Dickerson v. State

• Decision Date: 15 September 1938
• Docket Number: 12329.
• Parties: DICKERSON v. STATE.
• Court: Georgia Supreme Court

199 S.E. 142

186 Ga. 557

DICKERSON v. STATE.

No. 12329.

Supreme Court of Georgia

September 15, 1938

Error from Superior Court, Ben Hill County; A. J. McDonald, Judge.

Tom Dickerson was convicted of murder without recommendation, and he brings error.

Affirmed.

Syllabus by the Court.

1. The charge to the jury on a trial for murder was not erroneous for any reason assigned.

2. On a trial for murder where there was no positive proof of venue the venue was sufficiently proved by circumstantial evidence substantially as follows: The alleged victim was an illegitimate child of a daughter of the defendant, born at his home located in 'the upper part' of the alleged county, and on the night of the third day after birth the child disappeared from its mother still confined at the family home from the effects of having given birth, and was killed by the defendant in the manner alleged in the indictment and by him buried in the 'upper part' of the county in woods near his home, for the purpose of concealing the birth.

3. The evidence was sufficient to support the verdict, and there was no error in refusing a new trial.

J. W McDonald, D. E. Griffin, C. W. Bussell, and W. V. Rigsby, all of Fitzgerald, for plaintiff in error.

Allan C. Garden, Sol. Gen., and Harvey L. Jay, Sol. Gen. pro tem both of Fitzgerald, M. J. Yeomans, Atty. Gen., O. H. Dukes and Duke Davis, Asst. Attys. Gen., and E. J. Clower, of Atlanta, for the State.

ATKINSON Presiding Justice.

Tom Dickerson was indicted for murder of an infant by strangulation with a rope and other means to the grand jurors unknown, alleged to have been committed in Ben Hill County, Georgia. A verdict was returned, finding him guilty, without recommendation. The exception is to a judgment overruling the defendant's motion for a new trial, based on the general grounds, and a special ground that the evidence was insufficient to prove the venue, and a ground complaining of the judge's charge to the jury.

1. The judge gave the following instruction: 'Now, gentlemen, as stated before to you, this defendant is upon trial solely upon the charge of murder, and you are to determine from the evidence whether or not he is guilty of that offense. There may have been evidence adduced to you showing facts which would tend to establish guilt of some other offense. If any evidence of that character was admitted, it was admitted solely for the purpose, and you will consider it only for the purpose, of illustrating the motive of the killing in this case, if you find in fact there was a killing.' This charge was not erroneous as contended by the defendant in the third special ground of his motion for a new trial. The charge was therein alleged to be erroneous; (a) because specified evidence of another crime committed by the defendant was introduced, and the effect of the charge made it incumbent on the jury to determine what particular evidence was admitted, whereas it was the duty of the judge to determine the relevancy of the evidence and the purpose for which it was admitted, and charge definitely what evidence he had reference to; (b) because the evidence as to another crime, admitted to show motive and identity of the child, was objected to 'except as for the purpose of showing a motive for the murder in the event there was one,' and was admitted only for such purpose, but the judge at no time specifically instructed the jury that such evidence was admitted only for such purpose, or referred to the evidence as being that to which he referred in his charge to the jury. The judge approved this ground with certain explanatory notes which it is not deemed necessary to set forth.

2. The first and second special grounds complain that the evidence was insufficient to prove the venue, which the indictment charged was in Ben Hill County, Georgia. There was no direct evidence that the crime was committed in the alleged county. The circumstantial evidence on this point was substantially as follows: The mother of the infant was an unmarried daughter of defendant. She with her younger sisters and brothers lived with their father in his home in the 'upper part' of Ben Hill County, Georgia. The child, normal and healthy, was born in the family home July 31. On the morning of August 3, 'between midnight and day,' the defendant killed the child by means of a rope tied around its neck, and 'between daylight and sunup' buried the body wrapped with cloth in a common box in the woods near the home, 'back up on the side of the sand hill,' in Ben Hill County. His declared object in killing and burying the child was 'to keep down embarrassment.' The mother, still confined in bed, did not miss the child until about 9 o'clock that morning. She then asked defendant where it was, and he stated he had killed it in the manner and for the purpose above stated. It may be stated as a rule that the venue in criminal cases is a matter of jurisdictional fact, and like every other material allegation in the indictment must be proved beyond a reasonable doubt. Gosha v. State, 56 Ga. 36(2); Moye v. State, 65 Ga. 754; Futch v. State, 90 Ga. 472(2), 16 S.E. 102; Holden v. State, 144 Ga. 338, 87 S.E. 27; Taylor v. State, 154 Ga. 68, 113 S.E. 147. It may be proved by circumstantial as well as by direct evidence. Dumas v. State, 62 Ga. 58(4); Robson v. State, 83 Ga. 166(8), 9 S.E. 610. In order to convict on circumstantial evidence alone, the proved facts must be so conclusive as to exclude every reasonable hypothesis save that of the guilt of the accused. Code, § 38-109. The foregoing principles have been applied in other cases, with different results depending upon the facts of the particular case. In the following cases the facts were held insufficient to establish the venue, and judgments of reversal were rendered by this court because of insufficiency of the evidence on that subject.

In Gosha v. State, 56 Ga. 36(2), it was held: 'The venue of a crime must be established clearly and beyond all reasonable doubt; and where there is no positive proof that the offense was committed in the county of Sumter, but the only proof of the place is that it was within fifty yards of a residence in Sumter county, it does not affirmatively appear with sufficient certainty that the crime was committed within the jurisdiction of the court, and therefore a new trial must be awarded.'

In Moye v. State, 65 Ga. 754, 755, it was said: 'An examination of the testimony sent up with the record shows that the only proof touching the venue was, that the crime was committed in the lumberyard of a Mr. Sloan, in the city of Americus; but it is nowhere shown that it was committed in the county of Sumter, where the defendant was tried. This must be done clearly and beyond all reasonable doubt.'

In Smith v. State, 69 Ga. 768, it was held: 'Where on the trial of an indictment for beating and maltreating a horse, the evidence showed that the horse was hired and taken from the stable of one Cooper, in Clarke county, in good order early in the morning, was driven to Mount Pleasant, a distance of about seven miles, thence to other localities designated by name, and finally returned to the stable in the evening, weak and staggering, and with marks of the whip upon him, and there died, but failed to disclose in which county the route pursued in the course of the drive lay, the venue was not sufficiently proved, and a new trial must be granted.'

In Futch v. State, supra, it was held: 'The venue in a criminal case must be proved beyond a reasonable doubt, like any other fact. The proof in this case was that the homicide was committed at a point 25 or 30 steps distant from a certain house, and that the house was in the county laid in the indictment. Under the ruling in Gosha v. State, 56 Ga. 36, the venue was not sufficiently proved, it not affirmatively appearing that the place of the homicide was within the jurisdiction of the court.'

In Cooper v. State, 106 Ga. 119(2), 120, 32 S.E. 23, it was said [page 24]: 'The only evidence as to venue was that 'the difficulty occurred in Lawrenceville, in front of Dan Rutledge's store.' Following the decision cited in the second headnote, we are constrained to hold that this was not sufficient proof of the venue. In Moye's Case, 65 Ga. 754, it appeared 'that the crime was committed in the lumber yard of a Mr. Sloan, in the city of Americus'; and it was decided that this did not show affirmatively that the offense was committed in the county of Sumter, where the accused was tried. We presume this decision was based upon the idea that, as it was not proved the 'city of Americus,' in question, was within this state, ...