to kill; and such state of mind may be treated by the jury as amounting to such intention when the wilful and intentional performance of an act is productive of violence resulting in the destruction of human life. Collier v. State,39 Ga. 31 (2) (99 Am. D. 449); Marshall v. State, 59 Ga. 154;Gallery v. State, 92 Ga. 463 (2) (17 S.E. 863);Cook v. State, 93 Ga. 200 (18 S.E. 823); Smith v.State, 124 Ga. 213 (52 S.E. 329); Hamilton v. State,129 Ga. 747 (3) (59 S.E. 803); Josey v. State, 197 Ga. 82,94 (28 S.E.2d 290); Dennard v. State, 14 Ga. App. 485 (81 S.E. 378); Chambliss v.State, 37 Ga. App. 124 (139 S.E. 80).

In one of the admissions of the accused, we find the following: "So I decided to go down there and shoot over his head . . so that it would scare him. I . . built a fire about 60 yards from the road. . . I was on my knees and watched him as he walked along the road. When he got to a small clearing, I aimed about a foot and a half over his head and fired." Applying the facts contained in the admission of the accused to the foregoing rules of law, the proof of the homicide would not ordinarily establish a prima facie case; nor would a presumption of malice arise, since, according to the literal expression, it negatives an intent to kill. While the admission, on its face, was not inculpatory, but was a relation of facts in the nature of an exculpatory admission, yet the fact that the accused, from a distance of 60 yards (40 yards by other testimony) aimed a foot and a half over the head of the deceased and wilfully fired a rifle, would present a question for determination by the jury as to whether this act was such a reckless disregard for human life as was the equivalent of a specific intent to kill. Considering all the facts and circumstances in the case, it is hard for the writer to understand the line of thought of the jury in determining upon the verdict rendered; yet, under the rules of law just above stated, it was within their province to so find, and it can not be said, as a matter of law, that the verdict is without supporting evidence.

2. The record contains a note of the trial judge, asserting that eight of the trial jurors signed a petition "to grant a new trial to the defendant . . due to the fact that the verdict . . returned carries the death penalty, and . . the evidence was almost entirely circumstantial." Whatever effect this may have on other tribunals, it presented no meritorious question of law to the trial court, as under the Code, § 110-109, "jurors may . . sustain but not . . impeach their verdict;" nor has this court the authority to grant a new trial for such a reason, as under the constitution (Code, § 2-3005), it is a court only for the correction of errors of law.

Judgment affirmed. All the Justices concur.