Opinion
31297.
DECIDED JUNE 27, 1946.
Robbery; from Candler Superior Court — Judge Humphrey. March 16, 1946.
Hugh R. Kimbrough, for plaintiff in error.
W. H. Lanier, Solicitor-General, contra.
1. The evidence sustains the view that the defendant conspired with three others to commit the robbery charged, and that he was constructively present at a convenient distance, aiding and abetting in the commission thereof.
2. Unless an issue in the trial of a case depends wholly upon circumstantial evidence, it is not reversible error for the trial judge to fail to charge the law applicable to circumstantial evidence.
3. Proof of the corpus delicti by aliunde evidence and a plenary confession on the part of the defendant are sufficient to sustain a conviction, without further corroboration. In such a situation it is not error for the trial judge to fail to charge that the confession must be corroborated.
DECIDED JUNE 27, 1946.
The defendant was jointly indicted with Robert Livingston, C. V. Bonnet, and Burton G. Estes for robbery by intimidation. Upon the call of the case the other three codefendants pleaded guilty, and Herman Wilson pleaded not guilty. The defendant was convicted. He filed his amended motion for a new trial, which was overruled, and on this judgment he assigns error. The material evidence for the State shows: That the father of the defendant lived a few miles from the scene of the robbery. At the time of the robbery the defendant was stopping with his sister, who lived in Savannah. It was there that he became acquainted with the other three codefendants, one of whom owned an automobile. The defendant, several days before the robbery, procured the other three to transport him to the home of the defendant's father, ostensibly for the purpose of procuring certain papers which the defendant desired. Upon arriving at the father's home, the other three defendants took up their abode in an outhouse on the father's farm, and during their stay slept on a pile of cotton seed, while the defendant stayed at his father's home. It appears that the four of them, during the few days before the robbery, "took in" the adjoining country immediately around, both night and day, and were observed by people of the community, some of whom testified as to their conduct, and one policeman of a nearby town particularly observed them and testified that the conduct of the four indicted for the robbery aroused his suspicions because of their behavior and appearance. It appears that the four were drinking during their stay in the community, before the robbery. There was in the community, not far distant from the home of the defendant's father, a mercantile store by the side of the road, owned and operated by a Mr. L. A. Brown and his wife. On the night of the robbery when the usual suppertime arrived for Mr. Brown and his wife, there were in the store several of the neighbors and customers, among them Claude Turner, the alleged victim. Mr. Brown requested the parties in the store to look after it while he and his wife went to supper. It was then dark, somewhere around 8 o'clock p. m., on December 5, 1945. Shortly after Mr. Brown left the store, two masked men entered the store demanding that the occupants "hands up," and after making certain preliminary examinations as to weapons of the occupants of the store, ordered all the occupants to put all the cash they had on the counter. Claude Turner put $7 on the counter. The two masked men procured this $7 and also about $40 in cash belonging to Mr. Brown, which they found in an improvised box made for the purpose of keeping the cash. Thereafter, the bandits ordered the occupants of the store to march out of the store, still keeping their hands up, and threatening to kill them. One of the masked men during the procedure, had a 22-calibre rifle in shooting position. As the highwaymen marched the occupants of the store around back of and away from it, Mr. Brown, who had finished his supper and was returning to the store, saw the men being marched away from the store by the bandits, and rushed back to the dwelling for the purpose of obtaining his pistol. In the meantime and before he returned, the two masked men had disappeared on a public road which passed by the store. Mr. Brown had his car near the premises and got in it for the purpose of pursuing the outlaws, but two of the tires on his car had been deflated. The masked men escaped unidentified. Patrolmen and other officers took up the investigation. They learned of the four defendants having been in the community, and during the course of their investigation visited the home of the father of the defendant and found and took possession of a 22-calibre rifle, which it was learned that the defendants had borrowed and had used during their stay in the community, ostensibly for the purpose of shooting squirrels. The officers ascertained that, between the time of the robbery and midnight of the same evening, the four defendants had returned to the home of the father of the defendant and had left the 22-rifle with him and procured their other belongings; that the defendant had procured his from the home of his father, and the others from the cotton-seed house; and that all had left for Savannah. The investigating officers, having been informed as to where the defendant in the instant case was living in Savannah, procured the arrest of the four of them and had the car seized. Two railroad lanterns, two gasoline containers, automobile tools, one 22-calibre pistol, and a portion of a hack-saw, together with rubber siphoning tools were found in the car. The defendant after his arrest, and freely and voluntarily, made a plenary confession of the robbery to one of the local officers. In this confession he stated to the officer that "his part in the robbery was to stay in the car." It further developed from the evidence that, while the defendant stayed in the car, another of the defendants was to deflate the tires on Mr. Brown's car and two of them were to do the hold-up. It appears from the record that the defendant also made a statement to a newspapers reporter in Savannah. He stated practically the same thing to the newspaper reporter that he did to the officer to whom he made the confession, with one exception, which was that he was drunk in the car and remained in it without having any knowledge of the conspiracy on the part of the other three to commit the robbery. One of the defendants, who pleaded guilty and who was introduced as a witness for the defendant, corroborated the defendant in this particular. The jury returned a verdict of guilty against the defendant. He filed his motion for a new trial on the general grounds and afterwards added two special grounds by amendment. These special grounds assign error: (a) because the court failed to charge the law of circumstantial evidence; and (b) because the court failed to instruct the jury on the law of confessions. It appears from the record that no requests for such instructions were made.
1. So far as the general grounds are concerned, the evidence is sufficient to show that the defendant conspired with the other three to commit the robbery, and that he was constructively present, aiding and abetting in the crime.
2. As to the first special ground, the evidence, from no view of the case, is wholly dependent upon circumstantial evidence. It is never error to fail to charge the law of circumstantial evidence, unless the question at issue depends wholly upon such evidence. We lay down this general principle of law without any discussion and without any citation of authority other than Adsmond v. State, 47 Ga. App. 444 (4) ( 170 S.E. 525), in which this court held that, where a confession directly admits commission of a crime, such confession is direct evidence. We do this because we have somewhat at length set out the evidence, and from our view it needs no analysis to convince any one that our general statement is correct.
3. In special ground 2, able counsel for the defendant earnestly argues that the verdict should be reversed, because the court failed to charge the law relating to confessions, and the weight which the jury should give to a confession in considering the case. This argument is based largely on the last sentence of the Code, § 38-420: "A confession alone, uncorroborated by any other evidence, shall not justify a conviction." The appellate courts have many times held that proof of the corpus delicti by aliunde evidence is sufficient corroboration of a confession. Without here again calling attention to the many decisions in support of this statement, we deem it sufficient for those who are interested in any further pursuit of the question, to refer to the annotations of the Code, § 38-420, under the catchwords "Corpus delicti," p. 412, and "Corroboration," pp. 413-415. We further find on this question, in the annotations of the Code, § 38-401, under the catchword "Charge," that it is the general law that a failure to charge on a confession, in the absence of a request, is no cause for a new trial. The defendant invokes in support of his contention and as an exception to the general rule the decision in Lucas v. State, 110 Ga. 756 (4) ( 36 S.E. 87). The facts and the opinion there differentiate that case from the one at bar; one outstanding distinction being that the court undertook voluntarily to charge on the law of confessions, and failed to include in such charge an essential portion, that such confession must be corroborated. The court went further to state that, in view of this omission, since the corroborating testimony was interspersed with doubt, the court should have given fully the law as to confessions. Such is not the situation here. When we analyze the record in this case we find: (a) that the corpus delicti was proved without contradiction by evidence aliunde the confession; (b) there was a plenary confession on the part of the defendant; and (c) there was evidence largely direct, and not wholly dependent upon circumstantial evidence, sufficient to sustain the conviction of the defendant, outside of the confession. Each of these views is supported by the evidence, which we have set forth. It follows that, from any point of view, no reversible error is assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.