1. To sustain a conviction on circumstantial evidence only, the State must prove facts that are not only consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis save that of the guilt of the accused.
2. Where the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compel the acceptance of *Page 688 the theory which is consistent with innocence. Davis v. State, 13 Ga. App. 142 (1) (78 S.E. 866).
DECIDED SEPTEMBER 18, 1947. Jesse Patrick was indicted for the murder of Bud Patrick and was convicted of involuntary manslaughter. He filed a motion for new trial on the general grounds and several special grounds, the original motion and the amended motion were overruled by the trial judge, and the case is before this court by bill of exceptions.
The evidence produced on the trial was as follows: F. Q. Sammon, the undertaker, who prepared the body of the deceased, Bud Patrick, for burial, testified that the deceased was badly bruised about the face, and that most of the bruises on his face were located from his eyes to the top of his forehead; that he had a bruise on his chest, but it was of an old standing, older than the injuries about his eyes; also that he had known the deceased for a long number of years; that he had had high blood pressure for some time; that two weeks prior to his death the witness had carried him in an ambulance to the hospital; also that he was familiar with the house where the deceased lived; that the back porch is up 2 or 3 feet off the ground; and that there are cement steps down to the ground and a well nearby with cement all around it. The witness also, from his examination of the wounds on the deceased, stated his opinion that the same could have been caused by a fall.
Dr. W. P. Ezzard, the doctor who examined the deceased before he died, testified: that he was called to the home of the deceased; that the deceased was not conscious, and was paralyzed on his left side; that the deceased had bruises around his face, on his head, and around his right side, the skin was purplish and blue; that the deceased must have died from cerebral hemorrhage; and that, if a patient who was suffering from high blood pressure received a lick or blow from a blunt instrument or the fist of a human being, this had a tendency to produce a cerebral hemorrhage.
Irwin Chesser, a neighbor, testified: that Jesse Patrick came to his place Friday afternoon before Bud Patrick died, and talked to him at Mr. Chesser's corn crib; that at the time Jesse Patrick *Page 689 told Mr. Chesser about slapping his father and why he slapped him; that Jesse Patrick was drinking at this time. Chesser testified also about the bruises on Bud Patrick's face and head, and that Jesse Patrick did not tell him that his father fell off the porch, and did not ask him to get in the house; that Jesse Patrick came to his house twice that Friday night, the second time to ask about his mother, and ask Mr. Chesser if he saw her — she was too old to lay out all night; that Bud Patrick, the deceased, was in bad health, and had high blood pressure.
Raymond Knight, a neighbor, testified: that he saw two of Bud Patrick's granddaughters at night or about sundown; that they came running to his house, one barefooted and the other one had on shoes, and they were running and seemed to be scared; that Knight carried the girls to Lawrenceville; that the witness saw Jesse Patrick in Lawrenceville the day this happened; and that Jesse Patrick was drinking.
Mrs. Dora Patrick, the wife of the deceased and mother of the accused, testified: that he was not in the house when the girls left to go to Mr. Chesser's, and that they went to tell J. W. not to come home, as Jesse was mad at him and Jesse was "kinder" drinking; that, after the girls left, Bud Patrick, the deceased, fell from the porch; that she did not see her son hit his father; also that the general condition of the health of the deceased was bad. He got to where he could hardly stand up; didn't have any use of his legs hardly to get about; was troubled with falling about, and complained of his head swimming. The wound on his body, which the undertaker testified about was caused from a fall out in the crib one evening; he fell at the woodpile one day and skinned his face up; and he fell on other occasions. There was a screen door on the cook-room door where you go out on the back porch. Around 7 or 8 or 9 o'clock on the occasion in question, the deceased got up from the table, stepped out, pushed the screen door open, and fell out the porch. Jesse said he believed "Pa" fell out there, and he went running to look, and he was out there on the ground. Jesse went out and picked him up and put him to bed. Mrs. Patrick also testified that the deceased said he was not hurt much, and she did not think that he was hurt until he couldn't get up the next morning; also that she was not able to lift him when he would fall on other occasions; that he had been able to get up himself *Page 690 on each of the occasions by her standing by and suggesting to him how to go about getting up; also that the two granddaughters of the deceased, Virginia and Mary, left home that evening to find J. W., brother of the defendant, to tell him not to come home as Jesse was mad at him.
The defendant made a statement, in which he said that he did not recall telling Mr. Chesser that he had slapped his father. He corroborated his mother's testimony that his father fell off the back porch, and that he went out and carried him in and put him to bed. He stated that on that afternoon he had had an argument with J. W., his brother, and corroborated his mother's testimony to the effect that the girls left to tell J. W. that he (defendant) was going to whip him (J. W.), but instead of the defendant whipping J. W., the defendant stated that J. W. whipped him. He denied slapping his father. The evidence authorized a finding that Bud Patrick was dead; that he had certain bruises, principally located from his eyes to the top of his head; that prior to his death for some time he had suffered from high blood pressure; that he died from cerebral hemorrhage; that a lick or blow from a blunt instrument, a fist of a human being, or a fall from a porch approximately 3 feet high, would have a tendency to produce a cerebral hemorrhage; that on Friday, the day before the death of Bud Patrick on June 7, 1946, the defendant was drinking and told a witness that he had slapped his father; that the defendant was mad at his brother, J. W.; that two of Bud Patrick's granddaughters, Virginia and Mary, left home hurriedly the late afternoon of Friday, June 6, and acted in an excited manner, going to the home of Raymond Knight, and got him to take them to Lawrenceville; that on the night of Friday, June 6, Bud Patrick fell off his back porch between 7 and 9 o'clock, and was carried into the house and put to bed by the defendant, and that the granddaughters left home to tell the defendant's brother, J. W., not to come home, as the defendant was mad at him.
1. On the whole, after consideration of all the evidence in this case, we are of the opinion that the requirements of the statute *Page 691 quoted above as to the sufficiency of circumstantial evidence to support a conviction are not met, and it can not be said that this evidence is not consistent with every other reasonable hypothesis save that of the guilt of the accused. Burgess v.State, 164 Ga. 92 (137 S.E. 768); Riley v. State, 1 Ga. App. 651 (57 S.E. 1031); Long v. State, 5 Ga. App. 176 (62 S.E. 711); Carr v. State, 72 Ga. App. 9 (32 S.E.2d 914).
2. The circumstances relied upon by the State for a conviction in this case are as follows: (a) the death of the deceased produced by a cerebral hemorrhage; (b) the deceased's condition being such that a lick or blow from a blunt instrument, or from the fist of a human being, would have a tendency to cause cerebral hemorrhage producing death; (c) the defendant's admission that he slapped his father; (d) bruises about the eyes and head of the deceased, which could have been caused by a lick or blow from a blunt instrument, or the fist of a human being; and (e) the girls leaving in the late afternoon to get Raymond Knight to take them to Lawrenceville and appearing to be scared. The foregoing constitutes the State's theory of the case, and if the evidence authorized this theory only, it would be sufficient to authorize the verdict. However, the defendant's theory of the case, which is supported by unimpeached and undisputed testimony, is that the injuries and bruises of the deceased, resulting in his death, were caused by an accidental fall from a porch approximately 3 feet high, the defendant carrying him to bed, from which he never got up, but died the following night, and that the circumstance of the excitement of the girls was because they were going to tell J. W., brother of the defendant, not to come home because the defendant was mad at him. Hence, the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence. Where the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and the other consistent with innocence, the justice and humanity of the law compel the acceptance of the theory which is consistent with innocence. Davis v. State, 13 Ga. App. 142 (78 S.E. 866).
The case having been reversed on the general grounds, it is not necessary to consider any of the grounds set forth in the amended motion for new trial.
The trial court erred in overruling the motion for new trial.
Judgment reversed. MacIntyre, P. J., and Gardner, J.,concur. *Page 692