Allen v. The State Of Ga.

• Decision Date: 28 February 1885
• Citation: 74 Ga. 769
• Parties: Allen. vs. The State of Georgia.
• Court: Georgia Supreme Court

74 Ga. 769

Allen. vs. The State of Georgia.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1885.

Criminal Law. Accomplice. Practice in Superior Court. Courts. Before Judge Lawson. Jones Superior Court. April Adjourned Term, 1884.

To the report contained in the decision, it is only necessary to add, in explanation of the first division thereof, the following: Allen was indicted for arson in setting fire to the house of one Smith. One Willis Glawson, a witness for the state, testified, in brief, as follows: Witness lived about a mile from Smith's; lived with him about three years previously, but had a misunderstanding with him. Went to church with defendant on the night of the fire. On the way defendant said "he had something against a d—d son of a b—ch, he wanted to get it out of him, if he had to burn it out on Monday morning before day;" but he called no names. He told witness to come to his house after leaving church; that he hadsomething for him (witness). Witness did not ask or know what was wanted. Witness spent sometime after church with a party of people, and after stopping at his mother\'s house awhile, reached defendant\'s before day. They went up the road together. When about half way to Smith\'s, defendant told witness to wait until he could go to Smith\'s and get his banjo; he went towards the lot, in doing which he had to go round the kitchen. He was gone about a quarter of an hour or longer. He returned without any banjo, but said he "had fixed the d—d son of a b—ch." Witness asked him if he had fired the house. He said, " Never mind, " and went towards his home.

The court charged on this subject as follows: " To determine the truth of the evidence, it is necessary for you to know the value which the law attaches to the testimony of certain witnesses. You are not authorized to convict the defendant upon the testimony of an accomplice, unless the testimony of the accomplice is corroborated by other testimony or facts in the case pointing directly to the guilt of the defendant and connecting him with the crime (so) as to satisfy your minds that his testimony is true. Defendant's counsel say that if Willis Glawson knows anything of the crime, he, deriving his knowledge from his participation, is an accomplice. Is this true? One may be an accomplice either as a principal or as accessory (the court read sections 4305, 4307 and 4309 of the Code); one may have knowledge of a crime to be committed and be present at its commission, without being an accomplice; he may be present as a spectator or for the purpose of detecting the perpetrator or other innocent purposes. To be an accomplice, he must have co-operated in the commission of the crime; as accessory before the fact, he must procure or counsel its commission; and as accessory after the fact, he must harbor, assist or protect the principal offender; and as principal in the second degree, he must aid and abet its commission. To constitute crime, there must be something more than passive presence and knowl-edge that a violation of law was intended. Determine, under this rule, if Glawson was or not an accomplice with defendant; and if he was, his testimony must be corroborated by other testimony, or you cannot convict; if he was not an accomplice, you can convict upon his testimony alone, if it satisfies your minds of the guilt of the defendant to the exclusion of every reasonable hypothesis of his innocence."

After conviction, defendant moved for a new trial, which was refused, and he excepted

Billups & Hardeman; R. V. Hardeman, by Harrison & Peeples, for plaintiff in error.

Robert Whitfield, solicitor general, by J. H. Lumpkin, for the state.

Hall, Justice.

Two questions are made and mainly insisted on in this case. It is alleged that the defendant was convicted at a term of the court held contrary to law, and that the judge erred in his charge in reference to the extent to which it was essential to corroborate the evidence of an accomplice, in order to authorize a conviction. We will consider the last ground first.

1. It does not appear that the witness was present at the commission of the crime, aiding and abetting it, or that he procured, counseled or commanded it, or after full knowledge of its commission concealed it from the magistrate, and harbored, assisted or protected the perpetrator thereof; so that he was not a principal in the first or second degree, or an accessory either before or after the fact. Code, §§4305, 4307, 4308. In Lowery's case, 72 Ga., 649, we held that the testimony of a witness, who was present when a homicide was committed, but who did...