Opinion
36232.
DECIDED JULY 9, 1956.
Arson. Before Judge Lilly. Lowndes Superior Court. April 3, 1956.
Jesse T. Edwards, for plaintiff in error.
1. For reasons shown in the opinion the trial court erred in denying the motion for new trial as to the defendant Willie Lee Thornton.
2. The trial court did not err in denying the motion for new trial as to the defendant Raymond Thornton.
DECIDED JULY 9, 1956.
The defendants here, Willie Lee Thornton and Raymond Thornton, were convicted on an indictment which charged them with unlawfully burning on the 3rd of August, 1955, a tobacco pack house of K. C. Wilkinson, located in Lowndes County, Georgia. The defendants filed a motion for new trial on the statutory grounds and by amendment added ten special grounds. The trial court denied the motion for new trial as amended. It is on this judgment that the defendants assign error here.
The evidence in the case substantially shows that at the time of the fire the owner had stored in the pack house approximately 5,000 pounds of cured tobacco on tobacco sticks hanging in the barn. The fire was discovered by parties who lived within less than a mile from the pack house. The owner was notified of the burning which was around 3 a. m. The pack house was burned down when the owner arrived but was still smouldering. The Sheriff of Lowndes County was promptly notified and within a very short time he arrived at the scene of the smouldering pack house and began an investigation. Tracks of a truck were observed back of the pack house. The sheriff and others followed these tracks to the home of a family of Thorntons, relatives of the defendants. It was observed along the road from the pack house to the Thorntons' home that there was a quantity of cured tobacco on sticks. The sheriff and others observed a light in the kitchen part of the Thornton home. They could hear people talking in the house. At the request of the sheriff the parties in the house refused to come out. Entrance was obtained to the Thornton house and in the kitchen portion approximately 1,600 pounds of cured tobacco were found. There were a number of brothers living in the Thornton house. They questioned Raymond Thornton concerning the burning of the pack house. The sheriff and several others testified that Raymond Thornton, without any hope of reward or fear of punishment, made the following statement substantially: That he and his brother, Willie Lee Thornton, went to the pack house in the truck which was found at the Thornton home and that he, Raymond Thornton, dipped a rag in the gasoline tank of the truck and that Willie Lee Thornton with the rag scattered gasoline over the barn and struck a match to the contents of the barn where the gasoline had been scattered on the contents of the barn. Willie Lee Thornton was not present when this statement was made by Raymond Thornton. Willie Lee Thornton was not apprehended until approximately two weeks thereafter when he was located in Tampa, Florida. When he was located he was arrested in Tampa and waived extradition and returned to Lowndes County.
The defendants were tried jointly. On the trial of the case the State proved the facts as we have substantially related above and rested. The defendant Raymond Thornton in his unsworn statement to the jury denied that he made any such confession or statement as the said witness testified. He did state that he stole the tobacco but knew nothing of the manner of the burning of the barn or the names of the person or persons who illegally burned the barn. The defendant Willie Lee Thornton made an unsworn statement in which he denied any participation in stealing the tobacco or burning the barn. The jury brought in first a verdict against Willie Lee Thornton in which they found him guilty and stated a punishment of 8 to 10 years and added to such verdict a recommendation that Willie Lee Thornton be punished as for a misdemeanor. The court refused to accept this verdict and directed the jury to go back to their room and strike from the verdict the recommendation. The jury returned to their deliberation and returned a verdict against Willie Lee Thornton with the recommendation stricken therefrom and at the same time returned a verdict against Raymond Thornton fixing his punishment at not less than 8 nor more than 10 years in the penitentiary. The defendants filed a motion for new trial on the usual general grounds and by amendment added several special grounds hereinafter referred to in the opinion. The court denied the motion and the defendants excepted.
1. We will first discuss the assignments of error as to Willie Lee Thornton. The first assignment of error we will discuss as to him is that objections were made in his behalf to the effect that the alleged confession of Raymond Thornton, made not in the presence of Willie Lee Thornton, was not admissible as against Willie Lee Thornton. The record does not reveal any evidence as to a conspiracy between the two defendants regarding the burning of the house. It is true that where a conspiracy is proven as between two or more defendants to do an unlawful act during the progress of the conspiracy, the statement of one conspirator is admissible as evidence against all of the conspirators. The statement of the defendant Raymond Thornton was made after the crime was completed, that is, after the pack house had been burned. Such rule as we have above mentioned does not prevail in such a situation as is presented here. See Lyon v. State, 22 Ga. 399; Moye v. State, 66 Ga. 740; Knight v. State, 114 Ga. 48 ( 39 S.E. 928); Simmons v. State, 115 Ga. 574 ( 41 S.E. 983); Watson v. State, 136 Ga. 236 ( 71 S.E. 122); Weldon v. State, 158 Ga. 140 ( 123 S.E. 217), and Tucker v. State, 91 Ga. App. 592 ( 86 S.E.2d 634). In reading this evidence, outside of the testimony of the State's witness regarding the alleged confession, there is no evidence whatsoever to connect the defendant Willie Lee Thornton with the offense charged. We will, therefore, not discuss the assignment of error as to the judge having directed the jury to return and strike from that verdict the recommendation. The judgment against Willie Lee Thornton is reversed.
2. (a) We come next to discuss the case as to Raymond Thornton. The court did not err in admitting the alleged confession of Raymond Thornton into this record. As to him the evidence as to the general grounds amply sustains the verdict.
(b) The court did not err in admitting the alleged confession as against this defendant on which this defendant assigns error on the special grounds.
(c) The only other material special ground assigns error on certain remarks of the solicitor-general in his argument. The argument of the solicitor-general as set out in this special ground is: "Raymond Thornton has already entered a plea of guilty here today to an indictment charging him with stealing the tobacco from this tobacco pack house and you ought to convict him." In regard to this, counsel stated: "I would like the record to show that the solicitor-general in his argument to the jury stated that this defendant had entered a plea of guilty to stealing the tobacco and this put the defendant's character in issue, when their [his] character has not been made material to the innocence or guilt of the accused on trial, and it had such a devastating effect upon the minds of the jurors as to deprive this defendant, Raymond Thornton, of a fair and legal trial for that reason we wish to move for a mistrial, ask the court to declare a mistrial at this time." The court: "Overrule your motion." When this defendant was making his statement to the jury he told them that he stole the tobacco out of the barn but that he had nothing to do with burning the barn and knew nothing of it. Technically speaking it was error for the solicitor-general to make the statement, but in our opinion it is not sufficient under the record in this case for this court to reverse the judge's refusal to declare a mistrial. We arrive at this opinion for the reason that this defendant when on the stand admitted to the jury that he did steal the tobacco. We cannot conceive that a jury would pay any more attention to what the solicitor-general stated than to what the defendant stated himself. We find no reversible error on either the assignments on the general grounds or the assignments on the special grounds or either one of them which would require a reversal as to this defendant.
The judgment of the trial court in its verdict and judgment as to Willie Lee Thornton is reversed, and the verdict and judgment as to Raymond Thornton is affirmed. Townsend and Carlisle, JJ., concur.