1. The evidence in the case, which was entirely circumstantial, was insufficient to authorize the verdict of the jury.
2. The testimony set out in special grounds 4 and 7 was relevant to illustrate motive, and was properly admitted.
3. The testimony contained in ground 5 did not illustrate motive, and did not serve to connect the defendant with the crime charged against him. It was prejudicial to him, and should not have been admitted.
Erwin Grady Rodgers was indicted for the murder of his wife, Ina Patricia Rodgers, and his trial resulted in a verdict of guilty with a recommendation of mercy. The evidence relied upon by the State to convict the defendant was entirely circumstantial.
John L. Sparks, the police officer first investigating the scene of Mrs. Rodgers' death, related the following (on direct and cross examination): On March 28, 1957, a call was received indicating that someone had been shot at the home of the defendant. He arrived there about 8:45 or 8:47 o'clock p.m. When he got out of his car he met the defendant coming from the house next door. The defendant told the witness that he had just shot a man. The defendant said that he did not know the man. The witness asked the defendant where the man was, and the defendant said that the man was in the car of the defendant's wife, parked at the back door. They walked over to the car, and as they did the light from the witness' flashlight shone on a pocketbook lying by the side of the car. The defendant picked it up and said that it was his wife's pocketbook. The defendant then opened the car door. A Negro man was in the car, sitting under the steering wheel, and slumped over on the right hand side of the car, very bloody. The man had rubber gloves on his hands. When they removed the body they found the car keys under the man's shoulder. The defendant showed the witness the pistol that he had laid on the back step. They talked a few minutes, and the defendant "was wondering if anything happened to his wife." The witnessed asked the defendant what happened, and the defendant related that he came in late and went into his bedroom, and was sitting on the side of the bed reading a paper; he heard a commotion and looked around and saw somebody running out of his wife's bedroom; he ran out and called for the person to stop, and followed him to the back door; he went back into his bedroom and got a pistol out of his dresser drawer; he came to the back door and the man was sitting in his wife's car. The witness saw a bruise on the defendant's head. The defendant stated that the man pushed the car door back and hit his head. The witness and the defendant went into the house. When they started through the kitchen, the witness noticed that the bathroom light was on, and when they got through the kitchen door, almost to the bathroom, they could see Mrs. Rodgers' head and shoulders. The defendant threw his hands up over his eyes, and said, "Oh, God", and the witness took him out of the house and to the home of Mrs. Smith, who lived next door.
Albert Lingerfelt, an employee in the detective department of Cobb County, testified that later during the evening he went to the Smith home, where he found the defendant sitting in the living room, with a cloth on his forehead. They talked with him and left. Later they went back and got the defendant and took him by the funeral home to see if he could identify the man that he had shot. At the funeral home the defendant identified the man as Richard Jackson.
Mrs. Smith testified: On the evening of the homicide she put her little boy to bed between 7:45 and 8 o'clock p.m. She went back in the living room and lay down and turned on her television set. She heard something like a hammering or a loud noise, but did not pay any attention to it. Shortly thereafter she heard six shots. She heard a car come into the driveway next door between 7:45 and 8 o'clock p.m. She did not hear any other car prior to the shots. A few minutes after she heard the shots, she heard a pounding on her door. When she opened the door the defendant was there, and she asked him to come in. He told her that he had shot a man. She suggested that he sit down, and told him that he should not go back until she called the police and an ambulance. The defendant told her that he was in his room reading the headlines; he heard a noise in the hall and thought his wife had gone into the bathroom; he called to her and she did not answer; he saw a man's "coat-tail" go through the hall; and he grabbed his gun and went after him. The witness asked the defendant where his wife was, and he said she was in the house. The witness noticed that the defendant had some blood on his forehead, and she got a cold cloth and placed it on his head.
Howard Alley testified that Mrs. Rodgers made a business visit to see him on the night of March 28; that she arrived just a few minutes before 8 o'clock, and left a little past 8:10.
Mrs. Joyce White, an employee of the East Marietta Drug Company, testified that she saw the defendant on the night of March 28 in the drugstore, and that it was between two and five minutes after 8 o'clock when he was there.
M. A. Neary testified that he saw the defendant on the night of March 28, at the East Marietta drugstore; that the witness went out right after the defendant; that he followed the defendant in his car until the defendant was within a block of his home; that they left the drugstore at about 8:05, and the witness got home at about 8:10.
J. D. Hollingshead, a Cobb County Detective, testified that he talked with the defendant on the night of the homicide; that he checked the defendant's fingernails at that time; that they were rather short and trimmed round; and that he asked the defendant to clean out under his fingernails, but the defendant could not get anything from under his fingernails. The witness stated that he had tested the time that it would take to drive from the home of the witness, Mr. Alley, to the home of the defendant. At a speed of 25 or 30 miles an hour it took about six minutes by one route and seven minutes by another. He estimated that it would not take more than ten minutes at any time.
Harold Griggs, an employee of Cobb County, testified: The witness had a conversation with the defendant on the night of the homicide. He asked the defendant if he knew the man that was shot, and the defendant said that he had a part-time employee known as Richard Jackson; that he saw Richard Jackson that morning and again at 2:30 that afternoon; and that he dropped him off at Piedmont and Linden Avenue in Atlanta. The defendant gave the witness the following account of the occurrence at his home: He got home about 8:30, and his wife's car was parked in the usual place in the driveway. There were no lights in the house, and the back door was partly open; he went up the hall to his room; as he passed his wife's bedroom, the door was about one-fourth open; he went in his room and laid the newspaper on the bed, picked up the front page and laid it on the dresser; he heard a noise, and he looked and saw somebody going down the hall; he called to him and then followed him to the kitchen door; when the man went out the kitchen door, he returned and got a revolver, and then pursued the man through the kitchen and into the yard; the first thing that he knew the man was at the door of his wife's car; he rushed out and left the door open, and the man shoved or kicked it, and that caused the abrasion on his head. When they examined the body of the man in the funeral home, the defendant identified him as Richard Jackson, who had worked for him.
Dr. L. B. Howard, from the Crime Laboratory of Georgia, testified: He examined the body of Richard Jackson, and found evidence of five bullets having entered the head and shoulders of Richard Jackson. The bullet causing the wound in the left shoulder was fired at a distance of approximately four inches, and the other bullets at a distance of twelve to sixteen inches.
Dr. Herman Jones, Director of the State Crime Laboratory, testified that he had performed an autopsy on the body of Mrs. Rodgers, and he gave a detailed account of the wounds he observed on her head, face, neck, and throat, and the indentations made by the fingers of the attacker. He further testified that it was his opinion that Mrs. Rogers' death was caused by strangulation. The impressions of the fingers "were rather concaved, on a curve, and a very fine, a fine type of indentation. Those indentations were not broad or pushed out in the area there in a wide manner." The skin had not been broken at the place of the indentations. In his opinion the indentations on Mrs. Rodgers could not have been made by a person wearing rubber gloves. (The witness demonstrated to the jury the position of the hands of the person strangling Mrs. Rodgers, as indicated by the indentations on her face and throat.) He examined the fingernails of Richard Jackson, and they were cut square across, rather thick, and came out just a little beyond the end of the skin of the fingers. He did not see how fingernails of that type could have made the impressions found in the skin of Mrs. Rodgers' neck. (On examination of the fingernails of the defendant in the courtroom) it was his opinion that fingernails of the type of the defendant made the impressions. He examined the clothing that Mrs. Rodgers was wearing and found that the fibers of her suit under certain light showed a very brilliant light blue color. He found these same fibers on the pants of Richard Jackson, beginning about the belt-line and going down the right side and right pants leg. The fibers were also found on both shoes of Richard Jackson and on the rubber gloves which he was wearing at the time of his death.
Dr. Jones was asked the question: "From your observation and examination of the clothing of Richard Jackson . . . in what position did the body of Richard Jackson come in contact with that of Mrs. Rodgers?" He replied: "From the fibers on his britches, his pants, I think he would have had to put his right to her left, or certainly to his right I would say." He was then asked: "If a person was in that position could they apply the marks into the throat in the manner that you have described you found on her body?" The witness replied: "Well, if they were applied from this position, the two marks there showed the right hand was here, for the indentations should have been on the left side of her body and the one on the right, or if you used the left then the position of the two indentations on the neck here in the reverse order."
Gertrude Pitts, who operated a sandwich shop in her home on Osborne Road in DeKalb County, testified that she saw Richard Jackson in her shop on March 28, between 2:30 and 3 o'clock p.m. She stated that she saw the defendant pass by her place going north five times on March 28, traveling in a black and white Buick, between 6:30 and 7.
Lee Smith, a cousin of Richard Jackson, testified: He saw Richard Jackson on March 28 at approximately 5:15 o'clock p.m. He met him at the corner of Osborne Road and Frazier Street. They had a drink together, and Jackson asked him for money for car-fare. Richard Jackson had never operated an automobile in his life.
The written statement of the defendant, dated March 28, was introduced in evidence. It was, in part, as follows: That morning at about 10:30 o'clock Richard Jackson, who worked for him at his place of business in Atlanta, came there and tried to borrow $5 from him, which he refused to loan him. Richard Jackson left, and about 2:15 p.m. called him by phone and said than it was very important that he talk with him. He told Jackson that he would be at Auburn and Courtland Street at about 2:30. When he picked Jackson up in his car, Jackson was telling him that he needed money because he was behind in his rent and his landlady had locked his family out. He told Jackson that he could not help him, and Jackson asked that he be allowed to ride to Linden Avenue, that his brother had promised to let him have a couple of dollars. He let Jackson out at the corner of Piedmont and Linden Avenue. He then drove by Chamblee, went by his home, went by the police station to get his driver's license, and then back to his office in Atlanta. He left there about 6:30, and drove over to Peachtree and Linden Streets and got something to eat. He stopped at Tenth Street and looked in some shop windows for about five minutes. He came to Howard Johnson's Restaurant and got a cup of coffee, then stopped at the East Marietta Drug Store, and from there went to his home.
In his written statement the defendant gave substantially the same account of what occurred in his home as the oral statements he had made to the officers. He related that there had been disagreements between him and his wife, and they had discussed a divorce.
1. The defendant strongly insists that the court erred in overruling the general grounds of his motion for new trial. We have set out a rather full statement of the circumstantial evidence on which the State relies to sustain the verdict.
The evidence in the present case is insufficient to exclude every other reasonable hypothesis except the guilt of the accused. There is no evidence to connect the defendant with the strangulation of his wife; there are only unexplained and suspicious circumstances, and these are not sufficient to convict a person of murder. Young v. State, 121 Ga. 334
(49 S. E. 256); Park v. State, 123 Ga. 164
(51 S. E. 317); Reynolds v. State, 170 Ga. 810
(154 S. E. 229); Cornwell v. State, 179 Ga. 668
(177 S. E. 235); Redwine v. State, 207 Ga. 318
(61 S. E. 2d 481); June v. State, 213 Ga. 311
(99 S. E. 2d 70).
2. In special ground 4 it is contended that the court erred in allowing the State to introduce certain testimony of Mrs. Marion Benson. The testimony set out in this ground is, in substance: She had frequently had meetings with the defendant on a social basis; he told her that he was not married; she became suspicious about his marital status; he later told her that he was legally separated from his wife and they were contemplating divorce; he had borrowed $1,200 from the witness; on one occasion he was at her home having dinner, and his wife came there and chided her husband in regard to his affairs with other women; the witness had dated the defendant after this occurrence; they had discussed marriage, although she did not remember that he had ever actually asked her to marry him.
The defendant objected to the admission of each and every portion of this testimony, on the grounds that it is extraneous under the bill of indictment; it seeks to charge the defendant with a separate and distinct violation of the law; it is prejudicial; and it placed the defendant's character in issue, when he had not offered to place his character in issue.
In ground 7 it is insisted that the court erred in admitting the testimony of Mrs. John M. Allison, to the effect that she had some dates with the defendant; he told her that he was a widower; he tried to borrow $1,200 from her, but she did not lend it to him. This testimony was objected to on the grounds that it was irrelevant, immaterial, prejudicial, and did not illustrate any issue under the indictment.
It is the opinion of the majority of the members of this court that this testimony of Mrs. Benson and Mrs. Allison was relevant on the issue of motive of the defendant to commit the crime with which he was charged. Wilson v. State, 150 Ga. 285 (103 S. E. 682). This view is not concurred in by Mr. Chief Justice Duckworth, Mr. Presiding Justice Wyatt, and the writer.
This evidence was objected to upon the grounds that it is extraneous under the bill of indictment; it seeks to charge the defendant with a separate and distinct violation of the law; it is prejudicial; and it puts the defendant's character in issue, when he had not put it in issue.
"The general character of the parties, and especially their conduct in other transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct." Code 38-202.
There was no logical connection between the incident related by Mrs. Benson and the crime with which the defendant was charged, the strangulation of his wife. This testimony was not relevant on the issue of motive, and did not serve to connect the defendant with the crime charged against him. It was error to admit this testimony of Mrs. Benson in regard to the defendant's conduct in exhibiting a pistol on an occasion completely removed from the homicide under investigation, since it reflected on his character, and was prejudicial to him. Fountain v. State, 149 Ga. 519
, 526 (101 S. E. 294); Anderson v. State, 206 Ga. 527
(57 S. E. 2d 563); Rooker v. State, 211 Ga. 361
, 363 (86 S. E. 2d 307); Montos v. State, 212 Ga. 764
, 766 (95 S. E. 2d 792).
4. In ground 6 error is assigned on two extracts from the charge of the court incorporating language on "aiding and abetting another" in the commission of the crime charged. The first extract is as follows: "In other words, gentlemen, before you could convict this defendant you must believe that a crime was committed as charged in the bill of indictment, and you must also believe beyond a reasonable doubt that this defendant was the person who committed the crime either himself or was present aiding and abetting another in the commission of the crime and that such aiding and abetting was wilfully, knowingly and maliciously done." The second extract is a similar statement by the trial judge.
Counsel for the defendant in their brief recognize the principle of law that, even though a defendant is indicted alone, as a principal in the first degree, "he may be convicted as such on evidence proving him guilty as a principal in the second degree." Nelson v. State, 187 Ga. 576 (2) (1 S. E. 2d 641), and cases cited. It is contended, however, that the evidence in the case was insufficient to show that the defendant was guilty of the crime charged either as the actual perpetrator of the crime, or by aiding and abetting another.
It was the State's theory of the case that the defendant had procured Richard Jackson to murder his wife and had assisted him in the accomplishment of this design. If the evidence had been sufficient to prove this assumption, it would be immaterial whether the jury had found the defendant guilty as being the actual perpetrator of the crime or as being the principal in the second degree. However, the evidence was insufficient to prove any connection of the defendant with the crime charged, and it was therefore error to charge the jury on "aiding and abetting another" in the commission of the crime. Goolsby v. State, 147 Ga. 169 (2)
(93 S. E. 88); Crawford v. State, 178 Ga. 743
(174 S. E. 335); McCluskey v. State, 212 Ga. 396
(93 S. E. 2d 341).
Judgment reversed. All the Justices concur, except Candler, J., who dissents. Duckworth, C. J., Wyatt, P. J., and Head, J., concur in the judgment of reversal, but dissent from the ruling made in division 2 of the opinion.