The evidence did not authorize instructions on or a convIction of the offense of voluntary manslaughter. No ruling is considered necessary on the remaining enumerations of error.
The accused, Varnum, indicted and tried for the murder of his wife, appeals a conviction and sentence for voluntary manslaughter, following the overruling of his motion for a new trial.
At the time of Mrs. Varnum's death on March 18, 1970, she and the accused were living together in a trailer in the Vista Trailer Park in Augusta, which is about a ten-minute drive from Fort Gordon, where the accused was stationed as a soldier. The Sheppards and the Coons lived in trailers in close proximity. Around 5 p.m. the accused drove home from the post, accompanied by Coon, who was also stationed at Fort Gordon. Mrs. Coon testified that late in the afternoon she went to the Varnum trailer to ask the Varnums to get some milk for her on the next trip to the store, but she did not knock or enter because she heard Mrs. Varnum crying and making a remark something to the effect, "Oh, just leave me alone, just get away, just get away." Although Mrs. Coon fixed this incident as before 5 p.m. she was uncertain of the time, and according to the accused an incident of this nature occurred after he came home. He testified that his wife, who was pregnant, "was kinda irritable and I guess I was in a playful mood and I was nagging at her and she got mad at me and told me to leave her alone, which I did."
Mrs. Sheppard and Mrs. Coon went shopping around 7 p.m. When they left the area they saw the Varnums outside their trailer, and Mrs. Sheppard left her young daughter (age 4 at the time of the trial in June 1970) in the custody of Mrs. Varnum. Shortly thereafter, according to Sheppard, Varnum brought the little girl to Sheppard to interpret what she was saying, and then returned to his trailer with her. Later Varnum went alone to Sheppard's trailer, explaining that his wife and Sheppard's daughter were getting on his nerves, "acting like a couple of kids." Sheppard related this incident as occurring between 7:30 and 8 p.m., and stated that he took the hint and brought his daughter home, but he also testified that it was "pretty close to 9 o'clock or thereabouts" when his wife returned that his daughter "came across the way." At this time he saw the Varnums in the doorway of their trailer. The manager of the trailer park visited the area about 9:15 or 9:30 p.m., and engaged in a conversation with Varnum. He observed Mrs. Varnum, who looked out the window, after which "she started to moseying around in the kitchen." Varnum fixed the time of this incident between 9:30 and 10 p.m.
According to Mrs. Coon, she and her husband went to bed at "almost exactly five after ten." Customarily she did not go to sleep immediately, and she "would have to imagine, it was possibly 10:30" when she "heard Dottie [Mrs. Varnum] laugh out loud" and also heard a couple of footsteps. Mrs. Sheppard had been watching television, and when the news came on at 11 p.m. she turned the television off, lay down on a couch for a few minutes, then got up and went to bed. She was familiar with the sound of Varnum's automobile, and heard it leave the area and saw its lights. She estimated the time as about 11:15 p.m., but according to a statement made to a deputy sheriff Varnum said he left the trailer at 11 p.m.
Varnum testified that after the manager of the trailer park left he and his wife engaged in discussion of a name for their expected child, that she told him she wanted to take a tub bath, that he started the water running in the tub, told her he was going to the post to borrow some money, and that she was in the bathroom when he left about 10:55 p.m. He had lost $90 bowling, and had cashed a check for $40 with insufficient funds on deposit, and had to get $40 to give to a woman at the bank who had initialed the check. His efforts at Fort Gordon to borrow money were unsuccessful. He recalled that according to a clock in an orderly room at the post it was 11:45 p.m., and that the clock on the dash of his automobile, which was sometimes fast and sometimes slow, indicated 11:55. He thought he arrived back at the trailer at midnight or a little later.
In testifying before the jury as to his activities thereafter Varnum stated that he went to the trailer door, started to unlock the door, and discovered that it was unlocked "the night latch wasn't on." He entered, started closing the door, and called "Baby" for his wife, as he always did upon coming home. The lights were out, but he saw someone run out the back door and he ran down the hallway and tripped. He got up, ran back to the living room, got his pistol, and ran back out. Just past Coon's trailer he fired his pistol. He then returned to the trailer and using a switch outside the bathroom, turned on the bathroom light. He saw his wife on the floor, and ran to the Sheppard trailer.
According to Sheppard, it was 11:45 p.m. when Varnum woke him up, hollering and screaming, coming across the lawn saying "Dewey, Dewey, it's my wife." When Sheppard asked him what was wrong he had already looked across and noticed Mrs. Varnum lying on the floor of the trailer. Varnum then said, "It's my wife. She's dead. I know she's dead." Sheppard went to the Varnum trailer and "started to give her artificial respiration but she was already cold." Mrs. Varnum was lying on her back, with her feet and body inside the bathroom, and her head, from the eyes up, in the hallway. She was nude in the area of her hips and breast, and an electric blanket cord was around her neck, tied in a half or square knot, not tight. He returned to his trailer and called for an ambulance. After Sheppard returned Varnum talked to him and said, "God and I will know who done it and that's all that counts."
Mrs. Sheppard also woke up, and disregarding Sheppard's request, went to the Varnum trailer. Varnum was "down over her body, screaming and carrying on" and saying "I didn't think she'd do it. I didn't think she'd do it." Mrs. Sheppard finally persisted in getting Varnum to leave the trailer, and about this time Mrs. Coon came on the scene. She testified that the sound of Varnum screaming. "Dewey, Dewey" woke her up at 11:55, and that she woke her husband up, who recalled hearing Varnum say, "My wife's hurt, my wife's hurt." She saw Sheppard run across the lawn, and she could see Mrs. Varnum on her back in the trailer, in the position described by Sheppard. Mrs. Sheppard and Mrs. Coon tried to revive Mrs. Varnum, but both immediately concluded from her appearance and examination that she was already dead. Mrs. Coon could feel no pulse. The body was cold, according to Mrs. Coon, "very cold." She recalled seeing an electrical cord near the body.
Mrs. Coon talked to Varnum outside the trailer, assuring him that his wife had only fainted. He appeared upset and said something like "I took the cord from around her neck. The man running out the door, I shot at him." In Coon's presence he told her the man "had on a trench-coat type of thing." When Coon first tried to talk to Varnum he was, according to Coon, hysterical, but in the course of two conversations shortly after discovery of Mrs. Varnum he told Coon substantially the same thing he told the jury as to the circumstances under which he discovered his wife's body and what he did. At some time during the early hours of March 19 Varnum drank coffee in the Sheppard trailer, and Mrs. Sheppard gave him a 10 milligram Librium tablet, which, according to a physician, would have very little effect except mild relief of anxiety, and a side effect of mild sedation, with diminished reflexes.
Officer Hammett, a deputy sheriff, arrived on the scene about 12:35 a.m. and went immediately to the Varnum trailer. Mrs. Varnum's body had been removed, and he received a report from the hospital that she was dead on arrival. He found a mass which appeared to be vomit in the hallway adjacent to the bathroom door. A cord for use from a socket to an electrical blanket was on the floor in the same area. About three feet away he found a .22 calibre pistol, which he described as a target weapon. He questioned Varnum, and according to his testimony Varnum described the events substantially as he had told others, although he told Hammett that the man was wearing a short jacket. He also said "I shot at him several times" and "I think I hit him." Detective Adair arrived at the scene about 1 a.m. He examined the pistol, which he described as a nine-shot .22 calibre revolver. It had one empty cartridge hull in it. In his opinion the weapon had been cleaned and oiled since firing. He questioned Varnum after advising him of his constitutional rights, and the version related to him is in substantial accord with the version told others. Varnum told him he fired only once at the intruder. He also asked Adair, "You think I did this, don't you?" He also told Adair he had been in a little trouble at Fort Gordon and had been reduced in rank, and explained that the reason he went to the post was because he wanted to borrow money, although he had stated other reasons to his neighbors.
Dr. Phinizy, Richmond County Medical examiner, conducted an autopsy at about 2:30 p.m. on March 19, "approximately 12 to 14 hours after it was said death had taken place." There were few marks of violence. Cynosis was apparent in the face, neck, fingers, and hands, and the face was swollen generally. On the front of the neck "there were three ill-defined pinkish mildly excoriated lesions." He attributed death to choking, which "could be from hands" but "certainly not a wire or a string or a cord." In his opinion it would take two hours after death before a body would feel cool to the touch, and death could occur from choking in about the same time as drowning, seven or eight minutes.
There is evidence that the Varnums were living together harmoniously, and that Varnum was a person of good character. Official weather records show that the temperature in Augusta on March 18 was 53 degrees F at 10:57 p.m., and 48 degrees F at 11:56 p.m. There is also evidence that the heating system in the trailer was out of order, that the lock on the door (presumably the front entrance) of the trailer could be opened without a key while in the locked position, that the manager of the trailer park had received reports of prowlers in the area (on objection, he was not allowed to furnish details), and that the ground around the trailer was hard and that no tracks were found or likely would appear of a person running across the ground.
1. Varnum stands convicted of the voluntary manslaughter of his wife on evidence which is entirely circumstantial, not only as to the very fact of death at his hands, but as to all circumstances. It is undisputed that she was alive and in a laughing mood at approximately 10:30 p.m. on March 18, that he was with her until about 11 p.m. according to his version, or until about 11:15 p.m. according to others, and that she was dead when he returned, at about 11:45 p.m. at the earliest, or around midnight. The Varnums were apparently living together happily, and there is no evidence of any serious domestic difficulties. Was she dead when he left the trailer? There is evidence that the body was cool or cold to the touch when discovered, that it takes two hours after death for a body to feel cool, but the trailer was unheated, and the outside temperature was only about 50 0
"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." Code 38-109. "A person commits voluntary manslaughter when he causes the death of another human being, under circumstances which would otherwise be murder, if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person." Code Ann. 26-1102. If in a trial for murder the evidence does not involve the law of voluntary manslaughter, but the trial judge instructs on voluntary manslaughter and the jury convicts of voluntary manslaughter, it is not cause for a new trial if the evidence demanded a verdict of murder. If there is evidence, however, which would authorize an acquittal, the defendant is entitled to a new trial. Robinson v. State, 109 Ga. 506 (1) (34 SE 1017). But only for an offense of the degree or lesser than that for which he stands convicted. Price v. Georgia, 398 U. S. 323 (90 SC 1757, 26 LE2d 300).
While many inferences arising from the circumstantial evidence point to the defendant's guilt such evidence falls far short of demanding a verdict of murder, and not only fails to exclude every other reasonable hypothesis save that of the guilt of the accused in respect to the offense for which he stands convicted, but reveals a total void in respect to any circumstances to authorize a determination that the accused, if in fact he did cause the death of his wife, acted "solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation." There is also evidence, including his testimony, to authorize an acquittal.
Under the evidence it was error to instruct on the law of voluntary manslaughter, and a verdict of guilty of this offense was unauthorized.
2. In view of the above we consider it unnecessary to rule on the remaining enumerations.
Judgment reversed. Quillian and Evans, JJ., concur.