Opinion
14940.
SEPTEMBER 8, 1944.
Murder. Before Judge Carpenter. Hancock superior court. May 9, 1944.
C. A. Giles and Marion Ennis, for plaintiff in error.
T. Grady Head, attorney-general, C. S. Baldwin Jr., solicitor-general, and Victor Davidson, assistant attorney-general, contra.
1. If a homicide is proved, and the evidence adduced to establish it shows neither mitigation nor justification, malice will be presumed from proof of the homicide; but the presumption is rebuttable, and may be overcome by evidence of alleviation or justification. If the evidence adduced to establish the homicide presents two conflicting theories, one of malice and the other of absence of malice, it becomes a question of fact to be decided by the jury as to which aspect of the evidence is the real truth of the occurrence.
2. The evidence, although circumstantial, was sufficient to support the verdict.
No. 14940. SEPTEMBER 8, 1944.
Jake Chester was convicted of murder with a recommendation of mercy, and sentenced to life imprisonment. He filed a motion for a new trial on the general grounds only. His motion was overruled and he excepted.
The evidence was substantially as follows: The defendant and Grady Edwards were seen together in the road shooting dice at about 12:30 on the Sunday of the killing. At that time they were not fussing. At about 3:30 that afternoon, the defendant was seen wearing a pair of green pants. Blood was on the front of his shirt and pants. He went home, changed his clothes, and later was seen at the church. Grady Edwards was found dead about sixty yards from the road where he and the defendant had been seen shooting dice. Blood, discovered in the road near the place where they had been seen shooting dice, led to the place where the body of the deceased was found. The defendant was not arrested until a month or two after the killing, although the sheriff had made numerous trips searching for him. Finally he came and gave up to the sheriff. Two witnesses in a truck passed the spot where the defendant and the deceased were gambling, and the defendant waved the truck to a stop. When the defendant sought to get on the truck and ride, the deceased jerked him off and cursed him. The truck proceeded on without the defendant, and the witnesses knew nothing about what happened later. Just before the truck came out of the hollow where the deceased was killed, cursing was heard down in that direction. The evidence showed that the deceased was badly cut; that there was a wide-open gash between his ribs all the way to the hollow; that the muscles and leaders of his right arm were cut to the bone; and that several other gashes and stabs were found on his body. The sheriff testified that the deceased was the worst cut-up negro he had seen in many a day. A search of his body showed a razor, a pocketknife, a dollar bill, a dime, a penny, and two pairs of dice. The razor and the pocketknife were closed. There were no wounds on the defendant, and he did not claim that any were inflicted on him by the deceased. In his statement, he said that at the urging of the deceased he engaged in a dice game with him, and won four dollars; that a truck came along, and he attempted to ride to church in this truck, and the deceased jerked him off saying, "You God damn son of bitch, I am going to kill you;" that the deceased jumped on him and was choking him; and that in trying to get the deceased off of him, he cut the deceased, and then jumped up and ran, and the deceased pursued him to a fence.
The plaintiff in error in his brief contends that the law applicable to the present case is as follows: "Where a defendant admits the perpetration of a homicide, but in connection with such statement gives an explanation justifying or excusing his commission thereof, and there is no other evidence tending to show he killed the deceased, and the circumstances are not such as to authorize the inference of malice, the evidence does not show malice and will not support a finding of murder." While this contention states a correct principle of law, it is not applicable to this case. The evidence undisputably shows that the defendant and the deceased were seen together shooting dice at about 12:30 on the day of the killing; that the defendant was later seen with blood on his clothes; that he was found dead sixty yards from where he and the defendant were seen shooting dice, with a trial of blood leading from the place where they were seen gambling to where the deceased fell and died; that the deceased snatched or pulled the defendant off a truck, indicating a dispute or trouble; that cursing was later heard in that direction; and the absence of the defendant for some length of time after the killing was unexplained. We believe that this evidence, although circumstantial, was sufficient to authorize the jury to believe that the defendant killed the deceased, without relying in any way whatsoever on the statement of the defendant that he did in fact kill the deceased. The cases relied on by the plaintiff in error in support of the proposition that no malice was proved are cases in which there was no evidence other than the statement of the defendant tending to show that he killed the deceased. "If a homicide is proved, and the evidence adduced to establish it shows neither mitigation nor justification, malice will be presumed from the proof of the homicide; but the presumption is rebuttable, and may be overcome by evidence of alleviation or justification. If the evidence adduced to establish the homicide presents two conflicting theories, one of malice and the other of absence of malice, it becomes a question of fact to be decided by the jury as to which aspect of the evidence is the real truth of the occurrence." Boyd v. State, 136 Ga. 340 (3 a) ( 71 S.E. 416); Mann v. State, 124 Ga. 760 ( 53 S.E. 324, 4 L.R.A. (N.S.) 934). There being two conflicting theories in the present case, one of malice and the other of absence of malice, and the jury having found the defendant guilty, it is apparent that they took the view consistent with the presence of malice, which they had a right to do under the law, it being a question of fact to be decided by the jury.
The only assignment of error is on the judgment overruling the motion for a new trial, based on the general grounds only, and since an examination of the record discloses that the evidence, although circumstantial, supported the verdict, and the verdict having received the approval of the trial judge, the judgment refusing a new trial will not be disturbed. Collins v. State, 193 Ga. 177 ( 17 S.E.2d 725).
Judgment affirmed. All the Justices concur.