36 S.E.2d 450 | Ga. Ct. App. | 1945
1. The State's evidence contained those elements which authorized the jury to say that the presumption of innocence had been overcome, and the jury were not required to accept the defendant's evidence of alibi in preference to the evidence of the State.
2. Where the person who committed the crime was wearing a cap with its bill pulled down covering most of his forehead, but not his eyebrows or eyes, and who had a napkin over that part of his face below his eyebrows and eyes, with a hole in it for his nose, and the witnesses who were present at the time and place of the robbery were unable to positively identify him, their opinions and best judgment as to his identification were relevant.
3. It was not error to allow such witnesses to give their opinion that the defendant was the robber, where they had fully stated the facts upon which their opinion was based.
4. The facts detailed were sufficient, as a basis for the opinions of such *355 witnesses, to infer that the defendant was the person who committed the robbery.
5. But the jury were not bound by such opinions and could disregard them. The jury may deal with such opinion testimony as they see fit, giving credence to it or not.
6. Under such circumstances, upon the question of identity, "the facts detailed are not necessarily confined to a description of the appearance of the accused, but may cover isolated and apparently trivial circumstances that are in themselves inconclusive but which, when taken with other evidence, may be sufficient to establish the identity beyond a reasonable doubt."
7. The evidence authorized a charge on the law of conspiracy.
8. The admission of the evidence objected to was not reversible error for any of the grounds urged.
9. The refusal to allow evidence tendered was not reversible error for any of the reasons assigned.
10. "A pardon is an act of mercy flowing from the fountain of bounty and grace; its effect, when it is a full pardon, is to obliterate every stain which the law attached to the offender, to place him where he stood before he committed the pardoned offense, and to free him from the penalties and forfeitures to which the law had subjected his person and property:— `to acquit him,' says Sir William Blackstone, `of all corporal penalties and forfeitures annexed to the offense for which he obtained the pardon.'"
11. A pardon is partial "where it remits only a portion of the punishment or absolves from only a portion of the legal consequences of the crime."
12. A pardon is conditional "where it does not become operative until the grantee has performed some specified act or where it becomes void when some specified event transpires."
13. The pardon which contains the following: "In view of the foregoing facts, it is ordered: That said J. O. Randall be granted conditional pardon upon the condition that applicant not violate the laws of this or any State, or the Federal government. Should J. O. Randall violate the terms of this conditional pardon, same shall be revocable at the pleasure of the Governor," is a conditional pardon; and when the defendant again violated the law, a verdict of guilty in the present case was a judicial determination of an event which made the conditional pardon inoperative or void.
14. After conviction for a felony, as in the instant case, in fixing the punishment in consequence of such present conviction, the provisions of the Code, § 27-2511, which is known as the second-felony-offense statute, and provides for the longest period of time and labor prescribed for the punishment of such a present offense, were applicable.
15. The evidence authorized the verdict.
The evidence unquestionably authorized a finding that the Atlanta Enterprises Inc. (Paramount Theatre), had been robbed of $1931.76 on the day in question. The pressure in the case is as to whether the evidence was sufficient to identify the defendant as the person who committed such robbery. The evidence was substantially as follows: Mrs. Grace Jennings testified that on May 14, 1944, she was employed by Cox Prescription Shop, which is in the same building as the Paramount Theatre, being there employed as cashier and cigar saleslady. The doors from Peachtree Street to the shop are glass center doors, and a person standing, facing at her counter, could see through these doors into Peachtree Street. On the night of May 14, 1944, around 9:30 or 9:40 p. m., a person stood at her counter for about ten minutes, "just fooling around. . . He kept picking up things off the counter. He would pick up something and say, `How much is this,' and pay no attention to what I said, and all the time he was looking across the street or out through the door, and would ask the price of different things on the counter. He stood around doing that for at least ten minutes, and all the time he was watching out across the street, or watching out for some one." He had a tan-colored envelope package. "I saw that person's face. I see a face in this courtroom today that looks like him. That is the man right back there in the gray suit. I particularly studied the eyebrows of that man that night. I took him in very closely. The only difference that I see in this man here and the one that I saw there that night is that the one I saw that night had more grey in his temples than this man has. His haircut was about the same as now. I noticed his temples at that time. He was pretty grey in his temples. I don't know what he had on his temples. This man's face is exactly the same as the man. I could not say exactly that he is the same man. He is the one whose picture I took from the file. I say that his face looks exactly like the man's that was there, only his temples are not grey like that today. I don't know who that man was that was there. They say the man sitting there is named Randall. All I can say is that he looks like the man that was there, but his temples are not as grey. His face looks exactly like the man who was there. I would not want *357 to say that this is the man. All I can say is that he looks like the man that was in there. . . I watched him as he walked out. He went up the street past the Paramount, and I lost sight of him. . . I had never seen that man before that night that I recall, and I do not recall that I have seen him since, except in here, if this is the man, and I can't swear that this is the one, but it looks like him. I said that his face is exactly the same."
William R. Bedell testified that on May 14, 1944, he was employed by Paramount Theatre. At the close of the day's business, he went to the box office, got the day's receipts, and he and Miss Heflin and Miss Ragland, the cashiers, went to the assistant manager's office with the money. He called the usher and told him to bring the "loge" money to the office. In about a minute the "secret" knock to be given by persons entitled to be admitted to the office was heard, and the witness immediately "cracked" the door. The door was forced open and a man entered. He was masked, having a handkerchief or doily over his face. He had a gun in his hand and ordered Bedell to shut the door quickly, stating that it was a "stick-up," and ordered him and the ladies to keep quiet and get over against the wall, with their backs to him, which they did. Miss Heflin kept looking at the gun, and on three occasions he threatened to "drill" her if she didn't desist from looking. The robber directed Bedell to open the safe and place the money on the desk. He (Bedell) did this and then lined up against the wall. The usher came to the door, was admitted by the robber, and lined up against the wall. The robber was in the room two or three minutes. When he had taken the money, he said that there was a car coming down the driveway in five minutes, and directed those present not to move until they heard the door slam, this being the door to the exit into the alley. The robber left, the door slammed, and the police were notified. "That was a black revolver that the man had in his hand. This gun which you present to me looks like the one he had. I can't say positively. . . I got a good look at the man as he came in. After that I didn't see him. He had a yellowish sunburned complexion. His eyes were sharp and very determined. He had bushy eyebrows. I couldn't see his face. His nose was sticking through the covering on his face and was quite a sharp-pointed nose. I noticed his hands particularly because I looked at the *358 gun. They were long bony hands, hairy hands, with a yellowish tan color, sunburned. After that I saw a man that looked just like the one who entered the theatre office, as I have described, in Columbus, Georgia. The eyes of the man whom I saw in Columbus were very similar to those of the robber. He had bushy eyebrows, and, as near as I could tell, the same eyes, the same color, and the same determination in them. His hands were very similar to the ones I saw on the robber. I noticed it particularly when the officers took me there. I saw that his hands were long and bony and hairy and the same color." "Q. Tell us if you observe now any change in this man on trial? A. The man whom I saw in Columbus was pointed out as Randall, and he answered the description of the man who robbed the theatre. This is the same man that I saw in Columbus, but his eyebrows are not the way I saw them there, and his hands haven't got the hairs on them that I saw on them there and his skin is not the color that it was there. He had long bushy eyebrows in Columbus, and they are not that way here. I did not see his arms, but his hands are not as hairy as they were then, and his skin is not the same color as that of the man who walked in the theatre that night and held us up, and the eyebrows are certainly not as bushy as they were at that time. There is certainly a difference. . . I did not see the man's face and can not positively say that he is the man, but he looks like the man. The man whom I saw in Columbus, and who was pointed out to me as Randall, was very similar to the man who robbed me in Atlanta. The man in Columbus had hair on his hands, and his eyebrows were bushy." Bedell saw Randall in Columbus on the 29th or 30th following the robbery on the 14th. He also identified the handkerchief as the mask worn by the robber. "I noticed that his nose was sharp-pointed. Mr. Randall's nose is very similar to the one I saw. . . This pistol has never been shown to me since May 14th. It has not been described to me. . . My faculties were working quickly enough that I recognized the man. . . I never noticed any unusual marks . . other than what I have told you about the eyes and skin. His skin was very heavily sunburned, like a kind of a greasy sunburn. . . I did not see the man's face, and don't know the man at all, but he looks like the man — the man I saw in Columbus, and the man sitting here is the same one *359 I saw in Columbus. . . The man that held us up — the man I saw in Columbus resembled the man who held us up, in those features which I described. He looks like him, is all I can say."
Newberry, a witness for the State, was handed a pistol, and he testified that he took this pistol from the seat of an automobile by the side where Randall was sitting on May 21 near Columbus, Georgia. The pistol was lying by Randall, fully loaded with six cartridges in it. He also identified a photograph of Barney Berry, and in answer to the question whether it was in the car with Randall said: "I wouldn't say that it was in the car, but I believe —." Adair, another witness for the State, testified in part that said pistol was taken out of Randall's car by him and Mr. Newberry when they arrested Randall and Berry in Randall's automobile about two miles out of the City of Columbus, Georgia. This pistol, along with the photograph of Barney Berry, was admitted in evidence.
Mrs. Eva Headrick, who was known as Mrs. Eva Ragland at the time of the robbery, testified that she was in the assistant manager's office when the robbery occurred. She described her movements in detail, and described the robbery in essentially the same manner as that given by Mr. Bedell. She stated further: `This gun which you hand me looks like the one he had. . . I paid particular attention to. . . The man had heavy eyebrows and mean-looking eyes. . . I observed his eyes and the bushy eyebrows. I saw his complexion. It was rather dark and greasy, and he had long fingers and hairs all over his hands." After the robbery, she was shown photographs and she later made a trip to Columbus, Georgia, "where I saw a man in jail in a line-up of thirteen men. I see a man in this courtroom that I saw in that line-up in Columbus. He is sitting there by the table behind the gentleman with the dark-rim glasses on. That was nine or ten days after the robbery. . . I observed some of the same characteristics of the man in jail at Columbus that I had observed in the man who came into that office that night and held us up, and especially his eyes. I didn't notice his hands in Columbus, because he was staring at me. There were thirteen or fourteen men in that line-up in Columbus. I picked Randall out of that line-up. That is the same man who is sitting here. I hadn't seen him since the robbery. I had been shown quite a number of *360 pictures. We had been to several line-ups at the jail here. I believe we picked one man out of a line-up here, but he was too tall, and after we saw him and heard him talk — it was not him. I heard the defendant Randall talk in Columbus. The voice I heard in the Paramount was rather demanding, and the voice I heard in Columbus was pleading. That was the difference. I can't demonstrate to you very well how he talked in Columbus. He came up to us and the detective asked him his name and so forth. We had started to leave, and I was the second one in and next to the last one to leave, and I looked at him out of curiosity and he spoke to me and said, `Be careful that you choose the right man, or you might send an innocent man to jail a long time;' and he said it real low, and was talking out of the side of his mouth. . . The man in Columbus who said that to me had the same eyebrows that I saw on the man who committed the robbery. He had the same eyes, very definitely. The voice was similar to that I heard in the robbery. I observed the hands of the man in Columbus. They were similar to the hands of the man who committed the robbery. I observed the height of the man in Columbus. He was the same height as the man who committed the robbery. When I stood up to go against the wall, I looked him directly in the eyes, as I did in Columbus, and he was the same height. . . The first time I ever saw Joel O. Randall to know his name was in Columbus. It was one of the detectives down there or one of them from Atlanta that told me his name was Randall. . . We went down to see the people in the jail, of course, and we had all picked out the man. We had discussed Mr. Randall's picture, but not Mr. Randall before going down there. We picked his out. It was not shown to us. . . It was about fifteen minutes after I had identified Randall in the line-up that he made the statement to me that I testified about, as I was passing out after I had identified him. . . On the night of the robbery the robber's face looked like it had axle grease or vaseline on it. . . I never identified any person as the robber, other than the defendant now on trial. At the time of the robbery this defendant got as close to me as you are to me now. He had a pistol in his hand similar to the one that you show me, but I would not swear that it is the one. . . No one suggested to me at any time where this defendant was at Columbus in the line-up. No one pointed him *361 out. I didn't confer with Miss Heflin about the defendant being in the line before I picked him out. No one told me where he would be in the line."
E. G. Fitzgerald testified that the defendant was the same man tried and convicted on the indictment alleged as on a previous conviction.
Mrs. Ruth B. Darling testified that the defendant registered in her hotel in St. Petersburg, Florida, on the evening of May 19, 1944, under the name of T. C. Williams. With the defendant at the time was the man shown on State's exhibit 1, which was the photograph of Barney Berry. Berry registered under the name of Albert Conley. On being recalled, Mrs. Darling testified that when the defendant registered in her hotel on May 19, she observed that he had very heavy eyebrows and considerable hair on the back of his hands, all of which attracted her attention. "I could not help seeing it." When she observed him in the courtroom she noticed a difference. "His eyebrows are now thinner and he has lost the heavy growth of hair on the back of his hands."
Mrs. Dolly Birdsong, testifying for the defendant, identified hotel-registration cards of the Lamar Hotel in Meridian, Mississippi, showing that Mr. and Mrs. Thomas Wilson registered in the hotel at 2:28 a. m., on May 14, 1944, and were checked out at 1:54 p. m., on May 14, 1944; but she did not remember the defendant. Mrs. A. D. Gordon testified for the defendant: That she was on duty at the Lamar Hotel in Meridian, Mississippi, and registered a man and a woman at 2:28 a. m. on May 14, 1944; but that she was not present when they registered out. They registered under the name of Mr. and Mrs. Thomas Wilson. "In my judgment the man sitting there at the table . . is the man who registered in the hotel at that time."
Miss Carroll Heflin, testified for the State, that she was in the assistant manager's office of the Paramount Theatre at the time of the robbery, which she described. She stated that the gun exhibited to her looked like the gun the robber had in his hand. "I observed his eyebrows and his eyes. After the robbery that night, I went to Columbus, Georgia, the jail down there. . . Out of that line-up of thirteen men I picked a man out. That is the man sitting there at the table, the defendant now on trial. At that time, the eyebrows of the man whom I picked out were *362 like the eyebrows of the man who robbed us. This is the same man that I saw in Columbus, but his eyebrows are not quite as thick as they were in Columbus. I observed the hands of the robber in the Paramount Theatre. They were kind of hairy and dark, greasy looking. I saw the hands of the man that I picked out in Columbus. They were hairy. I would say they were the same hands that I saw in the theatre. I would say that they were the same hands that I saw the robber holding the gun with. . . When we left here to go to Columbus, I had seen a picture of Joel Randall, the defendant in this case. I was told what his name was. I was permitted to view that picture of Joel Randall as long as I wanted to look at it. I saw that picture more than once before I went to Columbus and saw the line-up. As these men stood in the line-up in Columbus, Randall was on the end nearest me. I did not know him from his picture. At the time I saw the line-up in Columbus, I didn't ask Randall to stoop over or anything. The bars were between me and Randall. I noticed his hands and eyes at that time. He had one of his hands on the bars, and then they took him outside in the hall. . . I noticed that he was built like the man who committed the robbery. . . I never did, in all of the three line-ups that I saw in Atlanta, identify any person other than the defendant on trial as the robber in this case. . . I remember Mr. Beddow asking me, did I say the man had eyes like the robber. I said that his eyes and eyebrows looked like the man. Q. Do you see anyone in the room with the same eyebrows and eyes? A. Yes, sir. He is sitting right there behind the man with the glasses, behind the man here. His eyebrows are not as thick now as they were then. . . The reason I volunteered the statement was because the eyebrows of the man now on trial are not as thick as the eyebrows of the man who committed the robbery, no one told me that. . . I told Mr. Acree that the man who committed the robbery had bushy, thick eyebrows. I told (Mr. Acree, a detective) that before we went to Columbus. . . I have not had occasion to observe the hands of this man Randall sitting here in the courtroom close up to him, but sitting back there." At this point the defendant's counsel had the defendant exhibit his arm to witness. "I do not see any hair on this man's arm or the back of his hand today." *363
H. M. Adair, recalled for the State, testified that, when the defendant and Berry were arrested in Columbus, the defendant said that he came to Columbus by bus from Birmingham, by way of West Point; and that later, the defendant said he came to Columbus bus in his car. A. G. Reese, testifying for the State, identified exhibit 1 as the photograph of Barney Berry, and testified that he had a conversation with the defendants Randall and Berry after their arrest near Columbus. Both were together and inquired as to the charge against them. H. L. Sewell, testifying for the State, stated that he was usher at the theatre and came into the assistant manager's office during the robbery, which he detailed. He stated that the pistol exhibited to him looked like the one the robber had, and further that the robber said he had a pal waiting for him in the alley in the automobile. "As to whether or not I see anyone in the courtroom that looks like that man — I see that man there. He has something like the eyes that the man had. I am talking about that man right there."
E. A. Moss, a witness for the defendant, testified that he met Randall on May 14, 1944, between 4 and 5 p. m., at the witness's filling station, five miles from Selma, Alabama, which is 229 miles from Atlanta. He had never seen the defendant before, but afterwards the defendant came to his place, and the witness recalled seeing him on May 14, 1944. D.C. McGehee, another witness for the defendant, testified in part that he was acquainted with Randall, and worked on his automobile on May 14, 1944, between 6:30 and 7 o'clock, p. m. in Montgomery, Alabama.
Mrs. Mary Osmet testified for the defendant in part that she was his sister and saw him on May 14, 1944, in Montgomery, Alabama, at about 8:15 p. m., and that the defendant and his wife remained in her apartment all that night and were there the next morning at daylight. J. E. Posey, a witness for the defendant, testified that he was acquainted with Randall and saw him on Mother's Day of 1944, between 8:30 and 9:00 p. m., in the defendant's sister's apartment in Montgomery, having driven there in his cab. J. L. Young testified for the defendant: That he saw the defendant on the morning of May 15, 1944, in Montgomery, Alabama, and worked on his automobile. The defendant's automobile was delivered to him about 3 or 4 o'clock in the afternoon of May 15. He was not acquainted with Randall before that time. G. P. *364 Massey, testifying for the defendant, stated in part that Randall came to Bremen, Georgia, last August a year ago, and that he has never seen hair on Randall's hands of such unusual length as to be noticeable. Dewey Davis, a witness for the defendant, testified that he had known the defendant for about a year, and had never noticed any long flowing hair on his hands, and that he did not see any difference in his eyebrows or his hands. The defendant made a detailed statement, in which he denied his guilt and sought to set up an alibi. O. J. Mangham, a witness for the defendant Randall, stated that he (Mangham) lived at Bremen, and that about May 16, 1944, he loaned Randall $200 on Randall's automobile, at a time when Randall was reputed to have returned from Biloxi, Mississippi.
C. E. Pressley, a witness for the State, testified in part that his automobile driving time from Montgomery, Alabama, to Atlanta, Georgia, was 3 hours and 45 minutes; that the distance is between 171 and 175 miles; and that the distance from Montgomery to Meridian is 165 miles.
I. G. Cowan, a witness for the defendant, testified in part that the defendant's eyebrows in Columbus could have been a little heavier than they are now. He further stated that he exhibited thirty or forty pictures to Miss Heflin, and that she picked out the picture of Randall as the robber. He exhibited forty or fifty pictures to Mr. Bedell, who picked out Randall; and forty or fifty pictures to Mrs. Ragland, who picked out Randall. No suggestion as to picking out Randall was made to these people, and none of them had seen the line-up in Columbus before they went to the jail there for the purpose of identifying him. These pictures were exhibited to Mrs. Jennings, and she picked out Randall; no one else being present except Mr. Crankshaw, and no suggestion being made to her.
J. H. Crankshaw testified for the State, in part, that he exhibited seventy-five or one hundred pictures to Mrs. Jennings, and without any suggestion from anyone she picked the photograph of Randall. W. S. Acree, a city detective, testifying for the State, described the line-up at Columbus and told how Randall was picked out of that line-up by Bedell, Miss Ragland, and Miss Heflin. T. H. Read, testified for the State, in part, that he had known Barney Berry for ten or eleven years and had seen him in the Paramount *365 Theatre, in all its various parts, for fifty or one hundred times.
George W. Pounds, a witness for the State, testified, in part, that he had a tube of "Zip" hair remover in his pocket; that Mr. Helms put some of the "Zip" on his arm a few minutes ago, let it stay there for five or ten minutes, washed it off, rubbed it with a towel, and the hair began to fall off. J. E. Helms testified to the same effect in regard to such hair remover. The "Zip" hair remover was admitted into evidence. A. T. Wilson testified that this hair remover was on the market in Atlanta for sale to the general public. It was stipulated that, within the last hour, Mr. Pressley had bought the "Zip" remover at the beauty parlor behind a Greek restaurant. 1. It will be here noted that the first two alibi witnesses of the defendant testified that he registered in a hotel in Meridian, Mississippi, under the assumed name of Wilson; that he had checked out at 1:54 p. m., on May 14, 1944. The distance from Meridian to Atlanta, Georgia, is 344 miles. The robbery was between 9:30 and 10:00 p. m. on May 14. By driving at an average rate of 46 miles per hour, which is 9 miles less than the legal speed rate in Georgia, he could have been in Atlanta at the time of the robbery.
The next alibi witness for the defendant was his sister, who testified in part that on May 14, 1944, at about 8:15 p. m., her brother was at her apartment in Montgomery, Alabama. If this were true, it would have been impossible for him to have traveled by automobile to Atlanta, a distance of 175 miles, by 9:30 or 10:00 p. m., the time of the robbery.
The next alibi witness, a taxi driver and an acquaintance of his sister, testified in part on direct examination that, after driving her home from the bus station, he carried her bag up to the door of her apartment, which was located at number 12 Clanton Street in Montgomery, and while standing in the door saw the defendant and his wife seated in the apartment; that this was between 8 and 8:30 p. m., on the night of May 14. However, he concluded his testimony on cross-examination as follows: "The first time I ever saw Joel Randall was in the same place at 12 Clanton Avenue. . . *366 That was the first time I had ever seen the brother. I am certain about that. I don't remember what day of the month that was, and I don't remember what month that was. I didn't write it down. It was in 1944. I don't remember whether it was before or after the 4th of July [1944]. I would not swear that the first time I ever saw him in my life was before the 4th of July [1944]."
As we interpret this, the witness would not swear that he had ever seen the defendant before July 4, 1944, which was after the robbery, which occurred on May 14, 1944. Of course, the jury were not required to accept the testimony of Posey that the defendant was in Montgomery, Alabama, at 8 or 8:30 p. m., on the night of the robbery. They could also take into consideration that Mrs. Mary Osmet was the defendant's sister and that she might have been mistaken as to the date or the time of day that the defendant had been in Montgomery on the night of the robbery.
McGehee, the next alibi witness, testified in part that he saw and talked with the defendant about repairing a broken spring on the defendant's car at his place of business in Montgomery between 6:30 and 7 p. m., on May 14. However, with reference to his testimony, the jury could take into consideration the testimony of Pressley, an investigator from the solicitor-general's office, who testified that he talked with McGehee and he (McGehee) said that he did not talk to the defendant, but saw him buy some gasoline in front of the business. The jury could also have taken into consideration the fact that the witness might have been mistaken as to the date.
The next alibi witness was J. L. Young, who testified that he saw the defendant in Montgomery, Alabama, at about 7:30 or 8 a. m. on the morning of May 15; that the distance from Montgomery to Atlanta is 175 miles; and that "it usually takes from 4 to 6 hours to drive from Montgomery to Atlanta, depending on your speed . . I think that I have driven from Montgomery to Atlanta in 4 hours." The road is paved all the way. Thus it might have been easy for the defendant to have been in Atlanta at 10 p. m., on the 14th of May and have been in Montgomery by 7:30 or 8 a. m., the next morning. We do not think that the jury were required to accept the defendant's alibi in preference *367 to the State's evidence, which contained those elements that authorized the jury to say that the presumption of innocence had been overcome.
2 (2-6). "Where witness is unable to positively identify the defendant, his opinion and best judgment were relevant." 2 Wharton on Criminal Evidence, 1809 (2), § 940. Kent v. State,
The testimony given by witnesses, who were present at the time of the robbery, after detailing the facts upon which they based their opinion that the masked robber was the defendant, including the opinion by Mrs. Jennings that the defendant was the unmasked person who was near the scene of the robbery in the same building a few minutes prior thereto and acting suspiciously, along with the other isolated and apparently trivial circumstances, when considered in connection with each other and all the other evidence, can not be said to be of no value, but, on the contrary, gave the evidence those elements which authorized the jury to say that the presumption of innocence had been overcome, or which showed that the defendant was guilty beyond a reasonable doubt. The facts that the defendant had a napkin over the part of his face below his eyebrows with a hole for his nose, that the bill of his cap covered most of his forehead, that the witnesses who were at the scene of the crime would not positively identify the defendant but would go only to the extent of stating the facts and describing the appearance of the robber whose identity was in question, and then stated that upon these facts it was their opinion that the defendant was the robber in question, plus the fact that the witnesses were excited during the time of the robbery, do not bring this case within the rule "that the evidence lacks that element which is sufficient to rebut the presumption of innocence, or to show the defendant guilty beyond a reasonable doubt." Patton v. State,
There being sufficient evidence to rebut the presumption of innocence, "the jury were the sole judges of the facts and it was their privilege to draw their conclusions from the entire evidence or from any part of it." Sutton v. State,
3 (7). Ground 25 contends that there was no evidence upon which to base a charge of conspiracy. The defendant was being tried alone on an indictment against him only. The pressure was not on the fact that robbery had been committed, but on the identity of the person who had committed it. The robber had worn a mask in the nature of a napkin, which covered most of his face and had fled the scene immediately after the robbery. "It is not, on the trial of one of two or more persons jointly indicted for a crime, inappropriate to charge upon the law of conspiracy merely because the indictment does not in terms allege that there was a conspiracy to commit the offense." Dixon v. State,
It was relevant for the State to show the following circumstances which tended to identify the accused: That Barney Berry was acquainted with the arrangement of the said Paramount Theatre; that he had been seen in this theatre numerous times; that he had never been seen with a ticket; that the manager had had several conversations with Berry in the office; that he had been seen at different places in the theatre; that he had been seen right outside of the storm lobby (this was the lobby from which the assistant *370 manager's office was entered); that he had been seen talking with various employees; that he had been seen talking to the ushers or "some one around;" that he had never been employed at the theatre; that his business there was purely social, that is, to say "Hello," or "how are you doing?" that, under the testimony of the manager of the theatre, Berry knew the arrangement of the theatre — "That is not hearsay. I know [that Barney Berry knew the arrangement of the theatre]. I have seen him in the Paramount Theatre numerous times. I have seen him in the Paramount many times." That the defendant had a confederate who had posted or informed him as to the time the money was taken from the box office each night and carried into the room in question to be counted and put into the safe; that the defendant was informed as to the secret knock which he used to gain entrance to this room, whose doors were locked while the money was being counted; that a confederate was awaiting the defendant in an alley adjacent to the theatre in an automobile in which they fled; that five days later the defendant registered at a hotel in St. Petersburg, Florida, under an assumed name; that Berry registered at the same time, and at the same hotel also under an assumed name; that, two days thereafter, the defendant was arrested near Columbus, Georgia, while riding in his automobile with a 32-caliber pistol lying beside him on the front seat; that this pistol was similar to the one used by the robber in the holdup; that Barney Berry was riding in the car with Randall and was arrested at the same time; that both the defendant and Berry made inquiries as to the charges against them. 2 Wharton on Criminal Evidence, p. 1807 (12).
While such facts are not confined to the appearance of the accused, and may cover isolated and apparently trivial circumstances that in themselves are inconclusive, they, when taken together with other evidence, may be sufficient to establish the identity beyond a reasonable doubt. 2 Wharton on Criminal Evidence, p. 1810 (4). There is no such crime as conspiracy under our law, but one may be found guilty of a crime caused by acts pursuant to an already-formed conspiracy. The crime is the act prohibited by statute, not the conspiracy alone.The conspiracy of itself is no crime. "The crime is that prohibited by the statute, and the conspiracy is referred to as an incident, and one of the means by which *371
the act is accomplished." Bishop v. State,
4 (8). Grounds 4, 6, 10, 11, 16, 17, and 20 are objections to evidence by the defendant on the ground that it was irrelevant and immaterial and that it has no probative value. The evidence objected to in each of these grounds tended to prove one of the circumstances which are recited in division 3 of this opinion and there stated to be relevant. The evidence objected to on these grounds was relevant and they show no reversible error.
5 (9). Grounds 21, 22, 23, and 24 will be discussed together. The court did not abuse its discretion in permitting Mr. Pounds, of the solicitor-general's staff, to testify, although he had been in the courtroom during the trial, and the rule as to sequestration of witnesses had been invoked by defendant and ordered by the court. Evans v. State,
The court did not err in admitting evidence that a preparation known as "Zip" was on general sale to the public of Atlanta; that it quickly and readily removed hair from the hands and arms of one's person; that a bottle of it had been purchased near the courthouse during the trial; that Mr. Pounds gave a bottle of it to Mr. Helms, who applied it to his arms according to directions on the bottle; and that within five minutes the hair was removed from Mr. Helms' arms, only water being used in connection with the "Zip;" nor did the court err in admitting the bottle of "Zip" into evidence. This evidence tended to show the ease with which the defendant could have changed his appearance by removing the hair from his hands and arms; and was admissible in connection with the evidence that, when the defendant while in the Columbus jail, was identified as the robber, his hands and arms were hairy, as on the night of the robbery; that, when he was in Florida five days after the robbery, his hands were hairy; but that upon the trial there was no hair on his hands and arms. The defendant sought to show his innocence by the fact that on the trial he had no hair on his hands and arms (as the evidence showed that the robber had), and he exhibited them to the jury, and also exhibited his chest to show *373
that it had no hair thereon. It was proper for the State to show the ease with which he might have altered his appearance in this respect, i. e., by the use of this preparation available to the public. The defendant's contention that the evidence related to an experiment, and was therefore illegal, is without merit. "The admission of testimony as to experiments must largely rest in the discretion of the trial judge; and the exercise of this discretion will not be controlled, unless manifestly abused. The weight to be attached to such testimony is for the jury, and varies according to the circumstances of similarity which the jury may find to exist between the experiment made or observation taken and the actual occurrence whose facts and features are under investigation." Augusta Ry. v. Arthur,
6 (3). Ground 5. The State's contention being that seven days after the time of the robbery the defendant was arrested near Columbus, Georgia, and that at that time, as well as at the time of the robbery, his eyebrows were bushy and the back of his hands were hairy, but that, at the time of the trial, they had been changed, the court did not err in permitting an identifying witness, Bedell, who was present at the time of the robbery, to come near the defendant in the courtroom and then to testify with respect to the defendant's identity. Paschall v. State,
7 (8). Ground 11. The court did not err in admitting in evidence the pistol found in the defendant's car, lying beside him on the seat, at the time of his arrest near Columbus, for witnesses who were present at the time of the robbery testified that the pistol *374
used in the robbery was similar to the one found near the defendant in his car. Dill v. State,
8 (8). Ground 13. The court allowed Miss Headrick, who was present at the robbery, to testify that the picture which was being shown at the Paramount Theatre at the time of the robbery was "Uninvited." Even if we should concede that this testimony was irrelevant, it was not of such a character that its introduction would require a reversal.
9 (9). Ground 18. We do not think that the refusal to allow the testimony offered by the defendant in this ground was error, for it was a self-serving declaration. However, if we should concede that this testimony was competent, it was not of such a character that a refusal by the court to allow it was reversible error.
10 (8). Ground 19. The court did not err in admitting testimony of Mr. Presley that his driving time from Montgomery, Alabama, to Atlanta, Georgia, a distance of 175 miles, was 3 hours and 45 minutes. This tended to show that the defendant could have been at Montgomery in the late afternoon of May 14, the date of the robbery, and yet have driven to Atlanta in time to have committed the robbery. It also tended to discredit his claim of alibi, in which he asserted that it was impossible for him to have been on the scene of the crime at the time of its commission. See 16 C. J. 559 (28); 22 C. J. S. 940-942, § 619. It might be noted that the legal rate of speed, under the Georgia law, of a Mercury automobile, the character of car in question, is 55 miles per hour, which is indicative of the fact that this type of car can run 55 miles per hour or better, and driving at an average rate of approximately 45 miles per hour, the witness drove from Montgomery to Atlanta in approximately 3 hours and 45 minutes.
11 (10-14). Grounds 14, 15 and 26 are all based upon the ground that the Code, § 27-2511, is not applicable to the instant case, in that the defendant had been pardoned for the former crime alleged in the indictment. Such section reads as follows: "If any person who has been convicted of an offense and sentenced to confinement and labor in the penitentiary shall afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of time and labor *375 prescribed for the punishment of the offense of which he stands convicted." The indictment in the present case was drawn alleging robbery, a felony, and, in order to bring the punishment within the provisions of section 27-2511, it further alleged that the defendant had been convicted of a former felony (burglary). The defendant tendered in evidence a pardon, which reads as follows:
Atlanta, May 8, 1939.
"In re: L. O. Randall — Application for Executive Clemency.
"The applicant, J. O. Randall, convicted at the April term, 1945, of the superior court of Bibb County, of the crime of burglary and sentenced to from five to ten years,
"The Governor having had under advisement an application for executive clemency in the above stated case, recommends conditional pardon for the following reasons:
"On the statement of solicitor-general Charles H. Garrett that, `We believe that this doubt is sufficiently serious to warrant a pardon in his case.' And upon recommendation of Judge W. A. McClellan, the trial judge, who concurs in the views of the solicitor-general in prosecuting the case, and who says, `I am convinced that the ends of justice demand that he be pardoned at once.' And on the recital by the solicitor-general that chief of police, Ben T. Watkins, joins Judge McClellan and the solicitor-general in requesting that Randall be granted a pardon immediately. And on the documentary evidence submitted in support of the petition.
"Therefore, in view of the foregoing facts, it is Ordered: That said J. O. Randall be granted conditional pardon upon the condition that applicant not violate the laws of this or any other State, or the Federal government. Should J. O. Randall violate the terms of this conditional pardon, same shall be revocable at the pleasure of the Governor.
"E. D. Rivers, Governor."
The State objected to the introduction of this pardon, and in refusing to admit it the judge stated: "I am going to rule out the pardon on the statement of counsel that you do not wish to offer anything except the pardon. That will rule anything except his conviction out."
The defendant contended that the ruling out of such pardon, *376 which he contended absolved him of all legal consequences of the former conviction of burglary referred to in the indictment, could not, therefore, be a basis for an added penalty in the subsequent offense of robbery.
It seems to us that this is a pardon granted on condition that its grantee thereafter observe and keep the law. "A pardon is an act of mercy flowing from the fountain of bounty and grace; its effect, when it is a full pardon, is to obliterate every stain which the law attached to the offender, to place him where he stood before he committed the pardoned offense, and to free him from the penalties and forfeitures to which the law had subjected his person and property:-- `to acquit him,' says Sir William Blackstone, `of all corporal penalties and forfeitures annexed to the offense for which he obtains his pardon.'" U.S. v. AthensArmory,
12. The judge did not err in overruling the motion for a new trial.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.
