1. A confession of guilt is a statement freely and voluntarily made by a person charged with the commission of a crime, wherein he acknowledges himself to be guilty of the offense charged. A statement which admits the commission of an act, but which also states circumstances of legal excuse or justification, is not a confession, and it is reversible error to charge on the law relating to confession of guilt in such a case.
2. Where it was shown that a defendant charged with the offense of murder had made incriminating admissions not amounting to a confession of guilt, it was error to charge the law relating to confessions. The treatment of such admissions as a confession of guilt tended to prejudice the case of the defendant.
3. The law presumes every homicide to be malicious until the contrary appears from circumstances of excuse, alleviation, or justification; and it is incumbent upon the defendant to make out such circumstances to the jury, unless they appear from the evidence produced against him. Where the State relies both upon admissions by the defendant, admitting the homicide but stating circumstances of excuse or justification, and other evidence tending to show that the defendant was the actual *Page 268 perpetrator of the offense charged, it is proper to charge this principle of law.
4. In a case, as here, where the State relies for a conviction both upon direct and indirect or circumstantial evidence, a charge using this expression, "In this case, gentlemen, the State relies in part upon circumstantial evidence," does not violate that principle of law which prohibits the trial judge from expressing or intimating an opinion as to what has or has not been proved in the case.
No. 15554. SEPTEMBER 6, 1946. Roy Pressley was convicted of the murder of Ever Lee Hollis and sentenced to life imprisonment. He made a motion for new trial on the usual general grounds, and by amendment added seven special grounds. The motion as amended was overruled, and he excepted.
The evidence for the State disclosed that about 5 o'clock, Sunday evening, October 14, 1945, the deceased was found dead in a cornfield near a path that runs between Big Springs Road and Ogletree Street, in LaGrange, Troup County, Georgia. Ralph Hollis, husband of the deceased, testified that she left home about 10 o'clock in the morning to visit her mother, who lived on Big Springs Road, and beyond the place where her body was found. The undertaker and investigating officers, who examined the body about 5 o'clock that evening, testified that death was caused by a shotgun wound in the back. The shot entered the body just to the left of the backbone and below the shoulder blade, and so nearly passed through that blood was on the front part of the body. The small surface covered by the shot and powder burns on clothing of the deceased indicated that the shot was fired at close range. She had been dead for some time. There was some discoloration and the joints were stiff. From where the body fell it appeared to have been moved and turned face up. The lower part of the body was uncovered and her "step-ins" were partly torn off. There were indications of knee impressions between the legs. The body was scratched in several places and appeared to have been rubbed. A fired 12-gauge shotgun shell was found near the body.
T. J. Bates testified: The defendant came to his home Sunday morning between 8 and 9 o'clock. He was carrying a single barrel 12-gauge shotgun. The defendant told him that he had been hunting and had an accident, that he had shot a negro. The witness *Page 269 said to the defendant "You never done it," and the defendant replied, "Yes, he did." The defendant left the gun and some shells with him, and asked that they be given to his father. They were later picked up by the investigating officers.
Addie Lee Johnson testified: She saw the defendant between 11 and 12 o'clock, the morning of October 14, about one half or one mile from the place where the body was found. She and a small boy were walking along the railroad when the defendant came up behind her walking fast. She waited and asked what he was doing there, and the defendant said that he was running from the police. She asked if he was drunk, and the defendant said, "No, he had killed a negro." The defendant had blood about the pocket of his vest.
H. V. Hilyer testified: After searching in Troup County for the defendant, he found him in custody of the sheriff at Kingston, Tennessee. He had been there about three weeks. While returning to LaGrange he asked the defendant why he had killed this woman. The defendant said, "he was coming up the branch and shot at a rabbit and hit the woman." The defendant was asked if he knew the woman, and he said, "Yes, I knew her, she used to wash for us."
The fired shell, which was found near the body of the deceased, and the shotgun left with T. J. Bates by the defendant, were sent to the Federal Bureau of Investigation at Washington, D.C., for examination.
G. A. Berley testified: He was employed as Special Agent for the Federal Bureau of Investigation in the laboratory at Washington, D.C., to examine firearms. To prepare for that work he had received a degree of science from Fordham University, and had studied identification of firearms in the FBI laboratory. He had been engaged in that work for three years. He received the shotgun and fired shell for examination. By firing another shell in that gun and by using the comparative photographic microscope to compare the indentations made by the firing pin in the cap of both shells, and the marks made by the breech-block base on the base of both shells, he was able to identify the fired shell which he had received for examination as having been fired from that shotgun. He further testified that the breach-block base of any two shotguns will not make the same marks on the head *Page 270 of a shell. There would always be a difference somewhat as finger prints differ on different people.
The defendant made no statement to the jury, and without entering a special plea, relied on the defense of not guilty. There was evidence that he had worked at some of the local mills and at other odd jobs. He had quit school after the fifth grade because of inability to learn, and had been rejected for military service because of mental deficiency. He was abnormal mentally but had never been adjudged a lunatic. As to whether he knew right from wrong, the evidence was conflicting. Several witnesses testified that he did not know the distinction between right and wrong; others testified that he knew right from wrong insofar as a small child would know it, and others for the State and for the defense testified that he knew the distinction between right and wrong. 1. In special grounds 1, 2, 3, and 4, error is assigned on the charge as it related to the law of confessions. In each separate ground it is urged that the charge on the subject of confessions was unauthorized by the evidence, since no statement attributable to the defendant amounted to a confession, but at most was only an incriminating admission. A confession is an admission freely and voluntarily made by the accused whereby he acknowledges himself to be guilty of the offense charged, and discloses the circumstances of the act, and the share and participation he had in it. Owens v. State, 120 Ga. 296 (2, 3) (48 S.E. 21). A confession is direct evidence. Eberhart v. State, 47 Ga. 599;Riley v. State, 1 Ga. App. 651 (57 S.E. 1031). An incriminating statement is one freely and voluntarily made by the accused, which only tends to establish his guilt of the offense charged, or one from which, together with other proven facts and circumstances, guilt may be inferred by the jury. Fletcher v.State, 90 Ga. 468 (17 S.E. 100); Riley v. State, supra. In the Riley case, Judge Russell said: "An admission as applied to criminal cases is the avowal or acknowledgment of a fact or of circumstances from which guilt may be inferred, and only tending to prove the offense charged, but not amounting to a confession of guilt." An incriminating *Page 271 statement is indirect or circumstantial evidence. Eberhart v.State, supra; Riley v. State, supra. Where there is evidence showing that the defendant admitted the homicide of which he is accused, and he states in connection therewith no facts or circumstances of excuse or justification, or gives reasons which are insufficient to furnish any legal excuse or justification, the statement amounts to a confession of guilt, and authorizes a charge on that subject. Jones v. State,130 Ga. 274 (4), 278 (60 S.E. 840); Webb v. State, 140 Ga. 779 (79 S.E. 1126); Thompson v. State, 147 Ga. 745 (2), 749 (95 S.E. 292); Minter v. State, 158 Ga. 127, 132 (123 S.E. 23); McCloud v. State, 166 Ga. 436 (2-a, b), 441 (143 S.E. 558); Brown v. State, 168 Ga. 282 (2), 287 (147 S.E. 519); Daniel v. State, 187 Ga. 411 (4) (1 S.E.2d 6);Coates v. State, 192 Ga. 130 (15 S.E.2d 240); Wright v. State, 199 Ga. 576 (34 S.E.2d 879). But if the accused makes an extrajudicial statement, in which he admits the homicide of which he is charged, but couples the admission with a statement of facts or circumstances which shows excuse or justification, such statement is not a confession of guilt, and it is error to charge the law of confessions. Owens v. State, supra; Harris v. State, 152 Ga. 193 (6) (108 S.E. 777);Allen v. State, 187 Ga. 178 (4) (200 S.E. 109, 120 A.L.R. 495). Likewise, where the accused makes only an incriminating admission, not amounting to a confession, it is error for the court to charge on the law of confessions. Dumas v. State,63 Ga. 600; Jones v. State, 65 Ga. 147; Covington v.State, 79 Ga. 687 (7 S.E. 153); Fletcher v. State, supra; Powell v. State, 101 Ga. 19 (4) (29 S.E. 309, 65 Am. St. R. 277); Lee v. State, 102 Ga. 221 (2), 224 (29 S.E. 264).
In the light of these principles, how does the case presently before us stand? The record discloses that the defendant had made three separate statements. To the witness Bates he said that he had been hunting and had an accident, that he had shot a negro. Later he told the witness Addie Lee Johnson that he was running from the police because he had killed a negro. And still later, when asked by the witness Hilyer why he had killed this woman (the person of whose homicide he was charged), his reply was that he was coming up the branch, shot at a rabbit, and hit the woman. In further response to Hilyer's question if he knew the woman, he said: "Yes, I knew her, she used to wash for us." Applying the *Page 272 rule announced in the Riley case, supra, and the Fletcher case, supra, neither statement attributed to the defendant, standing alone, is sufficient to show a confession of guilt. They are each lacking in vital elements of the offense charged. Construing the first two statements separately in the light most unfavorable to the defendant, they amount to no more than incriminatory admissions. The third statement, made to the sheriff, when considered with the questions propounded, admits the homicide, but shows circumstances of justification; but when all three of the statements are construed together, they amount to no more than an admission by the defendant that he was out rabbit hunting, shot at a rabbit, and accidentally hit and killed the person named in the indictment.
Applying the foregoing principles to the facts in this case, it was erroneous to charge on the law of confessions.
2. Special ground 5 complains of this statement in the charge: "Now, gentlemen, in this case also the State relies on a confession." We have held in the preceding division of this opinion that no statement attributable to the defendant amounted to a confession of guilt. The Code, § 81-1104, provides: "It is error for any judge of a superior court, in any case, whether civil or criminal or in equity, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused." It is insisted here that the portion of the charge complained of was an expression or intimation of an opinion by the court that the evidence was sufficient to show a confession of guilt by the accused. We think that this contention is meritorious. InFletcher v. State, supra, where the court had charged on the law of confessions, Chief Justice Bleckley, as a reason for reversing the judgment on that error alone, said: "What the court said to the jury on the subject was well calculated to prejudice the prisoner, for it might have induced the jury to think that the declarations shown to have been made by him could be treated, not only as a part of the material from which an inference of guilt might be drawn, but as a confession of guilt, direct or indirect, made by himself." The same reasons hold good in this case. The jury had a right to and they naturally would infer, from the fact that the court charged them the law relating to confessions of guilt, that they could construe the words proven to have been spoken by the accused as such a confession. The portion of the *Page 273 charge complained of, therefore, was erroneous for the reason assigned.
3. Special ground 6 assigns error on the following part of the charge: "Now, gentlemen, the law presumes every homicide to be malicious until the contrary appears from circumstances of excuse, alleviation, or justification; and it is incumbent upon the defendant to make out such circumstances to the jury, unless they appear from the evidence produced against him. Now, while it is true that when a homicide has been shown, the law presumes that homicide to be malicious, yet that presumption of malice may be rebutted by the defendant by evidence offered by the State, or for the defendant, either or both." In this same connection the court further charged: "There can be no murder, under the law of this State, without malice, either express or implied." It is urged, however, that the charge was erroneous because the State had introduced two statements alleged to have been made by the defendant: One to the witness Bates that he had had an accident, that he had shot a negro; and the other to the witness Hilyer that he had killed this woman when he shot at a rabbit and hit her. And it is urged that, "if the statements of the defendant are to be construed as an admission that he committed the homicide, this qualification of the admission of the homicide robs it of the nature of murder, and the court was not justified in reference to the charge of presumption of malice."
The charge as to which complaint is made correctly stated an abstract principle of law. Code, § 26-1004; Jones v. State,181 Ga. 19 (3) (181 S.E. 80). The State did not rely wholly upon the admissions of the accused for proof of the homicide and his connection with the killing. The State sought by circumstantial evidence, as the record reveals, to show that he was the actual perpetrator of the offense charged against him. InCampbell v. State, 124 Ga. 432 (2) (52 S.E. 914), it was said: "The fact that in a trial for murder circumstantial evidence is relied on to prove both the corpus delicate and the connection of the accused with the killing does not render inapplicable a charge that `upon the unlawful killing of a human being malice is presumed by law, and that presumption remains unless it is rebutted by satisfactory testimony.'" It may be conceded here that some of the evidence relied upon by the State as proof of the homicide by the defendant did show accidental *Page 274 death, but there was other testimony tending to show that the defendant committed the homicide, which testimony, if believed by the jury, utterly disproved any excuse, alleviation, or justification. In view of all of the facts and circumstances disclosed by the record, we think that the charge was adjusted to the evidence and was properly given. The error assigned is without merit.
4. By special ground 7 error is assigned on the following expression by the court in his charge: "In this case, gentlemen, the State relies in part upon circumstantial evidence." It is insisted here that a conviction depended entirely upon circumstantial evidence, and that this expression by the court amounted to an intimation of the court's opinion that the statements attributed to the defendant were confessions of guilt. This contention is without merit. The evidence relied upon by the State was not wholly circumstantial. In Blocker v. State,185 Ga. 322 (195 S.E. 207), this court said: "Thus, where the attendant facts and circumstances are such as strongly tend to establish the commission of the homicide by the accused as charged in the indictment, and where, as here, he admits in his statement the shooting, but claims justification, the case is not one depending wholly upon circumstantial evidence." In this connection, see also Cole v. State, 178 Ga. 674 (173 S.E. 655); Strickland v. State, 167 Ga. 452 (145 S.E. 879). While we have held in the first division of this opinion that the statement made by the accused to the witness Hilyer, to the effect that he had accidentally killed the deceased, does not amount to a confession of guilt, it does furnish, however, direct proof of the homicide and that he was the slayer. Therefore, since the State did rely both upon direct and circumstantial evidence for a conviction, this attack made upon the charge is not meritorious.
5. For the reasons stated in divisions one and two of this opinion, it was error to overrule the motion and refuse to grant a new trial.
Judgment reversed. All the Justices concur. Atkinson, J.,concurs in the judgment, but not in all that is said in theopinion.