Kicklighter v. State , 76 Ga. App. 246 ( 1947 )

1. On the trial of a criminal case in which the defendant made an admissible confession as to every essential element of the crime, and in which the evidence was sufficient to establish the corpus delicti aliunde the confession, and the confession as to venue as well as the other essential elements of the crime was corroborated by other evidence, a verdict of guilty was authorized.

2. A charge relating to the credit to be given a witness sought to be impeached on the ground that the witness had made previous contradictory statements as to material facts connected with the case to the effect that if the witness has not been impeached his evidence along with the other evidence in the statements made by the defendant should be considered by the jury is erroneous; the vice in the charge consists in the omission of the qualification of the rule that the testimony of such witness is to be entirely disregarded only when it is not corroborated by circumstances or other unimpeached evidence. Humphreys v. Smith, 133 Ga. 456 (66 S.E. 158).

DECIDED DECEMBER 5, 1947. The defendant was convicted in the Superior Court of Evans County of cattle stealing. The indictment charged the defendant with having feloniously taken and carried away with intent to steal the same one certain animal of the species known as cattle, and being a red butt-headed cow, of the female sex, weighing approximately 600 pounds, marked two under bits in each ear and being the personal property of J. K. Durrence, and being of the value of $90. On the trial of the case, J. K. Durrence, witness for the State, testified substantially: That he owned a cow corresponding to the one described in the indictment, weighing approximately 600 pounds, marked as alleged and of the value of approximately $90; that the cow ranged mostly in Evans County and disappeared from the range; that he could not say exactly where the cow was killed because she was ranging in the woods, but she generally ranged in Evans County; that he had never had any cows in Liberty County; that if the cow ever ranged in Tattnall County, he didn't know of it; that it is about two miles from where he lives to the Tattnall line; that his cattle range a good deal in the Camp Stewart area, but they don't range in the Tattnall part of the area a lot; and that his place is about a mile and a quarter from the Evans County line to the Camp Stewart area. Along with Ernest Strickland, he went down to Flat Ford Bridge, near Glennville and found the head of his cow. He stated he identified the head as from his cow and it being a heifer; that the markings of the ears consisted of two under bits in each ear, which was his mark; he knew of no one else using the same mark; also by the color and size which he judged from the head, feet and tail, all of which were found; he testified that he recognized and identified the head as coming from his cow.

Officer L. R. Martin, of the State Patrol, testified substantially that he, together with another trooper, while circling around to the south side of the railroad track saw a car pull around to the end of the street, forcing the officers to one side of the road and continuing toward Glennville; upon chasing it they found its occupants to be this defendant, Carlos Bland and others; upon searching the car they found in the trunk a fresh cow head (hide) and in a pasteboard box some sliced beef; upon questioning the occupants of the car and receiving contradictory explanations, the defendant, Carlos Bland and others were arrested and later these two confessed in the presence of each other to the theft of this and other cows, stating that the particular cow charged in the indictment and another one were killed near the Aubrey Olliff Place in Evans County, taken to the business place of Carlos Bland in Tattnall County, butchered, and later sold to Hugh Dyess, the owner of a meat market in Claxton. The testimony of this witness as to the confession of the defendant was corroborated by several other witnesses on behalf of the State. Ernest Strickland, a witness for the State, corroborated the testimony of Mr. Durrence, as to finding the head of the cow on Beards Creek at Flat Ford Bridge and also testified that he recognized it as belonging to Mr. Durrence's cow. Hugh Dyess testified that he operated a retail meat business in Claxton and that on October 9th 1946, the defendant in company with Carlos Bland, had eight quarters of beef, seven of which he bought from the defendant paying 19 cents a pound therefor. The check was made payable to the defendant. Carlos Bland, a witness for the defendant, testified substantially that he told the patrolman that the cows were killed at the Olliff Place; that if he said anything about what county it was he did not remember it; that he did not know where the Evans and Tattnall lines joined; that the cattle were killed at a point not over 30 yards from the road, on the same side which the house stood on and within seventy-five yards of the house. On cross examination he said that he did not tell the officers he killed the cows in Evans County. E. Weathers, Burt Smith, Ordinary of Evans County, Mr. Odum and Coy DeLoach, all testified in substance that that part of the Aubrey Olliff Place on the side of the road on which the dwelling house was located is in Tattnall County. Some of these witnesses testified that a part of the lands of the Olliff place on the opposite side of the road was in Evans County.

The defendant made a statement in substance that he took John Kirkland into the Camp Steward area, the latter securing a pass; on Wednesday morning they looked for cattle and went back that afternoon; they passed the Olliff Place and saw some cows out there, stopped, backed up thirty yards, and Kirkland, saying it was his cow, started to shoot it with a pistol; Bland told him not to shoot the cows with a pistol and looking around told Buck to bring the rifle out of the car; he (Bland) shot a cow and a yearling, the cow was over thirty yards away from where he shot the yearling; the animals were butchered at Carlos Bland's barn; he (Kirkland) got Carlos to take him to C. W. Kicklighter's to sell meat; C. W. was in a hurry getting away to Savannah and did not have time to look at the meat and would not buy without looking at it; he stated he knew Hugh Dyess; he (Kirkland) told defendant if he did sell it he would give him a quarter (of the beef); he stated that is why he sold it. He further stated that so far as he knew it was John Kirkland's cow, he had the pass to go into the area. The State put on several rebuttal witnesses. Candler Rogers, Sheriff of Evans County, who reiterated the confession of the defendant and the statement of Carlos Bland made in the presence of the defendant. He testified they both fully confessed their guilt and stated that they said the theft of the cattle occurred near the Olliff Place in Evans County; that they did not say whether they meant near the homeplace or the land, just near the Olliff Place. He further testified that neither of them said anything about the cows being killed in Tattnall County. Officer Martin was put back on the stand and testified that Carlos Bland stated to him that the cows were killed near the Aubrey Olliff Place in Evans County; also Officer Yawn, to the same effect, he having previously testified in substantial corroboration of the testimony of Officer Martin. John Kirkland Jr., jointly indicted with the defendant, testified as a witness for the State, to the effect that he, together with Carlos Bland, Guy Kicklighter, and others, entered into a conspiracy to procure a permit in his name, from the proper Camp Steward authorities, to go into the area to look for cattle, the permit to be procured in his name because his father had a claim and a pass could be procured through his father. The witness, the defendant and Carlos Bland, who had a rifle, proceeded into the area to get "just anybody's meat." He testified that they rode at Carlos' direction. The witness thereupon detailed the manner in which a cow, identified by Mr. Durrence, and a yearling were located, shot by Bland, butchered at his place and later sold in Claxton. He testified that the defendant brought him $27.50 of the proceeds of the sale of the beef. He testified that the place where the cattle were killed was about thirty yards on the right-hand side of the road on which they were going east; there were trees and bushes around, just ordinary trees like any swamp; that he saw no cleared land or homesite; that on the way back the heads were thrown in the creek at Flat Ford.

The defendant made a motion for new trial on the general grounds then later amended the motion by adding four special grounds. In the first special ground of the amended motion for new trial it is contended that the evidence is insufficient to establish the venue. In the second ground of the amended motion for new trial it is contended that the court erred in charging the jury as follows: "Gentlemen. I charge you on the question of impeachment. It is the contention in this case that a certain witness has been impeached. I charge you, gentlemen, that you gather what is the truth of the matter involved in the alleged contradictory statements made by them as to the material facts connected with the case. One of the methods provided for impeachment of witnesses is by proof of contradictory statements previously made by them as to material matters involved in the case. Now this is a method provided by law. Now whether or not any witnesses, particularly Bland, has been impeached in this case; this is a question for you to determine from the evidence in the case and the defendant's statement. If you determine that that has been established, and whether or not he has been impeached is for you to determine; if he has not, you consider his evidence along with other evidence and the statement made by the defendant, and you make a true finding in the case."

The remaining two grounds of the amended motion for new trial need not be set out and discussed.

The court overruled the defendant's motion for new trial as amended, and on this judgment error is assigned. 1. The general grounds of the motion for new trial and the ground of the amended motion, in which it is contended that the evidence is not sufficient to establish the venue, are considered together since they all relate to the sufficiency of the evidence although the question of the venue is raised by special assignment as required by statute. The defendant confessed as to every essential element of the crime, and all of his confession was corroborated by other evidence. The amount of corroboration sufficient to sustain a verdict of guilty is a matter for the determination of the jury. See Holsenbake v. State, 45 Ga. 44 (5); Griner v.State, 121 Ga. 615 (5) (49 S.E. 700). There is sufficient evidence to establish the corpus delicti aliunde the confession. See Childs v. State, 10 Ga. App. 829 (2) (74 S.E. 89);Williams v. State, 125 Ga. 741 (2) (54 S.E. 661); Boyd v. State,4 Ga. App. 58 (60 S.E. 801); Butler v. State, 9 Ga. App. 878 (72 S.E. 445). On the question of venue, the defendant's confession that the theft was committed near the Olliff Place in Evans County is supported by the statement of Carlos Bland, jointly indicted with him, made in his presence, to the same effect; by the testimony of numerous witnesses that at least a part of the Olliff Place is in Evans County and by the testimony of the owner of the cow that her usual range was in that vicinity of Evans County. The evidence, the confession and its corroboration, are sufficient to establish the venue. See Davis v. State, 66 Ga. App. 880 (19 S.E.2d 543); Porter v.State, 76 Ga. 658; Beatty v. Atlanta, 15 Ga. App. 515 (83 S.E. 885). While the evidence of Carlos Bland positively fixed the venue as being in Tattnall County, and this was all the positive evidence on the subject, the jury was authorized to disregard it because there was evidence of prior contradictory statements, and in such case the weight to be given such evidence is for the determination of the jury. See Code, § 38-1806;Edenfield v. State, 14 Ga. App. 402 (2) (81 S.E. 253).

2. In reference to the testimony of the witness, Carlos Bland, who, according to the record, testified on behalf of the defendant to the effect that the defendant and the witness were in good faith assisting John Kirkland Jr. in finding his cows, and that the acts of the defendant in connection with this matter as well as his own were in furtherance of this good faith project, and that the place where the cow in question and another yearling were shot, was in Tattnall County, and who had made previous contradictory statements confessing the crime himself and implicating the defendant therein as to each and every essential element thereof, including the statement that the cow in question and another yearling were shot near the Olliff Place in Evans County, the court charged the jury in the manner hereinbefore set out on the question of impeachment, adding in effect that if the jury finds the witness, Carlos Bland, has not been impeached, then and in that event the jury is to consider his evidence along with the other evidence. Inferentially this charge could mean only if the jury should find that the witness, Carlos Bland, had been impeached it was not to consider his evidence along with the other evidence. It is the rule that whenever a witness has been successfully impeached, in any of the manners provided by law, the jury has the right to disregard the testimony of such witness, and exclude it entirely, provided the testimony of such witness is uncorroborated. On the other hand if the testimony of such witness is corroborated by circumstances or other unimpeached evidence, the jury is authorized to consider the testimony of such witness. There is some corroboration of the testimony of Carlos Bland on material points. He detailed the place where certain of the cattle were killed. Testimony of other witnesses indicates that this place was in Tattnall County. It can not be said that his testimony is uncorroborated. The jury should have been instructed that if they found the testimony of Carlos Bland corroborated as to any of its material parts they were authorized to consider his testimony along with the other evidence of the case. See Code, § 38-1806; Reed v. State,130 Ga. 53 (60 S.E. 191); Smith v. State, 109 Ga. 481 (35 S.E. 59); Duncan v. State, 97 Ga. 180 (1) (25 S.E. 182);Powell v. State, 101 Ga. 19 (29 S.E. 309, 65 Am. St. Rep. 277); Martin v. State, 42 Ga. App. 592 (1). The quoted portion of the judge's charge on impeachment is set forth in the statement of facts herein and constitutes all of the charge of the court on this subject. Nowhere in his charge did he allude to corroboration. Had he done so the jury might have given effect to the testimony of Carlos Bland and acquitted the defendant. The error was therefore harmful and requires another trial of this case. Since the case must be tried again, the remaining assignments of error, being unlikely to recur, are not considered.

Judgment reversed. MacIntyre, P. J., and Gardner, J. concur.