Smith v. State

68 S.E.2d 393, 85 Ga. App. 129, 1951 Ga. App. LEXIS 1015
Court of Appeals of Georgia·Decided October 25, 1951·No. 33535·Published·Cited by 6 cases

Opinion

MacIntyre, P. J.

“To support a conviction of arson, it is necessary to show that the burning was not due to accidental or providential cause.” Sutton v. State, 17 Ga. App. 713 (88 S. E. 122).

‘It is not often possible to make out a case of arson by direct proof establishing the corpus delicti or showing the connection of the defendant with the commission of the crime, for arson is seldom committed except at an hour when there is small chance that the criminal will be actually observed in the execution of his nefarious purpose, and it is also generally easy to commit the crime by stealth, without the help of an accomplice, without the beating of drums or blare of trumpets or any betraying noises; and therefore circumstances must generally be depended upon not only to show the guilt of the accused, but to establish the corpus delicti. The rule that the circumstances proved should exclude every other reasonable hypothesis save the guilt of the accused should not be relaxed; but it does not follow that the criminal must go unwhipped of justice because absolute proof is not presented by the State. If there be enough shown to convince the jury beyond a reasonable doubt that the guilt of the accused has been established to the exclusion of every other reasonable hypothesis, and no other reasonable hypothesis is suggested by the evidence, and there is nothing to indicate that [133]*133the jury failed to accord to the defendant every consideration to which he was entitled, a reviewing court will not arbitrarily say that the conviction should be set aside.’ Wade v. State, 16 Ga. App. 163, 167 (84 S. E. 593), and see State v. Wenger, 47 Wyom. 401 (38 Pac. 2d, 339), where this language of the Wade case was quoted with approval. ‘To sustain a conviction, it is not required that the evidence exclude every possibility or every inference that may be drawn from proved facts. It is only necessary to exclude reasonable inferences and reasonable hypotheses which may be drawn from the evidence under all the facts and circumstances surrounding the particular case.’ Graves v. State, 71 Ga. App. 96, 97 (30 S. E. 2d, 212); Smith v. State, 64 Ga. 605.” Grimes v. State, 79 Ga. App. 489, 502 (54 S. E. 2d, 302).

Applying the foregoing rules to the evidence in the instant case, the jury was authorized to find the defendant, Roy Smith, guilty of arson. There were facts in evidence from which the jury could infer that the origin of the fire was neither accidental nor providential. The only fire kindled in the house on the morning the house was destroyed was built in the kitchen stove. The fuel used was splinters which were ordinarily consumed in about thirty minutes. Mrs. Sarah Smith had built the fire in the kitchen stove, cooked breakfast, and had left the house at about 7:15 a.m. The fire was not replenished after that time. She returned to the house a few minutes later to instruct her mother, Mrs. Maxwell, to go to the Wigley home for the day. Mrs. Maxwell left the house at about 7:45 a.m. The house was not on fire at that time. The stove was in good condition. The electric lights were in good condition. There was no electrical disturbance or lightning on the morning in question. Between 8:30 a.m. and 9 a.m. the house was seen to be on fire and flames were coming from the front bedroom window in which room no fire had been kindled on that morning. From these facts the jury was authorized to infer that the fire was criminal in its origin.

There were also facts from which the jury could infer the defendant’s connection with the origin of the fire. The defendant’s ill feeling for Mrs. Sarah Smith, the occupant of the house and for Mr. Wigley, the owner of the house was established; and, [134]*134while the threat was not in itself sufficient, the defendant had threatened to put Mrs. Sarah Smith out so that she would have no place to live. The defendant, together with his wife, was seen to break into and enter the house only a few minutes before the house was discovered to be on fire, and he and his wife were seen after they left the house to park at a vantage point looking and gesticulating in the direction of the house. From these facts, together with the fact that the defendants denied their presence in or near the house on the morning in question, the jury could infer that the defendant set the fire which consumed the house,

“Where two persons are jointly indicted for an offense which does not require in its commission the joint act of both, but may be separately committed by either, a verdict finding one of the defendants guilty, if supported by the evidence, would be authorized,” even though the other, defendant was found not guilty upon the same evidence. Easterling v. State, 12 Ga. App. 690 (78 S. E. 140); Page v. State, 23 Ga. App. 548 (99 S. E. 55).

In special ground 1 of the amended motion for a new trial counsel for the defendant insist that although the following charge was given at their insistence and request,.it was erroneous and injurious to the defendant in that it confused the jury as to the burden of proof which the State had to carry in order to authorize the jury to convict the accused, inasmuch as the court had previously charged the jury that in order to find the defendant guilty the jury must do so beyond a reasonable doubt, and the following charge complained of was the last charge given the jury with regard to the burden of proof and the court had previously charged the jury correctly as to the burden of proof which the defendant must cany with reference to his defense of alibi and at the time the court gave this latter charge he did not instruct the jury as to what he was referring to and the jury was misled and confused as to whether it would be authorized to find the defendant guilty if it believed the evidence preponderated toward his guilt or whether it must find him guilty beyond a reasonable doubt: “In determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testify, the nature of the facts to which they [135]*135testify, and the probability or improbability of their testimony, their interest or want of interest and also their personal credibility so far as the same may legitimately appear from the trial. The jury may also consider the number of the witnesses, though the preponderance is not necessarily with the greater number.” The trial judge made the following notation on this special ground of the motion for a new trial: “Counsel for the defendants requested and insisted that the court give in charge to the jury § 38-107 of the Code of 1933.” The language upon which error is here assigned is the exact language of Code § 38-107, and in view of the court’s note to this ground that such charge was requested and insisted upon by counsel for the defendant, there is no merit in this ground. “A party may not complain of an error which he himself invited.” Gaskins v. State, 12 Ga. App. 97 (4) (76 S. E. 777); Brown v. State, 150 Ga. 756 (2) (105 S. E. 289); Caesar v. State, 127 Ga. 710 (57 S. E. 66); Hill v. State, 147 Ga. 650 (95 S. E. 213).

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Smith v. State, 68 S.E.2d 393, 85 Ga. App. 129, 1951 Ga. App. LEXIS 1015 (Ga. Ct. App. 1951).

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