1. The evidence is sufficient to sustain the verdict.
2. A homicide may be proved by circumstantial evidence as well as by direct evidence. Where, as here, the evidence for the State, though circumstantial, establishes a homicide, and the evidence does not show any circumstances of mitigation or justification, the law presumes malice. In such a situation, the court should not charge the principle of law that where the evidence for the State shows circumstances of mitigation or justification the law does not presume malice.
DECIDED JANUARY 23, 1947. The defendant was tried for murder and convicted of voluntary manslaughter. He filed a motion for a new trial on the usual general grounds and afterwards added three special grounds.
Counsel for the defendant set out in their brief concisely and substantially the main facts. This is conceded by counsel for the State. Such statement of facts follows: "Harold Taylor, who was the defendant in the court below and who is plaintiff in error in this court, was indicted for the murder of his father, Tom Taylor. Tom Taylor and his family were separated and his wife lived at Rome, Georgia, with the smaller children of the family, and Harold Taylor, the defendant had been in the armed services for some several years. He was in the hospital in Philadelphia, Pennsylvania and his father came to see him some time in the Spring of 1946 and wanted the defendant to return to Abbeville, Georgia, to help him run a pool room. The defendant returned to Abbeville on the 14th day of March, and after visiting his mother a while came on back to Abbeville with expectations of assisting his father. *Page 702 In a little while his father became vexed with the defendant and this was in keeping with the nature of Tom Taylor, as he had run his wife away from home and had treated his family rather badly for many years. The defendant and his father became so estranged that they ceased to occupy the same room together, but shortly before the killing took place they had become reconciled to a certain extent. On the morning of the shooting the defendant went into the pool room and after playing a few games of pool, the deceased left the pool room and defendant stayed there until about noon looking after the pool room. There was a small cafe immediately west of the pool room and the defendant went into the cafe to get a sandwich and he had not seen his father for some several hours. While the defendant was in the cafe, the deceased evidently went into the pool room and for some reason deceased went to the front of the building in which the pool room was located and locked the front door on the outside, and then went to the west side of the building and entered a door which faced the west, and according to the evidence, this was the last time deceased was ever seen alive. The defendant returned from the cafe and went to the north side of the building in an effort to go into the pool room and he found the door locked. He then went around the west side of the building and went into the door in which the deceased had entered the building. The defendant at the time he went to the front door of the building had some money in his hand and he stated he had the money which he had taken in from the operation of the pool room that morning. All this happened about the first of June, 1946. There is no dispute about the facts which have been narrated. Shortly after the defendant went into the pool room several pistol shots were heard and the defendant came out the west door and according to the witness Henry Alfred Wilson, defendant told him to go and get the law, and the witness asked him what he had done, and the defendant said he had shot his daddy because he was trying to kill him. At that time the defendant had a pistol in his hand.
"Sheriff T. J. Smith likewise testified that the defendant told him he had just killed a man, and the sheriff said he asked the defendant what the hell was the matter, and he answered he was trying to kill me. Sheriff Smith testified he found a forty-five pistol right under the deceased's feet and he had this pistol in court and exhibited it to the jury. *Page 703
"The undertaker, J. B. Dorsey, testified that the cause of death was bullet wounds and that deceased had one wound on the left side of his face right in front of his car, on the back of his head along the other side, along the left side were two wounds and on the shoulder there were two wounds. One went in the left ear and lodged in the back along the right ear and that is the only one he probed. He could not state whether or not the two wounds in top of his head were caused by one or two bullets.
"Sam J. Rhodes, assistant to Mr. Dorsey, testified that there were five holes in the body; two in the shoulder, three in the head. The one in the shoulder started in at the top and came out at the back of the shoulder. That in his opinion the one which went in the left shoulder went in the front and the bullet came out on this shoulder and down in the shoulder. The hole in front was small and the one the bullet came out of was flagged.
"D. E. Brazziel testified as to seeing the deceased come out the front of the pool room and lock the door on the outside, and he saw Harold Taylor come up to the front of the building and then go around to the west side. He also testified he heard the pistol shots. Mrs. Brazziel testified to the same state of facts. Mr. Brazziel testified that the defendant was in his shirt sleeves and he looked like he had some money presumably in his hand, when he went to the front of the building.
"The defendant in the statement after narrating the trouble which his father had caused the family for a long period of years, then told about the actual shooting and the following is a portion of his statement telling what actually took place at the time of the shooting:
"I went to the front of the pool room and I had the money I had collected that morning in one hand and I shook the door and it was locked. I put the change in my pocket and walked around the side door. The room was kinder dark and I couldn't see him. I thought he was up on the counter asleep, — that is where he could go and rest when he was tired. I thought he was up on that counter asleep. I went on past the pool tables and started up to the front of the building and had passed the pool table and he was lying down there. When I started by him he said come in, you God damn son of a bitch, I want to talk to you. I saw him there and he had a quart of liquor sitting there on the right side of his *Page 704 right hand. I didn't know how much he had drunk of it, but I knew he was drunk and I knew he was already mad with me and I knew he always carried a pistol. When he said come here, you son of a bitch, I want to talk to you, I walked to the partition there and this gun was there in a shoe box and I got it and put it right here in my belt like this. This gun was in the shoe box and I stuck it under my belt. He was sitting there on the pool table facing the partition, — he had raised up then. I come on back and I stopped right in front of him. He kept on cursing me all the time I was in the front of the building. I walked up to the table where he was and stopped. He said to me then, you think you are pretty smart and trying to put something over on me. I said, no, I am not, and he said, you are a God damn liar, and he had that pistol there, and he said, we got a settlement to make and I am going to settle it with this, and he pulled that gun on me and when he did I pulled out my gun and shot him.
"I walked right out of the side and saw Robert Statham and I was about twelve feet from the side door there and I was talking to him and Mr. Smith came walking around the side and Robert said, `there is Mr. Smith there now.' I called him over there and told him what I had done, and we walked in there as Mr. Smith described, and just how my daddy was there and this forty-five was there. We got a pool cover then and put on there and sent someone after the doctor, and put him there on it, and he brought me over here to the jail. That's all there is to it.
"The pool room faced north on the Rochelle-Abbeville Road and the front of the building was partitioned off from the back. In the back of the building were two pool tables and these were placed in the building lengthwise east and west. One of the pool tables was about where the west door came into the pool room and the other pool table was north of this table and then immediately beyond the two pool tables was the partition and in the front was a little cold drink stand with counters, etc.
"The deceased was found on the pool table which was nearest the west door, sitting facing north and behind him was a quart bottle of whisky in which about a third of the contents were missing." There appears to be no conflict in the evidence.
We wish here to compliment distinguished and able counsel for both the defendant and the State for their neat manner and clear and concise method of presenting their respective contentions. *Page 705 1. General grounds: No conflict appearing in any of the material evidence, the question presented here is whether as a matter of law the evidence sustains the verdict. We have studied the facts very carefully and have reached the conclusion that either a verdict for murder, for voluntary manslaughter, or for justifiable homicide is sustainable under the evidence. While it is true that there was no eyewitness to the shooting, nevertheless we think that the whole facts and circumstances revealed by the record are sufficient to sustain the verdict of voluntary manslaughter. It is our duty in the consideration of a motion for a new trial to construe the evidence in the light most favorable to sustain it. In this view and since the trial judge approved the verdict, it is our opinion that it should be affirmed so far as the general grounds are concerned.
2. The three special grounds are so akin that we will deal with them together. They are as follows: "Ground 1. Because the court failed to charge the jury in said case as follows: `Where the evidence relied upon by the State to establish the fact of the homicide discloses circumstances of mitigation or justification, such evidence does not raise a presumption of malice; and in such a case the burden does not devolve on the defendant to show such facts as would reduce the homicide from murder to manslaughter or justify it.'
"Ground 2: Because the court did not charge the jury as follows: `If it appears, that the only evidence as to what actually transpired at the time the deceased was killed was statements made by the defendant and such statements of the defendant showed that he was justified in killing the deceased, then the burden would be upon the State to disprove such statements of the defendant beyond a reasonable doubt and to show that such killing was murder or manslaughter and was not justifiable homicide, and if the State fails to do this, then you would be authorized and it would be your duty to acquit the defendant.'
"Ground 3: Because the court erred in failing to charge the jury as follows: `When it appears a killing has taken place and all the facts and circumstances surrounding such killing are shown by the State to have been justifiable homicide, then no presumption of *Page 706 guilt would arise as to the defendant and you would not be authorized to convict the defendant.'"
The sole contention here is as to the shifting of the burden of proof. It will be observed from special ground 1 that the contention is that the evidence introduced by the State discloses circumstances of mitigation or justification and therefore the burden did not shift from the State to the defendant. In this connection it is contended that the evidence in the case disclosed the facts that all the circumstances of the killing were obtained from statements made by the defendant, which statements showed justification on the part of the defendant. Special grounds 2 and 3 are but attacks made on the omission of the court to charge the same principle of law, perhaps in a more elaborate manner from different angles. No written request was made. We are dealing with the case as though there had been. And we are dealing with the case so far as this phase of it is concerned as though the defendant had made no statement at all. But we are dealing with it under all the facts and circumstances surrounding the case as testified to by the witnesses. If in this view the State proved a homicide and the evidence showing such did not contain circumstances of mitigation or justification, the presumption is that the killing was murder, and the burden shifted to the defendant to prove he was justified. The Supreme Court, it would seem, has gone further than this. In the case ofMann v. State, 124 Ga. 760, 763 (53 S.E. 324, 4 L.R.A. (N.S.) 934), it is said: "Where the homicide is established by evidence some of which excludes any inference of alleviation, while mitigation may be inferred from some of the circumstances, it is proper to instruct the jury that the law presumes malice from the proof of the killing." In such a situation an issue is raised for the jury exclusively to determine whether the killing was with or without extenuating circumstances. In this connection it might be well to call attention to the fact that the jury are, in their discretion, unlimited as to whether they will believe the statement of the defendant as a whole or to reject it as a whole or to believe it in part or disbelieve it in part. As to the fact that there were no eyewitnesses to the homicide and that the statement of the defendant while admitting the homicide contained other statements which showed justification, we call attention to the case of Williams v. State, 71 Ga. App. 213 (30 S.E.2d 494). *Page 707
Referring to the evidence, we see the deceased locking the front door of the pool room from the front, walking to the side near the back, and entering the pool room; the defendant a few moments later goes to the front door of the pool room, finds it locked, walks to the door the deceased entered, where he, the defendant, entered the pool room. There was no one else in the building. A few minutes after the defendant enters the pool room four shots are fired. The defendant walks out of the room with a pistol in his hand, which pistol contains four discharged cartridges. The sheriff, who was nearby, enters the pool room while the defendant is standing just outside the door with the pistol in his hand. Inside the pool room he finds the deceased sitting on a table, with his head slumped over, with four bullet holes in his head, a pistol lying on the floor under the feet of the deceased, and a bottle of whisky sitting on the pool table behind the deceased. The deceased died on the pool table. We think this evidence established the fact that the defendant killed the deceased. It established it without taking into consideration one word the defendant said and it was for the jury to say under all the facts and circumstances of the case, together with the defendant's statement, as to whether the defendant was justified. The statement of the defendant which he made to the sheriff as he was standing beside the door, that he took the life of the deceased in self-defense, was the issue which the jury tried. There was nothing in the evidence which we have related and which went to prove the homicide to show any justification or mitigation. That burden fell on the shoulders of the defendant because the law presumed in such a situation that he did the killing with malice. We might add here that even under the defendant's statement alone he is perhaps guilty of voluntary manslaughter under the principle of mutual combat. From this viewpoint even conceding that the court erred in failing to charge as contended in these special grounds, the omission became harmless, for he was acquitted of the charge of murder. In manslaughter, there is no malice.
If what we have said is the correct view, from the evidence, it necessarily follows that the evidence introduced by the State to prove the killing does not show mitigation or justification, then there is no merit in these three special grounds. We have studied the record in the light of the contentions of the defendant, and it *Page 708 is our opinion that the court did not err in omitting to charge as contained in these three special grounds. It therefore follows that the court did not err in denying the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.