Opinion
18409.
ARGUED NOVEMBER 10, 1953.
DECIDED JANUARY 11, 1954.
Murder. Before Judge Fort. Muscogee Superior Court. September 28, 1953.
Cozart, Rosenstrauch Nilan, for plaintiff in error.
Eugene Cook, Attorney-General, Russell C. Davison, Jr., Solicitor-General, Rubye G. Jackson, contra.
1. The evidence was sufficient to establish the corpus delicti.
2. The evidence, which was entirely circumstantial, was insufficient to "exclude every other reasonable hypothesis save that of the guilt of the accused."
ARGUED NOVEMBER 10, 1953 — DECIDED JANUARY 11, 1954.
Will Jackson was charged with the murder of Porterfield Sheppard, by shooting him with a pistol, on April 12, 1936. The indictment was returned at the February term, 1937, of Muscogee Superior Court. The defendant was tried at the August term, 1953, and was found guilty of the charge, with a recommendation of mercy.
On the trial George Dismukes, a witness for the State, testified in substance: In 1936 he was a mortician in Striffler's Funeral Home. He prepared the body of Porterfield Sheppard for burial. He first saw the body at the city hospital on the date of the shooting. There were two wounds in the chest of the deceased caused by a revolver. In his opinion these wounds were the cause of death. On cross-examination, in reply to a question as to whether the witness knew the deceased, he stated: "I didn't know him . . . not by sight. I knew him by singing over a radio. Other than that I did not know him. I know members of his family. I was not friendly with members of his family."
Joe Green, a witness for the State, testified in substance: He knew the defendant in 1936. He was working at Brooks' service station, owned by C. A. Brooks. The defendant was also working for Mr. Brooks, at his tourist camp. On the date of the alleged homicide, in the evening, the witness was at the office of the tourist court. The defendant had been away that day. The witness was lying across the bed, and the defendant was sitting up by the door. Someone knocked on the door, and the defendant opened the door. The person at the door was a white man, and he asked the defendant something "about some people next door." The white man and the defendant went out. The witness did not know how long they were gone because he lay back on the bed. A few minutes later he heard four or five shots; he does not know exactly how many. The defendant had a gun on him that evening. The witness saw it earlier in the evening, but did not notice whether he had it when he went out with the man. The defendant customarily carried a gun when he was working at night. When the witness heard the shots, he raised up from the bed and looked out. The door was half shut, and he saw the defendant go by the door. He called to the defendant three or four times, but the defendant did not answer. The witness went to report the matter. When he returned, the policemen had come, and he helped them put the deceased in a car. "They said it was Mr. Sheppard. I didn't know him too good. It was the same man I saw leave with [the defendant]. I didn't hear anybody else call him Mr. Sheppard. . . Someone said at the station who it was, some time that evening. . . The man I helped up in the car was later identified to me as being Porterfield Sheppard." After the witness heard the shot he heard someone say, "Oh, he's done shot me, get me a doctor." The tourist camp is located in Muscogee County. On cross-examination, the witness stated that he did not remember how many cabins were in the tourist court, or how many had been rented the night of the homicide. He was half asleep when the shots were fired, and did not know whether it was one minute, five minutes, ten minutes, or an hour, after the defendant and the deceased left the cabin. He did not know from which direction the shots were fired, and could not tell if the shots were all from one gun, or whether there was an exchange of shots.
Steve King testified that he knew the defendant in 1936. On the day after Easter Sunday in 1936, he saw the defendant in some woods back of his house. The defendant beckoned to him and he went to the defendant. The defendant said he was in trouble and to see his wife and tell her to tell Doc Brooks that he was gone. The witness asked him about the trouble. The defendant said that he would read about it. The defendant did not tell the witness what he had done. The defendant said that, if he got out of Muscogee County, he believed he would be safe.
Julia Seldon testified that in 1936 the defendant was living with her mother. On Easter Sunday, April 12, 1936, she accompanied the defendant on a trip to Shellman, to spend the day with the defendant's mother. After he brought them home from the trip, the defendant changed his clothes and went to work. She had not heard from him since that time until she saw him in jail.
J. T. Spence, a captain with the police department of Columbus, testified that he did not aid in the investigation of the homicide on the night that it occurred. He later spent some time trying to locate the defendant. The defendant was not located until a few weeks before the trial.
C. R. Adair, a detective with the Columbus police department, testified: The first time he heard about the defendant was in December of the previous year. He had been working in his present capacity since 1950. He made four trips to Ohio to return the defendant. On the first trip he did not return the defendant because the defendant demanded extradition. On the second trip he attended a Governor's hearing. The defendant was there, and was using the name "John Porter." On the third trip he attended a habeas corpus hearing. He returned the defendant on the fourth trip. The defendant told them that he had gone under the name of John Porter since he left and that was his real name, and the purpose of denying his identity was that he did not want to come back to Georgia for a hearing. On the first trip to Ohio, he had a conversation with the defendant about what occurred at the camp that night, as follows: "He said that he had been up all day that day and was sleepy and had gotten Joe Green to come down there to sort of help him look out a little bit and he said he had been in Shellman, Georgia. He said that, when this man came to the door, he insisted on seeing [the defendant]. He tried to get Joe to go out and talk with him and the man insisted on seeing him, and he said that the man called him down to this cabin and demanded to know where his wife was. Will told him that he hadn't been there that day and didn't know who his wife was, and he said the man kept insisting on knowing and made him go in the cabin with him to look around. They looked around in the cabin, and while they were in there that the man struck him and knocked him to his knees. He said he got up and started to run, and that was about the time he heard some shots. He didn't know how many shots. He said that he went out of the door of the cabin and met somebody. He didn't know if it was a white man or a Negro, and he told him to run for his life and he said he ran and he didn't come back to Columbus, Georgia, any more. He told us he first went out on Bull Creek, I believe, and stayed about two days and then went up the River Road and crossed at Bartlett's Ferry and went to Smith's Station, Alabama, and caught a train for Sylacauga, and then he went to Birmingham and from there to Kentucky, and stayed in Kentucky about two years and from there to Columbus, Ohio. He said he knew the authorities in Columbus were looking for him."
The defendant made a long, rambling statement. In regard to the occurrence at the tourist camp he stated substantially as follows: He had been in Shellman that day with Alice Cook, her daughter, and others. He had worked the night before and was tired. Joe Green, who worked at the filling station for Mr. Brooks, had worked at the tourist court that day, and he asked Joe Green to stay and rent the cabins to anyone who might come that night. Joe Green went out of the cabin and came back and told him that a man wanted to see him. He told Joe Green to rent the man a cabin if he wanted one, and Joe Green told him that the man did not want a cabin, but wanted to see him. After some time he located the man standing at the door of a cabin, and he asked what he could do for him. The man asked if he was the manager and he told him that he was not, but he could show him a cabin if he wanted one. The man said that he did not want a cabin, but asked if the cabin had been rented that day. He replied that he did not know because he had not been there that day. The man asked to look at the cabin, and they went in. The man searched the cabin, keeping his right hand in his hip pocket. The man stated; "My wife is out with another man and I am looking for them and can't find them." He told the man that he was sorry. They went to the door, and the man turned around and looked back in the room, and said, "Did they leave anything here to identify themself?" He explained that he had not been there that day and did not know, and suggested that they might ask the one who was there that day. The man kept looking at him. Finally the man walked to the door and then stopped, looking at him and looking back in the room. He asked, "Well, you going out?" The man stood in the door for a minute, and finally stepped out on the ground in front of the steps. He started to close the door, and the man stepped back up in the cabin. He stepped down on the ground, and the man said, "Did she tell you her name?" He said, "No, sir, I haven't talked to anyone. Seems though you don't believe me. I'll tell you what I'll do, I'll call the boy out of the cabin and get Mr. Brooks and Mr. Joe — Mr. Brooks and Mr. Junior up here and let them talk to you because — to let you know that I wasn't here, I don't know anything about it." The man looked at him a long time with his hand back in his pocket, and said, "You ain't going nowhere, you are going to stay right here, if — you tell me what I want to know or I am going to kill you." He stood there for a while, and finally said, "I am sorry, sir, I wish I could help you but I can't." He turned his head and started to walk away and the man cut him across the mouth. He threw his hand over his head, and started running. He heard shots behind him and thought the man was shooting at him. He ran past the cabins and down into a field on his way to Mr. Brooks'. He had his hand over his mouth, which was bleeding. A man was standing beside a tree, who said, "Where are you going, old Negro?" He stopped there, seared and shaking. The man said, "You had better turn around and go the other way and run for your life . . . if you don't you are going to get killed, and don't come back." (The defendant then related his flight from the county.) His real name is John Porter. He was called Jackson because at the age of twelve he came to live with his aunt and uncle, William Jackson, and the name Bill was a nickname given him by his uncle.
The State introduced several witnesses in rebuttal. C. R. Adair stated that the defendant was arrested in Ohio for carrying a concealed weapon, that he knew this by reason of the officers in Ohio telling him so in the defendant's presence. Casey Jones testified that it was the defendant's custom to carry a gun at night when the defendant was working at the tourist court in 1936.
The State introduced in evidence a duly authenticated copy of an application for writ of habeas corpus filed on behalf of John Lee Porter, also known as Will Jackson, in the Court of Common Pleas of Franklin County, Ohio, dated January 22, 1953. The State also introduced in evidence a certified copy of an indictment of Will Jackson for murder at the May term, 1923, of Randolph Superior Court, together with a plea of guilty dated May 10, 1923, and a verdict of guilty with recommendation of mercy, and the sentence of the court thereon, dated May 19, 1923.
The defendant's motion for new trial, on the general grounds only, was overruled, and the exception is to that judgment.
1. Counsel for the defendant (plaintiff in error in this court) have insisted that his conviction was unauthorized because the State failed to prove the corpus delicti, and because the evidence was insufficient to sustain the conviction.
It is insisted that the State failed to prove the corpus delicti because the identity of the deceased was not sufficiently proved. In our State it is an essential element of the corpus delicti that the person alleged in the indictment to have been killed is dead, the other element being that his death was caused by violence, or other direct criminal agency of some other human being. Thomas v. State, 67 Ga. 460, 465 (6); Langston v. State, 151 Ga. 388 ( 106 S.E. 903); Warren v. State, 153 Ga. 354 ( 112 S.E. 283); Clay v. State, 176 Ga. 403 ( 168 S.E. 289); McVeigh v. State, 205 Ga. 326 ( 53 S.E.2d 462).
In the present case George Dismukes, a witness for the State, testified that he prepared the body of Porterfield Sheppard for burial, that there were two wounds in the chest of the deceased caused by a revolver, and that, in his opinion, these wounds were the cause of death. Counsel for the defendant contend that the statement of this witness on cross-examination, that he did not know the deceased in his lifetime, shows that his testimony as to the identity of the deceased was based on hearsay and was not sufficient to show such identity. Under the positive testimony of this witness that he prepared the body of the person named in the indictment for burial, it must be assumed that he had ascertained this fact from reliable sources, and his statement that he did not know the deceased in his lifetime would not discredit his testimony that it was the body of Porterfield Sheppard which he prepared for burial.
The evidence was sufficient to show that the death of the deceased was caused by two wounds made by a revolver, and the circumstances do not indicate either accident or suicide. The evidence was sufficient to prove that the person alleged in the indictment to have been killed was killed by violence, and not by accident or suicide, and was, therefore, sufficient to prove the corpus delicti. Compare Wrisper v. State, 193 Ga. 157 ( 17 S.E.2d 714); Jester v. State, 193 Ga. 202 ( 17 S.E.2d 736); Reddick v. State, 202 Ga. 209 ( 42 S.E.2d 742).
2. The participation of the defendant in the homicide was sought to be proved entirely by circumstantial evidence. There was testimony showing that the defendant was carrying a gun on the night of the homicide. Joe Green stated that the defendant went out with the deceased, and that some time later he heard an unidentified number of shots. The defendant shortly thereafter fled from the State.
There is no evidence that the defendant (a Negro employee of a tourist court) had ever seen the deceased before he came to the court inquiring "about some people next door." There is no evidence that the gun of the defendant inflicted the fatal wounds. From the evidence of Joe Green, who testified that the defendant went out with the deceased prior to the shooting, it can not be determined how long it was after the defendant and deceased left together that the shots were heard, and this witness could not say whether the shots were all fired from the same gun, or whether there was an exchange of shots. While the defendant stated to one witness, before leaving the jurisdiction of the homicide, that he was in trouble, it is not shown by any witness that the defendant made any admission of the shooting. The defendant in his statement gave the explanation of his flight that, after he left the deceased, he heard some shots, and started running, thinking that the deceased was shooting at him, and that he saw another man, who warned him to leave, and he was so frightened that he left the State.
While the circumstances related by the witnesses were sufficient to raise a strong suspicion that the defendant may have shot the deceased, they were insufficient to warrant a conviction on circumstantial evidence. Generally, questions raised by the evidence are for determination by the jury. It is the duty of this court, however, to reverse a judgment of conviction where there is no evidence to support the verdict. In this case the evidence shows a strong possibility that the defendant may have committed the homicide, but a strong suspicion of guilt is not sufficient under the law. "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Code § 38-109; King v. State, 86 Ga. 355 ( 12 S.E. 943); Young v. State, 121 Ga. 334 ( 49 S.E. 256); Reynolds v. State, 170 Ga. 810 ( 154 S.E. 229); Cornwell v. State, 179 Ga. 668 ( 177 S.E. 235); Graham v. State, 183 Ga. 881 ( 189 S.E. 910); Henderson v. State, 207 Ga. 206 ( 60 S.E.2d 345).
Judgment reversed. All the Justices concur, except Duckworth, C. J., not participating.