Moore v. State

Mar 6, 1908
Reporters:
, ,
Before:
Holden
Holden, J.

(After stating the foregoing facts.)

1. One assignment of error in the amendment to the motion ■for a new trial is that the court committed error in permitting the State’s counsel to impeach the witness Joe Baggett, hy proving by him that he made statements and delivered testimony, prior to the trial, in conflict with the testimony delivered upon the trial. When Joe Baggett was offered as a witness, and before he testified, counsel for the defendant, after the court had retired the witness and the jury, stated to the court, in the presence of opposing counsel, that the witness had made to them and others statements in conflict with what he had previously stated to counsel for the State and testified to before the grand jury. In making this statement, counsel related what the witness had told them. The witness was then examined, and the court permitted, counsel for the State to impeach him by proving by the witness “prior contradictory statements and testimony, and that such prior statement and testimony were untrue.” In another assignment of error the defendant complains that the court committed error in allowing, over their objections, the testimony of the foreman of the grand jury, “giving in detail the testimony of Joe Baggett delivered before that body.” It nowhere appears in either of these assignments of error what was the testimony of the witness Joe Baggett which he said was true, or his testimony of prior contradictory statements and testi- . mony. Nor does it appear what was the testimony of the foreman of the grand jury. It is impossible for this court to tell, from the assignments of error, what was any of this testimony; and it has *332•been, repeatedly ruled that under such circumstances such assignments of error can not be considered. Pearson v. Brown, 105 Ga. 802 (31 S. E. 746). The mere statement made by counsel hereinbefore referred to can not be considered as showing what was the testimony of the witnesses; and the testimony of- these witnesses not being shown in these assignments of error, either literally or in substance, it is impossible, for obvious reasons, to undertake to say whether or not the court committed error in permitting the witness to be impeached.

2. Counsel for the defendant requested the court to caution, or to permit them to caution, the witness Joe Baggett “that he ■could not be compelled to answer any question that would tend to criminate him, or subject him to a criminal prosecution; and that should his testimony upon the trial of the case differ materially from his testimony under oath before the grand jury returning the indictment, it would tend to criminate, or subject him to prosecution for perjury.” The court declined this request, and its de-clination is assigned as error. While it is true that the witness -can not b.e compelled to answer any question that would tend to criminate him, he is presumed to know the law, and therefore to know this fact, and it is not reversible error for the court to fail to inform him of the existence of this law, which is designed for the protection of the witness himself, and not for another person who may feel an interest in his testimony. Dunn v. State, 99 Ga. 211 (25 S. E. 448).

3. In the latter part of the charge of the court to the jury, this language was used: “It is now, gentlemen, only about one hour until Sunday; the law does not recognize that any business of a legal character can be transacted .on Sunday. When you have reached the hour which by Waynesboro time is 11:32, you will discontinue any further consideration, discussion, or deliberation as to this case until Monday morning.” The jury returned their verdict just before the expiration of the hour, the court having remained in session to receive it; and the defendant complains that this charge was calculated to hasten the jury in their consid•eration of the evidence. The use of the language complained of was not reversible error. It must have been known to the jury that procedure indicated by the court in his charge was the usual *333practice, without the court so stating; and we do not think the:’ making of this statement requires a new trial.

4. The court permitted Dr. J. E. Beall, a witness for the’ State, to testify concerning certain insurance policies on the life; of the deceased, as follows: “The Union Central was for $2,000 made payable to Mrs. Polly Moore as beneficiary; the amount of’ the other policy was $3,000, and was made payable to Mr. Tom Moore, I think.” The ground of the objection was that the policies themselves were the best evidence of their contents, and their’ absence was not accounted for. ’ The substance of Dr. Beall’s testimony on the question of insurance is, that, on Monday morning-after the homicide on Wednesday preceding, the defendant stated to him that he wanted him to write a certificate stating that his-brother was dead; and that during this conversation the defendant, exhibited the policies to the witness, and his testimony as to their contents was from information derived from looking at them at that time. This testimony and other testimony in. the record showed that the policies were in the possession of the defendant.. After the State proved that the policies’were in the possession of’ the defendant, it had the right to go into secondary evidence of’ their contents, in the absence of the defendant voluntarily producing the policies, or showing that he did not have them. There is no law in this State which permits the State to require the defendant to produce evidence against himself, and any evidence in. the possession of the defendant is, under the laws of this State, inaccessible to the State. If a notice had been served on the defendant to produce the insurance policies, he could have refused to> do so, and this refusal on the part of the defendant might have’ been construed into an admission that he had papers which, if introduced in evidence, would have tended to his injury. Hence, if’ a notice had been served on the defendant to produce the policies,, their production, on the one hand, would have the effect of requiring him to furnish evidence against’ himself, and, on the other hand, his refusal -to produce them would create a presumption unfavorable to him. Farmer v. State, 100 Ga. 41 (28 S. E. 26) ; Kinard v. State, 1 Ga. App. 146 (58 S. E. 263) ; Mahan v. State, 1 Ga. App. 534 (58 S. E. 265) ; U. S. v. Doebler, Fed. Cas. 14, 977 ; State v. Gurnee, 14 Kan. 111 ; U. S. v. Reyburn, 6 Pet. 352 (8 U. S. (L. ed.) 424) ; 2 Enc. Ev. 362 ; Underhill’s Crim. Ev. §42..

*3345. After the court had permitted counsel for the State to ask Joe Baggett, a witness for the State, leading questions, counsel lor the -defendant objected to the manner of the State’s counsel in examining the witness; whereupon, the court replied, “The court has permitted counsel to ask this witness leading questions, as though he w-ere an unfriendly witness,” which statement by the •court is assigned as error. The Penal Code, §1019, provides: “Leading questions are generally allowed in cross-examinations, and only in these; but the court may exercise a discretion in granting the right to the party calling the witness, and in refusing it to the opposite party, when, from the conduct of the witness, or other reason, justice requires it.” It being a matter within the discretion of the court to permit the party calling a witness to ask him leading questions,’ “when, from the conduct of the witness, or other reason, justice requires it,” it is not reversible error for the •court to state, in the presence of the jury, “The court has permitted counsel to ask this witness leading questions, as though he were an unfriendly witness.” The law does not generally permit a party calling a witness to ask him leading questions, and the jury knew that there was some reason for the exercise of the discretion of the court in permitting it in this case. The expression by the court that he would allow leading questions to be propounded to the witness, “as though he were an unfriendly witness,” does not mean that the witness was an unfriendly witness, but means that the court would allow leading questions as though he were one. To say that leading questions would be permitted as though a witness were a certain kind of a witness does not mean that the witness is that kind of a witness. The statement by the court, in the presence of the jury, that leading questions would be permitted to be propounded to the witness, just as he would do if he were an unfriendly witness, was not error requiring a new trial.

6. The evidence indicated that the deceased was killed at the place where his body was found, and the evidence that the body was found in Burke county, and other evidence in the case, sufficiently proved the venue.

7. The majority of the court are of the opinion that the evi•denee was sufficient to authorize the verdict of guilty, which opinion they express as follows: “We deem it unnecessary to enter into a discussion of the testimony to sustain this view. It is suffi*335cient to point to the evidence reported in the statement of facts preceding the opinion. If it is not sufficient to authorize a conviction, and requires a court to upset the verdict, we are of the ■opinion that it would be difficult to uphold any conviction on circumstantial evidence. Corpus delicti, opportunity, presence near the scene of the crime near the time of its perpetration, motive, unusual acts, conduct inconsistent with innocence and evidencing a guilty conscience, tracks, most extraordinary conduct in sending the deceased to certain places just before the killing, and after-wards searching for him, not at those places, but at others where ‘there was no apparent reason to look, were shown. These facts, ■and others in evidence, the majority of the court think fully sustain ‘the verdict.” •

The writer can not concur in the views of the majority of the court that the evidence was sufficient to warrant a conviction. All of the evidence in this case was circumstantial. The deceased was found dead in the country, near a plantation road. Near his body were found the horse and buggy in which he and the defendant .•and Joe Baggett left the store of the defendant the preceding afternoon. The horse was unhitched, and was tied with one of the buggy-lines to a tree, and the legs of the deceased had been trampled by the horse’s forefeet. They were in five or six feet of the road and not far from houses. The witness Joe Baggett testified, that, at a certain place on the road, the deceased was sent off alone in a buggy by the defendant, to attend to some business; that he (Baggett) and the defendant there stopped to attend to a call of nature, and tied the cows to a tree,, after which he and the defendant drove the cows on to Keysville, reaching there about 9 o’clock •at- night. An effort was made by the State to impeach this witness for the State, by proof that he told others, and testified before the grand jury, that the defendant drove down the road in the buggy with the deceased from the point where the cows were tied, and returned alone, warning the witness not to tell that he went off in the buggy with the deceased. It is difficult for the mind to con-eider this impeaching testimony only for the purpose of discrediting the witness, but it should, of course, be considered only for this purpose. If what the witness testified to as the truth was true, the defendant was not guilty. But, disregarding the testimony of this witness entirely, there is not a fact proved in the case *336which is not entirely consistent with the innocence of the defendant. The theory that the deceased was shot while in the buggy is-not borne out by the evidence, but the evidence establishes the fact that he was not shot while in the buggy. When the buggy was found the next morning near the body of the deceased, the top was left half-way back, and there was a bullet-hole in the top in this position, which, by reason of its position, was in the back of the buggy above the back of the seat. There was another bullet-hole in the top‘in the right-hand corner at the bend of the top. All of the wounds on the deceased entered on his right side. One-bullet entered on the right side and went through the face or head,, and another entered the jaw on the right and came out on the same side. It is not reasonable to suppose that the person shooting the deceased was in the buggy, and that the deceased was sitting in the buggy when he was shot, in view of the fact that he-was shot on the right side and one bullet-hole in the buggy-top. was in the right-hand corner and the other in the back. The theory that the deceased was not in the buggy when shot is further-substantiated by the fact that, notwithstanding several wounds, were inflicted on him, there was no blood anywhere in or on the-buggy. Moreover, there was no evidence of any blood on the. ground except where the deceased was lying when found. The indications are that the deceased was killed while standing on the-spot where his body was found. The bullet entering on the right side and going through the face or head, and the bullet -entering-the jaw on the right and coming out on the same side, were the ones which probably went through the right-hand corner and the-back of the top of the buggy, and the buggy must have been not. far away at the time, with its front or back almost directly towards the party doing the shooting, and with the deceased between, the party doing the shooting and the buggy. Without going into, further details, the most reasonable theory .to be deduced from the facts proved is that when the deceased was shot he was at the-spot where his body was found, and standing between the buggy and the person shooting him, and that the horse was tied at the time of the shooting, and the buggy then standing where they were found the next morning. It would be an unusual thing for two 1 brothers driving along a plantation road at night to drive five or six feet from the road into the woods and unhitch the horse for any *337purpose. At any rate, it would be as probable that a person while alone in a buggy along a- country road at night would drive from the road and unhitch the horse, as that two brothers would do this. The evidence showed that the deceased drank. There was evidence of tracks near the body, made by a person wearing a No. 6 shoe, and that it was thought that the defendant wore a No. 6 shoe. There was no peculiarity about the track, and the evidence was not very strong to show that it was made by the defendant. The defendant was 22 years old and the deceased 18, and there was no evidence of the size of the shoes worn by the deceased, who might have made this track. ’ Moreover, there was evidence of other tracks made by a No. 12 shoe near the scene of the homicide, that led across a field to and beyond a new and unoccupied house. There was no evidence that any of the bullets which entered or passed through the head or body of the deceased were gotten and compared with the bullets carried by the pistol in possession of the defendant on the occasion in question. Without undertaking to discuss the many details of this evidence, it is sufficient to say that there is not a single fact proved which is inconsistent with the defendant’s innocence. Every fact proved in the case can be true and yet the defendant can be innocent. The rule laid down in the ease of Sikes v. State, 120 Ga. 494 (48 S. E. 153), is as follows: “The burden is upon the State; and when it relies upon circumstantial evidence to convict a defendant, the proved facts must not only be consistent with the hypothesis of guilt, but inconsistent with the hypothesis of innocence.” What fact proved in this case is inconsistent with the hypothesis of the defendant’s innocence? In the case cited, of Williams v. State, 113 Ga. 721, 723 (39 S. E. 487), Mr. Chief Justice Simmons, commenting on the rule above announced, says: “This court has ruled on several occasions that, in cases involving life or liberty, this rule must not be relaxed. When a heinous crime has been committed in a community and the people are greatly shocked thereby, it is natural for them to catch at any little circumstance to throw suspicion upon some person and to conclude from this or that circumstance that he is the guilty party. The horror of the crime, and their ‘desire, as good citizens, to see the guilty party punished and the law vindicated, frequently lead them to premature judgment which oftentimes follows them into the jury-box, where, as jurymen, they *338not infrequently find persons guilty on bare suspicion alone. This is demonstrated by the records of eases passed upon by this court, commencing with the earlier volumes of our reports and continuing almost to the last one. For a reference to some of these cases, see Bell v. State, 93 Ga. 557 (19 S. E. 244). Juries should guard thepaselves in this respect, and not find verdicts on mere suspicion.” Many of the statements made by the defendant, and many of his acts, claimed by the State to be circumstances unfavorable to him, were of slight significance and were but natural under the circumstances. Considering them singly and collectively, and giving to each and all of them the greatest weight they can possibly carry against the defendant, they are not inconsistent with the defendant’s innocence. To simply prove circumstances that are consistent with his guilt does not meet the requirements of the law. When the State relies for conviction upon circumstantial evidence, the facts proved must be inconsistent with the innocence of the accused. The evidence in this case does not meet the requirements of this rule of law, and is insufficient to warrant the verdict of guilty. The evidence does not show the defendant’s guilt to a moral and reasonable certainty.

However, the contrary view is entertained by the majority of the court, and the judgment of the court below is

Affirmed.

All the Justices concur, except Holden, J., who dissents.