*1 32841. HAMBY v. THE STATE. Rehearing 7, July 1950. 1950.
Decided June denied Mitchell, Ralph plain- Mitchell & Mitchell, Holloman, M. tiff in error. Calhoun, Solicitor-General,
Hubert contra. special ground 1 P. J. 1. In of the motion for MacIntyre, a trial, amended, following portion new charge as of of court to the assigned case, as error: in “Now, this the State relies what is known—it in part relies on what is known testimony accomplice. give And this principle govern law there. The single a generally witness exception sufficient to establish a fact. An to this rule made felony. only in case of a Where the accomplice, witness is an in corroborating, such felony] case, [a may dispense circumstances with another witness. corro- borating circumstances referred must be such to connect perpetration independ- crime, ently of the other evidence in the de- case, must connect fendant with the commission the crime in bill of (Brackets ours.) indictment.” The defendant contends that in was erroneous intimation or the trial judge in jury that codefendant, State’s witness and Chambers, anwas right denied to the to determine whether or not the State’s witness and codefendant, accomplice. Chambers, Robert Junior anwas judge, in excerpt to, classifying here referred the testimony relied upon part by a being State class o'f known testimony. accomplice’s or called He classifying was not particular delivering it as not He did any the name call connection with testimony. such any did merely not state what witness had testified. He charging rule of law as it abstractly an abstract related given any case, which rule law, upon the State relied in the instant case. The court la-w- effect that the State certain rule of' relies abstract, apply and stated rule of law the did any person concretely. simply The court said or witness testimony felony effect that where if there is *2 accomplice—not necessarily case, an instant felony felony charged, jury apply the rule law case—'the should of (80 E. (5) testimony. to Cantrell 141 Ga. S. State, v. 98 (20 580). (4) E. After 649); State, Wells v. 194 Ga. S. 2d, 70 charge complained given portion the court had of the the all charged: considering in this the “After ground, testimony, the documen- case, the facts and circumstances of the applying tary produced, statement, evidence the defendant’s given you charge by court, the law as to find if be, be and believe' are satisfied beyond a reasonable moral certainty convinced to find . . guilt [you reasonable the defendant’s will a doubt of will find guilty; otherwise, you defendant (Brackets added.) think guilty.]” do not We urged. complained for the reasons of was erroneous Special upon grounds assign 2. 2 and error 3 failure is anywhere jury the court what its to define necessary accomplice, failure to constitute one an and the jury jury the court to that it was for the instruct a to determine codefendant, whether the directly sole Chambers, “Where the accomplice, connecting . the accused with crime . was an would, the failure the trial to instruct term accomplice, law, under the constitute define appear where accomplice, error, it does not not reversible such timely request written an instruction.” there was a (81 v. App. (1) 805); S. E. Butts Baker 14 Ga. State, v. 578 (82 State, (1) 375); v. State, App. Cantrell 14 821 S. E. Ga. App. v. State, 59 Ga. see, connection, in this Cammons supra; 205). a (2 request absence of 2d, In the 759, 766 E. S. grounds are 2 and 3 do not think that points, these we upon meritorious. “ felony is sustainable in a 'A conviction 3. when the though single witness, testimony of accused connecting the by other same is corroborated
9 perpetration tending on trial with the of the crime show . therein.’ . participation required But ‘it is not that this verdict, be corroboration shall itself sufficient to warrant a every accomplice or that the be corroborated particular Slight . material from extraneous evidence identifying participator source as a accused the criminal will be the accomplice support act sufficient corroboration of sufficiency a verdict. . The of the corroboration of the testi- mony produce conviction of defendant’s guilt peculiarly for the matter to determine. If verdict is founded on slight evidence corroboration connect ing the crime, defendant it can not be a matter law, contrary that the verdict Hargrove to the evidence.’ v. State, 270, (54 Ga. 274 125 S. E. 164); Whaley 177 Ga. (171 290).” 3) S. E. v. State, Newman 63 Ga. 417 (2, 248). 2d, (3); See v. State, also Roberts Mitchell v. State, S. E. 2d, ‘The *3 relied facts as corroboration may trifling be when viewed separately themselves and from the entire case; right had the to consider all the and to consider facts them their another, relations and not, one to determine whether or considering the comparing setting, facts and them proper their adduced, they under evidence tended to connect the defend ant with the commission the crime and were a sufficient cor roboration the accomplice of the evidence of to authorize a con viction of the accused under the Callaway law.’ 342, 577).” Blakely v. State, 2d, E.S. Chambers, the Hamby Robert Junior codefendant of under part indictment, testified for State in . as follows: . I know the defendant on Mr. . trial, Hamby. Fred . I have years. known him five I for about have about him, worked length Yes, of time. . . I jointly am Mr. indicted with burning dwelling Yes, for house Rosa Edwards. sir; dwelling _ Saturday I did burn her house. June, On 4th of evening, asleep, my I at home and brother came around up me there and and told me Mr. Hamby woke wanted see I there to see me. went around he wanted and told he pay I I right him. told him didn’t have his money me to then— later evening paid it would be when the man come and it me. I owed him a dollar ten cents. and And I told him I going would be later and I back around house to the so he pay would be there when the man come so I him could and said, say go just back ‘You don’t need ’round the house, 'no/ around,’ say, get or some will stick ‘Your mother of them money,’ and I him. stuck around with . Later the bartender go walked up out and he told me that he wanted me to help straighten up warehouse to him around in there. went I straighten up got gallon him he up help there with him to and jug quart got them in the In and two bottles. warehouse. got warehouse, yes, sir, and a funnel and can told quart two pour up gallon jug it I me into bottles and empty I’m poured up says, ‘Robert, going and he to burn the I me.’ and Rosa’s house and to do Well house want ought Hamby, you people’s ‘Mr. burn the houses said, I ‘They’re my and I up.’ He houses know what I want said, it I’m them,’ said, going you.’1 ‘If don’t do kill do — n — we up went on back the beer And went he them behind the building and set counter. and wine Set bottles. gallon jug quart and two And later after then two—the supper home left going he to eat the bartender said was carry he’s.gone.’ And told said, 'Well, glad I’m me to and he gallon jug quart gallon jug and—the two bottles and the two apart- put empty them the two room behind—back put building. beer and wine And I them ment back beer back build- empty apartment two room and wine in the left hand corner. And he inside door ing. . Just place get until I I’m ‘Stay back, here with the around and Rosa and Nettie Jones.’ He went going get Eddie *4 come back and Jones and . . and and Eddie Nettie got Rosa they them drink. gallon of wine and told And up a half a set left. lived in this drinking he Rosa Edwards started [and] Jones, she lived in corner here. Nettie the other house comer . . empty. in the middle, The one house, there. over Hamby. with came back Mr. And he three them up you all nice you all be’s were so going 'I’m to set ‘here,’ say, gave gallon them—set month,’ up and a half pay the rent up enough got I’ve some more says, ‘If that ain’t and wine And him gave shelf.’ me and out walked and he me safety go put box of told me quarts matches and on and two empty gallon jug just the loft and house inside and Rosa’s door strike the match . . and come on I back. went around there put quarts poured and the two and loft gallon jug just quarts inside of door. The two loft empty house, gallon there. one the middle jug put just I inside back door house. It was of Rosa’s full gasoline. just Just turned it over inside door. There one door at the front one and at the back. I was at opened gasoline the back door. I door turned the over. I then came back gave around there and he me quarter go get package cigarettes. told tome him a any- Said if body up come and ask where I he was at would I tell them that had been gone for or an hour more don’t be- know what come happen of—what with I got me the reason ain’t back. And I back, came policeman pull up told me to from the out place. front of the I get went off in I cigarettes his car. did department for him. . . got When I back the fire there. When I struck the building the match did or up. flame flare Yes, sir, the flame jumped—caught it when it No, sir, struck. I was any. got not burned After I cigarettes— back with the with whom did I well, talk, Eddie in—in place—and came me—Q. told Hamby Was there when that? Mr. told A. Yes, say sir. What did Eddie to me? says, ‘Robert,’ says, He Hamby ‘You and Mr. mighty dirty to sot my fire,’ house on and I walked out and he was—him Hamby and Mr. few had a they words there but talking Ion do not know. ’cause I walked I any- out. Did hear tell Eddie Mr. thing some money being about up lost, burned Mr. I heard Hamby speak spoke sir. of it after it—yes, got back cigarette—I in with the mean when I was in with the cigarettes. say What did he with reference to the sustained loss money being Rosa Edwards? About her up, Well, burned got when I went the coca colas for fireman come back go keep he told me to up around there and with—gave me opener go bottle told me up around keep there and Eddie Rosa and tell them every- would replace thing back after the firemen leave and if me the officer seed *5 ques- me me happened ask
’round there and to I anything. them If they’d me, tions or what don’t tell do to he that did he’d kill me. me tell Rosa and Eddie He told -to up. burned I went around replace everything would that was got coca' there to tell them I ’round there with the but when got I firemen before colas and all the officer arrested me to give to them I talked with the then the coca colas. officers happened, yes, sir. Did yes, I did tell them what there, sir. prop- anything me set fire to this Hamby Mr. offer he—did give big set-up me a me he would erty; he offered—told in building back. that line build the wanted me to appears from the other evidence It business, yes, sir.” detected gasoline at the site of odor of testified jug which Robert Chambers bottles and fire. The found and introduced burned were houses placed Mr. Chambers testified that from which The container evidence. warehouse. found in the defendant’s gasoline was he took Edwards invited her house of Rosa Hamby came prior just “set-up” wine Riggins to a Eddie her son her when leaving house unlocked upon Rosa’s insisted fire, and wine Hamby’s she locking when went to in the act of she Rig- told Eddie Junior Chambers set-up. Robert shop got him Hamby Mr. had to set Hamby’s presence gins in good losses make all fire. offered the house on Riggins “go in the fire and told by Rosa sustained prop- Hamby’s loan There was a up,” about the fire. shut property securing the loan Part of the amounting $4200. erty The houses burned were insured houses burned. consisted payable The insurance together. $2500 for a total of property. step- security deed holding the the bank January Robert Junior Chambers testified that father of hire June, Hamby had endeavored February before the fire question. him buildings Applying or houses burn the as stated above, as to corroboration rule finding think the was authorized evidence, we overruling court did not err in guilty arson, and the defendant a new trial. motion for approved March Assembly, to the act of the General Pursuant 232), requiring the whole (Ga. 1945, p. L. 8, 1945 judges consider case in which dis- one of the of a division sents, this case was considered a whole.
Judgment Worrill, Sutton, J.,C. and Gardner and affirmed. JJ., concur. Felton Townsend, JJ., dissent. *6 (dissenting). the J. the first division As to of
Townsend, opinion, ground I dissent amended because believe that 1 of the requires motion for a new trial a reversal. Therein it out is set that the jury trial court the as “Now, follows: in this case, the relies what in part State is known—it what relies testimony is known accomplice.” Thereupon as of an trial proceeded charge jury substance Code 38- § provides requirement which for the of corroboration of testimony of an It is contended the amended motion charge for a trial new that it this was error in that expression amounted to the opinion by of an judge the trial charge his jury that for the a witness state an accom- plice the defendant, Fred and denied the Hamby, jury right to whether or an determine not such witness was such accomplice; that therefore said amounted to an opinion by judge the trial jury his Fred Hamby participated in the crime of which he trial, witness; which he was on with the this State’s that all was a violation of 81-1104 which Code forbids trial § express opinion proved an been as to has as to guilt requires in a accused criminal case and which appellate case trial courts of this State reverse the for a new where assigned. therefore, such error is The case should here, solely question judge turn whether or not the trial expressed opinion an when he charged such “in jury that this the State on what is relies known as the accomplice.” of an appears From record jointly Junior Chambers indicted defendant. It with the appears principal further that Robert Chambers for the He admitted in State. his buildings question. burned the He swore that the defendant procured him to do so. All this was denied the defendant. jury Thus an issue for the determination was made as accomplice whether or not Robert Junior was an Chambers court, my the defendant. of the does opinion, 14
not leave this for the jury. determination of the On hand, my other is that the in no uncertain terms informed the that Robert Junior an Chambers was accomplice when defendant he told the “in this case, the State relies on what known accomplice.” following charges have been error: “The held reversible
witness, ‘having
convicted,
been
matter
as a
App.
(153
782).
law.’” Sellers v. State, 41 Ga.
E.S.
“ 'One
witnesses testified
case to
worked
having
at this still for
defendant,
that,
law,
under the
con-
”
stitutes
accomplice.’
what is known
State,
Demonia v.
“
App.
101).
E.
2d,
charge you
S.
T
matter
of law that
the codefendant,
Moffett,
L. C.
for the
a witness
State,
an accomplice
your
so far as
consideration of
testi-
”
mony is
concerned.’ Middleton
2d,
McDonald of course
'Charles
admits he is
*7
plea
He has filed
crime;
an
being
this
and he
accomplice in the
partner
case of a
defendant,
the
hav-
ing admitted
you
to have
there,
been
would not be authorized
to convict
Pope Kryder
James
testimony of
the
McDonald
”
“
Kryder
(194
alone.’
890).
v. State,
App.
Ga.
57
200
S. E.
T
believe it
Lyons
is admitted in
Tommy
this case that
an
”
accomplice.’
State,
299).
Golden v.
501
S. E.
“
you
‘Now,
are
determine, gentlemen,
whether
is
or
not
an accomplice. He
having anything
denies
com-
do with the
of n this offense
mission
himself;
nothing
states that he had
”
it,
accomplice.’
to do with
and was not an
Suddeth v. State,
In
Demonia v.
supra, it is held as follows: “Section
81-1104
the Code
makes it reversible error
for
trial
express
intimate
charge
opinion
or
jury
his
toas
or
not been proved. Hence,
per-
has
has
on the trial of a
distilling spirituous
accused
son
and alcoholic
it was
liquors,
the
charge,
reversible error to
‘Gentlemen of
the
Jury, one of
testified in
having
witnesses
this case to
worked at
still for
this
defendant,
that,
this
under the
is
law, constitutes what
expression
accomplice.’
opinion
an
was an
an
known as
This
referred
an accomplice
that the witness
to was
defendant.”
the
Cited in support
opinion
majority
the
charge
not
the
is
erroneous are the
Cantrell v. State,
cases of
excerpt ground from that it amóunted to 81-1104, violation of Code I believe § Supreme would held Court have the same erroneous. to be objection However, excerpt Weils case was injurious misleading place for the court in one instruct that Freddie Hooks was and in other *8 places to that it left the jury instruct would be determine accomplice. Supreme or not Freddie Hooks was an whether merely complained Court there held that the not subject opinion criticism. The majority states “the that effect a court that State relies certain rule rule law in law stated that the abstract did apply but not any person concretely. it witness simply said any testimony in effect that where or if there felony case accomplice—not by necessarily case, in the felony instant law the rule of felony apply should any case—the majority testimony.” It stated in the is also to that judge, excerpt to, here referred opinion “The in the that part upon in testimony by relied the State classifying testi- accomplice’s testimony known or called being a class delivering particular mony. classifying the He was not any call the name of it He did not as an any He did state what testimony. with such not connection rule merely charging abstract witness had testified. accom- abstractly of law as related relied case, rule law the State plice given which said depends upon case.” that course what upon in the instant All case, the State by language meant “in this relies on accomplice.” appearing It is known as of an who only witness for the State Robert Junior Chambers was testimony that he committed crime contended his pro- which the on trial and that defendant was unnecessary I think for the call so, cured him to do court to excerpt name in make the consitute violation his order to trial said my It is when Code 81-1104. § talking abstractly any case, but case”, “in this he was not about when my opinion trial. It is talking about the “the on what is known as he said State relies accomplice” there in effect told the that Robert defend- Hamby, of Fred Junior Chambers was an classify testimony rather than the may ant. He have meant to have opinion. majority may It witness, as stated particular However, classify any witness. been intention to classify did Chambers think he nevertheless accordingly excerpt accomplice of Fred trial opinion by of an amounting error 81-1104. Code violation of § J., dissent. say Felton, concurs authorized to I am TRIPPE v. POTTER. 32919.