Opinion
37342.
DECIDED OCTOBER 22, 1958.
Narcotic violation. Fulton Superior Court. Before Judge Alverson. July 3, 1958.
Walter B. Fincher, for plaintiff in error.
Paul Webb, Solicitor-General, Charles A. Williams, Eugene L. Tiller, contra.
1. The evidence is sufficient to sustain the verdict.
2. Where, as here, a special ground assigns error because the court refused to charge regarding testimony of an accomplice and the record shows that the witness was not an accomplice, it is not erroneous for the court to refuse to charge the jury the law covering the testimony of an accomplice.
3. Should a harmless excerpt from a charge of the court be subject to criticism, if the whole charge adequately covers the pleadings and the evidence in the case, the case is not subject to reversal because of such harmless excerpt.
4. In order to be sufficiently meritorious to require reversal, objection must be made at the time of trial, and must not be made for the first time on appeal.
DECIDED OCTOBER 22, 1958.
Claude W. Marshall, hereinafter called the defendant, was indicted in four counts charging the defendant with violating the Uniform Narcotic Drug Act of Georgia. Upon trial he was found guilty on two counts and not guilty on two counts.
The defendant filed a motion for a new trial on the general grounds and thereafter added five special grounds by amendment. The court denied the motion for new trial, and it is on this judgment that the case is here for review.
The evidence show substantially as follows: William Avery Carroll testified that he had been convicted on charges of burglary and forgery and at one time was a narcotics addict; that he had known the defendant for about ten years; that on March 7, 1957, from a telephone at the Federal Bureau of Narcotics Office in Atlanta, Georgia, he called the defendant and asked him if he could secure morphine, heroin, pantopon or dilaudide for him; that two Federal agents, Mr. Barber and Mr. Thomas, were present and heard what the witness said; that he arranged with the defendant to meet him at the Kimball House at 1 o'clock that day; that the agents gave him $25, and after searching him to be certain that he had no narcotics on him, they put a small radio outfit called a "Smith" device in his pocket; that the witness and the two agents got in the Government car and drove to the Kimball House where he got out and the agents parked a block and a half away; that as the witness saw the defendant approaching he spoke into the transmitting device identifying him and describing his clothing to the agents.
At this point counsel for the defendant objected to the hearing device on the grounds that the proper foundation had not been laid to make the device admissible, and after a colloquy with counsel for the State and the court, the court ordered that the witness' evidence about the speaking device be withdrawn from the jury. The witness then described in detail the transaction between himself and the defendant in which he purchased narcotics with the money given him by the Federal agents. He testified that he and the defendant closeted themselves in a restroom in a nearby beer parlor where they each prepared and took a shot of morphine, the witness explaining that he took the shot to show good faith; that the defendant then gave him seven tablets of morphine for $2 apiece; that while they were in the beer parlor the witness noticed Detective Melton, an Atlanta policeman, and as the witness left the premises, Melton kept him in sight catching up with him as he went up Whitehall Street towards Peachtree, and the witness handed Officer Melton a vial containing the seven tablets. The witness then described a similar transaction which took place the following day in the same vicinity in which he was searched for narcotics and then supplied with Government money by the Federal agents, met the defendant at the Kimball House, waited while the defendant made his contact for the narcotics (all the while under the surveillance of the agents and the detectives), went into the restroom with the defendant to take a shot with him, bought nine more morphine tablets paying $2 apiece using Government money, parted company with the defendant, was followed by the detective to whom the witness subsequently turned over the morphine. The witness testified that his next contact with the defendant to purchase narcotics was March 11th, and he made arrangements to meet him at the Kimball House at the same place. On this third occasion the two Federal agents, Thomas and Barber, put a "Smith" device in the witness' pocket and gave him $25, then took him to the Kimball House but the defendant did not show up and after a phone call the witness, while under constant surveillance of Federal agents and city detectives, made contact with the defendant at DeFoor and Howell Mill Road. He testified that the agents searched him every time just before he made contact with the defendant and again immediately afterwards, and that he turned the narcotics over to them.
Aubrey L. Melton, an Atlanta police officer, testified substantially that he had participated in the surveillance of the witness Carroll and the defendant on the three separate contacts described by the witness Carroll, and his testimony corroborated that of the witness Carroll. He further testified that it was he who received the vials containing the narcotics from the witness Carroll and he identified each of them and identified his own initials which he affixed to each vial immediately after receiving it from the witness Carroll. On cross-examination the witness Melton said that in view of Carroll's character and record he would not believe Carroll's testimony under oath.
L. M. Jones of the Atlanta police department, testified that he cooperated with and assisted the two Federal agents in the surveillance of the witness Carroll and the defendant on the three occasions when the defendant sold narcotics to Carroll; and under cross-examination testified that he knew Carroll to be a reformed addict whose character had been pretty bad over the past years but was presently good and he would believe his testimony under oath.
E. R. Barber and R. H. Thomas, U.S. narcotics agents, testified in detail concerning the three contacts made by the witness Carroll with the defendant testifying that they, with the aid of the two city detectives and a miniature radio transmitter called a "Smith" device which was concealed on Carroll's person, kept their accomplice under constant watch. Their testimony tended to corroborate that given by the witness Carroll, and under cross-examination they both testified that in spite of Carroll's bad character they would believe him under oath.
J. W. Quillen, Chief Chemist with the Atlanta Region of the Internal Revenue Service, testified that he examined the contents of the marked vials brought to him by the Federal agents and found the material to be narcotics.
The defendant, in his statement, said that he knew the witness Carroll and bought him a beer or gave him cigarettes or fifty cents, but as to narcotics, he did not know what Carroll was talking about, and further that Carroll had never called him at home nor had he ever been seen with him in his neighborhood.
1. We have set out the evidence in detail. It is sufficient to sustain the verdict of the jury as to the general grounds.
2. Special ground 1 assigns error because the court refused to charge the jury the law covering the testimony of accomplices, after the same had been requested in writing. The witness Carroll is the alleged accomplice. Counsel for the defendant has cited many cases concerning the principle of law that a defendant cannot be convicted on uncorroborated testimony of an accomplice. After a careful study of the record before us it is our opinion that the witness Carroll was not an accomplice. There is nothing before us to indicate that his part in the alleged crime was that of an accomplice, but on the other hand the evidence shows that he was an informer for the law enforcement agency and cooperating with them at the time the evidence against the defendant was being gathered. This assignment of error is not meritorious.
3. Special ground 2 assigns error because it is alleged that the court erred in charging the jury that the burden was on the defendant to show that he came within one of the exceptions enumerated in Code § 42-9917. Code § 42-9918 specifically sets out that the burden is on the defendant in such a situation as here depicted. Under the record in this case it was appropriate for the court to charge this Code section. It is the duty of the trial judge to charge upon any and all phases of the pleadings or the evidence in the case on trial. The pleadings in the instant case were such that the charge of which complaint is made was not erroneous. Certainly we do not see that this could have led the jury to believe that the burden was on the defendant to disprove his guilt. It is elementary that the burden is upon the State to prove the guilt of the defendant, and, until such is done, the defendant is presumed to be innocent. Moreover, the court in another part of the charge corrected any alleged misconceptions regarding the charge of which complaint is made. It is true that here, as in many charges, isolated instances standing alone may be subject to criticism, but an appellate court must consider the charge as a whole at all times. There appears no reason here why the defendant should have been harmed by the excerpt. This assignment of error was not meritorious.
4. Special ground 6 assigns error because it is alleged that the court committed harmful error on his recharge to the jury as to the credibility of witnesses in that after stating the usual rule he added immediately thereafter the sentence: "What was it Shakespeare said? `What you are, shouts so loud I can hardly understand what you say!'" Shakespeare didn't say it. This is a corruption of a quotation from Ralph Waldo Emerson. The entire quotation reads: "Don't say things. What you are stands over you the while, and thunders so that I can hardly hear what you say to the contrary." Apparently the sentence was useless so far as the charge was concerned.
The contention urged in this special ground is that the jury might have taken the remark, not as referring to witnesses, but as an instruction to disregard the defendant's statement. Such construction may only be given to it if the excerpt, immediately following the charge on credibility of witnesses, would in fact have had that effect. On the basis of what is set forth in the special ground it must be concluded that the court was talking about credibility of witnesses, that he properly charged on the subject, and that the excerpt would naturally be construed by the jury to refer to the same principle of law. The burden is on the movant to affirmatively show error, and this has not been done here. This special ground shows no cause for reversal.
5. Counsel for the defendant does not argue, in his brief, special grounds 7 and 8 and they are therefore considered as abandoned.
The court did not err in any of the rulings.
Judgment affirmed. Townsend and Carlisle, JJ., concur.