Taylor v. State, (No. 3671.)

• Decision Date: 07 June 1923
• Docket Number: (No. 3671.)
• Parties: TAYLOR. v. STATE.
• Court: Georgia Supreme Court

155 Ga. 785

118 S.E. 675

TAYLOR.

v.STATE.

(No. 3671.)

Supreme Court of Georgia.

June 7, 1923.

(Syllabus by the Court.)

Russell, C. J., and Atkinson, J., dissenting in part.

Error from Superior Court, Coffee County; J. I. Summerall, Judge.

W. L. Taylor was convicted of murder, and he brings error. Affirmed.

Casey Thigpen, Levi O'Steen, R. B. Chastain, and John S. Gibson, all of Douglas, and Clyde A. Allen and Early W. Butler, both of Macon, for plaintiff in error.

A. B. Spence, Sol. Gen., of Waycross, McDonald & Willingham, of Douglas, Geo. M. Napier, Atty. den., and Seward M. Smith, Asst. Atty. Gen., for the State.

H1NES, J. W. L. Taylor was indicted for the murder of Edwin Punk on February 21, 1922. This is the second conviction of the defendant, and the second appearance of the case in this court. Taylor v. State, 154 Ga. 68, 113 S. E. 147. The defendant moved for a new trial upon the formal grounds, and upon additional grounds set out in an amendment to his motion for new trial. We will deal first with the grounds of the amendment, and then consider the general grounds.

1. The court, upon the subject of alibi, gave to the jury the instruction which was considered and approved by this court in the case of Hunter v. State, 136 Ga. 103, 70 S. E. 643. So this instruction was a correct abstract principle of law; but counsel for the defendant insists that this charge was erroneous and harmful to the defendant, because it injected into the case a contention and issue not made either by the evidence or the defendant's statement, because it put upon the defendant the burden of substantiating a contention which he did not make, and because it confused and misled the jury. It is undoubtedly true that an instruction, though abstractly correct, should not be given, if not warranted by the evidence or the statement of the defendant; and where it is harmful to the defendant, such instruction requires the grant of a new trial. Rooks v. State, 119 Ga. 431, 46 S. E. 631; Bennett v. State, 19 Ga. App. 442, 91 S. E. 889; Sikes v. Sikes, 153 Ga. 725, 113 S. E. 416. Was this instruction without foundation to support it?

The defendant introduced no evidence, but made a statement to the jury. In his statement he said that he and the deceased, on Tuesday morning, the day on which the latter is alleged to have been murdered, went to the home of one Sharpe; that he left the deceased there, and came back to his home, and that was the last he saw of the deceased until he found his dead body upon the following Friday morning. Here by necessary implication, if not by express and direct assertion, the defendant set up the plea that he was not at the scene of the homicide; and while the court was not required to charge upon any theory of defense arising solely from the defendant's statement (Lampkin v. State, 145 Ga. 40, 88 S. E. 563), he was authorized to give an appropriate and correct instruction upon the defense of alibi under the statement of the accused, and such instruction was not erroneous because inappropriate under the facts of the case. Westbrook v. State, 91 Ga. 11, 16 S. E. 100. Even though in this case the charge upon the law of alibi was not appropriate, the giving of such instruction is not cause for the grant of a new trial, when it appears that the accused was not thereby injured. Knight v. State, 114 Ga. 48 (4), 38 S. E. 928, 88 Am. St. Rep. 17. The main and controlling issue in thiscase was whether or not the defendant was the perpetrator of this homicide; and the state undertook, by circumstantial evidence, to show his connection with the homicide and that he killed the deceased. On this subject the court charged the jury the rule of law warranting a conviction on circumstantial evidence; and further instructed them that:

"All essential facts and circumstances necessary to show the commission of the crime and to connect the defendant therewith must be proved to a moral and reasonable certainty and beyond a reasonable doubt."

In view of these instructions, even if the charge on alibi was inappropriate, we do not think such charge could have confused and misled the jury, and could have been harmful to the defendant by putting on him the burden of establishing the defense of alibi. "Where the defendant relied upon the fact * * * that he was not the perpetrator of the crime, and was not present when it was committed, * * * it was not erroneous for the court to charge the jury upon the theory of alibi, though it was not expressly set up as a defense and was only incidentally a part of the case. Especially was the charge of alibi harmless when the real defense of non participation by the defendant in the homicide "was fully and clearly presented to the jury by the court in the instructions." Clark v. State, 7 Ga. App. 609, 67 S. E. 697. See Green v. State, 153 Ga. 215, 111 S. E. 916.

2. The defendant insists that the court erred in refusing to give in charge to the jury the following timely written request:

"To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused. When the guilt of the defendant depends on circumstantial evidence alone, the rule is that each separate fact or link which goes to make the chain of circumstances from which the deduction of guilt is sought to be drawn must be clearly proved, and a fact not clearly proved should not be considered as a part of the chain of circumstances, but should be rejected by the jury, and the circumstances proved must not only be consistent with the defendant's guilt, but they must exclude every other reasonable hypothesis than that of the defendant's guilt. If any one or more of the circumstances relied on by the state are not clearly proved, and for this reason you reject one or more of the circumstances relied on, then you will inquire whether the other remaining circumstances proved, if they are clearly proved, are consistent with defendant's guilt and inconsistent with any other reasonable hypothesis than that of the defendant's guilt. All essential facts and circumstances necessary to show the commission of the crime and to connect the defendant therewith as the party committing the act must be proved."

The errors assigned are: (1) That said written request embodied a correct principle of law, applicable under the evidence in said case, and that the refusal of the court to give the same deprived the defendant of a substantial legal right; and (2) that if said charge had been given by the court, the defendant would perhaps have been acquitted, and its refusal was very hurtful and harmful to the defendant's case and greatly lessened his chances of acquittal. On this subject the court charged the jury as follows:

"Gentlemen, this case depends entirely upon circumstantial evidence. Indirect or circumstantial evidence is that which only tends to establish the issue by proof of various facts sustaining by their consistency the hypothesis claimed. To warrant a conviction on circumstantial evidence, the proved facts must not only be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused. All essential facts and circumstances necessary to show the commission of the crime and to connect the defendant therewith must be proved to a moral and reasonable certainty and beyond a reasonable doubt."

A comparison of the requested instructions with the instructions given by the court will show that the court omitted to expressly instruct the jury that each separate fact or link of the chain of circumstances from which the deduction of guilt is sought to Be drawn must be clearly proved, and a fact not clearly proved should not be considered as a part of the chain of circumstances, but should be rejected by the jury, and that, if any one or more of the circumstances relied upon by the state are not clearly proved, and for this reason the jury should reject one or more of the circumstances relied on. then the jury should inquire whether the other remaining circumstances proved, if they were clearly proved, are consistent with the defendant's guilt, and inconsistent with any other reasonable hypothesis then that of the defendant's guilt. The instructions requested have been approved by this court as correct principles of law, and appropriate instructions in a case in which the state relies upon circumstances alone for conviction. Davis v. State, 74 Ga. 869 (2); Gravett v. State, 150 Ga. 74, 102 S. E. 426. The omitted portions of these requested instructions are not given literally in the charge of the court upon the subject of circumstantial evidence. Should a new trial be granted for this failure of the court to give literally these omitted instructions to the jury? This depends upon whether they are substantially covered by the general charge. The court told the jury that:

* "All the essential facts and circumstances necessary to show the commission of the crime and to connect the defendant therewith must be proved to a moral and reasonable certainty and beyond a reasonable doubt."

Was not this instruction equivalent to telling the jury that each fact or link in the chain of circumstances must be clearly proved? We think so. Proof of "all the essential facts and circumstances necessary to show the commission of the crime and to connect the defendant therewith * * * to a moral and reasonable certainty and beyond a reasonable doubt "amounts to clear proof and more of all such essential facts and circumstances, and of each fact or link in "the chain of circumstances from which the deduction of guilt is sought to be drawn." Then was not such instruction tantamount to telling the jury that any fact or link in the chain of circumstances not so proved should be rejected, and that, if they rejected one or more of the facts or links in the chain, they should...