Patton v. State
| Decision Date | 13 February 1903 |
| Citation | 43 S.E. 533,117 Ga. 230 |
| Parties | PATTON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. This court cannot grant a new trial where the evidence is conflicting. It must do so where there is no evidence.
2. Between conflicting evidence and a total want of evidence lies the debatable territory where this court must determine whether the evidence is of the character demanded by law, and sufficient to sustain the verdict in the particular case under consideration.
3. The law recognizes that there may be evidence pointing to guilt without that evidence being sufficient to warrant conviction.
4. In testing the sufficiency of evidence, this court cannot consider the credibility of witnesses; but it may consider the nature of the testimony, and whether or not it should be treated as incredible, because purporting to prove facts impossible.
5. Courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case which cannot be impeached by man, even though speaking under the sanction of an oath.
6. In a murder case the identification of the accused as the person who did the killing is of paramount importance, and should be established beyond a reasonable doubt.
7. Such identification may be established by circumstances, like the peculiarity of a track, or the accused may be identified by the voice, where the witness shows that the accused had a peculiar voice, or that his acquaintance with the defendant was as long or so intimate as to enable him to identify the accused by his voice.
8. Where there is nothing peculiar in the voice of the accused and the witness had only heard the accused speak twice, and that long before the occurrence, identification solely by the voice would leave room for reasonable doubt--particularly when it appeared that that speaking was at night, that the witness was surrounded by barking dogs, that the person speaking was some 75 yards distant in the woods, and that the witness did not mention the name of the defendant as the guilty party until the day following, and then testified that he "thought he recognized his voice."
9. The public is vitally interested in the prevention of acts which may require the court to declare a mistrial, and the judge need not wait for an objection, but of his own motion may promptly interfere to prevent or stop such occurrences.
10. Where acts transpire in the presence of the jury which would authorize a mistrial, and the injured party does not move therefor, but only asks the court to rebuke the same, and for an instruction to the jury, cautioning them not to be influenced thereby, there is, if the court complies with such requests a legal, though inadequate cure, and this court cannot order a new trial.
11. On the trial of a criminal case, where the identity of the accused and his connection with the crime are established by but a single witness, and that witness testifies to circumstances which make it appear that his recognition of the accused at the time and place in question was perhaps extraordinary, but not, as a matter of law, impossible, it is for the jury to say whether or not the witness has told the truth. This court should never attempt to decide debatable questions of veracity. Per Candler and Fish, JJ., dissenting.
Ebb Patton was convicted of murder, and brings error. Reversed.
Janes & Hunt and Bunn & Trawick, for plaintiff in error.
W. K. Fielder, Sol. Gen., Roberts & Hutcheson, Sanders & Davis, Blance, Wright & Tison, J. C. Walker, W. T. Roberts, Sol. Gen., Jno. C. Hart, Atty. Gen., and Boykin Wright, Atty. Gen., for the State.
That a murder was committed is most certain. Every circumstance attending the dreadful affair appears with fullness. The only question left in doubt was the one of paramount importance--who did the killing? It appeared that the main witness for the state, together with his son and the son of a neighbor, went "possum hunting," carrying a lantern; that their dogs had "treed the possum"; that they had just cut down the tree, the "possum had been caught up," and at that moment two or three men appeared on an embankment or cliff some 50 or 75 yards away, when one of them inquired whether Mann (the defendant) was there. The witness twice inquired of Cuzzort, one of the hunting party, what the voice said, answered "No" to the question, went 10 steps towards the group who were standing on the cliff, was met by a volley of oaths, ordered to retire, and, on turning to leave, two, three, or five shots were fired, one of which killed the son of the neighbor. It appeared that this witness, on the next day, at the coroner's inquest, stated that he thought he recognized the voice as Patton's, and, while he at one time intimated that he could see the outline of a form which was about like that of Patton, placed the identification solely on the voice; swore that he saw a Winchester rifle in Patton's hand, and shotguns in the hands of the other two. There was testimony that near the place at which the shooting occurred were found several empty shells which fitted the Winchester rifle owned by the defendant; that the next day--after the rifle, however, had been handled by several parties--the chamber was short of being full about the number of shells found on the ground.
It is conceded that there were several persons in the party by whom this shot was fired. Even if Patton had been in the crowd, it did not necessarily follow that he had fired the shot, or that it had been fired in pursuit of a conspiracy, or that he was a guilty participant in the act of the other party. The mere finding of the shells which would fit the Winchester rifle would not necessarily connect him with the offense, or, even if it was shown that the shells had come from Patton's rifle, the shells might have been fired by some one else. It did not appear that there were no other Winchester rifles in the neighborhood, nor that other persons did not use cartridges of the same make, size, and number. This was a circumstance which would have gone very far to confirm the defendant's guilt if there had been other sufficient evidence to connect him with the killing; but by itself the mere finding of empty shells which will fit a particular pistol or rifle is nothing, because shells might fit a half a dozen rifles in a neighborhood, and it would have been as proper, on that evidence, to indict the owner of one rifle as another.
The witness must have referred to his mental state at the time of the killing much of that to which he subsequently swore, because he says that he recognized that the man had a Winchester rifle, and the other two, shotguns. Confessedly, it was impossible for him to have decided whether the gun was a rifle, or, if a rifle, that it was a Winchester. So, too, the testimony that one of the men had on a dirty shirt is not calculated to confirm other parts of his testimony. By a process of exclusion, these recognitions of the shirt and the gun are eliminated as being impossible; and the size of the man and shells prove nothing, because too many men are the same size as Patton, and too many guns could use this size shells. The case therefore finally turns solely upon the question as to whether the witness could recognize Patton from his voice. He was in the swamp; the moon was shining, but it was dark enough to require a lantern; the tree had just been cut down, and the dogs were barking; the voice from the hillside, "Is Mann [Patton] there?" Had the witness then recognized the voice as that of Patton, he must have been impressed with the folly of Patton, on the hillside, asking if Patton was in the swamp; and a natural answer would have communicated some such surprise. So far from recognizing the voice, he testified that he three times asked Cuzzort, "What did he say?" If he could not recognize the words of a stranger, how could he identify the infinitely more delicate tones of a voice he had only heard twice, and never at that pitch? Where the witness is acquainted with the accused, he may be in a position to testify positively to his voice, and thus identify the defendant. But where, as here, it appears that there was nothing peculiar in the voice; when the witness was not acquainted with the defendant, and had only heard him speak twice, and that at a considerable period before the homicide; when he had never heard Patton halloo--the circumstances ought to be most propitious, to entitle such evidence to any weight. But it is said that there was some evidence, and that, the jury having passed on the issue, this court cannot review their finding, nor undo what they have done by their verdict of guilty. If there was a conflict in the evidence, we certainly could not interfere. If there is a total want of evidence, we must interfere. Between a total want of evidence and a conflict of evidence there is the debatable ground as to the sufficiency of evidence. The court must determine in each case whether, in its inherent character, the evidence is sufficient to show beyond a reasonable doubt that the defendant committed the crime charged.
2-8. The Code recognizes different degrees of evidence, and, as to some transactions, it provides that there must not only be evidence of the fact, but that such evidence must measure up to a particular standard. The evidence of one witness is not sufficient to convict of perjury. Confessions are evidence but they are not sufficient unless corroborated. The testimony of an accomplice is evidence, but it is not sufficient unless corroborated. Evidence which leaves a doubt may be sufficient in a civil case, but evidence which tends to show the guilt of the defendant, while...
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