Willingham v. State, (No. 6911.)

• Decision Date: 15 May 1929
• Docket Number: (No. 6911.)
• Citation: 169 Ga. 142,149 S.E. 887
• Parties: WILLINGHAM. v. STATE.
• Court: Georgia Supreme Court

169 Ga. 142

149 S.E. 887

WILLINGHAM.

v.STATE.

(No. 6911.)

Supreme Court of Georgia.

May 15, 1929.

On Rehearing.

Former Judgment Adhered to.

(Syllabus by the Court.)

[COPYRIGHT MATERIAL OMITTED].

Russell, C. J., dissenting.

Error from Superior Court, Clarke County; Blanton Fortson, Judge.

Robert Willingham was convicted of murder, and he brings error. Affirmed.

Shackelford & Shackelford, of Athens, for plaintiff in error.

H. H. West, Sol. Gen., of Athens, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

BECK, P. J. Robert Willingham was tried under an indictment charging him with the murder of his wife, Dora Willingham. The jury returned a verdict of guilty, with a recommendation. The defendant made a motion for a new trial, which was overruled by the court, and the defendant excepted. The original motion for new trial consists of the usual general grounds, and this was afterwards amended; the amendment containing numerous grounds, with special assignments of error.

1. The first ground of the amendment contains an assignment of error upon a ruling of the court holding certain jurors incompetent and setting these jurors aside. The jurors referred to, in answer to the voir dire question, "Are you conscientiously opposed to capital punishment?" answered, "I am, if it is a case of circumstantial evidence; I am opposed to capital punishment on circumstantial evidence." The court then inquired of the solicitor general, "Is this a case in which the state relies for a conviction upon circumstantial evidence?" to which the solicitor general replied, "Yes, the evidence is partly circumstantial, " and then the jurors giving the answer to the voir dire question above stated were excused. This was not error, especially in view of the fact that the evidence upon which the state relied to establish the guilt ofthe accused was circumstantial. There was no eyewitness, the defendant contending that in the struggle for a pistol, which was held in the hand of his wife, the weapon was accidently discharged, thereby inflicting the mortal wound which resulted in the death of his wife. Smith v. State, 146 Ga. 76, 90 S. E. 713; Bell v. State, 91 Ga. 15, 16 S. E. 207.

2. The court was duly requested in writing to charge as follows: "The fact that one who is accused of a crime stands his ground, and does not flee, is very doubtful and equivocal evidence of his innocence, and our courts have held that such evidence is not admissible. And so, when one accused of crime absents himself or flees to avoid arrest, it is only a circumstance that may be considered, along with any other fact in the case, in determining the guilt or innocence of the accused. The accused may explain his alleged flight. He may show that he left for other reasons, and not from a consciousness of guilt. The jury may accept this explanation; and if they come to the conclusion that the flight was not immediately after the commission of the alleged crime, but that the accused absented himself several days later, then the jury should draw no inference of guilt, and there should be no presumption of guilt against the accused on account of the alleged flight. Flight, at most, is only a circumstance which may be weighed by the jury, in connection with other circumstances, to determine guilt, and is of itself no such circumstance as authorizes the jury to presume guilt. The court refused to give this in charge as written. The refusal was not error. The requested charge practically excluded the consideration of flight, unless it took place "immediately after the commission of the alleged crime." The judge, on the subject of flight, actually charged the jury as follows: "Flight, if any, and similar acts, if proved, from which an inference of consciousness of guilt may be drawn, may be considered by the jury. But flight is subject to explanation. The weight to be given it, or whether the jury will draw an inference of consciousness of guilt or not, is for the jury. It is for the jury to determine whether the flight of the defendant, if any, was due to a sense of guilt or to other reasons. If from other reasons, no inference hurtful to the defendant must be drawn by the jury."

In the next ground error is assigned upon the refusal of the court to give the following in charge, upon the subject of flight: "The state in this case has been allowed to introduce evidence on the question of flight. As to flight I charge you as follows: If, immediately after a crime has been committed, the person accused or charged to be connected therewith flees from the scene of the crime, and avoids arrest when sought to be apprehended, such immediate flight is presumed to be from a consciousness of guilt, and may be introduced in evidence as a circumstance of guilt to be considered by the jury along with all the other circumstances and evidence in the case. The flight which the law considers as having evidentiary value is immediate flight, that flight which follows from a consciousness of guilt. It is the theory of the law that this immediate flight is in a way involuntary, and that a guilty conscience is the motive power that drives...