Opinion
39388.
DECIDED JUNE 18, 1962.
Involuntary manslaughter. Berrien Superior Court. Before Judge Lott.
Elsie H. Griner, Edward Parrish, for plaintiff in error.
Vickers Nugent, Solicitor General, contra.
The verdict finding the defendant guilty of involuntary manslaughter in the commission of an unlawful act was authorized. The court did not err in overruling her motion for a new trial consisting only of the usual general grounds.
DECIDED JUNE 18, 1962.
Alice E. Harris was convicted of involuntary manslaughter in the commission of an unlawful act under an indictment charging her with murdering Dock Crawford "by putting strychnine in a bottle containing intoxicating whisky" with the intent and purpose that the same be drunk by him.
Walter Gaskins, Sheriff of Berrien County, testified: ". . . I know Alice Harris who is in court. I knew Dock Crawford and I had occasion to make an investigation concerning Dock Crawford . . . and I went to the hospital to see Dock Crawford. I talked with Dock about what had happened and he told me that he found some whisky in his car that morning. He and Pete Burton were laying on the bed side by side there, in the hospital bed, and he told me that he was having some terrible cramps in his stomach, and that he had drunk some whisky that they found in the car — that he went to sit down in the car and he sit down on the whisky, was how he found it. It was under his coat, and he pulled the whisky out and he drank some and Pete drank some, and it must have had poison in it. It wasn't very long that Dock lived after he was talking with me, a matter of three or four hours, I believe. . . Dock stated that he did not know how the whisky got there. . . All the statements that Dock Crawford made to me were . . . in the presence of Pete Burton and Alice Harris. I later questioned Alice Harris. At the beginning Alice told me that she didn't know anything about it. We talked to Alice at her house first. The ones who talked to Alice were me, Hugh Smith, Vinson Grantham and Roy Luke, and later we talked to her right here in the grand jury room. . . Her rights were explained to her and we explained that she had a right to make a statement or not to make a statement. We explained to her that anything she stated would be used for or against her. To begin with we told Alice we had found where the poison had been bought, and that we had her signature there on the book — she signed for the poison; that we also had ways of checking that — we could compare her signature with that, and there was a person who could identify her signature. So, after a little while she admitted buying the poison. She stood up in this window over here and pointed across to the drug store Union Pharmacy. She said that she bought some strychnine there. She said that she told them she bought it to kill a fox. . . She told me that she put a small amount in that whisky that Dock drank. She said that she put the whisky in the car. She told me that she didn't want to kill Dock — that she wanted to make him sick. . . She told me that she poured the rest [strychnine] out on the ground at the northwest corner of the house and took a hoe and dug it up and covered it up with the dirt. . . This occurred in Berrien County, Georgia. We have a written statement signed by Alice. . . After I made the investigation at the hospital, I . . . talked with her again. . . At that time she bursted out and acknowledged it. Dock had already died." He further testified that he went to see if Alice had poured strychnine at the corner of the house, and "There was hoe sign there. I couldn't say that the poison was in the dirt, but the hoe sign was there, just like she said. She told me why she wanted Dock to quit drinking whisky. She told me Dock was mean to her. I presume from what they said that they lived together as husband and wife, and had been for several years. She told me that Dock was fairly decent to her when he was sober, but when he was drinking he was very dangerous, and on lots of occasions he beat her almost to death, and that he had threatened to kill her while he was under the influence of whisky, and that she loved him and wanted to live with him, but couldn't go ahead with him drinking like he was, and that she put the poison in there not in an effort to kill him, but to make him sick so he would stop drinking whisky and wouldn't be afflicted with that misfortune. . . Alice told me that she intended for Dock to drink this liquor. . . I was unable to tell whether there was any strychnine in the place I found by her house in the ground or not. I had the whisky bottle. I dropped it on the pavement and busted it. While I had it, I looked at it. There wasn't enough strychnine in there that I could see it." The sheriff further testified that he exhibited to Alice Harris the book kept by Union Pharmacy showing the purchaser of strychnine as having signed the name of "LaVerne Harris," and she stated that she signed the name "LaVerne Harris." "She explained why she used a different name. She said that she had a sister named Laverne that lived in Thomasville, and she decided to use her name."
R. H. Watson testified: "My name is R. H. Watson. I am a druggist. My business is in Nashville, Georgia. I dispense poisons and drugs as a druggist, including strychnine. On June 20, 1960, I dispensed strychnine to a person, that person being a colored woman. I cannot identify that colored woman. She gave the name of Harris, but the first name is illegible. She purchased one-eighth of an ounce of strychnine. The name of my business is the Union Pharmacy. It is located on the west side of the court house. The entry I made was on June 20. The entry says: `One-eighth of an ounce strychnine sulphate to kill foxes.' Signed by me and by the purchaser. This book and entries is a book kept by me in my place of business for the purpose of recording sales of poisonous drugs. . . I won't identify this woman as the woman that purchased the strychnine, but it was a colored woman. I am a licensed druggist. . . It [strychnine] is given in small quantities for heart trouble. When you put it in your mouth, it will go directly into your blood stream without ever going into your stomach and give instant action by the process of osmosis. . . It is a quick poision. . . It kills by throwing into convulsions."
Dr. W. A. Dixon testified, in part, as follows: "I am a practicing medical physician in Nashville. . . The course of study which I have described includes the study of poison and the effect poisons have upon the human body. I had occasion on or about the 21st day of June, 1960, to see Dock Crawford, a colored man. I saw him five minutes of seven in the morning. . . There was a stiffness in the legs and there was a swelling in his abdomen, and he was rather anxious about his condition. The symptoms I have described, the stiffening of the legs and the swollen abdomen, are symptoms usually associated with a person having had a dosage of strychnine. . . He died about 9:15 that morning. He lived about two hours and ten minutes after I saw him. . . The symptoms I have described are symptoms usually associated with a person having an intake of strychnine in his body. I have been appointed medical examiner by the State. I held such appointment at that time. In line with my duties as medical examiner, I performed an autopsy. I removed the stomach, both kidneys, one lobe of the liver, and took a blood sample and sent to the State Crime Lab. . . Later, after that had been done, I was furnished with reports and charts which are now a part of the hospital records with which I am associated. Laboratory reports and hospital charts and records kept by the hospital with which I am associated and my office are kept in the regular course of my business. The cause of death of Dock Crawford was strychnine poisoning. The symptoms and signs shown by the patient would be compatible with that conclusion. Based upon the signs and symptoms which I observed and the observation that I made myself without reference to the reports, I could say poison was the cause of death. I could not limit it. I couldn't say what kind, probably strychnine. . . Strychnine works fast. These men had had it for two hours when I first saw them, and one got well [Pete Burton] and the other lived approximately two and a half hours after [ he was admitted to the hospital]. . . Strychnine is a poisonous drug. It is a drug likely to produce death if administered in quantity above that prescribed, for instance, for heart disease. . . In my opinion as a doctor, Dock Crawford had enough strychnine in his body to produce death, and that strychnine was the cause of his death."
Another witness testified to the effect that the defendant admitted to him that she poisoned Dock Crawford.
A record book of Union Pharmacy was admitted in evidence showing the following entry: "One-eighth of an ounce strychnine sulphate to kill foxes." Signed by Dr. R. H. Watson, as seller, and "LaVerne Harris" as purchaser.
The defendant, Alice Harris, made the following unsworn statement: "Well, gentlemen, I was scared of him. He just beat me and cursed me and kicked me and treated me like a dog. I couldn't stay in the house. I stayed outdoors. I was sick and he make me get outdoors — I'd have to get down and crawl outdoors to get out of his way to keep him from killing me. He would have his gun after me, and if he didn't have the gun he had his butcher knife after me. He treated me like a dog, because I was scared of him and I was sick. I had cancer. I couldn't help myself, and he just bothered me all the time. Of course, I didn't give him this stuff to kill him. I didn't give it to him. I put it in the car — just a tiny bit. It might make him sick where he would quit drinking whisky so I could stay in the house. I called the officers many times at night. They'd carry him and put him in jail. He'd get right out and come back and the same thing over. He said, `If you get Walter Gaskins I'll kill you.' I said, `Well, why do you want to kill me?' He didn't care nothing about me. And I got scars from my head to my feet where he kicked me. I was sick and couldn't help myself. And the night before I give him that stuff he beat me and kicked me. I went outdoors and stood behind the house. He was in the house. He wouldn't let me come in the house. I stayed out there I don't know how long. I found the whisky in the car and I poured just a little in this bottle and set it in the car where he would go in the car he would find it. I didn't know if he was going to find it or not. But I got outdoors — I stayed outdoors and he did not go to the car that night. So went on in — stayed outdoors until he went to sleep. I had to do that and then I goes and crawls in the window and crawls under the bed, and so he wakes up next morning and looks for me, and he fumbles around there and he found me. He says, `You bitch, you,' and he took and shoved me back behind the bed and pushed me. He says, `You better go to sleep, God damn it, before I kill you.' I couldn't go to sleep but I lay there in the bed. So they went on out there, and I just give it to him to make him sick. I wanted to make him sick, but I didn't want to kill him because I did love him. He had done enough to me a long time ago for me to have left him, but I didn't have nowhere to go. Everything in the house was mine. He didn't have nothing there. And so far as me doubling the dose, I didn't never double the dose, for I didn't even give him the first. But I loved Dock and I didn't really mean to kill him, but I meant for the stuff to make him sick. And he just beat me up. I got scars where he kicked me like he would kick a dog, and knocked me, and I called the law — Mr. Gaskins. I had him arrested twice before Monday come. He jumped on me. And I just stood all I could, but yet I didn't mean to kill him. I just meant to make him sick. I didn't want to hurt him because I loved him. And that's all my statement, because I sure didn't mean to hurt him, but I sure meant to make him sick. And I couldn't shut the door — couldn't shut the house. He would tear the door down and go on in. I stayed in his dog house about as much as he did, scared to come out, afraid he would kill me. I couldn't go in there because I was scared of him. I'm sorry. I hate it worse than anybody, because I didn't mean to kill him, and I didn't give it to him, I just put it in the car, and I didn't give him anything else. But I didn't give it to him."
Movant contends that the jury's verdict should be set aside because the evidence demanded a conviction of murder or acquittal and that the law of involuntary manslaughter was not involved in the case.
The defendant, in her statement to the jury, said: "Of course I didn't give him this stuff to kill him. I didn't give it to him. I put it in the car — just a tiny bit. It might make him sick where he would quit drinking whisky so I could stay in the house." And, "I sure didn't mean to hurt him, but I sure meant to make him sick." It is obvious that when the defendant referred to "stuff," she had reference to strychnine. "It is . . . well settled that it is the prerogative of the jury to accept the defendant's statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited." May v. State, 24 Ga. App. 379, 382 ( 100 S.E. 797). "An admission of the accused in open court, made as a part of his statement on the trial, may be treated by the jury as direct evidence of that fact." Hargroves v. State, 179 Ga. 722 (4) ( 177 S.E. 561). To the same effect see Barbour v. State, 66 Ga. App. 498 ( 18 S.E.2d 40).
In the trial of one for murder, if there is any evidence to raise a doubt, even though slight, regarding the intention to kill, the court is required to charge upon the subject of involuntary manslaughter. Balkcom v. State, 86 Ga. App. 513 ( 71 S.E.2d 554). The defendant's extra-judicial admission to the sheriff and her statement to the jury on the trial of the case were exculpatory insofar as they related to the issue as to whether or not she intended to kill Dock Crawford, a necessary ingredient of the offense of murder, but inculpatory insofar as they related to the offense of involuntary manslaughter in the commission of an unlawful act. The evidence, when considered in connection with the defendant's statement to the jury, would not authorize an acquittal under any theory. Therefore, the defendant will not be heard to complain since she was convicted of the lowest grade of unlawful homicide involved under the evidence and her statement. See Canady v. State, 23 Ga. App. 375 ( 98 S.E. 188); Lewis v. State, 17 Ga. App. 195 ( 86 S.E. 413); Partee v. State, 19 Ga. App. 752 (4) ( 92 S.E. 306); Robinson v. State, 109 Ga. 506 ( 34 S.E. 1017).
"The essential elements of the offense of involuntary manslaughter in the commission of an unlawful act are, first, the intentional commission of an unlawful act, and, second, the killing of a human being without having so intended, but as the proximate result of such intended act." Wells v. State, 44 Ga. App. 760 (1) ( 162 S.E. 835).
In an assault with intent to murder case the Supreme Court stated: "Where the accused put a deadly poison into coffee with the intent and purpose that the same should be drunk by another, who without knowing of the presence of the poison actually drank of the coffee, the poison was `administered' to him by the accused, and in so doing the latter committed an assault." Johnson v. State, 92 Ga. 36 (2) ( 17 S.E. 974).
In Brown v. State, 57 Ga. App. 864, 867 ( 197 S.E. 82), this court quoted with approval the language of 4 Am. Jur. 125, Assault Battery, § 2, as follows: "[A battery is the] `Unlawful touching or striking of the person of another by the aggressor himself or by any substance put in motion by him, done with the intent of bringing about a harmful or offensive contact or apprehension thereof which is not legally consented to by the other and not otherwise privileged.'" And further stated: "Any act of physical violence (and the law will not draw a line between different degrees of violence), inflicted on the person of another, which is not necessary, is not privileged, and which constitutes a harmful or offensive contact, constitutes an assault and battery."
4. "Administering poison or any other harmful drug or substance to a person, with intent to inflict injury, amounts to assault and battery." 6 CJS 924, Assault Battery, § 70.
The jury was authorized to find from the evidence and the defendant's statement that she put strychnine, a poison, in a bottle of whisky with the intent and purpose that Dock Crawford would drink the whisky, and that, without knowing of the presence of the poison, he drank part of the whisky, and, in so doing, the defendant committed an assault and battery upon Dock Crawford, and as a result thereof he died. Under all the facts and circumstances in the case it was a question for the jury to determine whether the defendant intended to kill the deceased. See Myrick v. State, 199 Ga. 244, 249 ( 34 S.E.2d 36).
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.