Opinion
15530.
JULY 3, 1946.
Murder. Before Judge Davis. Clayton Superior Court. March 1, 1946.
R. A. Whitsett, for plaintiff in error.
Eugene Cook, Attorney-General, Roy Leathers, Solicitor-General, and Margaret Hartson, contra.
1. The verdict was authorized by the evidence. The accomplice testified to the defendant's guilt. The defendant's statement admitted substantially all of such testimony, but said that the accomplice by threats upon her life compelled her to participate in the crime. The corroboration was sufficient.
2. It was not error as contended, upon the ground that the instructions were premature and misleading, for the court, during the trial and before a named witness for the State testified, to instruct the jury that they should first determine from the evidence if such witness was the lawful husband of the accused, and if so to disregard all of his testimony, but if not they should consider it.
No. 15530. JULY 3, 1946.
Gertie Lee Dennis was convicted of the murder of Jesse Dennis and sentenced to life imprisonment. She excepts to the judgment overruling her amended motion for new trial.
The State introduced evidence that showed that the body of Jesse Dennis was found in a shallow grave with some of his limbs exposed above the ground. The body was near the Flint River swamp east of highway No. 85, north of Riverdale, in Clayton County, Georgia, where the case was tried. The doctor who examined the body testified that the deceased had been shot one time in the lower jaw, and that he would perhaps have died in a few days from the gunshot wound, but that his death resulted from a fractured skull, that his skull had been badly crushed with a rock or some blunt instrument, and that he had been dead not more than 24 hours when the body was discovered. A number of witnesses testified that two blood-stained rocks were found near the grave, one being estimated to weigh from 40 to 75 pounds and the other about 1/10 of that weight. A short broken-handled shovel was also found nearby. There were large man tracks and small woman tracks leading to and from the body. The ground from the highway to the swamp appeared to have been scooped up as though something had been dragged across it. The deceased weighed 120 to 125 pounds. A number of the State's witnesses testified that over a period of years during the past they had lived near the defendant and the deceased, who were living together as husband and wife and to whom a number of children were born. When the defendant was arrested, she denied having any knowledge of the killing, but the next day after her arrest she freely and voluntarily made a statement in the presence of witnesses, in which she stated: that she and the deceased were going to her mother's house on Saturday night before the body was found on Sunday; that she was "out in the bushes" while Eddie Pledge and Bee Person were talking to the deceased; that after she and the deceased crossed a bridge Albert Whitaker came up behind them and said "Halt;" and started shooting; that the deceased ran and fell in the field 20 or 30 steps from the road, and Whitaker got down on top of him and beat his head with a rock and then took hold of the deceased and dragged him to the swamp; that the defendant ran towards them, telling Whitaker to stop, that Whitaker came out of the swamp and made her go back to the road and threatened to kill her if she left or told anyone; that after dragging the body of the deceased further into the swamp Whitaker made her come to Atlanta with him for the night, and the next morning he took something in a brown paper sack and started to the scene of the homicide, forcing her to accompany him, and he dug a hole and buried the deceased; and that after making sure that no one was approaching on the highway she and Whitaker went to the home of her stepfather where they spent the day. Her unsworn statement upon the trial was substantially the same as her previous statement, but in it she added that Whitaker made her take the deceased by the feet while he had him by the head and carried the body to the grave; that Whitaker said he killed the deceased because he heard that she was going back to him; that Whitaker locked up her clothes so that she could not leave; that he said that she would be better off to live with him single than to live with the deceased. She further stated that the deceased was her husband.
Whitaker, who was jointly indicted with the defendant, testified as a witness for the State and corroborated the statement of the defendant in many respects, but testified that she was willing and voluntarily participated in the killing, and that he neither coerced nor threatened her in any way. He testified: that he knew the defendant when she was living with the deceased at Riverdale; that subsequently he was married to her; that the defendant did not tell him she was going back to live with the deceased; and that she telephoned him, saying "Got to do away with Jesse [the deceased] tonight because he is going to kill you and me both;" that she told the witness to be at the river bridge; that she brought the deceased by and held him up with a "25 caliber" which belonged to the witness and which she carried in her bosom, while the witness took the deceased's gun and shot the deceased with it and then threw it away; that the deceased ran a short distance and fell, and the witness beat him with a rock; that the defendant dropped a goodsized rock on the head of the deceased while the deceased was still alive; that the witness had previously had a fight with the deceased over the defendant, and he said then that he would pay the deceased back if it took him 20 years.
A paper purporting to be a marriage certificate of Whitaker and the defendant was found in Whitaker's pocket.
When Whitaker was offered as a witness, the defendant objected upon the ground that he and the accused were husband and wife, and that under the law he was not allowed to testify either for or against her. When this objection was overruled, the court instructed the jury, for the purpose, as the court then stated, of enabling the jury to better understand the questions they were to decide in that connection; that they should determine from the evidence whether or not the witness Whitaker was the lawful husband of the accused; that, if they found that he was the lawful husband of the accused, they should give no consideration to any of his testimony; that under the law the husband was not allowed to testify either for or against his wife in a criminal case; but that, if they found from the evidence that Whitaker was not the lawful husband of the accused, they would in that event be authorized to consider his testimony. The one special ground of the motion for new trial excepts to this instruction to the jury upon the ground that it was premature, in that no evidence had been introduced, and because the case had not closed, and that it amounted to a charge which could not be given until all the evidence had been introduced and counsel had made their argument, and that it was calculated to mislead and confuse the jury.
1. The movant contends that the general grounds of the motion for new trial should be sustained because the testimony of the State's witness Whitaker, who was shown to be an accomplice, was not corroborated as required by law. We fully recognize the rule that, in order to warrant a conviction based upon the testimony of an accomplice, the circumstances must be such as, independently of the testimony of the accomplice, leads to the inference of the defendant's guilt, and that facts which merely cause a grave suspicion of guilt are not sufficient. Childers v. State, 52 Ga. 106; McCalla v. State, 66 Ga. 346; McCrory v. State, 101 Ga. 779 ( 28 S.E. 921); Taylor v. State, 110 Ga. 150 ( 35 S.E. 161). We are satisfied that the corroboration here is sufficient to meet the legal requirement. The statements of the accused show her presence near the man who she stated was her husband and was being killed; that she spent the remainder of the night with her husband's slayer and returned to his dead body with the slayer the following day, and there assisted the slayer in burying the body and then accompanied him to the home of her stepfather where she spent the day with him. She remained silent about the slaying of her husband until the second day after her arrest. The conduct of the accused as related by her authorizes the inference that she was aiding and abetting in the commission of the crime. The physical facts shown by the testimony of witnesses, including small woman tracks, show that she was present when her husband was slain. If she was innocent of any part in the slaying, her conduct was most unreasonable and unnatural. It is true that no witness except the accomplice testified that the accused willingly participated in the slaying, but the circumstances and her admissions speak as loudly as words. What was said by this court in Brown v. Matthews, 79 Ga. 1 (2) ( 4 S.E. 13), appropriately applies to these circumstances. It was there said: "Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts." The testimony of the accomplice being thus sufficiently corroborated, the verdict was authorized by the evidence, and the general grounds of the motion for new trial are without merit.
2. The special ground complaining because the court instructed the jury to determine whether or not the State's witness Whitaker was the husband of the accused, and if so to disregard his testimony, but if not to give it consideration, upon the ground that the instruction was premature and was calculated to mislead and confuse the jury, has no merit. The action of the trial judge, instead of being harmful to either the State or the accused, was calculated to be helpful to both in enabling the jury to properly appraise the testimony of the witness and to determine whether or not they should consider it all before such testimony was given and found possible lodgment in the minds of the jury. The trial judge is to be commended in thus conducting the trial in a way to insure the fair and proper consideration of testimony. This ground is controlled adversely to the movant by the ruling in Bryant v. State, 191 Ga. 686 (12) ( 13 S.E.2d 820), which is as follows: "There is no merit in the exceptions to preliminary instructions given to the jury, while testimony as to insanity and weakmindedness of the defendant was being given and before the conclusion of the case, in order to guide them in considering the purposes for which the testimony was admitted and could be considered."
Judgment affirmed. All the Justices concur.