McMullen v. State

1. The charge that, if the jury should find the defendant guilty of murder, they could, if they saw fit, recommend that he be punished by imprisonment for life, and, in that event, he would be sent to the penitentiary to serve the rest of his life "for his crime," did not, when construed with its context, violate the rule that the judge shall not express or intimate any opinion as to what has or has not been proved, or as to the guilt of the accused.

2. Nor did the charge, "The only grade of manslaughter involved in this case and the only one I charge you upon is voluntary manslaughter," contain any expression or intimation violating such rule.

(a) The judgment refusing a new trial was not erroneous for any reason urged.

No. 15224. JULY 3, 1945. Robert Lee McMullen was convicted of murder in the alleged killing of Arte Henderson, by shooting him with a gun; the verdict being without recommendation. His motion for a new trial as amended was overruled, and he excepted.

Briefly, the evidence tended to show the following facts: The defendant went to the home of the deceased on the afternoon of Sunday, July 23, 1944, and while there, engaged in a fist fight with the deceased and George Henderson, a brother of the deceased. Under persuasion of his wife, the defendant left the place about 6 p. m. He returned about 10 o'clock that night, when as testified by the widow of the deceased, the following occurred: He came to the back door and called the deceased. The deceased asked if it was Robert Lee, "he said it was, and he asked him to open the door and let him come in, and Arte asked him if he was all right, and he said ``yes,' and just when he opened the door he pointed the gun and Arte slammed the door on the gun, and he [the defendant] shot the gun and shot him through the door. . . Arte died that night from this wound." The defendant was arrested the following morning, and according to testimony of the sheriff, stated, "that they [the deceased and his brother George] jumped on him that afternoon and he killed him [the deceased], and that he was going to kill George, and George was scared to death. He said he went home and got the gun. . . He said he went there and got his gun and came back and killed him." Another witness testified that McMullen came by his house about 9 o'clock on the night of July 23, 1944, with a gun "like that" (referring to State's exhibit). "He said at that time he was on his way to kill Arte." Several witnesses testified as to the difficulty at the deceased's home during the afternoon, but the widow of the deceased was the only witness who testified as to what occurred at the time of the shooting.

The defendant introduced no evidence, but made the following statement: "I went over to Arte's house. I went over there with George Henderson and my business was me and Arte, George, Cole, and Charlie Jack was in business making whisky together, and that was my business, to transact some business about some whisky, and, while we was over there, we had been drinking, talking and drinking, and talking about our business about the whisky, and George Henderson he objected to me getting my share, and I started to talk to Arte and he hit me, and I hit George, and me and George tied up, and Arte got up and went in the house, and I didn't know whether he went in there looking for a gun, as he had a gun in there, and Prentiss Henderson he jumped on me too, and my wife walked up to Prentiss and he hit at her and drawed a knife on her and beat me, and the Henderson boys beat me twenty or thirty minutes and I got loose from them and went to my mother-in-law's about three-quarters of a mile from there to where my gun was, and I brought my gun there. The reason I took my gun was I thought it better to take it as he had a gun, and I came back and when I knocked on the door and he asked me who it was, and I told him, and he said, ``you come back, you come back, you had better come back right;' and I said, ``I want to talk to you;' and he throwed his gun right in my face, and I throwed up my gun and shot . . I didn't carry my gun there to kill Arte. I carried it back because I wanted to get a settlement in the whisky business, and we was all drinking and fifteen or twenty of us was over there on that afternoon we had the fight."

The widow of the deceased, being recalled, testified: "When this defendant . . came to my house that night and I testified to what I heard, Arte did not have a gun with him when he went to the door. He did not poke a gun out of the door when this man said everything was all right. When Arte saw the gun he closed the door. I am sure my husband did not threaten him at all. My husband had a gun but it was in the closet setting down and wasn't even loaded."

The original motion for a new trial contained the usual general grounds. By amendment two special grounds, numbered 4 and 5, were added, assigning error on excerpts from the charge of the court.

In ground 4, movant complained of the following charge: "However, you have the authority, if you see fit, in the event you find him guilty of murder, to recommend that he be punished by imprisonment for life in the penitentiary, and, if you do so, you would add to your verdict as I have just outlined, ``and we further recommend that he be punished by imprisonment for life,' and, in that event, he would be sent to the penitentiary to serve the rest of his life for his crime." In this ground, movant averred "that the use of the words ``for his crime' was error in that it amounted to an expression of opinion by the court that the movant had committed a crime, therefore, said portion of the court's charge was harmful and prejudicial to the movant in that said words were calculated to inflame the minds of the jury against the movant and to impress the jury that the court was of the opinion that the movant had committed some crime for which he should serve a life sentence and was guilty of the offense of murder."

In ground 5, error was assigned on the following charge: "Gentlemen of the jury, the only grade of manslaughter involved in this case and the only one I charge upon is voluntary manslaughter" — on the ground that, "said portion of the court's charge amounted to an expression of opinion by the court to the jury as to what had been proved by the State, the words of the court being calculated to unduly impress the jury that the defendant had committed voluntary manslaughter when the defendant contended that he was not guilty of any offense and killed in self defense, therefore said portion of the court's charge was harmful and prejudicial to the defendant." 1. The charge that, if the jury should find the defendant guilty of murder, they could, if they saw fit, recommend that he be punished by imprisonment for life, "and, in that event, he would be sent to the penitentiary to serve the rest of his life for his crime," did not, when construed with its context, violate the rule that the judge shall not express or intimate any opinion as to what has or has not been proved, or as to the guilt of the accused. Code, § 81-1104. The case in this respect is somewhat similar to Wilson v. State, 152 Ga. 337 (4) (110 S.E. 8), where the charge contained the language, "If the evidence shows the commission of the crime, and you are satisfied beyond a reasonable doubt that the defendant committed it with malice aforethought." It was said by this court that the question as to whether this excerpt contained an expression of opinion by the judge would depend upon a construction of the charge, and that the language criticized must be considered with its context. It was held that the excerpt as thus construed did not amount to an expression of opinion upon the facts of the case. So, in this case, the phrase, "for his crime," was contained in the instructions to the jury as to their right to recommend life imprisonment, as the punishment to be imposed in case they found the defendant guilty of murder, and, when considered with its context and the entire charge, could have been understood by the jury as being applicable only in the event of such conviction. In other words, it was clearly conditioned upon a verdict of guilty with such recommendation, and could not have been reasonably understood as describing the transaction as a "crime" unless and until it should be so determined by the jury. The excerpt thus did not "assume or seem to assume, that the transaction was a crime," as contended. It differs materially from the charges dealt with in Minor v.State, 58 Ga. 551 (3); Phillips v. State, 131 Ga. 426 (62 S.E. 239); Freeman v. State, 158 Ga. 369 (4) (123 S.E. 126), and other cases cited for the plaintiff in error.

2. Nor did the charge, "The only grade of manslaughter involved in this case and the only one I charge you upon is voluntary manslaughter," violate the rule to which reference has been made. The judge had just charged the general section of manslaughter as follows: "Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection." Bearing in mind that this general section, as charged, had to do with both voluntary and involuntary manslaughter, it is plain that the judge, in giving the excerpt in question, was merely explaining to the jury that there was an issue as to involuntary manslaughter, but that there was an issue as to voluntary manslaughter, upon which he considered it his duty to instruct them. This charge was very much like that dealt with in Sanders v. State, 113 Ga. 267 (2) (38 S.E. 841), in which case it was said: "Where the evidence affords no indication of any degree of homicide less than murder and would sustain no verdict other than that of murder or an acquittal, it is not error to charge: ``There is only one grade of homicide involved in this case, and that is murder,' this language, when taken in connection with the entire charge, intimating no opinion as to the guilt of the accused." In Alred v. State, 68 Ga. App. 263 (22 S.E.2d 677), it was said that a charge which contained the expression, "Now included in the charge of murder as set out in the indictment a lesser offense is involved," meant simply that voluntary manslaughter was involved to the extent that it became the duty of the court to submit that question to the jury for determination along with the question of assault with intent to murder and justification, and did not express or intimate an opinion that the accused was guilty of voluntary manslaughter or any other offense. See alsoHooper v. State, 52 Ga. 607; Godbee v. State, 141 Ga. 515 (8) (81 S.E. 876).

Both of the special grounds of the motion for new trial were without merit. There is no insistence on the general grounds.

Judgment affirmed. Jenkins, P. J., Duckworth, Atkinson, andWyatt, JJ., concur.