Was the appellant, a New Orleans attorney, an innocent victim of his client’s vindictive vendetta resulting from the latter’s belief that the barrister had betrayed ("fingered”) him so that his conviction was solely from a concaternation of criminating circumstances? Was the lawyer’s interest in this case which involved a burglary of almost $8,000,000 of negotiable bearer municipal bonds legitimately limited to the reward of $100,000 paid him for providing information leading to the recovery of the stolen securities? or—as charged by the state—was appellant a willing participant with three other indictees in a conspiracy in which his assignment was to handle disposition of such securities as might be the fruits of the plot?
This suspenseful story had its inception from a discussion between three men, LeBlanc, Gaudin, and Alley, concerning "get rich quick” opportunities such as finding buried treasure or having a lucky number in Irish Sweepstakes prizes. From this developed a plan for burglarizing the Atlanta office of Robinson-Humphrey Co., where Alley was employed. As "inside man,” Alley provided LeBlanc and Gaudin with safe combinations, a diagram of the firm’s lay-out, and information as to disconnecting the burglar alarm.
On the evening of March 15,1973, prior to the office building’s security guard going on duty, LeBlanc and Gaudin entered the First National Bank Tower. They hid in the men’s room on the twentieth floor where the securities establishment had its place of business. Then during the early morning hours of March 16 they used their duplicate keys to make their felonious entry and to accomplish their design of stealing selected municipal negotiables identifiable only by numbers thereon. Again they hid in a rest room until about 7:30 a. m. when, undetected because appearing to be ordinary business people, they left the building with four brief cases containing the stolen securities after which LeBlanc took *479 possession of all of the pilfered goods. Telephone company records showed a long distance call placed by LeBlanc at 7:56 a. m. to appellant’s residence.
A few days afterwards LeBlanc made a trip to New Orleans. While there, on March 22, LeBlanc conferred with Quaid. The attorney contended this visit was legitimate and originated in connection with matters in which he was representing LeBlanc which had arisen during the latter’s previous residence in Louisiana. Quaid contends his activities in all respects were as attorney-client and not tainted by any illegality. His version is that during this conference on March 22 LeBlanc presented a hypothetical situation creating the possibility of stolen securities being returned to their rightful owner for a monetary consideration. In order to learn the procedures generally used for this purpose Quaid placed a telephone call to an Atlanta friend in the securities business who in turn called a New York City acquaintance to learn if a finder’s fee would be paid by an insurer for recovery of lost or misplaced bonds. From this Quaid was told that an Atlanta brokerage firm presently had such an embarrassing situation and that someone from that concern would call him.
After Quaid left his office that same day for Dallas his telephone receiving device recorded a message from Mahoney, an executive with Robinson-Humphrey. One week later (March 29) Quaid called Mahoney. Both before and after March 16, the date of the theft, there were telephone calls between Quaid and LeBlanc and Gaudin according to telephone company records. LeBlanc testified these were concerning disposition of the stolen bonds but Quaid stated these were on the basis of an attorney-client relationship. He explained in detail the other legitimate matters which he was handling as lawyer for Gaudin and LeBlanc to support his position in this respect.
During the period of the investigation, an anonymous telephone call was received by Mahoney on March 26, the caller revealing the safe combination and inquiring as to arrangements for payment if the stolen bonds were returned. The anonymous caller was LeBlanc *480 who then made another such call on the next day wherein he described certain bonds in his possession to indicate the anonymous caller’s familiarity with the pilfered securities and offered to return all of the stolen bonds for $350,000. Both telephone conversations discussed obtaining an intermediary to conduct negotiations and return of the bonds so that the anonymous party (LeBlanc) would feel safe in dealing with Mahoney.
On April 6 Quaid went to Atlanta and presented Mahoney with an employment contract providing'for payment of $500,000 upon recovery of the bonds. Mahoney then informed him Robinson-Humphrey had meanwhile obtained coverage from Lloyd’s of London so that payment would not exceed $100,000 for information leading to recovery of their bonds. Mahoney also informed appellant he had received an anonymous call from someone wanting to sell the bonds for $350,000. When Quaid left Mahoney’s office, he called LeBlanc and confirmed this and thereupon told LeBlanc to "Go to hell.” Quaid then flew to New Orleans and upon arrival there first sought to contact the Atlanta Police Department but upon being unable to do so, called Mahoney and gave him a telephone number of LeBlanc and the type of car LeBlanc was driving. As a result, LeBlanc was arrested April 7th and all of the bonds with the exception of $150,000 were recovered. Thereafter, $100,000 was paid to Quaid by Robinson-Humphrey Company.
In the interim LeBlanc had gone to New Orleans and while in Quaid’s office threatened he would implicate Quaid unless Quaid paid him $50,000. Threats were also made to Quaid’s wife.
LeBlanc finally concluded that he "had been fingered” by Quaid and proceeded on April 17th to make a confession in return for a promise of a reduced sentence. In this confession he implicated Quaid, Alley and Gaudin. He also surrendered the remaining securities.
Upon being arrested, Alley made a full confession as to his participation. He implicated Quaid only indirectly, this being his statement that when the conspiracy originated he had been told by his confederates there was a New Orleans attorney, name never mentioned, who *481 would make the necessary arrangements to dispose of the bonds and who would receive an even split with the other three conspirators on such amounts as might be derived from sale or disposal of the bonds.
Other pertinent facts will be discussed in the opinion.
Alley and LeBlanc pleaded guilty and testified as witnesses for the state in the trial jointly of the other two co-indictees, each of whom was represented by his personal counsel. Each was found guilty by independent verdicts. After the jury had deliberated for 45 minutes on sentencing and reported a division of 7 to 5, the trial judge discontinued their deliberations and sentenced each to 10 years. The trial court’s action in this respect is enumerated as one of twelve assignments of error presented by Quaid’s appeal. The companion appeal by Gaudin was dismissed under our Rule 14 (a) for failure after notification to file briefs and enumerations of error.
1. Appellant’s able attorney ardently argues a reversal is required under enumerations of error 1 and 2, these being on general grounds that the verdict is contrary to the evidence and without evidence to support it. The basis of this argument is that the testimony of LeBlanc as an accomplice is not sufficiently corroborated to satisfy the rulings of
Ivey v. State,
In
Pitts v. State,
(1) It is not essential that the testimony of the accomplice should be corroborated in every material particular.
(2) It is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular.
(3) Such corroborating circumstances need not be enough to amount to another witness or sufficient to support one to that extent.
(4) Slight evidence of corroboration connecting defendant with the crime is sufficient.
(5) The sufficiency of corroboration of the accomplice is entirely a matter for the jury.
Although the three judges comprising this division dissented from the majority opinion in the Pitts case, our disagreement was not with these controlling legal principles, but with the application thereof to the facts, because we regarded the evidence there insufficient to sustain the conviction.
In the case at bar we find that the supporting evidence satisfies these five tests. Such corroborative testimony may be summarized thusly: Telephone company records confirming long-distance calls between LeBlanc, Gaudin, and Quaid both before and after the burglary date, including the significant call at 7:56 a. m. on March 16th, shortly after the crime had been completed; the scientific testimony showing that a sample bond which LeBlanc testified had been delivered to Quaid was duplicated on the same copying machine as a letter which appellant admitted had been copied by him in New Orleans; the proof of appellant’s fingerprints being found on the sample bond and also on the copy thereof; testimony that two shipping labels from appellant addressed to him were typed on the same typewriter as a contract prepared by the attorney; appellant’s conflicting statements to an F.B.I. agent; and the records of Delta Air Lines verifying Quaid’s flights to and from Atlanta at stated times and dates. Additional circumstantial corroboration was contained in the testimony of the co-indictee, Alley.
*483
In his testimony, appellant gave such logical explanations concerning this corroborative testimony as would have justified the jury to acquit him if they had accepted his version. But, the jury, as "Doctors of Doubt,”
1
serves as our vehicle for determination of credibility as between the witnesses, not the appellate court. "The corroboration may be strong or it may be slight, but whether it is sufficient to connect the accused with the commission of the crime ... is a question to be decided by a jury.”
Rawlins v. State,
2. The next three enumerations of error (3, 4 and 5) deal with the denial in each of three instances of motions for mistrial made by the appellant based on allegedly improper remarks in the district attorney’s closing argument. We will deal with them separately. But all three rulings are governed by the recent case of
Counts v. Moorehead, 232
Ga. 220 (
(A) One of these incidents occurred when the district attorney said: "Everybody is just going to let Alley and LeBlanc go to jail but don’t dare touch Gaudin or Quaid. Just because Quaid is a lawyer doesn’t make him holier than thou. If we didn’t prosecute people based upon valid evidence for some reason because they were professional, we certainly wouldn’t be upholding our job. We take an oath to prosecute the guilty and release the innocent.” (T. 858).
Enumeration No. 3 objects only to the last sentence but we have quoted the remainder of the context in order to complete the picture. Thereby the argument as a whole is shown not to be an expression of personal opinion of defendant’s guilt or innocence, which is forbidden.
Sparks v. State,
(B) Another mistrial motion was made when the prosecutor said: "Mr. Quaid, he says he’s a man of good character, but you know Judas was too until he got his thirty pieces of silver.” (T. 861). The district attorney contended the statement was a legitimate inference since "Mr. Quaid has sold out the legal profession by his conduct for one hundred thousand dollars.” (T. 861).
All advocates make use of imagery and biblical references. "[Figurative speech has always been regarded as a legitimate weapon in forensic warfare.”
Taylor v. State,
(C) The fifth enumeration contends error in denial of a mistrial when defense counsel objected to the prosecutor’s argument dealing with the issue of good character. Defendant had testified in detail as to positions of responsibility that he had held which were illustrative of his good character. These included service as a captain in the military police, assistant district attorney, a member of the New Orleans Metropolitan Crime Commission, and attorney in charge of a Louisiana grand jury studying organized crime. The only character witness introduced by him was a doctor, who was also a personal friend. To rebut defense counsel’s argument as
*486
to his client’s good character the prosecutor commented: "If his reputation is so great in the legal community, why isn’t there a district attorney in here who knew him while he was on the staff down there? Why isn’t there a lawyer in here who has practiced with him if his reputation is so great in the city of New Orleans?” (T. 846-7). Thereupon defense counsel moved for a mistrial which was denied. This ruling was correct. "While no presumption of guilt arises by failure of the defendant to introduce witnesses in his own behalf, yet it is proper for the solicitor to argue to the jury any inferences of fact which might reasonably be arrived at from the evidence.”
Dorsey v. State,
3. Defendant’s sixth enumeration attacks the trial judge’s action in removing the sentencing phase from the jury and imposing sentence from the bench. In the bifurcated procedure then used the jury had deliberated forty-five minutes as to sentences for Quaid and Gaudin. The judge then inquired of the jury as to their division and received the answer, "Seven of us are in one area and five of us in another.” Although the foreman further indicated that "I believe five minutes and we could get together,” the trial judge decided it was proper for him to exercise the right given him under the then existent statute that "if the jury cannot, within a reasonable time, agree as to the punishment, the judge shall impose sentence within the limits of the law.” In
Bowman v. State,
*487
4. The next assignment contends error in the trial court’s denial of a mistrial motion based upon a newspaper report of the trial. The allegedly prejudicial portion was the concluding paragraph in which the prosecutor was quoted as saying that a forthcoming witness would testify that defendant "was paid by Robinson Humphrey before it was learned that he was allegedly part of the group which took the bonds.” Appellant asserts the publication was harmful within the U. S. Supreme Court rulings of Cox v. Louisiana,
5. The next enumeration of error (No. 8) contends the court erred in failing to sustain a defense motion to strike the testimony of a state expert witness as to his opinion concerning certain documents having been copied upon the same machine. This motion was not made until after both sides had completed presentation of all their evidence. In explanation of his having failed to object at the time the testimony was presented during the trial, appellant’s attorney pointed to "the lengthiness of the trial [one week] and all of the voluminous amount [100 documents] of evidence that had been introduced.” (T. 748-753).
Appellant’s brief argues that "Section 38-709 of the Annotated Code of the State of Georgia was not complied with and neither was appellant’s motion for discovery filed prior to trial complied with.” Section 38-709 requires that "Such other new papers, when intended to be introduced, shall be submitted to the opposite party before he announces himself ready for trial.” It would appear this section is not here applicable since the comparisons were not then available and were not made *488 until mid-way in the trial. Additionally, this testimony was submitted as rebuttal to evidence presented by the defense.
With reference to discovery our Supreme Court stated in
Henderson v. State,
6. Defendant complains in Enumeration No. 9 that the trial court declined to use the exact language of his request numbered 4. As the subject was adequately and properly covered (T. 866) in the charge, there was no error. "Examination of the charge that was given shows that it substantially covered the principles embodied in the requested charges, and therefore there was no error in failing to give the requested instructions in the exact language requested.”
Campbell v. State,
7. Defendant contends the trial court erred in not granting a mistrial for prejudice to defendant when a witness testified that Gaudin, the co-defendant who was his employer, had threatened him when he discovered the witness’ name on the state’s list of witnesses.
The evidence was clearly admissible against the co-defendant. "[A]cts, conduct and statements of a conspirator, not only in the perpetration of a common criminal enterprise but in an effort at concealment, are admissible. [Cits.]”
Hutchins v. State,
Further, the transcript reveals that although defendant and the co-defendant were jointly tried, they were represented individually with defense evidence being presented separately for each. Additionally,
*489
defendant’s counsel cross examined the witness to show defendant’s lack of involvement in the threat. "Upon the question as to whether a declaration of mistrial is required, 'unless it is apparent that a mistrial was essential to preservation of the right of fair trial, the discretion of the trial judge will not be interfered with.’
Manchester v. State,
Defendant was not prejudiced by the presentation of the evidence in this manner.
8. The next enumeration of error (No. 11) deals with admission into evidence of tape recordings made by Mahoney of his telephone conversations with LeBlanc and the defendant. Appellant asserts error in that (a) the recordings were not made available to him prior to trial in accordance with his motion for discovery and (b) recordings of these conversations were illegal as being contrary to provisions of Code Ann. § 26-3001.
As has been previously stated, "criminal discovery on behalf of the defendant may not be compelled. . . In addition, the Supreme Court of the United States has held that pretrial discovery of defendants is not required by considerations of due process [cits.], in the absence of a showing that the evidence denied disclosure of by the prosecution upon request was materially favorable to the accused either as direct or impeaching evidence. [Cits.]”
Whitlock v. State,
The recording between Mahoney and defendant was not illegal as it came within the exception stated in Code Ann. § 26-3006. This exception permits recording where "the message shall constitute the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto shall consent.” This exception is not limited to law enforcement officers as is contended by appellants as they are dealt with and excepted in Code Ann. § 26-3004.
In
Cross v. State,
Moreover, as Mahoney had already testified as to these conversations, the tape recordings were cumulative. "[AJdmission of evidence will not be grounds for reversal if the same evidence was admitted elsewhere without objection. [Cit.]”
Brown v. State,
There is therefore no merit to defendant’s enumeration number 11 on either ground.
9. Defendant’s final enumeration (No. 12) attacks the admission into evidence of oral statements made by him to an F.B.I. agent on two grounds: (1) No copy of the agent’s interview notes were furnished to defendant on his motion for discovery; and (2) defendant was not given the Miranda warnings.
We have heretofore in this opinion dealt with the subject of discovery. We further note the district attorney asserts in his brief that "The record does disclose that a memorandum of the statement was given to the appellant before the trial.” (Brief, p. 29).
At the request of counsel for appellant the trial court held a Jackson v. Denno hearing outside the presence of the jury before the agent’s testimony was admitted. This disclosed the statements to have been made by the appellant at a time when he was not a suspect. It also appears the interview was non-custodial. See United States v. Montos, 421 F2d 215.
It should also be noted in Miranda v. Arizona,
As was the result of our consideration of the previous eleven assignments, we again find the trial court did not err in admitting this testimony.
Judgment affirmed.
Notes
This definitive phrase was devised by that master of words, Chief Justice Logan Bleckley, in
Central R. Co. v. Ferguson,