1. Where, as here, the indictment is in two counts each charging the accused with the offense of murder, it is not incumbent upon the court to deal separately with each count in the charge to the jury. See Fry v. State, 141 Ga. 789 (82 S. E. 135); Nobles v. State, 98 Ga. 73 (26 S. E. 64); Stewart v. State, 58 Ga. 577; Dohme v. State, 68 Ga. 339; Williams v. State, 69 Ga. 11 (8); Berrien v. State, 156 Ga. 380 (119 S. E. 380).
2. It is only in cases where the State relies wholly on circumstantial evidence that Code 38-109 must be charged without request. Nobles v. State, supra; Jones v. State, 147 Ga. 357 (94 S. E. 248); Williams v. State, 196 Ga. 503 (26 S. E. 2d, 926); Campbell v. State, 202 Ga. 705 (44 S. E. 2d, 963).
3. Where the murder was alleged to have been committed with an automobile upon the highway, and there was evidence that the accused was under the influence of intoxicants, approaching the summit of a hill and a curve, and as to the position on the highway of blood and other evidence of where the deceased was struck, the court did not err in charging Code (Ann.) 68-303 (Ga. L. 1927, p. 236). Juries have enough intelligence to know when there is no evidence and to understand that this charge does not authorize them to make a finding without evidence. See Jones v. State, 185 Ga. 68 (194 8. E. 216); Smith v. State, 200 Ga. 188 (36 S. E. 2d, 350).
4. The remaining special grounds complain of argument by the solicitor-general that the evidence shows that the accused made improper advances to the deceased and thereby caused her to get out of the car. Anyone seeking the truth would try to discover why she got out of the car. The evidence indicates that she did so for the reason contended by the solicitor-general. The argument was a reasonable deduction from the evidence and should have been allowed. But the court instructed the jury that there was no evidence to that effect, and certainly it was no abuse of discretion to refuse a mistrial. Georgia Power Co. v. Puckett, 181 Ga. 386 (182 S. E. 384); Smith v. State, 204 Ga. 184 (48 S. E. 2d, 860); Hicks v. State, 196 Ga. 671, 673 (27 S. E. 2d, 307). The evidence here renders inapplicable Berry v. State, 10 Ga. 511; Ivey v. State, 113 Ga. 1062 (39 S. E. 423); Harris v. Harris, 183 Ga. 106 (187 S. E. 669); relied upon by the movant.
5. The evidence not only supports the verdict, but it also shows a most brutal and heartless killing of a girl who thought she was going for a pleasant ride.
Clyde C. Gentry was convicted in Gordon Superior Court of the crime of murder, and the jury recommended mercy. The indictment, being in two counts charged: first, that Gentry, with malice aforethought, killed and murdered Bobby Jean Baxter by operating and driving a motor vehicle, an automobile, against, upon, and over the deceased, thereby inflicting mortal wounds and injuries from which she died; and second, that Gentry, with malice aforethought, killed and murdered Bobby Jean Baxter by driving and operating a motor vehicle, an automobile, over, along, and upon a highway of this State while under the influence of intoxicating liquors and drugs and while approaching the deceased, a pedestrian, did then and there fail and refuse to have the automobile under immediate control, all of which unlawful acts did result in inflicting mortal wounds and injuries to the deceased by driving the automobile against, over, and upon her, from which she died.
An examination showed that his right fist was swollen and scratched, and he had blood on his hands and clothing. He later made a written statement that, after he left Mrs. Mathews' house, he did not know what happened until he got on a dirt road and he was alone in the car; that he then turned around and started looking for the deceased; that she "was squatting down and I ran over her with my car." He then stated that he became confused as to directions, after he had put her in the car, and came to Dalton instead of Calhoun.
An examination of the underside of the car showed bits of fur, clothing, and black hair, and marks were present where mud and grease had been rubbed from the bottom of the car by some object being dragged under it. Testimony by an expert was made that the fur found on the underside of the car was similar in texture to that of the fur coat worn by the deceased and that the fibers in the scraps of clothing were the same as those in the girl's slip and dress. Gentry was unable to tell the officers the exact spot where he ran over her, but after a diligent search it was finally located on the "Dews Pond Road," a short distance out of Calhoun in Gordon County. A pair of lady's shoes, earrings, a man's handkerchief, and some cleansing tissues containing lipstick smudges were found near a spot of blood in the road. Particles of fur, hair, and white particles later identified by an expert as enamel from human teeth, were found in the roadway at the spot of blood. There was also expert testimony that the fur found here was similar to the fur found under the car and to the fur of the fur coat which the deceased was wearing. Medical testimony disclosed that two of the deceased's upper teeth were apparently knocked or broken out. The shoes and earrings were identified as those worn by the deceased the night of the homicide, and there was evidence that the accused had had a handkerchief the night of the dance, but that he did not have one when he was arrested in Dalton.
Marvin Cox testified that, in talking to Miss Baxter and Gentry, Miss Baxter asked him to tell Gentry that she was a "nice girl," and that when he did so Gentry laughed and said, "I don't like nice girls." There was also testimony that on a previous occasion Miss Baxter had got out of Gentry's car to walk when she was with him.
The defense offered testimony to explain the incident in which Miss Baxter had previously left Gentry's car by showing that she had done so with another boy to get her brother's car and to stay out almost all night with him. A number of character witnesses testified to Gentry's good character, and the defendant then made an oral statement which contradicted previous admissions by him to officers and a written statement made by him. In his statement he denied that he ran over the deceased, but said that she was sick and asked to get out of the car, that he drove up the road to turn around, and when he returned he found her lying in the road and carried her to Dalton after getting confused as to his location. He further stated that he was a Navy veteran and had been in four major battles in the Pacific and was hospitalized for battle fatigue in the Philippine Islands; that he was emotionally upset from the terrible shock when he signed the statement in which he admitted running over the deceased and that the contraceptives found in the car belonged to some boys who had used his car previously.
Numerous photographs by both sides and the clothing of the deceased were submitted in evidence. In addition the State offered rebuttal testimony to show that the accused had been allowed to eat and was not under duress when he signed the written statement submitted in evidence.
A motion for new trial was made, containing the usual general grounds, which was later amended by adding five special grounds. The motion was overruled after a hearing, and the bill of exceptions is to that judgment.
M. G. Hicks, C. C. Pittman, and Harbin M. King, for plaintiff in error.