Opinion
17934.
SUBMITTED JULY 14, 1952.
DECIDED OCTOBER 14, 1952.
Murder. Before Judge Atkinson. Bibb Superior Court. May 7, 1952.
Thomas W. Johnson and Robert V. Jones Jr., for plaintiff in error.
William M. West, Solicitor-General, Charles F. Adams, Eugene Cook, Attorney-General, and J. R. Parham, contra.
1. Exceptions to the overruling of a plea of former jeopardy cannot be raised in a motion for a new trial. Collier v. State, 8 Ga. App. 371 (1) ( 69 S.E. 29); Vaughn v. State, 16 Ga. App. 573 (1) ( 85 S.E. 790). See also McDow v. State, 113 Ga. 699 (1) ( 39 S.E. 295). The first ground of the amended motion for a new trial complains that the court erred in overruling the defendant's plea of former jeopardy. Such an assignment of error in a motion for new trial cannot be considered.
2. The second ground of the amended motion complains that the court erred in sustaining objections of the State to a question propounded by counsel for the defendant on cross-examination of a State's witness. It appears from this ground that subsequently the witness was permitted to answer the question. Obviously, this ground is without merit.
3. "The opinion of a witness is not admissible as evidence when all the facts and circumstances are capable of being clearly detailed and described, so that the jurors may be able readily to form their own conclusion therefrom." Harris v. State, 188 Ga. 745 (1) ( 4 S.E.2d 651). The court properly overruled ground 3 of the amended motion, which complains of the refusal to permit a witness for the State to answer a question of counsel for the defendant as to the theory of the witness that the deceased was hit so hard with a milk bottle that her hair was knocked out of her head and got on the clothes in a closet.
4. The evidence on the part of the State shows that the confessions and incriminating statements were freely and voluntarily made by the defendant. The only conflict arises from the defendant's statement to the jury, who were authorized either to accept or reject such statement. The evidence not demanding a finding that the confessions were not freely and voluntarily made, it was not error to admit the alleged confessions in evidence.
5. A witness on cross-examination, for the purpose of refreshing his memory or laying the foundation for impeachment, may be questioned as to his testimony given on a previous trial of the same case. Accordingly, the contentions set out in ground 5 are insubstantial. See Burney v. Ball, 24 Ga. 505 (2), 513; Wheeler v. State, 46 Ga. App. 693 (1) ( 168 S.E. 923).
6. A witness will not be permitted to relate a conversation had with another person over the telephone, where such witness did not know the other person or recognize his voice, and his identity is not established otherwise than by what was said in the conversation itself. Such being hearsay evidence, is inadmissible. Planters Cotton Oil Co. v. Western Union Telegraph Co., 126 Ga. 621 ( 55 S.E. 495, 6 L.R.A., N. S., 1180); Greble v. Morgan, 69 Ga. App. 641 (2) ( 26 S.E.2d 494); Price v. State, 208 Ga. 695 ( 69 S.E.2d 253).
7. The evidence did not demand a verdict on the defendant's plea of alibi. The confessions and incriminating statements of the defendant were corroborated and sufficient to establish the corpus delicti. The verdict is supported by the evidence.
No. 17934. SUBMITTED JULY 14, 1952 — DECIDED OCTOBER 14, 1952.
At about 5 o'clock on the afternoon of September 16, 1950, the body of Mrs. Irene Sanders, badly bruised and battered, was found in her home at 577 Corbin Avenue, Macon. The last person who saw her alive was her husband, whom she drove to work in an automobile about 7:30 that morning. L. B. Parker, whose home is near that of the deceased, left to go to work about 10 minutes to 8 that morning and testified that he heard a scream from the Sanders home and went to the Sanders home and found the door locked. Thurman Shirah, a plumber, testified that he went to the Sanders home between 10 and 11 o'clock of the same morning to do some work and found a car in front of the Sanders garage. He knocked on the back door and got no response, and could see no one in the house. Leola Williams testified that on the same morning she saw someone cross the lawn of the Sanders home at about 7:45. The person seen by her was a colored man. On the discovery of the body of the deceased, it was found that her head had been mangled on the left side, and about 2 feet from her was a .22 rifle, and near the wall of the room was the neck of a milk bottle. A short distance from her body was a lady's pocketbook with some papers and personal effects lying outside the purse. Smears of blood were found on her clothing and in other parts of the room, and the wedding and engagement rings of the deceased were missing from her finger. A pathologist testified that he examined the body of Mrs. Sanders around 6 or 7 p. m. that day at her home, that the cause of her death was multiple fractures of the skull, and that these injuries were sufficient to have caused her death. He placed the time of her death as being between 6 and 12 hours before the time of his examination.
Shortly after midnight on January 19, 1951, the Sheriff of Twiggs County arrested the defendant at the bus station in Macon on a warrant charging him with the larceny of an automobile. At this time, in the sheriff's car were one W. N. Griffin, and a man named David Stevens, whom the sheriff had under arrest on a charge of abandonment. While the sheriff was driving his car to Huber, Georgia, he was questioning the defendant as to certain other alleged offenses. The defendant admitted that he had participated in the killing of Mrs. Sanders. When the defendant was asked if he could point out the house that Mrs. Sanders lived in he replied that he could, and the sheriff then returned to Macon, and the defendant gave directions to the sheriff as to how to reach the Sanders home. The place of the deceased's residence was unknown to the sheriff at that time, and following the defendant's instructions the sheriff drove to the Sanders home, and there the defendant related to the sheriff how he had entered the home and how the killing took place and how he removed the rings from Mrs. Sanders' fingers, how they were pawned, and what was received on the pawn. During all this time Stevens and Griffin were in the automobile with the sheriff and the defendant. The Sheriff of Twiggs County thereupon carried the defendant to Jeffersonville, where in the presence of several witnesses the defendant related the details of the killing. About noon of January 20 the sheriff carried the deceased to the jail in Macon, where in the presence of some 4 or 5 witnesses the defendant gave a minute description of how the killing took place, and carried the officers to the Sanders home, where he enacted in detail the killing. Subsequently the defendant, on questioning of Solicitor-General Garrett, reiterated in detail the confession previously given to the officers.
The defendant contended that he was not in Macon at the time of the killing, but was in Quitman, Georgia. Several witnesses were introduced in support of this plea of alibi. Several witnesses testified that to the best of their recollection they saw the defendant in or near Quitman on September 15 and 16, 1950. One of the witnesses, Mr. Sutton, testified that to the best of his recollection the defendant was working for him on his farm near Quitman on the morning of September 16, and the witness went to the bank about noon of that day and paid him for his labor. The defendant in his statement to the jury stated that on the day of the killing he was in Quitman and worked for Mr. Sutton on Saturday before the fourth Sunday, which would have been September 23 and 24, relating how on that Saturday he went to the bank in Quitman and reached his home early Sunday morning, "the fourth Sunday morning," which would have been September 24.
After the defendant had been placed on trial under an indictment charging the murder of Mrs. Sanders, the Solicitor-General, Charles H. Garrett, was accidentally killed, and the court declared a mistrial. When he was again arraigned on September 25, 1951, he filed a plea of former jeopardy, on the ground that a mistrial had been declared without his consent. This plea was overruled. No exceptions pendente lite were filed to this ruling, the only exceptions thereto appearing in the amended motion for a new trial.
On the second trial the defendant was found guilty with a recommendation to mercy, and was sentenced to life imprisonment. His motion for a new trial on the general and special grounds was overruled, and a bill of exceptions brings the case here for review.
Headnotes 1-3, 6 and 7 require no elaboration.
4. There was no eyewitness to the killing. The conviction of the defendant depends entirely upon his confessions and the facts and circumstances corroborating them. The evidence shows a brutal and wanton slaying. The confessions which were admitted in evidence contain a full and complete admission of guilt on the part of the defendant, and the facts and circumstances fully corroborate these confessions. Whether the verdict of the jury finding the defendant guilty of the crime be upheld, depends solely upon the question of whether or not the court erred in admitting these confessions in evidence. The defendant contends that these alleged confessions were inadmissible, for the reason that they were not freely and voluntarily made but were obtained by force and coercion. The testimony of the officers, to whom the confessions were made, made out a prima facie case on behalf of the State, that they were freely and voluntarily made. The contention of the defendant that they were not freely and voluntarily made arises solely by the statement of the defendant at the trial, in which he claimed that he was forced by physical violence to make the confessions, and that whatever statements were made were caused by physical mistreatment. These acts of physical violence were alleged to have taken place in the automobile of the sheriff after the defendant's arrest, in the jail at Jeffersonville, and in the jail at Macon. David Stevens was present in the automobile at all times between the arrest and the lodgment of the defendant in jail at Jeffersonville, and testified positively that no one committed any acts of physical violence upon the person of the defendant or used any force or threats to make him confess. Other witnesses testified likewise as to the statements made by the defendant when he was in Jeffersonville, and at the time his statements were reduced to writing. As to the statements made in Macon, some 4 or 5 witnesses testified that no physical duress was exerted on the defendant. The person who took photographs of the defendant in Macon testified that he saw no evidence of any physical injuries on the person of the defendant. Another witness, Joe Bailey, who saw him on June 21, testified that there was no evidence of any physical injuries to his person. Under no circumstances can it be said that the evidence demanded a finding that the confessions were made by reason of coercion and were involuntary. Under the evidence and the statement of the defendant, the question of whether or not the confessions were freely and voluntarily made was one for the jury, and their conclusion in this regard is fully sustained by the evidence. Therefore it was not error to overrule ground 4 of the amended motion, which complains of the admission of these confessions in evidence.
Judgment affirmed. All the Justices concur.