Opinion
17447.
ARGUED APRIL 10, 1951.
DECIDED MAY 14, 1951. REHEARING DENIED JUNE 13, 1951.
Murder. Before Judge Pratt. Barrow Superior Court. February 3, 1951.
Marvin D. Pierce Jr., Robert L. Russell Jr., J. Julian Bennett, and W. L. Erwin, for plaintiff in error.
Eugene Cook, Attorney-General, Hope D. Stark, Solicitor-General, and Frank B. Stow, Assistant Attorney-General, contra.
1. The State relied upon circumstantial evidence to establish the guilt of the defendant. The jury was authorized to find that the defendant inflicted the fatal wounds upon the deceased, and that the proved facts were sufficient to "exclude every other reasonable hypothesis save that of the guilt of the accused." Code, § 38-109.
2. The evidence on the issue of insanity was in sharp conflict. The credibility of the witnesses being for the jury, a finding was authorized that the defendant was not insane at the time of the commission of the homicide.
3. It was not error to charge the jury, on the issue of insanity, that "the burden is on the defendant to show to the reasonable satisfaction of the jury that at the time of the alleged commission of the act charged against him he was insane." Carroll v. State, 204 Ga. 510 (2) ( 50 S.E.2d 330); McLendon v. State, 205 Ga. 55 (3) ( 52 S.E.2d 294). The request to review and reverse the ruling stated in Carroll v. State, supra, is denied.
4. Under the ruling in division 3 above, the court properly and sufficiently instructed the jury as to the proof required on the issue of insanity. The contention of the defendant, that the court erred "in failing to charge the jury that, where the issue of insanity is involved, the burden is on the defendant to prove by a preponderance of the evidence that he was insane at the time of the alleged commission of the act charged against him," and "in failing to define a preponderance of the evidence," is not meritorious.
Judgment affirmed. All the Justices concur.
No. 17447. ARGUED APRIL 10, 1951 — DECIDED MAY 14, 1951 — REHEARING DENIED JUNE 13, 1951.
W. L. Walker was charged with the murder of Mrs. Mary Kesler, and was convicted without a recommendation of mercy. He filed a motion for new trial on the usual general grounds, which was amended by the addition of three special grounds. The first special ground assigned as error the instruction of the court to the jury that the burden was on the defendant to prove his contention that he was insane at the time of the homicide to the reasonable satisfaction of the jury. The second special ground assigned error on the failure of the court to charge that the burden was on the defendant to prove his insanity by a preponderance of the evidence. The third special ground assigned error on the failure of the court to define a preponderance of the evidence. The court overruled the motion for new trial, as amended, and the exception is to that judgment.
On the date of the homicide, September 11, 1950, the defendant, who was sixty-five years of age, was living in the home of his sister, the deceased, who was seventy-seven years of age. Their sister, Mrs. Thomas, seventy-five years of age, also lived with the deceased. Briscoe Williams, his wife, and baby, occupied an apartment in the same house.
Mrs. Thomas testified that on the evening of the homicide she and the deceased had played a game of cards. The defendant's room had formerly been a hall, and there was an opening between the bedroom of the sisters and the defendant's room. After the card game was finished, the defendant came into the room with a golf club in his hand, and inquired about the game. Thereafter the deceased went to bed. The witness went into the kitchen and was near the sink, with her back to the door. Something struck her on the head twice and she fell to the floor. She did not see who struck her. She was unconscious after that and does not remember what else happened.
Briscoe Williams testified that on the night of the homicide he was awakened by loud screaming, knocking, and running in the apartment of Mrs. Kesler, which adjoined his apartment. The screaming was a woman's voice, very shrill. He jumped up, put on his clothes, and ran out the back door. As he was running around on the outside of the house, just as he turned the corner, he heard a thud, and the noise stopped. When he reached the kitchen door he "hollered" several times and asked what was the matter, what was going on in there, and no one answered. He "hollered" again, and shook the screen door, and stood there a little bit, and in a few seconds the defendant said, "Just a minute." The witness stood there, and the defendant unlocked the door. He did not hear the defendant walk across the floor before he opened the door; the defendant must have been standing there. The witness stepped in the door, and asked the defendant several times what was the matter. For some little time the defendant did not answer, and then the witness looked down on the floor and saw Mrs. Thomas lying on the floor. The witness looked back up at the defendant and asked him what had happened. The defendant did not say anything for some little time, and in a few seconds he nodded his head and said, "Go on in yonder; Miss Mary is worse than she is." The witness started in there and the defendant walked slowly behind him. When he saw Mrs. Kesler in the bed he thought she was dead; she was as bloody as she could be. He asked the defendant again what happened and the defendant did not answer. He told the defendant he was going for help, and the defendant asked him whom he would get. The witness replied that he would get Melvin or his daddy-in-law, or somebody, and the defendant said, "Don't leave me." He told the defendant that he could not stay there and get help too. When the witness came back to the house, the defendant was lying in his room on the bed. He noticed some blood on the defendant's right arm. He saw a hatchet with blood on it. He noticed blood spattered on the cabinet and in the soap tray and on the soap. He had seen the defendant with a golf club in his hand, around the house, every day. It looked just like the one exhibited to him, before it was torn up.
Other witnesses, who came to the scene of the homicide later the same evening, testified that, when they asked the defendant what happened, he did not reply, or merely repeated their question. Pieces of the metal head of a golf club were found near the victim's bed. J. N. Rainey identified the golf club as a particular type of club, an adjustable one, owned by the defendant. All the witnesses stated that the defendant appeared perfectly calm. The defendant complained that he was suffering from a heart attack, and he was taken to a hospital. The physician who examined him on his arrival at the hospital testified that he showed no appearance of having recently had a heart attack.
Dr. John McPherson, who attended the deceased when she was taken to a hospital in Athens, testified in regard to her condition as follows: Her head was covered with blood. She had multiple extensive fracture of the skull and head. The wound went through the bone and into the brain, and caused a protrusion of both eyeballs. She never regained consciousness, and died on September 14. The instrument that made the wounds was probably either a heavy instrument, or one driven with considerable force. The instrument was relatively sharp, had sharp edges, for fragments of bone were driven into the brain through the skull. A very sharp instrument would have driven it down without driving the bone in. The wounds could have been made by a golf club.
Numerous witnesses testified in regard to the sanity of the defendant. Dr. Guy Whelchel, a practicing physician, who had known the defendant for about fifteen or sixteen years, testified that he had thought for fifteen years that the defendant was suffering from paranoia, a mental disease which is not known to be curable. Dr. W. Q. Randolph, a practicing physician, testified that he had known the defendant since the witness was a boy, and had treated him professionally on two occasions. It was his opinion that the defendant has a psychosis of the paranoia type, and that this condition existed on the date of the homicide. Dr. Louis Patton, an eye, nose, and throat specialist, and other witnesses, testified that from their association with the defendant they believed him to be insane.
The State introduced the testimony of various persons who knew the defendant, and some of whom had seen him on the night of the homicide. They testified that in their opinion the defendant was sane at the time of the homicide, and at all times that they had seen him.