Opinion
36396.
DECIDED NOVEMBER 19, 1956.
Voluntary manslaughter. Before Judge Lilly. Thomas Superior Court. July 11, 1956.
Merlin H. Holland, for plaintiff in error.
The court erred in denying the motion for new trial on all of the special grounds.
DECIDED NOVEMBER 19, 1956.
Alton Wilson, Jr., and Ruth Knowles Wilson, husband and wife, were jointly indicted on June 15, 1955, for the killing of L. M. Rachels, by striking and beating Rachels with a certain blunt instrument and like instruments, a more accurate description to grand jurors unknown. When the case was called, the defendant asked for a severance and the State elected to try Ruth Knowles Wilson, hereinafter called the defendant. The jury returned a verdict of guilty of voluntary manslaughter against the defendant. The defendant filed a motion for a new trial on the statutory grounds and thereafter added five special grounds.
We deem it expedient to quote the special grounds, since they are overlapping and we can get a better view by considering them together. They read as follows: "1. Movant says that she should be granted a new trial for the following special reasons: (a) While the witness Jessie Thompson was on the stand testifying as a witness for the State, on direct examination by the solicitor-general, she was allowed to testify, over defendant's objections, as follows, to wit: `That after she and the others discovered that L. M. Rachels was dead, the defendant, Ruth Knowles Wilson, proposed to hide the body of the deceased under a bridge and afterwards aided her husband in hiding the corpse under a bridge. When the said evidence was offered by the State, the defendant, through her counsel, then and there objected to the allowance of the same on the ground that such testimony was irrelevant to any offense embraced in the indictment for murder then and there on trial but tended to show a separate and distinct offense to wit, the offense of accessory after the fact to the killing of L. M. Rachels, and was therefore highly prejudicial to the rights of this defendant.'
"The court then and there overruled the said objections and allowed the said testimony to go to the jury; to which said ruling of the court, the defendant then and there excepted, now excepts and assigns the same as error.
"2. Movant assigns error for the following special reasons: (a) While the witness, A. C. Singletary, Jr., was on the stand testifying as a witness for the State, on direct examination, by the solicitor-general, he was allowed to testify over defendant's objections as follows, to wit: `That after he and L. M. Rachels had arrived in Thomasville on June 13, 1955, after completing their regular work day that Ruth Knowles Wilson met L. M. Rachels at the train station and she and Mr. Rachels carried him (A. C. Singletary, Jr.) home. The witness was also allowed to testify that for several years he had known the illicit relationship between L. M. Rachels and Ruth Knowles Wilson.'
"When the said evidence was offered by the State, the defendant, through her counsel, then and there objected to the allowance of the same on the ground that such testimony was irrelevant and immaterial to any offense embraced in the indictment for murder then and there on trial but only tended to put in issue the character of the defendant, Ruth Knowles Wilson, which had not been put in issue by the defendant and was therefore highly prejudicial to the rights of the defendant.
"The court then and there overruled the said objections and allowed the said testimony to go to the jury; to which said ruling of the court the defendant then and there excepted, now excepts and assigns the same error.
"3. Movant assigns error for the following special reasons: (a) While the witness, L. R. Wilcox, was on the stand testifying as a witness for the State, on direct examination, by the solicitor-general, he was allowed to testify over defendant's objection, as follows, to wit: `I was a member of the G.B.I. on the 15th of June, 1955, and I am familiar with the river that separates Lowndes and Brooks Counties.'
"He further testified, over objections: `Sheriff Jones of Brooks County called me and told me to meet him at the bridge. Sheriff Jones said that he had just received word that there was a body down under the bridge. I arrived at the river bridge on the night of June 15th or early morning of June 16, 1955. When I arrived there I saw the defendant who is on trial, Ruth Knowles Wilson. She was sitting in an officer's car at a distance of about like from here to the back of the courtroom and I asked her what had happened and she said, "Alton killed him." I said, "Well, who is the man?" At that time the only way we knew who the man was was by the checks. She said, "It's Mr. Rachels, and he's the conductor on the railroad and his wife and daughter live in Waycross."'
"When the said objectionable evidence was offered by the State, the defendant, through her counsel, then and there objected to the allowance of the same on the ground that such testimony was irrelevant to any offense embraced in the indictment for murder then and there on trial, but tended to show a separate and distinct offense to wit: The offense of accessory after the fact to the killing of L. M. Rachels and was therefore highly prejudicial to the rights of this defendant.
"The court then and there overruled the said objections and allowed the said testimony to go to the jury; to which said rulings of the court, the defendant then and there excepted, now excepts, and assigns the same as error.
"4. Movant assigns error for the following special reasons: (a) Upon the conclusion of the oral testimony, the solicitor-general, the Honorable J. B. Edwards, used to the court, in the presence and hearing of the jury, the following words: `The State tenders in evidence these photographs which have been identified by Trooper Ray, also photographs identified by Mr. Shofflett, and also the checks and other papers identified by Deputy Sheriff Glenn Gregory, as coming out of the pocketbook of Ruth Knowles Wilson, the defendant.' (b) Defendant's counsel, Merlin H. Holland, then and there stated his objections to such documentary evidence in the following language: `We wish to object to these larger pictures identified by Mr. Shofflett, on the ground that they are only being introduced to prejudice the minds of the jury, giving a different view of the man in question here, and for the further reason, the pictures do not accurately describe or give an accurate picture of the deceased in this case since the operation had been performed. Object to pictures offered by Trooper Ray and wish to object to each and every one of those on the ground that he has not properly identified them in order to show that it was L. M. Rachels' body or the body of some other individual, these pictures being of a man lying face down on the ground in weeds. Object to the checks and other memorandum found in connection therewith, as being irrelevant, immaterial, and no value and consequence to this case, since by these checks you can see they have not been altered, and would not tend to prove anything in connection with this case.'
"To each and all of the said rulings of the court overruling defendant's said objections to the evidence so tendered, the defendant then and there excepted, now excepts and assigns the same as error.
"5. Movant also assigns as error a part of the charge of the trial judge, the Honorable George R. Lilly, then and there used, in the instructions to the jury the following language, to wit: `Conspiracy is legally defined as a combination or agreement between two or more persons to do an unlawful act. The existence of a conspiracy may be established by proof of acts and conduct, as well as by proof of an express agreement. The rule is applicable where individuals associate themselves in an unlawful enterprise. Any act done in pursuance of the conspiracy by one of the conspirators is in legal contemplation the act of all, and is subject to qualifications that each is responsible for the acts of the other, only so far as such acts are naturally or necessarily done pursuant to or in furtherance of a conspiracy.'
"Movant claims and contends that the charge of the court on conspiracy was not authorized by the evidence, due to the fact that there was no evidence presented to the jury concerning a conspiracy between this defendant and her husband or anyone else to kill L. M. Rachels. Also, due to the fact that Jessie Thompson, the only eyewitness for the State testified, on cross-examination, `That she did not hear any act, word or deed, done by the defendant, Ruth Knowles Wilson, to form a conspiracy to kill L. M. Rachels,' and further that `the defendant, Ruth Knowles Wilson, did not kill L. M. Rachels or assist Alton Wilson, Jr., in killing the deceased,' and said charge was, to that extent, error requiring the grant of a new trial."
The indictment involved a valid charge against the defendant for manslaughter. Manslaughter is defined by Code § 26-1006 as follows: "Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever, which may be voluntary, upon a sudden heat of passion, or involuntary, in the commission of an unlawful act, or a lawful act without due caution and circumspection."
Voluntary manslaughter is defined in Code § 26-1007 as follows: "In all cases of voluntary manslaughter, there must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killing, or other equivalent circumstances to justify the excitement of passion, and to exclude all idea of deliberation or malice, either express or implied. Provocation by words, threats, menaces, or contemptuous gestures shall in no case be sufficient to free the person killing from the guilt and crime of murder. The killing must be the result of that sudden, violent impulse of passion supposed to be irresistible; for if there should have been an interval between the assault or provocation given and the homicide, of which the jury in all cases shall be the judges, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge, and be punished as murder." Voluntary manslaughter is a felony.
Code § 26-605 reads: "Accessories after the fact, except where it is otherwise provided, shall be punished as for a misdemeanor."
One on trial for murder on an indictment which involved voluntary manslaughter cannot be convicted as an accessory after the fact. See McCoy v. State, 52 Ga. 287 (3), and Ivey v. State, 186 Ga. 216 (1) ( 197 S.E. 322).
In reversing a case on the special grounds, such as the one before us, we rarely make reference to the evidence relative to the statutory grounds, but in the instant case if another trial is had on the indictment in this case, unless the evidence is materially different, we would then hold the evidence insufficient to sustain a conviction for murder or of voluntary manslaughter.
After consideration of the first four special grounds, we think that they assign error because there was no evidence relative or material to either murder or voluntary manslaughter. With reference to special ground 5, which is to the effect that the trial court committed reversible error in charging on the law of conspiracy; this is true because there was not sufficient evidence, circumstantial or otherwise, to prove conspiracy.
The court committed reversible error in denying the motion for new trial on all the special grounds.
Judgment reversed. Townsend and Carlisle, JJ., concur.