NOVEMBER 12, 1941.
Murder. Before Judge Anderson. Bibb superior court. June 13, 1941.
Milton M. Ferrell, Harry S. Strozier, and Thomas W. Johnson, for plaintiff in error.
Ellis G. Arnall, attorney-general, Charles H. Garrett, solicitor-general, E. J. Clower and C. E. Gregory, assistant attorneys-general, contra.
The evidence, although circumstantial, being sufficient to prove the corpus delicti and the guilt of the defendant, and the verdict having the approval of the trial judge, the judgment denying the motion for new trial, based on the general grounds only, will be affirmed.
No. 13920. NOVEMBER 12, 1941.
Will Wrisper was charged with the murder, alleged to have been committed July 29, 1940, of Mattie Parker by assaulting her "with a wooden bludgeon and metal bludgeon and other blunt instruments, including bricks, rocks, and brickbats, and with a knife, dirk, razor, and other sharp instruments, and with a gun and pistol, and with human hands." The jury returned a verdict finding the defendant guilty and recommending him to the mercy of the court. The defendant's motion for new trial, based on the general grounds, was overruled, and he excepted. The following narrative gleaned from the evidence sufficiently states the case: The parties living together separated in the summer of 1940. Mattie went to live with another woman, Gilly Ann Ellis, upstairs in a house — 1200 of Block Broadway between Bay and Hazel Streets. The defendant lived about two blocks away in one room of a two-room house in Parker's Alley beyond Hazel Street crossing. Both women were servants of Mrs. Watkins of 756 Mulberry Street. After the separation the defendant, on June 26, assaulted Mattie, on account of which a charge was made in the city court of Macon. The defendant entered a plea of guilty, June 28, and was sentenced to a term of imprisonment, to be released on probation, provided he paid a fine of a specified amount. After being released, the defendant persistently pursued and threatened to kill Mattie until, on account of her declared fears of defendant, Mrs. Watkins commenced the custom of carrying the two servants to their home. On these occasions she would see defendant standing at the edge of the sidewalk at the Thomas drug-store on the corner of Oglethorpe and Broadway streets, near the home of the servants. The servant Mattie disappeared on Monday night, July 29. About a week before that date and again on Friday afternoon before that date, while Mrs. Watkins was carrying the servants to their home, they passed the Thomas drug-store; whereupon the defendant, who was standing at the sidewalk, called to Mattie and "told her she need not go up the stairs; he was going to get her." On Monday afternoon, July 29, Mrs. Watkins again saw the defendant standing at the drug-store corner as she passed by carrying the servants to their home. After leaving them Mrs. Watkins never again saw Mattie. On the Sunday immediately preceding the Monday on which Mattie disappeared, Thomas Taylor saw the defendant pursuing Mattie with a brick and with a "switch-blade knife," and threatening to kill her. Other recent threats by the defendant to kill Mattie, several of them accompanied by display of a knife, need not be stated specifically. About 8:30 o'clock Monday night, July 29, 1940, Mattie, being in the room of the woman Gilly Ann Ellis, left and went to a filling-station near by, to get some ice. On returning with the ice she stated to Gilly Ann: "I have done got a trade. . . I am going to run down here a few minutes. I have got a negro downstairs, and I have got a trade." She left, and did not come back. That was the last seen of Mattie alive. After the disappearance of Mattie and before discovery of the body, Mrs. Watkins saw defendant and asked him "if he had seen Mattie, and he went behind a truck and would not say anything."
Adeline Brooks testified: "After Mattie disappeared I seen Will . . with a little paper-sack under his arm, . . and I said, `I am glad to see you turned out . . Did Mattie get you out?' and he said, `No Mattie didn't have me turned loose. . . Have you seen her?' and I said no, and he said `You won't see her, and she won't put nobody else in jail.' That was on Tuesday morning. I don't know what date it was."
Ruby Floyd testified, that on Wednesday following the disappearance, seeing the defendant, she inquired, "`Have you seen Mattie?' and he said `No,' and he said, `If I could see her I would go off in the swamp and beat her half to death,' and I said, `Why,' and he said, `Because she had me locked up,' and he said, `That is a dirty woman; she didn't have no business to lock me up,' and I said, `Mrs Watkins wanted her to go to work,' and he said, `She ain't going to work any more, . . and she ain't going to stay upstairs any more.'"
L. H. Chapman testified: "I am the coroner of Bibb County. . . In this case I was called, . . on the night of August 7th, . . to inspect the remains of a human body . . at the foot of Elm Street . . down in a field . . out beyond the old fertilizer plant where the old river swamp began. When I found this body it was covered up with corrugated paper boxes. . . It had some bricks over it. The body was lying in a ditch three or four feet deep. . . What was left of the body was there. All the legs and the meat was there, but her body and head — there was nothing there but the meat on her backbone. The skeleton was there, and the skull. The spinal column was there. Part of the bones in her arms had been dragged out on the bank, part of her arm. . . Some of the finger joints were missing; they had been torn away. I found part of them. The teeth were missing. I picked up some of them in the ditch; they came out of her head. I think there was just one or two front teeth along in there. I found them in the ditch. I found a gold tooth also. It was out of the jawbone. . . Just the front teeth were out of place. Her feet, what was left of them, were still in her shoes. She still had on socks. This little belt you have there was around her waist. Those tennis shoes were still on her feet. I found that hat down in the ditch, close to her head. I think her skull was lying on it. Those socks were on her feet. I showed these same articles to Mrs. Watkins. . . I showed them to Gilly Ann Ellis. . . I had the teeth pulled out, I got Johnnie Smith to pull the teeth out. He pulled out what teeth were still in place. I gave Mr. Smith the teeth I picked up. The teeth you have there, mounted on some sort of plastic material, I imagine those are the teeth. I gave them to him. I asked him to have them set up where they belonged in the mouth. I gave them to Mr. Johnnie Smith to have that work done. . . I didn't go with the officers to arrest Will Wrisper. I did go to his house. It was in Parker's Alley. . . I was present when this bottle here was found. The bottle was found in his room under the mattress. . . He had the bottle between the springs and the mattress. There was some old rags or something. I found that dress that is cut up here in his room. . . It looks like scraps from that dress in that bottle. . . I didn't find a dress down there with the body. She had on, I taken it to be a pink slip or kimono or house dress. . . Her body was found around two and one half or three blocks from the 1300 block of Broadway. Nobody lives around where she was found. . . The body was pretty much deteriorated from here up [measuring]. You could tell whether it was a man or a woman from here down. It didn't have any face, nothing but a skeleton. I think this place where I found this body is inside the City of Macon, . . in a territory that protects the river from overflowing. It would be about twelve miles to the county line at that place. . . As to the tissues of the body from her hips down, all was there. The bugs had not started on it, except in her feet. They had just started in her feet. Her left side, more of it was gone than the right. Her chest, in fact her left side, was eaten down closer than the right, eaten down closer to the backbone than her right side was. That was very noticeable. The upper part of her body was kind of cup like, just full of bugs and worms and water. A noticeable difference had been made in the progress of deterioration in the left and right side. The hair was all gone. I thought it was a white woman when I first got there, and the next morning I got up and got a rake and found the hair in the ditch. There was no skin on her head at all. I had the bones examined at the hospital by a doctor. I couldn't find any fracture in her skull. Her front teeth were out. I don't know how they got out. . . I figured when I looked at it [the body] had been there . . eight or ten days. I don't know of my own knowledge whether a crime, if any, was committed wherefrom she died. I don't know that. I don't know whether she died in this county. All I know was her body was there. . . I found a pair of step-ins. . . They were out on the bank. This hat. I made the statement I thought it was under her head, but it (the hat) was found on the right-hand side close to her step-ins, on the bank."
There was evidence tending to identify the hat, shoes, belt, and teeth found at the body, and cloth contained in the bottle, as those of Mattie at the time of her disappearance.
Before there can be a lawful conviction of a crime, the corpus delicti, that is, that the crime charged has been committed by some one, must be proved beyond a reasonable doubt. Shedd v. State, 178 Ga. 653 ( 173 S.E. 847). In homicide cases it must be proved that the death was caused or accompanied by violence or other direct criminal agency of some other human being. Langston v. State, 151 Ga. 388 ( 106 S.E. 903). The first inquiry is, was the proof as to the corpus delicti sufficient? It may be shown by indirect as well as direct evidence. Buckhanon v. State, 151 Ga. 827 ( 108 S.E. 209); 1 Whart. Cr. Ev. (10th ed.), § 325d; 26 Am. Jur. § 462. The jury had a right to believe that the body found was that of the person alleged to have been murdered, in view of the testimony as to the teeth, the hat, the belt, and the shoes. Mathis v. State, 153 Ga. 105 ( 111 S.E. 567); 3 Warren on Homicide, 111, § 270. The jury also could have concluded that the dead woman was murdered. When in apparent good health, and with nothing to show any mental disturbance, she was last seen alive, she parted on the street from a companion, indicating to the latter that she would be back in a few minutes. She did not return. About nine days later her body was found in a secluded spot in a ditch covered over with corrugated paper on which bricks lay. Some of her front teeth were missing, and were found near the body. These circumstances, a more detailed account of which is set forth in the preceding statement of facts, were sufficient to convince the jury that the deceased did not come to her death from natural causes, but that it was the result of a criminal agency. Compare Buckhanon v. State, supra. When the body was discovered it was almost devoid of flesh. It showed no marks of unmistakable personal violence; but some of her natural teeth were out of her mouth and scattered on the ground near by. Bricks and brickbats were placed on top of the paper with which the body was covered. The indictment charged that the deceased was murdered with a bludgeon and blunt instruments, including brickbats, and with a knife, dirk, razor, and other sharp instruments, and with a gun and pistol, and with human hands, by striking, beating, wounding, cutting, stabbing, and choking her, "the exact manner of inflicting death and the exact instrument used by the said accused for the purpose of inflicting death and the manner of inflicting death being to the grand jurors unknown." Although it was a part of the burden resting upon the State to prove that the deceased came to her death by one or more of the means charged, as was held in Warren v. State, 153 Ga. 354 ( 112 S.E. 283), this too may be proved by circumstantial evidence, and in our opinion this burden was carried in the instant case. Jurors must be allowed some leeway for the exercise of their reasoning powers in drawing deductions from a given state of facts and circumstances. To hold that the State, in a situation such as is here presented, must produce more definite proof than was done as to the means by which death was inflicted might be the equivalent of requiring the impossible.
Was the guilt of the accused proved beyond a reasonable doubt? The evidence was circumstantial. In such cases the yardstick by which to measure the sufficiency of the proofs is to be found in the Code, § 38-109: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Counsel for the plaintiff in error rely principally on Murray v. State, 43 Ga. 256; Lee v. State, 76 Ga. 498; Bines v. State, 118 Ga. 320 ( 45 S.E. 376, 68 L.R.A. 33); Warren v. State, supra; Reynolds v. State, 170 Ga. 810 ( 154 S.E. 229); Graham v. State, 183 Ga. 881 ( 189 S.E. 910); and particularly on Epps v. State, 149 Ga. 484 ( 100 S.E. 568). All of these cases are distinguishable from the one at bar. Murray v. State, supra, was an arson case; and as far as pertinent here, it was merely held that proof that a house was consumed by fire was not, in the absence of corroborating circumstances, sufficient to show the corpus delicti. The Lee case was one in which a mother was indicted for the murder of her child. The physician sworn for the State testified that there were no marks of violence upon it, that he did not know whether it had died from exposure or had been smothered, that it might have died from natural causes. This court held that from that evidence no conclusion could be drawn that the child had been murdered. Bines v. State, was an arson case, this court holding that, there being no proof of the incendiary origin of the fire, the defendant could not be convicted by his mere extra-judicial confession. The judgment in Warren v. State, a murder case, was reversed because there was no proof of the corpus delicti, the court holding that there was no evidence that death was caused by any direct criminal agency of some other human being, or that it was not accidental or due to natural causes, the proof showing that the deceased was an epileptic, and a part of her body was lying on the hearth of a cabin occupied by her. The front part of her body "from the head down was charred." In the Reynolds case, the accused was indicted for the murder of Mincie by shooting him with a gun. It appeared that on the night of the homicide the house of the deceased was burned. A crowd soon gathered, among them the accused. On that same night, shortly before the fire, he was seen going in the direction of Mincie's. There was proof of a wound on the body of Mincie, believed to be from a shotgun. A barrel of a shotgun was found in the house after the fire. A witness who examined it testified that it contained the same sight he had put on the gun for the defendant in 1927. The fire occurred May 14, 1929. The court held, on a consideration of that evidence, that the verdict was unsupported. The Shedd case was where a woman was indicted for the murder of her infant child. The judgment was reversed because the evidence failed to show that the child was born alive. Graham v. State was a murder case, a husband being charged with shooting his wife. Near the body was a shotgun with the barrel resting against the side of the bed, a firepoker hanging in the trigger guard. There was testimony tending to show that the death was the result of suicide, and little or no motive shown for the husband to take her life. This court held that the evidence did not exclude every reasonable hypothesis save that of guilt. Defendant's counsel draws a parallel between the Epps case and this case. There a mother was charged with the murder of her four-year old, deformed, and helpless child. There was evidence from which the jury could have inferred that she did not love the child. She admitted that she had at night buried its body, but insisted that the child had died a natural death; and there was no direct proof to the contrary. In explanation of her conduct, she said that, finding that it had died, she was frightened and had neither money nor friends. In the Epps case there was no evidence that the accused had on previous occasions violently attacked the child, or made any threats against its life. Both these elements were present in the instant case. This court held in the Epps case that the evidence, being circumstantial, was insufficient to convict. Running, however, through these cases which are relied on, and many others, is the premise that a mere suspicion of a person's guilt, no matter how strong that suspicion be, can never support a verdict of guilty. That much is conceded. In an early case it was said: "It is enough that the evidence, whatever be its character, whether positive or presumptive, direct or circumstantial, satisfies the understanding and conscience of the jury." Giles v. State, 6 Ga. 276, 286. To the same effect see Mitchum v. State, 11 Ga. 615, 621. Nor is it incumbent on the State "to show that it is impossible for the offense to have been committed by anybody else, or that it might by bare possibility have been done by some one else; but the State should show that it was the prisoner to a moral certainty." Houser v. State, 58 Ga. 78. This statement was repeated in Johnson v. State, 73 Ga. 107. In Cargile v. State, 136 Ga. 55 (3), 56 ( 70 S.E. 873), the following charge was approved: "It does not require any greater degree of mental conviction to base a verdict on circumstantial evidence than it does upon positive testimony. Whether circumstantial or positive, if the evidence satisfies your minds beyond a reasonable doubt of the guilt of the accused, it would be your duty to convict; otherwise it would be your duty to acquit." The word "hypothesis" as used in the Code section hereinbefore quoted is preceded by the word "reasonable." We approve the statement with respect thereto contained in the opinion of the Court of Appeals of this State in White v. State, 18 Ga. App. 214 ( 89 S.E. 175), to wit: "The term `hypothesis,' as used in the Penal Code in the rule as to what is necessary to warrant a conviction on circumstantial evidence (§ 1010) [1933, § 38-109], refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life."
We shall not recapitulate the evidence. The further observation might be made that a reasonable inference therefrom is that the accused had knowledge of her death before the discovery of her body. The statement in Thomas v. State, 67 Ga. 460, 465, applies here: "The evidence is all circumstantial; yet it points steadily to the prisoner as the criminal actor in the deed of blood. The finger posts direct the searcher for truth nowhere else." There was no error in refusing to grant a new trial.
Judgment affirmed. All the Justices concur.