Hill v. State

• Decision Date: 07 September 1946
• Docket Number: 15527.
• Citation: 39 S.E.2d 675,201 Ga. 300
• Parties: HILL v. STATE.
• Court: Georgia Supreme Court

39 S.E.2d 675

201 Ga. 300

HILL v. STATE.

No. 15527.

Supreme Court of Georgia

September 7, 1946

Syllabus by the Court.

1. The testimony relating to the crime of rape was properly admitted over the objection that the accused was on trial the murder and not for rape, the latter offense being a part of the res gestae. The evidence was also admissible to show motive and identity.

(a) The opening statement of the solicitor-general as to what he expected to prove was not improper.

2. Where the accused made oral statements and a written statement tending to incriminate him, it was not error to admit evidence of an oral statement over the objection that the oral statements were merged in the writing, and that the latter constituted the best evidence.

3. A mere request that evidence be ruled out, without stating any reason, does not amount to an objection; nor can it be aided by alleging in a motion for a new trial that the evidence was incompetent for stated reasons.

(a) Whether the confession or inculpatory statement was, or was not, shown to have been freely and voluntarily made, the admission of the testimony regarding it did not require a new trial, since the statement made by the defendant on the trial was even more inculpatory.

4. In a case depending entirely on circumstantial evidence, it is not erroneous for the judge to give in charge to the jury the rules of law on presumption of innocence and reasonable doubt, in addition to the rule on circumstantial evidence.

5. The charges on conspiracy were not erroneous, as contended because the court did not in the same connection go further and tell the jury that the defendant would not be guilty unless he committed the crime of murder himself, or unless he aided or abetted the other defendant in committing that crime.

6. The evidence showing that certain photographs were true and correct representations of the house where the deceased lived, these photographs were properly admitted in evidence over the objection that there was no evidence as to their correctness from the photographer who took them, and that they were not properly identified.

7. The evidence was sufficient to support the verdict, and it was not error to refuse a new trial.

J C. Hill and Willie Jones were indicted in Coffee County for murder in the alleged killing of a named person, hereinafter referred to as the deceased. The case was removed to Ware County, where the defendants were tried together, convicted, and sentenced to electrocution.

The evidence showed that the defendants conspired to burglarize the home and dwelling house of the deceased in the City of Douglas, and that they did burglarize this house some time after midnight, on or about February 27, 1946; that the deceased was an aged woman who lived alone on one side of the house, although other persons, mother and son, occupied an apartment just across a hall from her. The defendants entered the house through a back window, after cutting a screen and breaking the window. Some articles of personalty were stolen, and the deceased was killed. by beating and strangling or smothering. The lady who lived across the hall heard her scream, and notified officers, who came promptly, but she had died before they arrived. One of the officers heard some one jump off the back porch and run into a fence. He shot at the person thus fleeing, who later proved to be the defendant Hill.

The condition and position of the body of the deceased when found, and other evidence, strongly indicated that she had been raped; also that she had been killed in the commission of that offense. Garments of the deceased, and of the defendants, were sent to the Federal Bureau of Investigation in Washington for microscopic and chemical investigation, and two officers from that bureau were present at the trial and testified as witnesses for the State. One of them testified that semen was found on the clothing of the deceased and also on the clothing of the defendant Jones. The other officer testified that fibers corresponding with the clothing of the deceased were found on the clothing of Jones, and that fibers corresponding with his clothing were found on the garments of the deceased. The same witness further testified, 'There was also an examination of all this clothing for hair.' As to the result of this examination, the witness testified in part as follows: 'On the slip of the victim I found six negro hairs--came from the negro race. Four of these could not be identified with either of the suspects; two reddish-brown in color, and could have come from No. K7, which is the known hair of Johnny Hill. There was also negro hair on the corset and on the undershirt--underwear--of the victim. On the sweater of the victim there was a negro hair. This hair was compared with the hair of both suspects, and could have come from Willie Jones. Again, as I said before, it is not possible to make positive identification in hair examinations. There can merely be a similarity pointed out. It is very difficult to compare negro hair, because the pigment is so dense that conclusive comparison is impossible. Therefore, the best that can be done is to say that the hair could have come from that source. On the other hand, it could have come from some other source.'

Both defendants in their statements to the jury admitted the conspiracy to commit the offense of burglary and theft and their participation in those offenses, but each for himself denied guilt of other offenses. The defendant Hill made the following statement to the jury:

'Willie Jones bought two bottles of beer, and me and the other boy, we drunk it, and we come on back across town, and he said, 'Do you know where we can get some money?' And I asked him where, and he wouldn't tell me. So we rode around about a half an hour, and then he took me on up there to his [this?] house and got out, and we walked around the house and went up on the porch on this side of the house, and we walked around, and I came back to the gate, and then we went on and cut the screen with a razor blade and went in and broke the windows, and then he went inside and he come out and opened another window and he cut the screem on it, and he went in that time and I went in with him, and he went in there and I stayed in there and looked around, and I didn't find any money, so I got ready to go and he brought me on home; and I come on back and walked around the house, and I went on out to the truck and pulled off my shoes, and I come back to the house and went in there where he was at, and when I got there he was on top of this old lady; and I looked in the room, and he told me to cut off the light, and I cut out the light and come back out; and I come back out and went back to the truck, and I walked around the house a couple of times, and I took and went back in the house, and after I went back in the house I heard someone come on the porch, and I took and run out of the back door--out of the back window, rather--and after I got outside some one shot. I didn't know who it was.'

Hill made a motion for a new trial on the general grounds and several special grounds. The motion was overruled and he excepted.

While the defendants were tried together, they were represented by separate counsel. In several grounds of the motion for a new trial, Hill complained of rulings that were made on objections of the attorney for Jones and without objection or protect of his own counsel. The solicitor-general contends that in no event can these grounds be taken as showing error against the defendant Hill. However, as shown in the opinion, infra, this court has not considered it necessary to rule on this contention, and other facts relating thereto need not be stated.

Herbert W. Wilson and Harry M. Wilson, both of Waycross, for plaintiff in error.

John W. Bennett, Sol. Gen., of Waycross, Eugene Cook, Atty. Gen., Roscoe Thompson, Asst Atty. Gen., and Rubye G. Jackson, of Atlanta, for defendant in error.

BELL Chief Justice.

1. Special grounds 1 and 7 of the motion for a new trial present substantially the same question and will be considered together. Ground 1 complained because the solicitor-general in opening the case to the jury stated that he expected to show that one or both of the defendants had 'relations with this poor old white woman.' On objection by counsel for the defendant Jones that no such crime was charged in the indictment, the solicitor-general stated to the court that it was part of the res gestae and that he would limit the evidence to identification of the defendants. The court stated that he would 'let it go in for that purpose.' Ground 7 complained because the court admitted evidence as to the condition and position of the body of the deceased, and tending to show that she had been raped. The evidence was objected to by counsel for Willie Jones on the ground that this was a separate and distinct crime, not alleged in the indictment.

While the general rule is that evidence of other and separate crimes is inadmissible, there are well recognized exceptions to this rule. In Hill v. State, 161 Ga. 188(2), 129 S.E. 647, 648, a witness testified: 'He made me lie down with the pistol, and had intercourse with me.' This was admitted over the objection that the defendant was on trial for murder, and not for rape. This court held: 'The testimony admitted over the objection that the accused was on trial for murder, and not for rape, was a part of the res gestae. It tended to show motive on the part of the ravisher in committing the murder, and his identity; and being material and relevant for such purposes, it was admissible on the trial for murder, notwithstanding it related to the other offense of rape.' In Bradberry v. State, 170 Ga. 859(2, 3), 154...