The evidence against the accused was entirely circumstantial, and was insufficient to exclude every other reasonable hypothesis save that of his guilt.

SUBMITTED MAY 13, 1957 — DECIDED JUNE 11, 1957.

Rachel Walthour and Dave June were charged with the murder of Albert Walthour, the husband of Rachel Walthour. On the trial of Dave June the jury returned a verdict of guilty with a recommendation of mercy. His motion for new trial on the general grounds, as amended by the addition of one special ground, was denied, and the exception is to that judgment.

The State's witnesses, on direct and cross-examination, testified in substance as follows:

Jerome Keller testified: In October, 1953, he saw the defendant, Rachel Walthour, and the deceased, near the home of the witness. He heard the deceased calling for help and he went to the place where they were. Rachel Walthour had the deceased down and was astride him, and the defendant was standing over the deceased and snapping a pistol at him. The witness told the defendant that he should not do that, and the defendant "slung" the pistol on him. The witness hit the defendant and the defendant fell down and dropped the pistol. At that time the defendant said that he would kill the deceased, calling him a vile name. The defendant is married to a sister of the deceased.

Major Jackson testified: The defendant was at the home of the witness about a month before the deceased was killed. At that time the defendant pulled a pistol out and threatened the deceased and his son, Dave Walthour. The defendant stated to the deceased: "Me and you done been in it twice . . . the next time I will get your gigler [sic] vein." The defendant made other threatening statements to the deceased, accompanying them with vile oaths.

Carol Barnard testified: On the date of the homicide the witness and the defendant were working at the same mill. When they were paid that evening the defendant made the statement to her that "he was going to get full of whisky at McKinley Pyott's and he was going to kill him a son-of-a-bitch that night."

McKinley Pyott testified: He operates a confectionary. On the evening before the homicide occurred, the defendant, the deceased, Rachel Walthour, Moses Walthour (son of the deceased), and Moses Walthour's wife were at his place of business. The Walthours and the defendant did not engage in any conversation while at his place. After the Walthours left, the defendant left.

Rosa Lee Walthour, daughter-in-law of the deceased and Rachel Walthour, testified: "On May 4, 1956 I was at home in bed at Albert Walthour's house, . . . I was there when Albert and Rachel Walthour were there. They left home that evening about dusk dark and said they were going to McKinley Pyott's. . . When I wake up they was in the house. I wake up when Mr. Albert was cut. . . The first thing I heard when I woke up was Albert said he was cut, and was down there by the foot of the bed down in the floor and he said he was cut and he got up and said I am going to kill you Rachel and went and got on the front steps and Miss Rachel went and got a basin of water and washing his face, and I told Cecil to light the lamp so she could see what she was doing, and Mr. Dave [the defendant] was coming, I don't know what he was coming for, he was coming up there to the house, and he said me and you will kill the [vile name] if he ain't dead yet and so he said I will go and get Mr. Joe and carry him to a doctor, and he went to Mr. Joe's house and when Mr. Joe come he said he was dead, and then I got up and went out outside where Mr. Albert was, lying down in front of the steps. I did not see Dave June when he made that statement, heard him. . . He lived about one hundred yards from me. . . I heard Albert, when he went out to the front steps he called Miss Madelyn [his sister and the defendant's wife] about four or five times and he never did say no more after he called Miss Madelyn, and she answered and said, `Son, what do you want?' and he never did say anything else. Dave June was coming up there then. . . I think that the last time I saw Dave June at Albert's house was about before or after Easter. Dave June made a statement at this house that if Albert did not keep his name out of his mouth he was going to kill him. . . I first saw Albert out there on the front steps, at the front steps. . . I did not get up until after Albert was dead. Albert came in the house, he was down on the floor, and he got up and said I am going to kill you, Rachel, and he went out on the front steps and called Miss Madelyn. When Mr. Dave came up he was calling Miss Madelyn. Albert was calling his sister. . . Dave came over there after Mr. Albert was calling his sister. . . As to whether I heard Rachel make any statement about who killed Albert, no sir, I didn't hear her make no statement. She said she did it. As to whether Rachel made a [sic] in my presence that she had stabbed him and didn't intend to kill him, yes, sir, she said she did it but didn't intend to do it. I did not hear her say at that time anything about Dave June doing anything, . . . If she had said so I would have heard her. . ."

Frank Givens, the operator of a funeral home, testified that he examined the body of the deceased, and that the cause of death was loss of blood from a stab wound.

Moses Walthour testified: "I live in my own house about a quarter of a mile front of his house, Albert Walthour's house. . . . I did not examine the place pretty well that night. I examined it next morning. I came through tobacco field and it looked like where somebody was tusseling and I went walking on out in the field and saw Mr. Dave's tracks out there. . . I know they were Dave June's tracks because he is sparrow toed, his right feet. Well, he had on some work shoes with some label on the bottom of them is the reason I know they were his tracks. I didn't work with him. I would say I saw Dave June every week end, lots of time through the week. These tracks were in the back of the field, about 200 yards I say from my father's house. . . The ground looked like where somebody had tusseled and tore up the ground and I walked off and saw some tracks. They were going out of the field, they were not coming in. They looked like they, that was in the morning and it looked like sometimes that night. I cannot tell when they were made approximately. He was walking I could tell, . . . I just saw where he came across the field out there, I thought he might have come out there too, heard mama and them out there in a fuss and come out there to try to stop them. . . As to whether I recognized anything else at this point that I was telling about a while ago, no, sir. No tracks other than as stated. . . As to whether I saw more than one set of tracks, no, there was a lot of tracks out there in the field but not where I was at out there but the tracks I saw I know was Mr. Dave's tracks. . . As to whether I heard my mother make statement that she killed this man, no sir, I didn't. As to whether I heard her say that she did it, yes, sir, I heard her say that. I don't know who the other tracks out there was. I am familiar with my daddy's tracks. I saw some of them there. My daddy is a little sparrow toed in both feet and he had on a pair of shoes that the bottom was about off of them, the half sole of the bottom was about off. . . As to what else I saw there on the ground, not right there, I saw some blood further off from there. In the edge of the yard. As to which direction that came from, I don't know, it was just a little bit a puddle of it, just a little drop of it."

A. J. Kelly, Coroner of Long County, testified: He went to the home of the deceased on the night of the homicide. He found the deceased lying about four feet from the front steps. His left jugular vein had been cut in two by a knife. The witness saw a bloody cap on the back porch. Rachel Walthour told him that: the deceased hit her on the side of the head, and she told him not to hit her again; he hit her again, and she cut him with a knife; nobody was with her when she cut him; she put the knife under the front of the house. The witness found the knife under the back of the house. There was blood in the yard, at the back of the house, then through the house, and a puddle of blood in the front room.

Paul Williamson, Chief of Police of Ludowici, testified: He examined the deceased on the night of the homicide. The cause of death appeared to be a stab wound in a jugular vein. Rachel Walthour stated to the witness that she did it. The witness asked her where she did it, and she said that she cut him while he was in the chair, and he went from the chair to the front steps. He asked her why the blood was at the back of the house and she said that she didn't know. She said that the knife was under the front of the house, but they found it under the back of the house. The first blood they found was in a place behind the house, and there appeared to be knee prints in the dirt. A bloody cap, rag, and shirt were in a tub on the back porch. The trail of blood increased from the point behind the house as it came through the house, and there was a puddle of blood in the front room. There had been a light drizzle of rain which had a tendency to disfigure the tracks. Rachel Walthour told them two or three different tales about cutting the deceased. She said no one helped her.

Cecil Walthour, fourteen years old, son of the deceased and Rachel Walthour, testified: He was at home on the night of the homicide. When his father and mother came in they were arguing about some money. "And about that time he went out of the house and so she came in the front room and when he came back in there and told me to get him a rag that he was cut and so I got him a rag and mama she went and got a pan of water and she took him out there on the steps and I went back in the house and in a minute I heard Dave June coming down the road and said you bad [vile name] you ain't dead I will finish killing you like that and he came on up there. Yes, sir, and so he came up there and so he asked mama what was the matter with daddy and mama said ain't nothing ail him but drunk and so he went up there to Joe Bacons to get the doctor . . . As to whether my father was outside when Dave came up, no sir, he was on the front steps, he was done cut. . . As to whether I heard my mother say that she did it, she said she thought she did it, she didn't know where she did it or not. . . Dave left there to go get the doctor, he came back, Joe Bacon came there, and when Joe got there he said there wasn't any use to get a doctor that he was done dead. . ." The witness saw the defendant draw a pistol on the deceased at Major Jackson's home.

Albert Walthour, Jr., son of the deceased, testified: About five weeks before the homicide the defendant told him to tell his father that "if he didn't stop picking on him he was going to kill him, he going to kill daddy or either daddy going to kill him. . . ."

Dave Walthour, son of the deceased and Rachel Walthour, testified: About three weeks before the homicide, the witness was at the home of Major Jackson and was talking to his father. The defendant was there and pulled out a pistol and threatened both of them.

The defendant in his statement denied that he had anything to do with the stabbing of the deceased. He stated that his wife heard her brother (the deceased) calling her and she told the defendant to go and see what was the matter with him. He found the deceased on the step and his wife, Rachel, standing in front of him, holding his head up. The defendant asked her what was the matter with the deceased and she said, "I don't know, nothing ail him much but drunk, . . . he hit me across my head and I stick him cause there ain't much ail him the biggest ail him is drunk." He went to try to get a doctor, and when he got back the deceased was dead.

HEAD, Justice.

1. In the only special ground of the motion for new trial it is contended that the evidence of the witness Jerome Keller, that in October, 1953, he saw the defendant menacing the deceased with a pistol, was improperly admitted over the objections that: the evidence showed a separate offense and put the defendant's character in issue; the State had failed to prove that the defendant had committed any crime under the indictment; and the witness was testifying to "something four or five years ago." The trial judge allowed the evidence with the following statement: "I will admit it with the right to exclude it if he doesn't connect it up properly."

Evidence showing bad feeling between the defendant and the deceased is ordinarily admissible in a homicide trial, even though the evidence relates to an incident which occurred several years before the homicide. Shaw v. State, 60 Ga. 246; Shafer v. State, 191 Ga. 722 ( 13 S.E.2d 798); Vun Cannon v. State, 208 Ga. 608, 612 ( 68 S.E.2d 586). It does not appear that there was any renewal of the objection to the evidence, and there is no merit in this ground.

2. The substantial issue in this case is whether or not the evidence against the defendant, which was entirely circumstantial, excluded every other reasonable hypothesis except that of his guilt. There was testimony by numerous witnesses of threats and menaces by the defendant against the deceased, but there is no direct evidence that the defendant ever carried out these threats. It appeared from the State's evidence that the deceased died from loss of blood from a stab wound in a jugular vein, and the wife of the deceased admitted in the presence of numerous witnesses that she inflicted this wound.

The defendant and the deceased were brothers-in-law, the defendant having married the sister of the deceased. It was the theory of the State that the wife of the deceased, Rachel Walthour, and the defendant conspired together to kill the deceased, and that the wife of the deceased admitted the killing to protect the defendant. There is no evidence in the record to show a conspiracy between the defendant and Rachel Walthour to commit the homicide with which the defendant is charged. The only evidence which might give a suspicion of such a conspiracy is that of Rosa Walthour, who testified that after the deceased had been cut, and Rachel Walthour was bathing his face, the defendant came up and said, "me and you will kill the [vile name] if he ain't dead yet." It plainly appears, however, from the testimony of this witness, that the fatal wound had been given before the defendant came to the scene and made the statement attributed to him, which statement was followed, according to the witness, by a statement that he would get a doctor.

Moses Walthour, a son of the deceased, stated that on the morning after the homicide he examined a field back of his father's house, that there was a place in this field where the ground looked like somebody had scuffled there, and that in another part of the field he saw some tracks which he identified as those of the defendant. He stated that there were lots of tracks out there in the field, and that he recognized the tracks of the deceased in the field. He also saw some blood "further off from there. In the edge of the yard . . . just a little drop of it." The defendant's home was a short distance from the home of the deceased. There was no proof that the homicide occurred in this field. Even if the testimony of this witness should be considered as sufficient to show a proper identification of the tracks of the defendant, this evidence was insufficient to link the defendant with the homicide.

While it appeared that the statements made to various witnesses by Rachel Walthour as to the details of the stabbing were not entirely consistent with some of the physical evidence, this would not show that the defendant was the perpetrator of the homicide.

The mass of evidence showing ill-will by the defendant toward the deceased certainly indicates that he may have desired to kill the deceased. The evidence wholly failed, however, to prove that he participated in the crime with which he was charged. The trial judge erred in refusing to grant a new trial on the general grounds. Bailey v. State, 104 Ga. 530 ( 30 S.E. 817); Young v. State, 121 Ga. 334 ( 49 S.E. 256); Park v. State, 123 Ga. 164 ( 51 S.E. 317); Redwine v. State, 207 Ga. 318 ( 61 S.E.2d 481).

Judgment reversed. All the Justices concur.