The circumstantial evidence, which was relied on solely in this case, did not exclude every other reasonable hypothesis save that of the guilt of the accused; therefore, the verdict of guilty was not authorized by the evidence and the judgment on the verdict is set aside.
The appellant and his wife were jointly indicted for the offense of murder. The appellant's trial resulted in his conviction with a sentence of life imprisonment. The trial court granted appellant's motion for a new trial.
On the second trial of the case evidence was adduced as follows: On May 8, 1968 at about 1 p.m., the decedent, Claude Hogue, came to the home of John Reece (or "Reese"), near Villanow, Georgia (which is between Summerville and Dalton) to get Reece to help him start his (Hogue's) automobile. At about 3 p.m. they drove to Hogue's home, which was about three miles north, or towards Dalton. Reece and the decedent pushed the latter's automobile onto the Summerville-Dalton highway (#201) and Reece began pushing it toward Dalton with his own automobile. Also at about 3 o'clock, the appellant, accompanied by his wife, was driving toward Dalton on the same highway (in his unsworn statement, he stated that he was driving his wife from their home in Summerville to Dalton to get some things she wanted) and they stopped at Jack Stansell's store in Villanow, about five houses north of the decedent's home. Appellant stated that he did not know why his wife had him stop there. Over objection, Stansell testified that she obtained from him directions to the decedent's home. After this, appellant and his wife, with appellant still driving, turned around and rode toward the south, in the direction of the decedent's home. In about 15 minutes, appellant and his wife were seen again driving in a northerly direction and they stopped within sight of Stansell's store and poured something under the hood of their automobile. About 20 or 25 minutes later, Reece pushed the decedent's automobile past the point at which the appellant and his wife were parked. Almost immediately after Reece and Hogue passed them, appellant and his wife began following them and, after the decedent's automobile started operating on its own and drove on ahead, they passed Reece's automobile, slowed down, then sped up several times. Reece came upon the decedent's automobile stopped on the side of the roadway and stopped immediately behind it in response to the decedent's hand signal, whereupon the appellant stopped just behind Reece's vehicle. The decedent got out of his automobile and was directing Reece in fitting their bumpers together when appellant's wife, Mrs. Sentell, got out of her automobile and told the decedent to come back there. On his way back there, the decedent told Reece to be his witness, then replied to Mrs. Sentell that he "was not going to fight any woman" and, looking at the appellant, who was still seated in the driver's seat, told her that if her husband got out decedent would "stomp him." Mrs. Sentell replied that he wasn't going to stomp "nobody," whereupon she reached into her automobile and pulled out a .22 calibre pistol, which she pointed at the decedent, who warned her, in effect, not to pull a gun on him unless she was going to use it. Mrs. Sentell then proceeded to shoot at the decedent, chasing him around, shouting at him and threatening Reece's life also in between shots, until her pistol was emptied and the decedent was dead. After the shooting was over, the defendant got out of his automobile, where he had been theretofore, and "just stood there." Reece was unable to testify positively that the defendant had a gun and there was no other evidence
that he did. Reece was not frightened by the defendant, who never threatened nor did anyone any harm, but by his wife, who "was talking pretty mean to everybody." After the shooting occurred, Reece ran to a nearby deputy sheriff's house to report the crime and, on his way, he observed the appellant and his wife leave the scene in their automobile. There was evidence that the defendant had had a good reputation as a peaceable man for at least thirty years, but that his wife's reputation was not "recommended."
The defendant's unsworn statement was to the following effect: During the five years he and his wife had been living in Summerville, she hadn't been very happy, always fussing with other people. During what little time he had off from his job, she was always having him take her first one place and then another, he never knowing for what. She had the decedent in court at Summerville at one time. On the day in question, she had planned a trip to Dalton to get some things, which things he did not remember. En route, she asked him to stop on the side of the road, to (use the rest room) or something, he figured. She stayed 15 or 20 minutes, then they drove "up the road." They passed a car, then a little farther on there was another car stopped by the road. He kind of slowed down, not knowing who was in the car, and she turned off their ignition switch. He looked over there and saw the decedent, whose car was "quit." At that time she had a gun in one hand, and it scared him because "she's hard to control" and he didn't know what she was up to. She went over to the car of the decedent, who was beside the window. The defendant wasn't particularly looking and just sat there in his seat, not moving. He heard "some guns" firing and was scared to do anything until he knew what she was doing. She came back and got in the car. He saw that Hogue was shot. When he tried to start up his car it wouldn't crank up, so he had to push it off to start it, after which he drove back to Summerville. He had just sat in his car without moving or doing anything wrong, because he didn't understand what was taking place or know that his wife was going to do such a thing. He never hurt anything in all his life. His wife is now in a mental institution, "paying for the crime."
The defendant was again convicted of murder and again sentenced to life imprisonment. He appeals from the judgment overruling his motion for a new trial.
Since the evidence shows that the defendant did not commit the act itself, in order for him to be convicted the evidence must connect him with the crime upon the theory of conspiracy, which is "a corrupt agreement between two or more persons to do an unlawful act." Fincher v. State, 211 Ga. 89 (4) (84 SE2d 76)
; Park v. State, 224 Ga. 467
, 473 (162 SE2d 359
Proof of conspiracy is required for the admission of the testimony of Stansell as to the declarations, regarding directions to the decedent's home, allegedly made to him by the defendant's wife, who was the one who committed the act itself. Code 38-306. The conspiracy itself must be proved by evidence aliunde such declarations and the declarations are not admissible unless the conspiracy is prima facie shown by such aliunde evidence. McCluskey v. State, 212 Ga. 396
, 398 (93 SE2d 341
) and cit.
The existence of a conspiracy may be shown by either direct or circumstantial evidence. Chappell v. State, 209 Ga. 701
, 702 (75 SE2d 417
). The State relied entirely upon circumstantial evidence. The evidence in this case does not measure up to the rule laid down in Code 38-109, which provides that "to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." (Emphasis supplied.)
In determining whether any other reasonable hypothesis exists, the defendant's explanation must be taken into consideration insofar as it is consistent with the circumstantial evidence properly admitted. Redwine v. State, 207 Ga. 318
, 324 (61 SE2d 481
). The defendant's statement, that they were on their way to Dalton to shop, is consistent with the evidence that the shooting occurred on the Dalton highway. Although the defendant made no mention or explanation of the fact that they had turned around at the store and headed in the direction of the decedent's home, this did not necessarily show, either by itself or in conjunction with the other evidence as to his subsequent behavior, that he was party to a conspiracy. Even conceding that he knew that his wife was trying to locate the decedent, does not demand the conclusion that he knew of her prior intent, if any, to kill the decedent or was participating in such a plot. The defendant characterized his wife as very unhappy, always fussing with people, hard to control, unpredictable and not very communicative with him with regard to her plans and intentions. It is a fair conclusion, not only from his description of her and his statement that she is now in a mental hospital, but also from the evidence as a whole, that she was emotionally unstable. There was testimony that her reputation was not "recommended." Her behavior in the very act of shooting the decedent, shouting at him in between shots, threatening the witness and shooting at his rear window, etc., bears out this appraisal. In view of her personality, it is not at all difficult to understand how the defendant would have been reluctant to question or contradict her expressed wishes, even if he did not understand fully what her intentions were. The defendant, on the other hand, stated that be had never hurt anything in all his life, which was supported by testimony as to his good and peaceable character for at least 30 years. It is not shown that he had any motive to conspire to kill the decedent. His wife, not he, had had the legal encounter with the decedent. His explanation of the events immediately preceding the shooting is entirely consistent with the evidence, including that of her nature. According to him, he didn't even realize who was in the decedent's automobile, didn't know that his wife was going to cut off his ignition switch or engage in an argument with the decedent and he remained, frightened, in his automobile until he could determine what she was going to do. This is supported by the evidence that he did, in fact, remain in his vehicle until after the shooting occurred, making no threats and carrying no weapon (so far as the evidence unequivocally shows) and by evidence that she did not have her pistol with her when she got out of her automobile, but reached in and got it in the heat of the argument with the decedent. It is highly improba-
ble that the defendant would have conspired with his wife to murder the decedent on a public highway, in broad daylight, in the presence of a witness and by having her do the act itself, rather than doing it himself. Even if the witness could have positively testified that the defendant was armed after the shooting, this is not inconsistent with a legitimate purpose of trying to protect his wife after he heard "some guns" firing (indicating that he may have thought that the decedent and/or Reece were armed and firing weapons at his wife).
In summary, the evidence in this case, which, of course, does not include the defendant's statement, did not show beyond a reasonable doubt that the defendant conspired with his wife to murder the decedent and it did not exclude the reasonable hypothesis, that the defendant obeyed his wife's directions out of his fear of antagonizing her emotionally unstable disposition and, possibly, his knowledge that she had access to a deadly weapon or weapons, and that he was unaware of her prior intent, if any existed, to murder the decedent and that he was unwittingly and unwillingly caught up in her rash, and probably unpremeditated, act of violence.
Hence, the testimony of Stansell was improperly admitted and the remaining circumstantial evidence was wholly insufficient to authorize the verdict of guilty. Therefore, the trial court erred in its judgment overruling the motion for a new trial on the general grounds. The circumstantial evidence not having excluded every other reasonable hypothesis save that of the guilt of the accused, the State has failed to carry its burden of proof and the judgment on the verdict is, therefore, set aside.
Judgment reversed. All the Justices concur.