1. Assignments of error not argued orally or in the brief of counsel are treated as abandoned.
2. Circumstantial evidence that excludes every reasonable hypothesis is sufficient to authorize conviction in a criminal case, although it does not remove every possibility of the defendant's innocence.
4. The mere possibility that someone other than the defendant committed the crime charged in the indictment is not such a reasonable hypothesis as must be excluded in order for circumstantial evidence to authorize a verdict of guilty.
5. Where the evidence excluded every reasonable hypothesis except the guilt of the accused, it amply authorized the verdict finding him guilty.
An indictment was returned August 22, 1961, in the Cobb Superior Court, charging Walter Ruel Eason with the murder of his wife, Gladys Mae Eason, on July 8, 1961. He was convicted and sentenced to life imprisonment.
The neighbors, residing in the same house and another house only a few feet distant from the apartment occupied by the defendant and the deceased, testified that, on the night the tragedy occurred, they distinctly heard the voices of the couple emanating from the couple's apartment, accompanied by the sound of heavy blows that appeared to be imposed upon a human body. The defendant, according to the witnesses, was heard to utter the words: "Was it worth it?" The voice of the deceased was raised in pleading with the defendant not to beat her more. Some of the witnesses related she used the given name of the defendant, "Ruel," in beseeching him to cease beating her; others quoted her as saying: "Ruel, you are killing me. I have had all I can take." One witness gave evidence that, at one point in the progress of the disturbance, the defendant demanded that the deceased remove her clothing. The witnesses were not wholly consistent in their testimony, some placing the time at which the voices and blows were first heard at from 10:15, 10:30 and 11:00, while other witnesses said the trouble began about twelve o'clock or shortly thereafter. They were all in agreement that the sounds of the voices and blows subsided by 12:30 and thereafter all was quiet in the Eason apartment. All of these witnesses testified they recognized the voices of both the defendant and his wife. Some of them only knew the Easons casually, had heard their voices seldom, and admitted that they based their conclusion that the voices they heard were the Easons' on the fact that the voice of the defendant came from his apartment, as did the outcries of his wife and the accompanying sound of the blows. Others of the witnesses professed to be perfectly familiar with the voices of the accused and the victim, and stood firmly upon the assertion that they knew the voices they heard were the voices of the couple.
A taxicab driver testified he brought Mrs. Eason home at about 12:00 o'clock and put her out at a place near her apartment. Witnesses, the rear of whose apartment was directly in line with that of the Eason apartment, testified that they saw Eason going from room to room in his apartment as late as 1 a.m. on the morning of the 8th. At about 1:15 a.m. a Mr. Jack Dale who was the defendant's supervisor at the manufacturing plant, where both men were employed, in company with a woman companion, Edith Carter, made a visit to the Eason apartment. At 1:15, according to his version of the incident and the testimony of the woman, he came to the back door of the apartment, was not admitted to the apartment but stood on the outside and conversed with the defendant for about 25 minutes while the woman waited for him in her car some 25 feet distant but in view of the rear of the apartment.
Mr. Dale testified that the mission that brought him to the apartment was to "pick up" his automobile that he had loaned the defendant on the previous afternoon. He related that in the course of the conversation the defendant discussed the latter going with him and the woman in quest of whisky, but that the defendant informed him that his wife, Gladys Mae, was home; whereupon, he advised the defendant that he should stay at home and departed. Another witness, who had testified to hearing the blows struck and the deceased pleading earlier in the night, testified that about one o'clock Gale entered the apartment by the front door, and another witness testified that at about 1:15 to 1:30 he heard men conversing in the Eason apartment for about 45 minutes.
The defendant, both in his statement to the police and from the witness stand, protested his innocence. Eason said that he carried two pint bottles of whisky home with him at about 10:20 p.m. on the 7th; that he began drinking and looking at television, by 11:45 o'clock had consumed one pint and most of another and became so intoxicated that he went to bed and to sleep at about 12:00 o'clock, and did not, according to his statement, hear his wife come into the apartment when she arrived home; that after he went to sleep he knew nothing until the following morning.
At about 5 a.m. the defendant stated that he woke and turned off his alarm clock, and that when he went into his living room he found the nude and lifeless body of his wife lying face down on the floor. He stated that he thought she was asleep; that she had probably come home so heavily intoxicated that, after removing her clothes, she could progress no farther and fell at the place where she lay. Upon turning her over and finding she was dead, he said he immediately called the police. A witness, Mrs. E. E. Adams, testified that he came to her apartment and placed three telephone calls, one to his brother who lived at Smyrna but failed to reach him, another to his father who resided at Bowden and the third to the police.
The witness's account of what the defendant said to his father was that he found his wife dead on the living room floor and did not know whether he had killed her. The police gave as their evidence that the defendant simply reported: There is a dead woman in my apartment; that on their arrival they found the nude body of the deceased, bearing many bruises and some contusions, lying on the living room floor; that there was blood on her face and hands; that there was blood on the living room rugs, in the bath room, smeared on the wall, the commode and window sill, and upon a towel.
A chemist from the State Crime Laboratory testified that the blood was type A, the same as that of the deceased. Dr. James Manning, the medical examiner for Cobb County, sworn as a witness, gave an account of an autopsy performed on the body of the deceased, and related that there appeared recent bruises on the body and about the head of the deceased.
His testimony concerning the cause of her death was, in part: On my gross examination of the body there and at the funeral home I found that the body was cool, the temperature was registered at ninety-three degrees on a rectal thermometer; there was rigidity of her facial muscles, stiffening of her fingers and hands and upper and lower extremities. She had marked bruising of her left cheek and face bruised and her forehead and scalp, multiple bruises on her neck over her shoulders, arms, the lower extremities, bruising of both hips, broken nose, blood on her face, lips, left cheek, generally body bruising, cuts on the upper and lower lip. There was something on my gross examination of the abdomen that indicated to me the necessity for further investigation. Her umbilicus was blue in color which suggested blood in the abdominal cavity. There was approximately a four inch by one inch rent in the left side of her liver, and her abdominal cavity was filled with a large amount of dark red, unclotted blood, and death was from exsanguination, bleeding to death, internally.
Based upon my examination of her body I ascertained the cause of her death and that was bleeding to death internally from a ruptured liver. As to how this wound could be inflicted upon the body, well, this suggested blunt injury, there was no penetrating wound into the abdominal cavity, this is irregular, not a straight line like a cut wound, but suggesting direct force to the abdominal wall and liver.
I opened the head in the right area above the ear and in the right temporal muscle; there was a large area of bruising with blood into the soft tissues of the skull with some swelling under the hair and several smaller areas on the left side. The bone of the head was not broken and when the boney calvaria was removed the brain appeared to be normal, there was no hemorrhage inside the head from the way it was displayed. From my examination of the skull of the cranium, after I had opened the skin around the area, the marked bruising in the scalp, this was a very large bruising of the area in the right just above the ear, on the right lateral and posterior. There was a large bruised area and several smaller areas on the left side. Based upon my examination of the cranium or the skull it is my opinion that she had received, probably, several blows to her head, one certainly enough to cause a large area of bruising and bleeding. I described the nose as being able to manipulate it. I think both of the nasal bones on either side were broken to the nose instead of being mashed because you could move it back and forth across the face. From the time that she received the blow to her head and a blow to her nose, immediately following those, I would certainly think there was enough bruising of the area to suggest that she might have been unconscious. As to your question, does that have any significance with reference to the blow that she received in that ruptured liver, well, only in the sense that in the abdominal wall itself there was not noted a great deal of bruising, not as much as in the other areas of the body and frequently on an abdominal muscle if blunt injury is applied to the abdominal wall with a person expecting it the muscles are tense, stiff, and will absorb the major portions of that blow. If the abdominal muscles are relaxed or it is unexpected or in an unconscious state, then the blow is transmitted to the inside and frequently you will have more internal injuries. It would be my conclusion that the time she received the blow that produced her death that either she was unconscious or was not anticipating it. Either one of the two would be a definite conclusion.
If she died either on the 7th or the 8th of July, and from my examination of the rupture of the liver, the broken nose, the bruises about her head and cranium, some of the bruises I found on her body could have come from an automobile accident that occurred on July the 2nd, but the bruises were not the cause of death and the liver rupture was recent and that could not have been present since the second of July, this could not have been present six days. The liver and spleen and some of the internal organs can be lacerated, torn or cut and temporarily clot and not have immediate bleeding, and then the clot may break away subsequently and more bleeding ensue, this was not the case in this particular instance because this was a recent tear. Usually then a delayed bleeding occurs there is a clot which closes over the wound and bleeding will collect under the capsule but this was not present in this area at all. There was no intra-abdominal blood clot, this was liquid blood with no sign of clotting to it, and with one liver tear this extensive there would not be delayed bleeding, it would bleed massively right away. In my opinion the death was not instantaneous by virtue of the fact that death occurred as a result of bleeding to death which takes some length of time. With this size tear bleeding is rather rapid, a person would go into a state of shock, that would slow the bleeding down some temporarily, but with the largeness this was torn, this tear deep into the liver, it would be a matter of a few minutes, I should think, before the person would bleed to death and die anywhere from fifteen minutes to thirty minutes. From my findings I would estimate that death occurred somewhere, probably, between 12:00 a.m. and 4:00 a.m., probably nearer to 1:00 a.m. Her body temperature was ninety-three degrees, under ordinary circumstances the body will lose external heat fairly quickly but internal heat will usually diminish about one degree an hour, one degree Fahrenheit an hour. It takes about four to six hours for rigidity to begin and in the face and upper extremities it increases up to about twelve hours to maximum rigidity and stiffness and then begins to recede in the same space so that after about twenty-four hours a body, the rigidity or stiffness of the body, is gone again. This lady had stiffness of her facial muscles, or her upper extremities, hands, arms, and to some degree of her lower extremities, and I estimated that she had a five degree loss of temperature, so
that somewhere between approximately 12:00 o'clock in the morning and about 4:00 o'clock in the morning she died, I figure probably closer to 1:00.
If a person had a history of consuming one and three-fourths pints of whisky in a period of twenty-five minutes, which would be roughly a quart in twenty-five minutes, I would say the average person would be unconscious. If a person began at approximately 11:15 at night and consumed one and three-fourths pints of whisky by approximately 12:00 o'clock at night I doubt very seriously that he would be awake or be aroused at 1:15 in the morning. In my opinion the break of the nose was a recent injury. I used the word "recent" both in terms of the rupture of the liver and now with reference to the nose, and as to your question, what do I mean by "recent" injury to the nose, well, certainly I think the broken nose with bright red blood, the bleeding lips, the liver injury, all occurred approximately the same time or in the near neighborhood of a short time before her death. I would not say the liver wound occurred as great as five hours or fifteen hours before death, and I doubt it with the nose either or the eye. I don't think so, the bleeding from the nose was very recent, bright red blood, a recent tear with no significant clotting in the nose, dried on the face and cheek but no blood clot, and there was bleeding on the quilt that the lady was lying on which seemed to come largely from her nose. I think that the injury immediately preceded her death, within a very short time.
The doctor also testified that from the alcoholic content of the body he was of the opinion that the deceased was very much intoxicated at the time of the tragic end of her life.
Other witnesses who testified concerning the deceased's condition after the automobile accident and prior to her death were: Mrs. William Mote who noticed both of the deceased's eyes being black, but didn't pay any attention to her nose to see if was swollen, and didn't notice any bruises about her body; Arnold Floyd who saw Mr. Eason earlier in the week and knew she had been in a wreck earlier that week. He stated that he saw her at 4:30 one afternoon when she was hanging out clothes and he was coming in from work, and "I did not notice she had two black eyes, I just noticed one. I did not notice her nose being swollen or her mouth being swollen." The taxi driver also testified that prior to letting Mrs. Eason out at her apartment: "I didn't observe any marks or anything on her person.
There was other evidence of cumulative nature concerning the circumstances immediately connected with the homicide, and the State introduced several witnesses who gave accounts of dire threats made against the deceased by the defendant and violent attacks made upon her. The defendant himself admitted that he had previously threatened to kill his wife, but that he did not really intend to carry out the threats and that he dearly loved her.
The defendant filed, in regular order, a motion for new trial on the general grounds and later added special grounds. The trial judge overruled the motion for new trial, as amended, and the defendant excepted.
1. The bill of exceptions excepted to the trial judge's overruling the defendant's amended motion for new trial. However, the case was not argued orally in this court, and the only ground of the motion for new trial discussed in the defendant's brief is that "the verdict was without evidence to support it." Under the familiar rule of appellate practice all other grounds of the motion will be treated as abandoned.
2. The defendant insists the evidence was entirely circumstantial and not sufficient to support the verdict because it fell short of excluding every reasonable hypothesis consistent with his innocence. He contends that the State's proof pointed indifferently to the conclusion that he killed his wife and to the theory that she came to her death as the result of an accident. In support of this position, he points out the evidence that his wife was intoxicated on the night she died; hence, it was possible that she fell, and in that manner was fatally injured. The record discloses no circumstances from which it may be inferred the deceased actually fell and was injured. 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). The contention that the deceased may have been mortally injured in a fall is mere unfounded theory, not a reasonable hypothesis.
The defendant further urges that according to the evidence adduced upon the trial it was as possible to attribute his wife's death to injuries she sustained in an automobile accident six days prior thereto, as to the fact that he beat her severely on the night she died. The fallacy of the theory is demonstrated by the facts related by lay witnesses. Several testified they observed the deceased after the wreck, when she was going about and hanging out her washing and as she was going to and from her place of employment. Indeed, it appeared that she continued with her usual activities as normally after as before the automobile accident. The evidence did not suggest that she received any serious injury in the accident, although one witness observed one of her eyes was blackened and another witness testified that both eyes were in that condition.
The theory that she died as a result of the automobile accident is disproved beyond all reasonable doubt by the testimony of the surgeon who performed an autopsy on the body of the deceased within a few hours after she died. The surgeon testified that the injury from which the deceased came to her death was a lacerated liver, such an injury as would produce death normally within a mater of minutes and certainly in several hours, and that from his examination he determined the laceration of the liver could not have occurred on another occasion, or earlier than on the night it caused her death.
3. The defendant argues that there was evidence that he drank almost two pints of whisky between 11:15 and 12: 00 o'clock, and that before his wife returned to the apartment on the fateful night he was unconscious from intoxication and never saw her until the next morning. He undertakes to fortify this position by pointing out that a State's expert witness gave as his opinion that one who consumed such quantity of whisky within the period suggested would become unconscious from intoxication. There are two fatal infirmities in this argument. First, there was no evidence, merely the defendant's statement that he actually consumed any quantity of whisky. The jury was not bound to accept his statement as true. Secondly, the expert witness, according to the record, was not informed of the alcoholic content of the whisky the defendant professed to have consumed. It is an established principle, recognized by this court, that, in order for the opinion of an expert witness to be of evidentiary value, the witness must know or be apprized by hypothetical question or questions of the facts upon which his opinion is predicated. Davis v. State, 153 Ga. 669, 675 (113 SE 11); Flanagan v. State, 106 Ga. 109, 113 (32 SE 80).
There was other evidence of witnesses who heard the voice of the defendant later than midnight, two witnesses who observed him going from room to room in his apartment as late as 1:00 a.m., and the testimony of another witness who actually saw and conversed with him as late as 1:15 a.m. It follows that there is no merit in the contention that the defendant was in such a state of intoxication as to render it improbable or doubtful that he was physically capable of having assaulted his wife after the hour of twelve.
4. The defendant finally points to the fact that at about 1:00 or 1:15 a man visited his apartment as a plausible possibility that the visitor was the culprit who murdered the deceased. The position is not factually sound because, while the evidence was in conflict as to whether the nocturnal visitor, a Mr. Dale, actually entered the apartment, there was no evidence that he offered violence to the defendant's wife, or even came in contact with her, while there was ample evidence, disputed only by the defendant's statement, that the latter had violently beaten the deceased between the hours of midnight and 12:30 a.m., a full forty-five minutes before Dale arrived at the apartment. The contention is, as a matter of law, without merit because the familiar rule of evidence is, as pronounced in the case of Johnson v. State, 73 Ga. 107 (1): "It was not necessary to show that it was impossible for the offense to have been committed by anybody else, or that it might not, by bare possibility, have been done by another."
5. We have carefully considered the evidence and determined that it was sufficient to exclude every reasonable hypothesis except the guilt of the accused and amply authorized the verdict finding him guilty as charged in the indictment.
Judgment affirmed. All the Justices concur.