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Dowis v. State

Court of Appeals of Georgia
Sep 10, 1946
39 S.E.2d 413 (Ga. Ct. App. 1946)




Larceny from person; from Fulton Superior Court — Judge Pomeroy. May 4, 1946.

George G. Finch, for plaintiff in error.

E. E. Andrews, Solicitor-General, Paul Webb, Durwood T. Pye, contra.

1. A conspiracy may be established by circumstantial evidence as well as by direct evidence. Where, as here, the evidence is sufficient to establish a conspiracy, the act of one conspirator is the act of the other during the pendency and within the scope of the conspiracy.

2. The assignment of error in special ground 1 is without merit.

3. Where the court correctly instructs the jury as to a principle of law applicable under the pleadings and evidence, in the absence of a timely written request for further elaboration, such instruction carries with it the converse of the principles so charged.


The defendant was convicted on a special presentment. The allegations of the charge, omitting the formal parts, are: "for the said accused, in the County of Fulton and State of Georgia, on the 2nd day of December, 1945, with force and arms did from the person of Talmadge Hopper, wrongfully, fraudulently, and privately take, steal, and carry away with intent to steal the same, one automatic pistol, thirty-five dollars in money, one black billfold, and one draft drawn on the Treasurer of the United States, and dated December 1st, 1945, numbered `43,565' Camp Gordon, Ga., payable to the order of Tallmadge Hopper in the amount of two hundred fourteen dollars and seventy-five cents, and being signed by H. W. Persons, Finance Officer, United States Army, all of the value of $286.75 and the property of the said Talmadge Hopper."

The jury returned a verdict against the defendant, fixing his punishment at not less than two nor more than two years in the penitentiary, with a recommendation that he be punished as for a misdemeanor. The defendant filed his motion for a new trial on the general grounds, and thereafter added, by amendment, two special grounds. The court overruled this motion, and the defendant filed exceptions and brought the case here for review.

Counsel for the defendant does not summarize the evidence. We find from the State's brief a fair summary of the evidence as we compare it with the brief of the evidence from the record. We will, therefore, relate a summary of the evidence as outlined in the brief of the State.

Talmadge Hopper testified: That after his discharge from the Army, and while traveling to his home in Lula, he was at the bus station in Atlanta after midnight. At the bus station he met Walden, whom he had never seen before, and they drank whisky together. At the bus station he also saw Dowis for the first time, and the three of them drank together. At the bus station an officer in uniform told Hopper he was going to lock him up, and the officer took Hopper's billfold and stuck it in Hopper's pocket, taking Hopper outside the bus station. Dowis came up to the officer and told him that he was Hopper's friend and would take care of him, and the officer turned Hopper loose. Hopper, Dowis, and Walden then went to a cafe and ate and drank. Hopper testified that he did not remember anything after being at the cafe until a taxi-driver woke him around six o'clock in the morning. He then missed his gun, money, discharge button, and a Treasury draft of $214.75, representing his discharge pay, all of which he had on his person when he met Walden and Dowis. On cross-examination, the same witness testified that he "just remembered" endorsing the check, but did not remember where he endorsed it. O. L. Kilpatrick, police officer, testified that he saw Hopper at the bus station about four o'clock in the morning. Hopper was in a drunken condition, and Dowis was with him. The witness knew Dowis and was under the impression that he was a county policeman. Kilpatrick took Dowis from the toilet to the platform of the bus station, and Dowis talked Kilpatrick into not locking up Hopper. Hopper had some loose bills and a check, and said something about cashing the check, and Kilpatrick told him that he was too drunk to cash the check. "Mr. Dowis said that he was with this soldier, that he picked him up at Brown's cafe, and brought him there in a taxicab, and that he would take care of him." Kilpatrick saw the check or draft, which was not then endorsed, and took it from Hopper and put it in his shirt pocket and fastened his jacket around him. "No one else except Mr. Dowis talked to that soldier while I was on duty."

Curtis Golden, a taxi driver, testified that he picked the three men up at the Terminal Station that night, Dowis employing him to carry them to Buckhead. Hopper sat in the front seat and Dowis and Walden on the rear seat. On the way to Buckhead, Walden took Hopper's gun and check from Hopper's pocket, Hopper being apparently insensible. Walden said Hopper was his brother. The taxi stopped at a fruit stand in Buckhead, where Dowis inquired for Mr. Woodall, who was not there. Dowis then instructed him to go to a certain house, and Dowis and Walden went into the house, and upon returning Dowis was driven to the Biltmore Hotel and Walden to a town near Decatur. Hopper was then carried to Fifth Street, to a non-existent address, then to the cab station, where he was awakened.

John E. Stanford testified that Dowis came to this fruit stand in a cab and asked for Mr. Woodall, Dowis saying he wanted to cash a check for $214. Two other men were in the cab. Dowis was told that Woodall was at home in bed.

C. B. Woodall testified that about 6:30 in the morning Dowis and Walden came to his house, Dowis stating that Walden wanted to cash a check. Dowis was Mr. Woodall's neighbor, and Woodall, being unable to cash the check, told Dowis that he would let him have $100 on it, and he would give him the rest the next day. This was done. Sunday morning officers came and got the check, and that afternoon Dowis agreed to refund the $100 to Woodall, which he did later. When Dowis and Walden brought the check to Woodall's house, Walden had on a discharge button.

H. S. Norton, M. B. Petty, and Talmadge Hopper (recalled) testified to the effect that Hopper's pistol was found in the possession of Walden in Rockdale County, recovered, and returned to Hopper. The check or Treasury draft for $214.75, endorsed by Hopper and Dowis, was admitted in evidence.

In his statement at the trial, the defendant denied his guilt and stated that Walden told him that Hopper was his brother, and that what the defendant had done respecting the check was as a matter of accommodation.

O. L. Kilpatrick, recalled, testified that, when Dowis was present with Hopper at the bus station, Hopper said that he had enough money to get home without cashing his check, and exhibited a handful of bills, which he pulled out of his pocket. Dowis said that he had brought Hopper from Brown's Cafe.

Talmadge Hopper, recalled, testified that he did not tell Dowis that Walden was his brother, that he had never seen either of the men before, and first saw Dowis at the bus station.

1. The State proceeded under the principle of law that the defendant, Paul E. Dowis, and James H. Walden acted with a common intent and purpose to steal the effects of Talmadge Hopper. The defendant, through his able and distinguished counsel, bases his contention for a reversal on the principle of law that the evidence for the State is wholly insufficient as a matter of law to show that the defendant conspired with Walden to steal the effects of Talmadge Hopper; but contends to the effect that the evidence shows as a matter of law that Walden alone was the thief, and that the defendant was the good Samaritan.

As to the general grounds, it is our view that the evidence authorized the jury to find that the defendant Dowis and Walden acted with a common intent, purpose and design and conspired and did, within the scope of this conspiracy, steal from Talmadge Hopper, his effects. In such a situation, the act of Walden was the act of the coconspirator, the defendant Dowis, and vice versa. There are many decisions to the effect that a conspiracy may be established by circumstantial evidence as well as by an express agreement. Without encumbering the record with any great number of decisions to the effect that a conspiracy may be established by circumstantial evidence, we call attention to the following only: Dixon v. State, 116 Ga. 186 (9) ( 42 S.E. 357); Carter v. State, 141 Ga. 308 ( 80 S.E. 995). The defendant cites no authority in support of his contention. The assignments of error on the general grounds do not authorize a reversal.

2. Special ground 1 assigns error on the following excerpt from the charge of the court: "If, considering all the evidence in the case and the defendant's statement, your minds are unsettled, uncertain, unsatisfied, that would be the reasonable doubt of the law, and it would be your duty to acquit the defendant; but if your minds are free from that reasonable doubt, it would be your duty to convict." The court fairly and clearly instructed the jury as to the law of reasonable doubt and the presumption of innocence and gave them the form of verdict which they should render in the event that they entertained a reasonable doubt as to the defendant's guilt. We find no error in this ground. See Bradford v. State, 69 Ga. App. 856 ( 26 S.E.2d 848). The defendant cites no authority in support of his contention.

3. Special ground 2 assigns error on the following excerpt from the charge: "The State contends that there was a conspiracy to rob this alleged victim. That is denied by the defendant, and the burden is on the State to prove it beyond a reasonable doubt. When and if a conspiracy is shown to exist, the act of each of the conspirators becomes the act of all, and the act of all becomes the act of each of those who participate in the conspiracy during the course of its execution and pursuant to the execution of the original criminal design. A conspiracy is a plan, scheme, or course of conduct between two or more persons to commit an unlawful act. Conspiracy may be proven by facts and circumstances as well as by direct evidence." The errors assigned on this excerpt are: (a) That the charge excluded from the consideration of the jury the principle of law as it pertains to a conspiracy; that the act of one does not bind another unless and until the criminal intent to do what was done is established to the satisfaction of the jury to have existed between the alleged conspirators. (b) Because of the charge, the jury were precluded from acquitting the defendant, in that the jury were not instructed that the burden was on the State to show that the defendant knew of the criminal intention of the coconspirator Walden to steal the effects of Talmadge Hopper. (c) Because the court did not instruct the jury that, if no conspiracy existed between the defendant Dowis and the coconspirator Walden to commit a larceny, the defendant Dowis could not be held for anything except what he did personally. (d) In that the court failed to instruct the jury that, even though the defendant Dowis did assist Walden, yet if the defendant did not know of the criminal intent of Walden, but was under a bona fide belief that Walden was the brother of Hopper, the victim, and the defendant entertained no criminal intent to assist in the commission of a larceny, the jury would be authorized to acquit him.

It will be discerned from an analysis of the charge as set forth in this ground and the errors assigned thereon that the defendant makes no assignment of error on the ground that the charge does not set forth a correct principle of law applicable to conspirators to commit a crime. But the gravamen is to the effect that the court did not go further and instruct the jury as to the converse of the principles charged. The charge was correct as an abstract principle of law relating to a conspiracy to commit a crime, and the effect of the act of one conspirator is the act of the other during the pendency of the conspiracy and within the scope of it. In this connection, see Compton v. State, 179 Ga. 560 ( 176 S.E. 764); McCormick v. State, 176 Ga. 21 (2) ( 166 S.E. 762). There are many other decisions to the same effect. Having thus seen that the charge excepted to was correct in principle and authorized by the evidence, it was not reversible error for the court, in the absence of a written request, to go further and charge the converse of such principles. See, in this connection, Bates v. State, 18 Ga. App. 718 (9) ( 90 S.E. 481); Sherrer v. Holliday, 165 Ga. 413 (2) ( 141 S.E. 67). The defendant cites no authority in support of his contention. There is no merit in this ground.

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.

Summaries of

Dowis v. State

Court of Appeals of Georgia
Sep 10, 1946
39 S.E.2d 413 (Ga. Ct. App. 1946)
Case details for

Dowis v. State

Case Details

Full title:DOWIS v. THE STATE

Court:Court of Appeals of Georgia

Date published: Sep 10, 1946


39 S.E.2d 413 (Ga. Ct. App. 1946)
39 S.E.2d 413

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