Summary
In Dye v. State, 77 Ga. App. 517, 522, 48 S.E.2d 742 (1948), the court held that it was improper to permit the state's attorney to testify that three of four women accomplices pleaded guilty to the charge for which defendant was on trial.
Summary of this case from State v. ColeOpinion
32022.
DECIDED JUNE 1, 1948. REHEARING DENIED JULY 26, 1948.
Larceny from person; from Richmond Superior Court — Judge G. C. Anderson. February 24, 1948.
Pierce Brothers, for plaintiff in error.
George Hains, Solicitor-General, contra.
1. "Where individuals enter into a conspiracy to commit a crime, its actual perpetration by one or more of them in pursuance of such conspiracy is in contemplation of law the act of all, and they may be held responsible accordingly." Simmons v. State, 196 Ga. 395 (2) ( 26 S.E.2d 785).
2. It is within the sound discretion of the trial court to require a defendant in a criminal case to go to trial on a second indictment after the first charging a similar offense, had been handed his counsel by the solicitor-general, his counsel having entered waiver of arraignment and plea of not guilty thereon, the solicitor-general having handed defense counsel the first indictment instead of the second through error, the State not being ready for trial on the first indictment, but both parties being ready for trial on the second indictment. Thus publicizing the fact that there is more than one indictment pending against the defendant before the jurors who are assembled in the courtroom to try these and other pending cases, is not so prejudicial to the defendant as to require a new trial.
3. Where part of the evidence is admissible the overruling of an objection to it as a whole is not error. See many cases cited under Code (Ann.) § 70-203, catchword "Part."
4. Joint principals to a crime as accomplices are competent witnesses against each other, and while the one sought to be used as a witness has the right to claim the protection afforded by art. I, sec. I, par. VI (Code § 2-106) of the Constitution of the State of Georgia, providing that no person shall be competent to give testimony tending in any manner to criminate himself, yet this constitutional guaranty is a personal privilege belonging to the witness and can not be claimed for him for the benefit of another party. See McCray v. State, 134 Ga. 416 (8) ( 68 S.E. 62, 20 Ann. Cas. 101).
5. Special ground 5 of the amended motion for a new trial is without merit.
DECIDED JUNE 1, 1948. REHEARING DENIED JULY 26, 1948.
Carl Dye was tried in the Superior Court of Richmond County for larceny from the person of more than $50. Construing the evidence in its most favorable light to support the verdict the jury was authorized to find facts substantially as follows: that Roland Keenan, the prosecutor, had on his person in Augusta in the month of May, 1947, the sum of $600 which consisted of 50 ten dollar bills and 5 twenty dollar bills; that he met up with four girls, viz., Margaret Sanders, Dorice Kitchens, Billie and Virginia Johnson, and after going around with them to several places and drinking with them they wound up at the Flamingo Club, in Augusta; that the defendant and another man later showed up in the party at this place; that one of these men proposed to the defendant that they play some poker; that the prosecutor indicated that he would like to play poker and upon inquiring where the poker game was to take place was informed that Billie, one of the girls, knew where to come to; that the two men and Margaret Sanders left in their car presumably to go to the place to play poker; that the prosecutor who had the other girls in the car with him drove across the street to the Clover Club and informed the women he was not going to the poker game as previously arranged; that they then asked him to buy them a chaser; that he went into the Clover Club to buy a soft drink; that while in there he felt in his pocket and his pocketbook was gone; that he recalled having his pocketbook about 20 minutes previously; that he returned to his car and his pocketbook was lying in the front seat, empty, and his erstwhile women companions absent; that after notifying the police of his loss the prosecutor returned to the Flamingo Club; that he saw the defendant walk out of the club, get in his car and drive slowly away; that the prosecutor got in his car and followed the defendant; that when they reached the Augusta Coal and Ice house, the defendant and a man in the car with him, stopped and approached the prosecutor in a threatening manner; that the man in charge of the business intervened and the men got in their car and left; that at this time one of the women who had previously been with the prosecutor when his pocketbook was rifled, was with the defendant and the other man; and that all the women entered pleas of guilty to taking the money from the person of the prosecutor except Virginia Johnson. The record is silent as to whether she had been charged with this offense.
Margaret Sanders testified in substance that she took the money from the person of the prosecutor and used all of it herself; that the defendant received the benefit of no part of the money; that shortly after she took it, she, realizing that she would probably be arrested, gave it to the defendant to hold for her; that she did not tell him where she got it and insofar as she knows he did not know; and that he held this money for her for several hours. In the meantime it appears that she was arrested and put in jail and it is not clear from her testimony to whom the defendant paid over the money. However, she further testified that her mother gave her the money to pay to her lawyers, thus inferring that the defendant paid the money which she says was only $410 to her mother to be returned to her. The substance of the testimony of Virginia Johnson is that the women hereinbefore named and certain men including the defendant entered into a conspiracy to take the prosecutor's money, and that pursuant to this conspiracy the defendant brought her the sum of $30 which she designated as "hush money," stating at the time that they got from him the sum of $160; that after they had procured this money from the prosecutor they all met at a designated point pursuant to previous arrangements and there the defendant made the statement herein referred to about getting the money and paid her the $30. The testimony of these women witnesses who were put up by the State was corroborated in some particulars as to times and places where these women, the defendant and others had met and been together at the time of and immediately following the larceny.
The defendant made a statement in which he offered an explanation for being with the women and denied any connection with the larceny.
The jury returned a verdict of guilty and fixed the punishment at 2 years in the penitentiary.
The defendant filed a motion for a new trial on the general grounds which was later amended by adding 5 special grounds.
The trial judge overruled the motion for a new trial as amended, and this judgment is assigned as error.
1. The testimony of Virginia Johnson is sufficient to show a conspiracy to steal the money of the prosecutor, in which the defendant participated. It is sufficient to show that he helped to conceal the money after its theft, and that he paid $30 of it for secrecy. Assuming that she is an accomplice, her testimony is amply corroborated by other evidence. Where one person steals property, and another, knowing it to have been stolen, assists in its asportation, the latter is also guilty as principal. See Laminack v. State, 54 Ga. App. 207 ( 187 S.E. 620). "Where individuals enter into a conspiracy to commit a crime, its actual perpetration by one or more of them in pursuance of such conspiracy is in contemplation of law the act of all, and they may be held responsible accordingly." Simmons v. State, 196 Ga. 395 (2) (supra).
The evidence supports the verdict and the general grounds do not require a new trial.
2. Special ground 1 of the amended motion for a new trial contends that the trial court erred in requiring the defendant to go to trial upon the indictment in the instant case, after the solicitor-general had handed another indictment charging the defendant with a like offense to his counsel, who had entered his waiver and plea of not guilty thereon, all in the presence of the jurors assembled there to try this and other cases. The solicitor-general stated that defense counsel was handed the wrong indictment through error, that he was not ready for trial on that indictment, but that he was ready on the indictment in the instant case. It is contended that, to thus inform the jurors of the pendency of another indictment was prejudicial to the defendant.
Frequently, where several indictments are pending against the same defendant, they are all sounded on the call of the docket in the hearing of the jurors who are assembled in the courtroom to try those and the other cases on the calendar. This may be somewhat prejudicial to such defendants, but it is nevertheless the only proper and expedient method of "sounding out the docket." It is, however, no more prejudicial where, as in the instant case, another indictment is publicized to the jurors through error, than in the manner pointed out first; and to hold the conduct herein to be prejudicial would reflect on the authority of the trial court to call the docket as required by Code § 27-1301 as follows: "The cases on the criminal docket shall be called in the order in which they stand on the docket, unless the defendant be in jail, or otherwise in the sound discretion of the court." Procedure in the manner herein contended to be error is a matter within the sound discretion of the trial court. This ground of the amended motion for a new trial is without merit.
3. Special ground 2 of the amended motion for a new trial contends that the trial court erred in permitting Honorable Charlie Britt, Assistant Solicitor-General, to testify to the effect that 3 or 4 women, viz., Margaret Sanders, Billie Johnson and Dorice Kitchens, had entered pleas of guilty to taking the sum of money from the prosecutor that this defendant is charged with having taken, on the grounds that this testimony was immaterial and prejudicial to the defendant.
The evidence in the instant case is sufficient to show a conspiracy between the three women and the defendant to commit the offense to which the women pleaded guilty and for which the defendant was on trial. This would make accomplices of each of them. Under § 38-121 of the Code, the testimony of an accomplice requires corroboration. One of the women who pleaded guilty, viz., Margaret Sanders, was a witness against the defendant in the instant case. Evidence of the conviction or a plea of guilty is admissible to show the guilt of the accomplice and thereby show the status or relationship of the parties and thus lay the foundation for determining the character of testimony against the defendant and whether or not corroboration thereof is required. The pleas of guilty of these women were not admissible against the defendant as confessions of guilt, because their confessions would not be binding upon this defendant. The pleas of guilty of Billie Johnson and Dorice Kitchens would not be admissible against this defendant for any purpose. However, the plea of guilty of Margaret Sanders is admissible for the purpose outlined. The objection goes to all the testimony of Mr. Britt, that relating to the pleas of guilty of Billie Johnson and Dorice Kitchens, and also that relating to the plea of guilty of Margaret Sanders. Therefore part of the testimony objected to was admissible and part of it was inadmissible. Where part of evidence is admissible the overruling of an objection to it as a whole is not error. See many cases cited under Code (Ann.), § 70-203, catchword "Part."
Special ground 3 of the amended motion for a new trial contends that the trial court erred in refusing to declare a mistrial, on timely motion made therefor by defense counsel, when the solicitor-general announced in the presence of the jury that the purpose of putting the solicitor-general on the stand was to prove that the women in question had pleaded guilty. The motion for mistrial was on the ground that this testimony would be immaterial and prejudicial to the defendant, and that the announcement in the presence of the jury was prejudicial. The court overruled the motion and instructed the jury not to "pay any attention to the pleas of the women unless you are charged further about it." The record discloses no further reference to these pleas of guilty made by the court to the jury here in his charge or elsewhere. However, the charge does contain this excerpt, "Now, gentlemen of the jury, statements by an accomplice after the conspiracy has terminated is not evidence against the accomplice or the other party unless they are present and acknowledge it." The trial court did not err in overruling the motion for a mistrial and there is no merit in special grounds 2 and 3 of the amended motion for a new trial.
4. Special ground 4 of the amended motion for a new trial contends that the trial court erred in not striking the testimony of Virginia Johnson on the ground that she was a principal and that her testimony was not admissible against this defendant until such time as she had been convicted.
As pointed out in the brief of the solicitor-general this assignment of error fails to point out that any motion to strike said testimony was made, and therefore the assignment of error is not complete within itself. However, considering the same on its merits, Virginia Johnson was not disqualified as a witness against the defendant for the reason assigned. See Code, § 38-121. If her testimony would tend to criminate herself, against which she is protected (art. I, sec. I, par. VI, of the Constitution of the State of Georgia, Code, § 2-106), it is a personal guaranty to her and can not be claimed for her, only for the benefit of another party. See McCray v. State, 134 Ga. 416 (8) (supra). This special ground affords no cause for a new trial.
5. Special ground 5 of the amended motion for a new trial contends that the court erred in charging the jury as follows: "I charge you, gentlemen of the jury, that the possession or the receipt of stolen goods is a fact and circumstance that the jury may infer guilt from." This is contended to be error on grounds as follows: "(1) Because this movant was not charged with the receipt of stolen goods and that principle of law was inapplicable and prejudicial to movant. (2) The charge against movant was that of larceny from the person of money in the amount over $50 and there was no testimony that defendant was in possession of any money that had been stolen from any person, and to charge a principle of law applicable to a wholly distinct offense was harmful to movant and influenced the jury in the rendition of a verdict of guilty against movant."
The principle of law charged by the court and complained of in this special ground of the amended motion for a new trial is not confined to prosecutions for receipt of stolen goods but may be applied in cases of larceny, burglary and kindred offenses. See Mayfield v. State, 17 Ga. App. 115 ( 86 S.E. 284); Bridges v. State, 9 Ga. App. 235 ( 70 S.E. 968); Toney v. State, 69 Ga. App. 331 ( 25 S.E.2d 85).
The testimony of Margaret Sanders to the effect that the defendant kept this money for approximately 4 hours shortly after it was stolen from the prosecutor, and the other evidence in the case from which the jury could have inferred that the defendant, Margaret Sanders, and others entered into a conspiracy to steal the money and pursuant thereto did steal it, authorized this charge. This assignment of error is without merit.
The judgment of the trial court overruling the motion for a new trial as amended is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.