Opinion
33459.
DECIDED APRIL 11, 1951.
Arson; from Monroe Superior Court — Judge Willingham. December 1, 1950.
Stephen Schalasny, for plaintiff in error.
Benjamin B. Garland, Solicitor-General, contra.
The evidence authorized the verdict, and there being no merit in any of the special grounds the court did not err in overruling the motion for a new trial.
DECIDED APRIL 11, 1951.
B. P. Potter, alias Buddy Potter, was tried and convicted under an indictment for arson committed upon the dwelling of Walter Marshall. To the judgment of the trial court overruling his motion for a new trial, based upon the usual general grounds and four special grounds, the defendant excepted.
W. D. Green, a co-indictee of the defendant Potter had been previously convicted under the same indictment and testified in part that he and the defendant Potter went with Cullen Wooten to the house of Wooten's uncle, Walter Marshall; that Wooten told Marshall, "I know where we can get some whisky," [and] "They got in a truck and went off after some whisky. Me [Green] and this other boy [the defendant], we were already drunk. We went in the kitchen and sat down to the table to eat. Potter [the defendant] told me, he said, `Let's raise sand.' I said, `All right. It suits me,' and we commenced turning the table over and the dishes. We went back in the front room and I piled some mattresses up in the middle of the floor. Buddy was helping me. I went back in the kitchen and there set some kerosene. I picked up the drum and threw it in there, and the house caught on fire, and there was a rifle in the room across the hallway, and Buddy [the defendant] takes the rifle. I said, Don't mess with this rifle. They will get the fingerprints off it.' And he takes the rifle and threw it across the sage into the woods. I don't know whether he got the rifle or not. They said there was a shotgun in there. I never did see a shotgun at all. And we stayed out there in front; went up to some colored people's house. I told them the house was on fire, we didn't know how it caught, and the colored people went to the door, and went down to the house and it was falling in. And Wooten and this fellow [Walter Marshall] came back up there in the truck, and they wanted to start some trouble with Buddy, and me and him both were into the fight and [then we] ran to the truck and took off and we went on back home." Green further testified that he and the defendant Potter "wore that jacket a while and Buddy [the defendant] said, `I will just let you take that jacket and wear it.' And I taken the jacket and wore it, and when they caught me I had on this jacket then. I got the jacket off the bed in the room at Charley Holloway's [Walter Marshall's?] I never saw that shirt before. As to whether any of us got hurt or cut — this fellow Wooten had a pocketknife and cut Buddy's hand with it. I don't know whether he wiped it off on anything or not . . me and him and Wooten were drinking, all of us were drinking."
L. E. Vaughan, a State Fire Inspector, testified in part that he investigated the burning of the dwelling of Walter Marshall and he procured a warrant and turned it over to the sheriff of the county and went with two deputies to the home of the defendant to arrest him. "He was not at home at that time and people said they didn't know where he was. I left the warrant with the sheriff there and they were never able to apprehend Mr. Potter. That was before any efforts were made to apprehend W. D. Green, the co-indictee. We went to Potter's home at first and were unable to find him, and went to Green's home across the street and he was not at home, and we were riding down the street, and the deputy said, `There is Mr. Green now!' and they arrested Green and put him in the car. At that time Green had on this red jacket and he readily admitted he got it at the fire."
L. C. Bittick, Sheriff of Monroe County, also testified: "As to what effort I made to apprehend Potter since the indictment — tried to find him ever since I got the first news. I sent one wire to Columbus and they mailed it back to me. As to how I apprehended him — the Sheriff of Taylor County caught him. That is what the sheriff told me. As to whether Potter walked in himself to see the sheriff — he did not. Taylor County is over at Butler, Georgia, between here and Columbus. I don't know what highway it is on. I could not tell you that."
There was also evidence introduced which showed that a rifle which belonged to the son of Walter Marshall, the occupant of the house which was burned, and which was identified as being in the house on the night the house was consumed by fire, prior to the time of the fire. This rifle was found in a patch of weeds adjacent to the house in question. The rifle had not been burned or injured by the fire.
A shirt was found in the driveway which led from the house to the highway. This was found on the morning after the night of the fire. It was tendered in evidence by the State. The defendant objected to the introduction of this shirt in evidence "on the ground that it had not been identified."
Hughlon Marshall, son of Walter Marshall, and who lived in the house with his father testified: "As to whether I have ever seen this shirt — I seen one that looked just like it. As to whether I examined it, there may be more than one, but I had one just like it. I got it in Pittsburgh — Levy Strauss — picture of a cow head on it. I didn't have mine on the night the house burned. It was hanging in the clothes room where we keep our clothes where the house burned. . . As to whether I can identify the shirt the solicitor showed me, they made more than one, but I had one just like that. I suppose it is a pretty common kind of shirt."
C. H. Thompson, a neighbor of Walter Marshall, who found the shirt in question the next morning after the fire in Marshall's driveway, testified in part: "It was a white shirt. I have seen this shirt before. The only thing unusual about the shirt was a couple of dog tracks and some other little red splotches, looked like red mud or blood or something." The court, in admitting the shirt in evidence, stated: "I will admit it without comment."
The defendant made the following statement to the jury: "I moved to Monroe County in 1936. Lived a year at McClelland's place, a couple of years at Colonel Fletcher's place, and a couple of years at Russellville. Left Russellville and went to work in Macon. Went to the Army in 1941 the night of the 25th of August and stayed eighteen months and fourteen days and got a medical C. D. D. discharge, thirty percent disability. Came back and went to work in Willingham's Cotton Mill; got a better job at Macon Textile and joined the C. I. O. and lost my job and then went to hauling pulpwood and was not getting regular work, getting one in two weeks out of the month, and finally couldn't get no hauling at all, so left and went to Dothan, Alabama. In May got a crop under the G. I. Bill and entered Government school, and I was going to school, and my sister in Columbus wrote me and told me that the law told her they wanted me. I wrote my sister first and she wrote me and said the law said for me to come to Columbus, they wanted me. I don't know for what. I didn't do nothing. I left there the next day and came on down to Columbus. They told me the law was wanting me, and I didn't know what for, but it was for something I did in Monroe County. They called the sheriff, I went out there where her husband was. I wanted him to bring me down there. He was loading watermelons. He called the sheriff, and two more men came with him, and I give up. I told them I called my sister in Macon. They were there in jail. Mr. Bittick said he would be after me that afternoon. I came on down here, and as far as doing anything like running or anything like that, I haven't done it; and that night [of the fire] me and Mr. Wooten and Green came to Forsyth on Saturday night, came up Route 41 and stopped at Red Mill Park and got eight gallons of gas, and Wooten had half a pint of liquor, and we divided the liquor equally, and Wooten and Green were driving the truck to his [Wooten's] uncle's, and him and his uncle took the truck, said he was going to get some liquor, and they left there and went towards Russellville, and I imagine it was about 10 o'clock and we first picked Wooten up at Payne Cotton Mill. He wanted to come up here. I went in the house and Mr. Marshall had a fire built; him and Wooten had gone after liquor, and I went to sleep in the chair. I don't know whether Green set fire to the house or not. All I know, when I woke up, it was getting hot. That is all I know, got to say." The defendant later returned to the witness stand and made the following additional statement: ". . And as far as running from the law, I haven't done it. I give up to the sheriff and later called the sheriff and I give up to him there at Butler. I told him I heard I was in trouble and came back to see about it. As far as this thing here, I don't know anything about it, no rifle or nothing, the statements made against me. I want my record clean. I want to live with my wife and want a happy home. . . Down at the house we called and they didn't get up, and Wooten came back and called again, and they didn't come out of the house and we stayed there about thirty minutes, and Wooten wanted to fight and I came by this little office where the policeman stays and asked where was Carey Pitts, and we went down to the jail and knocked on the jail. Could not get anybody. Was getting about 2 o'clock in the morning. As far as me setting the house on fire, I didn't do it. I was drunk in a chair in front of the fire. When it got hot I got out and Green was in the yard."
1. "`"A conviction in a case of felony is sustainable upon the testimony of a single witness though an accomplice, when the same is corroborated by other testimony connecting the accused on trial with the perpetration of the crime and tending to show his participation therein" . . But "it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. . . Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. . . The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant's guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said as a matter of law, that the verdict is contrary to the evidence." Hargrove v. State, 125 Ga. 270, 274 ( 54 S.E. 164); Whaley v. State, 177 Ga. 757 ( 171 S.E. 290).' Newman v. State, 63 Ga. App. 417 (2, 3) ( 11 S.E.2d 248). See also Roberts v. State, 55 Ga. 220 (3); Mitchell v. State. 202 Ga. 247, 248 ( 42 S.E.2d 767). ` "The facts relied upon as corroboration may be trifling when viewed by themselves and separately from the entire case; but the jury had the right to consider all the facts and to consider them in their relations one to another, and to determine whether or not, considering the facts and comparing them in their proper setting, under the evidence adduced they tended to connect the defendant with the commission of the crime and were a sufficient corroboration of the evidence of the accomplice to authorize a conviction of the accused under the law." Callaway v. State, 151 Ga. 342, 348 ( 106 S.E. 577).' Blakely v. State, 78 Ga. App. 282, 291 ( 50 S.E.2d 762)." Hamby v. State, 82 Ga. App. 7, 8 (3) ( 60 S.E.2d 635). Applying these rules as to the corroboration of an accomplice to the evidence in the instant case, we think the jury was authorized to find the defendant Potter guilty of arson.
2. In special grounds 1 and 2, objection is made to the exclusion of certain evidence by the trial court. The evidence was properly excluded for the reason stated at the time of its exclusion, that it was hearsay and mere conclusions of the witness without showing any facts to support such conclusions. These grounds are not meritorious.
3. Special ground 3. Under the facts which have been set forth at the beginning of this opinion, the court did not err in admitting the shirt in evidence without comment; furthermore, if the admissibility of evidence is doubtful, the practice is to admit it and leave its weight and effect to the jury. Rushin v. State, 63 Ga. App. 646, 648 ( 11 S.E.2d 844); McClelland v. State, 27 Ga. App. 783, 784 ( 110 S.E. 245); Gilmer v. City of Atlanta, 77 Ga. 688.
4. In special ground 4 error is assigned "because the court erred in failing to grant a mistrial on motion of the movant at the conclusion of the evidence offered by the State. Movant made his motion on the grounds that the court allowed one of the witnesses for the State, one W. D. Green, who was a codefendant but tried separately, to come into the courtroom with prisoner's clothes on and the court permitted the said W. D. Green, witness for the State, to testify in the case of the movant while he had prisoner's clothes on. The presence of the codefendant in the courtroom under such circumstances tended to prejudice the minds of the jury and movant avers that he was not granted a fair trial because of the presence of the said W. D. Green, in the described clothes, prejudiced the jury's mind against this movant." It does not appear from this ground of the motion for a new trial that the clothes worn by the witness Green were so obviously those of a prisoner as to be readily apparent to the jury, nor does it appear that the State made any mention of, or reference to, the witness's attire while he was a witness or otherwise. The only reference made to the witness's clothes was that made by counsel for the defendant himself on cross-examination. Under these circumstances and the allegations of this special ground, this ground is without merit.
The court did not err in overruling the motion for a new trial for any reason assigned.
Judgment affirmed. Gardner and Townsend, JJ., concur.