Howard v. State, 56538

• Decision Date: 05 January 1979
• Docket Number: No. 56538,56538
• Citation: 251 S.E.2d 829,148 Ga.App. 598
• Parties: HOWARD v. The STATE.
• Court: Georgia Court of Appeals

Page 829

251 S.E.2d 829

148 Ga.App. 598

HOWARD v. The STATE.

No. 56538.

Court of Appeals of Georgia.

Submitted Sept. 20, 1978.

Decided Jan. 5, 1979.

Robert M. Coker, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Jerry W. Baxter, Donald J. Stein, Asst. Dist. Attys., for appellee.

SHULMAN, Judge.

Defendant was indicted for murder and, following a jury trial, was convicted of voluntary manslaughter. On appeal, for the reason stated in Division 5 of this opinion, we reverse the judgment.

1. Appellant challenges his conviction on the general grounds. Sufficient evidence to authorize the conviction is set forth in Division 5 of this opinion (see, e. g., Eason v. State, 217 Ga. 831(2), 125 S.E.2d 488). Accordingly, this enumeration affords no ground for reversal.

2. Over appellant's objection that the state was improperly interjecting the appellant's character into evidence, the state was permitted to introduce evidence of previous difficulties with, and appellant's acts of violence toward, the victim. Appellant asserts that the trial court erred in denying his motion for mistrial.

This enumeration is controlled adversely to appellant by Wells v. State, 135 Ga.App. 421, 218 S.E.2d 131.

3. Contrary to appellant's contentions, the introduction of photographs of the decedent did not constitute reversible error. Floyd v. State, 233 Ga. 280(III), 210 S.E.2d 810.

4. Based on Patrick v. State, 75 Ga.App. 687(2), 44 S.E.2d 297, appellant submitted a written request to charge as follows: "Where the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence."

Although the requested charge has been considered and approved (see Geter v. State, 226 Ga. 236(5), 173 S.E.2d 680), the requested charge was without evidentiary support.

The defendant did not testify at trial. His statements to law enforcement officials, however, were allowed as evidence. These statements included: (1) a denial that the defendant was near the scene of the homicide or with the victim; (2) an admission that the defendant was present at the scene of the crime on the day of the homicide, but a statement that the defendant left the residence to purchase either liquor or cheese and found the victim's body on his return; (3) a statement that the accused was driven from the scene of the homicide either by taxicab or by a private party. The evidence further showed that the accused did not call the police or an ambulance following the discovery of the body of his slain companion. As the facts in evidence did not rise to the level of presenting a theory consistent with innocence, the trial court properly refused the charge. Tribble v. State, 96 Ga.App. 878, 101 S.E.2d 882; Bowen v. State, 128 Ga.App. 577, 197 S.E.2d 738.

5. More troublesome, however, is appellant's correct assertion that the trial court totally failed to give any charge whatsoever on circumstantial evidence. Evidence cited by the state to authorize the conviction, however damning it may be, is wholly circumstantial (see, e. g., Nair v. State, 236 Ga. 892(1), 226 S.E.2d 61: a past history of violence toward the victim (the woman with whom appellant was living); evidence that the victim and appellant were arguing the morning of the crime; appellant's admitted discovery of the fatally stabbed body of his companion, coupled with evidence that appellant failed to inform anyone of this discovery, and evidence of flight; testimony that the accused was seen in the neighborhood on the day of the homicide; and blood stains on appellant's shirt consistent with the victim's, but not appellant's, blood type.

The defendant did not have the obligation to offer a theory consistent with innocence. Rather, the state had the burden of proving guilt. In a case such as this one, involving wholly circumstantial evidence, the law demands that "the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Code Ann. § 38-109.

A. Our task of determining whether the failure to charge on circumstantial evidence, absent an appropriate written request, turns on whether this was a "close or doubtful case." See, e. g., Germany v. State, 235 Ga. 836(2), 221 S.E.2d 817.

In the instant case, unlike Germany, there was no direct evidence connecting the accused with the crime and no direct evidence of his participation in even some of the elements of the crime charged. It cannot be said that the evidence in this case was neither close nor doubtful. Accordingly, the failure to charge in accordance with Code Ann. § 38-109 requires reversal so that a jury may consider the evidence under proper instructions. Weaver v. State, 135 Ga. 317(2), 69 S.E. 488; Boyd v. State, 201 Ga. 853(2), 41 S.E.2d 309. Compare Hawes v. State, 240 Ga. 327(3), 240 S.E.2d 833 and Germany, supra. Also compare Barrow v. State, 80...