54 S.E.2d 302 | Ga. Ct. App. | 1949
Lead Opinion
There is no merit in any of the special grounds of the motions for a new trial; the evidence supports the verdict, which has the approval of the trial judge; no error of law was committed and the motions for a new trial were properly overruled.
1. The verdicts of the jury were evidently based upon the confession made by the defendant and corroborated by other circumstances. "A confession alone, uncorroborated by any other evidence, shall not justify a conviction." Code, § 38-420. However, "a conviction may be lawfully had upon a free and voluntary confession though the same be not otherwise corroborated than by proof of the corpus delicti." Wimberly v.State,
The defendant said that he burned the buildings alleged in the indictment. He said it repeatedly at different times and to different persons among whom were the sheriff of the county, the mayor of the town, the preacher of his own church, the insurance investigator for the territory in which the churches were located, and to another colored man with whom he was in jail while awaiting trial. Under the evidence the jury was authorized to find the confession was freely and voluntarily made.
"In a case of arson, the corpus delicti consists of two fundamental facts: first, the burning of the house described in the indictment, and second, the fact that a criminal agency was the *495
cause of the burning." West v. State,
In the instant case, A. L. Sellars, a policeman of the City of Loganville, investigated the burning of the Mt. Zion Methodist Church, which occurred about twelve or one o'clock on August 22 or 23, 1947. He testified: "I believe the weather was kind of misty. I am familiar with that church, how it was built and so forth. It was a wooden structure. There was ordinary grounds around it. There wasn't any brush there. If there had *496 been any there it was not in bad condition before the fire. There was no inflammable material around the church that I know of. As to whether I could tell in what portion the church was burned from the front to the rear as the front part had already fallen in and the other part hadn't [when I got there]. . . As to what happened when they shot water to it [the schoolhouse], every where they put the water on the fire it would start and flare up again. I [It?] would stop an instant and then flare up again. In other words, the water would not put the fire out."
Charles M. Huguley, special agent of the National Board of Fire Underwriters, testified: "I have been with the Fire Underwriters sixteen years. My job with them is the investigation of arson. In that capacity I have had a great deal of experience with fires and their cause and effects and what caused them, and the effects of fire. As to whether if a fire is burning and water is put upon that fire and it only puts it out temporarily and does not extinguish it what that illustrates, a fire burning on the floor in a vestibule and you throw water in on the fire, where there is a fire the fire is generally extinguished when the surface is covered with water. The fire there is extinguished, and then, when the fire flares up again and again and again that would indicate the presence of a volatile liquid. I would say gasoline is a volatile liquid."
The testimony of these two witnesses stated circumstances which would, in connection with other circumstances, authorize the jury to find that someone threw gasoline on the front part of the schoolhouse and then set fire to it. This evidence would also corroborate the defendant's confession that it was he who did so.
Willie Malcom, a witness for the State, testified: "He [the defendant] told us where he had the jug [which he said contained the gasoline which he said he used in burning the schoolhouse] below the schoolhouse in the ditch and we went in the ditch and didn't see it, and he said somebody must have moved it. We saw a place where the defendant showed us where it was. It was a little ditch concern and little bushes. There was a place there where a jug could have set. I seen some tracks the way he said he went. . . I don't know whether they resembled the tracks of Isaiah or not." *497
There was other testimony introduced that Isaiah Grimes, the defendant, was the son of Maggie Catlin and the stepson of Fluke Catlin, and that Fluke Catlin had taken out two insurance policies on his life with two separate fraternal lodges, one policy was with the Home Mission Lodge which held its meetings in the Mt. Zion Church, and the other policy was with the Faith, Hope Charity Lodge which held its meetings in the Friendship Church. The beneficiary named in both the policies was Minnie Catlin, the minor adopted daughter of Catlin and the foster sister of Isaiah Grimes, the defendant. Fluke Catlin died of a wound or wounds received when his house burned. Maggie Catlin, mother of the defendant and wife of Fluke Catlin and foster mother of Minnie Catlin, demanded payment of the policies to Minnie Catlin, the beneficiary, notwithstanding she was still a minor.
Luther Gordon, who seems to have been an official of both of the lodges, Home Mission and Faith, Hope Charity, testified that Maggie Catlin made a demand on him in the street and made her first demand on the Home Mission Lodge at one of its meetings in the Mt. Zion Church. The lodge would not pay the demand to her because the beneficiary, Minnie Catlin, was a minor and the mother had no lawful authority to collect it. Thereafter the lodge members left the Mt. Zion Church at about 9 or 10 o'clock and the church was burned that night about 12 or 1 o'clock.
Luke Streeter, the doorkeeper of the lodge, testified: "I remember the occasion when Maggie came down there to the lodge. The lodge was in meeting there. Luther Gordon was head of the lodge. . . Isaiah came there with her, five of them came there, Maggie and Isaiah [the defendant], Willie Malcom and Maggie's daughter Eliza May and the little girl. I don't know the name of the little girl. That was Fluke's adopted daughter [Minnie Catlin]. They were making a lot of racket out there and they authorized me to go out there and to get them to stop making a fuss, and Maggie Catlin said she wanted her money and I told Maggie the lodge was meeting, and she said she wanted the lodge money on account of Fluke's death; that is what she wanted, she said; and she kept raising a fuss *498 and I went out there to stop her. She said she was going to have that money before she left there. As to what else she said, I left."
Luther Gordon also testified: "I saw Isaiah get some gasoline. He did not get any gasoline from me. I remember a five-gallon can he had. He got some gasoline to saw wood; he got the gasoline to saw the wood. He got three or four gallons, I think, and got it in a big can. It was a big old square can. He got the gasoline to saw wood. That was before the first church burned."
Charles Kelly, sworn for the defendant, testified: "I recall the night last August when the Mt. Zion Church was burned. I recall seeing Isaiah Grimes that night. Isaiah lives on the other side of me [from Mt. Zion Church]; at that time he was living at Mr. Jim Moore's farm which is a half or three-quarters of a mile beyond my house. I saw him and I saw the fire. I saw the fire and after that I saw Isaiah. I picked him up in the highway just about a hundred or so feet outside of my house. He was trotting along the highway towards the fire. That was just about half a mile from where he was living then. He was coming from the direction where he lived from that direction towards the fire. It was about a hundred or a hundred and fifty feet from where I picked him up to the front of my house; I had just come out of the driveway of my house. It was dark and he couldn't see me in the dark and I hollered to him and asked him if he was going to the fire and he didn't say anything but walked to the car, and when he got side of the car, I told him to get on the side of the car, and he did, he got on the side of the running board, and rode down the highway this side of the church and got off and went with the crowd, and I didn't see Isaiah any more that night. That was after midnight, about one o'clock. I could not recall exactly. It is just about half a mile from the point where I picked him up to the fire. . . That fire had burned a good long time before I ever started from home; it had burned a good little bit before I discovered it. I live on the west side of the highway and anybody could certainly have come through those fields and come to my house without coming on the road at all. Then I would say there would have been sufficient time for anybody to leave that church after the fire started and come by my house at the time I picked him up, because the church had practically burned down. I don't know *499 where Isaiah was before I saw him. He could have been to the church and come back around when I picked him up."
One of the witnesses for the defendant, Pearly Williams, on cross-examination stated that "she [Maggie Catlin, the mother of the defendant] said something about Luther Gordon being the cause of her not getting the insurance money, she said that Luther Gordon was a son of a bitch and she was going to get even with him, if he didn't pay her the money."
Relative to the burning of the Friendship Baptist Church, where the Faith, Hope Charity Lodge had customarily held its meetings and where the Home Mission Lodge began to hold its meetings after the burning of the Mt. Zion Methodist Church, the Friendship Church burned on October 3, 1947, a little more than a month after the Mt. Zion Church burned.
A. L. Sellars testified: "The second church burned was Friendship Church. That Church was a wooden structure. It had a rock filler foundation. The front part was three and a half or four feet high and the back part practically on the ground. I know the grounds around that end of the church were in good shape. I would not think that there was any grass growing under the church that could catch fire. As to weather conditions, it was fair that night the best I recall; it was not lightning or anything of that kind. I don't know just how quick I got there to the fire after the alarm went off. As to the condition of the building at that time, it was almost falling in, part of it. I say it burned from the front to the rear; from my investigation I am satisfied that is true."
Luther Gordon testified: "The fire broke out at Friendship Church about eleven-thirty or twelve o'clock, but we didn't have no lodge there that night."
Alfred Grimes, an uncle of the defendant, testified: "At my house that night Friendship Church burned was we playing Florida String, me and my wife and Isaiah [the defendant] and Joe Woods, Uncle Bill, William Hill, Annie Rice Martin, and I don't remember who else. Some time before the fire occurred Isaiah and I were playing partners. As to whether you play a certain number of games, you play three games and if you win two you win, if you get two out of three you win. We call it rise and fly. Isaiah and I got beat in that. I rose and Isaiah rose too and *500 I got up and went in the kitchen and Isaiah went out and when I got back Isaiah was in there. I stayed in the kitchen a prettygood while and when I came back Isaiah was in the room. What happened then was Isaiah was in the room and Joe Woods came out there and said about the fire and we all come to the door then and came out. The fire was Friendship Church. . . I guess Friendship Church is two or three blocks from my house. . . We all went down there. The church seemed like it was burning in the front as it was going back that way, burning from the front to the rear. It looked like the fire was sweeping through the building. I don't know what happened to Isaiah after that." [The fire was] about a quarter to nine; it could not have been as late as ten o'clock." (Italics ours.)
The following evidence was introduced relative to the burning of the Loganville Colored School Building. Luther Gordon testified: ". . we had a meeting at the schoolhouse the night of the fire there. We left the schoolhouse at fifteen minutes to ten o'clock and we were back there in thirty minutes and it was afire. I don't know whether we were smoking there that night, but we didn't leave any fire. How I know that is I seen about the fire. There was smoking at the schoolhouse."
A. L. Sellars testified: "As to how quickly I got to the school, I suppose, from what they said about the crowd that left the schoolhouse, I was there in not more than fifteen minutes afterwards. I was able to get to the school before it caught fire very much. I went to the fire with the fire truck. The schoolhouse building has what I call a vestibule, about six feet by six feet, and the entrance is back of that that went into the main building. I went and looked in the building, and there was no fire in the inside of the building, and just in this vestibule it was in a solid flame and the fire had begun to burn the side of the house and it was afire along the edge. There was no evidence of fire inside of the building then."
William Hill, sworn for the State, testified: "I remember the night the schoolhouse burned. I live about four hundred yards from where Alfred Grimes lives. I live nearer to the schoolhouse than Alfred lives. I saw Isaiah Grimes that night. He came back to my house. That was somewhere around seven o'clock; it was dark; it was night. He came around the window and I *501 said to my wife, `somebody passed that window,' and just about a second after I spoke about seeing somebody pass, Isaiah spoke. Earn Ragsdale was speaking to Isaiah, but Isaiah never did stop as I know of and Ragsdale said, `Boy, you scared me,' and Isaiah came back to my house and kept on around and kept on going. I said that that happened early in the night. I did not see Isaiah any more. I don't know when the schoolhouse caught on fire but it was around ten o'clock. I saw it; I went to the front door."
In this case there was positive evidence that the Mt. Zion Church, the Friendship Church and the schoolhouse buildings in question were destroyed by fire; we think the surrounding circumstances were adequate to authorize the jury to find that the fires were of an incendiary origin. These surrounding circumstances were: the isolation of the buildings; the fact that the jury was authorized to find that gasoline or some volatile substance was used in burning at least one [the school building] of the buildings and that the defendant had bought gasoline prior to the first fire; the absence of any natural cause for the fire in any of the buildings; the precautions taken at the school building to avoid fire; the absence of any meeting at Friendship Church the night of its burning; the defendant's absence from home and presence in the vicinity of all of the fires on the nights that they occurred; the fact that the defendant, his mother, his foster sister, and two other persons had gone to the Mt. Zion Church and the mother had demanded payment under the insurance policy of the Home Mission Lodge, which was meeting in that church and payment had been refused and the church was burned thereafter on the same night; the fact that after the Mt. Zion Church had burned and the Home Mission Lodge transferred its meetings to Friendship Church, it was also burned; and that the Loganville Colored School Building also burned about a month after the Lodge transferred its meetings to it from the Friendship Church when it had burned. These were circumstances which appeared extraneous of the confession, and were sufficient to authorize the jury to find that the crime of arson had been committed. The confession itself was sufficient to connect the defendant therewith. Bines v. State,
"It is not often possible to make out a case of arson by direct proof establishing the corpus delicti or showing the connection of the defendant with the commission of the crime, for arson is seldom committed except at an hour when there is small chance that the criminal will be actually observed in the execution of his nefarious purpose, and it is also generally easy to commit the crime by stealth, without the help of an accomplice, without the beating of drums or blare of trumpets or any betraying noises; and therefore circumstances must generally be depended upon not only to show the guilt of the accused, but to establish the corpus delicti. The rule that the circumstances proved should exclude every other reasonable hypothesis save the guilt of the accused should not be relaxed; but it does not follow that the criminal must go unwhipped of justice because absolute proof is not presented by the State. If there be enough shown to convince the jury beyond a reasonable doubt that the guilt of the accused has been established to the exclusion of every other reasonable hypothesis, and no other reasonable hypothesis is suggested by the evidence, and there is nothing to indicate that the jury failed to accord to the defendant every consideration to which he was entitled, a reviewing court will not arbitrarily say that the conviction should be set aside."Wade v. State,
The defendant contended that he was not guilty of the charge of arson; that his confession was induced by fear and not freely and voluntarily given; and introduced a number of witnesses in an effort to establish his alibi that he was elsewhere when the fires were set or the buildings caught fire. The jury evidently did not accept his or his witnesses' version of the case. The evidence was conflicting but sufficient to support the verdict. *503
The instant case is differentiated from the case of Grimes
v. State,
2. We have carefully considered special ground 1 of the motion for a new trial and are of the opinion that this ground is not meritorious.
3. The third special ground is based upon an objection which is the same as the one urged to the identical instruction given in Grimes v. State, supra, which was there held not to be error; hence the ground here is not meritorious.
4. In special ground 2, the defendant objects to the following charge of the court: "The law presumes every fire to be accidental until the contrary appears. In order to support a conviction of arson it is necessary to show that the burning was not accidental or providentially caused, and the corpus delicti must be shown from other sources. The corpus delicti of an arson may be established by circumstantial evidence which must exclude every other reasonable hypothesis than that of a wilful and intentional burning, and must be so strong as to rebut the presumption that the fire was of providential or accidental origin. I charge you that the corpus delicti may be proved with other elements of the offense by circumstances, such as the isolation of the premises, if isolated, the absence of any natural cause for the fire, the precautions taken, if any, to avoid a fire, or other facts of similar import. Evidence, if any, that the accused had a motive for setting a fire, may be considered in showing the fire was of criminal origin rather than of accidental origin." One ground of the defendant's objection to this charge is that the court erred in failing to charge that in order to prove the corpus delicti the jury must find beyond a reasonable doubt that the burning was the result of a criminal agency.
"`It is not the duty of the court to carve up the case into different propositions, and instruct the jury specifically on each *504
as to reasonable doubt, but to submit the case as a whole upon all the evidence, and instruct upon the subject of doubt in appropriate terms upon the whole case.' Carr v. State,
Another ground of the defendant's objection to this charge is that "such charge was misleading in that it led the jury to believe that they could consider the alleged confession as one of the circumstances to be considered in determining whether there was adequate proof of the corpus delicti." There was other evidence in the record from which the jury might have inferred a motive on the part of the defendant besides his confession. This charge does not make mention of the confession, but in view of what has been said in division 1 of this opinion the charge complained of was not erroneous for any reason assigned.
The court did not err in overruling the motions for a new trial.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the whole court consider any case in which one of the judges dissents, this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C. J., and Felton, Gardner, andParker, JJ., concur. Townsend, J., dissents.
Dissenting Opinion
As pointed out in the majority decision, a confession alone, uncorroborated by any other evidence shall not justify a conviction, and a conviction may be lawfully had upon a free and voluntary confession although the same is otherwise corroborated only by proof of the corpus delicti. However, it is my opinion that the evidence in these cases fails to sufficiently corroborate the confession, and that therefore the evidence is insufficient to support the verdicts. As I view the cases they are no stronger than Grimes v.State,
Therefore in view of the decision in Grimes v. State, supra, I am of the opinion that the circumstantial evidence in these cases is insufficient to establish the corpus delicti aliunde the confession.