Warren v. State , 153 Ga. 354 ( 1922 )

Fisi-i, C. J.

(After stating the foregoing facts.) There is no merit in the amendment to the motion for new trial. The case is one of circumstantial evidence, and of course it was not error to give the jury the definition of that character of evidence and when it is sufficient to authorize a conviction, as stated in the Penal Code (1910), §§ 1009, 1010.

The case turns upon the question whether the corpus delicti was sufficiently proved. Before a conviction can be legally had on the charge of murder, it is essential, in proving the corpus delicti, to show that the person alleged in the indictment to have been killed is actually dead, and that the death was caused or accomplished by violence, or other direct criminal agency of some other human being. 1 Whart. Cr. L. (11th ed.), § 347. In 1 Whart. Cr. Ev. (10th ed.), § 325d, it is said: “ The general rule in homicide is that the criminal agency — the cause of the death, the second element of the corpus delicti — may always be shown by circumstantial evidence. To sustain a conviction, proof of the criminal agency is as indispensable as the proof of death. The fact of death is not sufficient; it must affirmatively appear that the death was not accidental, that it was not due to natural causes, and that it was not due to the act of the deceased. . . It must affirmatively appear that death resulted from criminal agency. But the criminal agency is sufficiently shown where a dead body is found with injuries apparently sufficient to cause death, under circumstances which exclude inference of accident or suicide;” etc. This principle was applied in Langston v. State, 151 Ga. 388 (106 S. E. 903), where many decisions of this court on the same line are cited and discussed.

To authorize a conviction in this case, it was necessary for the State to prove beyond a reasonable doubt that Lucinda Underwood • was dead, and that she was killed by being choked or strangled with the hands of the defendant, or by being smothered or suffocated by having her head wrapped up with a quilt by him, or by his burning her with fire. And the evidence being wholly circumstantial, the proved facts had not only to be consistent with the hypothesis that the defendant caused her death by one or more of such methods, but had to exclude every other reasonable hypothesis save that of her guilt as charged. The State failed to prove that she was burned to death, as the State’s witness, Ida Cunningham, testified positively that her sister, Lucinda, was dead when she saw her body lying in the defendant’s yard wrapped in a quilt, and before it was carried to the house where it was found in the fireplace. And she also testified that she saw the defendant set fire to the quilt after the dead body had been placed by herself and the defendant in the fireplace. . There were no marks of violence found upon the body of Lucinda, except those caused by the burning of the quilt, and a burn on her back which she had suffered some time before the homicide. Dr. Mitchell testified that he discovered no marks of violence upon the dead body, except the burns, and that (to quote him) “I have not made up a definite opinion as to how her death was produced; there are two or three different ways it could have been produced; she could have been strangled, suffocated and burned, overcome with flames.” We have already stated that it appeared that her death was not caused by burns, and the doctor, as we have seen, found no evidence to indicate that she was strangled or suffocated. He merely thought that her death could have been caused by such means. This may be true, but why could it not have been caused by other means than by strangulation or suffocation P Of course, the jury had the right to believe the testimony of Ida Cunningham to the effect that the defendant some time during the night awakened her by calling her in a tone sufficiently loud to awaken his wife, and demanded that she (Ida) come .out. into the yard and help to remove the dead body of her sister. If the defend-. ant had killed Lucinda by strangling or choking her, or by suffocation by wrapping a quilt around her head, and her body was lying in his yard, why did he wish to remove it several hundred yards away to the tenant-house, and to awaken the sister of the dead girl, thus making a witness against him, and requiring her to aid him in carrying the body to the house ? Why did not he leave it in the yard, or, if he desired to move it to the house, why didn’t he carry it himself ? Lucinda was an-18-year old girl, and it did not appear that she was of unusual weight, n.or did it appear that the defendant was not an able-bodied man. Besides, no motive whatever appears why the defendant should take the life of the deceased. She was a laborer on his farm, and, so far as the record shows, without pay, except as to what she ate. On the inquest and the committal trial Ida Cunningham’s testimony was directly to the contrary of what she testified on the trial in which the-defendant was convicted. It is true that she testified that on the former trials she was scared; that she was afraid of the defendant; that he had threatened to kill her if she told. Told what ? Told that he had waked her up at night and told her to come out and help to carry away the dead body of her sister; that he had made her do this, and that they had placed the dead body in the fireplace of the tenant-house, and that defendant had set fire to the quilt wrapped around the dead body. But, as we have said, the credibility of the witness was for the jury alone to determine. 'Evidently they believed her worthy of credit; and this court can not say that the jury erred in respect of this matter. We cannot grant a new trial for the reason that we might not have believed the witness if we had been on the jury. However, a reversal of the overruling of the motion for a new trial must be had, for the. reasons that the evidence was not sufficient to show, beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, that the death of Lucinda Underwood was caused by a criminal agency, and was not the result of accident, or disease, or of her own act; and that, considering the testimony of Ida Cúnningham as true, it wholly fails to prove the necessary elements of criminal agency of the corpus delicti, and fails to prove that the defendant caused the death of Lucinda by one or more of the means charged in the indictment. In support of our conclusion see 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); Epps v. State, 149 Ga. 484 (100 S. E. 568); Langston v. State, 151 Ga. 388 (106 S. E. 903); State v. Flanagan, 26 W. Va. 116; Sheppard v. State, 17 Tex. App. 74.

If Ida Cunningham’s testimony be true, it casts a grave suspicion upon the defendant as to the cause of Lucinda’s death; yet a conviction can not, of course, stand based upon a serious suspicion alone. For the reasons stated the judge erred in not granting a new trial.

Judgment reversed.

All the Justices concur, except Beck, P. J., dissenting. Hill, J., concurs specially. _

Beck, P. J.

Being of the opinion that there was some evidence to authorize the jury to find that the defendant committed the murder as charged in the indictment, I dissent from the ruling of the'majority.