Aycock v. State

• Citation: 4 S.E.2d 221
• Decision Date: 12 July 1939
• Docket Number: No. 12837.,12837.
• Parties: AYCOCK . v. STATE.
• Court: Supreme Court of Georgia

4 S.E.2d 221

AYCOCK .
v.
STATE.

No. 12837.

Supreme Court of Georgia.

July 12, 1939.

Rehearing Denied July 27, 1939.

[4 S.E.2d 222]Syllabus by the Court.

1. Where the court's charge instructs jury that the defendant pleads not

[4 S.E.2d 223]

guilty, and that he is presumed to be innocent, and that the burden is upon the State to prove the material allegations of the indictment, and instructs them fully on the law of alibi, the charge need not, in the absence of specific requests to so charge, expressly instruct them that the defendant contends that he did not commit the crime, that he was not present when it was committed, and that another person committed the offense.

2. Where in the charge the jury is instructed that the plea of not guilty puts into issue not only every material allegation of the indictment but the guilt of the defendant thereunder, the instruction is not erroneous because it omits the words "or innocence, " when in other portions of the charge the jury is instructed that in order to convict they must believe from the evidence that the defendant is guilty beyond a reasonable doubt, and that the evidence must be such as to exclude every hypothesis save that of his guilt.

3. The charge on alibi was a correct statement of the law, and was not erroneous because it failed to instruct the jury that alibi as an independent defense should not be confused with other issues in the case, or because it failed to instruct the jury on the circumstantial evidence rule, where it appeared that this rule had been explained to the jury a number of times elsewhere in the charge.

4. Where an excerpt of the charge that follows immediately the charge on alibi instructs the jury that if the State has proved the defendant guilty beyond a reasonable doubt they should convict him, it is not erroneous because it fails to add that the evidence must exclude every other reasonable hypothesis, where this circumstantial evidence rule is given a number of times in other portions of the charge.

5. Where the court charges the jury on the subject of impeachment that the question whether a witness has been impeached is for the jury to determine, and that when a witness has been successfully impeached, where his unworthiness of credit has been established in their minds, he ought not to be believed, and it is their duty to disregard his testimony unless it is corroborated, it is not error to fail to charge Code, § 38-1806, without request.

6. The court's charge as to when the testimony of an impeached witness should be disregarded was a correct statement of the law, and the excerpt complained of was not erroneous because the court failed to use the words "by any of the legal methods" after the phrase "when a witness has been successfully impeached."

7. Instructions on the form of the verdict if the jury believed the defendant guilty beyond a reasonable doubt were not erroneous because they failed to add the further words, "and to exclude every other reasonable hypothesis save that of the guilt of the accused, " this circumstantial evidence rule having been given fully in other portions of the charge.

8. Newly discovered evidence which is merely cumulative and impeaching in character will not require the grant of a new trial.

9. Testimony of a witness that A told him that defendant's wife told A that she killed the deceased is hearsay, and was properly excluded upon objection.

10. Alleged improper statements made by the solicitor-general in the presence of the jury, and testimony of a witness, neither of which was objected to upon the trial, will not be considered by this court.

11. It was not error to permit a witness for the State to testify that a month before the homicide she heard the defendant threaten to kill the deceased.

12. Where the voir dire questions in a case dependent entirely upon circumstantial evidence, at the request of defendant's counsel, are supplemented by asking the jurors if they are opposed to capital punishment when the evidence is circumstantial, and twelve jurors disqualify on this ground, as assignment of error that these jurors were improperly excluded is without merit.

13. The evidence supported the verdict, and the general grounds of the motion for a new trial are without merit.

Error from Superior Court, Chatham County; John Rourke, Jr., Judge.

W. B. Aycock was convicted of murder, and he brings error.

Affirmed.

W. B. Aycock was indicted, tried, and convicted on a charge of murdering Martha Sikes by shooting her in the head with a pistol. No recommendation of mercy was made by the jury, and he was sentenced to death by electrocution. His motion for a new trial was overruled, and he excepted.

[4 S.E.2d 224]

The evidence for the State was~circum-stantial. The material portions of it were in substance as follows: The defendant Aycock was a policeman for Union Bag and Paper Mills, and with his wife and one son lived in the mill village. Martha Sikes was an employee of the mill, and lived at 213 West Jones Street in Savannah. Aycock lived a part of the time with her, and kept some of his clothes at her apartment, and lived a part of the time with his wife and son. On May 12, 1938, Aycock in company with Mr. Ernest spent the day out of Savannah, and on his return either he or his companion communicated by telephone to Miss Coleman, a cousin of Martha Sikes, requesting that Martha Sikes be informed that Aycock wished her to go to his home and get his car and meet him at a named garage. She met them at the garage with the defendant's car, as requested, at approximately 9 p. m. The defendant and the deceased left the garage together in the defendant's car. They went to the apartment of the deceased on Jones Street. The deceased went into the apartment and the defendant drove away. At approximately 11 o'clock the defendant went to the apartment of Mr. and Mrs. Jernigan, which was in the same building and on the next floor above the apartment of the deceased. He informed them that he was unable to gain entrance to the apartment of the deceased, and they accompanied him to the apartment, and they too were unable to enter. They thereupon went to the DeSoto Hotel where Miss Coleman was working and informed her that they could not enter the apartment, and she called the police. The policeman entered the apartment, and found the lifeless body of the deceased lying on the floor with a bullet wound in the head. She had been killed with a bullet shot by a 38 calibre pistol. The defendant was arrested and his 38 calibre pistol was taken, and from the smell of the barrel it appeared to have been recently shot; and being the chamber immediately in front of and in line with the barrel was empty. The defendant explained that his company required that one chamber be kept empty as a safety precaution, and that he had shot the gun just a day or so previously. He requested, if the policemen thought he was guilty, that they send his gun to Washington and have an expert determine if it was the gun that killed the deceased. This was done. The expert testified that, owing to the fact that the bullet after passing through the head of the deceased pene trated the wall, it was impossible to determine whether or not it was shot from the gun taken from the defendant, but he did testify that it was shot from a 38 calibre Smith & Wesson pistol. The defendant's pistol was a 38 Smith & Wesson. There was testimony that about one month before the homicide, while in another county, the deceased told the defendant that she desired to remain for the funeral of a relative, whereupon the defendant told her that she must return with him to Savannah, and that if she did not he would kill her. The evidence also showed that at one time the defendant met Mr. Griffin, ordered him to get in defendant's automobile, and asked him if his name was not Parker. Griffin refused to get in the automobile, said that his name was not Parker but was Griffin, and informed him that he, Griffin, was employed by the Atlantic Coast Line Railroad. Defendant asked him if he had not been on Jones Street and if he had not been around there at all to Martha's, and accused him of going with Martha, but after they came in company with a number of other people the defendant got in his car and drove away. Mr. and Mrs. T. D. Jernigan, who lived in an apartment on the first floor above the apartment of the deceased, testified that nearly midnight on the night before the homicide they heard loud talking in the apartment of the deceased and recognized the defendant's voice; and that on the night of the homicide they left home before ten o'clock and returned shortly before eleven. George Hall testified that on the night of the homicide he was living at 215 West Jones Street, that he retired about 9:30 o'clock; that he had been reading a book for about 30 minutes when he heard a noise that he took to be the backfire of an automobile; that he slipped on his shoes, went to the window, and saw the defendant come out of the house and run down the steps at 213 West Jones Street; that the steps at 213 West Jones Street faced the apartment at 215 where Hall stood; that the defendant was in uniform; and that his hand was on his pistol holster as he ran down the steps. This witness on cross-examination denied that he had ever lived in Jeff Davis County, and that he had ever been prosecuted on any criminal charge in that county. The defendant attacked this testimony with three witnesses from Jeff Davis County who testified that the defendant was convicted in the superior court of Jeff Davis County on a charge of chicken

[4 S.E.2d 225]

stealing on December 28, 1934. The State offered testimony of attorney Kent that he represented the George Hall convicted in Jeff Davis County, and that the witness George Hall was not the man who was tried and convicted in Jeff Davis County. Policeman McCarthy testified that on the morning after the killing, at police headquarters, the defendant freely and voluntarily, and...