Opinion
14998.
NOVEMBER 15, 1944.
REHEARING DENIED DECEMBER 4, 1944.
Murder. Before Judge Hooper. Fulton superior court. July 22, 1944.
C. G. Battle and Barrett Hayes, for plaintiff in error.
T. Grady Head, attorney-general, John A. Boykin, solicitor-general, Durwood T. Pye, J. R. Parham, and Victor Davidson, assistant attorney-general, contra.
1. The general rule that a charge on the law of circumstantial evidence is required without request, is applicable only when the case is wholly dependent thereon. Cliett v. State, 132 Ga. 36 ( 63 S.E. 626).
( a) The prisoner in his statement said: The deceased "picked up something and knocked me against the telephone pole and I hit him back. I walked off and left him. That is all I know about it." The defendant had been indicted for the murder of Bassett by striking, beating, and wounding him with a piece of cement tile. Witnesses testified that the body of the deceased showed that his head had been crushed by some heavy object, and his skull broken through. A physician testified that in his opinion the use of a blunt instrument had caused the death of the deceased. The testimony further showed that at the place where the body was found there were several pieces of cement, one of which had blood upon it. Another witness, an officer, swore that, after the defendant was arrested, the two drove to a point near where another witness testified that the accused and the deceased were seen together on the night when the latter received his injuries; and the officer swore that "he [the accused] said that was the place. He showed us in the alley where he dragged the body and left it there." Under the preceding testimony and the statement of the defendant, it can not be held that the case was one wholly dependent upon circumstantial evidence. Compare McElroy v. State, 125 Ga. 37 ( 53 S.E. 759).
2. A female witness for the State having testified that shortly before the homicide, the defendant grabbed her by the arm, it was not error to overrule a motion for mistrial, that the solicitor-general in answering an objection to the reception of the testimony stated to the court that the occurrence happened "before he killed this man;" the evidence further showing that this happened at or near the time she was having a check cashed; that thereafter she and her sister started walking home, that the defendant walked in the same direction; that they saw the deceased, and talked with him; that the two girls turned into another street; but that the accused walked on and caught up with the deceased; there also being evidence to support the State's theory that the deceased was robbed at the time of the homicide. It was competent to show the conduct of the accused before, as well as at the time of and immediately following the killing. Lewis v. State, 196 Ga. 755, 759 ( 27 S.E.2d 659).
3. It affords no ground for new trial that the court omitted to charge, without request, that all admissions should be scanned with care and confessions of guilt should be received with great caution. Patterson v. State, 124 Ga. 408 ( 52 S.E. 534).
4. There was no error in charging the jury that: "You are made the judges of both the law and the facts in criminal cases. The law is given you by the court, and by this charge you are bound." Mims v. State, 188 Ga. 702, 705 ( 4 S.E.2d 831).
5. The judge in his charge having instructed the jury that "good character if shown may be sufficient to create such a doubt of guilt as to justify or require an acquittal," an exception is without merit which complains that the judge refused a written request to charge that, "No matter how conclusive the other testimony may appear to be, the character of the accused may be such as to create a doubt in the minds of the jury and justify his acquittal."
6. It is not cause for new trial that the jury was charged as follows: "If it should be shown that the accused killed the person named in the indictment, the law would presume that the homicide was malicious until the contrary appears, unless the evidence adduced by the State shows justification or mitigation or excuse, and if it should not so appear from the evidence of the State, it would devolve upon the defendant to show such justification, mitigation, or excuse." Etheridge v. State, 187 Ga. 30 ( 199 S.E. 185).
7. It is not a meritorious ground of a motion for new trial that the judge, in charging the law as to voluntary manslaughter, instructed the jury that, "In all cases of voluntary manslaughter there must be some actual assault upon the person killing or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances sufficient to justify the excitement of passion and exclude all idea of deliberation or malice, either express or implied." Such is the law. Code, § 26-1007.
8. The remaining special grounds, with which the foregoing rulings do not deal, have been examined. They are either amplifications of the general grounds or else relate to rulings admitting testimony over the objection that the same was either irrelevant, immaterial, prejudicial, or a mere conclusion. None of the rulings admitting, over objection, any or all of the testimony set forth in the accompanying statement of facts would justify this court in granting a new trial.
9. The verdict was supported by the evidence, and the judgment refusing a new trial is
Affirmed. All the Justices concur.
No. 14998. NOVEMBER 15, 1944. REHEARING DENIED DECEMBER 4, 1944.
Golden Booth was convicted of the murder of William Bassett. On the trial, the following evidence was submitted: Miss Jimmie James testified that, on the night of the homicide, she saw the deceased, a cripple, walking along Bankhead Avenue, followed by the defendant; the two men were talking. Just before this, the defendant had approached the witness and "squeezed my arm," after which he walked along and got into conversation with the deceased. Dr. Blalock testified: In December, 1943, he examined the body of William Bassett, who was dead with compound fracture of the skull. "There were many injuries on the outside of the skull and a part of the skull had collapsed." A cement block, such as portrayed in a photograph exhibited to the witness, could have caused these injuries. J. W. Smith, a police officer, testified: On the night of the homicide, he received a call and went to 898 Bankhead Avenue, where he found a bloody cement block "just this side of the alley." He found blood on the sidewalk "where [the deceased] received the wound, and there was blood leading from there to the mouth of the alley. . . There were some marks on the sidewalk that looked like the man had been dragged up the alley." George Cornett, a photographer, identified photographs of the deceased, Bankhead Avenue, and an alley; and they and a cement block, identified by the witness, were admitted in evidence. Miss Elsie James testified to the same effect as Miss Jimmie James, that the defendant and the deceased were together on Bankhead Avenue near the scene of the homicide at about 11:30 on the night of the homicide. W. M. Lashley, son-in-law of the deceased, testified that he went to the scene of the homicide on the early morning following the killing, looking for a check, which was exhibited to the witness, but he did not find the check. "It was not down there." Eugene New testified that he found a check on the ground at the scene of the homicide the following morning, and turned this check over to his boss. Mrs. Bassett, widow of the deceased, identified the clothing her husband was wearing at the time he was killed, and it was admitted in evidence.
I. G. Cowan, a police officer, testified that he arrested the defendant in March, 1944, several months after the homicide. "When I first arrested him, he said he didn't know anything about it." The witness talked to the defendant later that day. "I stated to him that the girls had come up and stated he was out on Bankhead Avenue on December 18th. Then he stated that he saw Mr. Bassett that night, and that Mr. Bassett had cursed him for following, and he asked Mr. Bassett if a man didn't have a right to walk along there, and claimed he was not following him. He insisted that Mr. Bassett hit him on the side of the head several places, and he hit the old man and knocked him down, and then walked on down to Simpson Street. I asked him how he got blood on his clothes, and he said he got some on this fellow's pants. I asked him the next morning if he had been in a fight, and he said, no. Later on, I came back to him and he was reading a paper, and the paper said Mr. Bassett was murdered." The court: "Are you referring to what the defendant said to you?" "Yes. Later when I came back, he said he had nothing to do with this murder. He said he didn't have anything to do with it. I called his attention to the fact that he said or suggested that there was a fight out there; but he said that he had some words with Mr. Bassett, and Mr. Bassett left first. He said he hit Mr. Bassett with his left hand, and Mr. Bassett had his right hand in his overcoat pocket, and he said he was afraid he had a knife. He didn't say that he saw anything in Mr. Bassett's hand. He said Mr. Bassett asked him, was he following him. . . I asked him how he did it, and he said Bassett hit him in the face and knocked him up against a telephone pole. He said he knocked him down. He said he didn't know until next day that Mr. Bassett had been killed." J. H. Crankshaw, a police officer, testified that the defendant pointed out the scene of the homicide, and made admissions concerning it. "He showed us up in the alley where he dragged the body and left it there. . . He admitted it freely and voluntarily."
Several witnesses testified, on behalf of the defendant, that he was a man of good character. The defendant in his statement said: "I was walking down the street, and this fellow asked me was I following him, and I said, `No.' He asked me, was I fixing to rob him, and I said, `No, I was not.' Then later he picked up something and knocked me against the telephone pole, and I hit him back. I walked off and left him. That is all I know about it. I know I didn't kill him; I know that."
J. H. Crankshaw was again called to the witness stand. He testified that one Phillips had been arrested by the coroner as a material witness. "Defendant and Phillips were together when we discussed the case with defendant. Defendant said he drug Mr. Bassett in the alley and hit him with one of these pieces of cement; he said he hit him with a piece of tile."
The jury returned a verdict of guilty. Booth filed a motion for new trial on general and special grounds, and to the judgment overruling his motion he excepted.