Ivy v. State, 22842
| Decision Date | 03 March 1965 |
| Docket Number | No. 22842,22842 |
| Citation | 141 S.E.2d 541,220 Ga. 699 |
| Parties | Clyde IVY v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1, 2, 4. Where, as here, the evidence is sufficient to show beyond a reasonable doubt that the defendant committed the offense of murder with a particular weapon as charged in the indictment, his conviction is authorized although the evidence does not exclude vague conjectures or remote possibilities of the defendant's innocence.
3. Where remarks of the State's counsel are objected to as improper and the judge takes such action as eradicates any harmful effect of such remarks, there is no error in taking no further action in response to the motion.
5. (a) The failure to charge the jury upon the subject of confessions is not error in the absence of a timely written request.
(b) In a criminal case in which the defendant makes no statement at the trial, it is not error for the court to fail to instruct the jury that that fact should not be considered by them in determining as to the guilt or the innocence of the accused, where there is no request for such an instruction.
The grand jury of Gwinnett County returned an indictment charging that Clyde Ivy on a named date murdered Jessie Ivy (his wife) by shooting her with a shotgun. The jury found the defendant guilty and recommended mercy. The defendant filed a motion for new trial on the general grounds and four special grounds. The motion was overruled and the defendant excepted.
Hancock and Wilbanks, Duluth, D. B. Phillips, Norcross, for plaintiff in error.
Jack Holland, Former Sol. Gen., Lawrenceville, Reid Merritt, Sol. Gen., Buford, Eugene Cook, Atty. Gen., J. R. Parham Asst. Atty. Gen., Atlanta, for defendant in error.
1. The defendant insists upon the general ground of his motion for new trial that the verdict was without evidence to support it. The evidence is somewhat voluminous but, succeinctly stated, the uncontradicted evidence adduced upon the trial was as follows: Mrs. Helen W. Wilson, a sister of the deceased, was a visitor in the home of the defendant in Norcross, Gwinnett County, having spent the night there, and the defendant, the deceased and Mrs. Wilson were the only people present in the house on the morning of August 10, 1964, when the homicide occurred. Mrs. Wilson left the defendant and the deceased alone in the kitchen of the house, engaged in discussion of a small debt the deceased contended the defendant owed her. Mrs. Wilson retired to a front bedroom of the house to press a dress she proposed to wear. This room was separated from the bedroom of the principal parties by the living room. About 10:30 a. m. she heard three shots, the exact location from whence the report came she was not at that time able to determine. Immediately after the shots were fired Mrs. Wilson was in the act of fleeing from the house when the defendant, whom she did not then see, called out to her: 'Helen, I've shot Jessie, now I'm going to shoot myself, go out to Mrs. Nalley's and call an ambulance.' She was familiar with and recognized his voice. Mrs. Wilson, only party dressed, proceeded to a near neighbor's house, whether she ran or walked she could not recall. There she reported the incident. The neighbor's son, Otis Nalley, telephoned the police. When the officer arrived at the Ivy house and went upon the porch, he heard two more shotgun blasts apparently coming from the back part of the house. Thereupon, he deferred entering the house until the arrival of another policeman, J. Kelley Everett. Upon entering the house, the officers found the body of the deceased in the bedroom occupied by her and the defendant. Her condition was, as described by the police officers, the sheriff and a doctor, that a part of her head was blown off and she was of course dead.
The doctor gave as his opinion that the death was caused by a shotgun or a gun of large bore. However, the sheriff testified that some of the shots had entered the deceased's shoulder. From his testimony it clearly appeared the gun used to slay the deceased was a shotgun. There was no weapon found in the room where the body lay. The doctor and the sheriff testified there were no powder burns on the face of the deceased. One police officer was of the opinion that the discoloration he saw about the fatal wound was a powder burn. Mrs. Wilson testified she never knew the deceased to own a gun; that the only two guns she saw in the house were a shotgun and a rifle, which were kept in the kitchen. The police officers, upon entering the house, found the defendant lying in the kitchen, bleeding profusely from a wound in his head, apparently a shotgun wound. A sixteen gauge shotgun was lying partly beneath him. He was apparently unconscious when they entered the room and did not open his eyes during the conversation with them, but according to their testimony recovered sufficiently to make certain remarks.
Officer Everett recalled that he stated: 'I shore played hell.' Both Chief of Police Simpson and Everett related that the defendant said in substance 'that woman made me so goddamn mad.' Both officers testified he inquired of his wife's condition and that he requested that Everett give him another shell. Several witnesses, including the sheriff who arrived shortly after the officers, testified the defendant requested to be carried to the Duluth Hospital. Otis Nalley testified the defendant made the further declaration: "She made me so goddamn mad,' and that was first, and then he waited a minute or two, and then he wanted to know 'how bad did I hurt my little wife."
The officers and sheriff definitely identified the sixteen gauge shotgun as being in the defendant's possession immediately after the homicide occurred and in the room adjoining that in which the deceased was killed. It was the only shotgun found in the defendant's possession or in the house. The sheriff testified in identifying the gun:
A neighbor, Mrs. Alice Nalley, who lived within close proximity to the Ivy home testified that over a period of six years she had heard the defendant Ivy make dire threats of violence upon his wife.
The defendant insists that the evidence was insufficient to warrant a conviction because it did not exclude every reasonable hypothesis other than the guilt of the accused. His counsel argues that someone could have entered the back of the house when all of the witnesses were at the front of the house, murdered the deceased, wounded the defendant and fled undetected. In support of this contention they correctly stated that witnesses who first arrived at the scene of the tragedy came from the front of the house and they could not swear some one did not come into the rear of the house previous to the commission of the homicide, and that when they found the defendant lying on the kitchen floor the back door to the house was open.
This theory presents only a sheer possibility unsupported by proof. The rule as to the sufficiency of circumstantial evidence is, as stated in Harris v. State, 86 Ga.App. 607(1), 71 S.E.2d 861: 'It is...
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