Wilson v. State

• Decision Date: 13 December 1921
• Docket Number: 2538.
• Citation: 110 S.E. 8,152 Ga. 337
• Parties: WILSON v. STATE.
• Court: Georgia Supreme Court

110 S.E. 8

152 Ga. 337

WILSON v. STATE.

No. 2538.

Supreme Court of Georgia

December 13, 1921

Syllabus by the Court.

There being some direct evidence on all the essential elements of the crime charged, the failure of the judge to charge the jury on the law of circumstantial evidence does not furnish cause for a new trial.

The instruction given by the court defining malice, considered in its entirety, was not error.

The charge of the court complained of in the corresponding division of this opinion is in accord with the decision of this court in the case of Mann v. State, 124 Ga 760, 53 S.E. 324, 4 L.R.A. (N. S.) 934.

Under a proper construction, the excerpt from the charge, set out in the fifth ground of the motion for new trial, did not amount to an expression of an opinion upon the facts in the case.

The charge of the court excepted to in the sixth ground of the amended motion, complaining that the court unduly restricted the defense relied on by the defendant, when considered in connection with the entire charge on that subject, was not erroneous.

The charge of the court set out in the corresponding division of this opinion was not appropriate; but, as the judgment refusing a new trial will be reversed on other grounds, no ruling will be made as to whether the charge complained of was sufficient to require a new trial.

The court did not err in admitting evidence set out in the corresponding division of this opinion, over the objections interposed to its admission.

On the trial, one defense being that the accused shot and killed the deceased under the fears of a reasonable man that his own life was in danger, and there being evidence in behalf of the accused tending to show that at the time of the homicide the deceased had a pistol, which was found by his body, partially out of his pocket, from which it might be inferred that the deceased had attempted to draw the pistol, and there being other evidence in the nature of res gestæ which was admitted without objection, tending to show that the deceased was the aggressor, it was erroneous to reject evidence, offered by the defendant, tending to show that the deceased, ever since the previous difficulty between the parties, had habitually carried a pistol, and that this was known to the accused. The rejected evidence was also admissible for the jury to consider and determine whether the carrying of a pistol by the deceased, under the circumstances, was or was not in the nature of an implied threat.

The evidence set out in the corresponding division of this opinion was irrelevant, and the court should have rejected it.

As a new trial will result on account of errors hereinbefore pointed out, it is unnecessary to deal with other grounds of the motion for new trial, based on alleged newly discovered evidence.

Error from Superior Court, Wilcox County; O. T. Gower, Judge.

J. C Wilson was convicted of murder, and he brings error. Reversed.

J. C Wilson was convicted of the murder of R. E. Sappington, by shooting him with a pistol. The bill of exceptions assigns error on the judgment of the court refusing the defendant a new trial. The homicide occurred in a small frame building used as a post office in the town of Seville. The building faced directly on a street, and extended back in the lot on which it was situated. The front part of the building was separated from the rear part by a partition, in which was a door. The front part had formerly been used as a store, but was vacant at the time of the tragedy. The rear part of the building was used as the post office. A partition was constructed in the rear part, lengthwise with the building, in such manner as to cut off the post office proper on the right, leaving the remainder of the space on the left, which was used as a "lobby." There was a door on the left side of the building, opening into the "lobby," so that there were two entrances to the post office; one opening directly into the lobby, and the other through the front part of the building, as above indicated. In the partition which separated the post office from the lobby, and directly in front of the side door, was a box, in which letters could be deposited to be sent off in the mails. To the left of this box was a series of letter boxes rented to individuals for reception of their incoming mail. These boxes were locked and unlocked by combination locks. The deceased, who was a cashier of a bank, had one of the boxes in the lower tier. In the vacant storeroom was a "counter," near the left wall, which extended from near the front door of the building to near the partition which separated the store from the rear part of the building. The house was so arranged that a person seated on the sidewalk, with his back to the street and facing the building, looking through the front door, would have a vision of the store, the counter, the door in the partition, the lobby, the letter boxes, and any person who might be in the lobby mailing letters or getting his mail from his individual box.

The homicide occurred in the lobby late in the afternoon on August 23, 1920; the deceased having gone there, as it was his custom to do after the bank had closed, to mail his letters and get his incoming mail. There had been a previous difficulty between the deceased and the accused on June 28, 1920, at the bank in which the deceased was cashier, growing out of previous matters of dispute. Mrs. Alma Mashburn, the postmistress, introduced as a witness for the state, testified that she was sitting in front of the building, looking back through the front part of the building into the lobby of the post office, and had such view of the place as is described above; that a few minutes before the shooting occurred the defendant passed by her into the building and sat on the counter. She could not say whether he was reading his mail or not. From where he was sitting, a person coming in the side door to the post office could not see him, but he could hear any one entering that door. Witness saw Sappington enter the lobby of the post office from the side door, walk to the letter box, and mail some letters, and then he "stepped to his box to get his mail." As Sappington entered the door--

"Wilson looked around towards the door. He just leaned over like that. * * * Wilson got down off the counter and went through the door, and there was a gun fired immediately. I did not see Mr. Sappington after Mr. Wilson stepped between me and him. * * * The pistol shot as soon as he stepped through the door. When he got off the counter, Mr. Wilson first seemed to walk kinder natural until he got to the door, and then he made a quick step, and that scared me, and I jumped up, and before I could turn and run the gun fired. * * * I didn't hear a word from either of the men. When Mr. Wilson stepped between me and Mr. Sappington, made that quick step, Mr. Sappington was unlocking his box, which locked with a combination--you didn't have to have a key."

Another witness testified that he ran immediately to the scene upon hearing the shooting, and found the deceased and the accused alone in the lobby; the former being in a dying condition, and the latter standing by him, in the act of reloading his pistol. "The pistol was lying with two or three inches of the barrel * * * in Mr. Sappington's pocket; the cylinder was out entirely."

It was contended by the defendant that his presence at the post office at the time of the homicide was casual and in the course of his regular business; that he sat on the counter for the purpose of reading his mail, and was not expecting to see deceased; that upon meeting the deceased the latter commenced the difficulty, and the former killed him in self-defense. Other facts will sufficiently appear in the opinion.

McClellan & Jacobs, of Macon, and M. B. Cannon and Hal Lawson, both of Abbeville, for plaintiff in error.

J. B. Wall, Sol. Gen., of Fitzgerald, and R. A. Denny, Atty. Gen., and Graham Wright, Asst. Atty. Gen., for the State.

ATKINSON J.

1. Complaint is made because the judge failed to charge the provision of Penal Code, § 1010, viz.:

"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."

In McElroy v. State, 125 Ga. 37, 53 S.E. 759, it was said:

"Generally, * * * where the prosecution relies exclusively upon circumstantial evidence for a conviction, it is the duty of the judge, not only to charge upon the law of reasonable doubt, but also, whether so requested or not, to state to the jury the rule of law applicable in such cases, to the effect that the evidence must connect the accused with the perpetration of the alleged offense, and must not only be consistent with his guilt but inconsistent with every other reasonable hypothesis."

The above principle of law is not applicable to a defense set up by the accused, where all the evidence to support that defense is circumstantial, for the reason that it would be against the interest of the defendant to hold him to the rule that the circumstances relied on to sustain his defense must be so conclusive as to exclude every reasonable hypothesis save that of the guilt of the accused. He would be entitled to acquittal, if the evidence or want of evidence left a reasonable doubt as to his guilt.

Applying the rule to the case under consideration, it appears that the state introduced circumstantial evidence tending to show that the defendant shot the accused with a pistol and produced mortal wounds which caused his death. In addition to this the state also introduced evidence as to certain statements made by the defendant at the time of the homicide, to...