Brooks v. State

• Decision Date: 05 February 1937
• Docket Number: No. 25138.,25138.
• Citation: 55 Ga.App. 227,189 S.E. 852
• Parties: BROOKS et al. v. STATE.
• Court: Georgia Court of Appeals

55 Ga.App. 227

189 S.E. 852

BROOKS et al.

v.STATE.

No. 25138.

Court of Appeals of Georgia,

Division No. 1.

Feb. 5, 1937.

Syllabus by the Court.

1. The requests to charge on the subject of the necessity of corroborating testimony of an accomplice, where the testimony of an accomplice with corroboration is relied on for conviction, were amply covered by the gener-al charge, and the refusal of the requests to charge on that subject is not ground for reversal.

2. The court did not commit reversible error in excluding the testimony set out in special ground 3 of the amendment to the motion for new trial.

3. "Since all three of the defendants in their joint trial were sworn as witnesses, the exception based upon the failure of the court to give in charge to the jury section 1036 of the Penal Code of 1910 [Code of 1933, 38-415], upon the subject of the right of the defendant to make a statement and as to its weight and effect, is without merit." Cofer v. State, 163 Ga. 878 (4), 137 S.E. 378.

4. There was no evidence that any crime other than the one for which the defendants were on trial had ever been perpetrated or planned in "Graham's Lot." On an indictment for larceny from the person, it was error to allow the solicitor general, over the objection of the defendant's counsel, to state in his argument to the jury: "Graham's Lot Tthe place where the alleged crime was committed and where both defendants lived, according to the evidence] is a cesspool of vice and corruption and a black spot on the face of Bibb County; that nobody knows how many crimes and outrages have been plotted and planned in Graham's Lot and nobody knows how many more will be plotted and planned and carried out if it is not wiped off the face of Bibb County; that this jury can do a real service to the people of Bibb County and to the county itself if they take the first step in wiping it off the face of the map by convicting these defendants."

5. "When improper argument to the jury is made by an attorney for one of the parties, it is necessary, in order to make the same a basis for review, that opposing counsel should make objection to such argument or invoke some ruling or instruction with reference thereto by the court; but it is not essential that a motion for mistrial should be made." Brooks v. State (Ga.Sup.) 188 S.E. 711.

6. "A good statement upon the practice question now under consideration is found in Southern Railway Co. v. Brown, supra [126 Ga. 1, 6, 54 S.E. 911] as follows: 'When improper argument is made by counsel, counsel for the opposite party, in order to make the action of the judge in reference to the same the basis for a review, may object to the argument, and rest simply on the objection; and if the court fails to take any notice of the objection and allows the argument to proceed, this conduct may be reviewed.'" Brooks v. State (Ga.Sup.) 188 S.E. 711.

BROYLES, C. J., dissenting.

Error from Superior Court, Bibb County; W. A. McClellan, Judge.

Adaline Brooks and another were convicted of an offense, and they bring error.

Reversed.

Conforming to opinion of Supreme Court (188 S.E. 711) in answer to certified questions.

Feagin & Feagin, of Macon, for plaintiffs in error.

Chas. H. Garrett, Sol. Gen., of Macon, for the State.

MacINTYRE, Judge.

Special grounds 1 and 2: The court charged the jury as follows: "I further charge you in felony cases, and this charge is a felony, a conviction is not authorized on the uncorroborated testimony of an accomplice, and unless the testimony of an accomplice is corroborated by other competent evidence, which you believe, or by the facts and circumstances developed on the trial, you would not be authorized to convict on such testimony. If you should believe from the evidence that a witness in this case was an accomplice, then before you would be authorized to convict the defendants, or either of them, on the testimony of such witness, the corroborating facts and circumstances must be such as independent of the testimony of such witness would lead to the inference of the defendant's guilt, and the corroborating facts and circumstances must, in some way connect the defendant or defendants, as the case may be, with the criminal act." The charge states correctly and accurately the rule as to the necessity of corroborating evidence with the testimony of an accomplice when corroboration is relied upon. Callaway v. State, 151 Ga. 342, 343, 106 S.E. 577; Knight v. State, 143 Ga. 678, 85 S.E. 915. There was no error in refusing to give the requested instructions, "I charge you, gentlemen, that the testimony of a self-confessed accomplice, that is to say a self-confessed perpetrator of the crime for which the defendants are on trial, is not to be given the same faith andcredit as that given to other witnesses." Nor was there any error in refusing to give the request, "I charge you gentlemen, that a fact cannot be established in a criminal felony case in this State beyond a reasonable doubt by the uncorroborated testimony of a confessed accomplice to the crime with which the defendant is charged." The general charge given sufficiently covered these requests to charge.

Special ground 3: The witness was referring to a separate case against Rome Williams having a pistol in response to the question of defendant's attorney, when the following occurred:

"Q. When they bound him over you stated there he didn't have a pistol? A. No sir, each time I told them he had a pistol.

"Mr. Garrett (the solicitor): I object to that as immaterial and irrelevant.

"Mr. Feagin (defendant's attorney): I am going to prove [that] on the.other trials she swore the man didn't have a pistol and then she turned around and said he did, and I am going to prove for sometime after she was locked up she didn't say anything about the defendant's having anything to do with this robbery, and I want to prove some outside influence got her to implicate the defendants in this case.

"The court: As to the pistol case, I will rule that out. You can prove anything she said about this case.

"Mr. Feagin: I expect to prove this witness in recorder's court on the commitment hearing of Rome Williams testified he did not have a pistol, and subsequent to that time in the city court, after she had been arrested on this charge and had been in jail, that then she was called as a witness for the defendant in the city court and she swore directly and positively opposite of what she swore in Recorder's Court. I offer that to show the motive behind the prosecution, illustrating she has been approached to change her story and try to incriminate these two defendants.

"The Court: You can prove anything she said with reference to this case, but as far as the pistol case is concerned I will have to exclude the evidence as to the pistol."

The defendant contends that such evidence should have been admitted to show animus and motive of the witness. We think the judge was authorized to say that this was going too far afield from the case on trial, and to exclude the evidence.

Special ground 4: The two defendants in this case were being tried on a joint indictment. After the State closed its evidence, counsel for the defendants made the following statement to the court: "I want, if your honor please, to let each of the defendants be sworn as a witness for the other, with the understanding that the sworn testimony of each, as to the case of the other, shall be considered as his statement in his own case." The Court: "Very well, you can do that; or, you can do both. Let them be sworn and make statements." The defendants were sworn, questioned by defendant's counsel, and cross-examined by the solicitor. Movant contended that he desired to do this in the interest of time, to prevent the two defendants from having to go over the whole story in evidence for each other, and then having to repeat it in an unsworn statement for themselves; that the court assented to it; and that relative to the testimony of the defendants thus given, the defendants contended that the judge should have charged on the defendant's statement. The question is: Was his failure thus to charge reversible error? In Cofer v. State, 163 Ga. 878(4), 137 S.E. 378, 379, the court said: "Since all three of the defendants in their joint trial were sworn as witnesses, the exception based upon the failure of the court to give in charge to the jury section 1036 of the Penal Code of 1910, upon the subject of the right of the defendant to make a statement, and as to its weight and effect, is without merit. In the circumstances, it would have been error to instruct the jury upon the subject of the defendant's statement. Staten v. State, 140 Ga. 110, 111, 78 S.E. 766. See, also, Burnsed v. State, 14 Ga.App. [832] 835, 82 S.E. 595; cf. Collins v. State, 153 Ga. 95, 101, 111 S.E. 733; O'Berry v. State, 153 Ga. 880 (7), 113 S.E. 203." By reference to the original record in the Cofer Case, we find that the plaintiff in error excepted to the charge of the court because the court erred in not giving in charge to the jury section 1036 of the Penal Code of 1910, which is section 38-415 of the Code of 1933. The amended motion for new trial in the Cofer Case further shows that "movant, together with four others, were jointly indicted for rape. On the trial, movant, Sib Britt, and Eldridge Wilder, three of these thus jointly indicted, were, by agree-ment on the part of their counsel and the state counsel, Hon. P. Cooley, solicitor-general, tried together under an agreement that each of the three thus being tried were to have the right to be sworn as witnesses for the other defendants on trial but their testimony not to be considered as evidence in their own behalf but only as a statement in their behalf. This agreement was announced to the court and agreed to by him." In the case sub judice the proposal of the defendant was assented to by the court, and no objection being made by the solicitor general, and the solicitor general having...