Opinion
16495.
FEBRUARY 17, 1949.
Murder. Before Judge West. Walton Superior Court. October 23, 1948.
Daniel Duke, Frank A. Bowers, and A. T. Walden, for plaintiff in error.
Eugene Cook, Attorney-General, D. M. Pollock, Solicitor-General, and J. R. Parham, Assistant Attorney-General, contra.
1. While a confession is sufficient to authorize a conviction if corroborated by the corpus delicti, yet in the absence of extraneous evidence of all elements of the corpus delicti, the proof is insufficient to corroborate the confession.
2. The dying declaration, referred to in the corresponding division of this opinion, was more than a mere conclusion or an opinion, and was admissible in evidence.
3. In charging upon the defendant's statement it is not error for the trial judge to state: "This statement is not made under oath, and he [the defendant] can not be cross examined unless he consents to be."
No. 16495. FEBRUARY 17, 1949.
Isaiah Grimes was indicted for murder and convicted with a recommendation to mercy. He was charged with throwing kerosene oil upon Fluke Catlin, setting fire to his clothing, burning his body and limbs, thereby producing mortal wounds.
The deceased lived near the town of Loganville on the Atlanta Highway. Some time in the early part of the night of May 31, 1947, Charles A. Kelly Jr., a neighbor, was attracted by some commotion at the home of the deceased. He testified: "I went to the door. . . Fluke came out the [his] back door . . of the kitchen, and I couldn't see him until he was out in the yard, and he was hollering, `Somebody help me, I'm afire,' . . and I started running towards Fluke's yard. I was approximately two hundred feet from Fluke when I first saw him. . . I saw he was on fire . . from his knees burning down and up. . . The flames reached five or six inches from him. . . I got some water and helped put out the fire. . . As to whether I smelled anything, it smelled to me like kerosene. I could smell it in the yard, and when I got to Fluke it smelled like kerosene. We also smelled it in the house when we went in there an hour or more later. . . Two or three of us knocked the door open, . . and found an overstuffed chair burning and found . . the mattress of the bed was burning right around the outer edges in the center, and we found this lamp that was broken and looked like it was broken into a hundred or two hundred pieces; it looked like it was both broken and melted. I did not see any sign of any wick or burner on the lamp. . . I did not look for the burner or wick. . . He [Fluke] was adepted to drinking. . . While Fluke was lying there I asked him how did he catch afire, and he said the house was afire and he tried to put it out. . . I could not tell whether he was drinking on that occasion."
John T. Seaglar, who lived across the highway from the deceased, testified: "I first saw Fluke that night as he was coming out the back door. I judge I was three hundred feet to where he was. . . He was coming out of the door hollering for help. I . . ran . . and got a can of water . . to put it on him. . . Two big trucks . . stopped and they had a fire extinguisher. . . I did not go in the house until . . later, after he was . . sent to the hospital. . . I could see . . the upholstered part of the chair . . [and] the mattress . . was burning. . . I heard some talk with Fluke after he fell out there in the yard. . . Some one asked him who [why] he was afire, and he said the house caught on fire. I did hear him make a statement that . . what caused him to catch afire was that the house caught on fire and he caught on fire. . . The lamp was broken in several pieces. . . If the house was on fire at all, it was right around the edge of the wall."
Fred E. Clay testified: "I was downtown and some one said there was a negro afire up the road. There were several there when I got there. . . The shoes looked like they had oil spots on them. . . I went in the house. . . As to [the] condition the lamp was in, it was melted glass. . . The house did not burn up. . . We took the mattress and old chair out and somebody brought some water and threw it on the paper on the wall. . . I did not go in the house until they took Fluke away. . . I smelled kerosene out in the yard; it was on the side next to the kitchen door. . . I didn't notice any smell of kerosene around him. I was right by him and didn't smell kerosene, but, as I got near the house, I smelled it. . . I think the smell of kerosene was stronger inside of the house than on the outside. . . As to whether the lamp was broken, . . it looked like it was melted to me. . . It was laying right close between the fire and the bed."
A. L. Sellers testified: "My position at that time was police. . . I got a call to come up there as a man was burning up. That was about ten o'clock Saturday night. When I got there . . Fluke Catlin's clothes were practically burned off him. He was then lying on the side of the highway. . . He was burned from his waist-line down part of the way. . . He had a few little strings on [him]. . . One of the shoes was burned badly. . . I went on into the house. . . A big overstuffed chair . . was almost a live coal of fire, . . and the mattress was afire. . . The bed was between six and eight feet from the chair. . . The lamp was on the floor broken half way between the bed and the chair. . . It was just a pile of glass. . . I had known Fluke ten or . . fifteen years. . . He drank some. I did not notice on this night whether he was drinking or not. . . He had an abrasion on his head, . . just above the left ear. The skin was broken there. I saw some sign of blood there; it was bleeding a little."
William Hill testified: "The night he was burned I seen Fluke . . about half past six and stayed there half an hour. . . He was drinking. . . He asked me if I wanted a drink and I told him I did; I took one. Nobody was there but Fluke when I went there. When I left, Fluke was still sitting at the door with the bottle of liquor side of him. . . Fluke had some money in his pocket, . . in his shirt pocket. . . He rolled up a ten dollar bill and he had some more in his overall pocket. . . He showed it to me and said that he had plenty of money and plenty of liquor. . . The lamp was setting on the table on the right-hand side of Fluke by the bed; it was not lighted at that time."
The accused was the stepson of the deceased. Two or three days prior to the fire the deceased and his wife had trouble over some whisky, and the wife was arrested. Following her arrest she did not return to the home of the deceased, but went to the home of her son, the accused, and was staying there at the time of the fire. The home of the accused was on the same road as that of the deceased and about half a mile away. There was no evidence that the accused was seen at or near the home of the deceased at the time of the fire. There was evidence that the deceased died about thirty days after the fire as a result of his burns.
The accused was arrested about six months after the fire and placed in jail. After his arrest he made two statements to the officers about the fire, the first being made December 15, and the second some days later, to wit: "The first statement . . was he said he went to Fluke's house and got into an argument with him about a debt which Fluke claimed he owed him, . . and Fluke struck at him, and that he picked up a lamp that was lighted and he struck him in the face and bursted the lamp and set Fluke afire. . . He changed that to some extent the second time; in the second statement he said he went there and got in a discussion about this debt, . . and that an argument followed, and that Fluke struck at him and then he struck Fluke and knocked him down back in the chair and Fluke passed out, . . and that then he got this lamp and took the burner out and poured kerosene on him from the bowl of the lamp and stuck the lighted burner to him and ignited the kerosene."
The defense interposed by the accused was an alibi.
1. The record in this case presents the question of whether there is sufficient evidence to corroborate the confession of the accused. The Code, § 38-420, provides: "A confession alone, uncorroborated by any other evidence, shall not justify a conviction." However, proof of the corpus delicti is held to be sufficient corroboration. Daniel v. State, 63 Ga. 339; Paul v. State, 65 Ga. 152; Williams v. State, 69 Ga. 11; Westbrook v. State, 91 Ga. 11 (2) ( 16 S.E. 100); Schaefer v. State, 93 Ga. 177 ( 18 S.E. 552); Wimberly v. State, 105 Ga. 188 ( 31 S.E. 162); Owen v. State, 119 Ga. 304 (2) ( 46 S.E. 433). To prove the corpus delicti in a charge of murder, it is essential to establish that the person alleged to have been killed is actually dead, and that death was caused or accomplished by violence or other direct criminal agency of another human being; that is, it was not accidental, nor due to natural causes, nor to the act of the deceased, and that the accused caused the death in the manner charged. Warren v. State, 153 Ga. 354 (2) ( 112 S.E. 283). Independently of the confession, there is no evidence in this record to show that the accused was killed by violence or other direct criminal agency of another. He was seen coming from his house with his clothing afire, and died from the burns. There was the smell of kerosene upon him and in the house. The lamp containing kerosene was shown to have been broken. There was no evidence that anyone else was in the house at that time. Witnesses for the State testified that immediately after coming out of the house, and when asked how did he catch afire, the deceased stated, "The house was afire and he tried to put it out." Certainly these facts, standing alone, do not establish the corpus delicti. The corpus delicti must be proved beyond a reasonable doubt. Lee v. State, 76 Ga. 498; Epps v. State, 149 Ga. 484 ( 100 S.E. 568); Wrisper v. State, 193 Ga. 157 ( 17 S.E.2d 714). One element of the corpus delicti is just as essential as the other, and if dependent on circumstantial evidence, it must be established to the exclusion of every other reasonable hypothesis. Warren v. State, 153 Ga. 354 (2) (supra). A confession may authorize a conviction, if corroborated, and as above stated, proof of the corpus delicti is sufficient corroboration; but the proof to establish all the elements of the corpus delicti must be from a source or sources other than the confession. "A confession alone, however, being insufficient to convict, makes other evidence in corroboration necessary." Smith v. State, 64 Ga. 605, 606. In the absence of extraneous evidence of all elements of the corpus delicti, the proof is insufficient to corroborate the confession. Langston v. State, 151 Ga. 388 ( 106 S.E. 903). "As to the alleged confession, we think that cannot be relied upon to supply the want of evidence as to the corpus delicti." Johnson v. State, 86 Ga. 90, 93 ( 13 S.E. 282). "Even two positive confessions of guilt, without dependent proof of the corpus delicti, would not be sufficient to authorize a conviction." Bines v. State, 118 Ga. 320, 327, ( 45 S.E. 376). "Before a person charged with a particular crime can be lawfully found guilty thereof, it is necessary to establish the corpus delicti. This can not be done by the mere extra-judicial confession of the accused. There must be aliunde proof of the corpus delicti." Williams v. State, 125 Ga. 741 (2) ( 54 S.E. 661). In the case just cited, which was reversed, it was held that when the confession was eliminated there was not sufficient evidence to establish the corpus delicti. "The corpus delicti must be established without aid afforded by reference to the confession which is itself sought to be corroborated." Clay v. State, 176 Ga. 403 ( 168 S.E. 289).
To hold that a confession, in the absence of independent evidence to establish the corpus delicti, could be used to itself establish the corpus delicti, would necessarily have the effect of ruling that a person could be convicted on his uncorroborated confession, by simply using the confession to corroborate the confession.
While there seems to be a misapprehension on the part of some members of the bench and bar as to the ruling made in Wilburn v. State, 141 Ga. 510 (10) ( 81 S.E. 444), yet nothing was there held which is in conflict with the ruling here made. That case does not hold that the corpus delicti, or any element thereof, can be established solely by the confession. It specifically reiterates the doctrine heretofore set forth in the cases cited. It is there stated: "Of course, in order to prove the corpus delicti, there must be evidence showing it independently of the confession; but it does not follow that the confession can not be considered in connection with such independent or aliunde evidence in passing on the question as to whether the corpus delicti has been proved." The latter phrase of this quotation merely means that, where the corpus delicti has been established by independent evidence, in passing on the credibility or reasonableness of this independent evidence the jury may then consider the confession along with the independent evidence in determining whether the corpus delicti has been proved. In other words, where the corpus delicti has been prima facie established by independent evidence, the confession may then be considered by the jury, in addition thereto, in determining whether the corpus delicti has been satisfactorily proven.
In the event of another trial of this case, certain questions raised in the amended motion for new trial will probably be again presented, so we now rule thereon.
2. The accused sought to introduce certain testimony as a dying declaration. The witness to establish it was Maggie Catlin. The testimony offered was that, as to the cause of the fire, the deceased stated: "He might have crossed his legs and knocked the lamp off. . . I don't know how I got burned unless I crossed my legs and knocked the lamp off." This testimony was admissible as a dying declaration. It was not merely a conclusion or opinion, as will be found in Kearney v. State, 101 Ga. 803 (1) ( 29 S.E. 127, 65 Am. St. R. 344), and Sweat v. State, 107 Ga. 712 (1) ( 33 S.E. 422).
3. Exceptions are taken to the following portion of the charge: "The defendant has made a statement in this case, which he has a right to do under our law. This statement is not made under oath and the defendant can not be cross-examined unless he consents to be. You may believe this statement in preference to the sworn testimony in the case; you may believe all of it, part of it, or none of it; it is entirely with you as to the weight and credit you will give to the defendant's statement." The portion of the charge, "This statement is not made under oath and the defendant can not be cross-examined unless he consents to be," is excepted to on specific grounds. The exceptions are without merit. A charge in almost the identical language was held to be without error in Willingham v. State, 169 Ga. 142 (7) ( 149 S.E. 887). See also, in this connection, Roberts v. State, 189 Ga. 36 (1) ( 5 S.E.2d 340).
Judgment reversed. All the Justices concur.