Shellman v. State , 157 Ga. 788 ( 1924 )

Hines, J.

(After stating the foreging facts.)

The defendant excepts to an instruction by the court to the jury, that the State contends that the prisoner made certain incriminatory statements. The defendant asserts that these state■ments were not incrimitory, and that, for this reason,” the charge of the court that the defendant had made incriminatory statements was prejudicial to his case.” The court did not tell the jury that the defendant had made incriminatory statements, but only instructed the jury that the State contended that he had made certain specific incriminatory statements. It is one thing to tell the jury that the defendant had made incriminatory statements. It is quite a different thing to tell them that the State contends that he made such statements. The former instruction might violate our statute which prohibits the trial judge from expressing any opinion upon what has or has not been proved. If the exception to this charge had been that it was erroneous to state a contention of the State, not bottomed upon evidence, a different question would have been presented. But if the exception had been in this form, we shall undertake to show, in dealing with the next instruction which we shall consider, that it would have been without merit.

The judge charged the jury that if they found that the defendant had made incriminatory statements, they should receive them with caution, and give them such weight as they might think proper. The error assigned on this charge is that there is no proof of any inculpating statements. Was there proof of incriminatory statements? The defendant made two contradictory statements to the policeman, as to the manner in which the deceased came to her death. One was that he was lying upon a couch asleep, heard the -pistol go off, got up, and found the deceased was shot. The' other statement was that he and the deceased were tussling with the pistol and it went off and accidentally killed the deceased. Were these statements incriminatory ? It is well to first define what an incriminatory statement is. Such a statement is not a confession of guilt. The latter is an admission of guilt. Owens v. State, 120 Ga. 296 (48 S. E. 21); Riley v. State, 1 Ga. App. 651 (57 S. E. 1031). An incriminatory statement is one which tends to establish the guilt of the accused, or one from which, with other proved facts, his guilt may be inferred, or one which tends to disprove some defense set up by the accused. “An admission, as applied to criminal cases, is the avowal of a fact or of circumstances from which guilt may be inferred, but only tending to prove the offense charged, and not amounting to a confession of guilt.” Riley v. State, supra. So an acknowledgment of his presence at the scene of the crime by the defendant, while not a confession, is an incriminatory circumstance. Dumas v. State, 63 Ga. 600 (7). Statements by the accused, which only tend to prove his participation in the crime charged, are incriminatory only, and are not direct, but circumstantial evidence. Covington v. State, 79 Ga. 687 (7 S. E. 153). It is not necessary that the admitted facts be sufficient to authorize the conviction of the defendant. In Covington v. State, supra, Judge Bleckley well said: “He admitted facts which were very powerful evidence against him of complicity in the burglary, but all the facts he admitted could have existed consistently with his perfect innocence of the crime of burglary. And it seems to have been his design in all his statements not to inculpate himself, but to exculpate himself. He made the admissions, not for the purpose of conceding that he was guilty, or with any view to confess his guilt, but in the line of a denial of guilt.”

In Kidd v. State, 101 Ga. 528 (28 S. E. 990), there was evidence that the accused admitted being near the scene of the crime,- and that he went there with another and saw the latter commit the offense. The court charged the jury in substance, that, if any such admission had been made, the jury might look to it, not as a confession of guilt, but as a circumstance to be considered by them in reaching a conclusion as to whether or not the accused was guilty of the crime charged. This court held that there was no error in this instruction. Judge Lumpkin said: “It was the right .of-the jury, if they found that such an admission had been made, to believe a part of it and reject the balance; and, so doing, they plight have concluded that the accused was not only present when the crime was committed, but also that he participated in its perpetration, instead of being merely an innocent spectator.” “Declarations made with an exculpatory object may have an inculpatory effect.” Fletcher v. State, 90 Ga. 468 (17 S. E. 100).

In Lee v. State, 102 Ga. 221, 225 (29 S. E. 264), this court, speaking through Judge Little, said: “The words of themselves are entirely consistent with innocence on the one hand, and yet, with a full understanding of all the facts in the case, the jury might give them a significance which would be material in finally passing on the guilt of the accused. The words spoken were admissible in evidence, because susceptible of being construed, in the light of other facts, as an admission against his right of ownership in the property he is charged to have stolen, but were not admissible as a-confession of guilt.” Contradictory statements made by a defendant when charged with murder, for the purpose of explaining the manner which the deceased was killed, are necessarily admitted upon the theory that they tend to establish his guilt or to disprove some defense set up by him.

So we are of the opinion that the instruction complained of was not erroneous for the reason that the statements made by the defendant were not incriminatory. If the jury found that the defendant made these statements, they might infer therefrom, and from all the other facts in the case, that he was guilty of the crime charged. The jury would be authorized to find that they were incriminatory or had a tendency to incriminate the defendant. Whether they did so or not, the court properly left to the determination of the jury.

It is alleged that the verdict is contrary to the instruction given by the court to the jury on the subject of accidental homicide. This contention is tantamount to asserting that the verdict is contrary to law, because unsupported by the evidence. In this we cannot concur. There is evidence to support the verdict.

Judgment affirmed.

All the Justices concur.