88 S.E.2d 713 | Ga. Ct. App. | 1955
JEFFERIES
v.
THE STATE.
Court of Appeals of Georgia.
Wesley R. Asinof, for plaintiff in error.
Richard Bell, Solicitor, contra.
*485 TOWNSEND, J.
1. An incriminatory admission or confession by a defendant in a criminal case, standing alone, is not sufficient to authorize conviction unless there is proof of the corpus delicti or other evidence aliunde tending to establish the guilt of the accused. Code § 38-402; Devore v. State, 7 Ga. App. 197 (1) (66 S.E. 484); Ransom v. State, 2 Ga. App. 826 (59 S.E. 101).
2. Where, as here, the defendant is tried on an accusation charging her with keeping, maintaining and carrying on a lottery jointly with four other defendants against whom there are accusations arising from the same transaction, and the only theory upon which the State proceeds against this defendant is that she was acting as a receiver of writers' lottery tickets brought to her by the co-defendants, evidence that such co-defendants were not in possession of writers' tickets at the time they came to her house, and their acquittal of the lottery charge in the same proceeding, demands the conclusion that the verdict of guilty as to this defendant is unauthorized and repugnant. There being no aliunde evidence of the corpus delicti, this defendant could be convicted in this *484 case only upon evidence that the co-defendants were guilty of possessing lottery equipment, and were bringing the same to her home for the purpose of maintaining and carrying on the lottery jointly with her. However, the acquittal of the four co-defendants in the joint trial is an adjudication contrary to this contention. While several persons may be jointly indicted and tried, and some convicted and others acquitted if the evidence so warrants, yet where all but one is acquitted and the evidence is such that more than one must be guilty for the crime to have been committed at all, the acquittal of the co-defendants renders void the conviction of the remaining defendant on the ground of repugnancy. Cf. Martin v. State, 115 Ga. 255, 256 (41 S.E. 576); Roane v. State, 97 Ga. 195 (22 S.E. 374).
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.
