McDowell v. State , 78 Ga. App. 487 ( 1949 )

1. The voluntary testimony of a witness at a former trial of another party for homicide is not privileged on the trial of the witness himself for the same homicide. It may be given in evidence against him as an admission. Burnett v. State, 87 Ga. 622 (13 S.E. 552); Sheppard v. State, 68 Ga. App. 127 (22 S.E.2d 347).

2. The evidence in the instant case was sufficient to authorize the jury to find that the corpus delicti was proved. It was substantially the same on this subject as that introduced in the trial of the case of McDowell v. State, 78 Ga. App. 116 (50 S.E.2d 633), involving the same homicide, and the court there held it to be sufficient.

3. The evidence authorized the charge on conspiracy to commit the unlawful homicide of murder. McDowell v. State, supra.

4. The evidence introduced by the State authorized a verdict for murder; the statement of the defendant to the jury, if credible, authorized an acquittal; there is, however, no view of the evidence or the defendant's statement to the jury under which a verdict for voluntary manslaughter could be legally rendered, and the court erred in charging the jury on the law of voluntary manslaughter.

5. The other assignments of error on the charge of the court were not meritorious.

DECIDED JANUARY 27, 1949. Mote McDowell and his brother, O. B. McDowell, the defendant in the instant case, were jointly indicted for murder. Mote McDowell was tried separately and found guilty of voluntary manslaughter and sentenced to from 18 to 20 years in the penitentiary. See McDowell v. State, supra. On the trial of the instant case, O. B. McDowell was found guilty of voluntary manslaughter and sentenced to from 5 to 10 years in the penitentiary.

The material portions of the evidence are as follows: Woodie Thurman, a witness for the State, testified: ". . I knew Marvin Thomas in his lifetime. He is dead. I know the defendant, O. B. McDowell. On the 23rd day of February, 1947, I went with Marvin Thomas out to the home of O. B. McDowell. . . It was on a Sunday, somewhere around two or three o'clock. Marlin Thomas, a brother of Marvin Thomas, was with us on that occasion. Marlin Thomas and Marvin Thomas were twin brothers, and one was called `Black Boy' and one `Fat Boy.' . . We all were shooting craps there that Sunday. In about an hour after we started shooting craps an argument arose. We won money from O. B. McDowell and Mote McDowell and O. B. and Mote got mad. O. B. McDowell jumped up and grabbed his shotgun and wanted to start something. O. B. McDowell asked me to loan him some money and I told him that I didn't have any to loan, but I did give him fifty cents and told him that I wasn't going to shoot any more dice, and then is when he jumped up and grabbed his gun from behind the dresser. It was a single barrelled shotgun. When he jumped up and grabbed his shotgun, I grabbed it and took it away from him and carried it through the other room and put it under the bed. Mote McDowell Dowell then struck out for his home and got his shotgun. I then walked out of the house and started to the car and about that time Mote McDowell was coming back up the road with his shotgun and he [Mote McDowell] shot at me and I struck out. I saw him coming back up the road with his shotgun and I broke and run around the corner of the house. I don't know what O. B. McDowell did at that time because when I came out of the house I didn't see him, he came out behind me. As I went to running around the house a shotgun fired twice, but I don't know which one fired the gun. Mote McDowell had got up in the yard at the time I started running around the house. O. B. McDowell was in the house at that time. I did not see O. B. McDowell with a shotgun at that time, because when Mote shot I run. I don't know how far I run but I run a good piece. No shots hit me. I didn't know where the defendant, O. B. McDowell, was at that time or what he was doing. I didn't see him any more. I run on down the road and come back and got my car. I did not see Marlin Thomas or Marvin Thomas either one at that time. Several days later I went back up there with Sheriff Pope to search for the body of Marvin Thomas. I saw the body after it was found. Jesse Ussery was the first one to find the body, which was down in some pines behind O. B. McDowell's house. . . Marvin Thomas was dead at that time. The weather was very cold at that time and had been for several days previous. The body was all torn up. I don't know whether the body was frozen or not. There was nothing inside the body of Marvin Thomas when he was found. One eye and one arm was gone. The body was then turned over to the undertaker. . ."

On cross-examination Thurman testified: "There were some there that day that I didn't know. Me, Marvin Thomas, `Fat Boy,' O. B. McDowell and Mote McDowell and two more boys, whose names I didn't know, were there on this occasion. . . I fell around the corner of the house as I run. I don't know who Mote McDowell was shooting at. When I fell I could hear the shots going over my head. I was out at the car and saw Mote McDowell shoot the first time, and when the next shot was made I was going around the house and the shot went over my head. I fell over a fence down below O. B. McDowell's house as I was running away from there. I didn't pay any attention as to whether there was a hill back there or not because I was in a hurry to get away. I fell in the yard once and then I fell again over the fence and hurt my shoulder. Those shots were fired at me."

Marlin Thomas, a witness for the State, testified: ". . I am a brother to Marvin Thomas. He was my twin brother. He is dead. He, Woodie Thurman and myself went out to the home of O. B. McDowell on the 23rd day of February, 1947, and were shooting dice. Woodie and myself won the biggest portion of the money in the crap game and O. B. McDowell and Mote McDowell got to arguing about it and got broke and wanted to borrow some money from us. After O. B. McDowell and Mote McDowell got broke they wanted to start a fight and O. B. McDowell run and got his gun out of the rack up over the head of the bed, and Woodie Thurman took it away from him and hid it, and Mote McDowell went and found it and Woodie took it away from him and put it back under the bed ticking. Woodie Thurman did not try to shoot anybody with the gun. My brother did not try to hurt anybody in any way. When Woodie took the gun away from Mote McDowell he broke and run home and got his gun, and O. B. McDowell then went and found his gun again where it was hid under the bed ticking. About that time Mote McDowell run back up there in the yard and shot, and O. B. McDowell was standing there on the porch with his gun. The last time I saw my brother, Marvin Thomas, and Woodie Thurman they were going around the corner of the house. There were two shots made when I left and went to the right of the house. The last time I saw the defendant, O. B. McDowell, he was standing on the porch with the gun in his hand, and my brother and Woodie had gone around the corner of the house with Woodie Thurman in front. I also run from the house. I am positive that Mote McDowell shot his gun at that time. I left and run home. I did not see my brother, Marvin Thomas, any more after that time until his body was found down below O. B. McDowell's house. Marvin Thomas was dead and is buried. I have seen his body since that time. I have not seen him in life since that Sunday. The next time I saw his body was some four or five days after that and it was down below O. B. McDowell's house. Sheriff Pope, Woodie Thurman, and Jesse Ussery were with me at the time Marvin Thomas' body was found. . . The body of Marvin Thomas was found about as far from O. B. McDowell's house as from here across the street over there. His body was all to pieces. . ."

Abe Trimmer, the undertaker who embalmed the body testified that the body of the deceased was mutilated and most of the flesh had been removed from the bones but that he could not say whether or not this had been done by a human being.

Alene Thomas testified for the State: "I am a sister to Marvin Thomas. On the afternoon of February 23, 1947, I was riding out in this county with Jane Ussery, my sister and cousin, that is, Pauline Thomas and Jeanette Greer. I know where O. B. McDowell lives in this county. We passed his home on that occasion. As we passed his home I saw my brother running around the corner of the house. I did not see anyone in front of him. I did not see Woodie Thurman on that occasion. I did not see O. B. McDowell at that time. I saw Mote McDowell shooting a shot on that occasion. He was shooting to the left of the house in the same direction my brother was running at that time. I don't know who he was shooting at but he was shooting in that direction. When Mote McDowell shot, my brother fell at the corner of the house. He fell after Mote McDowell shot toward him. I heard the shot and saw my brother fall. The car I was in did not stop, it kept going down the highway. I didn't hear but one shot. We went on home. Marvin Thomas did not come home that night. My other brother, Marlin Thomas, came in home that night. I have never seen by brother, Marvin Thomas, alive since that day I saw him running around the corner of O. B. McDowell's house. I have seen him dead since that time. I don't know what caused the trouble."

Pauline Thomas and Jeanette Greer testified to substantially the same facts as Alene Thomas. Robert James Lewis, the driver of the car, did not testify on the trial.

J. D. Pope testified for the State: "I am Sheriff of Butts County. On or about the 23rd of February, or several days after that, I went up in the section of the county where O. B. McDowell and Mote McDowell live, searching for Marvin Thomas at the request of Mr. Dan Freeman and some Negroes that worked for him. At that time I had a warrant for the McDowell Negroes for assault with intent to murder that was sworn out by Woodie Thurman. When I got there I picked up O. B. McDowell at his home and went across the creek and met Mote McDowell and placed them both under arrest. Mr. Dale Cole was with me. About five or six Negroes, I don't know all of their names, joined in the search for the body of Marvin Thomas, where he was last seen. I did not threaten them in any way, nor offer them any reward or inducement to make a statement with reference to the body. The statements were made freely and voluntarily. Both of them said: `I bet you won't find any shot in him.' We handcuffed them together and went to where the body was found down in a pine orchard down back of O. B. McDowell's house. The largest pine was about four inches in diameter. There was no evidence on any of those trees to indicate that they had been hit sufficiently hard enough by a man to have produced death. Mote McDowell and O. B. McDowell also showed me a tree, about four or five inches around . . and said `that is the tree he run against and killed himself.' I did not find any evidence that anything had hit any of those trees. There were several limbs close to the bottom and I touched several of them and they broke off, but further down was one tree, about that big around, that had a skinned place close to the ground, about an inch or two from the ground, just the bark was knocked off a little bit. The body of Marvin Thomas was lying in that area, kinda to the right side, with the right side of his face down, and when we turned him over his right arm was gone, and there was a little place under his eye here that looked like something had stuck in it. His left arm and sleeve was in perfect condition. He was tore up down through here. All of this part of his body was gone, the back bone, ribs and all were gone from here down to his knees. The ground and the body were frozen, and the ground was all spewed up and had been for about nine days. I did not observe any offensive odor about the body. If it had not been for the freezing weather I would not have been able to get around the body. I didn't see any parts of his body around on the ground. We looked all around in the pine orchard and walked around in the woods for about a half of a mile and on down to the sawdust pile to see if we could find the arm but we couldn't find it. This arm and shoulder all was gone from the body. I don't know whether this flat bone is called the scapula or not, but there was a hole in this bone here about that size, or between a quarter and a half dollar and was a round hole. I did not see any evidence of any animals or vultures having been near the body. The briers were mashed down on both sides, and there were some blackberry vines there. I have been Sheriff of Butts County since 1941. During that time it has fallen to my lot to investigate many homicides and many bodies that had met a foul death. I am familiar with the human anatomy. I can not qualify as a doctor. I have had occasion to investigate forty or fifty bodies where they had met foul death since I have been sheriff and during the time my father was sheriff. The wounds on the body of Marvin Thomas were straight wounds, that is straight down the neck it was cut around here, and straight through the middle of the stomach. It wasn't a zigzag cut, it was straight down. This side of the skin was laid back. You could fold the skin back this way, or back this way. His clothes were lying down over his knees. The flesh, bones, pants and everything from his knees down were in perfect condition. I am familiar with these two guns. Both are single barrel guns. This is O. B. McDowell's gun and has his initials on it, and this is Mote McDowell's and it has his initials on it. O. B. McDowell's gun has a Prince Albert can nailed around the stock and handle. I found O. B. McDowell's gun in his home and Mote McDowell's gun in his home, and they had been recently discharged. These guns have been in my possession since the trial of this case last August and were introduced at that trial. I heard the defendant, O. B. McDowell, testify as a witness at the trial of Mote McDowell, last week. No one coerced him nor offered him any reward, and he testified at that time that he shot at Woodie Thurman as he went around the corner of the house. . ."

The defendant made a motion for a new trial which was overruled and he excepted. 1, 2, 3, 5. None of the rulings made in the headnotes require elaboration save that in the fourth and we shall discuss only that ruling here.

4. The evidence in the instant case would have authorized a verdict of murder, but it would not have authorized a verdict of voluntary manslaughter. The defendant's statement to the jury, which in its entirety was: "Well, gentlemens of the grand jury, the case they have got me accused of I am not guilty," if believed by the jury would have authorized an acquittal. There is no view of the evidence or the statement of the defendant to the jury under which a verdict of manslaughter could have been legally rendered and it was reversible error for the court to charge the jury on the law of voluntary manslaughter. Dyal v.State, 97 Ga. 428 (25 S.E. 319); Herrington v. State,125 Ga. 745 (54 S.E. 748); Lester v. State, 125 Ga. 747 (54 S.E. 749). Consequently a new trial should have been granted and the court erred in overruling the motion for a new trial.

It might be noted here that in the case of McDowell v.State, supra, Mote McDowell was there jointly indicted with the defendant in the instant case and separately tried for murder, found guilty of voluntary manslaughter, and sentenced to from 18 to 20 years in the penitentiary, but that case is differentiated from the instant one in that Mote McDowell there made a detailed statement to the jury of what happened at the time of the homicide from which statement in connection with the evidence the jury was authorized to find a verdict of voluntary manslaughter while here the defendant, O. B. McDowell, in his statement to the jury merely said, "I am not guilty," of the crime of which I am accused and there was no view of the evidence or the defendant's statement under which a verdict of voluntary manslaughter could be rendered.

Judgment reversed. Gardner and Townsend, JJ., concur.