Opinion
32012.
DECIDED JULY 16, 1948. REHEARING DENIED JULY 29, 1948.
Burglary; from Fulton Superior Court — Judge Hooper. February 13, 1948. (Application to Supreme Court for certiorari.)
James R. Venable, Frank A. Bowers, Jackson L. Barwick, H. C. Morgan, for plaintiff in error.
Paul Webb, Solicitor-General, William Hall, contra.
1. The evidence sustains the verdict under the general grounds.
2. It is elementary that self-serving declarations in a criminal case, made by the defendant, are generally inadmissible. There is nothing in the record to bring the assignment of error here within an exception to the general rule.
3. The definition of burglary was sufficiently specific.
4. An accessory before the fact is one who, though absent when the crime is committed, procures, counsels or commands another to commit it. An accessory after the fact is one who, after full knowledge that a crime has been committed, conceals it, and harbors, assists or protects the criminal who is charged with the commission of the crime or who has been convicted of the crime. There can be no conspiracies under our law between the perpetrators of a major offense and an accessory after the fact. There may be a conspiracy between accessories before the fact and between such an accessory before the fact and principals in the first or the second degree, or both.
5. Special ground 7 is without merit for the reasons assigned in the opinion.
6. A reasonable doubt in a criminal case can legitimately arise only from the evidence or the lack of evidence under consideration and in connection therewith, the defendant's statement.
7. Special grounds 10 and 11 are without merit.
DECIDED JULY 16, 1948. REHEARING DENIED JULY 29, 1948.
J. L., alias Mickey, Schmid, was indicted jointly with Chester Turner and Grady Boatright, for burglarizing the place of business of R. M. Vandergriff trading under the name of Superior Laundry. The defendant was tried separately. He was convicted. He filed his motion for a new trial, which he amended afterwards. His motion was overruled. On that judgment he assigns error here.
The jury were authorized from the evidence on behalf of the State, to find that the laundry was burglarized. Grady Boatright was introduced by the State. He testified that he, the defendant, and Chester Turner and one other person whom he did not know, planned to burglarize the laundry and that they did break and enter from the back entrance by prizing off and breaking the lock and that the four of them did enter, and that after having thus entered the building they proceeded to the safe, where the defendant began hammering on the lock of the safe; that the witness was keeping watch for them inside the building; that while in the act of battering the safe, "hollering" and shooting began in and around the safe where the four of them were; that all of them fled; that the defendant after having left the building and within about forty minutes, removed from his person a dark shirt and that witness discovered blood on the shirt of the defendant; that witness was with the defendant when they went out to blow the safe and that he did not see any blood on the shirt of the defendant then; that the shooting was done by other persons than the four who went out to burglarize the laundry; that the defendant and his companions did none of the shooting. After the four of them had entered the building the witness turned the sledge hammer over to the defendant, who asked him for it. The witness rode to the laundry with the defendant in a two-door gray-colored Buick sedan which belonged to the defendant. The witness testified further that shortly after the burglary he went to South Carolina with Chester Turner; that the newspaper carried an article of the burglary and identified the witness as being one of the criminals. The witness felt that it would be better for him to surrender; that he called the officers and surrendered; that he was then brought back to Atlanta and that he went with the officers to the laundry which had been burglarized and showed them concerning the burglary. The witness further testified that he had not been tried; that he had not pleaded guilty and that no leniency had been promised him by anyone. The witness testified that he surrendered after having a conversation with Chester Turner; that his confederate, Chester Turner, said things looked dark; thereupon the witness went to Columbia, South Carolina and surrendered to the officers there; that before doing so he telephoned his father at the Farmers' Market in Atlanta that he intended to surrender.
Officer Cox, a detective of the City of Atlanta, testified that he knew Grady Boatright; that he also knew the defendant; that as a member of the police force he, with M. D. Moss, Mr. Anderson and Mr. Smith, all detectives, went to the Superior Laundry and entered the same about 9 o'clock at night; that they placed themselves at different positions, somewhat close together; that they remained there until after midnight. While there they heard a Ford automobile drive up in front of the place; the automobile had a "gutted" muffler; witness saw the defendant after the defendant was arrested, between the time the laundry was entered and daylight, the same night of the burglary. Four men entered the building where the officers were. The parties who entered the building prized the hasp off the back door. The witness then heard a blow hit the dial and heard the dial hit the floor. There was a big commotion around the safe when the dial was hit. From tubes, gas from the safe came out. The officers had done nothing to the safe before the burglars entered. The officers began shooting. There had been a lot of safes hauled off in Atlanta and the officers had been waiting to see what happened. Witness had been a member of the police department six years and during that time had occasion to observe gunshot wounds; that in the opinion of the witness there was a wound in the back of the defendant made from a gunshot. The witness testified that after the burglary the officers went out to see if they could locate the car which they heard drive up to the laundry building before the burglary. They saw a `46 gun metal, two-door Buick, a gray car, which took off in a hurry. The officers began an immediate search for Chester Turner and the defendant, both of whom were recognized by officers hidden in the laundry building. They went to the defendant's night club on highway 42. It was closed. They found at the defendant's place a `46 gun metal Buick two-door coach. It looked like the same car which the officers saw leave the laundry. The defendant was at his house and the officers finally got him to the door after they had called the officers of Clayton County. They examined the defendant to see if he had any wounds on him. They found his pajamas bloody at the back. They made a search around the defendant's place. The officers found a pair of trousers beside where the defendant was lying at his house. The trousers were real black and had a lot of small holes in the right leg, near the bottom. Other than this, they were not unusual. In the opinion of the witness the holes were made with bullets. They were the same as other bullet holes witness had seen in other clothes. They were not jagged, ripped, or split — absolutely round. A shirt was found beside the bed about where the trousers were lying. The officers found a handkerchief folded. It had the appearance of having been worn by someone in a certain position. The shirt found was solid black, apparently dyed. It had a hole in the center of the back corresponding to the wound in the back of the defendant. The witness had seen the same car which he saw at the defendant's place, previously. In searching the premises around the defendant's place, the officers saw within about twenty feet of the back door of the defendant's place, dynamite wrappers which had been burned down. They found rubber gloves. They carried the defendant to the hospital after he was arrested, because of the wound in his back. Within about fifteen or twenty feet of the rear door of the defendant's place the officers found a glass jar. Photographs were made of the articles above mentioned and the witness identified the photographs as being correct reproductions of what the officers had found. The dynamite which the officers found was across the road, a public highway. The witness was in charge of the other officers detailed on the occasion and placed them in their respective positions. The witness was just beyond the office and could have hit the defendant with a shotgun barrel. All the officers did not have shotguns. No shotguns were fired. Some of the officers had shotguns. When the defendant was arrested and after he removed his pajamas the officers looked over his back where the blood was, and pulled away a little plaster to see what it looked like.
Dr. F. D. Stanford testified that he was a practicing physician and surgeon and was on the surgical staff at Grady Hospital; that in that capacity he saw the defendant at the emergency clinic and examined him; that the defendant had a small wound in his back, to the right of the middle line of the middle first lumbar vertebra. The witness made a careful examination of the wound and testified that it could have been made by a bullet and that in the opinion of the witness it was made by a bullet. On cross-examination the witness testified that he did not believe that the wound could have been made by a nail; that the witness had experience in probing for pistol bullets; that a 38 caliber pistol shot at the defendant from a distance of eight to ten feet which might hit in the spinal column would not necessarily knock the defendant down; such shot would not necessarily go into the flesh; that witness did not probe for bullets because there was no penetrating hole in the deep tissue. The wound was cleaned and dressed. Bullet wounds cause coagulation of the blood vessels caused by heat, and one may see particles of scorched charred tissue around the area. This appeared on the defendant.
Another witness who was one of the concealed officers and a member of the burglary squad, in the laundry building, testified that he had known the defendant approximately two years; that on the night the laundry was burglarized he saw and recognized the defendant as one of the burglars who entered the building. He described the manner of entering the laundry building as did Officer Cox. The witness recognized the defendant as one of the burglars. The defendant had on dark clothes and a handkerchief over his face. (Here witness indicates). After the defendant came in the building he pulled the handkerchief down around his mouth. The witness got a clear view of the defendant. The defendant had nothing in his hand when he entered the building but one of his companions handed a hammer to him. The witness heard the licks on the combination to the safe and heard the combination when it hit the floor. When the metal hit the floor, one of the burglars cursed and the four of them went out the back door together. The witness had been working with a safe-blowing squad about six years and he had seen yeggmen blow safes. The witness then described the method used by yeggmen in blowing safes — they first go in with a heavy hammer, knock off the combination, take an eye dropper, put nitroglycerine on a cap on the end of a fuse, pack cotton around the cap and the fuse, and usually cover with material, like rugs, or sacks, to muffle the noise. The witness inspected the back yard around the laundry building and found a small bottle of nitroglycerine, a piece of orange-colored fuse with a cap crimped on the end. These articles were located just a few minutes after the defendant ran out the back door. The officers were looking for burglary equipment. The witness recognized the defendant just after the defendant came in the back door. When the defendant and his companion came nearer, their feet and legs only were visible to some of the officers. The witness went to Smith's place on highway 42. The dynamite which the officers found near the defendant's place was across the road which was about forty feet wide. There was an undergrowth where the dynamite was found. The witness followed a path to where the dynamite was found. The witness described where the dynamite was found with reference to the defendant's place. The witness also testified as to finding the dynamite papers. The witness and others picked up a lot of paper which had the same odor and color. It had grease on it. It was dynamite paper. It had the odor of dynamite. It had the same reading as was found on the dynamite sticks which were found there. The rubber gloves were found in the kitchen. The witness further testified that he knew the process which is used for making nitroglycerine out of dynamite. The dynamite is crumbled in water. When this is done the nitroglycerine will come to the top when it is boiled. The liquid is skimmed from the top and put in bottles. About twenty feet from the defendant's house there was found a rag, jar, and bucket in the grass. The rag smelled like dynamite. There were also found near the defendant's house a jar and another vessel which contained "old dynamite crumbled up." Both the vessels thus found had crumbled up dynamite in them.
Officer Smith, witness for the State, testified that he was concealed in the laundry at the time of the burglary; that he had known the defendant for about four years prior to the burglary; that he saw the defendant on the night the Superior Laundry was burglarized when the defendant entered the rear door with another man, the latter unknown to the officer but whom the officer has since learned to be Grady Boatright. He described the manner in which the defendant was dressed, corroborating the other officers on this point. The witness further testified that he saw the defendant knock the dial off the safe, which released the tear gas. One of the burglars cursed, the officers fired, and the burglars disappeared out the back door. This witness testified as to the finding of the bucket, the jar and towel near the defendant's place of business and the finding of the dynamite across the road, and the finding of the rubber gloves. He further testified as to paraphernalia which was found at the defendant's place after the burglary and that nitroglycerine could be made from it. The witness further testified concerning the folded handkerchief with the imprint of a mouth on it which was found in the defendant's house.
The defendant in his statement and by witnesses introduced evidence in support of his defense of alibi. He contended that the wound on his back was received from a nail when repairing a house near his place of business. He also introduced Dr. Herman Jones, Director of the Fulton County Scientific Crime Laboratory. Officer Cox turned the shirt over to Dr. Jones for the purpose of determining whether or not a bullet had passed through the shirt. In the opinion of Dr. Jones, a bullet had not passed through it. He gave the same testimony with reference to the holes in the trousers. The witness gave his reasons for so testifying. He did not examine the wound in the man. The witness testified that the only physical effect on which he based his opinion in regard to the holes in the clothing was the direction in which the fiber protruded. Witness further testified that one could tell whether a wound in human flesh is a bullet wound with more correctness and definiteness than whether a hole in clothing is made by a bullet.
In rebuttal, the officers testified that when they reached the defendant's place of business after the burglary, the gun-metal Buick car which they found at the defendant's place was hot, or warm.
1. As will be readily seen, the evidence so far as the general grounds are concerned supports the verdict.
2. Special ground 4 assigns error to the effect that the court erred in refusing to allow counsel for the defendant to cross-examine a State's witness as to what the defendant said caused the wound in his back, some hours after the burglary, in a conversation which the defendant had with an officer (at the time testifying as a witness for the State), at the defendant's home. The contention of the State was that the wound was caused by a bullet which struck the defendant while he was in the laundry in the act or shortly after the act of blowing the safe — the shot having been fired by some one of the officers. The defendant sought to put in evidence a statement of the defendant at his home that the wound in his back was caused by a nail scratch. The statement sought to be introduced in evidence was clearly self-serving and could not legally be introduced under the guise of refreshing the memory of the witness. The only objection urged at the trial by the defendant and contained in this special ground of the amended motion as to the admissibility of this testimony was that it was propounded for the purpose of refreshing the memory of the witness as to what was said between the officers and the defendant after they arrived at the defendant's place. This being the only objection urged at the time the question was propounded, other reasons why it was proper to admit the evidence, urged by able counsel representing the defendant in their brief and argument, are beside the point and we will not discuss this assignment of error in further detail.
3. In special ground 5 error is assigned on the following charge of the court: "I charge you, gentlemen, that burglary is the breaking and entering into the dwelling, mansion, or storehouse, or other place of business of another, where valuable goods, wares, produce or any other articles of value are contained or stored, with intent to commit a felony or larceny." It is urged as error that the court should have gone, without a written request, into more detail as to the elements of burglary, for it is contended that the jury was left without the definition of burglary. In considering the whole charge, we find that the court instructed the jury correctly that the indictment alleged "in Fulton County, Georgia, on May 22, 1947 [along with other parties] did break and enter the storehouse and place of business of R. M. Vandergriff, operating under the trade name of Superior Laundry, where valuable goods were contained, with intent to steal." Again the court charged the jury "now, gentlemen, if after considering this case you should believe beyond a reasonable doubt that the defendant on trial either by himself or along with other parties named in this indictment, did in Fulton County, Georgia . . on May 22, 1947, break and enter the storehouse and place of business of R. M. Vandergriff, operating under the trade name of Superior Laundry, where valuable goods were contained, with intent to steal, you would be authorized to find the defendant guilty." It is difficult for us to conceive just what more specific detail as to the offense of burglary could be desired or requested under the law and the evidence in this case. Daniel v. State, 48 Ga. App. 789 (3) ( 173 S.E. 485). It must be kept in mind in this case that there was no issue as to whether or not the laundry building was burglarized. That question is clearly established beyond dispute. The only issue presented to the jury was whether the defendant was one of the four who burglarized it. His defense was one of mistaken identity and alibi. In this view borne out by the record, this ground is without merit, and we see no benefit to be derived from multiplying words in further discussing the question. This ground is without merit.
4. Special grounds 6 and 9 are argued together by counsel for the defendant. The excerpt on which error is assigned in special ground 6 is as follows: "Now, gentlemen, you will notice here that the defendant is on trial with two other men. The State contends that they are accomplices, that they are accessories in regard to the charge."
Special ground 9 assigns error on the following charge of the court: "Now, gentlemen, you will notice here that the defendant is on trial with two other men. The State contends that they are accomplices, that they are accessories in regard to the charge. Where two or more men plan to commit a crime they are accomplices or accessories in regard to its commission, if such crime is committed. If there is a conspiracy between them to commit the crime and they do commit it together, they are accessories. A conspiracy is a unlawful agreement between two or more persons to do an unlawful act. If the defendant on trial, along with Chester Turner and Grady Boatright, or either of them, did plan and conspire to commit this crime, then, gentlemen, the acts of one during the pendency of the criminal enterprise, if there were such, would be the acts of the other, and each would be criminally responsible and liable for the acts of the other during the pendency, that is, during the commission of the crime but not after such criminal enterprise, if there were such, had not been completed." It will readily be seen that both of these excerpts from the charge are inaccurate both as to the facts and as to the statement of abstract principles of law. The excerpt in special ground 6 is inaccurate as a question of fact because while the defendant was jointly indicted with two other parties, they were not being tried together. This inaccurate statement surely did not influence the jury to the prejudice of the defendant. The jurors are intelligent human beings. Certainly they could see that the defendant was the only one being tried. We are quite sure that they recognize this fact, regardless of what the trial judge said about it. As to the last sentence in the excerpt set out in this ground, we will deal with that in discussing special ground 9. The use of the word "accessories" was inaccurate and not germane to any issue in the case either as a matter of fact or law. There was no evidence that the defendant was an accessory either before or after the fact. "An accessory before the fact is one who, though absent when the crime is committed, procures, counsels, or commands another to commit same." Code § 26-602. "An accessory after the fact is a person who, after full knowledge that a crime has been committed, conceals it, and harbors, assists, or protects the person charged with or convicted of the crime." Code, § 26-604. In no sense can an accessory after the fact be an accomplice in the major crime. Ivey v. State, 186 Ga. 216 ( 197 S.E. 322). An accessory before the fact may or may not be an accomplice in the major crime, depending on the facts of the transaction. If he is absent when the major crime is committed but counsels and procures the same to be committed, he is, under our law, an accessory before the fact. If he is present when the crime is committed and is the actual perpetrator of the crime, he is a principal in the first degree. If he is constructively present, keeping watch at some convenient distance and not the perpetrator, he is a principal in the second degree. One may be an accomplice and a coconspirator with another either as an accessory before the fact or a principal in the first or second degree. These principles are elementary. The evidence in this record does not show as a matter of fact that the defendant was either an accessory before the fact or a principal in the second degree. All the evidence for the State shows indisputably that if the identity of the defendant was correct, as the State's evidence shows, the defendant was a principal in the first degree and that he was an accomplice of his three companions, two of whom were indicted with him. It will thus be seen from the record that the inaccuracies pointed out in these excerpts are well taken, but the question is whether under the record, these errors were harmful to the defendant and thus require a reversal. After a careful consideration, we have reached the conclusion that they do not require a reversal, under the peculiar facts of this case. If the identity of the defendant was established by the evidence, and we think it was for the reason that this was a question of fact for the jury, which question was determined by the jury adversely to the defendant, then the inaccuracies in the charge lose any harmful effect so far as the defendant is concerned. The State did not contend anywhere, or place in the evidence, that the defendant was an accessory before the fact or an accessory after the fact or that he was even a principal in the second degree. And there is no evidence at all that reveals such a view. The State did contend, and we think did successfully prove, that the defendant was an accomplice with the jointly indicted defendants Boatright and two others. Not only were the defendant and Boatright and the other two accomplices, but they were coconspirators. We think the charge as set out in these grounds on the principle of conspirators, though not very full, was correct and essentially full, in the absence of a written request, to withstand the criticism short of a reversal. Counsel for the defendant set forth a fuller charge on the question of accomplices and conspirators than the court gave. But if such fuller charge on the subject was desired, a written request therefor should have been made, for these reasons. These grounds show no cause for reversal.
5. In special ground 7 error is assigned on the following excerpt: "In felony cases, the testimony of an accomplice is not sufficient to sustain a conviction unless such testimony is corroborated by other competent evidence which you do believe are, by the facts and circumstances, developed by the trial." Error is assigned on this excerpt because the court failed to state that such other competent evidence must be other corroborating evidence and facts and circumstances developed, which, independently of the testimony of the accomplice, directly connect the defendant with the crime or lead to an inference that the defendant is guilty. In looking to the charge as a whole, we find that this point was substantially and correctly covered because in the same connection the court charged: "One who is present at the commission of a crime, aiding and abetting at the commission thereof, or who participated therein, is an accomplice, but before you would be authorized to find the defendant guilty on the testimony of an accomplice alone, the testimony of such other accomplice must be corroborated by some independent fact or circumstance, which, taken of itself, leads to an inference of guilt, not only that the crime charged was committed, but that the defendant was implicated in its commission and connected with its perpetration."
6. In special ground 8 the defendant assigns error on the following excerpt from the charge: "If after considering the evidence of the witnesses, the statement of the defendant, the argument of counsel, and the instructions of the court, there should be in your minds and conscience a reasonable doubt as to the guilt of the accused, it would be your duty to give him the benefit of such doubt and find him not guilty." This excerpt as worded does not correctly state the law applicable to reasonable doubt. The jury in criminal cases are sworn to return a verdict according to the evidence. A reasonable doubt can lawfully arise only from the evidence or from the lack of evidence. Although with reference to a reasonable doubt it is not reversible error for the trial court to fail to state that they may consider the defendant's statement, it is not error to mention the defendant's statement in connection with reasonable doubt. O'Dell v. State, 120 Ga. 152 ( 47 S.E. 577). As to argument of counsel and the instructions of the court, of course they have their proper place. But to instruct the jury in effect that the argument of counsel or the opinion of counsel which is entertained from the evidence, should not be charged in such a way that the jury might be confused as to from what source the original doubt came. It should be made plain that this doubt should originate only from the jury's considering the evidence or the lack thereof. McRae v. State, 52 Ga. 290; Smith v. State, 95 Ga. 472 ( 20 S.E. 291); Mann v. State, 124 Ga. 760 ( 53 S.E. 324, 4 L.R.A. (N.S.) 934); Brannon v. State, 140 Ga. 787 (5) ( 8 S.E. 7). In Long v. State, 38 Ga. 490, 509, the court said: "Doubts must be doubts pertinent to the matter in issue arising out of the evidence, or want of evidence, and not from any cause." See also Malone v. State, 49 Ga. 210 (8). It is conceded by counsel for the State that the excerpt in this ground is inaptly worded. We think it is. But the question presented for determination is whether, under the facts of this case, it requires a reversal. We have concluded that it does not: (a) Elsewhere in the charge and prior to the excerpt complained of, the court charged the jury, and we think properly, that a reasonable doubt is one that arises in the minds of the jurors "from the evidence in the case, the want of evidence, any conflicts in the evidence, or from the defendant's statement." We do not think that the language of the excerpt is in such conflict with the correct charge just above quoted as to require a reversal; and (b) as we have heretofore referred, the only defense urged by the defendant was the defense of mistaken identity based on an alibi. The law does not require that alibi as a defense be proved beyond a reasonable doubt, but only by a preponderance of the evidence to the reasonable satisfaction of the jury. There is no error assigned upon the charge as it applies to the defense of alibi. For these reasons the assignments of error in this ground do not require a reversal.
7. The assignment of error in special ground 10 is that the court failed to give to the jury the form of the verdict in the event of acquittal. This assignment is without merit. The court gave such form.
8. Special ground 11 is but an enlargement of special ground 5, and is without merit.
The court did not err in overruling the amended motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.