Opinion
17667.
ARGUED NOVEMBER 14, 1951.
DECIDED JANUARY 16, 1952.
Murder. Before Judge Humphrey. Johnson Superior Court. August 25, 1951.
E. L. Rowland, J. W. Claxton and E. L. Stephens, for plaintiff in error.
Eugene Cook, Attorney-General, W. W. Larsen, Solicitor-General, J. R. Parham, Assistant Attorney-General, Harold Ward, and Price Spivey, contra.
The verdict of the jury finding the defendant guilty of murder is authorized by the evidence.
No. 17667. ARGUED NOVEMBER 14, 1951 — DECIDED JANUARY 16, 1952.
Lanier Downs and Carl Moore were jointly indicted for the offense of murder, the indictment charging that the named defendants did on November 26, 1950, with force and arms, kill and murder one Harvel H. Moye by shooting him with a certain shotgun, "which the said Lanier Downs and Carl Moore then and there held, and giving to the said Harvel H. Moye then and there a mortal wound," from which said Moye died. The defendant Moore was separately tried, and the jury returned a verdict finding him guilty of murder with a recommendation to mercy, and on this verdict he was sentenced to life imprisonment. His motion for a new trial on the general grounds only was overruled, and the case is here on exceptions to that order.
Substantially, the evidence on behalf of the State was as follows: Mrs. Miller McAfee testified: "I knew Harville H. Moye during his lifetime, and knew him on or about the 26th day of November, 1950. He was staying at out house. He came up for Thanksgiving. He was killed. We were all sitting around the fire laughing and talking in a friendly conversation. We hadn't thought about anything happening. My adopted daughter, Betty, my husband, Miller McAfee, and Harville Moye and David were there. David is now in the Army in Texas. Betty thought she had a date. Somebody knocked at the door and she went to the door, and Carl Moore asked for Harville Moye. She came back and she told Harville that `Carl wants to see you, but don't you go `cause he's drunk.' He didn't say anything. He went to the door and opened the door and closed the door behind him. He went out on the porch. I heard them talking I heard Carl talking like he might be drunk, you know — like when somebody is just talking — I couldn't understand what he was saying. I didn't heard Harville say anything — right quick I heard an awful noise. I knew they were fighting. After they had gone out, I tried to get to the door. I didn't quite get to the door-knob before the shots fired twice. I turned to go to Betty Grabrel — when I looked at Betty she was — I thought she was going to fall and I grabbed and put her on the bed. I told her to stay there. I did not go outside right then. My husband was ahead of me about a minute or two. When I went out there I couldn't see anything but Harville lying there suffering death. I saw where he was wounded. I saw where he was wounded through his jacket. He was hurt in the back, where the shots went in the back. He was shot in the back twice — the lower part of the back, about his kidneys. As to how big were the holes, I couldn't see so good, he was covered with blood. I've been in this town forty-one years. I don't know how old Carl is, but I have always known him. Since he was a little boy, I reckon. I know his voice when I hear it and I recognized his voice that night. What I have testified to happened in Johnson County — in front of the jail, in front of Sheriff Hall's. He lived forty-five minutes. He was shot at a quarter past ten. Those two shots killed him. . . I did not see Carl Moore, I heard him. I do not know what was said between Mr. Moye and Mr. Moore. I could hear their feet — there wasn't any talking done then. I believe that anybody fighting should be close together. They were keeping a noise and I knew something was going on out there, there was no talking being done. . . We found a hat right after it happened."
Miss Betty Grabrel testified: "I knew Harville Moye during his lifetime. I saw him on the 26th day of November, 1950 . . I was there. Well, at ten-fifteen somebody knocked on the door. I went to the door and Bunk — Carl rather — he said, I want to speak to Harvey — is he here — I said, I don't know, I will see. I went back and told Mr. Harville that Bunk wanted to see him. So he went to the door and he walked out on the porch. I could hear Bunk's voice. Mr. Harville never did say anything. Then there was some feet movement and then there was two shots. It was about a minute and a half after Mr. Harville went to the door before I heard the shots. When I went to the door, I didn't see anyone but Carl Moore. No one was with him as I could see. I went out on the porch about twenty minutes after the shot. I saw Mr. Harville after he was shot. He was shot twice about middle-ways of the back. I saw the wounds."
Earl Crawford testified: "I knew Harville Moye during his lifetime, and knew him on or about the 26th of November, 1950. He died that night, about ten o'clock I guess, I don't know. I went with him in the ambulance, to carry him to the hospital from where he got shot at Mrs. McAfee's house. I rode in the ambulance with him to the hospital in Dublin. I don't know whether he realized his condition or not. He lived 30 minutes after he got to the hospital. I imagine he knew he was wounded pretty bad. On the way to the hospital he said that Bunk Moore called him to the door and he didn't know who shot him. Bunk Moore is Carl Moore — that's him sitting over there."
Dewey Hall testified: "I made an investigation into the death shooting of Harville H. Moye. I was called upon and we made an investigation, and I locked up two fellows, Bunk Moore — Carl Moore at least, we call him Bunk — and Lanier Downs. That was the information we got here in town. I didn't know anything about it until the next morning. That was the understanding that we got, that they were the ones. We arrested Carl Moore around ten Monday morning after it was done Sunday night, maybe a little after ten. . . At the time he was arrested, he was at Lanier Downs' house. And he was not what I would call sot drunk, but he was pretty well lit at that time. He didn't question me any and I didn't question him."
Bitts Walker testified: "I know Carl Moore. I saw him on Monday morning, November 27th, 1950, around eight o'clock. Lanier Downs was with him out at my store. I seen a gun stock in the truck. I do not know what kind of gun it was."
J. A. Price testified: "I saw Carl Moore the night before I heard about in the next morning, about eight or eight-thirty. No one was with him. I am bus agent and sell tickets. I had a conversation with Carl Moore that night. Well, he first came in and bought a couple of coca-colas. Asked me if it would be all right to take the bottles out. Said he'd bring them back. He went out and was gone some ten or fifteen minutes and brought the bottles back. Then he asked me about a ticket to some place in Texas and I looked up the fare for him. That's all that was said. Well, he did say that he was out there some time ago and was going to have to go back out there in the next month or two."
Herman Ivey testified: "I know Carl Moore. I saw him the night that Moye was shot. He came to my station and bought a coca-cola. Someone was with him. I couldn't say who, it was dark. I don't know exactly what time it was. It was the early part of the night. He drove under my station. I think it was a Model A pick-up truck with a slat back."
M. A. Drake testified: "I knew Harville Moye during his lifetime. On the night of November 26, 1950, I got a call from Mr. McAfee's house. I went there and found Harville Moye lying on the porch of Mrs. McAfee's house with two gunshot wounds in his back, one each side of his backbone. I picked up two gun shells and the wadding. I stuck the wadding in here. Sometime while I was there, I picked up a hat — it was either handed me or else I picked it up on the porch, one. I'm sure I know that hat (indicating). It is Carl Moore's, because I have seen Carl wear it on occasions. . . I have seen that gun (indicating) before. I found it in Lanier Downs' home. Carl Moore and Lanier Downs were in the house. The gun was loaded. Those (indicating) look like the shells that came out of it."
The defendant did not make any statement on the trial, or introduce any evidence. The court charged the jury on the law relating to conspiracy, and further instructed them that, before they would be authorized to convict the defendant upon circumstantial evidence, "the proven facts and circumstances must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused."
Counsel for the defendant, relying solely on the general grounds of the motion for a new trial, contend that the evidence is wholly insufficient to sustain the verdict, and that, there being no direct evidence as to who killed the deceased, the circumstantial evidence is insufficient to exclude every reasonable hypothesis save that of the guilt of the accused.
The evidence in the record is entirely insufficient to support the finding of guilty on the theory that the killing occurred as the result of a conspiracy whereby the defendant aided or abetted another who did the shooting. If the conviction of this defendant is sustained by the evidence, it must be on the basis that the facts and circumstances show that he was the actual perpetrator of the crime.
We have fully set out the evidence in the statement of the case relating to the homicide. We cannot say that there was not sufficient evidence to authorize the jury to find that the proven facts and circumstances were consistent with the hypothesis of the guilt of the accused and excluded every other reasonable hypothesis save that of the guilt of the defendant. Briefly, these facts and circumstances may be summarized as follows:
The deceased, while visiting at the home of a friend on the night of November 26, 1950, was called out on the front porch by the defendant; at the time the deceased went out on the porch no one but the defendant was seen on the porch. The defendant was drunk at the time; the occupants inside the house heard loud talking and a noise like someone was walking; in one and a half minutes after the deceased went out on the porch two shotgun blasts were heard; after the two shots were heard, two occupants of the house went out on the porch and found the deceased lying on the porch with two shotgun wounds in his back, and two shotgun shells and wadding were found near his body; on the way to the hospital the deceased said that the defendant called him to the door, but he did not know who shot him; immediately after the shooting no one was seen on the porch or in the front yard, the defendant having left the scene of the shooting, but the defendant's hat was found near the body of the deceased; the deceased died within 45 minutes of the shooting; about two hours before the shooting the defendant was seen with an unidentified person in a Ford pick-up truck, and the defendant inquired of a bus agent as to the cost of a ticket "to some place in Texas"; around eight o'clock on the following morning, the defendant was seen at the store of Bitts Walker with Downs, and there was a gunstock in the truck; and the defendant was arrested around ten o'clock on the same morning at the home of Downs, where a loaded shotgun was found.
We affirmed the conviction of the codefendant Downs in Downs v. State, ante, because the evidence, direct and circumstantial, showed that Downs was the perpetrator of the crime. The jury on the trial of the defendant Moore did not have before them any facts or circumstances that connected Downs with the killing, but all the facts and circumstances on the trial of Moore showed that he was the sole perpetrator of the crime. In the consideration of the defendant's motion for a new trial, the merits of his rights must be determined solely from the record affecting him, and not by a consideration of or comparison with the record in the trial of the codefendant Downs. Cofer v. State, 163 Ga. 878 (3a) ( 137 S.E. 378).
The court did not err in overruling the defendant's motion for a new trial.
Judgment affirmed. All the Justices concur.