Henderson v. State

• Decision Date: 12 July 1950
• Docket Number: No. 17172,17172
• Parties: HENDERSON v. STATE.
• Court: Georgia Supreme Court

Page 345

60 S.E.2d 345

207 Ga. 206

HENDERSON v. STATE.

No. 17172.

Supreme Court of Georgia.

July 12, 1950.

Syllabus by the Court.

1. Where the defendant relied upon the fact that he was not the perpetrator of the crime and was not present when it was committed, it was not error for the court to charge the jury upon the theory of alibi, though it was not expressly set up as a defense, and was only incidentally involved in the case under the defendant's statement.

2. Where, in a capital case, counsel for the defendant agreed with counsel representing the State that during the reception of the testimony of one witness for the State, all persons except the defendant, all attorneys, court officials, newspaper representatives, and the families of the prosecutor and the defendant would be excluded from the courtroom, and in pursuance of such stipulation the trial judge in open court and in the presence of the defendant announced such agreement between counsel and excluded all persons from the courtroom except those enumerated above during the taking of the testimony of the witness, and the defendant makes no objection to such procedure, such conduct constitutes a waiver on the part of the defendant to assert in his motion for a new trial that he was deprived of the right to a public trial as prescribed by the Constitution of this State, and that he was denied due process of law under the Fourteenth Amendment to the Federal Constitution.

3. The conviction of the defendant in this case being solely dependent upon circumstantial evidence, and such circumstances being so inconclusive as not to exclude every reasonable hypothesis save that of the guilt of the defendant, it was error for the court to overrule the motion for a new trial.

Under an indictment charging that he did on October 31, 1948, 'feloniously and with malice aforethought, kill and murder Carl Stevens, Jr., by shooting him with a loaded pistol,' Clarence Henderson was found guilty by a jury, and was sentenced to death by electrocution. His motion for a new trial, on the general and special grounds, was overruled, and by writ of error he assigns error on that ruling. Though the amendment to the motion consisted of five grounds, counsel for the defendant on the argument in this court expressly abandoned all special grounds except those numbered 1 and 5.

The evidence for the State is summarized as follows: On the night of October 31, 1948, while Carl Stevens, Jr., and a lady companion were seated in a parked automobile near a dead-end street on the outskirts of Carrollton, a man came to the car and put a flashlight into the car. This lady companion was the only eyewitness to the killing. She testified that the man was a Negro. This man made the witness and Stevens get out of the car. He demanded that Stevens give him his money, which Stevens did. He made the witness and Stevens walk in front of him into a cotton patch over a fence and into a pasture. He told Stevens to attack the witness, and when he refused this man struck Stevens with the butt of his gun. He made the witness and Stevens lie down on the ground, and beat Stevens with some branches and a log, and also kicked him. He made the witness gag herself with her scarf, and made her lie down on her back and remove her pants, and he tried to pull up her dress, and attempted to assault her, and when he did so Stevens lunged at him, and then this man shot Stevens three times. Stevens died from these wounds. One bullet was removed from his leg and delivered to George Cornett, a police officer of Fulton County and an expert in ballistics. Upon examination, he found the bullet to be a 9-millimeter bullet, supposed to be fired in a foreign-make pistol. From his examination, he determined that it was fired from a Smith & Wesson revolver with a right-hand twist. On August 25, 1947, one Leonard Pendergrast owned a nickle-plated Smith & Wesson revolver, serial number 527398, and he loaned it to one Hardeman, who testified that on or about August 25, 1948, while in possession of the pistol he was robbed, and this pistol was taken from him by a person he could not identify. The loss of this pistol was reported to the Atlanta police department, and on December 8, 1949, an Atlanta detective found this pistol at a pawn shop operated by one Beeber in Atlanta. He testified that the pistol was pawned to him by one Eli Cosper of Carroll County. Cosper testified that he bought the pistol from Layman Almon on December 29, 1949, and pawned it to Beeber. The wife of Cosper testified that she had seen the defendant with this same pistol in August, 1948, and she identified the pistol by three marks on the handle. Almon testified that he bought this same pistol from the defendant about two or three weeks before Christmas of 1948, and sold it to Cosper in November, 1949. He also identified the pistol by the marks on the handle. Junior Clark identified the pistol as being the same one he saw in the possession of the defendant on August 19, 1948. He denied that he had ever borrowed this pistol from the defendant. One Thomas Harris testified that he had seen the pistol in the possession of the defendant in August, 1948. Two other witnesses testified that they saw the defendant in 1948 in possession of a pistol similar to the one that was recovered from the pawn shop.

The special Smith & Wesson pistol, hereinafter referred to as the evidence pistol, was turned over to Cornett, who testified that he examined the chambers of this pistol, and that they had not been altered, and that a 9-millimeter cartridge will not chamber up in a special Smith & Wesson pistol unless the cartridge is filed down; that the 38 Smith & Wesson cartridge has a rim around the top of it, and a 9-millimeter cartridge is rimless; and that he found that a 9-millimeter bullet will pass through the barrel of a 38 Smith & Wesson special pistol, and markings will appear on the bullet after being fired; that he made a test by placing three bullets in the evidence pistol, one a 9-millimeter cartridge, one not a 9-millimeter, and one a special make, and fired them into a test box, and then compared the test bullets with one another under a microscope; that he also in the same manner examined the bullet which was taken from the body of Stevens, hereinafter referred to as the evidence bullet; and that in his opinion, the bullet taken from the body of Stevens was fired from a pistol which had been recovered from the pawnshop.

After the defendant was arrested in December, 1949, police officers found a rusty file in his home. Several witnesses testified that they had seen the defendant filing bullets prior to October, 1948. This file was delivered to the witness Cornett, who testified that he made a microscopic examination of the file, and found brass on it; that a cartridge case is made out of brass; that he had made a microscopic examination of the brass taken from the file, and of brass taken from a cartridge; that the brass taken from the file was a little more discolored than the brass taken from the cartridge, but he could not say that the brass on the file was taken off a cartridge case unless he had the cartridge case from which it was filed.

A. L. Potts, Sheriff of Coweta County, testified that, while the defendant was in his custody, he made two written statements, one on December 20, 1949, and the other on January 16, 1950, and that these statements were freely and voluntarily made. The first statement was made in the sheriff's office. In relating the circumstances under which this statement was made, Potts testified as follows: 'I believe it was made the next day after he was arrested that he made this statement. He called me. I was down at the jail and he told me he wanted to speak to me. Shall I tell you what he said? He said he wanted to plead guilty to killing that man. I told him I didn't imagine they would accept the plea. He said 'they cannot keep me from pleading guilty.' I told him I did not understand what he meant. To write it out and tell me what happened and give it to me. The next day I carried him up to the courthouse and that is what he said (indicating). I don't know, why if he wanted to plead guilty, why he didn't plead guilty, I just told you what he said.' The substance of the first written statement was that, about three weeks before Christmas of 1948, the defendant went to Villa Rica, where in a skin game he met Harvey Dunson, sometimes called Bo Boykin, and he let Dunson have $10 and Dunson let him have a 38 special pistol as security; that when he got home he put the pistol away, and in about a week he sold it to Layman Almon. The second written statement was made and signed by the defendant on January 16, 1950, in the county commissioners' office of Coweta County. Sheriff Potts testified that it was made after the defendant sent him word that he wanted to talk with him. In this statement he said: 'The 38-caliber nickle-plated pistol that is supposed to have killed Mr. Stevens--I got that gun along in October from Harvey Dunson. Him and Junior Clark were together and split the $10 I gave them for the gun. One Sunday about three o'clock, Junior Clark came by my house and borrowed the gun. That's the same day that Mr. Stevens was killed later in the night. The next morning, which was Monday, he come to my house pretty early and returned the gun. All the cartridges had been taken out, and when I asked him what he did with the cartridge, he said he shot at a rabbit. If Mr. Stevens was killed with my pistol, then Junior Clark must have killed him, because he had my pistol on the night Mr. Stevens was killed. What I told the officers about getting the gun in Villa Rica was not so, but I did get it from the [one] I told them I got it from, Harvey Dunson. I hated to tell that I got it from Harvey Dunson, but the reason I did, I thought he would tell about Junior, but if he is not, then I want to tell the truth about it. On...