Pressley v. State , 205 Ga. 197 ( 1949 )

1. Where evidence is admitted over objection, but thereafter during the trial the same facts are testified to by another witness without objection, the admission of the testimony of the first witness is not cause for reversal.

(a) Where a criminal enterprise between two coconspirators is shown not to have terminated, declarations made by one of them during its pendency are admissible against the other.

2. The evidence was sufficient to prove the corpus delicti and to authorize the jury to find the defendant guilty of murder.

3. A health record of its enlisted personnel, kept by the United States Navy, is a public record; but, in the absence of an admission in open court that a document offered as such is in fact the original record, its contents can be proved only by a duly certified copy thereof.

(a) It is reversible error to allow an expert witness to base an opinion upon a comparison of a human bone, which is in evidence, with what he says a chart of an official Navy health record shows, when such record itself is not introduced in evidence.

No. 16578. APRIL 12, 1949. James D. Pressley and John Howard Long were jointly indicted for the murder of William Edmond Edwards. Pressley demanded a severance, and was tried separately, convicted, and sentenced to be electrocuted. His amended motion for new trial was overruled and he excepts.

The State's evidence showed that a human skeleton was discovered by officers in a search directed by the defendant Long, and a physician testified that a hole in the skull back of the left ear could have been produced by a person with a pistol, and that such a blow could have produced death. He further testified that the hole could have become shorter, due to a sluffing off of the bone since death, but that it would have required considerable pressure to push the piece of bone out of the skull where the hole appeared.

A brother of Edwards testified that he lived in Jacksonville, Florida, and his father lived in Cordele, Georgia. He last saw his brother on February 8, 1947, at 1 p. m. at the witness's home in Jacksonville. His brother came down there after another brother's car which the witness had just painted a light blue color. It was a 1940 Plymouth, two door, equipped with radio, heater, spotlight, and two fog lights, and there was a spotlight in the back seat and a spare wheel and tire in the trunk. William Edmond Edwards left Jacksonville with that car. The witness has never seen either the car or his brother since. He investigated through every source he knew, trying to find his brother. On the morning of February 9, 1947, he left Jacksonville at about 7 o'clock because a call from home advised him that his brother had not reached home. He went to all jails, hospitals, and wrecker places on the road from Jacksonville and got no information. The insurance company has paid for the car. His father was in Cordele and unable to attend the trial. His brother was 22 years old, and a belt found near where the skeleton was located looked like one that his brother wore. His brother had approximately $7 after filling up the car with gasoline when he left Jacksonville.

W. C. McLemore, a Captain in the Georgia Bureau of Investigation, testified that he investigated the case and was familiar with it. He had a conversation with the defendant, who talked freely and voluntarily and without fear of punishment or hope of reward. While in the Bibb County jail the defendant said that he wished to make no statement, and when asked if he would assist the officers in locating the body he said that he would not and that it would be useless for the witness to go down there. The defendant made another statement to the witness in Waycross with a number of other persons, including the solicitor-general and the codefendant Long. This witness instructed Long in the present of the defendant to interrupt the defendant at any point in the statement that was incorrect. The defendant told them how he and Long had been picked up by this man in the Plymouth automobile. He said that Long stole a car in Knoxville, and he and Long then went to Miami and from there to Ft. Pierce, where they abandoned the car and hitchhiked or hoboed to this side of Jacksonville near Nahunta or Folkston, where they stopped and asked for food, which a man gave them, and they spent the night on the station platform and the next day proceeded toward Waycross. They were given a ride by the deceased. They drove out to a point on the Pearson road, where Long pulled a pistol and forced Edwards to turn to the left. He next directed him to turn to the right, and after going about half a mile he made him stop. Long took the deceased into the woods and remained a few minutes, and when he returned he pitched Edwards' billfold to the defendant, whereupon the defendant said, "What did you do to him? Did you kill him?" Long replied, "No," he knocked him out and tied him up. He and Long proceeded from there to California. They sold accessories off of the automobile as they traveled. Long cried and said to the defendant, "Tell them about the leather Jacket that you got and tell them about the shoes that you got." Pressley denied that, and Long stated that the defendant's statement was false. The defendant said that he wrote Long a note while they were in the Bibb County jail, in which he said in substance that if the officers asked Long to take them to where the body was, for Long to take them to this side of Jacksonville, the first dirt road and turn off there, that unless they found the body he and Long could not be prosecuted. He admitted cursing Long after the body was found and Long returned to the Macon jail, that he called him a low-down ratting son of a bitch. Long accused the defendant to his face of doing the actual killing and forcing Long to go with them into the woods. Long said that he saw the defendant strike Edwards with the pistol, and when he did the bullets flew out of the pistol, which was a .38 caliber. Pressley threw Long a rope and told him to put it around the neck of the deceased. Long did that, and Pressley held his finger on the knot while Long tied another. Long saw Pressley pull a knife, and Long turned and walked away, and when Pressley came to the car he had blood on his hands and shirt, and he had the leather jacket and shoes of Edwards. They got $7.30 out of the pocketbook of the deceased and threw the pocketbook away. Pressley wore the shoes of the deceased on the trip to California. Long said that the pistol was a .38 caliber, short, and that they had to cut off the bullets so they would fit. The witness described his search for the body, and they found the skeleton under the guidance of Long, together with three .38-caliber pistol cartridges and some fragments of cloth, including a belt. The witness said that Long made two statements to him, one at the jail in Macon and the other in Waycross. None of the language of his testimony related to the statement by Long while out of the presence of Pressley. Pressley admitted quite a bit of Long's statement, but he denied that he did the actual killing and denied any participation in it.

Sheriff Erin Johnson testified for the State, and his testimony was in all material respects the same as that of the witness McLemore in relating the statement of the joint defendants made in Waycross.

Alvin Crews testified for the State, and identified Pressley and Long as the two men who came to his home in Charlton County something over a year before the trial and asked for food, which he gave them. They went to the railroad station, and he thought they spent the night there. He identified Pressley a few days before the trial, and Pressley then said that he was at the witness's home and admitted getting food as testified by the witness.

Frank Roberson, a prisoner in Bibb County jail, testified that while Long and Pressley were in the jail there he heard Pressley tell Long to take the officers to some place north of Jacksonville and turn off of the main road near Jacksonville. Long was taken out of the jail and put back in, and when Long came back Pressley said to him, "You dirty son of a bitch, you ratted on me. If I had my gun I would kill you."

Long was sworn as a witness for the State, and, after admitting that he had made a statement to the officers about the case, then on the advice of counsel and instruction from the court as to his constitutional right to refuse to testify, he said, "Your Honor, I wish to not testify against Mr. Pressley. That is my desire."

Lieutenant L. C. Parrott, United States Navy, testified that he was a commanding officer of the Naval Recruiting activities in Georgia. He testified as to a record being the regulation health record kept by men while in the United States Navy, and said that it was the original record. The name of the enlisted man was William Edmond Edwards, and there were several dental charts in that record. There was no question about the document or original record required by Naval regulations. The health records of all Navy men are kept on whatever ship or station they are serving. They go with them by registered mail from one place to another, and as soon as a man becomes separated from the service the original records are closed out and forwarded to the Bureau of Medicine and Surgery, Navy Department, Washington, D. C., and are kept in the archives as a permanent record. He received these records from the Bureau of Medicine and Surgery archives in Brooklyn, N. Y., which is the storage place of all service records of all people who have been separated from the service. He received them by official registered mail which he has to sign for, and the document is the official and original record of the dental chart of William Edmond Edwards.

Lieutenant Commander H. L. Caplain, United States Navy, testified that his rank was Lieutenant Commander in the Dental Corps. He was a dentist, and was familiar with the dental charts kept by the Navy. The document before him was the record of the man's teeth from the time he entered the Navy until he was discharged. It shows the condition of his teeth when he entered, all the dental work that was done while he was in the Navy, and the condition of his teeth when he was discharged from the Navy. He identified a part of the skeleton, which was in evidence, as the lower jawbone. There are a number of fillings in that jaw, which correspond exactly with the dental record on the chart. There are six fillings in the lower jaw. He explained the chart as indicating the condition and position of the teeth, and testified that from his examination of the jawbone in evidence he would say that "this record and this jawbone jibe perfectly accurately, and that this jaw belonged to the man whose record this is. This record is William Edmond Edwards." On cross-examination he said that he had not examined the mouth of William Edmond Edwards at the time he entered the service and never examined it at any time during the service. He did not derive any knowledge of the fillings or the teeth or anything connected with the dental work from his own knowledge. He derived everything he knew from the record. While admitting that it was possible for another person to have had teeth in precisely the same condition, he testified that the identification is sufficiently positive in his mind. He would stake his personal opinion on saying that this is the lower jawbone of William Edmond Edwards.

The defendant made a brief statement, in which he denied guilt. A sentence of death was imposed upon the return of the verdict of guilty without a recommendation, and the defendant filed a motion for new trial, which was subsequently amended as follows: Grounds 1 through 5 complain of the testimony of the State's witness, W. C. McLemore, in which the alleged statements of the codefendant Long were related, upon the ground that no coconspiracy had been shown, and if it had been shown it had terminated; that Pressley denied Long's charges when made in his presence; and that such testimony was, therefore, hearsay. Ground 6 complains because the witness Parrott was allowed to testify: "This is the regulation health record kept by men while in the United States Navy. That is an original record. The full name of this enlisted man would be William Edmond Edwards. There are several dental charts in this health record. . . That is the official and the original record of the dental chart of William Edmond Edwards." The objection at the time was that, "unless he states that he filled out these papers, Your Honor, he couldn't testify as to their contents," and "Is there any authentication shown on those papers? That would be necessary before they can be introduced in evidence." The solicitor-general stated at the time that he did not intend to introduce the record in evidence. Ground 7 complains that the witness Caplain was allowed to testify concerning the record, explaining how it was made up and what it showed, and by comparing the jawbone, which was in evidence, with the official record he testified that the bone was that of William Edmond Edwards; the objection made at the time being that he could not testify unless he made the chart out as to whose chart that is, unless he could do it from his own knowledge, that the record had not been shown to be properly authenticated, that if he could testify from his own knowledge without the contents of the paper, he could do so, but that he could not testify from knowledge derived from the paper until it was shown to have been authenticated; the movant concluding the objection with this statement, "Note our objection to any testimony that he might give derived from knowledge of the contents of this paper." Ground 8 complains because the court overruled a motion of the defendants' counsel to declare a mistrial because of the manner in which the solicitor-general examined the witness Long, the ground of the motion being that "We make a motion for a mistrial if the solicitor-general is allowed to testify in this case." Ground 9 is predicated upon alleged newly discovered evidence, consisting of an affidavit by three persons, to the effect that they had known one Wayne Woodruff, who was at the time in jail and sentenced to death; that he had no friends or associates because he was in jail except his family and the deponents; that Woodruff was truthful and of good character; and that he told the deponents that he had overheard John Howard Long admit that he had lied in his statement charging the defendant Pressley with the commission of the crime for which he was convicted. Both the defendant and his counsel made the required affidavits as to diligence, and that an affidavit from Wayne Woodruff was not obtained because he was in jail. 1. If the evidence in this record is sufficient to authorize a jury to find that the defendant and John Howard Long entered into a conspiracy to commit the crime charged in the indictment, and that this criminal enterprise had not terminated when Long made the declarations concerning the crime, then such statements are evidence against the defendant, and the court did not err as contended in the first five grounds of the amended motion for new trial. Since all of these special grounds complain because the witness McLemore was allowed to repeat declarations made by Long, and the record shows that another witness, Sheriff Johnson, was allowed to testify to the same facts without objection, these five special grounds could be properly and legally decided adversely to the movant for this reason alone. Lewis v. State, 196 Ga. 755 (1) (27 S.E.2d 659). But since under our ruling in division 3 of this opinion a new trial must be had, and upon that trial the question of a conspiracy and the admissibility of the declarations of Long will be again presented to the trial court, we deem it advisable to now rule upon these questions, since they are raised in these grounds. A conspiracy is prima facie shown by evidence to the effect that the joint defendants were near the place where the skeleton was found at the time which Pressley admits was the night before the killing, and that they were in destitute circumstances and begging for food. The defendant's statement shows the disappearance of Edwards under the command of Long, who held a pistol on him, and that the defendant made no protest or objection and made no inquiry as to what Long intended to do or as to what Long wished the defendant to do; but with apparent contentment he remained in the automobile that he knew belonged to the person who had been carried out of his presence, and exercised dominion over that automobile by turning it around, perhaps making ready for their escape, and waited for Long to return. When Long returned Pressley inquired if he had killed Edwards. The jury could well conclude from their experience as human beings that the action and reactions of Pressley under these circumstances indicated that he was fully acquainted with what was intended and what was taking place and was executing his part of the plan in getting the car ready to go, their taking the money and automobile of the deceased and leaving with it together without, in so far as Pressley has seen fit to explain, having to make any plan or agreement to do so upon Long's return from the woods. These circumstances point definitely to the existence of a previous plan and agreement made by Long and this defendant. It was not necessary to prove an express pre-existing agreement between the coconspirators. Davis v. State, 114 Ga. 104,107 (39 S.E. 906); Mills v. State, 193 Ga. 139 (17 S.E.2d 719); Nobles v. Webb, 197 Ga. 242 (29 S.E.2d 158);Patterson v. State, 199 Ga. 773 (35 S.E.2d 504). After the conspiracy has been thus established, declarations by either of the conspirators during the pendency of the criminal enterprise are admissible against both. Code, § 38-306. But declarations made after the criminal enterprise has ended are admissible only against the one making them. Code § 38-414; Reid v. State,20 Ga. 681; Gibbs v. State, 144 Ga. 166 (86 S.E. 543);Wall v. State, 153 Ga. 309 (112 S.E. 142); Lance v.State, 166 Ga. 15 (142 S.E. 105). It is necessary, therefore, to determine if the criminal enterprise here had ended when Long made the declarations, since the criminal acts of killing and robbing had unquestionably terminated. A conspiracy may extend beyond the criminal offense charged. Sayings or conduct in a concealment of a wrongful act, as well as sayings and conduct in its perpetration or execution are admissible against all the conspirators. Byrd v. State, 68 Ga. 661;Carter v. State, 106 Ga. 372 (32 S.E. 345); Burns v.State, 191 Ga. 60 (11 S.E.2d 350). The jury was authorized to find from this evidence that there existed a conspiracy to conceal at the time Long made the declarations testified to by the witness McLemore. The conduct of the defendant is very significant at this point. According to his own admission, he not only counseled and advised Long to mislead the officers and prevent them from finding the body, but he advised him of the reason for doing so, that reason being that, if the body could not be found, they could not be prosecuted. Of equal significance is the statement of the defendant when he learned that Long had led the officers to a discovery of the body. He cursed Long and accused him of "ratting" on him. The quoted word means that Long had deserted him. As applied to the subject-matter with which they were dealing, it meant that Long had violated their agreement to conceal their crime. From the standpoint of Long the jury might well have found that he did, in making his declarations, so endeavor to mislead and to conceal. Certainly his placing the full blame upon Pressley would tend to conceal the existence of a criminal conspiracy. From what has been said it follows that the evidence was sufficient to authorize the jury to find that the joint defendants had entered into a conspiracy to commit the crime charged in the indictment, and that this criminal enterprise had not ended at the time the declarations by Long were made, and, hence, proof of these declarations as evidence against the defendant Pressley was not erroneous. For the reasons herein stated these special grounds are without merit.

2. The corpus delicti must be proved in all murder cases. It includes (1) death, and (2) the criminal agency causing the death. Warren v. State, 153 Ga. 354 (112 S.E. 283);Shedd v. State, 178 Ga. 653 (173 S.E. 847). In the present case, in addition to the proven declarations of the coconspirator Long, the defendant Pressley made voluntary admissions which tend to connect him with the crime. Furthermore, Long led the officers to the place where both the coconspirators admit that they left William Edmond Edwards and took his car, and there a human skeleton was discovered. The testimony of Dr. Penland that a hole in the skull back of the left ear would have produced death, and that it would have been difficult to have pressed the very piece of bone out of the skull, all combined, was sufficient to prove the corpus delicti. The evidence was sufficient to authorize the verdict, and the general grounds of the motion are without merit. Also, special grounds 8 and 9 are without merit.

3. Special ground 6 complains of the ruling which allowed a witness for the State to identify a certain document as being the original Naval health record of William Edmond Edwards. This record was not offered in evidence, and the solicitor-general stated at the time that he had no intention of offering the same in evidence. Therefore, the exception would not require us to rule as to whether or not the record as identified was admissible. While it is true that, where a document is admitted upon the trial to be the original record, it is not error to admit it in evidence over the objection that a duly certified copy of such record is the legal way to prove the same (Rogers v. Tillman, 72 Ga. 479; Cramer v. Truitt, 113 Ga. 967,969, 39 S.E. 459; Myers v. Wright, 158 Ga. 418 (3), 123 S.E. 740; Bitting v. State, 165 Ga. 55 (7), 139 S.E. 877), yet, in the absence of such admission in open court that the document is the original public record, such public record can be proved only by a duly certified copy thereof. Bigham v.Coleman, 71 Ga. 176 (5); Bowden v. Taylor, 81 Ga. 199 (3) (6 S.E. 277); Blount v. Bowne, 82 Ga. 346 (3) (9 S.E. 164); Ellis v. Mills, 99 Ga. 490 (2) (27 S.E. 740); Belt v. State, 103 Ga. 12, 16 (29 S.E. 451). It follows that the original record referred to would not have been admissible upon the testimony complained of and that the court erred in overruling the objection.

Ground 7 complains because a Naval officer, who was a dentist, was allowed to testify as to the existence of a health record showing the condition of the teeth of William Edmond Edwards, and who by comparing the jawbone, which the State had introduced in evidence, with the chart on that record, testified that the jawbone was that of William Edmond Edwards. While the ground of objection is not as clear and explicit as it might have been, it is sufficient to show clearly the basis of the defendant's complaint; the substance being that the witness should not have been permitted to testify what the record showed, but should have been confined to testimony concerning his own knowledge. The complaint here is also well founded. The testimony objected to was inadmissible for the reason that it offended the best evidence rule (Code, § 38-203), which requires that proof be made by the highest and best evidence or that its absence be accounted for. This rule would require that a properly authenticated copy of the health record referred to be introduced as proof of what that record shows. Written evidence is higher evidence than oral testimony. Code, § 38-205. A verified copy of an original writing produced by a witness is better evidence than an oral declaration as to what it contains. Mobley v. Breed, 48 Ga. 44. Had the record been proved and put in evidence, then the testimony of the dentist would have been proper. As an expert he could have compared the jawbone and teeth with the record in evidence, and from the two could have drawn the conclusion which he made; but since the record was not only not offered in evidence but would not have been admissible upon the mere testimony of the witness that the health record was the original, the testimony of this witness, giving his conclusion, which was in part based upon that record, was prejudicial and clearly inadmissible. For the reasons stated in this division of the opinion, the court erred in overruling the amended motion for new trial.

Judgment reversed. All the Justices concur, except Atkinson,P. J., who concurs in the judgment only; and Head, J., whodissents from the rulings in headnotes one and two and thecorresponding divisions of the opinion, but concurs in thejudgment of reversal.