Collier v. State

• Decision Date: 17 August 1922
• Docket Number: 3280.
• Citation: 113 S.E. 213,154 Ga. 68
• Parties: COLLIER v. STATE.
• Court: Georgia Supreme Court

113 S.E. 213

154 Ga. 68

COLLIER v. STATE.

No. 3280.

Supreme Court of Georgia

August 17, 1922

Syllabus by the Court.

The conviction of the defendant not resting on circumstantial evidence alone, a new trial will not be granted because of the failure of the court to charge the rule applicable to the sufficiency of such evidence to authorize his conviction there being no request for such instruction.

Where the case is one wholly of circumstantial evidence, this principle must be given in charge without request.

While it is error for the trial judge to give instructions to the jury not based upon evidence, he can use illustrations to explain the meaning of an instruction given to the jury; care being taken not to mislead or confuse the jury, or to prejudice the defendant's case in their eyes.

Where the trial judge, in charging the jury, correctly states the law governing the case. but exception is taken to an illustration used by the court, explanatory of the instruction given, this court will not narrowly scrutinize the illustration, if satisfied that, whether right or wrong it was not calculated to mislead, and did not in fact mislead, the jury.

The court did not err in charging section 1018 of the Penal Code of 1910, upon an alibi as a defense; the error alleged being that it put upon the defendant the burden of showing that it was impossible for him to have been present at the scene of the crime.

The burden of establishing the defense of alibi, when set up as a defense by the defendant, rests upon him; and in order to establish an alibi the evidence must be such that it was impossible for him to have been at the scene of the crime when it was committed.

The verdict is supported by the evidence.

Error from Superior Court, Lamar County; W. E. H. Searcy, Jr. Judge.

Will Collier was convicted of murder, and he brings error. Affirmed.

Hill J., dissenting.

Will Collier was indicted for the murder of Vannie Banks. The body of the deceased was found by the side of the railroad, just below the crossing in front of H. L. Abernathy's house, 75 or 100 yards from his house, between the latter and Goggins station, close to the railroad on the right of way, about 10 yards from the railroad track. There was a gash in the throat along the neck, and signs of beating, cuttings, and lacerations on the body. The kind of instrument used in making these wounds was some hard instrument, such as a stick. An oak stick was lying by her side, and some kind of a sharp instrument. The stick was bloody all over. Her coat was also bloody. The wounds on her person were sufficient to cause her death. At least 15 of them would have caused her death. She was cut all around the neck. It was a bad cut. Her finger was broken, and her right arm was broken high up. Her body was found about 1 o'clock in the afternoon. She had been dead apparently 10 or 12 hours. When the body was discovered, the defendant was plowing in his field.

B. F. Goggins went over to where he was, and told him to take out and go to the house. He kept on plowing, and wanted to know what to go up there for. He was told that the deceased was dead. He plowed to the end of the row, came back, started again, and went 10 feet, and Goggins again told him that the deceased was dead. He said, "You don't think I killed her?" The witness told him he did not know. The defendant then unhitched the traces and walked off 6 or 8 feet. He got on his mule and went to the house. The defendant had on a shirt and overalls. There was blood in a wrinkle on his shirt. It had dried "right smart." When mashed, it would scale off. Some beer was found in his house. He was arrested. He asked what his bond would be for this whisky and this killing. He was told the latter was not a bondable case. After they got down to the railroad, Goggins told him to go down and see Vannie. He said he did not want to see her. He was asked a second time to go and see her. He folded his arms and looked in a different direction. The deceased lived 400 or 500 yards from the place where her body was found. There was a "right smart" scuffling on the ground where the body was found. It was torn up for a space of 8, 10, or 12 feet in diameter. The defendant lived on the Poe place, about a mile from the place where the body was found.

Jennie Walker testified:

That she went to a society meeting at Bethel. The next day the body of the deceased was found. Will Collier was at the society. Saw him with a green oak stick in his hand. If this stick (referring to the one found at the body of the deceased) is not it, it was mighty like it. The defendant had on a light overall suit--overalls, jumper, and all. The jumper is the jacket or coat for the overalls. We turned out about 10 o'clock. The church is about a half mile above Abernathy's crossing. Saw Will Collier, and swears that is the stick. It is not just as it was when I saw it that night. It was not split up. It was a green stick. Don't remember that I said I never saw Will Collier with a stick at the society that night. Henry Fletcher asked me about it. I said, "Go away from me with this nigger mess." I said I was not studying him. If I said that there was a stick, I would have to go to court. Shug said, if I saw it, to say it, and if I didn't see it, say I didn't see it. I didn't tell him that I didn't see the defendant with a stick at the church. I meant I didn't want to have anything to do with it. My mind is a little off sometimes, but it is not off now. We had one big lamp in the middle of the floor, and one small one on the table. What attracted my attention to the stick Collier had was his knocking with it.

Shug Dumas testified:

I remember the time Vannie Banks was killed. I remember the commitment trial of Will Collier, held at Forsyth. Saw Will Collier down there. Saw his wife there with him that day. He said to her, "If you don't get me a jacket, I will be lost." I don't know what he referred to. The jacket was given him, and then he went on the stand and testified. He said that was the jacket he wore that night at the society meeting. It was a man's clean blue jacket. It had not been worn. Saw no stain on the jacket. The defendant is my uncle by marriage. Jennie is my wife's sister's daughter.

Cross-examination:

This woman was a first cousin to Will Collier. He is my wife's sister's son.

H. L. Abernathy testified:

On April 29, 1920, I lived three-eighths of a mile on this side of Goggins Station, towards Barnesville. It is on the west side of the station. I know the negro church called Bethel. It is on the west side of the station, about the same distance to my house. I suppose it is three-quarters of a mile to the station. My house is a little over half way between the church and the station. I live on the south side of the railroad, coming toward Barnesville. I remember the night this woman lost her life. I heard a struggle near my house that night, about 70 yards from the house. It attracted my attention. I first saw them on the side track. He first struck her there. I saw them walk down on the railroad track. When he struck her, she kinder fell, but caught herself, got up, turned her face up the railroad, and he struck her again. She then ran 5 or 6 steps, leading from the railroad, down the embankment, holloaing, and when she got on the level ground he hit her again and knocked her down, and she got up and started towards the house. When she got near to a pear tree, and when nearly under it, she fell down, and he kept beating her. I thought he was whipping her. I said, "If you don't stop you will kill her." I heard her say, "Will, don't do that." I leveled my pistol, but it did not fire. I took the pistol down, as it would not fire, and turned it with my hand, and then it fired. She quashed down. He stayed four or five minutes after the report of the pistol. He went off back up the road on the north side of the railroad track. That occurred very near 12 o'clock at night. The moon was shining as bright as day. I could see it all good. I know it was Will Collier. I have known him 25 years. He has lived around the station there. I had an opportunity to see him. He was with that woman there that night. That is my best belief. I would not say positively. I have seen this stick before. Was not there when they found it. There was blood on it, or it looked like blood.

Cross-examination:

My house is 30 or 40 yards from the railroad. I was at home at 10 or 11 o'clock that night. I had not retired. Was at Mr. Ben Goggins' house until after 10 o'clock. This woman lived between my house and Ben Goggins' house. I had been home an hour and a half before I heard this noise. I was sitting up, smoking my pipe. Nobody was living in the house with me. After supper I went to Ben Goggins'. Came back a little after 10 o'clock. Was in bed when my attention was attracted to these people. Was in the rear room of the house. Was lying there, but not asleep. Had been lying there 10 or 15 minutes. Saw two people pass there. My bed was by the window. When he struck her, I got up. It was 75 yards away when I first saw them. When the first blow was struck, she made an outcry.

She screamed, and said, "Oh!" and kept holloaing, and he kept beating her. Don't know how many places he hit her. It was pretty quick after he hit her when she came down the bank. When she got off the embankment, he struck her again, and she fell, and caught on her hands, and screamed out. Could not see him after she fell. Saw him, but his back was toward me. There were some peach trees scattered across there. They moved the body the next day. I saw them near the body when they were going up the track. I did not go down there. I knew the woman had been beaten. I saw she could not get away. I did not...