153 Ga. 105 | Ga. | 1922
Clint Mathis was indicted for the murder of Lewis E. Kinsey, and on the trial of the case a verdict was rendered finding the defendant guilty with a recommendation to mercy; and he was sentenced to life imprisonment in the penitentiary. The defendant filed a motion for new trial, which was overruled, and he excepted. The ease is here, the plaintiff in error assigning error on two grounds. The original motion sets forth that the verdict is contrary to law, contrary to evidence, -and without evidence, to support it. The only question raised by the amendment to the motion for a new trial is on the failure of the court to charge the
Two witnesses, who were employees of the terminal station company in Chattanooga, testified that the Ford car which was later identified as belonging to the deceased was driven up to a point near the station at about three o’clock a. m., on the morning after the disappearance of the deceased, by the defendant, and was parked at or near the curb. The car was abandoned by the defendant and it remained where it was left by him for two or three days until it was taken possession of by the chief of police of Chattanooga and by him restored to the family of the deceased. The witnesses recognized and identified the defendant on the trial as being the man who drove the car into Chattanooga and left it in front of the terminal station. The ticket-agent sold a ticket to a man who fitted the description of the defendant, between three and four, o’clock a. m, on the morning of the 28th of January, to Asheville,
The ex-sheriff of Chattooga county, who went to Marion, N. C., for Clint Mathis, testified that at first the defendant said he did not know anything about Kinsey, the deceased, and the witness informed the defendant that he had some information before he left home that he imparted to the defendant; and then the defendant told the witness and those who were with him that Kinsey did go down to his sister’s after him and carried him to Some and left him on Broad street, and that he got on the street-car and went to Lindale, and that was the last he ever saw of Kinsey. Witness asked the defendant what’ time that was, and he said it
The foregoing evidence is circumstantial only, but we are of the opinion that it is sufficient to exclude every other reasonable hypothesis save that-of the guilt of the accused.
In his statement to the jury the defendant said, among other things, “ On the 27th day of last January I met Mr. Einsey on his mail route, and I made arrangements with him to carry me to Rome, Georgia, that night, and that night at six o’clock he met me at the place where we agreed to meet at Mr. Dodd’s mail-box, and I got in his car and he drove me to Rome; and he knew the reason I wanted to go to Rome; he knew that I was in some trouble here; the grand jury had returned six true bills against me for misdemeanors at the last term, and he knew that, and he knew that was the reason I wanted to go; and the reason I asked him to carry me was he was my friend, and I knew he would carry me and nobody would know it, and he would not tell it. He drove me' to
The above is substantially all the evidence relating to the question of alibi. We are of the opinion that this evidence is not such as reasonably to exclude the ¡Dossibility of the presence of the defendant at the scene of the homicide. It was also in evidence that the distance from the place where the body of the deceased was found to Borne is about twenty-four miles; and assuming that the homicide occurred .at or about six o’clock, when the six shots were heard to come from the direction in which the body was found, we can not say that the appearance of the defendant in Lindale, which is approximately twenty-nine miles away, at eight o’clock, would reasonably exclude the possibility of the presence of the defendant at the scene of the homicide. Besides, there is positive evidence in the record to show that the distance between where the body of the deceased was-found and Borne could be made within an hour or an hour and fifteen minutes.
From what has been said above we conclude that the evidence, construed most favorably for the defendant, did not exclude the possibility .of the presence of the defendant at the scene of the
Judgment affirmed.