Opinion
33416.
DECIDED FEBRUARY 15, 1951.
Violating liquor law; from Floyd Superior Court — Judge Nichols. November 3, 1950.
Hicks Culbert, for plaintiff in error.
W. T. Maddox, Solicitor-General, John W. Davis, contra.
(a) Where a witness swears to one state of facts on direct examination and on cross-examination completely repudiates his testimony and admits that he swore a lie, he has sworn wilfully and knowingly falsely, and it is the duty of the jury to disregard his testimony entirely unless corroborated by circumstances or other unimpeached evidence sufficient to convince them of its truth.
(b) While the uncorroborated testimony of an accomplice is insufficient to convict, such testimony is sufficient when corroborated by the testimony of another accomplice connecting the defendant with the offense and tending to show his guilt.
(c) Where one of such accomplices has been successfully impeached, he having sworn wilfully and knowingly falsely, his testimony may nevertheless be used as corroboration of the testimony of another accomplice where the testimony of the latter is sufficient to convince the jury that part of the testimony of the impeached witness is true.
DECIDED FEBRUARY 15, 1951.
Wendell Crowe was indicted, tried and convicted in the Superior Court of Floyd County for manufacturing whisky. Upon the trial of the case, a member of the Floyd County police force testified that about May 4, 1949, he went to Morton's Bend to engage in a search for an old Negro, Haywood Smith, who had disappeared; that in so doing he located a groundhog still made of tin and showing evidence of having been worked within the last day or so. Charles Zinnerman testified that he went down to a still at Morton's Bend with John Ellis [Ellen?] in a car borrowed from the defendant for the purpose of selling timber; that he was down there again gambling with the defendant, and that was all. Thereupon the State pleaded entrapment, reading a statement previously signed by the witness to the effect that he, Ellen and another had been driven to the still by the defendant; that the defendant helped them make whisky and caught it in a foot tub as it ran out of the still. The defendant admitted making the statement and offered the explanation that "at the time they got that they had me for killing Haywood Smith."
John Ellen testified on direct examination that the defendant took him to the district; that Zinnerman and W. T. Crowe were with them; that he dug a hole for a still; that they all went back on another occasion and finished it; that they made whisky and ran it off and the defendant put it in cans; that they all returned on a subsequent occasion and again made whisky, and that they were there the day Smith disappeared. However, on cross-examination he stated that his testimony on direct examination was untrue and that the statement made to the police officers was untrue; that he and the defendant had not made liquor, and that he had so stated and testified because he and Zinnerman were arrested on two occasions after Smith disappeared and were informed by the authorities that they had "either killed a man or was making liquor," and that they testified as he did because he would rather be tried for making whisky than for murder; that the only reason he and Zinnerman had been down in the woods was for the purpose of gambling.
Ike Campbell testified that the location of the still as it was pointed out to him was about a quarter of a mile below his pasture; that he had carried two one-thousand pound loads of sugar down there at the request of Ellen; that Ellen went with him to show him where to dump it and Ellen and Zinnerman unloaded it from his wagon; that Ellen had promised him some of the whisky for doing this and that he had found a gallon of whisky at the place where Ellen agreed to leave it; that the night his brother-in-law, Haywood Smith, disappeared he heard a car go by his place and into the woods; that he followed it and saw Zinnerman and Crowe loading liquor in cans and grain sacks in a pick-up truck; that Zinnerman was loading and Crowe was on the truck stacking; that he whisky he saw was in sacks under a brush pile behind the back line of the pasture. A city detective further testified that the still was located five or six city blocks from the home of Ike Campbell and that he had seen the still and that it was made of heavy corrugated tin. There was also testimony as to the manner in which the statements of Ellen and Zinnerman had been taken, and that Zinnerman testified before the grand jury in accordance with his written statement. The defendant made a statement in which he contended that he had been in the community on several occasions selling insurance and knew nothing about the still.
Upon conviction, the defendant filed a motion for a new trial on the general grounds which motion was overruled, and this judgment is assigned as error.
The general grounds devolve upon the question of what credence, if any, is to be placed on the testimony of the alleged accomplices, together with what corroboration, if any, exists as to facts testified to by them.
Code § 38-1806 states as follows: "When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury, but if a witness shall swear wilfully and knowingly falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence. The credit to be given his testimony where impeached for general bad character or for contradictory statements out of court shall be for the jury to determine."
As to the witness Ellen, there is no dispute but that he swore "wilfully and knowingly falsely" in that he completely repudiated his testimony on direct examination and swore to an opposite state of facts on cross-examination, admitting that he had sworn to a lie.
Code § 38-1806 is carefully analyzed in Reed v. State, 163 Ga. 206, 218 ( 135 S.E. 748), in which case it is pointed out that there has been much loose interchange of the terms "successfully contradicted" and "successfully impeached." Where a witness is successfully contradicted, in the first clause of this section, his credit as to other matters is for the jury. If he is successfully impeached, as he must be when he swears wilfully and knowingly falsely in the same case, then, according to the second clause of the section "his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence." The amount of corroboration needed is that amount of corroborative evidence which will convince the jury that a certain state of facts is true. As stated in Dean v. State, 154 Ga. 533, 536 ( 114 S.E. 809): "How can it be denied then that the evidence of a witness, though contradicted by previous sworn evidence of the same witness, should be believed if the last evidence is corroborated by facts and circumstances which convince the jury that the evidence is the truth. It follows that the jury must believe the evidence which they believe to be the truth, especially when they are convinced of its truth from corroborating circumstances shown by other evidence."
It is obvious that two kinds of corroboration of the testimony of the witness Ellen are necessary for the conviction of the accused. In the first place Ellen, if he is to be believed at all, is an accomplice, whose testimony must be reinforced by "corroborating circumstances." Code, § 38-121. This corroborating evidence "must connect the defendant with the offense and tend to show his guilt." Rice v. State, 16 Ga. App. 128 (1) ( 84 S.E. 609). The testimony of Ike Campbell connected the defendant with the offense in that at night in a lonely wood where only one car had entered the woods he saw the defendant and Zinnerman loading whisky on a truck below his pasture, which, from all the testimony, must have been in close proximity to the place where the still was located. It thus connected him with the offense in point of time and place, and at the very least showed a guilty knowledge on his part.
In the second place, the testimony of Ellen who swore "knowingly and wilfully falsely" must be corroborated by circumstances and unimpeached evidence sufficient to "convince the jury that the evidence is true." Ellen swore on direct examination, later repudiated by him, that he and the defendant Zinnerman set up the still and made the whisky; that the defendant brought them out there in his car; that they ran it off and put it in a barrel and then in cans, and took the cans up to the pasture fence and hid them in the straw. Campbell testified that at Ellen's direction he took two loads of sugar to the still; that Ellen left him a gallon of whisky in a can; and that he saw the defendant and Zinnerman loading cans of whisky from a brush pile behind the back line of his pasture onto the defendant's truck. It cannot be said as a matter of law that this was not sufficient corroboration of the facts testified to by Ellen on direct examination to convince the jury that they were true, notwithstanding the fact that Ellen later repudiated his testimony. Campbell himself was not contradicted on any material point. He stated on cross-examination, "If the truth kills, I am ready to die; I am a preacher and supposed to tell the truth." The jury believed his testimony, and in doing so it is equally obvious that they must have believed much of Ellen's testimony on direct examination. They were entitled to believe so much of it as they were convinced by extraneous evidence to be the truth.
Counsel for the defendant contends that Campbell was himself an accomplice, and that accordingly his testimony would have to be corroborated. Assuming this to be true, his testimony is corroborated by the testimony of Ellen. While it is true also that Ellen was successfully impeached and must for this additional reason be corroborated, yet the corroborative testimony of Campbell, as we have pointed out, is sufficient to support the testimony of Ellen, it having met the requirement that it be sufficient to convince the jury that the testimony is true. It is well settled that one accomplice may corroborate another. Pope v. State, 171 Ga. 655 ( 156 S.E. 599). Therefore, assuming that both Campbell and Ellen are accomplices, the testimony of each corroborates the testimony of the other. In the case of Campbell the testimony of Ellen corroborates him as the testimony of an accomplice. In the case of Ellen, the testimony of Campbell corroborates him both as the testimony of an accomplice and as the testimony of an impeached witness.
The witness Zinnerman was also impeached, it having been shown that he swore to one state of facts before the grand jury and to another state of facts before the traverse jury in the same case. His testimony before the traverse jury was favorable to the defendant in that he said that he and the defendant were not engaged in manufacturing liquor and had no connection with the still. However, he did testify that the defendant took him and the witness Ellis [Ellen] to a point in the vicinity of the place where it appears the still was found and that they gambled together on that occasion. His testimony therefore corroborates other testimony that the defendant was in that locality. This part of Zinnerman's testimony is corroborated by other testimony, and to this extent only might have been considered by the jury.
While the testimony for the State is weak and unsatisfactory, it was nevertheless believed by the jury and is sufficient to support the conviction.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.