Opinion
16095.
FEBRUARY 12, 1948.
Murder. Before Judge Carpenter. Jasper Superior Court. November 4, 1947.
Carlton Mobley and J. B. Jackson, for plaintiffs in error.
Eugene Cook, Attorney-General, C. S. Baldwin Jr., Solicitor-General, and John Sammons Bell. Assistant Attorney-General, contra.
1. As to the general grounds of the motion for new trial, the jury was authorized to find from the testimony of Frank Johnson Jr. that the defendant, Arthur Lee White, shot and killed Thomas Ridley with a shotgun, and then carried and placed the body on the track of the railroad. If such testimony be true, and the jury was authorized to believe it, or any part of it, it would also establish the fact that the joint defendant, J. D. Card, was not present and did not participate in the offense charged in the indictment. Aside from this testimony, the only evidence to connect J. D. Card with the crime was that he and White were together at the home of Laura Odum in the early part of the evening before the morning when the body was found; that J. D. Card "punched" White when White started to make a statement to the sheriff who arrested them; and the testimony of the sheriff that "they [the defendants] admitted to me going over there and borrowing a shotgun from Pollard's wife or going in the house and getting it and admitted putting it in the sewer pipe and admitted shooting but didn't shoot at anybody. They admitted shooting three different times." "Both of them were there when they admitted that." As to the defendant, Arthur Lee White, the evidence is therefore amply sufficient to support the verdict of guilty with a recommendation. But as to the defendant J. D. Card, the evidence is wholly insufficient to support the verdict of guilty. While the evidence may have been sufficient to raise a suspicion, still the law does not allow any one to be convicted of a crime on a mere suspicion of guilt. "While sufficient to raise a grave suspicion, it fails utterly to rise to that dignity required by law in a case of circumstantial evidence; that is, that it must remove every reasonable hypothesis save that of the guilt of the accused." Johnson v. State, 151 Ga. 21 ( 105 S.E. 603). See also Earp v. State, 50 Ga. 513; Warren v. State, 153 Ga. 354 ( 112 S.E. 283); Graham v. State, 183 Ga. 881 ( 189 S.E. 910).
2. Special ground 1 of the amended motion for new trial, assigning error on the failure of the trial court to act on its own motion and exclude the testimony of Frank Johnson Jr. on the ground that the contradictions and inconsistencies in his testimony show that the court abused its discretion in holding the witness competent, is without merit. After a preliminary examination into the mental competency of the witness, the court ruled that he would be permitted to testify, with the credibility to be determined by the jury, and thereupon counsel for the defendants stated to the court, "I think on the showing the solicitor made, you will have to let it go to the jury." Under such circumstances, the court was under no duty to exclude the testimony now objected to, and did not abuse its discretion in permitting him to testify. Gaines v. State, 120 Ga. 137 ( 47 S.E. 571); Langston v. State, 153 Ga. 127 ( 111 S.E. 561); Dodys v. State, 73 Ga. App. 311 (3) ( 36 S.E.2d 164); Gunnells v. State, 199 Ga. 486 ( 34 S.E.2d 654).
3. Error is assigned on the following charge to the jury: "I charge you, gentlemen, that persons who have not the use of reason, as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, are incompetent witnesses." Code, § 38-1607. The criticism urged is: (a) The court should also have charged the contention of the defendants that Frank Johnson Jr. was an incompetent witness because he was an idiot; (b) that, if they found that Frank Johnson Jr. was an idiot, then his testimony should be entirely disregarded; and (c) the charge was confusing, because the court had found the witness to be competent, and then charged the Code section referred to as to idiots being incompetent witnesses. The question of competency of a witness is one of law for determination by the court, but the credibility of a witness is for the jury. The court was therefore under no duty to give the charge complained of, and its submission to the jury was not harmful error to the defendants, but favorable to them. Hicks v. State, 105 Ga. 627, 630 ( 31 S.E. 579); Ellison v. State, 197 Ga. 129 (2) ( 28 S.E.2d 453). And had the court charged as contended in (b), it would have been error, since the court had previously ruled the witness competent. Reece v. State, 155 Ga. 350 (1 b) ( 116 S.E. 631). When the charge complained of is considered in connection with the charge as a whole, it is not subject to the criticism in (c), and if it could possibly be construed as confusing, it would not be such an error as the defendants could complain of. Hall v. Turner, 198 Ga. 763 (6) ( 32 S.E.2d 829).
4. In the charge to the jury on the law of conspiracy the court charged that, if no conspiracy or concert of action be found, then each person would be responsible for his own acts. Since it has been held in the first head note of this opinion that the evidence against the defendant, J. D. Card, was insufficient to support the verdict of guilty, it becomes unnecessary to consider the complaints against this charge.
5. "It is not a valid attack upon an instruction, which within itself is appropriate and a sound rule of law, that the court did not also charge another appropriate and sound principle of law." Jones v. State, 197 Ga. 604, 610 ( 30 S.E.2d 192). Special ground 4 of the motion for new trial, complaining that the charge on circumstantial evidence, which included the language of the Code, § 38-109, and which charge is not contended to be erroneous in itself, but incomplete, is therefore without merit. Seats v. State, 122 Ga. 173 (3) ( 50 S.E. 65).
The judgment denying the motion for new trial is affirmed as to the defendant, Arthur Lee White, and reversed as to the defendant, J. D. Card. All the Justices concur, except Bell, J., absent on account of illness, and Wyatt, J., who took no part in the consideration or decision of this case.
No. 16095. FEBRUARY 12, 1948.
Arthur Lee White and J. D. Card were jointly indicted, tried, and convicted of the murder of Thomas Ridley, with a recommendation of mercy. The exception here is to the judgment overruling their joint motion for new trial.
The evidence introduced by the State made out substantially the following case:
The mutilated body of Thomas Ridley was found on the track of the Central of Georgia Railroad, on Monday morning, May 19, 1947. From the point where it appeared to have been first hit, it had been dragged approximately 150 feet before being run over. A considerable portion of the torso was missing. An employee of the railroad testified that the body was run over by the train that passed there between 9:15 and 9:30 the night before. There was very little evidence of blood on the track. A small spot of blood was found about 20 feet from the track in a path which runs from the railroad to Laura Odum's house. Farther on, and about 50 feet from the track, and 6 or 8 feet to the side of the path, there was another spot of blood about 18 inches in diameter. Both the defendants were arrested later that morning on information given to the sheriff by Pollard Garland, who testified that he talked with Arthur Lee White that morning, and said to him, "Nobody did that but you and J. D.;" and that White replied, "You talk too much." The sheriff testified: When he received the report from Garland, he immediately left to look for the defendants, and apprehended J. D. Card on a truck which was headed towards Hillsboro. White, who was at a house farther on down the same road, saw him approaching, and ran. He sent his car back for the bloodhounds, and White then came back to the house and was apprehended. On returning with the defendants, he asked White why he ran off if he was not guilty of killing Thomas Ridley. White replied, "Mr. Frank, I tell you the truth —." On that J. D. Card punched White, and since then White has talked very little. Later the defendants admitted borrowing a shotgun from Pollard Garland's wife, or getting it from that house, putting it in the sewer pipe, and shooting it three different times, but denied shooting at anybody. Minnie Garland, the wife of Pollard, testified: That the night before the body was found, Arthur Lee White came to her house and got the shotgun; and that he did not answer her when she told him to put it down. She heard only one shot that night, which was between 12 and 1 o'clock, and when White returned the gun. She saw White early the next morning, before the body was found, standing on a small hill, looking back toward the railroad. He went behind a bunch of sweetgum trees, and she saw him next as he crossed the railroad. Later he came to her house and got a bed sheet to put the body in. The sheriff testified that a person could stand on the small hill referred to and see an object on the track at the place where the body was found; and that the hill was about 100 yards from the track. Ham Ezell testified that he saw White on the railroad before he was arrested, and he appeared to be very nervous. He did not see J. D. Card at that time. Laura Odum testified: That she lives near the railroad and the place where the body was found; that her two daughters had been going with the defendants; that White and Card came to her house around sundown the night before the body was found, and left around 9 o'clock; that she heard two shots after the defendants left, and around 9:30 or 10:00 o'clock, and a third shot later in the night; and that a small, little-used path leads from her house to the railroad. Other witnesses testified to seeing three negroes standing in the road, near the sewer pipe, about 12 o'clock that night, one of whom had a shotgun, but they were unable to identify either of them. The only evidence of a possible motive for the alleged killing was given by Pollard Garland, who testified that about one month before, he, White, Ridley, and others were in a "skin game," and in a fight; that White was hit on the head; and that White first told him that Ridley did it, but later said that it was done by another. The only eyewitness to the alleged killing was Frank Johnson Jr. Counsel for the defendants objected to his testifying on the ground that he was an idiot and therefore incompetent as a witness. After an examination by the solicitor-general, the court ruled that the witness was competent. Counsel for the defendants then stated to the court: "I think, on the showing the solicitor made, you will have to let it go to the jury." This testimony was as follows: "I knew Cudge [Thomas Ridley]. I saw him but didn't know him. He is dead. He got killed by a gun, a shotgun. Snapper [Arthur Lee White] shot him. There is Snapper. He is that tall boy there. He got shot once with that shotgun. Snapper shot him once. That other boy there is J. D. [Card]. J. D. did not do nothing. He did not get the shotgun after Snapper shot him. Buckshot were in that gun. It was Pollard Garland's gun. Pollard's wife is named Minnie. Pollard did not live far from where J. D. lived. Snapper went over there and got Pollard's gun. He hid it under the sewer pipe when he got it. The sewer pipe was down by Mr. Bud Odum's house, at the paved road going by Bud Odum's house. Cudge was killed on Sunday night. It was a dark night. He was killed on Miss Minnie's back porch. After he was killed he was carried to the railroad. Snapper carried him. Nobody helped him. I did not help tote him. J. D. was home. I did not have his feet or hands when carried to the railroad. Nobody had his feet and nobody had his hands. I ain't never killed anybody. Nobody but Snapper toted him to the railroad. I think the train ran over him. I did not see him after the train ran over him. I did not go down there next morning. They got the shells over at Miss Minnie's house. Miss Minnie's husband lives with her. I know J. D. He lives with her. That is Miss Minnie's grandboy. The holes hit him up there; three holes hit him. Three shots were made in him. Snapper made them. Cudge, the boy that got shot, didn't say nothing. When he had the gun pointed at him he told him not to kill him, said `Don't kill me.'" Cross-examination: "He told Snapper not to kill him. Snapper shot him one time, that is all. . . I never told anybody before that J. D. Card shot Thomas Ridley. He didn't shoot him. Snapper, the other man, didn't shoot him but once. Thomas Ridley or Cudge was not trying to do anything to him when he shot him. I think they had a fuss in Hillsboro. It has been a long time since they had that fuss. This killing took place on Frank Goolsby's back porch. I haven't seen Willie Joe Winbush come up there with a gun. I did not see anybody take a gun from anybody in the road . . . I did not tell anybody that this boy was killed down there at the sewer pipe by Bud Odom's house. I did not tell you that I did not see anybody kill this boy. I didn't tell you nothing. I didn't kill him. I didn't even know the boy, never saw him in my life, don't know anything about him. They have been trying to lay it on me, that I killed him. I don't even know how to shoot a gun, I haven't seen Cudge at all; if I saw him, I didn't know him. If I were to see him I would not know him. I didn't see him that night and haven't seen him since. I didn't see him the night these boys were said to have killed him. I didn't know anything about this killing. I don't want to be bothered any more about it." Redirect examination: "Three shotgun holes got out of the boy's body with a pocket knife. Snapper cut them out, after he was shot. Snapper put the gun in that sewer pipe. Snapper got it out when Cudge came along. The dead body was toted to the railroad track down the road. I know where Garland lives. There is a path leads by Odum's house by a little outhouse where they go. There is a road straight on to Minnie's house. Cross the railroad and that path goes off to the side. J. D. didn't help take the body to the railroad track. The body was carried down the path, not down the road." Recross examination: "I told you I didn't know who killed the boy, if he was killed, and I told you the truth."
Both the defendants made statements to the jury, in which they denied having any knowledge of the alleged killing. J. D. Card stated that he saw White and Willie Joe Winbush the evening before the body was found, and that Winbush had a shotgun; that he got the gun from Winbush and shot it once in the air. He denied having seen Ridley that day, however, Ham Ezell testified that he saw Card, Ridley, Snapper, and others together at a place near the church late that evening. White stated that he got the shotgun from Pollard Garland's house and hid it in the sewer pipe, but didn't shoot it. Both defendants stated that the deceased had been accustomed to stealing rides on the passing trains.