1. Letters found in the home of the deceased, claimed by the State to have been written by the wife of the defendant, being hearsay evidence, could not be admitted to prove the truth of their contents. They were not admissible to show motive of the defendant, since there was no evidence, either direct or circumstantial, that he had seen the letters prior to the homicide.
2. The will and insurance policies of the deceased, naming the defendant's wife as beneficiary, were not admissible in evidence to show motive of the defendant, as there was no evidence to show a conspiracy between the defendant and his wife to murder the deceased and collect these benefits for his wife; nor any evidence that he knew about these documents.
3. Photographs of the wife and children of the defendant, found in the home of the deceased were not admissible for the purpose of showing motive of the defendant, since there was no evidence that he had any opportunity to know that the deceased had the pictures, prior to the homicide.
4. The introduction in evidence of certain physical objects found in the room where the deceased was murdered was erroneous.
5. Other enumerations of error, complaining of the admission of evidence, are not meritorious.
6. No ruling will be made on the sufficiency of the evidence to support the verdict, since the verdict was predicated, in part, on evidence illegally admitted, and the evidence on another trial may be materially different.
Robert Lee Roger, Jr., was charged with the murder of Patsy Joseph Mastro by shooting him with a shotgun, and was convicted with a recommendation of mercy. On appeal the defendant asserts that the evidence, which was entirely circumstantial, was not sufficient to support the verdict, and that errors were committed in the admission of certain evidence on trial.
1. In its attempt to prove that the defendant had committed the homicide, the State introduced in evidence 21 letters found in the home of the the deceased after his death. These letters were of a very amorous and passionate in nature, signed by pet names, and they evidenced great intimacy between the writer and the addressee. The State offered evidence to show that the letters were in the handwriting of the defendant's wife. The defendant's wife exercised her privilege of refusing to testify on the trial, and there was no evidence by the writer of the letters of the truth of their contents.
Counsel for the defendant objected to the introduction of this evidence as follows: "I object, Your Honor, on the ground that it's irrelevant and immaterial and that it is grossly hearsay as to Bob Roger, that in no way has been shown that he had any knowledge of any letters, that he participated the writing of any of these letters, that he had no control whatsoever over their preparation. I object to them going into evidence." The record affirms counsel's statement that there was no evidence that the defendant ever saw any of the letters. They were of such nature that it would naturally be assumed that a married woman, living with her husband, would not show them to her husband prior to transmitting them.
The State contends that the letters were admissible under Code 38-302, which provides: "When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." It is argued by the State that the letters were relevant of and admissible to show the existence of an improper relation between the deceased and the defendant's wife, which might be a motive for the defendant to have killed the deceased.
State, 27 Ga. 648, 695, it was said: "No facts or circumstances stated in the letter could be evidence against the prisoner, for they were the unsworn statements of another person, in the absence of the prisoner, and by which he could not be bound, and in regard to which he had no opportunity to interrogate the writer." In Duren v. State, 158 Ga. 735, 739 (124 817 343), this court quoted approvingly from Wigmore on Evidence, 1768, as follows: "The prohibition of the hearsay rule does not apply to all words or utterances merely as such. If this fundamental principle is clearly realized, its application is comparatively simple matter. The hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence the trial of the matter asserted." See also, Leary v. Leary, 18 Ga. 696 (3); Mitchell v. State, 71 Ga. 128 (3); Miller v. State, 96 Ga. 430 (2) (23 SE 825); Cody v. State, 124 Ga. 446 (1) (52 SE 750).
These letters, furthermore, were not admissible to show motive, because there was no evidence, either direct or circumstantial, that the defendant ever saw any of the letters prior to the homicide. In Sasser v. State, 129 Ga. 541
, 547 (59 SE 255
), this court quoted with approval an excerpt from Wharton on Homicide (3rd Ed.), 596, as follows: "In order to establish a motive for the commission of a crime, however, it is essential that the facts upon which the alleged motive is based were within the knowledge of the accused, and evidence as to conduct and acts tending to show motive for a killing is not admissible, where it does not appear that such acts and conduct were brought to the knowledge of the accused." See Swain v. State, 162 Ga. 777 (3) (135 SE 187)
; Spradlin v. State, 88 Ga. App. 230 (1) (76 SE2d 435)
; 40 CJS 1153, Homicide, 227.
Testimony in regard to the handwriting of the defendant's wife, admitted to show that she was the writer of the letters, should have also been excluded.
2. It is contended that the court erred in allowing in evidence the will of the deceased, insurance policies of the deceased, with changes of beneficiary, and testimony in regard to the insurance and the changes of beneficiary. The defendant's wife was named as the beneficiary in the will, and the insurance policies had been changed to name her as the beneficiary.
There was no evidence to show any conspiracy between the defendant and his wife to murder the deceased and collect these benefits for the wife. Nor was there any evidence that the defendant knew that the will and insurance policies named his wife as the beneficiary. This evidence was therefore inadmissible to show motive till the part of the defendant. Compare Johnson v. State, 186 Ga. 324, 334 (3) (197 SE 786); Johnson v. State, 188 Ga. 771(5) (4 SE2d 639).
3. The defendant assigned error on the introduction in evidence of photographs of the defendant's wife and their children, which were found in the home of the deceased after the homicide, over the objection that they were irrelevant and immaterial and that the defendant did not have any knowledge of them. These photographs were introduced to show the existence of an affair between the deceased and the defendant's wife. There is no evidence that the defendant knew that the deceased had these photographs of his wife and children, and this evidence was not admissible to show motive. See cases cited in Division 1.
4. Objection was made to the introduction in evidence of two articles of woman's apparel, black lace panties and red "baby doll" pajamas, and two pillowcases with lipstick on them. An officer who investigated the homicide testified that the pajamas were on the pillow of the bed in when the deceased was murdered, and the other items were on a chest of drawers in the same room.
There was no direct or circumstantial evidence to connect these items with the defendant's wife, except the letters claimed to have been written by her. Since these letters were improperly admitted in evidence, there was no admissible evidence to connect the items with her. Nor was there any evidence that the defendant had seen the items prior to the homicide.
This court has many times approved the introduction of physical objects and photographs where they are relevant to prove some fact in the case, or motive for the crime, but where no relevancy is show, and their introduction could only prejudice the jury, they are not admissible. It was error to allow the introduction of these items.
5. The other assignments of error on the admission of evidence have been examined, and they are clearly without merit.
6. Counsel for the defendant in his brief has strongly urged that the evidence was insufficient to sustain the verdict. Since a part of the evidence on which the verdict was predicated was illegally admitted, and a new trial must he granted, and the evidence on another trial may differ materially from that on the present trial, we will not rule on the sufficiency of the evidence to sustain the verdict.
Judgment reversed. All the Justices concur.