In Dunson v. State, 202 Ga. 515, 521 (43 S.E.2d 504) it is held: "It is not necessary, however, in order to sustain a verdict of conviction, that the evidence exclude every possibility or every inference that may be drawn from the proved facts, but only necessary to exclude reasonable inferences and reasonable hypotheses."Summary of this case from Nolen v. State
JUNE 12, 1947. REHEARING DENIED JULY 11, 1947.
Murder. Before Judge Hooper. Fulton Superior Court. March 7, 1947.
Duke Davis, A. J. Andrews, and Blake Jackson, for plaintiff in error.
Eugene Cook, Attorney-General, Paul Webb, Solicitor-General, J. Walter LeCraw, J. R. Parham, and Margaret Hartson, contra.
The verdict was authorized by the evidence, and since the special assignments of error are dealt with adversely to the plaintiff in error in the second and third divisions of the opinion, the court did not err in overruling the amended motion for new trial.
No. 15840. JUNE 12, 1947. REHEARING DENIED JULY 11, 1947.
STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE.
The defendant was convicted of murdering his wife and recommended to the mercy of the court. The exceptions are to the order overruling the motion for new trial as amended, which was based upon the usual general grounds and several special grounds assigning error upon the admission of certain testimony over objection, and upon the exclusion of other testimony. A summary of the evidence adduced on the trial is as follows:
Crawford Dunson Jr., the defendant's son, testified for the State: "Mary Helen Dunson was my mother. On or about the 22nd day of September of this year my father and mother lived at 523 Collier Street, in Atlanta, Fulton County, Georgia. On that night I had gone to bed. My father's and mother's room was in the front and mine was back in the back of their room. I did not hear anything that night after I retired, could not hear anybody talking. My room and their room joins together. I didn't get up until I heard the shot, the shotgun. When I heard that shotgun fire, I jumped up out of bed and ran to the front door. When I got up to the front door, Jesse Spence was knocking at the door trying to get the defendant to open it. He said, `Crawford, open the door.' He didn't open it the first thing. I said, `Dad, open the door.' He didn't say anything. I knocking on the door and asked him to open it for about fifteen minutes before he opened it. Jennie Mae Smith came before the door was opened. When he opened the door I went in the room. That is the room where my father and mother sleeps. I said, `Dad, you done shot mamma.' Mamma was lying in the middle of the bed. I called her; she didn't say anything. Both arms was at her side and the cover was up to her waist, about to her stomach. Dad said, `I didn't shoot her.' He said, `She had the gun playing with it and dropped the gun and it went off and shot herself.' I saw a wound in her right shoulder and right temple. When I went in the room he had the shotgun and showed it to me. Two or three weeks before she was killed, my mother and father had a fuss and she said something and she run back in the kitchen and latched the door, and he run up against the latch and knocked the latch off, and she hid and he run back out in the hall and he stabbed her in the arm. That is the time he had the gun. He told her he was going to blow her God damned brains out. He usually keeps this gun behind the chifforobe in the room. I don't know how long my father had had this gun and I don't know where he got it. It is a sawed-off, single-barrel, breech-loading shotgun. There was no blood in the room except on the bed when I went in there. I did not hear my father make a statement as to where he was when the gun fired. He said he was going out the door, the night latch snapped, and he was out in the hall when he heard the gun go off, and went back and she was shot. He didn't say where she was lying. There is a night latch on that door that locks when pulled to, and you have to have a key to unlock it. My mother was dead in the bed there. He had the gun in his hand when I walked in the room holding it this way, with the part where the hammer is in his right hand and his left hand across the barrel, unbreeched. He hadn't taken the shell out of the gun. He did not run back to the bed — he was standing at the foot of the bed and my mother was lying on her back with her hands down by her side. Jesse Spence and his wife, Jennie Mae, were there when I walked in. My father claimed my mother killed herself with the shotgun when I accused him of killing my mother. I said, `My dad shot my mother, and he said she dropped the gun and shot herself.' I testified before the coroner's inquest that I had not gone to sleep when the shotgun was fired, and when I heard the shot I went at once and knocked on the door, and my dad did not open it, and I hollered again and dad said, `Mary Helen has done shot herself.' When I went in the room where my father and mother were and first saw the gun, it was in my father's hand. He picked the gun up over by the dresser. He said she dropped it and it went off and shot her. He had the gun in his hand and went over there and showed me where she dropped the gun over by the dresser and then picked it back up and come back with it. The bed is right where that lamp is and the dresser is sitting right along in here, back in here. He said the gun was like this and went off and shot herself."
Jesse Spence testified for the State as follows: "When I heard the gun discharge, I got up and said to Crawford, `Did you hear that shot?' There wasn't anybody there but him. I went to his door and knocked and asked Crawford, `Did you hear that shot?' I guess I knocked three or four times. His son also knocked on the door, both of us was knocking. I called Crawford and he finally answered, in about five or ten minutes, but he didn't open the door that quick. After he opened the door he said, `Mary Helen done shot herself.' I don't know exactly what time he opened the door. When he opened the door I went in the room. I saw the defendant's wife when I went in the room, lying right in the middle of the bed. She had the cover up to about along here. Her hands was lying down by the side of her. She was dead. She give about two breaths after we got in there." On cross-examination, this witness testified as follows: "I live directly across a very narrow hall, five or six feet wide, from the room where the killing occurred. I didn't hear but one shot. When the gun said boom, I woke up and jumped up. When I got out there, no one was at the door. I was the first one there. It was no time until Crawford Junior came up. I hadn't gotten in the room when he came. We went in the room together. The lamp I seed was over on the shelf. I don't know whether the light had gone out after the shot was fired, and I don't know that Crawford lit the lamp before he opened the door. The lamp was lit when I went in. That door has a latch on it, and when you pull it to it locks so far as the outside is concerned, and the only way to get in from the outside was with a key. The bed was towards the street and the chifforobe was over here on this side, farthest from the street. I didn't see nothing in his hand. He picked the gun up and said she shot herself with this gun. I didn't see him standing by the foot of the bed with the gun like that. The bed had quilts and covers on it. Before he opened the door, when I asked him what had happened the defendant told me Mary Helen had killed herself."
Hershell Thornton testified for the State as follows: "I am a regular licensed and practicing undertaker in this State and county, and I handled the body of Mary Helen Dunson on or about the 22nd of September this year and prepared it for burial. In doing that I found wounds on her body, one on the right shoulder and the other was in the right temple. There were flesh burns on the arm. I know nothing about shotgun flesh wounds caused at close range. My opinion is that it was two holes, one in the arm and the other one in the temple. The one in the temple burst through the bone, the brain was out. They both were deep. The one to the flesh of the arm was deep, and the one in the right temple was deep into the brain. The doctor explained that it was an upward shot, some of the bullets went in her and the others glanced and went into the skull."
Jennie Mae Spence, testified for the State in part, as follows: "The defendant didn't open the door right away, but I reckon about five or ten minutes after they knocked. When the door was opened, I went in the room where the dead woman was and saw the woman on the bed. I saw blood on the pillow and on the bed. I didn't see any blood on the floor. I reckon it was two or three weeks before this he run her out with a shotgun and said he would blow her damned brains out. She left and come back the next morning. When he opened the door I was excited, and when I seen the woman lying over there shot I didn't pay Crawford any attention. I run to the bed where she was and called her. I didn't see any gun. She had two pillows under her head because she slept with two pillows all the time. The bed is an ordinary height bed, not unusually high."
The defendant introduced no witnesses and made the following statement: "Well, I went home Sunday night to get some money I had there in the chest of drawers. When I went in the house I had to unlock the door. I went in and looked to get this money, and when I got the money I come back out the door. The gun fired and that blowed out the lamp, and I had to look on the dresser and get a match, and went in and lighted the lamp and looked over there. I come out of the front door and called Anne House, and she called the ambulance. She said she would. So the ambulance come and got the body, and I got in the ambulance and went to the hospital with him, and the doctor down there pronounced her dead. The police got me at the hospital and brought me to the station house and asked me how it was, and I told them. They carried me home and turned me loose, and I stayed there until the detectives come. When he come he asked me, `Didn't you kill this woman?' I said, `No, sir, I didn't.' He said, `Yes, you did.' So he carried me down and locked me up. And then over there at the jail he come up and tried to make me tell that I killed her, and I told him `I didn't kill her.' She killed herself, and I didn't ever have my hands on the gun."
The State thereupon introduced as a witness Officer J. A. Preston, a detective for the City of Atlanta who had helped to investigate the shooting. His testimony is in part as follows: "We went to 523 Collier Street and investigated the shooting, and we got there and talked to Crawford Dunson, the defendant, in his front room. There was several other people in there. He first stated that he was in the hall fixing to go out of the house when he heard the gun shot. He said he had been off that afternoon in a game, and had went home and asked his wife to let him have three dollars, and his wife, she didn't want him to go out of the house, wanted him to stay there, and he had got out in the hall and started out the front door when he heard the shot fired. He went back in his room and found her shot. We talked to him a little bit and talked to some witnesses around there. He said, when he went back in the house she was in the bed and the gun was lying up on the side of the bed and against the chest of drawers at an angle like that. We did not tell him, `Nigger, you better tell the truth.' We talked to him and told him the witnesses claimed that he was in the room and wouldn't let them in, and he said, `Well, I was in the room fixing to go out the door in the hall with my back to the bed, and that is when the gun fired.' I did not threaten the defendant in any way or offer him any reward when he made these statements but they were made freely and voluntarily." Another police officer, Lloyd Rowell, who had questioned the defendant on the night of the homicide, testified as follows: "We picked the defendant up at the hospital. He told us that he had gone home to get his watch from his wife, and that he had gotten into the room and that she didn't want him to carry his watch off. I said, `You been drinking, haven't you boy?' He said, `No, sir. I drank some this afternoon.' Then he went on and said, after the argument he left and had closed the door, and he heard the shot inside, and he had to fumble in his pocket and get his key before he could get back in the room."
1. The defendant contends that his conviction rested solely upon circumstantial evidence and that the State failed to prove that the deceased met death as the result of some direct criminal agency. Counsel for the defendant advance the theory that the deceased could have reached for the gun with her left hand, and could have accidentally discharged it by dragging the hammer backwards across the side of the bed. It is contended that this theory of the case, when taken in connection with the physical facts as shown by the evidence and the photograph in evidence as to the nature of the wounds and the position of the body, and the insistence by the defendant that the deceased shot herself, lends itself more readily to the hypothesis of innocence than that of guilt. While it is true that this theory might suggest a means within the bounds of possibility whereby the deceased could have discharged the gun, it still can hardly be said to furnish a reasonable explanation as to how the buckshot could have struck the outside of the right arm below the tip of the shoulder and ranged forward and upward into the right temple, if the gun had been discharged in the manner suggested. It would, to say the very least, have been a most awkward and difficult position for the deceased to have assumed, considering that she was found lying in the middle of the bed with her hands resting by her side, and with the cover pulled up to her waist. It is not suggested that the gun could have possibly been held in her right hand. To have reached out over her body with the left hand and taken the gun, standing against a drawer on the right-hand side of the bed so as to drag the hammer across the bed covers, with the muzzle pointed at the same time at the arm below the right shoulder and the right temple, would have been a most difficult thing to do. While it is also true that it would be hard, if not impossible, to visualize the defendant thus aiming the gun from his shoulder and inflicting the two wounds as thus made while standing in an erect position with the deceased lying flat on her back in the middle of the bed, it is nevertheless easy to see how such wounds could have been inflicted by the defendant, had the sawed-off shotgun been held close to the deceased from the vicinity of his hips, and at or about the level of the body of the deceased, or had he knelt down when the gun was fired. It will be seen from what has just been said that the defendant's theory as to the manner of the homicide is at best merely a conjecture coming within the bounds of a very remote possibility. It is not necessary, however, in order to sustain a verdict of conviction, that the evidence exclude every possibility or every inference that may be drawn from the proved facts, but only necessary to exclude reasonable inferences and reasonable hypotheses. Wrisper v. State, 193 Ga. 157, 164 ( 17 S.E.2d 714), and cases there cited. Moreover, the theory now suggested by the defense is in total conflict with the evidence as to what the defendant said immediately after the death of the deceased, that is, that she was playing with the gun when it went off. Neither does the theory suggested by counsel well comport with the testimony of a witness that, when persons first went into the room, the defendant was found holding the sawed-off shotgun with the lock unbreeched. The evidence of this witness, as will be seen by an examination of all this testimony, is not contradicted either by his own testimony, or by that of any other witness. The other witnesses who first entered the room testified that they looked first at the deceased woman and did not see the defendant or the gun at first. That one of these later testified that he did not see the defendant with the gun at the foot of the bed, but saw him pick it up and say that she shot herself with it, conforms entirely to the evidence of the witness who saw the gun in the defendant's hand at the foot of the bed, and who testified that the defendant put the gun down and later picked it up and showed how the deceased shot herself. And then too it must be considered that the defendant had made three contradictory and unreconcilable statements as to the facts surrounding the shooting, including the statement that the deceased was playing with the gun when it went off, and that it was shown that the defendant had made previous threats to shoot her, and had recently broken down the door of the kitchen where she had fled and stabbed her in the arm. There was also proof of other cruel treatment. All these facts, together with the refusal of the defendant to promptly answer and open the door when called, seem to preclude a holding that the circumstances were insufficient to overcome any reasonable inference of accidental death or suicide. It unmistakably appears that, if a homicide was committed, the defendant committed it. It therefore follows that the evidence authorized the verdict and the general grounds of the motion for new trial are without merit.
2. The first ground of the amended motion for new trial is as follows: "Because the following material evidence was illegally admitted by the court to the jury over the objection of movant, to wit: `Q. Where was the first time you saw it (the gun) in his hand? A. I saw it the first time when he was running away from home with the shotgun. Q. He was running away from home with the shotgun? A. Yes, sir.'" The objection urged was that this testimony was too remote in time to be illustrative of any issue in the case. Irrespective of any question as to completeness of the above testimony by the defendant's son and related to an altercation between the defendant and the deceased some three weeks prior to the homicide, in which the son testified that his father had stabbed his mother (deceased) in the arm, "and told her he was going to blow her God damned brains out," such evidence of threats and cruelty, and that the defendant was then in possession of the gun, was relevant to show malice, and the court did not err in admitting it over the objection urged. Parker v. State, 197 Ga. 340 (4) ( 29 S.E.2d 61).
3. The second and third special assignments of error complain of the refusal by the court to permit two of the State's witnesses to answer the following questions on cross-examination: "`Where was your father when the ambulance was called?' The answer would have been, `He was in there in a chair.' The second witness was asked, `Who called the ambulance?' The answer would have been, `Annie Howell is the one that called him.'" The defendant contends that the answers to these questions would have rebutted any presumption of malice toward the deceased, and would have shown an absence of motive, and that both answers were admissible as a part of the res gestae. These assignments of error are without merit. The first answer could illustrate nothing more than the fact that the defendant did not flee after the homicide, and since there is a complete absence of any testimony that he had attempted to flee, evidence offered for the purpose of showing that he did not in fact flee was properly excluded. Flannigan v. State, 135 Ga. 221 (3) ( 69 S.E. 171); Lingerfelt v. State, 125 Ga. 4 (2) ( 53 S.E. 803, 5 Ann. Cas. 310). As to the second answer, there was already clear and undisputed evidence as to the circumstances surrounding the calling of the ambulance, and under no view of this evidence can it be said that, merely because it corroborated a statement made by the defendant before the jury, its exclusion was harmful to the defendant.
Judgment affirmed. All the Justices concur, except Wyatt and Head, JJ., who dissent.
Pictures of the body of the deceased were in evidence, showing the location of the wound in the arm. It is my opinion, from what the pictures and other evidence showed, that if the defendant shot the deceased he would have had to be in a position lower than the position of the deceased on the bed. In order for him to have been in this position, it would have been necessary that he be either on his knees or in a reclining position. I do not think that the evidence in this case was sufficient to remove every reasonable hypothesis other than the guilt of the accused. I therefore dissent.