Mills v. State

• Decision Date: 13 September 1939
• Docket Number: 12937.
• Citation: 4 S.E.2d 453,188 Ga. 616
• Parties: MILLS v. STATE.
• Court: Georgia Supreme Court

4 S.E.2d 453

188 Ga. 616

MILLS v. STATE.

No. 12937.

Supreme Court of Georgia

September 13, 1939

Syllabus by the Court.

The order overruling the motion for a new trial contains an express statement that the verdict thereby sought to be set aside was not approved by the trial judge, and clearly indicates that he would have granted a new trial except for the view that, this being a seond verdict, he had no discretion to grant another trial. The judgment is reversed for the reason that the judge has not exercised his discretion, even though this is the second verdict finding the accused guilty.

J W. Mills was convicted of the offense of murdering his wife the jury recommending him to mercy. It was his third trial and second conviction. The first was a mistrial, because the jury could not agree on a verdict, the second trial resulted in his conviction, but the judge granted him a new trial. The third trial resulted in his conviction, but the Honorable Eschol Graham, who presided, did not approve the verdict stating that the evidence was wholly circumstantial, and that it left him in grave doubt as to the defendant's guilt. He refused to grant a new trial on the defendant's motion, on the theory that, having granted one new trial after the first conviction, he was perhaps without discretion to grant another new trial solely on the ground of the weakness of the evidence against the defendant and its failure to convince him of the defendant's guilt. The judge's order refusing a new trial explains his reasons for doing so, and contains a rather full statement of the facts of the case as they impressed him, and as quoted below:

'The fatal shot was fired 12 or 15 feet from her from behind a plum-bush about 25 yards from back of the house in the country where she and her husband resided with his parents and sister. The shot, small shot, hit and entered her left shoulder from the side. At the time she and her husband were alone. Hie mother and sisted had gone to Church and his father had walked off. When his wife was shot he instantly called for help, carried her to the house, went to a neighbor's and 'phoned for a doctor and the sheriff. The doctor and sheriff came at once, and found her dying. She made no statement. The defendant told them some one unknown to him, standing in the dark behind the plum-bush, shot her; that after they had retired for the night something disturbed their chickens near the plum-bush, that he went out to see about it, and that his wife went with him. She said she saw some one behind the plum-bush, and at that moment a gun fired from behind the plum-bush; that his gun which he carried out discharged also, but he did not know how; that his wife, who had stepped a little in front of him, fell against him; that he dropped his gun, caught her, called for help, carried her to the house, and went to phone for the doctor. The doctor and sheriff found her in her night clothes lying on the front porch of the house, and the defendant partially undressed. On a former trial it appeared the defendant just had on an undershirt and pants, and was barefooted. On the last trial the witness was not sure, but thought he was barefooted. There was blood where the defendant said she was shot. His gun was lying there. An examination showed in contained an empty shell that had just been fired. Behind the plumbush were tracks indicating some one had stood there for some time. The twigs of the plum-bush showed the shot that had killed her came through the bush. A track that fit the work shoes of the defendant led away from near the bush. These shoes, when called for Monday following the killing Friday night, were produced by the defendant. He did not apparently conceal any fact connected with the case, but readily and willingly submitted to every suggestion for investigation that might shed light on the horrible homicide. He employed a county policeman to help find the guilty party. Track dogs were unable to pick up any trail leaving the scene of the killing. Neighbors heard the call for help immediately on the report of the gun, but heard only one report. They did not hear the report of two distinct shots. All jumped at the conclusion defendant killed his wife. Most if not all of the investigation was made with an effect to fix the guilt upon him. He may have killed her. We do not know. In the belief he did and in desire to not let him escape conviction, it may be the guilty party was overlooked. The evidence is wholly circumstantial. There is no positive evidence as to who killed her. There are circumstances that point to the guilt of the defendant, but same are explainable, consistent with innocence. No motive was shown for the killing. The State, by testimony of the father of the defendant, undertook to show motive. His testimony in light of the circumstances is without probative value. * * * The shoes were put in evidence, and much stress was laid on the tracks by the State. The evidence of the tracks probably influenced the verdict. As to the tracks, it is very doubtful same were made by the shoes in question. * * * Furthermore, I do not agree with either the State or counsel for the defendant as to the tracks. I am of the opinion same was not made at the time of the homicide. There are two reasons for this conclusion. One, the dogs, good track dogs, soon on the scene, when put on the track could not pick it up or follow it. The other, one of the witnesses, Troy Webb, for the State, testified he could tell it was a fresh track, because it had been made on the dew. The witness said, 'These tracks looked to be fresh. They had dew and sand on them. You know how dew will be on tracks.' Any one having seen a track made after the dew falls knows how the track looked to the witness. But the witness in reaching the opinion the track was made at the time of the killing overlooked the homicide was in the early part of a summer night before enough dew had fallen to permit the sign. In any event the evidence is not sufficient to satisfy my mind the tracks were made by the defendant the night of the homicide.'

The judge's statement contains other similar analysis of the evidence and a further quotation from the judge's order appears in this court's opinion which follows. The motion for new trial contains a complaint that the evidence was insufficient to show the defendant's guilt, and a ground complaining of a certain portion of the court's charge, alleged to be error in view of the fact that the evidence, was wholly circumstantial.

L. C. Harrell and W. S. Mann, both of McRae, for plaintiff in error.

M. H. Boyer, Sol. Gen., of Hawkinsville, Ellis G. Arnall, Atty. Gen., Duke Davis, Asst. Atty. Gen., and C. E. Gregory, Jr., of Atlanta, for the State.

GRICE Justice.

The accused was thrice arraigned for the murder of his wife. The first time there was a mistrial, the jury being unable to agree. The second trial resulted in a verdict of guilty, with a recommendation, which on motion was set aside by the trial judge. This writ of error was sued out when the defendant, having been again convicted with a recommendation, the judge refused to set aside the verdict. In his judgment denying the motion, the judge at some length reviews the evidence, and among other things says: 'The evidence is wholly circumstantial. There is no positive evidence as to who killed her. There are circumstances that point to the guilt of the defendant, but same are explainable consistent with innocence. No motive was shown for the killing. The State, by testimony of the father of the defendant, undertook to show motive. This testimony in light of the circumstances is without probative value.' Then, after a further discussion of the testimony, the judge concludes: 'Now I have carefully considered this case and have endeavored, being persuaded by the verdict of the juries, to reach a conclusion that the defendant is guilty. The jurors themselves, however, must have doubted his guilt. One jury made a mistrial and the others declined to impose the extreme penalty. Be this as it may, I am not satisfied the defendant is guilty. I have a reasonable doubt of his guilt. Hence, I do not approve the verdict. But the State insists that since it is a second verdict finding the defendant guilty, in the absence of error at law, I have no discretion to grant a new trial, that should I grant a new trial the State would have no appeal; that I should just give my conclusions and reasons for not being satisfied with the verdict, overrule the motion, and let the Supreme Court, in event defendant should appeal, pass on the case. I do not wholly concur in this contention of the State. I am of the opinion in a criminal case, although it be a second verdict of guilty, if the trial judge entertains a reasonable doubt of the guilt of the defendant it is his discretion and is also his duty to grant a new trial. Nevertheless I am giving the motion the direction suggested by the State. Therefore, acting on the theory I have no discretion as trial judge, on account of same being a second verdict, to set it aside, the motion is overruled; although I do not approve the verdict, because I am not satisfied from the evidence beyond a reasonable doubt defendant is guilty.'

If this were the first verdict, a reversal would have to follow, the order overruling the motion for new trial failing to show that the verdict sought to be set aside was approved by the trial judge in the exercise of a sound legal discretion. Rogers v. State, 101 Ga. 561, 28 S.E 978; Central of Georgia Railway Co. v. Harden, 113 Ga. 453, 38 S.E. 949; Thompson v. Warren, 118 Ga. 644, 45 S.E. 912; McIntyre v. McIntyre, 120 Ga. 67, 47 S.E. 501, 102 Am.St.Rep. 71, 1 Ann.Cas. 606; Livingston v. Taylor, 132 Ga. 1, 10, 63 S.E. 694;...