Pulliam v. State

• Decision Date: 09 November 1943
• Docket Number: 14639.
• Citation: 28 S.E.2d 139,196 Ga. 782
• Parties: PULLIAM v. STATE.
• Court: Georgia Supreme Court

28 S.E.2d 139

196 Ga. 782

PULLIAM v. STATE.

No. 14639.

Supreme Court of Georgia

November 9, 1943

[Copyrighted Material Omitted]

Syllabus by the Court.

1. Although the evidence in this case was entirely circumstantial, it was sufficient to authorize a verdict of guilty.

2-4. The right to a thorough and sifting cross-examination is not abridged by the action of the judge in confining it to matters that are in some manner relevant to the issues of the case on trial. In the absence of an attempt to show that the facts sought to be developed are connected with the case even remotely, an assignment of error upon their exclusion is not meritorious.

5. An assignment of error on the conduct of the judge in propounding a question to a witness can not be considered where it appears that the objection presented at the time was in no respect pertinent to the question propounded.

6-7. Where on the trial the court propounded certain questions to a witness, which examination, it is insisted, was conducted in such manner as to prejudice the rights of plaintiff in error, such action on the part of the court will not cause a reversal, in the absence of any objection having been raised thereto at the time.

The decision in Potter v. State, 117 Ga. 693, 45 S.E. 37, on the question of procedure here dealt with, is expressly overruled; and so as to any other case conflicting with the ruling here made.

8. Testimony that in a conversation with the defendant, the witness said he had heard that defendant 'had a wreck, got in a little trouble' was properly excluded as hearsay.

9. Where in charging on the presumption of innocence the court instructed the jury that this presumption remains with the defendant 'until and unless the State shall overcome and remove it by the intreduction of testimony in your presence and hearing, sufficient to convince your minds of his guilt beyond a reasonable doubt,' it was not error requiring a new trial that the court omitted the words 'and conscience' immediately after the word 'minds,' as the court thereafter properly instructed the jury as to the degree of mental conviction necessary to overcome the presumption of innocence.

10. The court charged the jury that 'all burnings are presumed to be accidental,' and the failure to add 'or from providential cause' does not constitute reversible error, in view of the further instruction in connection therewith that if the jury 'should determine that this death was produced by burning and by reason of accidental burning of the house, unmixed with any human agency of which the defendant had any connection therewith, you will acquit on that ground.'

11. When defining circumstantial evidence, it is not error for the judge in his charge to the jury to include the words 'and circumstances' following the language 'by proof of various facts,' since circumstances are but minor facts, and the words facts and circumstances are used interchangeably in the phrase 'circumstantial evidence.'

12. Where counsel for the defendant, during his argument to the jury, called for production before the jury of certain physical evidence, concerning which evidence had been delivered, and the solicitor-general caused the evidence to be produced, and it was admitted pursuant to statement by counsel for the defendant that there was 'No objection; bring it here so the jury can see it,' and after it had been carried to the jury room it was withdrawn by the court on objection by defendant's counsel, the defendant is in no position to complain because it went to the jury room, since this was done at the request of the defendant's counsel.

Marcus T. Pulliam was convicted of murder, for the killing of Winnie Pulliam, his wife, and was recommended to mercy. His motion for new trial was overruled, and he excepted. He was charged in the indictment with the killing and murdering of Mrs. Winnie Pulliam 'by cutting the said Mrs. Winnie Pulliam on and across the abdomen with a certain knife and other sharp instrument, and by setting fire to and burning a certain dwelling house,' described as being the house wherein Mark Pulliam and Mrs. Mark Pulliam resided. The evidence for the State showed substantially the following facts. On the morning of November 2, 1942, the dwelling house described in the indictment was discovered by neighbors to be on fire. When the neighbors reached the burning building the top had fallen in, and the house was almost consumed. This was in the early morning, a short time before daylight. The discovery was soon made that the bodies of Mrs. Pulliam and five of her small children were in the building. All of the bodies had been largely consumed by the fire. The body of Mrs. Pulliam was lying on a mattress, face down, the mattress under the torso of her body being wet with blood. There was a cut across the abdomen, made with a knife or other sharp instrument, sufficient to cause death. Doctors testified that when a body is burned alive there is no bleeding, and that the blood on the mattress was evidence of the fact that Mrs. Pulliam was cut before the burning. Marcus T. Pulliam for several years had been associating with a woman named Della Hall, having spent only one or two week-ends with his wife and family in three years. He spent practically all week-ends with Della Hall, and visited her several times during each week. His wife and other members of his family had often complained to him about his associating with Della Hall; and when these complaints were made the defendant would curse them. At one time he threatened to carry Della Hall to his home and have her whip his wife and family. For several years he had been very cruel to his wife, beating, cursing, and threatening to kill her, and refused to call a physician when she was sick. November 2, 1942, was Monday. The defendant spent that week-end with Della Hall in Chattanooga, Tennessee. He was seen in Dalton, Georgia, with Della Hall as late as 9 o'clock p. m. November 1st, and was seen as late as 10 o'clock p. m. in Dalton, although he claimed to have left Dalton for his home, several miles from Dalton on a bus at 8:20 o'clock p. m. In August, 1942, Pulliam procured life insurance on his children totaling $2400 and his wife was rejected for a $1000 policy at the same time, because of bad health. Late in the day or early in the evening of Sunday, November 1, he went to the office of the insurance company in Dalton and paid the premiums on this life insurance. Della Hall accompanied him, and in a conversation between them it appeared that they were attempting to cover up the identity of Pulliam as the person who was paying the premium. A few weeks before November 1, 1942, Pulliam purchased from a physician a bottle of chloroform, stating that he wanted the chloroform to use in shoeing his mules, which were mean to shoe. The blacksmith testified that he did not use chloroform in shoeing Pulliam's mules, and did not need it. When Pulliam was arrested on November 2, while working at a sawmill several miles from his home, he inquired of the sheriff making the arrest way he was being arrested, to which the sheriff answered, 'Your house has burned, and some of your folks.' Pulliam made no reply, and asked no questions about the matter. On the way to jail, and after they had traveled several miles, Pulliam remarked to the sheriff, 'I think as much of my family as any damn man.' This was the only statement he made at that time about what had happened. After the fire, there was discovered what appeared to be a 'spot' of blood in the yard, and there was what appeared to be blood on the door-steps. Dr. Herman D. Jones of the Oglethorpe School of Medicine examined specimens that came from the door-steps of the house and scrapings from under the fingernails of Pulliam, and testified that he found blood in each specimen. With reference to the knife of Pulliam, Dr. Jones testified: 'I found blood on that knife just where the blade goes into the knife, inside the knife, small clot of blood and little streak down the handle, the back part of the knife. There was not enough blood for me to determine whether that was human blood or not.'

There was evidence that a kerosene can that was kept in the kitchen was found after the fire in one of the front rooms of the house. The hands of the family clock, after the fire showed that it had stopped at twenty minutes of four.

The defendant in his statement denied any knowledge of the crime, and said, 'When I arrived at home the night before I left home that morning, I got there about 11:25; the next morning when I left, I left about 3:10 or 3:15.' The record discloses a mass of evidence introduced upon the trial; but the statement above of the proved facts is considered sufficient to present the questions here to be decided.

C. H. Dalton, of Dalton, and W. B. Robinson, of Chatsworth, for plaintiff in error.

J. H. Paschall, Sol. Gen., of Calhoun, T. Grady Head, Atty. Gen., and L. C. Groves, Asst.Atty.Gen., for defendant in error.

WYATT Justice.

1. The evidence is entirely circumstantial, and must be measured by the rules of law with reference to circumstantial evidence. The Code, § 38-109, declares: that 'To warrant a conviction on circumstantial evidence, 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.' In all homicide cases it must be shown that death was caused by some criminal agency on the part of some other human being. Langston v. State, 151 Ga. 388, 106 S.E. 903. It appears that Mrs. Winnie Pulliam was found dead in the ruins of the burned building. She had been cut with a knife or other sharp instrument before the burning. Was she killed as the result of some...