Summary
In Jones v. State, 223 Ga. 157, 154 S.E.2d 228 (Ga. 1965), the Georgia Supreme Court held that evidence showing that the defendant carried his victim's body to the rear of the victim's home and buried it after he shot her was properly placed before the jury as a "circumstance indicating his consciousness of guilt of the crime of murder."
Summary of this case from Williams v. StateOpinion
23770.
ARGUED NOVEMBER 14, 1966.
DECIDED FEBRUARY 23, 1967. REHEARING DENIED MARCH 9, 1967.
Murder. Bibb Superior Court. Before Judge Bell.
Wilbur D. Owens, Jr., for appellant.
Jack J. Gautier, Solicitor General, Fred M. Hasty, Arthur K. Bolton, Attorney General, G. Ernest Tidwell, Executive Assistant Attorney General, Carter A. Setliff, Assistant Attorney General, for appellee.
1. It was not error to deny the defendant's plea in abatement challenging the composition of the grand jury which indicted him, or to deny his challenge to the array of traverse jurors.
2. The jury was authorized to find that there was sufficient evidence to refute the defendant's assertion in his incriminatory admissions that the homicide was accidental.
3. The charge on the defendant's incriminating admissions was substantially correct, and was not harmful to him.
ARGUED NOVEMBER 14, 1966 — DECIDED FEBRUARY 23, 1967 — REHEARING DENIED MARCH 9, 1967.
Alexander David Jones was convicted in Bibb Superior Court for the murder of Dollie Fleming and received a life sentence. This appeal is from the verdict and judgment of conviction and the sentence. The defendant enumerates as error the judgment overruling his motion for new trial on the general grounds, and specifies several other assignments of error.
The evidence showed that: Carrie Haynes, a granddaughter of the deceased, visited her between 10 and 11 a. m. on Saturday, February 13, 1965, at her home on Adams Street in Macon. The defendant was there during her visit. He was seated in a chair in the room of the deceased, but did not engage in the conversation between the two. The witness noticed a partially prepared meal in the kitchen, composed of string beans and fish. As she was leaving, the deceased told her that the defendant had been there long enough because she wanted to cook and did not want to cook while he was there, and that she was going to ask him to leave. The witness did not see the deceased alive again.
Joe White, a neighbor of the deceased, testified that he saw her Saturday, February 13, at about 9 a. m., when she requested him to buy her some beer with two dollars she gave him. After he returned with the beer and gave it to her he did not see her alive any more. On Monday, February 15, he stopped by to check on the deceased, as she had requested him to do, and noticed a "for rent" sign on the front porch. He looked in the house through a window and saw a sheet on the bed, but no cover. He also saw her glasses which she generally wore when she left the house. He got a neighbor to help him inspect the premises in search of the deceased, and found she was not there. City detectives were notified and appeared a few minutes later. After their arrival, the witness, at their request, entered the house through a window. The partially prepared meal was in the kitchen, and there were blood smears in several places in the bedroom, and a spot of blood on the back steps. The witness pointed out some fresh dirt partially covered with boards in the enclosed back yard. At the request of an officer he began to dig into the fresh dirt with a shovel which was nearby. The clothes and body of a person were discovered.
The body was identified as that of Dollie Fleming. The State offered no evidence as to the proximate time of her death between Saturday, February 13, at 11 a. m., and Monday, February 15. She was a small, elderly woman.
Dr. Leonard H. Campbell, Medical Examiner of Bibb County, testified that an examination of the body showed three gunshot wounds, which had been distorted in some manner so that they appeared to be stab wounds. The fatal wound was about one-half inch above the right ear. The bullet causing this wound passed downward and the exit wound was slightly to the left of the nostrils. Another bullet entered about three inches below and to the right side of the umbilicus, and the third bullet entered the right hip.
No spent bullets were found in the house. A small fragment of a bullet was found in the cranial cavity of the deceased, and this fragment contained signs of a coating similar to that applied to standard .38 caliber cartridges.
Nellie Curry testified that she lived on the opposite side of a railroad track from the home of the deceased, and that she saw the defendant Saturday night, February 13, walking on the railroad track in a direction away from the home of the deceased.
At an early hour on Saturday, February 20, the defendant was found by city policemen in an abandoned house on Parker Avenue, hidden behind a couch. The police had permission from the caretaker to enter the house. They entered through a window and used flashlights to conduct their search. After arresting the defendant for loitering, they searched the house and found an old .38 caliber pistol that was broken, and a box of .38 cartridges in a dresser drawer. There were three cartridges missing from the box. They also observed that someone had been living in the house. Later during the day they returned and found another .38 caliber pistol, a Smith Wesson, fully loaded and freshly cleaned and oiled. This pistol was found under the mattress of the bed, wrapped in a woman's slip. No ballistic tests were introduced, and the ownership of the pistol was not traced to either the deceased or the defendant.
After being questioned for several hours by the officers about the homicide, the defendant made a written statement. This statement was not introduced in evidence, but Officer Chaney testified that the defendant stated to them as follows: "He stated that on February 13th, Saturday, at around 11 a. m., he went to Dollie Fleming's house on Adams Street, that he went in, he went into the house and she was alone in the house and that he visited with her for a period of time, that she offered him a drink and that he accepted and that she mixed him a drink which he drank and that it made him dizzy or drunk and that she ordered him from the house, that he got up to leave the house, that he staggered and she pulled a pistol from a cabinet and pointed it at him and that he struggled with her and that he accidentally shot her three times during this struggle, that he then carried the body to the rear of the house and buried it, that he covered it with concrete block and board, that he cleaned the blood up in the house with the bed linen off the beds, that he carried this bed linen to a field in the vicinity of Ward Street and Persley Avenue and that he disposed of the linen by throwing it in some bushes there, that he then went home or to where he was living." The witness stated that the defendant then voluntarily went with the officers to the home of the deceased and showed them where the homicide occurred, and where he had buried the body. The defendant told them that he did not leave the home of the deceased until it was dark.
1. Prior to the trial of the case the defendant filed a plea in abatement asserting that the indictment was returned by a grand jury selected from a jury list which had been compiled in an illegal manner and in violation of the Fourteenth Amendment to the Constitution of the United States, in that the jury commissioners of Bibb County intentionally and systematically excluded eligible and qualified Negro citizens from the jury list. In the fourth assignment of the enumeration of errors it is contended that the trial court erred in the denial of this plea. In the fifth assignment it is asserted that it was error to deny the defendant's challenge to the array, which challenged the composition of the traverse jury list.
Counsel for the State and the defendant stipulated that according to the 1960 United States census the total population of Bibb County was 141,249, of which 47,131 were persons of the Negro race. Of the total population of Bibb County, 81,133 persons were 21 years of age and over, and of these, 24,894 were nonwhite persons. On the tax digests of Bibb County for 1963 there were 34,312 white persons and 8,434 Negroes.
Counsel for the defendant has submitted a supplemental brief citing the recent decision by the Supreme Court of the United States in Whitus v. Georgia, 385 U.S. 545 ( 187 S.C. 643, 17 L.Ed.2d 599), which reversed the decision of this court in Whitus v. State, 222 Ga. 103 ( 149 S.E.2d 130). In the decision by the Supreme Court of the United States it was held that the proof showed a prima facie case of purposeful racial discrimination in the selection of grand and traverse jurors in Mitchell County, where Whitus was tried. The Supreme Court pointed out that the jurors were selected from tax digests maintained on a racially segregated basis, which gave an opportunity for discrimination, and that the disparity between the percentage of Negroes on the tax digest and those on the jury lists strongly pointed to the conclusion that discrimination was present. It was further held: "The State offered no explanation for the disparity between the percentage of Negroes on the tax digest and those on the venires, although the digest must have included the names of large numbers of `upright and intelligent' Negroes as the statutory qualification required. In any event the State failed to offer any testimony indicating that the 27.1% of Negroes on the tax digest were not fully qualified. The State, therefore, failed to meet the burden of rebutting the petitioners' prima facie case."
It is the view of this court that the present case is distinguishable from the Whitus case decided by the Supreme Court of the United States. The evidence in the present case showed that the percentage of Negroes on the 1963 tax digests was approximately 20%. The only evidence as to the number of Negroes selected for the traverse jury list (which was used in selecting the grand jury list) was that the solicitor knew approximately 285 of the 5,665 persons selected were Negroes, approximately 5%. The names were selected from three tax digests, two of which were separated as to Negro and white persons.
Testimony in regard to the selection of the jury lists was as follows: The jury commissioners selected the jurors from the tax digests, and used the standard required by law in selecting jurors, that they be upright and intelligent citizens. No person was excluded from the jury list because of race. Every name on the tax commissioners' records was called out before the jury commissioners, and each person was considered as a possible juror. In selecting the jurors, the commissioners used materials such as the previous jury book, the city directory, their personal knowledge, and questionnaires mailed to taxpayers. They considered such factors as the handwriting and spelling on the tax returns and on the questionnaires, and whether taxpayer had been bankrupt, had a police record, or had been convicted of a crime.
All public officers are presumed to have discharged their sworn official duties. Kirk v. State, 73 Ga. 620 (3b); Horne v. State, 170 Ga. 638, 640 ( 153 S.E. 749); Cornelious v. State, 193 Ga. 25, 32 ( 17 S.E.2d 156); Thompson v. State, 203 Ga. 416, 418 ( 47 S.E.2d 54); Cole v. Foster, 207 Ga. 416, 421 ( 61 S.E.2d 814). Under the testimony in this case we can not assume that the jury commissioners did not eliminate prospective jurors on the basis of their competency to serve, rather than because of racial discrimination.
2. The first two assignments of error pertain to the sufficiency of the evidence to sustain the verdict, and it has been strongly urged by counsel for the defendant that the evidence was insufficient to support the verdict. The defendant made a statement to the officers investigating the homicide in which he admitted that he killed the deceased, but claimed that the homicide occurred in a struggle over a pistol which the deceased had pointed at him.
It is the general rule that: "A jury in passing upon a confession or an incriminating admission may, if they see proper, accept a part thereof as true and reject a part thereof as false." Cook v. State, 114 Ga. 523 ( 40 S.E. 703); Smith v. State, 202 Ga. 851, 859 ( 45 S.E.2d 267). It is also the rule in regard to incriminating statements that: "An admission of the main fact, from which the essential elements of the criminal act may be inferred, amounts to an admission of the crime itself. If the main fact is admitted with a qualifying exclusion of a necessary ingredient of the crime charged, the crime is not confessed. The qualification is a part of the admission, and both must be considered in interpreting the meaning of the statement. It would be manifestly unfair to hold a person criminally bound by a statement which admits the commission of an act and in the same breath legally justifies or excuses the same." Owens v. State, 120 Ga. 296, 299 ( 48 S.E. 21); Futch v. State, 90 Ga. 472, 481 ( 16 S.E. 102).
There is little evidence to connect the defendant with the homicide apart from his incriminating admissions. His own admitted conduct is, perhaps, the strongest circumstance indicating his guilt of the crime of murder. In his statement he admitted that after he shot the deceased he carried her body to the rear of her home and buried it. This action might have been prompted by fear of the consequences of the homicide, but the jury was authorized to consider it as a circumstance indicating his consciousness of guilt of the crime of murder. See Hixon v. State, 130 Ga. 479 (2) ( 61 S.E. 14); Drake v. State, 221 Ga. 347 (1) ( 144 S.E.2d 519).
The evidence disclosed that the body of the deceased had three gunshot wounds. The bullet producing the fatal wound entered above the right ear, passed downward, and the exit wound was left of the nostrils. The other two wounds were in the right hip and to the right side below the umbilicus. Both of these bullets passed slightly upward through the body. All of the bullet wounds had been distorted in some manner so that they had more the appearance of stab wounds than bullet wounds, and it was only after an internal examination of the wounds that it was determined that they had been made by bullets. Since the defendant admitted that he buried the body of the deceased, he must have distorted these wounds in some manner before the burial. The evidence of this distortion of the wounds and the evidence as to the position of the wounds could have been considered by the jury as circumstances to refute that part of the defendant's statement in which he asserted that the killing was accidental in a struggle over the gun. We can not say as a matter of law that there was not sufficient evidence to support the verdict of the jury.
3. The third assignment of error complains of a portion of the charge as follows: "Gentlemen, I charge you that ordinarily the jury in considering an admission which is partly inculpatory and partly exculpatory may believe it in part and disbelieve it in part and this rule by the very terms of the statute is especially applicable to the statement of the defendant. However, where the State must rely upon the defendant's admission alone for essential elements of the case, this rule does not apply to the extent that a verbal segregation of what the defendant said is to be permitted. If the main fact is admitted with a qualifying exclusion of a necessary ingredient of the crime charged, the crime is not confessed. The qualification is a part of the admission and both must be considered in interpreting the meaning of the statement. It would be manifestly unfair to hold a person criminally bound by a statement which admits the commission of an act and in the same breath legally justifies or excuses the same."
The language of this charge, with the exception of the first sentence, is almost identical with a part of the fourth division of the opinion by the Court of Appeals in Wall v. State, 5 Ga. App. 305, 308 ( 63 S.E. 27). A part of the language is a quotation from Owens v. State, 120 Ga. 296, 299, supra. This charge was substantially correct, and was not harmful to the defendant.
Judgment affirmed. All the Justices concur.