Opinion
16460.
FEBRUARY 17, 1949.
Murder. Before Judge Andrews. Fulton Superior Court. October 1, 1948.
Frank A. Bowers and H. C. Morgan, for plaintiff in error.
Eugene Cook, Attorney-General, Paul Webb, Solicitor General, Charles O. Murphy, William Hall, E. L. Reagan and W. V. Rice, Assistant Attorneys-General, contra.
1. The evidence was sufficient to authorize the verdict of guilty, and the court did not err in overruling the general grounds of the motion for a new trial.
2-4. The court did not err in its ruling on the admission of evidence, as complained of in grounds 1, 2, and 3 of the amended motion for a new trial, and as dealt with in divisions 2, 3, and 4 of the opinion.
5. "Where, in the trial of a person for murder, the State proves the killing as alleged in the indictment, and the accused defends upon the grounds that he was not the person who committed the crime, and was not present at the time of its commission, it is not reversible error for the court to charge the law of justifiable homicide, where no injury to the accused is shown as a result thereof." Williams v. State, 199 Ga. 504 (9) ( 34 S.E.2d 854).
No. 16460. FEBRUARY 17, 1949.
A. C. Williams was convicted of murdering Jeriah Steed, without a recommendation to the mercy of the court, and sentenced to death by electrocution. The exceptions are to the overruling of a motion for a new trial based upon the usual general grounds and four special grounds complaining of certain rulings on the admission of evidence and an excerpt from the charge of the court.
The evidence adduced upon trial of the case discloses substantially the following: The defendant and his girl friend, Annie Stewart, of about two weeks' acquaintance, were at a restaurant on Gray and Simpson Streets on the night of the homicide, and Jeriah Steed, the deceased, was there also. Steed, in the presence of the defendant, without any apparent objection on his part, made a date with Annie to carry her to a night club later on that night, and was coming to her house for her.
The defendant and Annie Stewart left the restaurant together to go to Annie's home, and on their way Annie and the defendant engaged in an argument, according to Annie's testimony because of her talking with Steed, and according to the defendant's statement because of his not having the sixteen dollars he was supposed to give her, and because of certain opprobrious words used by her. The defendant gave her a beating, blacked her eyes, and burst her lip.
After they got to her home, the defendant left, and in about twenty minutes Steed, the deceased, came to her home in a taxicab operated by Alex McDaniel, and according to the testimony of both McDaniel and Annie Stewart, the taxicab stopped at the curb right in front of the porch and doorway of the Annie Stewart home.
Steed got out of the taxicab, and told McDaniel, the driver, to wait for him; and just after he walked up on the porch, and the door was opened by Annie Stewart, and he asked her if she was going with him, and she replied that because of the beating administered by the defendant, her face was swollen and discolored, and she could not go, the defendant came up from across the street to the porch, and said to Steed, "Hello, buddy," or something like that, and Steed broke and ran with the defendant right behind him, Steed started to the taxicab to get in, but he ran on by the car with the defendant chasing him. McDaniel started driving the taxicab behind them. Steed ran about three blocks with the defendant still chasing him; Steed ran up on a porch, with the defendant still chasing him up on the porch, and Steed was hollering, "Oh, Lord, oh Lord, open the door, Mama." Steed turned and tripped and fell off the porch, and the defendant was on top of Steed beating him. McDaniel hollered at the defendant to keep him from killing Steed, and told him to stop beating Steed, and the defendant got up and went around the corner. When Steed got up he was cut and blood was running down his back, and he was groaning, and McDaniel asked him if the defendant had struck him, and Steed did not answer and he could not speak until after he got in the car, as he was out of breath. Steed then said, "Take him home," but McDaniel told him he needed to go to the hospital the way he was bleeding, and Steed then told him to take him on to the hospital, and later he said, "Hurry on to the hospital," and Steed then answered in response to the question if he was hurt that he could hardly catch his breath, and began to fall, and he never did say anything else from there to the hospital. Steed had not been cut or did not have any blood on him when he first put Steed out of the taxicab at Annie Stewart's home.
The wounds on the deceased were produced on the night of April 3, and Otto Fair, undertaker, testified: that he saw the body of Jeriah Steed on April 4 and he was dead at the time; that he embalmed the deceased and found one wound in the left chest, eight in the back, and one in the right shoulder, two in the left shoulder, two in the left side around the 6th rib, and two in the right side around the same 6th rib; that seventeen wounds in all were found on the body of the deceased; that they were stab wounds, some superficial; that, in probing the wounds he thought probably caused death, he found that the wound in the chest caused Steed to suffer internal hemorrhage, the stab punctured near his heart and lungs; that the internal hemorrhage was the cause of his death; and that from said examination the instrument used was a small-blade knife, a sharp instrument.
The witness, Annie Stewart, testified that she saw McDaniel in the taxicab when Steed came up to her door on the porch. Steed asked her about the date, and she told him she could not go as "A. C." (the defendant) had beat her up and caused her face to swell; and at this time she saw "A. C." coming up to the porch, and she slammed the door shut, as she thought "A. C." was coming to beat her up again. She did not claim to see anything that happened after that.
Homicide Officer J. E. Helms testified that he investigated the death of Jeriah Steed on or about April 3, and that he and his co-officer arrested the defendant, A. C. Williams, at 11 Woodward Avenue; that the defendant was in the upstairs hallway packing a suitcase. He said nothing about going to church. The defendant told officers that he had not been on Jones Avenue or that side of town at all that night. He denied knowing Annie Stewart, and he denied knowing anything about what had happened. Later the defendant did tell the officers that he had been in a cafe that night in company with Annie Mae Stewart, and that he carried her home. Officers testified that the defendant changed his story twice, and finally admitted that he was over there on that side of town.
The defendant made the following statement: "Well, gentlemen of the jury and judge, your honor, and the court, I have this to say: I had been going with Annie Stewart for better than two weeks. I and her were engaged to be married, and this defendant which is dead, I knowed nothing of only by seeing him through a friend of hers, and my friend came to where I was that night. She was supposed to have dinner ready when I came from work. I called her and she was not there, and her niece told me I would find her on Gray Street, and I did. I was supposed to give her $16 to get glasses and shoes, and I did not have that money, and that brought about the dispute, the beating proposition. She told me she was not going with no one but me, and I was working hard to support her as far as a poor boy was able.
"The dead man had not give me any trouble at all, and I haven't give him none. All I can say, as far as this man being killed, I know nothing of his death, no more than what the officers told me when they arrested me at home that Sunday. I was getting ready to go to church when they arrested me. When I taken her home from the cafe, she had been drinking. She was just about drunk when she called me something that she had no business, when I slapped her down in the street. I did slap her because she put me down lower than a man ought to go, and that is what caused the dispute between us. No man figured in the scrap, only Inez [Annie?] said that if she did not get the money from me she would get it from him after she told me she was not going with me. I taken her home about 1 o'clock; I know exactly what time it was. I was not drinking, and I started off her porch and she called me, and I turned back, and she said, `Come back in the morning after your clothes.' I said, `I won't be over here tomorrow'; and I left and went up on the left-hand side, going towards Gray Street, and I went down Simpson and Mangum and spent the night with some friends of mine. The next morning I arrived at my home and detectives came in. They asked me my name and I told them. If I had been guilty of a crime, I would not have been at home; they would have had to be looking for me until now. But knowing nothing of the killing, I was not expecting any trouble. I goes home and gets ready to go to church to serve my God. That is all I have got to say, and I thank the court.'
1. It is contended by counsel that the conviction of the defendant rested solely upon circumstantial evidence, and that the evidence adduced on the trial does not exclude the possibility of some one other than the defendant having attacked and killed the deceased, after the difficulty with the defendant and after he entered the cab of the witness McDaniel, and while being carried to the hospital. The conviction of the defendant is not dependent wholly upon circumstantial evidence must be relied upon. There is direct evidence by the witness McDaniel that the defendant did assault the deceased; that he was on top of him, beating, striking him, and that immediately after the attack ceased, upon the appeal by the witness to the defendant, the deceased was cut and bleeding; and the testimony of Fair was to the effect that the deceased came to his death as the result of internal hemorrhage produced by stab wounds which he described, there being seventeen such wounds in all upon the body of the deceased. It is reasonably inferable from the testimony of the witness McDaniel that the deceased died while in his taxicab, and on the way to the hospital following the attack by the defendant, for the deceased had stated in reply to a question by the witness as to whether he was hurt, "I can't hardly catch my breath"; and this witness further testified that, as he speeded up, the deceased "began to fall like that, and I asked him again, was he hurt, and he never did say anything else from that to the hospital."
As pointed out by this court in Dunson v. State, 202 Ga. 515, 521 ( 43 S.E.2d 504), it is not necessary, in order to sustain a verdict of conviction, that the evidence exclude every possibility or every inference that may be drawn from the proved facts, but only necessary to exclude reasonable inferences and reasonable hypotheses. We are not unmindful of that line of authorities cited by the defendant, such as Bell v. State, 93 Ga. 557 ( 19 S.E. 244), and Williams v. State, 113 Ga. 721 ( 39 S.E. 487), and many others, which hold that, where the circumstantial evidence relied upon raises only a suspicion of guilt, it is not sufficient, but those cases are not applicable here. In the Bell case the defendant was charged with arson, and there was no direct evidence that he was about the premises at the time the fire originated, while in the instant case there is direct evidence that the defendant assaulted and beat the deceased, and that immediately following the assault the deceased was cut and bleeding. In the Williams case there was no direct evidence of any assault made by the defendant upon the deceased. The other cases cited might also be distinguished, but we do not deem it necessary to deal with each of them, for the reason that in the instant case there is direct evidence of an assault by the defendant on the deceased; of the deceased being cut and bleeding immediately following this assault, and that he died as a result of internal hemorrhage produced by the stab wounds found on his body; and to accept the hypothesis or draw the inference that the deceased might possibly have been assaulted, wounded, and killed by some one else after the assault by the defendant, and while being carried in the cab to the hospital would, in effect, be requiring the State to show that it was impossible for the offense to have been committed by anybody other than the defendant, and to exclude the bare possibility that it might have been done by some one else. No such burden rests upon the State, but it is only required that, where circumstantial evidence alone is relied upon, it exclude every other "reasonable" hypothesis save that of the guilt of the accused. Wrisper v. State, 193 Ga. 157, 164 ( 17 S.E.2d 714). There was sufficient evidence to authorize the verdict, and the general grounds of the motion for a new trial were properly overruled.
2. In the first ground of the amended motion for a new trial error is assigned because the court permitted the State's witness McDaniel, a taxi driver, to testify: "At the time they were on the porch, Steed was saying, `Oh, Lord,'" this witness having testified immediately prior thereto as follows: "After he ran up the street, Steed ran up on a porch, and this boy ran up on the porch behind him. I started driving behind them, and before I got to them Steed had done run out in the street off the porch." Counsel for the defendant made the following objection: "Your Honor, we want to object to that. We don't know exactly whether this defendant was present or not at the time this statement was made." This ground of the motion further recites that after this objection, the following occurred: "By the Court: Q. `Where was A. C. Williams at the time you say Steed was hollering?' A. `Right behind him.' The Court: `I overrule the objection.'" To state the objection made by counsel, and what occurred following the objection, is to answer this assignment of error. The objection urged was that it was not disclosed that the statement of the deceased was in the presence of the defendant. The question propounded by the court and the answer of the witness thereto show conclusively that it was in the presence of the defendant. The overruling of this objection under these circumstances shows no error.
3. The assignment of error in the second special ground is as follows: "Because the court erred on direct examination of State witness, Alex McDaniel, in permitting the solicitor to ask and witness to answer, over timely objection of movant's counsel, as follows: Q. `Did you ever hear anything said with reference to a negro girl?' A. `Yes, sir.' Q. `Tell what that was?' Mr. Morgan: `Your Honor, we object unless it was in the presence of the defendant; and we further object on the ground that he testified that the man broke and ran, and he would not necessarily be in the presence of defendant.' The witness had just testified: `There wasn't anything said between A. C. Williams, and Steed immediately before Steed broke and ran before this defendant followed him.' Movant's counsel objected, and the court ruled, `I overrule the objection.'" While in answer to the question, "Did you ever hear anything said with reference to a negro girl?" the witness answered, "Yes, sir," the objection was to the question which followed; "Tell what that was." This ground of the motion does not disclose what the answer of the witness was to the question objected to, but so far as appears this line of questioning was abandoned following the objection by counsel. What, if anything, was said, by whom it was said, where and when it was said, does not appear. This ground, therefore, shows no error. Turner v. Duncan, 152 Ga. 54 (1) ( 108 S.E. 532).
4. In the third ground of the amended motion error is assigned as follows: "Because on redirect examination of Alex McDaniel, the court erred in permitting the solicitor, over timely objection of movant's counsel and motion for mistrial and to reprimand the solicitor, to ask the witness the following questions: Q. `Now, Alex, at the time you put Jeriah Steed in the taxicab, what was said in reference to Jeriah Steed being cut? What did he say about being cut?' Mr. Morgan: `Your honor, the solicitor has asked the question in regard to a man being cut, and there is no evidence that anybody was cut at this time. I make a motion for a mistrial, and move the court to reprimand the solicitor.' The Court: `I overrule the motion and decline to reprimand the solicitor. However, there is no evidence at this time to show how long the statements were made after any alleged difficulty.'" The objection urged was not well taken. Prior to the question here propounded, this same witness had testified on direct examination: "I told A. C. Williams, the defendant, to stop beating him, and he got up and went around the corner. When Steed got up, he was cut and I saw the blood running down the back. I took him to the hospital." The court did not err in failing to declare a mistrial or in failing to reprimand the solicitor-general, for the basis upon which the mistrial and reprimand were requested was that "there is no evidence that anybody was cut at this time." Evidence having already been admitted from this same witness on direct examination that the deceased, Jeriah Steed, was cut and bleeding at the time he entered the taxicab, this ground of the motion is without merit.
5. The fourth ground of the amended motion assigns error upon the following excerpt from the charge of the court: "Gentlemen, if from a consideration of the evidence submitted to you and from a consideration of the defendant's statement, giving it such weight and credit as you think it is entitled to receive, and applying thereto the law as given you in charge by the court, you believe beyond a reasonable doubt that the defendant, A. C. Williams, in the County of Fulton, at any time before this bill of indictment was returned into this court by the grand jurors named therein, killed the person named in the indictment by cutting, stabbing, and wounding him with some sharp instrument to the grand jurors unknown, that at the time of the killing the defendant was in no danger from the person killed, that the person killed was not committing or attempting to commit a serious personal injury on the defendant, and that the circumstances surrounding the killing were not such as to justify the belief that the deceased intended, endeavored, or was about to commit a serious personal injury on the person of the defendant, but that the killing was intentional, unlawful, with malice aforethought, either express or implied, and without justification or mitigation, as charged, then and in that event the jury would be authorized to find the defendant guilty of the crime of murder." It is insisted that this charge was incorrect as applied to the facts shown by the evidence, and was harmful and prejudicial to the movant, tended to confuse and mislead the jury, and injected into this case an issue not authorized by the evidence, and was inapplicable and placed a burden on movant not authorized by the law or by the facts, in that there was no contention by the movant that at the time of the homicide the movant was in danger from the deceased nor that the deceased was committing or attempting to commit any serious personal injury on the defendant, nor that the circumstances surrounding the death of the deceased were such as to justify the belief that the deceased intended, endeavored, or was about to commit a serious personal injury on the defendant's person.
It is true that in this case the defendant did not rely upon the defense of justifiable homicide, but contended that he was elsewhere and not present at the time any assault was made upon the deceased, if one was made; and that he made no assault upon the deceased, had nothing to do with bringing about his death, and did not even know about it until informed by the officers at the time of his arrest.
It is insisted, not that the charge did not embody a correct statement of the principles of law dealt with, but that it was not applicable to the present case. The charge here complained of is not erroneous for any reason assigned. It does not place a burden on the defendant not authorized by the law or the facts, but gave him the benefit of the defense of justifiable homicide although it was not insisted upon. This court has held a number of times that it is not error for the court to charge the law of justifiable homicide in the trial of a person for murder, where he defends upon the grounds that he was not the person who committed the crime and was not present at the time of its commission; and we so hold in this case, no injury to the accused being shown as a result thereof. Williams v. State, 199 Ga. 504 (9) ( 34 S.E.2d 854); Ward v. State, 184 Ga. 566 (2) ( 191 S.E. 916); Geer v. State, 184 Ga. 805 ( 193 S.E. 776); Walton v. State, 190 Ga. 746 (4) ( 10 S.E.2d 755); Claybourn v. State, 190 Ga. 861, 870 ( 11 S.E.2d 23).
Judgment affirmed. All the Justices concur.