1. The State relied entirely upon circumstantial evidence for a conviction in this case. The proved facts are insufficient to exclude every other reasonable hypothesis save the guilt of the accused.
2. In ground 1 of the amended motion for new trial, error is assigned on the refusal of the court to exclude certain testimony, on the ground that it was "immaterial and irrelevant." This assignment of error is without merit.
3. In special ground 2, error is assigned on the refusal of the court to require a witness to state whether or not the defendant was warned of his rights and whether his statement was purely voluntary, as to certain incriminatory statements alleged to have been made by the defendant, and to retire the jury while the witness was examined on this point. While the law requires that, before evidence of a confession, or incriminatory statements, will be received, it must appear that they were made "voluntarily, without being induced by another, by the slightest hope of benefit or remotest fear of injury" (Code, § 38-411), this rule was not violated in this case, where the witness before testifying as to contradictory statements of the defendant, testified that they were made "freely and voluntarily, without any offer of any reward or hope thereof, or any threats toward him." This ground was properly overruled.
4. Special ground 3 assigns error on the refusal to declare a mistrial because of certain remarks made by the solicitor-general. The solicitor was reprimanded by the court, and apologized for the remarks made. It appears that similar remarks would not occur on a retrial of the case, and no ruling is necessary on this assignment, the case having been reversed on the general grounds of the motion.
5. In special ground 4, error is assigned on a portion of the charge of the court as to the form of the jury's verdict. This charge was not subject to the objection made.
6. In special ground 5, error is assigned on the failure of the court to give a more explanatory charge in regard to certain technical testimony. The charge as given was correct, and if a more elaborate charge was desired, a request therefor should have been submitted in writing.
7. In special ground 6, error is assigned on the following charge of the court: "You, as the trial jury, are not responsible for the consequences of your verdict. You are responsible for the truth of your verdict." It is insisted that this charge is prejudicial and injurious, in that it intimated to the jury that they should not hesitate to inflict *Page 85 the death penalty, and that such charge intimated that the trial court believed the defendant to be guilty and that the death penalty should be inflicted. The language objected to, when considered with the whole charge, was not erroneous for any reason assigned.
No. 15706. FEBRUARY 7, 1947. REHEARING DENIED MARCH 20, 1947. Freddie Parks, alias Fred Alexander, was indicted for the murder of Mrs. LeRoy Atchley, in Floyd County. The verdict of the jury was guilty, without a recommendation of mercy, and the defendant was sentenced to be electrocuted. He filed his motion for new trial on the usual general grounds, which was later amended by several special grounds, and the exception here is to the overruling of the motion for new trial as amended.
The evidence showed that the body of Mrs. Atchley, a white woman, was found on the side of a small private road which led from her home to the house occupied by a negro couple, Tom and Eula Parks, the uncle and aunt of the defendant. The body had been stabbed in numerous places, and the deceased had apparently died from the wounds and from loss of blood.
LeRoy Atchley, husband of the deceased, testified: He last saw the deceased on Monday morning, November 19, when he left about 7 o'clock to work at Bishop's Garage. He got off from work about 6:30 o'clock p. m. and went home. Neither his wife, nor any of their four children, were at home. He first went to Mrs. Bohannon's to look for her, where he found the children. He went to a number of places looking for his wife, and called to see if she had been to see her doctor. On cross-examination, he testified: He had no suspicion that she had left him. He and his wife never had any trouble. He had been over to Tom Parks' place twice to look for her. He did not have any idea that she was over there, and did not go to other neighbors looking for her. His wife was found the next morning, and he went with Mr. Dick Aycock to the place where she was found. After his wife was carried to the undertaking parlor, he received $4.50 which was in her pocket at the time she was killed.
Leslie Taylor testified that he was an embalmer, and embalmed the body of the deceased. He testified concerning a number of cuts and stabs about her head and body. *Page 86
Mrs. G. C. Bohannon testified: She and Mrs. Atchley were friends. On the day the deceased disappeared, she went to the home of the deceased. She arrived there about 12:30 o'clock, stayed a few minutes, and took the four children of the deceased over to her house. The deceased was planning to meet the mailman, she was expecting to receive a C. O. D. package, and the deceased was to come over to the home of Mrs. Bohannon after meeting the mailman. She never did come. The witness did not know why she did not come; at the time she thought that perhaps the husband of the deceased had taken her to the doctor. Later when she went to the Atchley residence she saw the books Mrs. Atchley was expecting to receive lying on the bed. She first learned of the death of Mrs. Atchley from Eula and Tom Parks, the colored people who found the deceased, the following morning.
Dick Aycock testified for the State: That his property joins the Atchley home. He passed and saw Mrs. Atchley standing by the mail box between 12 and 1 o'clock. He stayed at his farm all afternoon cutting some logs. The witness went to the place where the body was found the next day. There were several people standing around, an old negro man and woman, and Mrs. Bohannon. It appeared that the deceased was first attacked about 100 yards from a bridge. There was evidence of a struggle there. It is fully a quarter of a mile from the mail box to the place where her body was found. He thought that the place where he saw evidence of a struggle began within 50 feet of the bridge. He traced blood 30 or 40 yards through the woods.
Frank Russell testified for the State: He found footprints approximately 300 yards from where the body was found. They measured four feet apart from instep to instep. There were a man's and woman's footprints in the same place. From the big track of the man was a smaller track of a woman. Both were spaced well apart. The tracks had been made by a panco sole or ridgy sole. He made a plaster of Paris cast of one of the tracks. Witness asked Mr. Roy Floyd to bring the defendant to jail. "After I looked at the defendant's tracks and footprints and shoes over in the jail, it did not show the panco sole we were looking for . . we got Joe to come to the jail and bring his [defendant's] shoes out there to see if these made that. He did bring the shoes back and in the presence of Mr. Dick Aycock and some *Page 87 others we put this shoe down in the track and on that right shoe, and this is the right shoe; it fit perfectly in the track and on the inner part of this sole there is part of this leather off here on this edge and it had eleven heavy stitches where it was torn off. . . I didn't measure the distance between the woman's tracks, but they were a pretty good distance apart — longer than the average stride. They indicated that they were running. . . These stitches on the shoe and these prints on the ground matched exactly. . . We later went back to the defendant's home and found some men's clothes. His wife gave me these clothes — a pair of pants and white shirt that was made out of a guano sack. These garments were not covered with blood — they were a little bloody. On the inside of two of the pockets there was blood on them, and on the right sleeve of the shirt, and I would not swear it but it looked like it was washed the day before and it was wrinkled, but there was still blood on the shirt; there was a faint sign of blood still there. . . After I got these clothes, I brought them to the jail. After that, we sent them to the F. B. I. laboratories in Washington, D.C." The defendant made a statement freely and voluntarily, without any offer of any reward or hope thereof, or any threats toward him. "I asked him if he had a knife and he said, `No.' I asked . . where he was on the day before, which was the 19th, and he said that he was out in this vicinity the day before. . . He said he was out at his uncle's and aunt's house, Eula and Tom Parks. . . He said he was there about 8:30 or 9 o'clock in the morning, and he said he stayed until the 12:30 news broadcast was over, and left there walking back towards the main highway. Then I asked him if he had on the same clothes he was wearing when he was brought to the jail, as he had on the day before and he said, `Yes,' and later, after I found these other clothes at his house, he admitted that he had on these clothes here, instead of the others, which I showed you. . . I asked him, where the blood came from that was on his clothes, and he said that when he walks a lot that blood comes from his private parts, and that he would wipe the blood on anything he found to wipe it on. He later changed his statement about the knife — said he did have a knife, but that he lost it on Monday. . . The man's tracks were the same footprints that I saw between the bridge and the house of Eula and Tom Parks. The same tracks and made by the *Page 88 same shoe. They have the same characteristics. . . The tracks made by the man and woman showed where they left the road and went out in the woods. There was blood at the point where they left the road . . we tracked it from there and the blood went on across the barb-wire fence into the woods and from there to where it looked like someone was on the ground and on out to where the body was found. We never did find where these footprints I found there, and which I testified the defendant's shoes fit into perfectly and exactly, came back out into the road. . . During my conversation with the defendant in Atlanta, he told me that he came out this main road and that near the intersection a truck came along with a negro driving it and picked him up, and I asked him if he knew the negro and he said he did not. He said he got out of the truck in front of the courthouse and walked on down to Broad Street and got on a bus and went to Lindale and walked from the bus line in Lindale on to his home. He did not later change his story about that. . . I first learned that Mrs. Atchley was dead when I got to Fred Addington's store on the morning of the 20th, Tuesday morning. I got to Fred's store around 9 o'clock or 9:30. . . From Fred's store, after I got this information, I went to where the body was found. I got there ten minutes later. Mr. Aycock and Eula and Tom Parks, and I don't know a lot of them, were there when I got there; there was probably twenty people there or more. . . I could not say they had been walking up and down the road, but they were all down there in the vicinity where this thing happened. I don't know whether or not they were around where the body was and the fight occurred. yes, sir, they had been walking up and down the road, where this thing happened. No, sir, there had not been other tracks made into where this body was found, and on beyond where the body was found. . . No, sir, I didn't go out there and picked out the tracks that suited me. When we saw this woman's track running up the middle of the road and a man's tracks right behind her, we decided . . there had certainly been twenty or more people out on the road before I made these pictures. . . I sent back and got the defendant's shoes, and carried them out there and fit them down in there. After that, I took the impression and made the pictures. I didn't just take the shoes and make the impression in the mud, because I wanted *Page 89 to fit the shoe in the tracks and I took the impressions afterwards; of course, it would make the impression. . . I took the impressions only in the middle of the road. We could not find any off the road that fit his tracks, because of the leaves and the hard surface — as far as the tracks are concerned, I never put him off the road. We could not see any tracks after they got out in the woods; however, after we crossed the two barb-wire fences we could track her up through the broom-sage patch. . . I did not examine the shoes that Mrs. Atchley had on. I noticed her shoes at Jennings Funeral Home. . . I didn't make any impression of the shoes that Mrs. Atchley had on. . . I didn't attempt to determine to see if they were her tracks or somebody else's. . . I don't think there is any doubt about the fact that the tracks that I found later up in the field, after I had crossed the barb-wire fence, leading to where her body was found, were, or appeared to be the same tracks."
Dr. Lee Battle testified for the State that he examined Mrs. Atchley after her death. She had stab wounds in her upper chest and in her head, sufficient to kill her. "I examined her to see whether or not she had been attacked. I could not tell, because she had had four children. . . I did not see any male sperm around her privates, nor did I see any male sperm in the fluid."
T. D. Beach, an employee of the F. B. I., in Washington, was introduced by the State and qualified as an expert witness. He testified that he had found human blood on all of the garments of the deceased and was able to type the blood. He found some blood spots on the garments of the defendant, but was unable to type the blood on account of grease, dirt, or some foreign substance on the clothes. He stated that the blood stains on the shirt were faint, and appeared to have been washed out. The stains on the pants were on the side of the left leg, on the right of the front leg, and on the back below the left pocket. He testified at length about hairs found on the garments of the deceased and the defendant, but he summed up his findings by the statement: "The sum total of my examination with reference to the hairs of this case — I found two hairs on the coat of the defendant that had white characteristics and one on the coat of the victim that had the characteristics of the colored race."
Joe McMaken, a county policeman, testified for the State: The defendant was wearing shoes exhibited to the jury at the time *Page 90 of his arrest, and with reference to the clothes of the defendant sent to the F. B. I. in Washington he testified: "I sometimes ride with Frank Russell. He frequently hauls all types of people in his automobile. He brought these clothes that were brought back to the jail from some point, in the car. I was present. They were rolled up in a bundle. We did not wrap them — just rolled them up, and threw them in the back seat of the car."
The defendant made the following statement: "I went down to my aunty's one Monday. I went down there to see about a hog. My uncle sent for me to see about it, and when I went down there and when I left home, I came on the bus and I caught the Lindale bus and I came up town, and then I got a transfer and went out in West Rome. Then I walked from there on out to my uncle's house, and when I got out there my aunty asked me if I wanted anything to eat, and I said, `Yes,' and she went into the kitchen and came back and put it on the fire and warmed it and I ate it, and then I went down to see the hog, and my uncle told me to come back Friday to kill the hog, and I gave him five dollars and paid him on what I owed him, and they wanted me to stay to listen to the 12:30 newscast, and right after that was over I left and I came on back down the road and came on home. I did not see anybody, and I came on out to the main road there, and there was only one man I seen there and I caught a truck and he brought me up to town here and I got out in front of the courthouse, and I stayed out there a little bit and then I came around to the bus station here, and then left the bus station and went down on Broad Street and I stayed a while down there and then caught the bus and went back home. About the lady out there, I don't know anything about that. I did not kill her and I don't know anything about that. So this is my first time being in jail or anything in my life. So that's all I got to say." He later made a supplemental statement as follows: "Now about the clothes here. There is not but one piece that I had on that day — that is the underwear and the shoes. And so how the blood got on the underwear came from my privates, and so that's all." 1. In this case the State relied solely upon circumstantial evidence to establish the guilt of the defendant. "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." Code, § 38-109. The proved facts as shown from the record in this case are sufficient to establish a suspicion of the guilt of the accused, but they are wholly insufficient to establish his guilt beyond a reasonable doubt, and they do not exclude every other reasonable hypothesis save his guilt.
The deceased unquestionably lost her life by violence and brutality of someone, but the entire record is silent as to any possible motive the defendant may have had if he committed the crime. The State's evidence eliminates any theory of robbery or criminal assault as a motive for the crime.
The evidence shows that the deceased intended to meet the mail carrier, and that she expected to receive a C. O. D. package from him. That she met the mail carrier and received such package, may be inferred from the testimony of Mrs. Bohannon, who stated that she saw the package in the residence of the deceased about the time concern over her continued absence was first felt by the witness and the husband of the deceased. There is nothing in the record to show at what time the deceased received such package, if she did in fact receive it, other than the testimony that the mailman usually passed about 1:30 o'clock. The evidence does not indicate any reason why the deceased, after receiving the C. O. D. package and taking it to her home, should have been in the neighborhood where she was later killed, and why she did not go to the home of the neighbor, Mrs. Bohannon, as she was expected to do.
There is nothing in the evidence to show at what time, or even approximately what time, the deceased met her death. While the defendant admitted that he was in the vicinity where the crime was committed, visiting relatives, there is nothing to disprove his statement that he left the neighborhood shortly after the 12:30 news broadcast, and that he got a ride on a truck with another negro. His movements from that point on, as set forth in his statement, are not in conflict with, or contradicted by, any testimony for the State. The defendant might well have passed at *Page 92 or near the scene of the crime before Mrs. Atchley met the mail-man, or he might have passed the scene of the crime during that time in which Mrs. Atchley returned home, as she may have done, according to the testimony that the C. O. D. package expected by her was later found at her home.
The evidence of the witness for the State that he made a plaster-of-Paris cast from one of the tracks (which the State contends was a track of the defendant), before placing therein the shoe worn by the defendant, is in conflict with other testimony that the shoe was fitted into the track before the cast was made. Should we assume that the evidence established beyond all question that the tracks found in the public road (300 yards from the place where the body of the deceased was found) were the tracks of the defendant, this would not be sufficient to connect him with the crime. There is no competent or sufficient evidence to establish that the tracks thought to be those of the deceased, at or near the same point, were in fact her tracks. Should we assume that this fact was established by the evidence, there is nothing to show that the tracks were made at the same time. Evidence tending to indicate that the tracks alleged to be those of the defendant and the tracks alleged to be those of the deceased were made by both persons while running, would not establish that the tracks were made at the same time.
The evidence of the expert from the F. B. I. is wholly inconclusive. A witness for the State testified that the clothes of the defendant were thrown on the back seat of the car by the officer who later transmitted them to the expert for the F. B. I., and that all types of persons had ridden in the car of such officer. The hair on the clothing of the deceased, said to resemble a negro hair, might well have come from the person of Tom or Eula Parks, negroes, who discovered the body of the deceased.
There is nothing in the evidence to disprove the defendant's statements as to blood on his clothing. The testimony of the expert for the F. B. I., that the blood on the clothing of the defendant was not at a place where it would normally be if such blood came from the body of the defendant as stated by him, is not in in conflict with the defendant's statement made to the officers. The defendant told the officers that when he bled, he wiped the blood on anything he found to wipe it on. There is nothing in *Page 93 the record to show that the defendant did not have the condition testified by him, or to disprove his statement in explanation of the blood on his clothing.
Since no clothes worn by the defendant were connected by the State's evidence with the crime charged, a mistaken statement by the defendant at the time of his arrest, or an untruthful representation (which could have been made to conceal the defendant's condition as later revealed by him), will not supply that which is totally lacking — evidence of the defendant's guilt. The defendant's statement that he did not have a knife at the time he was arrested is not proved to be untrue, and his subsequent statement that he had a knife and lost it does not contradict or conflict with his previous statement. Whatever suspicion may attach to the defendant, by reason of the alleged contradictory statements, is not sufficient to meet the requirement of law, that the defendant's guilt must be established by competent evidence.
In discussing the rule on circumstantial evidence as stated in the Code, § 38-109, this court in Williams v. State,113 Ga. 723 (39 S.E. 487), stated: "The rule of law laid down by our Code, as above quoted, is a wise one. It is taken from the common law, and has been the rule in this country and in England for centuries. Under this rule, if the State relies upon circumstantial evidence, that evidence must be so strong as to exclude every other reasonable hypothesis save that of the guilt of the accused. It must be inconsistent with his innocence. This court has ruled on several occasions that, in cases involving life or liberty, this rule must not be relaxed. When a heinous crime has been committed in a community and the people are greatly shocked thereby, it is natural for them to catch at any little circumstance to throw suspicion upon some person and to conclude from this or that circumstance that he is the guilty party. The horror of the crime, and their desire, as good citizens, to see the guilty party punished and the law vindicated, frequently lead them to premature judgment which oftentimes follows them into the jury box, where, as jurymen, they not infrequently find persons guilty on bare suspicion alone. This is demonstrated by the records of cases passed upon by this court, commencing with the earlier volumes of our reports and continuing almost to the last one." The above language fromWilliams v. State, supra, is particularly in point here. *Page 94 A horrible crime has been committed, and circumstances establish a suspicion that the defendant may be guilty.
In Graham v. State, 183 Ga. 886 (189 S.E. 910), Chief Justice Russell quoted with approval language from Chief Justice Warner in Earp v. State, 50 Ga. 513, as follows: "The law does not allow anyone to be convicted of any offense merely on asuspicion of their guilt. It would be a just reproach to the judicial tribunals of the State, and to the administration of the laws thereof, to allow a conviction to stand on the evidence contained in the record before us." See also Martin v. State,38 Ga. 295; King v. State, 86 Ga. 355 (12 S.E. 943);Bell v. State, 93 Ga. 557 (19 S.E. 244); Cummings v.State, 110 Ga. 293 (35 S.E. 117); Laws v. State,114 Ga. 12 (39 S.E. 883); Sikes v. State, 120 Ga. 494 (48 S.E. 153); Young v. State, 121 Ga. 334 (49 S.E. 256);Gresham v. State, 150 Ga. 668 (104 S.E. 629); Adkins v.State, 156 Ga. 586 (119 S.E. 612); Reynolds v. State,170 Ga. 810 (154 S.E. 229); Cornwell v. State, 179 Ga. 668 (177 S.E. 235).
Under the requirements of the law applicable to this case, it was error to overrule the general grounds of the motion for new trial.
2-7. The special grounds of the amended motion for new trial, 2 to 7, inclusive, require no further elaboration.
Judgment reversed. All the Justices concur, except Jenkin. C.J., and Bell, and Candler, JJ., who dissent. *Page 95