39 S.E.2d 69 | Ga. Ct. App. | 1946
1. Slight evidence that the crime was committed by the defendant will corroborate an accomplice and warrant a conviction. The sufficiency of corroboration is peculiarly a matter for the jury to determine. Where the verdict is found on slight evidence of corroboration, it can not be said as a matter of law that such corroborating evidence is insufficient.
2. It is within the discretion of the trial court to question a witness in order to ascertain the truth of the issue at hand, but the court should be careful to question him in such a manner as not to intimate or express any opinion concerning the issue.
3. Special grounds 2 and 3 are without merit, for the reasons set out in divisions 1 and 2 of the opinion.
Substantially, the evidence for the State was as follows: Isom Powell testified: That he had raised a crop of tobacco, and carried a load to market at Nashville, Georgia. Living some distance from Nashville, he spent the night there. After he had sold the tobacco and received his money, $186, he went to a picture show. When he arrived there he saw the defendant Hillock and Jesse Gaskins *119 standing in front of the picture show (Gaskins was also charged with the robbery of Powell and had pleaded guilty prior to the present trial of Hillock, and at the time of such trial was serving a penitentiary sentence at Reidsville). In the presence of the two defendants, the witness took from his pocket the $186 which he had received from his tobacco, and exposed it to their view. He then took from his pocket 50 cents in change and purchased a ticket to the picture show. The witness spoke to Gaskins, but did not speak to the defendant Hillock, and walked into the picture show, Gaskins following and taking a sent beside the witness. Hillock took a seat across the aisle. When the show was practically over, Hillock and Gaskins returned to Brown's warehouse, where the witness had sold his tobacco. The two stayed in the warehouse approximately one-half an hour, whereupon the witness informed Gaskins that the witness desired to go by the mule lot and in doing so wanted to go by the Tally warehouse. Then Gaskins stated that he would have to go back the way he went into Brown's warehouse. This was between 10 and 11 o'clock at night. As they passed the meat-curing plant on the way from Brown's warehouse to Tally's Tobacco Warehouse, Gaskins grabbed the witness while "the other fellow got the money. . . I think it's him right over there." The witness got the sheriff the next morning and informed him that the witness thought Hillock was the man-"in my best judgment I think it's the same man." The witness further testified that on the night of the robbery the lights were shining and it wasn't real dark. "I recognized him [meaning the defendant Hillock] as the same boy that was with him [meaning Gaskins] at the picture show. It looks kinder like the same boy here now." Gaskins told the witness that the other fellow's name was Hillock. The witness did not remember the name the next morning. He could not tell that Hillock had robbed him, but depended upon what Gaskins had told him. It was dark when the money was taken. The witness could not testify positively that the defendant was the one who got the money, but he did know that the defendant was the same person who was standing in front of the picture show with Gaskins when the witness purchased his ticket. The witness further testified that he was not drunk the night of the robbery. He did not tell anyone that Gaskins alone robbed him. He procured the sheriff and "went to hunting" the boys. "The size and *120 bulk and shape of the man" who robbed the witness was the same as the defendant Hillock. The witness further testified: That, when he saw the man that got his money out of his pocket, he and Gaskins were coming out of the warehouse. They got out of the warehouse, and the defendant was standing by the side of the road. It was light. The witness did not look in the face of the man standing by the road because Gaskins caught the witness and the head of the witness went down. While in this position the money was taken from the pocket of the witness. The one who took the money didn't say anything. "I think this is the man there" (meaning the defendant). After the witness and Gaskins arrived at the warehouse, Gaskins informed him that Hillock was going to meet them — the witness and Gaskins — at the warehouse. As the witness and Gaskins walked out of the picture show, Gaskins told Hillock in the picture show to meet Gaskins and the witness at the warehouse, that the witness and Gaskins would be at the warehouse. He was talking to the defendant Hillock when this occurred in the picture show. The first time the witness had ever seen Hillock was at the show. He got a good view of him there and remembered his face. The defendant was the man whom Gaskins asked to meet him at the warehouse. Gaskins asked Hillock "to meet us there." The witness did not talk to the sheriff that night, but pointed out the defendant Hillock the next morning. "He is the same boy that Gaskins asked to meet us at the warehouse." The witness told the sheriff the next morning that Hillock robbed him. "I told him that because Gaskins told him to meet he and I at the warehouse." The defendant did not make any response when Gaskins told the defendant to meet them at the warehouse.
On cross-examination this witness testified: (We herewith state the evidence not substantially set forth under the preceding direct examination.) The witness stayed in the picture show about 30 minutes, certainly not more than an hour and a half. When he got up to leave, Gaskins went out with him. The witness had had two or three bottles of beer, and Gaskins was going to take care of him to see that nothing happened to him. When the witness got to the Brown warehouse, he sat down on some tobacco. It was about two hours from the time when the witness saw Gaskins at the picture show before he was robbed. Gaskins was walking along with the witness when he grabbed the witness. "The other fellow" got *121 the money out of the pocket of the witness and ran. "The other fellow" stepped out of the dark, after Gaskins grabbed the witness, and took the money. The witness did not see "the other fellow," until he appeared upon the scene about the time Gaskins grabbed the witness. The witness was not expecting anyone. "Gaskins said that the boy was standing at the picture show that went in the picture show with us." Gaskins told the witness later that the one who helped him rob the witness was the same one who was at the picture show. "That is the way I knew it, by what Gaskins told me." The witness bases his knowledge that the defendant was the one who took his money on what Gaskins told him. Gaskins was arrested for the robbery the next morning. He was the first one that the witness got a warrant for. The witness got a warrant for both Gaskins and the defendant. Gaskins told the witness the name of Hillock. The witness knew the defendant next morning as the man he had seen at the picture show with Gaskins. He did not remember his name, although he knew that he was the same boy who was at the picture show. "The only way that I knew this man had anything to do with any connection with this crime was from what Gaskins told me. This is the only way that I have of knowing that he had anything to do with the crime." The witness paid no attention to the color of Hillock's hair, but just saw him standing at the picture show; couldn't tell how much he weighed, but he was a little stouter than the witness; and couldn't tell Hillock's age. The witness stated that he could not judge an ordinary man by looking at him, and tell his age. When the witness walked into the picture show, Gaskins sat down beside him, and the defendant Hillock sat down on the right side. Hillock was with a girl, and was still sitting in the show when Gaskins and the witness left "and he [Gaskins] stopped and says, `We will be at the warehouse' . . meet him [Gaskins] between the ice house and the warehouse. . . Gaskins didn't say anything about robbing. I couldn't tell you why he put it between the warehouse and the meat house." After the money was taken from the witness, both Gaskins and the defendant ran. The witness couldn't tell whether the person who assisted Gaskins in robbing him was a negro or a white boy. "What I am basing it on is what Gaskins told me."
Hiram J. Gaskins testified for the State: That he knew Powell and Powell knew him. The defendant Hillock was around the *122 show and bought his ticket to go in and they went in together. Hillock was with a girl. Hillock had "done planned it." The witness and Hillock had been standing there quite a while waiting to go in. Hillock had planned it and had told the witness while he and Hillock were standing there, how to do everything. The witness and Powell went in the show and stayed about thirty minutes, then Powell invited the witness to go out, saying that Powell had a drink down there. The witness and Powell went out and got a drink, after which they went back into the picture show. After staying a while they went to the warehouse, Hillock told the witness that he would meet the witness at the warehouse. When the witness and Powell walked out of the warehouse, Hillock was there. The witness caught Powell, and Hillock got the money off of Powell. The witness did not know how much money Hillock got off of Powell; he just knew what the witness got and that was in one-dollar bills. The witness did not know how long he had been knowing Hillock; was in Florida, and upon his return Hillock was there with a show, and after the show discontinued, the witness saw Hillock a number of times and got to knowing him pretty well. The witness was working and Hillock had no place to stay, so the witness prevailed on his mother to let Hillock stay with them. After that the witness and Hillock stayed together pretty well.
On cross-examination, the same witness testified: That he had already entered a plea of guilty, was given from one to twenty years, and at the time of the trial was serving his sentence at Reidsville. Hillock was in front of the picture show with the witness the night of the robbery, and when the witness and Hillock saw the money which Powell had, the idea came into their heads to get it. The witness did not know how much it was, but it was "a big bunch." After leaving the picture show, the witness and Powell went to the warehouse, where they waited for Hillock, who was going to walk with the girl whom Hillock sat with at the show. The witness was the one to get Powell down to the warehouse where they planned to rob Powell. The witness and Hillock had planned the robbery before they went in the show. The witness and Powell went to the warehouse and stayed there for a while. Under the plan, the defendant Hillock was supposed to be down there when the witness could get Powell out of the warehouse. Hillock told the witness that he would be there. The witness and Hillock *123 planned the place where they would rob Powell. After the robbery the witness and Hillock separated. The witness spent the night in the Liberty warehouse. Hillock spent the night at the defendant's house. The money was divided near where the robbery took place. The witness got $31 or $32. He was arrested the next morning. He denied the robbery, but later admitted it.
The defendant made a statement in his behalf: He and Gaskins went downtown to a picture show. Gaskins paid the way in. While they were in front of the show a girl appeared, and the defendant asked her who was with her, and she said that her stepmother's brother and wife were with her. The defendant asked to accompany the girl into the show. She agreed. The defendant and the girl went into the show and did not see Powell or Gaskins any more. The defendant spent the night at his boarding place — at Mrs. Gaskins.' About three o'clock someone came and inquired for Gaskins, but Gaskins was not at home. About daylight an officer came. After that the defendant went uptown. The defendant was standing near the post office, and someone said, "I hear your buddy got in jail." The defendant said, "Who?" The other party said "Gaskins." About this time Powell walked up, and the defendant said "Boy, I hear you got robbed last night." Powell remarked, "Yes, Gaskins robbed me." The defendant said: "No, he didn't," whereupon Powell said, "Yes." Then the defendant stated, "I didn't think Gaskins would do anything like that." About that time Powell told Millark Luke that the defendant helped to rob him. All the time Powell was under the influence of liquor.
Dorothy Smith testified for the defendant: That she remembered the night of the robbery. She was with this Hillock boy at the show. While at the show Gaskins and Powell, after going into the show, left in 15 minutes. Gaskins did not speak to Hillock. Powell got in a conversation in a crowd where the witness was and she smelled whisky on someone. She did not know who was doing the drinking. Hillock went home with the witness and stayed there 5 or 10 minutes. She did not know where Hillock went afterwards.
The motion for a new trial contains the general grounds and three special grounds. We will deal with them in their order. 1. We have set forth the evidence somewhat at length in order that it may speak for itself, and also that we may more intelligently analyze it. Counsel for the defendant lays great stress upon the fact that Powell, the one who was alleged to have been robbed, stated in effect that all he knew about the identity of the persons who robbed him was what Gaskins, the codefendant, told him after the robbery. We have examined carefully the testimony of Powell, and find that throughout his testimony he stated that he did not know the person who took the money from his person, while the codefendant Gaskins was holding the head of Powell down. A fair interpretation of this evidence means that it should be confined and restricted to the moment Powell was robbed. Therefore, when the witness Powell stated on the stand that all he knew about it was what Gaskins told him referred only to the immediate occasion of the robbery, and did not serve to nullify all the facts and circumstances of the case, which tended to show that the defendant Hillock was the person who actually took the money from the pockets of Powell while Gaskins held Powell. There are many surrounding circumstances which we think sufficiently corroborate the testimony of Gaskins that Hillock was a coconspirator in the crime. We will enumerate at least some of them: (a) Gaskins and Hillock were buddies. (b) They lived together. (c) They were standing in front of the picture show together when Powell walked up. (d) The three went in the show. (e) As Powell and Gaskins left, Gaskins as he passed out of the show told the defendant Hillock to meet them at the warehouse and that they, Powell and Gaskins, would be there. (f) Gaskins and Powell did go to the warehouse. (g) When Powell suggested to Gaskins that they leave the warehouse, Gaskins stated to Powell that they would have to leave the warehouse the same way they entered it. (h) Gaskins had not seen or conferred with anyone else from the time they saw Powell with the money in front of the picture show until the time of the robbery, except Hillock. (i) Powell positively identified the defendant Hillock as the one who was with Gaskins at the picture show. (j) Powell stated that in his best judgment Hillock was the same person who took his money while Gaskins held Powell; that he was of the same size, bulk, and shape as the one who took the money from his pocket.
While it is true that the testimony of an accomplice alone is *125
not sufficient in and of itself to sustain a conviction, yet slight evidence that the crime was committed by the defendant and his codefendant will corroborate the testimony of an accomplice. The Supreme Court in Evans v. State,
In Little v. State,
See also, in this connection, Evans v. State,
2. Special ground 1 assigns error on the ground that the court, in interrogating a witness for the State, expressed and intimated an opinion that the defendant was guilty and should be convicted. After a careful examination of the questions propounded by the court and the answers of the witness Powell, we disagree with counsel that the court intimated or expressed any opinion as to the guilt of the defendant. In Caswell v.State,
3. In special ground 2, the defendant assigns error because the court permitted Powell to testify: "The only way I knew this man had anything to do with or any connection with the crime was from what Hiram Jesse Gaskins, called Boojem Gaskins, told me, *126 this is the only way that I knew that he had anything to do with the crime. That is the truth. Yes, I couldn't tell whether he was a negro boy or a white boy, when he ran off; what I am basing it on is what Boojie told me." It does not appear from this ground that any objection was made to this testimony at the time it was offered. This special ground is but an amplification of the general grounds. We think that we have dealt with this assignment of error fully in treating the assignments of error under the general grounds. The evidence as a whole shows that the testimony of Powell on the ground specified in this assignment is properly interpreted to mean that at the moment Powell was robbed he did not recognize the defendant as being the coconspirator. It is not a proper interpretation — construing the evidence most strongly to sustain the verdict — to construe the evidence as meaning that the witness Powell testified that he did not go to the picture show and pull out his money in the presence of the defendant Hillock, and to disregard the many other surrounding circumstances which we have in detail enumerated in a discussion of the general grounds.
4. Special ground 3 assigns error because the court charged as follows: "Gentlemen of the jury, participation in the commission of the same criminal act, and in the execution of a common criminal intent, is necessary to render one criminal, in a legal sense, an accomplice of another criminal. In felony cases the testimony of an accomplice is not alone, of itself, sufficient to sustain a conviction, unless such testimony is corroborated by other competent evidence which you do believe, or by the facts and circumstances developed by the trial." It appears from the record that counsel for the plaintiff in error failed to quote the full instructions which the court gave the jury on this point. Immediately, in the next succeeding paragraph, the judge further charged: "I charge you, gentlemen, that one who is present at the commission of a crime, aiding and abetting in the commission thereof, or who participates therein, is an accomplice, and before you would be authorized to convict the defendant upon the testimony of an accomplice alone, the testimony of such accomplice must be corroborated by some independent fact or circumstance which, taken of itself, leads to an inference of guilt, not only that the crime charged was committed, but that the defendant was implicated in its commission and connected with its perpetration. Now, gentlemen, you will *127 take all the evidence and facts and circumstances of the case, including the defendant's statement, into consideration and determine what the truth is, and let your verdict be as already prescribed by the court, in some form already prescribed by the court, and let it be entered and signed as already prescribed." In this connection, we might reiterate that the jury were authorized to find that the corroborated evidence of the accomplice was sufficient to authorize the verdict and to sustain the charge complained of in this ground. The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.
