Wheeler v. State , 228 Ga. 402 ( 1971 )

Per curiam.

George Wheeler was indicted, tried and convicted of the offense of murder and was sentenced to life imprisonment. His motion for a new trial as amended was overruled, from which judgment he appeals.

Enumerated error 2, that the verdict was based on circumstantial evidence which did not exclude every other reasonable hypothesis save that of the guilt of the accused, will be considered along with enumerated error 1, the overruling of the motion for new trial.

The State’s case was based upon the theory that the defendant alone shot and killed the decedent, Leo McElhaney, in a robbery attempt in the parking area of the Bellview Motel, situated at the corner of Auburn and Piedmont Avenues in Atlanta. The following evidence was adduced on the trial: At shortly before 9 on the night of January 19, 1971, two eyewitnesses heard three gunshots and saw the flashes therefrom, but nothing else, coming from the motel’s parking area, their view of which was partially obstructed by a portion of the building. Thereafter, a man, identified by both eyewitnesses as the defendant, was observed in the motel driveway leading to Auburn Avenue, firing a pistol several times back in the direction of the parking area, into which a short time before the decedent had been seen driving his brother’s automobile. One of the eyewitnesses testified that he had seen the defendant on several previous occasions and the identification was made in a well-lighted area, from 5 to 6 feet away. Later on, the two eyewitnesses and a police officer found the victim lying beside the automobile, with a small bullet hole in his left temple, which was the cause of his death on the following day. Immediately after the man was seen firing the pistol, he was observed by the two eyewitnesses running toward, then along, Piedmont Avenue, holding his chest with one hand and a pistol in the other. He was not pursued by anyone and no one else was seen in the parking area (except the decedent) or leaving the motel after the shooting. There is another exit from the parking area, which leads onto Piedmont Avenue, which exit was not visible to the two eyewitnesses from their vantage point in a cafe on Auburn Avenue across from the motel. The defendant was admitted to Grady Hospital for the treatment of a bullet wound in his chest some 45 minutes later, at approximately the same time that the decedent was admitted to that same hospital with the bullet wound in his left temple. Medical testimony showed that, hypothetically at least, the defendant might have been able to run some distance with a chest bullet wound. One witness testified that there was no doubt in his mind that the defendant fired the first shot. More than one gun was fired — a larger and a smaller one — but the man identified as the defendant was the only one observed firing a gun. The gun fired by the man identified as the defendant was tentatively identified by one of the eyewitnesses as a nickel plated .357 Magnum pistol, a six-shot weapon. More than six shots were heard fired. There was found no gun near the decedent or anywhere else. At the time he was shot, the decedent had on his person some $1,400, which his mother had given him with which to buy an automobile. His brother testified that the decedent knew he was being robbed when "they” were chasing him. He also testified that a Mr. Maloney — a dope pusher, a friend of the defendant, an enemy of the decedent, and one who set people up to be robbed — had waited at the hospital until 3:30 on the night decedent was shot to see what the results would be, had identified the defendant in the hospital, and had been shot to death himself on the following day.

The defendant, sworn as a witness, denied being at the scene of the alleged murder, having a gun in his possession, and shooting the decedent. He testified that he left home on the night in question and was going to visit a friend in the Capitol Homes Apartments, off Memorial Drive (near the State Capitol Building). His wife testified that she had answered the telephone when said friend, whom she knew, called the defendant and that the defendant left home "sometime after dark” without a gun. The defendant further testified that, as he was walking along Memorial Drive between Pryor Street and Central Avenue, some 8 to 10 blocks from the scene of the crime, a dark colored Cadillac stopped, an unknown man inside accused him of "snitching” on him to the "Feds” (which he denied having ever done to anyone), then shot him in the chest. He stated that an unidentified stranger gave him a ride to Grady Hospital for treatment of the chest wound. He denied having ever seen eyewitness White or the decedent prior to the trial.

"The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” Code § 38-1805. "When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury, but if a witness shall swear wilfully and knowingly falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence. . .” Code § 38-1806. The jury was authorized to find that the defendant’s testimony was at least successfully contradicted by the testimony of two eyewitnesses, placing him at the scene of the crime at the time of its commission. "The rule as to the sufficiency of circumstantial evidence to support a conviction is that the evidence exclude every reasonable hypothesis except the guilt of the accused, not that it removes every possibility of his innocence. John v. State, 33 Ga. 257, 268; Farrar v. State, 110 Ga. 256 (34 SE 288); Williams v. State, 204 Ga. 837, 842 (51 SE2d 825); Graves v. State, 71 Ga. App. 96, 99 (30 SE2d 212).” (Emphasis supplied). Eason v. State, 217 Ga. 831, 840 (125 SE2d 488). "Whether dependent upon positive or circumstantial evidence, the true question in criminal cases is, not whether it be possible that the conclusion at which the evidence points may be false, but whether there is sufficient evidence to satisfy the mind and conscience beyond a reasonable doubt.” (Emphasis supplied). Code §38-110. The defendant’s flight from the scene of the crime, together with the other circumstances in evidence set out hereinabove, was sufficient to convict him. Diggs v. State, 90 Ga. App. 853, 858 (84 SE2d 611), citing Sheffield v. State, 1 Ga. App. 135 (2) (57 SE 969). Therefore, the court did not err in its judgment overruling the general grounds of the motion for new trial.

Enumerated error 3 is the court’s failure to charge, without a request therefor, on alibi. The court charged as follows: "If the homicide was, in your opinion, unlawful and was committed by the defendant and you believe that beyond a reasonable doubt that he was present at the time and place of the killing and did commit the offense alleged, it would be your duty to find the defendant guilty of the crime of murder. He denies his guilt and denies his presence at the time and place of the actual killing.” (Emphasis supplied). "It is the duty of the trial court to charge the contentions of the parties where supported by evidence; and although in a criminal case it is proper to charge as to the contentions of the defendant without request, it is not required when the same are supported only by the defendant’s statement.” Wilson v. State, 215 Ga. 672, 676 (113 SE2d 95) and cit. In the absence of a request for a more specific charge on alibi, the above instruction, together with one to the effect that the defendant’s not guilty plea placed upon the State the burden of proving beyond a reasonable doubt the guilt of the accused, was adequate.

The court did not err in its judgment overruling the motion for new trial as amended.

Judgment affirmed.

All the Justices concur, except Felton, J., who dissents.