Buckhanon v. State , 151 Ga. 827 ( 1921 )

Gilbert, J.

1-7. The first, second, third, fourth, fifth, sixth, and seventh headnotes do not require elaboration.

8. In addition to the count charging murder by drowning, there were other counts in the indictment charging murder by shooting, cutting, stabbing, striking with clubs and other blunt instruments to the grand jurors unknown. The indictment alleges that the deceased was killed by J. E. Buckhanon and J. C. Thompson. The former was tried and convicted, and upon the overruling of his motion for a new trial the case was brought to this court for review. Counsel for plaintiff in error insist that the grant of a new trial is required, because the court, without request, omitted to instruct the jury in regard to the degree of proof required to establish the corpus delicti. It is also insisted that the grant of a new trial is required, because the evidence was insufficient to authorize a finding that Bobert Willcox was actually killed by any one, as alleged in the bill of indictment, and that he did not die from other cause. The court charged the jury that if the evidence did not prove beyond a reasonable doubt that the defendant “ did, by any one or more of the means and in the manner alleged in the indictment, unlawfully kill Bobert Willcox” with malice aforethought, they should return a verdict of not guilty.

The court also charged the jury: “ One cannot be convicted of the homicide of another when death was brought about by natural causes, or by misfortune or by accident, and should it appear that Bobert Willcox is dead, and that he died from natural causes, or that he died by misfortune or accident, or if you have a reasonable doubt that he is dead, or if dead that his death was produced by natural causes, misfortune, or accident, then the defendant should be found not guilty.” If the accused had desired an elaboration of the charge on the subject of corpus delicti, he should have duly requested the same in writing.

In regard to the sufficiency of the evidence to prove the corpus delicti, it must be borne in mind that the jury of the vicinage deemed the evidence sufficient, and their finding has been approved by the trial court. The trial court and jury are in better position than this court to form a clear conception of what are the facts and what is the truth. The evidence in regard to corpus delicti before the trial court was uncontradicted, and to the effect that Robert Willeox, alleged in the indictment to have been killed, was found dead on “ Steamboat Bite ” Island in the Oconee River in Wheeler County, everything indicating that he had been washed ashore by a freshet. He had been missing about seven weeks, and his body was partly decomposed. He was fully recognized by his clothing and other indicia. He was about nineteen years of age, a splendid specimen of manhood, suffering from no impairment of health, and had experienced no business depression or other trouble so far as known. He had gone into the river swamp to make a record of crossddes, and thereafter to hunt. The last persons with whom he had been seen were Buclchanon and Thompson, charged with his homicide. His hat, a gun, some shells, hunting-sack, and the book in which he had recorded the number of cross-ties were found covered with straw, a short distance from the river on the outer edge of the swamp and about one mile down stream from where the body was found. It was impossible for him to have followed the bank of the river from this point to where the body was found, because the swamp was impenetrable. The only way of going from the point where his effects were buried to the point where searchers discovered his body was to go about two miles around the outside of the swamp or to go up the stream of the river in a bateau, canoe, or similar water-craft. Subsequently to his disappearance and before his body was found there had been heavy rains and the stream of the river had been greatly swollen. Blood was found on the inside of the bateau used by the defendant Buckhanon and kept at and about the landing on the river near where the hat, gun, etc., were found, and where Willeox had last been seen in life in company with the defendants. Dr. Leroy Napier, a practicing phjmeian since the year 1898, who knew Robert Willeox and who saw him on the afternoon before his disappearance, swore that the deceased had “ never been afflicted with paralysis or anything like that that impaired his limbs.” He further testified that when the body was recovered he examined it and found it in a very badly decomposed condition, “ the left eye and left cheek and also the flesh on the neck, all the left side, was sloughing, falling away; the left eye was practically gone, there was a little loblollymess in the socket, a portion of his cheek had disappeared, exposing the upper and lower jaw underneath. We could not find any evidence of any cuts or punctures on his body; the skin was thick and doughy, pretty well waterlogged. In the condition the flesh was in it is possible there could have been a bullet wound and we overlooked it; we made a pretty thorough examination. So far as we could tell, the bony structure'of the head'was intact; in fact there was no fracture down to the base; of course the skin was mummified like heavy parchment paper. We did not find any blow on the head. The skull was in such condition we could not tell if there had been a blow on the head, unless it had been sufficient to break the skull; he could have had a blow on the head sufficient to have killed him without fracturing the skull. In my opinion we found something about the body that indicated he had received a blow about the head, and that was the peculiar position of his right hand. His left hand was flexed partially, something in this' position, while his right hand was very tightly clinched, and was back like that [indicating]. That indicated a bloio on the side of his head prior to his death, or some injury to the slcull that would produce a hemorrhage inside on the brain tissue; or at least that was the way I interpreted it. I don’t know that that would indicate that he died in agony, but it indicated to me that he received an injury just before his death. His hand at that time was rigid; it had not been changed from the time he was found until I saw it. What we call rigor mortis had never been broken up in that hand or arm; the arm was stiff. I think it was in the same condition it was in when he died, the fingers pulled down tightly and the hand in that position. I do not think that is usual in an ordinary case of death. I think if he had died with both hands clinched in the same condition, they would not have been clinched back in that position; we find that in paralysis; even a living subject will carry his hand like that, does not seem to be able to get it out of that position. I don’t know that a lick on the head usually causes paralytic condition; the usual cause of paralysis is a hemorrhage on the brain; a lick would have produced that condition.” On cross-examination there was considerable elaboration of the opinion expressed in the above quotation, but the substance of the entire evidence of Dr. Napier is included in the above quotation.

It is well established that without satisfactory proof of the corpus delicti a conviction for crime cannot stand. Langston v. State, 151 Ga. 388 (106 S. E. 903). In passing on the question of whether the corpus delicti has been proved, all admissions of independent facts and all circumstantial evidence bearing on that question should be considered. Wilburn v. State, 141 Ga. 510 (10), 513 (81 S. E. 444). Whether the corpus delicti was established in this case depends largely on the weight and value of the evidence of Dr. Napier, considered in connection with the fact that the hat, etc., belonging to the deceased, were found a short distance from the river, that blood was found in the bateau, and that the body was found about a mile up stream. It would seem that the inference is justified that the deceased would not himself have buried bis personal effects underneath a bed of straw had he planned self-destruction. The force of logic would also drive us to the conclusion that had the deceased thrown himself into the river at or near the point .where his effects were buried, his body would have drifted down stream and could not have been found a mile further up the river. It must be remembered that the opinion evidence is that of an expert in respect to the stated facts' about which the opinion was expressed. It is proper and desirable that expert testimony should be kept within proper bounds, especially in criminal cases, where the life or liberty of the accused is at stake. It is also true that opinions are entitled to more weight where facts are stated, and not mere opinions or conclusions. The statement of facts is made essential, under the laws of-this State, in the case of non-expert witnesses, and the latter cannot testify to opinions or conclusions without stating the facts upon which the same are based. Of an expert witness this is not required, but in the present case the expert witness does state with clearness and precision the facts upon which his opinions were founded. Bor this reason the opinion is entitled to more weight than would otherwise be the case had he failed to state the facts. “ Expert testimony is to be weighed and judged like any other, and the same tests are to be applied thereto. It is not necessarily conclusive or controlling, even when uncontradicted by the testimony of other experts; but its weight and value are to be determined by the jury, who should consider it in connection with all the other evidence in the 'case, the means of knowledge of the expert, the reasons which he assigns for his opinions, and the truth or falsity of the facts assumed in the hypothetical questions put to him. However, where witnesses, although experts, describe symptoms and conditions actually observed by them, and their testimony stands unimpeached, it cannot be ignored any more than any other credible evidence in the ease can be; and where the subject of discussion is not on the border line between the domains of general and expert knowledge, but concerns a highly specialized art of which a layman can have no knowledge at all, the court and jury necessarily.must depend to a great extent on the opinions of qualified experts.” 16 C. J. 756, § 1556; 11 Ruling Case Law, p. 586, § 16, p. 611, § 34, and notes; Penal Code (1910), § 1048; Civil Code (1910), § 5876; Yates v. State, 127 Ga. 813 (4), 816 (56 S. E. 1017, 9 Ann. Cas. 620).

Applying the foregoing principles of law to the evidence, we conclude that the jury were authorized to find that the corpus delicti was established as required by law.

9. In addition to the facts stated in the foregoing division of the opinion, the evidence'authorized the jury to find the facts hereinafter stated to be true in reference to the connection of the defendant Brickhanon. On Saturdays the 15th of January^, 1921, Buckhanon, who seemed to be a roving fisherman, and also the younger man, Thompson, were fishing at Cheney’s Ferry, in Wheeler Countyq and had been there a little more than two weeks. They were accustomed to spend Saturday night at the residence of J. II. Thompson, an uncle of the defendant Thompson, situated four or five miles away. They both 'kept clothes at this house. On that night they came to the uncle’s house from the direction of the river, and their pants seemed to be a little wet. Buckhanon mentioned that Robert Willcox came into the swamp that day, and said that he left Willcox lying by a fire near an oak, and that Willcox was wet and drunk. The witness Vaughn testified that Buckhanon, Thompson, Willcox, and himself -were all drinking, and that they consumed about a quart of whisky. On the commitment trial of Thompson, Buckhanon swore that the whisky was his, and that he and Thompson ran it oil the night before. The oak is near a gate leading into the swamp, and' at this place the gun, hat, etc., were found covered with straw. This point is also near a shanty sometimes used by Buckhanon. At or near this point on this occasion young Eobert Willcox was last seen alive with the two defendants by the witness Yaughn. On reaching the home of the uncle, J. II. Thompson,- Buckhanon had a conversation with the thirteen-year-old daughter of the former. She testified that he asked her to cut his throat with a razor; that he seemed like, there was something the matter with him; he acted funny, did not talk like he always did; that Buckhanon had about twenty gun-shells, the same color as those which he had given John Williams, and that Buckhanon said he bought some of the shells from Mr! Willcox and Mr. Yaughn gave him'some [witness Vaughn testified that he loaned Buckhanon the gun, but did not furnish him with any shells]; and that he gave the shells, to her brother, who in turn delivered them to the witness, McIIay, who exhibited them on the trial to the court and jury. The gun borrowed by Buckhanon from the witness Yaughn was also turned over to the witness McKay. On the next morning, Sunday, January 16th, Biickhanon left this house, taking with him all of his clothing and other effects, including some meat and vegetables, going to the river. This was the first time he had carried all of his effects with him upon leaving. On reaching the river he took his bateau and proceeded down stream. On Sunday night Buckhanon, traveling in his bateau, approached some raftsmen who were also going down the river on drifting timber. One of these raftsmen, George Quinn, testified that Buckhanon offered him whisky; that Buckhanon’s face was black, and “ you could not tell whether he was a white man or a negro,” that he gave Buckhanon a cup of coffee, and when the latter reached his hand over, stretching his arm, “I saw where the black'stopped,” that Buckhanon “said he was going on below us to Barker’s Landing, that he had a fishery clown there; he said his name was Cook.” Witness saw Buckhanon again on the next day, Monday, further down the liver, and spoke to him, but Buckhanon did not reply. Witness said to him, “Last night you were a negro; now you have changed to a white man; you have on a collar and tie.” To this Buckhanon made no reply. Another witness on the raft swore that Buckhanon was “black, disguised; I could not tell he was a white man only by his sleeve and his forehead,” and that Buckhanon said his name was Cook. J. M. Smith, a witness for the State, testified that on Tuesday, January 18th, he was on the Altamaha Eiver near Gaitor Slide, near the bend of the old river, Ohoopee, White Bluff, in Appling County; that there he saw Buckhanon going down the river in a bateau; that he talked to him; and that Buckhanon gave his name as “Vaughn;” that his face was not then blackened; and that Buckhanon sold his bateau for two dollars and a plug of tobacco. Witness carried Buckhanon a mile below Surrency, where Buckhanon got out in the woods. L. W. Hall swore that on Wednesday or Thursday he examined Buckhanon’s boat and found bloodstains on the left-hand wall of the boat, like it had been spattered up there; and just opposite the bloodstain on the wall it looked like something-had been dragged out of the boat. There was also a small amount of blood on the seat. Suspicion having been directed to Buckhanon after the .disappearance of Robert Willeox, a search was made for him, and he was finally located about one mile from Offerman in' Pierce County, some seventy-five or eighty miles from Cheney’s Perry in Wheeler County, where Robert Willeox was last seen alive. He was captured at the home of a man named Hall. Three arresting officers, on arriving at this house, enquired for Buckhanon. The house and kitchen were searched, but Buckhanon was not found in either. Finally he was discovered underneath the house; and when he came out his first words were, “ God knows I don’t know nothing about that poor boy, I don’t know where that poor boy is at ” —- nothing having been said to him about Willeox or as to the cause of the arrest. The prisoner was taken back to Cheney’s Ferry; and the gun, hat, etc., belonging to Willeox, having already been found, Buckhanon was asked to point out the place where they had been hidden. He carried the party directly to the place where these things had been found, and showed them how the gun was lying. Another witness testified in substance that Buckhanon said Thompson shot Willeox, and that at another time he explained that he had heard a gunshot and saw something fall in the river, but that his eyesight was bad, and that he could not tell what it was. A. C. Curry, a witness for the State, testified that he was a county policeman, and with another officer had taken Buckhanon and Thompson on the train to jail; that he heard Buckhanon, who was sitting on the seat with Thompson, tell the latter that if he would take on himself the killing of this young man, he would pay his lawyer’s fee and also provide for him while he was in the chaiu-gang, that Buckhanon also said, “ You are a young man; they will not hang you. I am an old man. If you will take it on yourself, I will look out for you.” Buckhanon said also that he could not live more than ten years, and that before he died he would ádmit it and tell how he did it, and that they would be obliged to turn Thompson loose. .

After careful consideration of all the facts and circumstances shown by the evidence, we are satisfied that the jury were authorized to find that the proved facts were not only consistent with the hypothesis of guilt, but were sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused. We have dealt with all of the assignments of error, deeming it only necessary, however, to elaborate upon the principles ruled in the eighth and ninth head-notes. The verdict was supported by evidence, and the judgment of the trial court overruling the motion for a new trial was not erroneous.

Judgment affirmed.

All the Justices concur.