Opinion
14588.
JULY 8, 1943.
Murder. Before Judge Mundy. Paulding superior court. April 15, 1943.
W. L. Denton and C. B. McGarity, for plaintiff in error. T. Grady Head, attorney-general, Hal C. Hutchens, solicitor-general, W. A. Foster Jr., R. U. Harden, assistant attorney-general, contra.
1. Under the evidence relating to the place where the alleged offense was committed, the jury were authorized to find that the venue was proved as laid in the indictment.
2. The judge charged the jury as follows, on reasonable doubt: "You will notice that I have charged you that before you would be authorized to convict the defendant, his guilt must be made to appear to you beyond a reasonable doubt. Those words have their ordinary and usual meaning; that is, the words `reasonable doubt.' I may say that a reasonable doubt is an actual doubt that you are conscious of after going over in your minds the entire case, giving consideration to all the evidence and every part of it, and the defendant's statement. If you then feel uncertain and not fully convinced that the defendant is guilty, and believe that you are acting in a reasonable manner, and if you believe that a reasonable man, in any matter of like importance, would hesitate to act because of such doubt as you are conscious of having, that is a reasonable doubt, of which the defendant is entitled to have the benefit." Held, that this charge was not erroneous, as contended, on the ground that "an actual doubt is not a reasonable doubt, but is greater and stronger than a reasonable doubt."
3. The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
No. 14588. JULY 8, 1943.
Marlin Hancock was indicted for murder in the alleged killing of Hoke Mosley, and was convicted, without recommendation. He moved for a new trial on the general grounds, and by amendment added two special grounds, one contending that there was no sufficient proof of the venue as alleged, and the other assigning error on a portion of the court's charge. The motion was overruled, and the defendant excepted.
The following facts appeared without dispute from the evidence: The defendant, together with Floyd Ward, Clarence Shepard, J. B. Cole, and others, were at the home of the deceased, Hoke Mosley, on the night of January 17, 1943. Cole and Shepard had come to the place in an automobile belonging to Cole. About ten o'clock Shepard, Ward, Mosley, and Hancock, with three daughters of Mosley and a daughter of Hancock, left the house in this automobile and went to the store of Lee Shipp, where some of them purchased cigarettes and soft drinks. Clarence Shepard was driving, and in the front seat with him were Hoke Mosley, and Frances Mosley, fifteen years of age. In the rear seat were Floyd Ward, Marlin Hancock, Josephine Hancock, age thirteen, and Merle and Inez Mosley, ages eight and twelve years respectively. It appeared that the men had been drinking, but not that they were intoxicated. Before midnight, Shepard and Mosley were found lying in the road leading from the store to Mosley's home, severely wounded as by beating. They were taken to a hospital, where Mosley died on the following day. Shepard recovered. At the place where Shepard and Mosley were found were several bottles which had been broken and were covered with blood and hair, and an automobile lug wrench which was also bloody and covered with hair. The evidence for the State tended to show, that after the party in the automobile left Shipp's store, the defendant stated to Shepard that he wanted to drive the car; that the deceased objected, and these two "got into a quarrel;" that the two younger daughters of the deceased and the daughter of Hancock became frightened by this dispute and left the car when it was "slowed up;" that the car was later stopped by Clarence Shepard, the driver, for the purpose of letting the girls re-enter it, when the defendant struck him with a pepsi-cola bottle, and "Clarence fell out of the car, and Hancock commenced stomping his head;" that the defendant then struck the deceased in the face with a bottle, and also struck Floyd Ward as Ward left the car; that Ward and the deceased's oldest daughter Frances then went to a nearby residence seeking assistance, and after their departure the defendant further assaulted Shepard and the deceased with bottles and an automobile lug wrench; that before the return of Ward to the place the defendant had driven the car a short distance; and that he was listening to a radio thereon when Ward and others arrived.
Floyd Ward, after testifying as to what occurred on the night of the homicide, stated: "This happened in Paulding County." Clarence Shepard testified: "As I got across the bridge I commenced to stop the car. The next thing that happened, I got hit on the head and don't know what else happened. I was knocked unconscious. . . Where I was at the time I was hit was in Paulding County, Georgia." As indicated above, the other evidence showed that when he was hit he fell out of the car; and it appeared also that the beating of Mosley occurred within about five steps from this point.
Inez Hancock, for the defendant, testified: "I am thirteen years old. I am a daughter of Mr. Hancock. . . I went with my father and Mr. Mosley and Mr. Ward and Mr. Shepard and the little Mosley girls. My father and I went to Mr. Mosley's that night. After we got there we went to Lee Shipp's store in a car driven by Mr. Shepard. Those who went, besides Mr. Shepard and my father and Mr. Mosley, were Mr. Ward and Frances and Merle and Josephine, all Mr. Mosley's daughters. I didn't do anything at the store. We bought some coca-cola from Mr. Shipp. We started back home after that. I remember where Mr. Turner lives and where Mr. Bell lives. This trouble happened at the bridge just beyond Mr. Bell's house. There had been no trouble between Mr. Mosley or Mr. Shepard or my father until we got along there about Mr. Bell's house and the little bridge. Merle and Josephine got out of the car along about Turner's house. I didn't get out there. After they got out, the car came on down there to the little bridge. After the little girls and my father and Mr. Mosley got out of the car, that left Mr. Shepard and Mr. Ward and me and Frances in the car. Frances and Mr. Shepard were in the front seat. Me and Mr. Ward were in the back seat. After my father and Mr. Mosley got out, Ward pulled up my dress and felt of me under my dress. I went and told Daddy about it. He was just a little piece from the car when it happened. I went and told my father that Mr. Ward went and pulled up my dress and felt of me. After that, Ward went and got out of the car. Mr. Mosley got in the back of the car after he got out. My father was not in the car then. Mr. Mosley went and pulled up my dress. As to where my father was then, Mr. Ward went and taken him up above the car; he went toward my father; he went and told him he wanted to talk to him. After I called my father he came to the car. Then Mr. Shepard had a fight; he told Daddy he was going to cut him. Daddy went and hit Mr. Shepard before I left there, I don't know what he hit him with. As to whether he hit Mr. Mosley any time before I left, I left when it started, I got scared and left. I hadn't been out of the car until the row started."
The defendant made the following statement: "Well, I went to Mr. Hoke Mosley's that night and found his wife and Mr. Mosley there, and his wife told me that Money Ward and Clarence Shepard was gone after some whisky, and if I would stay around I would get some of it to drink when they come back. So they come back after a while, and we passed the whisky around and all took a drink apiece, and we got out there, and some of them said something about going to the store, and we all agreed to go to the store, and we went to the store and got some cigarettes, and I don't know what all they bought, and started on back down this side of ____ on the hill, above Mr. ____ I can't think of his name, above the bridge there. They stopped the car, and me and Mr. Mosley got out of the car and was standing there talking and the two little girls got out with us. Well, Clarence Shepard and my little girl and Frances Mosley was still in the car, and we took another drink there, and while me and Hoke was standing there they started the car off, Shepard did. They rolled on down above the bridge, and me and Hoke went on down there where they were, and they were sitting in the car when we got down there; and so when I walked up to the car Ward told me to come there, he wanted to see me and tell me something, I don't remember what he said he wanted to tell me. We walked behind the automobile, and I heard my little girl holler for me to run there, and I run up to the car and Hoke was in the back seat with her and had her dress up and was feeling of her, and it made me so mad I didn't know what to do, and Ward run up and hit me with something. I got so mad I don't know what happened. I commenced hitting with anything I could get hold of, I don't remember whether I hit with rocks or tire tools or what; it made me so mad the way they were doing my little girl, and she told me Money Ward was doing the same thing just before I got down there; and all the kids jumped out and run off after we all got started to fighting. Inez and Frances got out of the car and run, and the other little kids come on behind me and Mr. Hoke. That's all I know about it."
1. The first special ground of the motion for new trial alleged that the State failed to prove by sufficient evidence that the crime of which the defendant was convicted was committed in Paulding County, in that "the only evidence offered by the State on this question was that of Floyd Ward. . . This witness, after testifying to a number of transactions which happened at a number of places, testified as follows: `This happened in Paulding County.' Defendant insists that this evidence is not sufficient to show that the deceased, Hoke Mosley, was killed in Paulding County." As shown in the record, Floyd Ward, after reciting what had happened on the night in question, stated, "This happened in Paulding County." The statement quoted was made at the end of the direct examination of this witness, and reasonably applied to all the events as to which he had testified, as if he had said, "all of this happened in Paulding County." There was nothing in his testimony to indicate otherwise; and we think the statement could be taken to mean that Hoke Mosley was struck in the face by Hancock with a bottle, at the same location where Shepard was struck and fell out of the car, and where both Shepard and Mosley were later found in the road, each in helpless condition, and the latter mortally wounded.
Furthermore, as also appears in the record, Clarence Shepard testified: "The next thing that happened, I got hit on the head and don't know what else happened. I was knocked unconscious. . . Where I was at the time I was hit was in Paulding County, Georgia." Venue, like any other fact, may be shown by circumstantial as well as direct evidence. We think the testimony of these two witnesses and the circumstances sufficiently proved that the wounds from which Mosley died were inflicted in Paulding County. See Lee v. State, 176 Ga. 215 (2) ( 167 S.E. 507); Berry v. State, 185 Ga. 334 ( 195 S.E. 172); Dickerson v. State, 186 Ga. 557 (2) ( 199 S.E. 142); Martin v. State, 193 Ga. 824 (4) ( 20 S.E.2d 266). The case differs on its facts from Futch v. State, 90 Ga. 472 ( 16 S.E. 102), Green v. State, 110 Ga. 270 ( 34 S.E. 563), and Jones v. State, 113 Ga. 271 ( 38 S.E. 851), cited for the plaintiff in error.
2. The judge in his charge instructed the jury: "You will notice that I have charged you that before you would be authorized to convict the defendant, his guilt must be made to appear beyond a reasonable doubt. Those words have their ordinary and usual meaning, that is, the words `reasonable doubt.' I may say that a reasonable doubt is an actual doubt that you are conscious of, after going over in your minds the entire case, giving consideration to all the evidence and every part of it, and the defendant's statement. If you then feel uncertain and not fully convinced that the defendant is guilty, and believe that you are acting in a reasonable manner, and if you believe that a reasonable man, in any matter of like importance, would hesitate to act because of such doubt as you are conscious of having, that is a reasonable doubt, of which the defendant is entitled to have the benefit." In special ground 2 the movant "insists that when the court used and gave in charge to the jury: `I may say that a reasonable doubt is an actual doubt that you are conscious of,' erred, because an actual doubt is not a reasonable doubt, but is greater and stronger than a reasonable doubt. The word `actual' means, certain, true, authentic, unquestionable doubt." It is thus seen that the only criticism of the charge is that the court used the word "actual." We have been unable to find any decision by the courts of this State upon the exact question, but this court has held that an instruction that a reasonable doubt is one for which a reason can be given is not error. Vann v. State, 83 Ga. 44 (4) ( 9 S.E. 945); Jordan v. State, 130 Ga. 406 ( 60 S.E. 1063); Hudson v. State, 153 Ga. 695 (12), 707 ( 113 S.E. 519). It would seem that any doubt for which a reason could be given would be an actual doubt. In Dumas v. State, 63 Ga. 600 (8), it was held that there was no error in charging, "if after an honest and impartial examination your minds are wavering, unsettled, unsatisfied, that is the doubt of the law, and you should acquit; if that doubt does not exist, you should convict." A doubt could not exist without being actual. It is stated in 20 Am. Jur. 1109, § 1257, that "All the authorities agree that to constitute a reasonable doubt there must be actual and substantial doubt of the defendant's guilt arising from the evidence, or from a want of evidence, as contradistinguished from a mere vague apprehension." In 23 C. J. S. 845, § 1274, it is stated: "As a general rule a charge is correct which describes a reasonable doubt as an actual, honest and substantial misgiving or doubt of guilt reasonably arising from the evidence or want of evidence, as opposed to a mere captious, possible, or ill-founded doubt." See also Holt v. U.S., 218 U.S. 245 ( 31 Sup. Ct. 2, 54 L. ed. 1021, 20 Ann. Cas. 1138); Hiller v. State, 116 Neb. 582 ( 218 N.W. 386, 58 A.L.R. 1322). The charge was not erroneous as contended.
3. Counsel for the plaintiff in error argues that "The evidence for the State did not show any motive, cause, or malice for the killing," and "that killings just do not happen this way." In Davis v. State, 74 Ga. 869 (4), this court approved the following charge: "You may inquire whether there was any motive on the part of the defendant to induce him to take the life of the deceased; and if there was any motive, what that motive was. If you find there was no motive on his part to commit the act, you may consider it, especially if the evidence leaves the defendant's guilt at all doubtful, in deciding whether the defendant is guilty or not. Yet, if the evidence shows the commission of the crime, and you are satisfied, beyond a reasonable doubt, that the defendant committed it with malice aforethought, either expressed or implied, and if the circumstances are consistent with his guilt, and inconsistent with any other reasonable hypothesis than that of his guilt, then, though the evidence may not disclose a motive, you would be authorized to find the defendant guilty." See also Barnett v. State, 136 Ga. 65 (2) ( 70 S.E. 868); Hunter v. State, 188 Ga. 215, 218 ( 3 S.E.2d 729); Anderson v. State, 196 Ga. 468. Under the principle ruled in the Davis case, the failure of the evidence to show any motive for the homicide did not render the defendant's conviction unlawful. However, the evidence in this case would have authorized the jury to find that there was a motive for the killing, in that the defendant became angry when he was not permitted to drive the automobile.
While the testimony of the defendant's daughter and the defendant's statement tended to show mitigation, several witnesses testified to the contrary. The evidence authorized the verdict, and the court did not err in refusing a new trial.
Judgment affirmed. All the Justices concur.