58 Ga. App. 593 | Ga. Ct. App. | 1938
Lead Opinion
Charlie Thompson was jointly indicted with Pee Wee Burns and Ered Daniels for robbery of Pete Modena. It was alleged that on July 17, 1936, they took by force from Pete Modena one lady’s diamond ring, one man’s diamond ring, one S. & W. pistol, one diamond and emerald stick-pin, two hundred and five cases of whisky, and $257 in money. Thompson was tried separately, was convicted, and now complains to this court. The evidence for the State showed that Modena was a wholesale and retail bootlegger in Bibb County, Georgia. He had been handling liquor in wholesale quantities for some time, and Charlie Thompson had been a regular customer of his. Charlie Thompson lived in Atlanta. He had suggested to Modena that he was in danger of being “hijacked.” Bob O’Conner, alias Hugh Gibson, and L. M. Wilson, alias Ned Welch, both of whom had criminal records in various parts of the county and who had served time together and had become acquainted in the Federal penitentiary in Atlanta, were State witnesses. O’Conner had known Charlie Thompson before, and in July, 1936, they met again in Atlanta.
Modena testified that he recognized Thompson’s voice while they were moving the whisky out of his house, and that Thompson called for the keys to the pantry where a particular brand of whisky was stored which Thompson had been buying. Modena made complaint to the officers in Bibb County the nest morning, but did not tell them at the time that he had recognized any of the parties who robbed him. O’Conner and Wilson testified that Thompson did not get any of the money or jewelry, but that the money was divided between them and Burns, and that Burns got the jewelry. They were to be paid $900 for their services, and the
The first and second grounds of the amendment to the motion for new trial complain of the refusal of the court to declare a mistrial because while O’Conner, one of the State’s witnesses, was testifying he stated: “We then went back to Atlanta and went out to Thompson’s house to see if his suit-ease had been sent to his room, as his wife was getting a divorce from him.” Also: “I had met Mrs. Thompson in West Palm Beach, Florida, when Thompson was trying to make a junk connection, a morphine connection.” The objection was that the testimony tended to bring in issue the character of the defendant, by charging him with a separate crime. In reply the solicitor stated that he was not asking about any such thing as that, but was only asking the witness about his acquaintance with Mrs. Thompson, and that the response had nothing to do with the case or his question, and that he too asked that it be ruled out. The court fully instructed the jury, then and there, not
Grounds 8, 9, 10, and 11 will be considered together. Mrs. McSinnett, a sister of O’Conner and a witness for the State, testified that she visited her brother and Wilson while they were in jail in Macon, before they had entered any plea of guilty or made any confession, and that her brother sent her to Atlanta to see Burns, Thompson, and Daniels. The State had shown the conspiracy, and that Burns and Thompson were to have the whisky and were to pay Wilson and O’Conner $900. Mrs. McSinnett testified that she had known Thompson before that time, but had not known Burns or Daniels. She saw Thompson and told him that unless he co-operated it would be just as bad for him and Burns and Daniels as for her brother and Wilson, and he said he knew it. She told him she wanted to make restitution to the Modenas, to return to them as much of the money and jewelry as was possible, and that it was up to him and Burns and Daniels to help, and it would make it lighter on her brother as a result. Thompson left an envelope containing fifty dollars for Mrs. McSinnett at a lawyer’s office in Atlanta. Before this time she had seen Daniels, and he had later p.ut her in communication with Burns,
The Code, § 38-306, declares: “After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” This section applies to the acts of the conspirators as well as to their declárations. Barrow v. State, 121 Ga. 187 (2) (48 S. E.
The evidence objected to was nothing more or less than that Daniels and Burns, in answer to the charge by Mrs. McSinnett that she knew the part they had played in the affair, upon her request returned the jewelry and made arrangements to sell the truck so as to give them (Wilson and O’Conner) additional money. We think it may readily be inferred from such evidence that Burns and Daniels were attempting to prevent Wilson and O’Conner from giving testimony against them, and also to cause the Modenas to be less vigorous in a prosecution which necessarily involved them in a violation of the law, to wit, selling and possessing whisky. The action on the part of these conspirators may well have been
The remaining grounds of the motion are not sufficiently meritorious to require any discussion by this court. None of them requires a reversal.
Judgment affirmed.
Rehearing
ON MOTION FOR REHEARING.
I agree with my colleagues that the motion for rehearing should be denied; for it is my opinion that the unresponsive, though improper, statement of a witness for the State while on direct examination, tending to show the defendant’s participation in other unlawful enterprises, does not, under the particular facts of the present case, require the grant of a new trial. It appears that the solicitor-general requested that such testimony be excluded, and that the court promptly excluded it and instructed the jury at length to obliterate any such statement from their minds. However, I am further of the opinion that the fact that the statement by the witness was unresponsive to any direct question propounded .by the solicitor-general has no material bearing upon the question whether such statement was so prejudicial as to require the grant of a new trial; and in so far as the first headnote of the opinion in this case would indicate to the contrary, I disagree therewith; the controlling question, to my mind, being always whether the defendant has been given a fair trial, and not whether the solicitor-general has been guilty of any improper conduct. In the present case no question is raised as to any improper conduct of the solicitor-general, but the point is made concerning the improper statement of the witness which is alleged to have been prejudicial.