Williams v. State , 152 Ga. 498 ( 1922 )

Fish, C. J.

(After stating the foregoing facts.)

1. One ground of the motion for a new trial contains the entire testimony of Clyde Manning, a State’s witness, and jointly indicted with the defendant on trial, John S. Williams, relating to the homicides of Harry Price, nicknamed “ Foots,” Johnnie Williams, John Brown, called “Bed,” “Little Bit,” “Big John,” Johnnie Green, Willie Givens, Charlie Chisholm, and Fletcher Smith. All of such testimony, as it appears in the brief of evidence in the case, is set forth literally in this ground. The material substance of it is exhibited in the statement of facts preceding this opinion. It is alleged in this ground* “ Movant objected to the admission of such evidence at the time the same was offered, and did then and there urge the following grounds of objection thereto: (a) That such evidence is irrelevant. (b) That such evidence tends to show the commission of independent and distinct crimes and homicides not connected with the homicides for which the defendant is being tried, (c) Such evidence tends to multiply the issues and raise collateral issues which the defendant is not prepared and could not be prepared to meet, and is exceedingly prejudicial to the defendant. All of which objections the court then and there overruled, and admitted said evidence to the jury.” ^ In succeeding grounds of the motion the testimony of the witness Manning, relating to the homicide of each of the persons named in the foregoing ground of the motion and as contained in that ground, is separately set forth, and error is assigned upon the admission of Manning’s testimony as to each of such homicides, over objections of the movant as stated in each ground, the objections being the same as specified in the ground relating to the admission of Manning’s testimony as a whole in reference to all of the homicides except those of Lindsey Peterson and Willie Preston. In view of these grounds of the motion we deemed it advisable to fully set forth the material substance of Manning’s testimony in reference to each of the homicides about which he was permitted to testify.

The general rule is, that, on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible; but to this rule there are several exceptions. Among them is the admissibility of evidence showing or tending to show the commission of crimes other than that for which the accused is on trial, for the purpose of showing motive, plan, or scheme. Frank v. State, 141 Ga. 243 (80 S. E. 1016), and authorities on the subject referred to in both the majority and minority opinions; Hill v. State, 148 Ga. 521 (97 S. E. 442); 12 Cyc. 405, 410; 1 Michie on Homicide, 714, § 166, Id. 843, § 172.

^¡ftie contention of the State is that the testimony of the witness Manning as to the other homicides was properly admitted, because it tended to establish the motive of the defendant, and supply evidence of the scheme adopted by him to carry that motive into effect; that his motive was to destroy the lives of those persons who could, in his opinion, be used as witnesses to establish his own guilt, or that of his sons, of peonage or murder; and having formed the motive to secure himself from danger of this character, it became necessary, in order that his security might be completé, that every such person answering to the description of stockade laborers should be killed; that one of such persons was as dangerous to him as another, and to kill one and leave the others alive would be a useless task. Therefore, that the motive might be, if put into execution, entirely effective, it involved the scheme of killing every person answering to the description of a possible witness against him for peonage; and if this method of destroying testimony was to be effectual, it was to be executed as promptly as opportunity and other circumstances for secrecy might afford. Upon this theory of the State’s case the testimony complained of in these grounds of the motion was properly admitted^''

2. Error is assigned in the motion upon a refusal by the court of a timely written request to give in charge to the jury the following: “While evidence tending to show the existence of a motive on the part of the defendant to commit the crime with which he is charged is material and relevant in determining the guilt or innocence of the defendant, yet the court charges you that the existence of a motive on the part of the defendant to commit the crime with which he is charged in and of itself would not be a sufficient corroboration of the testimony of an accomplice, so as to authorize the jury to convict the defendant upon such testimony alone.” The court in the general charge did instruct the jury as follows: “ The jury will not be authorized to convict upon the testimony of an accomplice, unless that accomplice’s testimony is corroborated by other .evidence in the case, either direct or circumstantial. While it is true that the sufficiency of the circumstances, for the purpose of corroboration, is a matter for the determination of the jury, and the law can not lay down a rule to measure the extent of corroboration necessary, still, where the only witness is an accomplice, the corroborating circumstances referred to must be such as to connect the defendant with the perpetration of the crime, and tend to show his participation therein. In order to convict the defendant upon the evidence of an accomplice alone, the corroborative evidence must tend to connect the defendant with the identical crime for which h.e is being prosecuted.” Of course, motive of and by itself, without more, can not be sufficient evidence to authorize the conviction of one accused of the commission of the crime.

It is stated in 16 Cyc. 707, § 14435 that: “Evidence of the existence of a motive on the part of the accused to commit the crime with which he is charged is not sufficient corroboration ” of the testimony of an accomplice. To support this statement the following cases are cited: People v. Becker, 210 N. Y. 274 (104 N. E. 396); Vails v. State, 59 Tex. Cr. 340 (128 S. W. 1117). Tn Becker’s case syllabus 1 is: “ Where accused’s connection with the crime is established entirely by the testimony of confessed accomplices, evidence that accused had a motive for the commission of the crime, while important, will not of itself supply the necessary corroboration to sustain a conviction.” In the opinion of the majority of the court, delivered by Hiscock, J., it was said: “ There is no doubt that evidence of motive for the commission of a crime may be important, although it is perfectly well settled that it does not of itself supply the necessary corroboration required by the statute. But the evidence of such motive in this case is not very satisfactory.” . In the concurring opinion of Miller, J., it was said: “ They [the facts set forth] do not singly or together tend to connect the defendant with the commission of the crime. They do furnish ground for argument on the question of motive, and they do show the defendant’s relations with the ‘ gunmen ’ [who killed Bosenthal, the deceased]. Proof of motive is always of great importance; but it is a .novel proposition to me that such proof in and of itself tends to establish the defendant’s participation in the crime or supplies the corroboration of accomplices which the law requires. See People v. Ledwon, 153 N. Y. 10, 20, 46 N. E. 1046.” In Ledwon’s case the controlling issue of fact was whether the deceased was murdered or committed suicide. It does not appear that there was any testimony given by an accomplice; and in the opinion it was said: “ The existence of a motive is of little or no importance in a case where there is no proof of the commission of a crime. When circumstances point to guilt, a motive to commit the crime may turn the scale against, the accused. Motive alone can never prove guilt, though it may strengthen circumstantial proof of guilt derived from other sources.” The ruling in this case is, therefore, not in point as to the question now under discussion.

It was held in Tails’ case that “ A motive for doing a criminal act is not of itself evidence corroborating the testimony of an accomplice ; and the mere fact that one may have an ill will towards a third person, as indicated by his statements, is not evidence corroborating the testimony of an accomplice in an assault on the third person.” In the opinion it was said: “While it may be said that the criminal intimacy that had previously existed between'Tails [the defendant] and Jones’ wife [wife of the deceased] might be regarded as a motive to want to have Jones put out of the way, yet motive for the doing of an act can not of itself be considered as evidence corroborating the commission of the crime, standing alone. The fact that a man may have ill will towards another or wish him harm, and express his dislike in vigorous language, ought not to put him at the mercy of a confessed criminal.” The verdict finding the defendant guilty in that case was set aside, because there was no evidence to corroborate the testimony of the accomplice. It appears, therefore, that in the cases of Becker and Tails motive was the only relevant circumstance relied on by the State to support the testimony' of an accomplice; and it was consequently held that motive alone would not suffice. In the case at bar the State did not rely solely on motive to corroborate the testimonjr of an accomplice, but contended that there were other circumstances appearing from the testimony of other witnesses, tending to corroborate Manning’s testimony, and connecting the defendant with the commission of the crime charged against him. A brief summary of such circumstances, which the State contends were established, is as follows: The discovery by the United States government agents, in their investigation, of two buildings apparently constructed for the housing and guarding of negroes, one on the defendant's place, and the other on the place occupied by his sons, Huland and Leroy; the going of the defendant, during the week after the visit of the government agents, to Huland’s place where Lindsey Peterson, Will Preston, and Harry Price lived and were at work, and inquiring of them if they desired to go home, and, upon their affirmative answers, directing them to quit work in time to drive some hogs down to the defendant’s place, and saying that he would take them to the railroad station either that night or the next morning; the fact, that they accordingly went to the defendant’s place that afternoon; the going of the defendant that night to the house on his place where Peterson, Preston, and Price were, ostensibly for the purpose of carrying them to the station, their leaving with him in his automobile, such three persons not being afterwards seen alive, and the finding of the dead bodies of several negro men in a river ten days or two weeks after Peterson, Preston, and Price disappeared; and the seeming lack of interest on the part of the defendant, as appears from his statement to the jury, to make effort to ascertain if the bodies found were those of negroes from his or Huland’s place. The fact that some of these circumstances may have tended to show motive was no reason why they could not be considered on the question whether they did not also tend to connect the defendant with the commission of the crime for which he wa€ Indicted.

“ A defendant is entitled to a concrete application of the law to the particular facts of the case, if he presents a timely written request to charge; but he is not entitled to an elaboration of the abstract law upon a single phase of the case to such an extent as will give to it undue prominence.” Harrell v. State, 121 Ga. 607 (5), 610 (49 S. E. 703). The court having given full, fair, and correct instruction as to the testimony of an accomplice and the necessity for its corroboration, as appears from the above-quoted extract from the general charge, and in view of all the;circumstances, other than motive, upon which the State relied to connect the defendant with the crime charged against him and as to which the request made no reference, the refusal to give the requested instruction was not cause requiring the grant of a new trial.

3. Tn the 17th ground of the motion error is assigned because the court permitted the witness Clyde Manning to testify, over objection of the defendant, “ I went to identify eleven bodies after they were drowned or killed.” In the 18th ground complaint is made that the court erred in allowing Manning to testify, over objection of the defendant, as follows: “ I went down to the river with that man and this man here and the sheriff of this county, and seen the bodies, and showed them, when they opened the grave, which was Peter and which was Willie Preston. By Peter I mean Lindsey Peterson. I went with the sheriff to the grave of those men and pointed out the men, which was which, at the grave.” The objections are the same in both instances, namely: '' (a) Such evidence is irrelevant; (6) that the identification testified to necessarily involves his saying something and doing something, and is therefore an extrajudicial identification made by this witness not under oath, and is inadmissible, as self-serving and hearsay, '(c) that such evidence is hearsay; (d) that such evidence is an attempt to bolster up the testimony and corroborate the testimony of the accomplice, Clyde Manning, by his own statement and his own conduct outside of the court-room, not under oath, and is not permissible; the rule being that the accomplice can not corroborate himself, and that evidence of what he said or did outside the courtroom, not under oath, consistent with his testimony delivered under oath, is inadmissible to sustain him; whereas what he says or does outside the court-room, inconsistent with his testimony, may under some circumstances be admissible to impeach him.” As to these grounds counsel for plaintiff in error say in their brief: '' If the other crimes were inadmissible, as contended for, then the admission of the evidence set out in this ground of the amended motion was error; and it is so insisted. It is further'insisted, as pointed out in this ground of the’ amended motion, that it was an extrajudicial identification of the so-called eleven bodies, that it was hearsay, and that it amounts in fact to permitting the accomplice to bolster up and corroborate himself. All of which objections we submit ought to have b^en sustained. In Encyclopedia of Evidence, volume 6/935-936, the rule is laid down with authorities supporting it, as follows: 'An identification made out of court by a witness' or other person cannot ordinarly be shown, because hearsay.’ ' The previous hearsay statements of the witness to identify are not admissible in corroboration of his testimony.’ It is also well settled that the statements of a witness consistent with his testimony delivered on the trial are not admissible, and that the witness cannot be thus bolstered up. Especially is this rule applicable to the testimony of an accomplice, under the familiar doctrine that he cannot corroborate himself.”

We have ruled that evidence as to the other homicides was admissible. The identity of the dead bodies found was relevant, and any witness with knowledge of their identity was competent to testify on the subject. The testimony of Manning that he went to identify the bodies and “ showed them ” — the sheriff and others— which 'was Peterson’s and which was Preston’s, was not hearsay. The rules quoted by counsel refer to proof of statements of a witness sought to be shown by another witness — therefore hearsay; and are not applicable here. And, for the- same reason, thg other rule as stated by counsel does not appty, namely, “ that the statements of a witness consistent with his testimony delivered on the trial are not admissible, and that the witness cannot be thus bolstered up.” It was not sought to prove by another any statements of Manning. He was allowed to testify merely as to acts of his own. The objections urged to the testimony were not good.

4. In three other grounds of the motion, viz., the 19th, 20th, and 21st, error was assigned on the admission, over movant’s objection, of certain testimony of the State’s witness, B. L. Johnson, sheriff. His testimony is embodied in the statement preceding this opinion; and to avoid repetition we have indicated, by placing in parenthesis there, the portion of it set forth and excepted to in these grounds. Briefly, it relates to the finding of dead bodies of negroes at several places pointed out by Manning, to identification of them by him, and to wounds on and weights tied to some of them. In the brief for the plaintiff in error it is said, in reference to the 19th ground, that “ The evidence here admitted proceeds along the same line just discussed (as to the 17th and 18th grounds), and is subject to the same objections and to all the objections urged upon the admission thereof in this amended ground of the motion, with the additional objection as urged therein that the evidence was inadmissible for the reason that it did not connect the defendant with the identical crime for which he was being' tried, and therefore did not fall within the scope of corroborating evidence.” As to the 20th and 21st grounds the brief states: “ The same reasoning, principles, and decisions heretofore discussed, which condemn the admission of the evidence set out in the 17th, 18th, and 19th grounds of the amended motion, likewise condemn the evidence admitted and complained of in these the 20th and 21st grounds of the amended motion;' and there -is no need to repeat the argument and decisions contained in our previous discussion.”

In view of our rulings as to the objections urged to the evidence set out in the l?th and 18th grounds, and as-to the admissibility of .evidence of homicides other than that for which the defendant was on trial, the admission of the testimony, set out in these grounds, over the objections urged thereto, was not cause for a new trial.

5. The 25th ground of the motion is: “ Because the following material evidence was illegally admitted to the jury by the court, over the objections of movant, to wit: the following evidence delivered by Clyde Manning, a witness for the State: ‘After Mr. Brown left, Mr. John S. Williams asked us what they asked us, and we told him they asked us about a boy named Blackstrap; and he asked us what we told him, and we told him we didn’t know any one named Blackstrap. - He didn’t seem to be satisfied with Johnnie and what we told him, and he said, “ If you ain’t told it all, if-you all told anything, I will find it out on you.” Blackstrap was a boy that Mr. Marvin got -last year. I don’t know nothing about Black-strap; he was not there very long before he was killed; he was killed there at Mr. J ohnny’s house,- under a -little shelter there in the yard by his house, there in his yard. Mr. John S. Williams asked if Mr. Brown, the Government man, asked anything about Blackstrap. - He asked him what did these men ask him, and he told him, Did be know a boy by the name of Blackstrap ? and he said he told 'him ‘ No sir.’ He didn’t know of anybody by the name of Blackstrap. -Mr. Williams-says, ‘If you all told anything on me, I will find it out.’ John Williams was present when Blackstrap was killed in Mr. J ohnny’s yard.’

‘‘Movant objected to the-admission of such evidence at the time the same was offered;:- and did - then and there urge the following grounds of objection thereto:- (u) - such evidence is irrelevant;. ■(&)• - such ■ evidence tends to show the -commission of a distinct and independent crime by the defendant, in no way connected -with- the crime for which the defendant is now being tried on this-indictment,' and is therefore-prejudicial to the defendant; which said - objections the court then and there overruled, and' admitted said evidence to the jury.” This evidence, was objected to as a whole, and certainly not all of it, if any, was subject-to the exceptions made.

6-9. The rulings made in these headnotes require no elaboration.

10. There was evidence to authorize the verdict, and the court did not err in refusing a new trial.

Judgment affirmed.

All the Justices concur.