159 Ga. 728 | Ga. | 1925
Concurrence Opinion
concurring only in the result. In the trial of one charged with commission of a felony, the testimony of an accomplice can not
Jeff Williams was convicted of the offense of larceny of an automobile. His motion for a new trial was overruled, and he filed a bill of exceptions to the Court of Appeals. The Court of Appeals affirmed the judgment of the lower court,.and the case is for review in this court by certiorari. In rendering its judgment the Court of Appeals ruled that “Two accomplices testified in this case, each corroborating the other, and, under the. ruling made in Stone v. State, 118 Ga. 705 (5), 711, 714 (45 S. E. 630, 98 Am. St. R. 145), one accomplice can corroborate another; therefore the conviction of the defendant would -have been authorized even if there had been no other evidence connecting him with the crime. ”
The precise question here involved has never been directly ruled by this court, and it was with a view to investigating the important question presented by the ruling of the Court of Appeals that this court determined to grant the .certiorari. I shall therefore consider whether, as held by our brethren of the Court of Appeals, the testimony of two accomplices or more is sufficient compliance with the well-settled rule that in felonies the. testimony of an accomplice is worthless unless he is corroborated by a witness who was not an accomplice, or by corroborating circumstances sufficiently connecting the accused with the commission of the offense as to dispense with another witness. In prescribing the number of witnesses necessary to authorize a verdict section 5742 of the Code (1910) declares: “The testimony of a single witness is generally sufficient to establish a fact. Exceptions to this rule are made in certain specified cases; such as, to convict of treason or perjury, in any ease of felony where the only witness is an accomplice, and to rebut a responsive statement in an answer in equity—in these cases (except in treason) corroborating circumstances may dispense with another witness.” It is clear that in this case, where the accused was charged with the theft of an automobile, he could not
But it is said that section 5742 of the code, supra, deals peculiarly with the number of witnesses; and that therefore, in view of the words “where the only witness is an accomplice,” the provision of the section is complied with if there be a second or third witness even though the latter be likewise accomplices, and that for that reason the ruling of the Court of Appeals is correct. That this conclusion is unsound is settled by the ruling of this court in the
“In the case made by this record, which is a felony, the sole witness connecting the defendants with the transaction is one who admits that he was one of the robbers, and there are no circumstances proven by other witnesses corroborating his statement that the prisoners were with him, or that they were connected, in any way, with the commission of the crime. It is contended, however, that as other witnesses do prove there was a robbery, and that the time, place, and circumstances were such as stated by the witness, this amounts to such corroborating circumstances as fulfill the terms of the Code, leaving the weight of these circumstances to be determined by the jury. . . That the witness himself, who comes avowedly before the court as a perpetrator of the crime, should be able to tell the time of night, the manner of the crime, that more than one were engaged, the amount stolen, etc., etc., is corroborative of his own guilt, and is involved in the very admission
“It will be noticed that the statute does not say that the jury shall not convict on the testimony of one witness. The provision is that a ‘fact’ can not be established thus. The significant, controlling, vital fact of this issue is not the robbery, not the time, place, or manner of it. Had that been the question, this witness would not have been put up at all. The person on whom the outrage was committed was present and a witness. Not a single new fact of a material character, except his own presence, is stated by the witness; and at last this verdict is founded, the fact of the guilt
This court, in thus ruling in the Childers case that the question of corroboration was entirely one of fact and that'the fact of the prisoner’s presence and participation in an offense. could not be proved by an' (any) accomplice, decided the point that the presence and participation of the accused could not be established by any number of accomplices without corroboration aliunde as to the facts sought to be established. For this reason it is very plain that the Court of Appeals erred in holding that two accomplices, without more, would authorise a conviction in a felony case. What is said in Stone v. State, supra, is without point on the question now before us, because the exact question as to whether an accomplice may be corroborated by the testimony of another accomplice was not then
The exact question involved in this case has never been directly ruled by this court; for in Stone v. State, supra, the precise point before the court was whether certain witnesses were accessories so as to become accomplices, and this court held that they were not accessories and therefore were not accomplices. The great weight of authority in other jurisdictions inclines me to hold that one accomplice can not corroborate another, and that the testimony of any number of accomplices, without more, should be held insufficient to authorize a conviction in a felony case. Under the law of Virginia the jury as triors of fact may, if they see proper to do so, convict upon the uncorroborated testimony of an accomplice alone. However, in Jones v. Commonwealth and Perkins v. Commonwealth, 111 Va. 862 (69 S. E. 653), where an attempt to corroborate an accomplice was made by the introduction of the testimony of another accomplice, it was held that “The testimony of one accomplice can not be corroborated by the testimony of another accomplice, though the jury may convict on the uncorroborated evidence of an accomplice.” In the opinion of the court it was said that “the principle is well settled that the evidence of an accomplice must be received and acted upon by the jury with great caution. The source of such evidence is tainted, and the danger of collusion between accomplices and the temptation to exculpate themselves by fixing responsibility is so strong that it is the duty of the court to warn the jury against the danger of convicting upon their uncorroborated testimony. From these considerations, the generally accepted rule is, that, ‘if two or more accomplices are produced as witnesses, they áre not deemed to corroborate each
As stated at the outset of this opinion, the certiorari was sanctioned and granted solely for the purpose of determining whether the principle of law announced in the second headnote of the decision of the Court of Appeals was correct. Upon a review of the record, and inasmuch as it appears that there are circumstances of corroboration which might have authorized the jury to convict the accused even though only one accomplice had testified, and that especially as the trial judge did not charge the jury that the testimony of two accomplices was of greater weight than one,, and in fact did not charge at all upon the question stated in the second headnote of the decision of the Court of Appeals, it does not appear that the defendant was harmed or injured by anything that transpired in the original trial. Under these circumstances it would be trifling with justice to send the case back for another trial because of an error of the Court of Appeals in a ruling made upon review. We merely declare so much of the law as is referred to in the first division of the opinion, but affirm the judgment of the Court of Appeals holding that the verdict was supported by the evidence and that there was no prejudicial error in the trial in the lower court.
Lead Opinion
Tlie ease comes to this court on writ of certiorari to the Court of Appeals. One ground of the petition for certiorari complains that the Court of Appeals erred in holding that the testimony of two accomplices was sufficient to convict in a felony case, without other, corroboration. The petition for certiorari was granted on that ground. On examination of the record it appears that no such issue was raised on any ruling of the trial judge. The trial judge charged to the contrary. The petition for certiorari on the ground stated was therefore granted improvidently, and that question will not be decided by this court. In addition to the evidence of the two accomplices there was corroborating evidence. The sufficiency of corroborating evidence is a matter entirely for the determination of the jury, and in this case the verdict of the jury finding the defendant guilty was authorized. The judgment of the Court of Appeals affirming the judgment of the trial court in refusing a new trial was therefore without error.
Judgment affirmed.