Opinion
15993.
JANUARY 9, 1948. REHEARING DENIED FEBRUARY 12, 1948.
Murder. Before Judge Porter. Floyd Superior Court. July 26, 1947.
M. G. Hicks, W. T. Maddox, and Dudley Magruder, for plaintiff in error.
Eugene Cook, Attorney-General, E. J. Clower, Solicitor-General, G. W. Langford, T. J. Espy Jr., and Margaret Hartson, contra.
1. The circumstantial evidence was sufficient to authorize the jury to find that the proved facts were not only consistent with the hypothesis of the guilt of the defendant, but that they excluded every other reasonable hypothesis, as required by the Code, § 38-109. Such failures and discrepancies in the evidence as were pointed out by this court upon an appeal from his first conviction appear to have been supplied and fully explained in this the second trial.
2. For the reasons set forth in the opinion none of the special grounds in the present motion for new trial shows reversible error.
No. 15993. JANUARY 9, 1948. REHEARING DENIED FEBRUARY 12, 1948.
STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE.
There was testimony going to show as follows: Leroy Atchley, the husband of the decedent, left his home on the Huffacre Road in Floyd County on the morning of November 19, 1945, to go to work. His wife, the decedent, was seen standing by her mailbox talking with a neighbor between 12:30 and 1 p. m. on that day. His children went home with the neighbor, while his wife waited for the delivery by post of a package of books she had ordered, promising to visit the neighbor later in the day to help make a dress for one of the children. The expected books were delivered by the R.F.D. mail carrier on her regular schedule at 1:30 p. m., and the C.O.D. charges collected from the deceased. The books were found on her bed, but she herself, according to the State's evidence, was never seen alive again, save by her slayer. The deceased's husband, upon returning from work, searched all night for his wife. Her body, rigid in death, and apparently dead from five to twenty hours, putrefaction having set in, was found the following morning on a short, dirt side road leading from the Huffacre Road, on which her home was located, to the home of Tom and Eula Parks where the short, dirt side road stopped. Eula Parks did washing for the deceased, but had not come as usual after the clothes on that Monday morning when, prior to noon, it had rained hard, but had ceased at noon. The deceased when found the next morning near the side of the short road leading to Eula Parks' home had been stabbed and cut in numerous places, and had apparently bled to death. The defendant, on Monday the 19th, the day of the homicide, had visited Tom and Eula Parks, who lived at the end of the short, side dirt road, and who were his aunt and uncle. According to his statement, he left their home soon after the 12:30 news broadcast, taking the same side road leading back into the Huffacre Road, on which side road the deceased was found. Footprints into which the defendant's shoes fitted, and which showed the same peculiarities as appeared on the soles of the defendant's shoes led out from the Huffacre Road into the short road and down to Tom and Eula Parks' house, and then back from the Parks' house to a point on the short road near a bridge, where they met tracks identified as those of the decedent, where a scuffle apparently occurred, as shown by foot marks and blood stains in the road. From the point of the scuffle and for a distance of thirty or more feet where the tracks of both the man and woman turned off into a field, the two sets of tracks appeared to be running, the man's tracks from instep to instep measuring four feet. After the defendant was arrested and placed in the Floyd County jail, the shoes which he admitted having worn on November 19, the day of the crime, were obtained from him and carried to Frank Russell at the scene of the crime. Plaster casts were made of the tracks of a man, which were found in the middle of the road and running for a distance of some thirty or forty feet up the road from the little bridge, before they turned off to the right. The defendant's right shoe was fitted into one of these tracks, and it fitted perfectly. In addition to this, a plaster-of-paris cast was made of several of these other tracks. One of these casts of the right-shoe print was introduced in evidence as exhibit 4. The right shoe of the defendant showed that about half of the sole had been removed. The plaster cast showed the same thing. The right shoe of the defendant had on the left side some eleven coarse stitches exposed by virtue of the removal of half of the sole on said shoe. The plaster cast showed these coarse stitches. There was further testimony going to show that a special agent in the Federal Bureau of Investigation testified that the clothes admittedly worn by the defendant at the time the homicide occurred showed human blood stains "on the trousers, on the right and left pockets and in the front, on the shirt on the right and left tips of the collar, on the left sleeve and cuffs and the right facing which would be in this area, on the underwear, on the right knee, left and right hip area, right chest area, and the left portion of the facing, and in various other places." The evidence showed that these clothes indicated they had been washed, however, since being stained, and that therefore the type of blood could not be determined; that, according to the evidence of the Federal agent, a hair bearing negroid characteristics was removed from the deceased's blouse; and that hairs bearing Caucasian characteristics were found on the defendant's clothing. There was evidence: That the shirt of the defendant was torn in several places; that the defendant made contradictory statements as to having possessed a knife at the time the homicide was committed, first denying that he had then possessed one, but later admitting the possession of a red-handled switch-blade knife which he claimed he had found, but that it was now lost, and consequently no examination could be made as to whether it showed blood stains; that white fibers showing characteristics similar to the fabric of the defendant's shirt and red fibers like the fabric of the deceased's clothing were found on a barbed-wire fence, to and through which the deceased was traced by a trial of blood; this trial of blood beginning where these two sets of tracks left the side road leading to and from Tom Parks' house 30 or 40 feet from the bridge and leading to the deceased's body. The described footprints of a man leading from the direction of Tom Parks' house met the woman's tracks near the bridge, and followed the footprints of the woman up the road, both apparently running. From the described man's tracks, measuring from instep to instep, covered a distance of four feet, some of the footsteps of the man claimed to have been the defendant stepped into the tracks of the deceased; the State contending that this fact negatived any idea that the defendant had left Tom Parks' house and gone down the side road prior to the time that the deceased came along in the opposite direction. These two sets of tracks followed the road after they had met for about 30 or 40 feet, where they "turned out" of the road. After the tracks left the road they could not be followed, but blood marks led in a semicircle through a barbed-wire fence, and back again crossing the barbed-wire fence, back to the short road where the deceased's body was found. Approximately half-way around the semicircle, there were signs of another struggle, with knee prints on the ground; and at this point a great deal of blood was visible. On the clothes admitted by the defendant to have been worn on the day of the homicide, there were both mud and blood stains on the knees of the trousers. The footprints characterized by the State as those of the deceased were positively identified as such by her husband, and a heelprint similar to the heel of her shoe was found on the shoulder of the road where the two sets of footprints left the road. Although other people had been in the road after discovery of the body, the footprints identified as the defendant's had not been touched. There was a plain difference between the tracks freshly made by Tom and Eula Parks, and the tracks of the deceased and the defendant. The tracks of Tom and Eula Parks were discernibly fresher and along the side of the road. The tracks of which an impression was made led from the Huffacre Road down the short road to the Parks house, and back from the Parks house to the bridge where they met the tracks of the woman. These two sets of tracks were of equal freshness. After the described tracks "turned off the road," neither set continued on out from near the bridge back into the Huffacre Road. According to the testimony of a physician, it was not possible to tell one way or another by an examination of the private parts of the deceased whether or not a criminal sexual assault had been made upon her.
Opposed to the foregoing, is the defendant's statement admitting his visit to the house of his uncle, Tom Parks, on the day of the homicide, but denying any connection with the crime; claiming that he left his uncle's house after the news broadcast at 12:30, that he left his uncle's house and went down the short road into the main road and caught a truck to town, and that the blood stains on his clothes came from his private parts. A witness for the defendant testified that he saw a woman whom he recognized as the deceased on the evening of the day she was supposed to have been killed "just before sundown." He further testified: "I recognized her as being the same person I saw on the bus the evening before, and two evenings before was on Monday evening, and it was well after the middle of the afternoon. . . I don't know anything about the 19th of November; I know it was on Monday; it was on the day before I heard Mrs. Atchley was dead." On recross examination, this witness testified: "As far as my being able to say that the person I saw the day before at the Funeral Home was Mrs. Atchley, I never did see her in my life to know her." This witness was unable to give any description of the clothing worn by the woman whom, after viewing the corpse of Mrs. Atchley, he had identified as being the deceased, and upon viewing a picture showing the deceased and the clothing she had on when found, and upon being asked if the woman he saw on the bus looked like that picture, he then testified: "No, she wasn't set up like that in the funeral home when I saw her. As to whether or not I am mistaken that was Mrs. Atchley, all I know is that I looked at the corpse and they told me it was her, and it didn't look like that you show me in the picture (sic) was not cut."
1. Ground 1 is that, when the State sought to weaken the statement of the defendant to the effect that the blood stains on various portions of his clothing were caused by blood coming from his own private parts, and after the County Physician of Fulton County, where the defendant was incarcerated, had testified without objection that he had no record of having seen the defendant, he was asked the question, "Would the records which you looked for, doctor, have shown it if any other county physician had treated Fredie Parks during the time he was incarcerated in the Fulton Tower?" To this question the only objection by the defendant's counsel was as follows, "He said it didn't show it and the other question with reference to what it would have shown would certainly be irrelevant and immaterial." Assuming that the absence of any call upon the physician testifying, or any other physician, could be proven as it was without objection, it would certainly be in order to show that such a record would indicate such a call, if such a call had in fact been made.
2. The court did not err in failing to order a mistrial, or to express cautionary words to the jury, on the motion of the defendant for a mistrial on account of a display in the courtroom of a plat or diagram showing the vicinity of the homicide, the tracks testified to, and the scuffle marks in the road near the bridge and like scuffle marks over in an adjoining field, before certain alleged improper words, legends, and descriptive symbols such as "negro footsteps," "victim's footsteps," "blood," "scuffle marks," etc., had been removed therefrom. The court, after excluding the jury from the courtroom, pointed out that the diagram was not in evidence, had not been identified as correct, and stated that so far as the marks were concerned it was not close enough for the jury to see them, saying, "The court is closer to them than the jury and the court can't see," and further that at the proper time the court would have the marks removed.
3. The court did not err in allowing in evidence the clothes which the defendant himself admitted had been worn by him on the day of the homicide, over the objection that officers had gone to the defendant's house and asked his wife for the clothes worn by him the preceding day (which was the day the homicide occurred), and which clothes had been freely and without any sort of objection delivered by her. The ground of contention is that the wife of the defendant was thus unlawfully made to testify against her husband. It would seem that such a procedure in obtaining the clothes was not an infraction of the rule stated, especially where the evidence seems to indicate clearly that the defendant was present when the clothes were obtained ("He didn't return a word, but she went to the back room and got a shirt and a pair of pants and brought them out and gave them to me"); and especially so where there was proof that the defendant had admitted that these were the clothes he had worn the day before, which was the day of the homicide. See, in this connection, Bexley v. State, 141 Ga. 1 (4) ( 80 S.E. 314); Knight v. State, 114 Ga. 48 (1) ( 39 S.E. 928, 88 Am. St. R. 17); Nunn v. State, 143 Ga. 451 (2) ( 85 S.E. 346).
4. Ground 4 of the amended motion is without merit. Counsel for the State asked one of his witnesses: "Now, these tracks that you said you saw coming out — man's tracks coming out — was there any evidence of them coming in any further than the place they turned off?" The objection to this question was: "There wasn't any evidence that any tracks of a man turned off the road. He is leading the witness and we object to it." The court ruled: "Let the jury remember about that. Gentlemen, I can't help you." It is ofttimes permissible for the court to permit leading questions when it appears that the ends of justice shall so require (Code, § 38-1706), and it is therefore not always erroneous per se to permit such an inquiry. But in this it appears that in point of fact there had been evidence adduced by the witness Russell that "From that point [referring to the first scuffle marks] on up the road to where these big tracks and little tracks were, we could see drops of blood up the road about forty feet. Both tracks turned off to the right and about twenty feet from the road they crossed a fence."
5. The court did not err in admitting the photographs of the deceased where she lay soon after her discovery, because, as alleged, it might tend to inflame the minds of the jury. We think, besides giving the jury an accurate photographic picture of much that had been testified to, it became even more relevant with respect to the testimony of the witness who described the deceased in connection with his testimony as to having seen her in company with other persons late on the afternoon of the day of the homicide. The jury might well have found that the photographs and this description of the deceased did not harmonize.
6. The court did not err in admitting in evidence certain red fibers and certain white fibers taken from the barbed-wire fence, since there was testimony from the Federal investigator going to indicate that these fibers corresponded to the clothing of the deceased and of the defendant respectively.
7. The map or diagram, after the deletion of the objectionable characterizations, was properly admissible for what it was worth, though not made by an expert engineer or draftsman; and its correctness was adequately shown, although a portion of the sustaining proof was made subsequently to its actual admission. See, in this connection, Nowell v. State, 18 Ga. App. 143 (2) ( 88 S.E. 909).
8. The admission of the plaster cast of the footprints was not error. It is true, as contended by the defendant's counsel, that the defendant admitted that he had traveled this short dirt road leading off from the Huffacre Road to Tom Parks' house on the day of the homicide; but the evidence is clear and emphatic that these particular and peculiar footprints of the defendant were traced running from near the bridge to where both they and the woman's tracks turned off to the right, and that some of the described peculiar running footprints fell into the footprints of the woman; and it was also shown that these peculiar tracks as shown by the cast ceased to show from this point, and thus did not continue on out to the Huffacre Road, as the defendant in his statement claimed that he went.
Judgment affirmed. All the Justices concur, except Duckworth, P. J., absent on account of illness, Head, J., who dissents, and Wyatt, J., who took no part in the consideration or decision of this case.