Mitchell v. State , 202 Ga. 247 ( 1947 )

1. Whether a conspiracy be established is a question of fact for the jury. Smith v. State, 148 Ga. 332 (96 S.E. 632); Horton v. State, 66 Ga. 690, 693; Ethridge v. State, 163 Ga. 186, 199 (136 S.E. 72); Castleberry v. State, 178 Ga. 663 (173 S.E. 833).

2. "After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all." Code, § 38-306.

3. "The testimony of a single witness is generally sufficient to establish a fact. Exceptions to this rule are made in specified cases; such as, to convict of treason or perjury, in any case of felony where the only witness is an accomplice, and to rebut a responsive statement in an answer in equity — in these cases (except treason) corroborating circumstances may dispense with another witness." Code, § 38-121. It is not required that the corroboration of the testimony given by an accomplice shall of itself be sufficient to warrant a verdict of guilty, or that the testimony of the accomplice be corroborated in every material particular. Hargrove v. State, 125 Ga. 270, 274 (54 S.E. 164); Rawlins v. State, 124 Ga. 31, 49 (52 S.E. 1). The amount of corroborative extraneous evidence necessary to connect the accused with the commission of the offense lies peculiarly within the province of the jury, and even the addition of slight evidence from an extraneous source, corroborating the accomplice in identifying the accused as the perpetrator of the crime, will be taken as sufficient to support a verdict of guilty. Hargrove v. State, 125 Ga. 270, 275 (54 S.E. 164); Evans v. State, 78 Ga. 351; Roberts v. State, 55 Ga. 220.

(a) Under the foregoing rulings as applied to the evidence set forth in the statement of facts, the jury was authorized to find that one of the witnesses testifying as to the commission of the crime of robbery, and as to the fact that the defendant was an active participant therein, was a joint conspirator; and, while the defendant could not be convicted upon such testimony without extraneous corroborative evidence connecting the defendant with the crime, since the eyewitness account of the crime as testified to by the accomplice was in fact corroborated by independent evidence tending to show the guilt of the accused, it cannot be said as a matter of law that the testimony of the accomplice, together with the corroborating evidence, was insufficient to authorize the verdict. The general grounds are, therefore, without merit.

4. Where, according to the testimony, a witness had fifteen years experience managing dogs on chain gang work, and testified regarding his personal observation over a period of three years as to the training and experience of certain dogs in trailing human footsteps, and vouched for the breeding, accuracy, and reliability of the dogs, such evidence was sufficient to qualify the dogs so as to receive in evidence testimony as to their conduct when taken to the scene of a crime. Aiken v. State, 16 Ga. App. 848 (86 S.E. 1076); Fite v. State, 16 Ga. App. 22 (4) (84 S.E. 485). See, in this connection, Pitts v. State, 197 Ga. 317, 326 (28 S.E.2d 864).

(a) Where a motion was made to exclude the testimony relied upon to qualify the dogs in question, on the ground that the witness could not testify that the particular dogs which he thus sought to qualify were the ones actually taken to the scene of the crime, and where the trial court ruled in effect that such evidence was not admissible unless subsequently connected up, and where the exception taken is, not that the evidence was not subsequently connected — as it was — but that the evidence was inadmissible in the first instance, such exception is without merit. Lance v. State, 166 Ga. 15, 16 (8) (142 S.E. 105).

(b) The court did not err in excluding the following testimony offered by a witness for the defense: "When they (the dogs) done that, the warden (Mr. Lambert) was standing there and he says, ``Well, dogs is like finger-prints, they can be fooled by the dogs trailing the one way first and then the other way,' that's just what he said." If such declaration had been made by the person who had qualified the dogs, and had therefore been offered for the purpose of impeaching his evidence as to the competency of the dogs, it would doubtless have been admissible for that purpose. Such not being the case, but the statement only being a declaration made by some other person, it was properly excluded as mere hearsay.

5. "Leading questions are generally allowed only in cross-examination; but the court may exercise a discretion in granting the right to the party calling the witness, and in refusing it to the opposite party, when, from the conduct of the witness or other reason, justice shall require it." Code, § 38-1706.

(a) Where an alleged coconspirator was sworn and testified as a witness for the State, but on cross-examination repudiated his testimony given on direct examination, and testified that his evidence on direct examination had been given on account of threats and intimidation made by a police officer who had told him what to say, it was not error to permit the solicitor-general to cross-examine the witness for the purpose of showing entrapment, and in this way to prove that the accomplice witness had made statements after the pendency of the alleged conspiracy, but prior to the date of his alleged intimidation, which corroborated his testimony given on direct examination by the State, and to show that the witness had at such time implicated the defendant, had described the manner of the robbery, and had pointed out the routes to and from the scene of the robbery, which routes, as shown by the testimony of other witnesses, were the same as those followed by the dogs.

6. Where the trial court fully and correctly charged the jury on the weight to be given the defendant's statement, which included the instruction, "The jury may believe it in preference to the sworn testimony in the case," it was not reversible error, as being harmful to the defendant, although technically inaccurate, to state thereafter in connection with such charge, "So you see, gentlemen, you are to weigh the statement of the defendant and determine its credibility, just like you weigh all the evidence in the case, and determine the credibility of all the evidence and testimony in the case," when such instruction is attacked on the ground that it was harmful to the defendant, in that it limited the weight and credit which might be given to his statement.

7. The remaining grounds of the amended motion complain that the charge of the court on the principle of robbery by force or violence was unauthorized, in that the evidence showed nothing more than robbery by intimidation. In Long v. State, 12 Ga. 293, 294 (8) this court said: "Actual force, in our definition of robbery, implies personal violence. If there is any injury done to the person, or if there is a struggle to retain possession of the property, before it is taken, it is the force of our Penal Code." The victim in the instant case testified as follows: "When I stopped and got out of the car and got even with my front lights, this person stepped from behind the garage door and says. ``All right, Doc., stick ``em up,' and I ran immediately. . . I ran about 75 yards, hollering at the same time. . . I thought I could outrun him, I couldn't hear him behind me, and I turned and looked to see if he was still coming, and I stumbled and fell. . . I fell down right flat of my stomach, he came up and took my pocketbook. He just grabbed it and took it out, and I started to try to look at him and see who he was, and he says, ``Don't look, don't look;' I was not permitted to get up, I was exhausted. . . There was around $800 taken from my person." In view of the foregoing testimony, we cannot say as a matter of law that actual force was not employed in the robbery.

Judgment affirmed. All the Justices concur, except Atkinson and Wyatt JJ., who dissent. Head, J., concurs in the judgment.

No. 15715. APRIL 16, 1947. REHEARING DENIED MAY 16, 1947. STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE. The defendant and two others were jointly indicted for robbery by force and violence, and by force and intimidation; and the defendant was convicted of robbery by force and violence. The defendant, having elected to sever, was tried first. A brief summary of the facts developed by the evidence on the trial of the case is as follows: On the evening of November 20, 1945, at about 6:45 p. m., Dr. O. D. King left his hospital at Bremen, Georgia, and after stopping at the post office for a few minutes, drove about one-half mile to his home, which was located on the south side of the Bankhead Highway, where at about the same distance off the highway on the north side the defendant Raymond Mitchell lived. Dr. King drove his car into his driveway leading to the garage under the house and to within six or eight feet of the house. The area behind the house was wired with electric lights, and it appears from the evidence that one light was burning. After turning the lights off the car, the doctor got out, and upon coming up to the front of his car a person from behind the garage door said, "All right, Doc., stick ``em up." Dr. King glanced to his left and saw a dark-faced person with something white across his face. He was about the doctor's height, but not as heavy, and about the same size and height of a negro named Junior Hayes, and about the same size and height as the defendant (Raymond Mitchell). Dr. King immediately turned and ran for a distance of about 75 yards, "hollering" as he ran and, when he looked back, stumbled and fell on his face and stomach. While lying on the ground breathless, he tried to look again and the person over him said, "Don't look, don't look." The doctor's billfold, containing around $800 in cash and personal papers, was taken from his person. A neighbor who had heard the outery telephoned Sheriff G. L. Newman of Buchanan, Georgia, who arrived on the scene at approximately 7:15 p. m., or about thirty minutes later. Before the sheriff arrived, a telephone call was made to Warden Ben Lambert at Newnan, Georgia, who arrived about forty-five minutes later with two dogs and dog boys. The evidence shows that the dogs were started where the hold-up occurred, and immediately picked up a track which they followed up a "draw" to the Bankhead Highway and continued across a railroad embankment into a sedge field a short distance west of the house occupied by Raymond Mitchell (defendant), at which point they circled and led to the back door of the defendant's house. It was shown that it was then between 8 and 9 o'clock, and that there were around fifteen other negroes at the house having a possum supper. The evidence of both the State and the defendant show that the defendant was taken home about 6 o'clock, and that he was in the house when the dogs trailed to the back door; and the defendant in his statement admitted that when the sheriff had asked which one of them had come in the back door, he (the defendant) had said, "It was me come in the back door." The dogs were taken back to the scene of the crime and turned loose again. This time they circled around and went down to the branch, where they struck a trail and began to bark. They followed this trail up a "draw" that came out on the highway, crossed the highway, and went over to the railroad which they followed for about two hundred yards until they reached a street leading down to a spring, and from there to a patch of woods, where certain papers identified as having been in the victim's billfold were found the following day, and from there the dogs came out to a dirt road, where the trail ended. It was shown that Dr. King was known by Hubert Clay (one of the alleged accomplices) to have been carrying a large sum of money; and that Clay had seen it when the Doctor had visited his home a few days before the robbery. Lonnie Garrett (the other alleged accomplice) testified for the State substantially as follows: "I live below Bowden-Junction. I remember the night Dr. King was robbed. I know Raymond Mitchell (defendant). I saw him that night. I first saw him going up the road there below Bremen, this side of the Bankhead Tavern; him and Mr. Hubert (Hubert Clay being the other alleged accomplice) came by in a car and asked me did I want to ride. I got in and come on up the road and they told me they was going to rob Dr. King and told me they wanted me to go down there with them. They both told me they would give me $10 to go down there with them. I told them I would go down there with them, but not to rob Dr. King. We went on up there in town, and me and Raymond (the defendant) got out and went to the depot and stayed there a while and left there and went down the railroad and turned and went down to Dr. King's house. When he left the railroad, he turned out and went right down by the side of a ditch down there, the ditch comes out at the highway. When we went down the ditch, we went down there at Dr. King's house. When we got to Dr. King's house, I stayed there; he said he was going to get a gun. When he said that, I was back of Dr. King's house, right there at that light; there was a light there. Raymond said he was going to get a gun and left and went around back of the other house; I mean he went back of Dr. King's house; he was going towards the highway. The last place I know of Raymond staying, he was staying up there the other side of the City Lumber Company. When he left to get the gun, it wasn't long before he come back. I did not see a gun, I don't know whether he got a gun or not. I don't know where he went, and he did not say anything to me when he got back, and he went up there and got behind Dr. King's garage door. He did not stay there so long; I stayed right there at the light; I did not go to the house with him. I did not get any closer to the house than that electric light I am speaking about. The next thing that happened Dr. King drove up and stopped and Raymond says, ``Stick ``em up, Doc.' When Raymond said that, I could not see Raymond or Dr. King, neither one; Dr. King hollered, and run and I broke and run. When I run I turned right off down the hill. That was not the way we come in there. I went across the ditch and came out right back this side of Mr. Thompson's house, and the next time I saw Raymond he was up there on the railroad. I went out the hollow and up across the pasture and got in the highway and went on across on the railroad. When I got to the railroad, I saw Raymond Mitchell; he said he got the money. We went up there and turned and went down to the spring. We were on the railroad and turned off to go down to the spring. The spring was on the left-hand side of the road, and at the bottom of the hill. We turned off to the left. Hubert Clay was out there at the spring, and he asked Raymond, did he get the money. Raymond says, ``yes,' and Raymond pulled out and give me $10, and he told me not to say anything about it. I saw the money they got from Dr. King, I don't know how much it was. I didn't get hold of the pocketbook it was in. I did not see them divide it and I don't know what part each one got of it. The next thing was done, Mr. Hubert Clay told me not to say anything about it; if I did, he would kill me; he said that after I got the $10 bill. We left there and went on up there near the school building on top of the hill. We didn't go the road; we walked across the field and come out up there this side of the railroad in a dirt street. We cross the railroad and the car was parked there, and we got in the car, and they carried me to the overhead bridge beyond Bowden-Junction, and I got out and went home. The car was parked on a road on the right-hand side headed towards the hospital. Hubert Clay drove the car." On cross-examination, this witness testified: "I first saw Raymond Mitchell and Hubert Clay the day Dr. King was robbed a little while before sundown, something around 4 or 5 o'clock. I got in the car down there this side of the Bankhead Tavern and come to town, and me and Raymond got out and went down to the depot. I did not go anywhere else. We did not stay at the depot, I guess about ten or fifteen minutes. It wasn't dark when we left the depot, not good dark. We left there and went down the railroad and went down to Dr. King's house, and it wasn't dark when we got to Dr. King's house. At that time I worked for Mr. Norcross. Dogged if I know what time it was when I got off from my work on the 20th day of November, the day Dr. King was robbed. Mr. Norcross run a little dairy, and when I work for him I usually get off from work sometimes a little after dark. I worked for him the day Dr. King was robbed, and I guess I got off from work about dark. That night when I got off from work, I went home; my home is at my sister's. Her name is Bertha Thomas. It was after dark when I got to Bertha Thomas'; I did not go anywhere else. I didn't go to Bremen that afternoon. I didn't see Raymond Mitchell or Hubert Clay that evening. I first had information that we was accused of robbing Dr. King on Monday morning after the second Sunday in this month about two weeks ago [January 14, 1946]. When I come to knowing anything about it, I was in the high sheriff's car going towards Atlanta." This witness testified further on cross-examination that he had been told by a police officer how the robbery was committed, and that all his acts and statements were based on what this officer had told him he had better say, and that he was afraid of this officer. The solicitor was permitted to cross-examine the witness over objection, whereupon he then testified that he had told the solicitor all of the facts stated on direct examination, had testified to the same facts before the grand jury, and had never at any time mentioned any threats, abuse, or fear, and had expressly denied that any had been offered; and that he had been told by the solicitor on three different occasions, if his statement was not true, to take it back, and, if any force or ill treatment had been accorded him, to tell it. The witness then reaffirmed his testimony given on direct examination by the State, but, on recross examination by the defense, again repudiated his knowledge and complicity in the crime. The State then offered testimony of Dr. King and two other witnesses as to declarations and conduct of this witness, Lonnie Garrett (the alleged accomplice), in which it was shown that he had admitted his participation in the crime, had named the coconspirators, and had pointed out the manner in which the robbery was committed, and the routes followed to and from the scene of the crime by the defendant and himself, all of which occurred prior to the time the police officer allegedly told him what to say. The testimony of these witnesses was objected to on the ground that the conspiracy, if any, had ended at the time the declarations and actions of the witness testified to were made by the alleged conspirator. The court admitted the testimony for the purpose of illustrating the credibility of the alleged accomplice, who had repudiated his testimony in which he admitted participation in the robbery. It was shown that the dogs followed the same route, exactly, which Lonnie Garrett had pointed out as having been traversed by the defendant and himself going in and coming out from the scene of the robbery. It was further shown by competent testimony that the dogs used by the warden, once having struck a track made by one person, would not switch or change to a track made by any other person during their trailing from a given point, and that a track followed from that point in one direction, and then picked up in another direction would in both instances be the track made by the same person. The defendant relied upon testimony tending to show an alibi, and concluded with his own statement denying guilt. The amended motion for new trial was overruled, and the case is before this court by bill of exceptions to that order.