49 Ga. App. 380 | Ga. Ct. App. | 1934
The indictment in this case charges that on October 11, 1932, in Colquitt county, Georgia, E. C. James, alias Jimmy James, and Mote Welch robbed the Norman Banking Company, and that Dewey Welch was an accessory before the fact to the robbery. James pleaded guilty, and Mote Welch was tried and convicted. Dewey Welch was tried and convicted and given a penitentiary sentence. The question to be determined is whether or not the court erred in overruling Dewey Welch’s motion for a new trial.
Arnold Horne, sworn for the State, testified that at “ about eleven-twenty or eleven-thirty” on October 11, 1932, a time when witness was cashier of said bank and custodian of the money therein, Mote Welch and Jimmy James, dressed in Khaki overalls, entered the office of the Norman Banking Company, at Norman Park, Georgia, and held him up at the point of a pistol and robbed the bank of $926; and that on Friday before the robbery was committed on Tuesday, “these people came to the bank and got some change.”
Jimmy James, sworn for the State, testified, in substance, that Dewey Welch planned and procured said robbery; that the original plan was that the witness and Mote Welch, Dewey’s brother, were to rob the bank, but that Mote “got cold feet;” that Dewey Welch introduced witness to a mysterious “boy from Chicago,” and they actually committed the robbery; that during the three years witness was in the liquor business he was “associated with Dewey Welch a part of the time in business,” and that he “ stopped at Dewey’s home a part of the time;” that during the past three years he had been associated with Dewey very closely both in a business
J. A. Piekron, sworn for the State, testified, in substance, that he had no timepiece, but that at what he thought was eleven o’clock, on October 11, 1932, he saw Dewey Welch alone pass his house going towards Moultrie from Albany on the Albany-Doerun road, traveling in a two-passenger Ford car with a rumble seat behind; that witness was sitting on the side porch of his house ‘“here in Worth county;” that about twenty or twenty-five minutes later witness saw Dewey Welch coming back by his house on the same road “from Moultrie and Doerun going towards Albany;” that there were two men with him, and that witness’s best opinion was that
J. N. Sumner, sworn for the State, testified in part: “I saw the tracks of a car that came out of the place where we found the abandoned car. Later I went to Albany to see the car that Dewey Welch was driving, and found this car with the same tread tires on it — Jimmy James’s car, a green, model A Ford coupé with the same tread, and moved in this by-road and came out and turned towards Albany. I found the abandoned car and also where another car had been in the woods and came out and gone towards Albany. We went to Albany and found this car and drove it out . . on to a dirt street. . . It was a Firestone . . balloon tire. I compared all of the tires, and it was equipped with the same kind all the way round. I saw the car referred to as the abandoned car in the road about two miles north of Bridgeboro and off by-road that went down the edge of the woods. . . It was a green Chevrolet sedan, said to be ’29 model. That is where I saw the track of the car that came up and turned. I saw two pairs of overalls lying on the ground near the left-hand side of the green car . . and the gun-shells were in the car.”
Mr. Arnold Horne, recalled by the State, testified as follows: “On this day that the Bank of Norman Park was robbed by Mote Welch and Jimmy James, they came in a green Chevrolet sedan. I don’t know anything about what the model the car was. I saw that sedan in Sylvester a night or two afterwards in the hands of sheriff Sumner.”
J. A. Pickron, recalled for the defendant, testified in substance that while he was not altogether positive that Jimmy James was in the car that passed Pickron’s house, to the best of his knowledge and belief J ames was in the car.
The gist of the defendant’s long statement to the jury was that he was elsewhere when the robbery was committed and had no part
Aaron Denison, sworn for the defendant, testified in substance that it was about eleven miles from Pickron’s store to Albany; that Dewey Welch was at witness’ filling-station in East Albany at “between eleven-thirty and twelve o’clock;” and that this filling-station was on the “Sylvester road, beyond the city limits.”
The jury evidently believed the witness Horne, and there can be no question that there was ample evidence to warrant them in concluding that Jimmy James and Mote Welch robbed the bank. In so far as this feature of the case is concerned, the controlling question is whether or not the testimony of the accomplice, Jimmy James, implicating Dewey Welch as an accessory before the fact, is sufficiently corroborated. To sustain his contention that James’s testimony as to the “procuring” was not corroborated, counsel cite the recent case of Kearce v. State, 178 Ga. 220 (172 S. E. 643). In the fourth division of the opinion in that case the Supreme Court applies the rule that the “procuring” must be proved, and that where there is no evidence aside from that of an accomplice to show the “procuring,” it is not enough that other features of the accomplice’s testimony be corroborated. In the Kearce case the Supreme Court applied the following time-honored rule laid down in Childers v. State, 52 Ga. 106: “In a case of a felony, where the only witness implicating the prisoners in the crime was himself avowedly guilty, the corroborating circumstances necessary to dispense with another witness must be such as go to connect the prisoner with the offense, and that it is not sufficient that the witness is corroborated as to the time, place and circumstances of the transaction, if there be nothing to show any connection of the prisoners therewith, except the statement of the accomplice.” At the end of the majority opinion in the Childers case the court said: “The rule is, and ought to be, that some facts must be shown by other witnesses, tending to show guilt in the person on trial.” In Callaway v. State, 151 Ga. 342, 345 (106 S. E. 577), the court said: “The language employed by Judge McKay in the Childers case in stating the rule is sometimes varied, but the language of that case is the best statement of the rule.” In the charge, which was unqualifiedly approved, in the Callaway case the trial judge
. In the light of the foregoing authorities, do the facts and circumstances of the case at bar sufficiently corroborate the testimony of the accomplice James to sustain the defendant’s conviction as an accessory before the fact? The defendant himself corroborates James’s testimony that he and the defendant were very intimate friends both socially and in a business way, and that their business was not of a commendable nature. Jimmy James swore that he went to Cordele on the advice of Dewey Welch to steal a car to be used in the robbery; that James did .go to Cordele arid steal the car; and that said car was used in robbing the bank. We think there was evidence, aside from that of the accomplice, that said car was so used. Again, the accomplice testified that Dewey Welch was to meet him and his companion shortly after the robbery in the accomplice’s Ford car, and that Dewey did appear at the appointed meeting place at the designated time, and witness and his companion and Dewey Welch drove back by Pickron’s place in said car, leaving the stolen car in the woods at the meeting place. Mr. Pickron testified positively that Dewey Welch passed his place going in the direction of Doerun, and that shortly thereafter Dewey Welch and two other men, one of whom witness thought was Jimmy James, passed his place coming from the direction of Doerun in a two-passenger Ford car with a rumble seat behind, and a setter dog standing in the rumble seat. In this connection, it will be recalled that the accomplice swore that there were two bird dogs on the rear
The trial judge certifies that “the charges complained of in the first ground of the amended motion were given by request” of counsel for plaintiff in error. In view of this certification the first special ground will not be considered.
The second special ground is merely an elaboration of the general grounds, and will not be separately considered.
In the third special ground complaint is made of a long charge wherein the court substantially instructed the jury that if they believed there was a conspiracy between Dewey Welch, Jimmy James, and Mote Welch to rob the Norman Park Banking Company, and that such conspiracy was executed under the counsel, advice, and procurement of Dewey Welch, and Dewey Welch was to meet Mote Welch and Jimmy James after the robbery, and the robbery was a part of the conspiracy, and Dewey Welch did meet the principal offenders and aid them to get away and avoid detection, Dewey Welch would be an accessory before the fact to the crime. An accessory before the fact is a conspirator (Kearce v. State, supra), and our view is that there was evidence to support the charge on conspiracy. We therefore hold that there is no merit in the first contention, that “ there is no evidence in the case of the fact of a conspiracy.” We hold also that there is no merit in the following assignment of error: “To charge upon the subject of a conspiracy when there was no evidence upon which to base such charge except that of an accomplice, amounts to an expression of opinion by the court that the jury would be authorized to accept as true the evidence of such accomplice as to the existence of such conspiracy.” While the charge contains some repetition and is not as concise as might be desired, we do not think that it is
Since the fourth special ground complains of a charge pertaining to accessories after the fact, and the court certifies that “the charge on accessories after the fact . . was requested in writing by . . counsel for the defendant,” the ground will not be considered.
The fifth special ground is that there was no evidence to show that “the crime with which the defendant was charged . . was committed in Colquitt County, the county in which the defendant was being tried, and in which it is alleged in said indictment that said crime was committed,” and that “there is no proof of venue in said case.” A careful examination of the record shows that while there was positive proof that the robbery was committed in Colquitt County, Georgia, there is no evidence to show in what county the accessory procured the crime to be committed. If the venue of a felony committed by an accessory before the fact is the county where the principal crime is committed, the venue in this case is proved, while if the venue of such an offense is the county where the accessorial act is committed, the venue is not proved. “All criminal eases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury can not be obtained in srtch county . . ” Penal Code (1910), § 29; Civil Code (1910), § 6543. It seems to be unquestioned that “where a person procures the commission of a crime in one county through the agency of an innocent person, he is a principal, and indictable in the county where the crime was committed, although he was never in such county.” 16 Corpus Juris, 200, § 300. See also Carter v. State, 143 Ga. 632 (3), 640, 641 (85 S. E. 884). Again, since all who take part
The indictment in the case at bar is in one count, charging that Jimmy James and Mote Welch committed the offense of robbery in Colquitt County, Georgia;, and that Dewey Welch was an accessory before the fact to the crime, i. e., procured its commission. There is no separate crime of “accessory before the fact” in Georgia. In the case of Powers v. State, 172 Ga. 1, 7, 8 (157 S. E. 195), an indictment was demurred to because “it does not allege where she did procure, counsel and command the said Earl Manchester to commit the said crime of murder.” On page 8 of that decision the court held that it was not necessary that it should be alleged “where she was when she counseled and commanded the commission of the crime.” While this ruling was upon demurrer, and is not necessarily controlling upon the matter under consideration, yet it seems to bear upon it. Since it would appear that if it is not necessary to allege in the indictment where the accessorial act was committed, it would not be essential to prove where the “procurement” occurred. Our conclusion is that the venue of the offense committed by the accessory before the fact is Colquitt County, the place where the principal offense was committed. It follows that there is no merit in this special ground.
It appears from ground 6 that the judge recalled the jury for the purpose of charging them “the law with respect to accessories after the fact,” and that in instructing the jury upon that subject he repeated much of the charge he had already given on accessories before the fact. In view of the judge’s certification that “the charge on accessory after the fact . . was requested in writing by . . counsel for the defendant,” the accused can not complain that such charge was improperly given because “not even charged in the indictment.” Neither do we think that the charge complained of discloses reversible error for the reason that it amounted to an expression of opinion on the part of the court, or because it in effect instructed the jury that Colquitt county was the proper place for the accessory to be tried, or for any other reason.
Special grounds 8, 9, and 10 are merely elaborations of the general grounds, which have already been passed upon.
Judgment affirmed.