1. Where there is no evidence that a person 18 years old can not distinguish right from wrong, is afflicted with insanity or is otherwise incompetent to commit the crime charged in an indictment, the court properly omitted from the charge to the jury reference to the provisions of Code Ann. 27-1503 and Code 26-301 relative to situations in which the defendant is insane or mentally incompetent to be accountable for the commission of a crime.
2. Ordinarily that to which opposing counsel consent during the progress of a trial can not be assigned as error.
3. The general grounds of the motion for new trial are properly overruled where only the ground that "the verdict is without evidence to support it" is insisted upon in this court and the evidence amply authorizes the verdict.
Ollie Chandler was indicted by the grand jury of Lowndes County for the murder of Hugh V. Lane, Jr., on May 22, 1962. On November 29, 1962, he was convicted of the offense charged in the indictment.
The State introduced into evidence a written confession signed by the defendant, after the document had been identified and proof had been submitted that it was legally obtained. The confession reads: "I, Ollie Chandler, make the following statement to Lt. Hugh E. Smith, Special Agent with the Georgia Bureau of Investigation, and to Billy Cowart, Chief Deputy Sheriff, Lowndes County, Georgia. I make this statement freely and voluntarily without use of force, duress, reward or hope thereof. I have been advised that I do not have to make any statement and that such statement as I may make may be used in court against me. I believe I am 18 years of age, being born on November 1, 1944, in Lowndes County, Georgia. My father's name is Johnnie Chandler and my mother's name is Letha Chandler. I attended school in Clyattville and Hahira. I completed the 9th grade in Hahira. After I stopped school I worked on the farm with my father and did other odd farm work with other people including Mr. Hugh V. Lane, Jr. I believe it was in 1956 when I quit school, from then until the present time I have done what is known as season work. I have traveled from Miami, Florida, to Buffalo, New York, doing this type work, part of this time the work would end and I would stay in Valdosta, until I could do season work again. On several occasions while the season work was out I would work for Mr. Hugh V. Lane, Jr. I would work on his farm doing odd jobs such as cleaning fence rows, planting corn and putting up fences. Mr. Lane would always pay me $4.00 a day for this type work. Most of the time I would go to Mr. Lane and ask him for work, but on a few occasions he would ask me to help him. Mr. Lane always paid me exactly the amount he promised or owed me. On Sunday, May 20, 1962, I left Hastings, Florida, on the bus en route to Valdosta, Georgia, to pick up some clothes at my mother's house. I arrived in Valdosta at about 9 p.m., May 20, 1962, and stayed with a friend, Robert Tilmore, until the next morning, May 21, 1962. I rode into town with Robert Tilmore, getting out of his car about the Coca-Cola Plant. I walked back up town in the direction of the Post Office to see if I could find anyone to ride to Clyattville with. I saw Mr. Hugh V. Lane, Jr. coming out of a feed store with a sack of feed. I walked across the street and asked Mr. Lane if I could ride to Clyattville with him, he stated he was not going night then. I asked Mr. Lane if he had any work for me to do, he said he could give me one day of work cleaning fence rows. He told me to be at his house about 8 or 8:30 a.m. the next day, Tuesday, May 22, 1962. I left Mr. Lane and walked back in the direction of the Coca-Cola Plant and below the plant where I caught a ride with someone by the name of Elbert King, a colored man, to Clyattville. I got home or to my mother's house at about 11:30 or 12 noon, Monday, May 21st. I stayed in and about my mother's house the rest of the day or night. On Tuesday, May 22, 1962,1 got up at about 7 a.m. and walked until I met Mr. Lane between Clyattville and the Paper Mill. Mr. Lane stopped and told me he was going to eat breakfast. I got in the car with him and we went on to the Paper Mill where he ate breakfast. He asked me if I had eaten, I said 'yes' and waited in the car while he ate his breakfast. When Mr. Lane finished his meal we rode to the house, he told me to get the sling out of the crib. We got in his car and rode down the road to a fence row just below his house. I got some hay out of an outhouse near the fence row and put in Mr. Lane's car. I stayed at the outhouse and cut some bushes while Mr. Lane carried the hay to the cows. He came back to where I was, told me he was going to the house where he was going to treat some hogs and he would blow the horn for me to come and help with the hogs. I would say that after about 5 minutes upon his arrival at the house he blew the horn for me. I walked on to the house but they were already through treating the hogs when I got there. Mr. Lane took me back to the fence row to cut weeds. He told me that I was not working and he didn't know if he could pay me or not. I told him I was working hard enough. He then told me if I said that again he would kick me, he then told me to come on to the house when I got through. I didn't say anything else and he did not kick me. He then told me he was going to Clyattville to make a 'phone call.' I was real mad with Mr. Lane for saying that I had not been working. I guess
it was about 5 or 7 minutes after he left that I decided to kill him for talking to me that way. I left where I was working and went to Mr. Lane's house. I figured the door was unlocked. I put my swing blade down by the woodpile. I went to the back door and found it unlocked, I had been in Mr. Lane's house before and knew where he kept his gun. He generally kept it in his bedroom behind a door. On previous occasions I had cleaned Mr. Lane's house, mopping, sweeping and so forth. I went into this unlocked but closed door; I went directly to the bedroom where he generally kept the gun. It was a shotgun, I think it was a 12-gauge automatic. I got it and went out into the livingroom to wait on him. I had already decided to shoot him when he came through this door. I first saw Mr. Lane coming through the gate leading into his yard through the bedroom window where I got the gun. I saw him get out, open the gate, get in his car, drive through, get out, close the gate and drive to the rear of his house. As soon as he drove to the back, I went into the livingroom near an old trunk and waited on him. I heard him coming through the door. I was ready for him. As Mr. Lane came through the bedroom door into the livingroom, I shot. Mr. Lane did not say anything but I believe he saw me just before I shot him. He did not say anything after I shot him either, he groaned one time after I shot him. I carried the gun back into the bedroom and placed it behind the door. I got Mr. Lane by his feet and drug him to a closet in a bedroom. I rolled and pushed him into this closet. I closed the closet door, put some pants or something in front of this closet door to cover up the blood. Out of this same room near the dresser I got a rug and a bag full of clothes, carried them to where I shot him, I covered this floor with the rug and bag. I did this so if anyone came and looked through the window they would not see any blood. After I put Mr. Lane in the closet I took his billfold out of his back pocket. I got the lock to the back door from a table in the kitchen and locked the back door as I went out. I went to Mr. Lane's car, found the key in the switch, I locked the car and threw the keys into a woodpile nearby. I knew Mr. Lane always kept his car locked, that is the reason I locked the car, I did not want anyone to get suspicious. I then took $60.37 from his pocketbook. I threw this pocketbook into an old well which was right near the house. I threw some papers down into this well to cover the pocketbook so it could not be seen. I left Mr. Lane's house between 10 a.m. and 11 a.m. I walked down the paved road from Mr. Lane's house to Clyattville. I believe I met one car between his house and Clyattville. As I was going through Clyattville and near Blanton's Service Station I saw and spoke to a Negro by the name of James Harrell. He said 'Hey, Ollie' and I said 'Hey, James.' This was all that was said between us. I crossed the railroad track and sat under an oak tree until a pulpwood truck came along. A colored boy was driving this truck, but I do not know his name. I caught a ride with this boy into Valdosta, I went straight to the bus station and bought a ticket to Hastings, Florida. I would like to say that before leaving Mr. Lane's house and after I shot him, I stopped in the kitchen and washed blood from my shoes in the kitchen sink. I got into Valdosta about noon Tuesday, May 22, 1962, and left for Hastings, Florida, at about 2 p.m. the same day. I went straight to Hastings, Florida, on the bus. After I got to Hastings I looked up my boss, Robert Fields, I asked Robert who was the woman what lived across from the boarding house. He told me and I went to this house and asked for a room. She let me have the room. I asked this woman where I was staying when Robert was going to North Carolina. She told me she thought it would be on Saturday, May 26, 1962. I asked Robert about going with him and he said I could go along with him. At about 8:30 p.m., May 25, 1962, an officer came to where I was staying and asked if Ollie lived there. He asked the woman where I was staying. She said she knew an Otis and she asked me my name and I told them Otis Williams. He looked in my pocketbook and saw my social security card, which gave my correct name as Ollie Chandler. This officer carried me to St. Augustine, Florida, and placed me in jail. On Saturday morning, May 26, 1962, Mr. Billy Cowart, Deputy Sheriff of Lowndes County, Georgia, and another officer who I later learned to be Mr. Hugh Smith with the Georgia Bureau of Investigation, returned me from St. Augustine, Florida, to Valdosta, Georgia, going by Hastings, Florida, to pick up the clothes which I was wearing when I killed Mr.
Lane. I had hid these clothes under a dresser in my room where I was staying. I have had the above statement read to me by Mr. Hugh Smith and witnessed by Mr. Billy Cowart and it is true and correct to the best of my knowledge and belief."
The defendant's confession was corroborated in minute detail by the State's witnesses, who testified to finding the deceased's house and automobile locked as stated by the defendant; his pocketbook in a well and his car keys in a woodpile where the defendant said he had thrown these articles after slaying his victim and taking them from his person; the deceased's body in a closet where the defendant had, according to his confession, placed it and rugs upon the floor of the adjoining room where the defendant admitted placing them to conceal the dead man's blood which seeped beneath the closed door.
The witnesses testified further that they found the shotgun that had been used as the murder weapon in the room where, according to the confession, the accused had left it, and in the fireplace of the room a shell identified by an expert witness as the shell fired in the murder weapon. The witnesses described the bloody clothes worn by the defendant, the blood having evidently stained them when he was placing the bloody body of the deceased in the closet after having slain him.
Dr. Loyce Turner, sworn as a witness for the State, recalled having seen the defendant on the deceased's premises during the morning of the homicide, and before the tragedy occurred. The officer who arrested the accused in Florida substantiated the account of his flight to that state and his apprehension there. Physicians who performed the autopsy on the deceased's body gave as their evidence that the deceased's death was caused by a blast from a shotgun.
The State introduced the shotgun, the shell, the car keys and the wallet, together with pictures of the room in which the homicide took place. We have not set forth all of the evidence, but enough to demonstrate that the confession was thoroughly corroborated.
The defendant made an unsworn statement: "When I worked for him he didn't pay me the money and I left and went to Florida, and come back to Valdosta and I seen him up town that Monday and I asked him for my money, and he told me he didn't have no money then, told me to come up to his house that Tuesday morning. He told me to come up to his house Tuesday morning, he would pay me and he would have some work for me to do. I went over there that Tuesday morning and he asked me did I come to work and I told him 'yes sir.' He told me to look in the crib and get the sling and put it in the car and he would take me down to the fence, and he carried me down to the fence and I went to working on the fence, and he stayed down there a little while and he asked me did I tell this girl what he told me. I told him 'no sir.' He asked me 'How come?' I told him I was scared. He said he figured I was scared. I went onto working on the fence row and he told me the doctor was supposed to come that morning to doctor his hogs and he was going on back there to the house to be there when the doctor come there, and he would blow the car horn for me to come down and help him with the hogs, and he went onto the house and in about 15 minutes I heard him blow the horn and I went on up to help him get the hogs up and when I got (there) they were through with the hogs, and the doctor and Mr. Lane was parked on the outside of the gate talking, and the doctor left and Mr. Lane told me he had to go to Clyattville to make a 'phone call,' and he told me to go back down there and get through with the fence. I went on down there and went to working on the fence and he come in about 30 minutes and I wasn't through with the fence and he got out and started cursing and asked why I wasn't through with the fence. I told him I ain't had time to get through with it, he told me I was telling lies and he kicked at me and I got out of the way, and he told me he would stomp me and work the chain-gang for me, and I went on and went to work on the fence and he kept on cursing at me, and I told him to pay me my money and I would knock off. He told me he wasn't going to pay me my money until I got through with the fence, so I went on and went to working on the fence and he told me he was going off and when he come back I better be through with the fence, and I better not leave until he got back, he say if I do leave before he got back something would happen. He left going to Clyattville and I kept working on the fence and I seen I couldn't get
through with the fence before he got back and I got scared and went to the house and carried the sling, and when I seen him coming I put the sling down at the woodpile and went to the house . . . He come back to the house to see if I got through (with the) fence, got out of the car and come in the house cursing, he was cursing and was going to the chain-gang for me, he'd been wanting to kill me a long time ago." The defendant added: "he been bringing some colored girls home with him, over to his house, he told me to tell my cousin to come over to his house."
The defendant introduced several witnesses who testified to his good character. His former teachers who taught him at Williams Elementary School testified he made poor marks, and possessed a low intelligence quotient, than he was promoted through the lower grades but failed entirely in the ninth grade. One of the witnesses testified no other pupil at the school made as low marks and offered as her opinion that "a person of an I.Q. that he has, most anything would come into his mind that may best shouldn't come in there, and he does not have the thinking ability of children with a normal I.Q. I would not think him normal, altogether." The principal of the school first stated "his I.Q. test was not very high," but at one point in his testimony expressed the opinion: his performance was average, "what we consider normal or average for that grade level."
None of these witnesses qualified as experts in the field of psychology and none of them testified he was afflicted with any form of insanity, did not have intelligence sufficient to distinguish between right and wrong or was mentally incompetent to commit the crime of murder.
Deputy Sheriff Billy Cowart testified: In his statement, the defendant stated that he was hired to do some work by Mr. Lane and he appeared to be dissatisfied with the work. He did not tell me that Mr. Lane seemed to be dissatisfied, going off toward Clyattville, and telling him to have the work done when he got back. I do not remember that he told me Mr. Lane left and told him he better have the work done when he got back. Chandler did not tell me in his statement that he got uneasy and went into the house in order to protect himself. He did not tell me when he got into the house that Lane had returned from Clyattville and that he was repeating these words, "I am going to do something that will get me in the penitentiary." In the investigation, I did not find that he was a man of low intellect. I would consider him average. Chandler said he got mad with Lane and the reason he shot him was to kill him, get his money and leave there. There is nothing in the written statement about getting money. He said that to me. He told me he got the man's money out of his wallet and the change out of his pocket. There was some discussion about Lane owing him some money. He did not tell me that Mr. Lane came into the house saying, "Today I am going to do something I expect I will have to go to the chain-gang for." "I did not hear him say anything about on the morning of the day the man was killed that Lane sent word to some colored girl down there to come up to the house by him."
The defendant filed a motion for new trial on the general grounds and thereafter added three special grounds. The trial judge denied the motion for new trial. The defendant excepted to this ruling, but before this court insists only on the general ground that the verdict was without evidence to support it, and the three special grounds.
1. Grounds 1 and 2 of the amended motion complain that the trial judge omitted reference to Code Ann. 27-1503 (Ga. L. 1952, p. 205) and Code 26-301 from his charge to the jury. The provisions of each of the statutes are applicable where there is an issue as to whether the defendant is insane or incompetent to commit the crime charged in the indictment.
In the case sub judice while the testimony of the defendant's witnesses was in conflict as to whether he was a person of average or low intelligence, there was no evidence, nor inference that could be drawn from the evidence or the defendant's statement that the defendant did not possess sufficient mind and reason to distinguish between night and wrong; that he was afflicted with any form of insanity or was otherwise incapable or incompetent to commit the crime of murder. As to the measure of mentality to render a person accountable for crime, see Mullins v. State, 216 Ga. 183
, 186 (115 SE2d 547
); Goosby v. State, 153 Ga. 496 (1) (112 SE 467)
; Summerour v. Fortson, 174 Ga. 862 (4) (164 SE 809)
; Reece v. State, 212 Ga. 609 (3) (94 SE2d 723)
The evidence presented no issue to which Code Ann. 27-1503 or Code 26-301 has reference. The judge in charging the jury properly refrained from alluding to rules of practice and principles of law not applicable to issues of the case. Mandell v. Fulcher, 86 Ga. 166 (4) (12 SE 469)
; Green v. State, 124 Ga. 343 (8) (52 SE 431)
; Culberson v. Alabama Construction Co., 127 Ga. 599 (1)
(56 SE 765
, 9 LRA (NS) 411, 9 AC 507); York v. Stonecypher, 181 Ga. 435
, 437 (1) (182 SE 605
); Paul v. State, 186 Ga. 858 (2) (199 SE 206)
; Clark v. Griffon, 207 Ga. 255
, 260 (61 SE2d 128
). The grounds are without merit.
2. Ground 3 of the amended motion for new trial complains that the trial judge permitted a written confession of the defendant which had been admitted into evidence to be sent to the jury room and to remain there while the jury deliberated. The record discloses this was done by the express agreement of the defendant's counsel made with the solicitor general in open court. With exceptions not applicable here, that to which opposing counsel agree during the progress of a trial cannot be assigned as error. Stone Mtn. Confederate Assn. v. Smith, 170 Ga. 515
, 521 (153 SE 209
). Also as to waiver of right by failure of counsel to object, see Swain v. State, 162 Ga. 777 (6) (135 SE 187)
; Cobb v. State, 218 Ga. 10
, 24 (5) (126 SE2d 231
3. The evidence submitted upon the trial of the case authorized the conclusions that the defendant slew the deceased with malice aforethought; that the motives of the killing were revenge and robbery; that there was no justification for the crime and no circumstances of mitigation attended its commission. The evidence amply supported the verdict and the judge did not err in overruling the general ground of the motion for new trial.