Townsend v. State

• Decision Date: 04 April 1967
• Docket Number: No. 42647,No. 2,42647,2
• Citation: 115 Ga.App. 529,154 S.E.2d 788
• Parties: Clifford TOWNSEND v. The STATE
• Court: Georgia Court of Appeals

Page 788

154 S.E.2d 788

115 Ga.App. 529

Clifford TOWNSEND v. The STATE.

No. 42647.

Court of Appeals of Georgia, Division No. 2.

April 4, 1967.

Rowland & Rowland, Emory L. Rowland, Wrightsville, for appellant.

No appearance for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

In the present case, a male defendant was charged with using obscene, vulgar, and profane language to a female over a telephone, and was convicted. His appeal is based upon the general grounds only. Upon the trial, the evidence disclosed that on Saturday night and continuing into Sunday morning, a male, in a singsong voice, used the alleged language over the telephone to the female involved. Later, during Sunday morning, a device was placed upon the telephone line of the female which would prevent it from being disconnected from the line of any caller until the call could be traced. Thereafter, about midnight Sunday, the female received another call from the same party during which time substantially the same language was used by the caller to the female and shortly thereafter this fact was reported to the police and the telephone company, and the call was traced to a telephone in the home of the defendant's mother, where the defendant was living, and, after obtaining a search warrant, in the early morning hours the police went to the home and the defendant opened the door and when asked if he had been using the telephone made no reply. The defendant was the only male in said home at that time and the telephone line in said home was still connected with the telephone line of the female. The evidence further disclosed that the defendant was the only male that lived in the home and the only male that had lived in the home for several days past. There was no direct evidence that the defendant was in the home at the time of the two conversations, and the female, although she knew the defendant, was not familiar with his voice and was unable to identify him by voice as the person who did the calling: Held:

'It is of course true that the burden was upon the State to prove the corpus delicti, and to show also that the defendant was the perpetrator of the alleged offense. Both of these elements, however, could be shown by circumstantial as well as direct evidence. Buckhanon v. State, 151 Ga. 827(8), 108 S.E. 209; Brown v. State, 10 Ga.App. 216(2), 73 S.E. 33.' Jester v. State, 193 Ga. 202, 208(1), 17 S.E.2d 736, 740.

'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.' Code § 38-109. See also Code § 38-110. 'In White v. State, 18 Ga.App. 214, 89 S.E. 175, it was stated that the term 'hypothesis,' as used in the section of the Code relating to circumstantial evidence

( § 38-109), referred to 'such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life.' This statement was approved in Wrisper v. State, 193 Ga. 157, 164, 17 S.E.2d 714.' Kalb v. State, 195 Ga. 544, 549(1), 25 S.E.2d 24. 'It is not necessary, however, in order to sustain a verdict of conviction, that the evidence exclude every possibility or every inference that may...