Collier v. State , 154 Ga. 68 ( 1922 )

Hines, J.

(After stating the foregoing facts.)

The case not depending on circumstantial evidence alone, a new trial will not be granted because of the failure of the court to charge the rule applicable to the sufficiency of circumstantial evidence to authorize a conviction. Where the case is one wholly of circumstantial evidence, this principle must be given in charge without request. Hamilton v. State, 96 Ga. 301 (22 S. E. 528); Weaver v. State, 135 Ga. 317 (2) (69 S. E. 488); The rule is otherwise when the case is a compound of direct and circumstantial evidence, and does not rest upon circumstantial evidence alone. McElroy v. State, 125 Ga. 37 (53 S. E. 759); Nobles v. State, 127 Ga. 212 (56 S. E. 125); Brannon v. State, 140 Ga. 787 (7) (80 S. E. 7); Cantrell v. State, 141 Ga. 98 (7) (80 S. E. 649; Mitchell v. State, 151 Ga. 450 (107 S. E. 43). In Scroggs V. State, 147 Ga. 737 (95 S. E. 226), there was a request to charge this principle, which was refused by the court.

Error is assigned upon the charge of the court on malice. This instruction is fully set out in "the -statement of facts. The error assigned is that the court erred in using the language, “ jealously, . . or the frenzy of drunkenness,” as there was no evidence on which to base this language. It is elementary that it is error for the court to give instructions to the jury not bottomed upon evidence. Dyal v. State, 103 Ga. 425 (30 S. E. 254).

But the trial judge can use illustrations to make clear and plain the meaning of an instruction given to the jury, care being taken not to mislead, confuse, or prejudice the defendant in the eyes of the jury. Parker v. Glenn, 72 Ga. 638 (5a), 649. It is one thing to give an instruction not based on evidence, and quite a different thing to illustrate such instruction by facts not in evidence. It is not error for the trial judge, in an instruction to the jury, to state hypothetical illustrations of a legal principle, unless it be done in such manner as would imply that they were intended to be used as facts which had been proved by the evidence. Sharpe v. State, 48 Ga. 16. A reversal will not result from the fact that the court in its charge referred, by way of illustration, to evidence which was not in the record, provided that the jury were referred to the testimony and directed to examine it for themselves; and were reminded that they were the exclusive judges of the facts, irrespective of any opinion which the court might entertain or express respecting them. Stephen v. State, 11 Ga. 225

Where the trial judge in charging the jury correctly states the law governing the ease, but exception is taken to an illustration used by the court explanatory Of the instruction given, this court will not narrowly scrutinize the illustration, if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead, the jury. Wilson v. State, 33 Ga. 207.

The illustrations given by the court tended to show what is meant in law by malice, and were apt illustrations of the idea intended to be conveyed. Central Railroad v. Smith, 80 Ga. 526 (4) (5 S. E. 772).

The real question in this case was the identity of the slayer. The element of malice was not an issuable fact, as the atrocity of the homicide clearly showed malice in the slayer. This instruction of the court on malice could hardly have misled or confused the jury.

The court charged in totidem verbis section 1018 of the Penal Code upon alibi as a defense. The complaint is that this instruction put upon the defendant the burden of showing that it was impossible for him to have been present. The burden of establishing the defense of alibi, when set up as a defense by the defendant, rests upon him; and in order to establish an alibi the state of facts relied on must be such that, if true, it was impossible for him to have been at the scene of the crime when it was committed. The proof must have such range, both as to time and place, that it would be out of the power of the defendant to have been where the proof of alibi placed him and also at the scene of the crime. The evidence on this subject must be such as reasonably to exclude the possibility of his presence at the scene of the crime. Johnson v. State, 59 Ga. 142; Wade v. State, 65 Ga. 756 (4); Harris v. State, 120 Ga. 167 (47 S. E. 520); Hunter v. State, 136 Ga. 103 (70 S. E. 643). The court did not commit error in its instruction on this subject.

The verdict is supported by evidence. We can not say that it is without evidence to support it. It has received the sanction of the trial judge.

Judgment affirmed.

All the Justices concur, except Gilbert, J„ absent, and Hill, J., dissenting.