168 Ga. 344 | Ga. | 1929
Lead Opinion
Daniel Shirley was placed on trial for the murder of William Simmons by shooting him with a pistol. The defendant was convicted, and in the verdict was recommended to the mercy of the court. The exception is to a judgment overruling his motion for a new trial.
The court admitted, over the objection that it was hearsay, a declaration of the deceased, uttered about ten o’clock Saturday morning before the body was found, on the following Monday: “Pap, I have got to go off and help Daniel Shirley grind some malt.” The declarant and Shirley [defendant] had engaged in a conversation, after which Shirley left going in a direction which would lead to a still. The declaration was made about thirty minutes after Shirley left, and upon making the declaration the declarant left, going in .the same direction Shirley had gone. That was the last seen of the declarant in life. His body was found near the still. In the body were two holes made by pistol bullets that caused death. The only issue upon which the declaration would be material was that of identity of the defendant as perpetrator of the crime. Hpon this issue the declaration was very 'material. In connection with other evidence the declaration tended to explain conduct of the deceased in going in the direction the defendant had recently gone, and his presence at the place where his body was subsequently found, and his purpose in being there.
In Thomas v. State, 67 Ga. 460, the third syllabus is as follows: “On a trial for murder it appeared that the defendant and deceased were living together as husband and wife; that the deceased was jealous of his attentions to another woman, and had quarreled with him about the latter; that on the night of the homicide she left her house, saying, as she went: ‘There are two persons down the alley; I think it is Harp [defendant] and his sweetheart; I will go and see;’ that she went, but never returned; and that the next day she was found murdered near where she expected to find defendant: Held, that such statements by her were admissible as part of the res gestee.” It is declared in the Penal Code (1910), § 1023: “When, in a legal investigation, information, conversations, letters and replies, and similar evidence, are facts to explain
The evidence, though entirely circumstantial, was sufficient to support the verdict.
Judgment affirmed.
Dissenting Opinion
(dissenting from the ruling announced in the second division). There was evidence in this case tending to show the following. Daniel Shirley and William Simmons lived about two miles apart on separate roads, and, except as otherwise indicated hereinafter, had been friendly for a number of years. There was a still on the side of Hudgins Mountain. At the base of the mountain was- a small stream called Parker’s Creek, which ran down to Winn’s Mill located a short distance from the mountain. On this creek and near the base of the mountain was a cultivated field in which William Simmons and his father were working on Saturday morning, when the defendant came to the field and engaged in conversation with William for about an hour. The conversation was apparently friendly, but what was said between them was not heard by the elder Simmons, who kept on at his work. The defendant left about 10 o’clock in the morning, walking up the creek in a course which would have carried him in the direction of the still and also his home. After the defendant had been gone about thirty minutes William stated to his father: “Pap, I have
There were two pistol wounds on the body; one penetrated the front and ranged towards the back and the other penetrated the back just below the shoulder-blade. A physician testified that each hole was made by one ball; that the first hole was made by a ball from a 38-caliber and the latter by a 32-caliber ball; that by experiment a 38-caliber ball fit the first hole, but he could not get it in the second hole at all; that the blood from the first shot flowed downward on the body, soaking the garments, indicating that it took some time for this to occur and that death did not re-
There was evidence that, three years before the homicide, the defendant went late at night to the house of a neighbor to borrow a gun, stating that he had had a difficulty with William Simmons on the road, and he desired to go to his house “and have the trouble "over again.” A nephew of William Simmons testified that, a year before the homicide, Shirley stated to witness: “Your Daddy and Bill are reporting, and . . I am going to get them and get Bill first.” A few days before the body was found Shirley was arrested at Alto while drunk, and called on William to help resist the officer, and on his refusal cursed him and told him “he would hate it if he didn’t.” At the time of that arrest Shirley had on his person a 32-ealiber pistol which the officer took from him and delivered to the sheriff. While the arrest was being made Shirley cursed the officer and resisted to such an extent that it was necessary to strike him. The nature or extent of any wound inflicted by the officer on Shirley is not made to appear. On Thursday before the body was found Shirley purchased six cartridges for a 32-caliber pistol. The date of the arrest for drunkenness is not clearly set forth, it being stated in one instance that it occurred on Monday and in another on Friday preceding the finding of the body. In his statement before the jury the defendant, referring to his arrest at Alto, said: “-My head nearly killed me. I had five stitches taken back here where a car hit me, and these licks on my head made my head hurt awful bad,” He. denied all knowledge of the homicide and participation in operating the still, and stated that in response to a request he went from his home Saturday-morning to the home of William Simmons to see the latter, and upon being informed that he was at work down in the Winn Bottom he went down there and talked with him for a while in regard to some work to be done for William with a cutaway harrow, and then left, going along a path 'up Parker’s Creek and proceeding straight on to his home, where he remained until Monday. The defendant introduced evidence tending to show his presence at his home at the time above indicated, and evidence to the effect that
The foregoing fairly states the substance of the evidence and the prisoner’s statement before the jury. The evidence was entirely circumstantial. The evidence was sufficient to authorize a finding that the defendant was engaged- with the deceased in operating the still on the mountain; and this 'being so, the jury would have been authorized to find that the defendant made false statements in reference to the defendant’s knowledge of the still and participation in its operation with the deceased. In connection with this there are the circumstances of the defendant and the deceased going in the direction of the still on the day the homicide was evidently committed; of his attitude in failing to offer to help search for "William when informed that nothing had been heard from him; of his failure to show a friendly or neighborly interest by attending the funeral; of the making of threats and the use of the recent language addressed to "William at the time of arrest for drunkenness, implying a threat; also that the defendant had a 32-caliber pistol and had recently purchased cartridges for a pistol of that caliber. All these circumstances are consistent with the guilt of the^defendant and are sufficient to raise a suspicion against him; but these alone, or considered in connection with all the circumstances in the case, are not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. The character of the place was such as persons inclined to lawlessness or violence ■would likely visit. The manner in which the ground was marked indicated the recent presence of a number of people. That William Simmons went to the place there can be no doubt. The presence and condition of his body make that clear. But whom did he find there, or who came while he was there ? The evidence does not disclose; neither does it disclose that Daniel Shirley went to the place. He was killed by being shot with two different pistols. There is a reasonable hypothesis that William reached the place Saturday morning shortly after leaving his father in the field, and
In Green v. State, 111 Ga. 139 (36 S. E. 609) the circumstances relied on to connect the defendant with the alleged offense of arson were as strong if not stronger than the circumstances in the present case, and they were held to be insufficient to convict. It was said, in the opinion: “We think that the evidence was not sufficient to authorize the verdict. It was entirely circumstantial, and in no way connected the accused with the arson. The law does not permit any one to be convicted upon mere suspicion. If the evidence be circumstantial, it must connect the accused with the Oiffense so as to exclude every other reasonable hypothesis than that of his guilt. It is possible that Green was guilty of the arson with which he was charged, but the State has not produced sufficient evidence to show beyond a reasonable doubt that he was