Cantrell v. State

• Decision Date: 10 December 1913
• Citation: 80 S.E. 649,141 Ga. 98
• Parties: CANTRELL v. STATE.
• Court: Georgia Supreme Court

80 S.E. 649

141 Ga. 98

CANTRELL v. STATE.

Supreme Court of Georgia

December 10, 1913

Syllabus by the Court.

Under the facts and circumstances of this case--it being the trial of one charged as accessory before the fact to the crime of murder--it was not cause for a new trial that the court failed, in the absence of a request, to instruct the jury "that the conviction of one charged with a crime, or a plea of guilty of one jointly charged with an offense [raises] no presumption of the guilt of the other one so jointly charged"--the court having instructed the jury to the effect that, before they would be authorized to convict the defendant on trial as accessory before the fact the state would have to prove the guilt of the person charged as principal to their satisfaction beyond a reasonable doubt explaining such a doubt, and also the guilt of the defendant on trial as such accessory, to the same degree of certainty. The plea of guilty of one jointly indicted as principal did not raise a presumption of the guilt of the defendant on trial as accessory before the fact, but it was competent evidence to prove the fact that such plea had been entered as tending to show the guilt of the one charged as principal the proof of his guilt being a condition precedent to the finding of the defendant on trial guilty as such accessory; and such plea having been put in evidence by the state without objection, if the accused on trial desired the court to instruct the jury to limit their consideration of the plea to the purposes for which it was admissible, a proper and timely request for such instruction should have been presented to the court.

In the absence of a special request so to do, the court is not bound to charge the provisions of the Penal Code 1910, § 1031, that: "All admissions should be scanned with care, and confessions of guilt should be received with great caution." Lindsey v. State, 138 Ga. 818 (6), 76 S.E. 369, and cases cited.

The court correctly instructed the jury as to the necessity for corroboration of the testimony of an accomplice before his testimony would be sufficient to authorize a conviction, and it was not cause for a new trial that the court failed, in the absence of a request, to charge that: "It is not sufficient that the accomplice is corroborated as to the facts and circumstances of the corpus delicti, when those facts and circumstances do not go to show any connection of the defendant with the commission of the crime; the accomplice's testimony in a felony case must be corroborated by some independent fact or circumstance, which taken by itself leads to the inference, not only that the crime has been committed, but that the defendant is connected with its commission." Moreover, as the state did not rely solely on the evidence of the alleged accomplice to connect the accused with the offense, it was not incumbent upon the court, without request, to instruct the jury touching corroboration. Robinson v. State, 84 Ga. 674 (1), 11 S.E. 544.

The testimony as to alleged confessions being prima facie admissible, the court did not err in leaving it to the jury to determine whether or not such confessions were freely and voluntarily made. Irby v. State, 95 Ga. 467, 20 S.E. 218; Adams v. State, 129 Ga. 248-251, 58 S.E. 822, 17 L.R.A. (N. S.) 468, 12 Ann.Cas. 158. See, also, Lindsay v. State, 138 Ga. 818 (5), 76 S.E. 369.

The court gave in charge to the jury Penal Code 1910, § 1017, as to the number of witnesses generally sufficient to establish a fact, and the stated exceptions to the rule, and in immediate connection gave the following instruction: "The testimony of an accomplice in a case is not sufficient of itself to convict a party charged with a commission of a crime under the law. That testimony, in order to authorize you to convict, must be corroborated, and the extent of the corroboration of the testimony is a question entirely for the jury. I do not charge you that there is or there is not testimony of an accomplice in this case. I simply give you the rule, and, if there is any testimony that has been delivered in the case from an accomplice, why then you apply these rules that the court gives you in charge to that testimony." This charge was not erroneous on the ground that the court failed in connection therewith to inform the jury as to the meaning of the words "an accomplice" and "a felony," or to instruct them as to the nature of the corroborating circumstances required in order to convict the defendant on trial, and that the case on trial was a felony; there being no request to charge as to such matters. Pickens v. State, 132 Ga. 46, 63 S.E. 783, and cases cited; Atlantic Coast Line R. Co. v. Jones, 132 Ga. 189 (13), 63 S.E. 834; Pye v. Pye, 133 Ga. 246, 65 S.E. 424; Helms v. State, 138 Ga. 826 (7), 76 S.E. 353.

The instruction excepted to in the ninth ground of the motion for a new trial on the subject of confessions was not fairly subject to the criticisms made upon it.

It was not cause for a new trial that the court failed, in the absence of a request, to charge on the law of circumstantial evidence; the evidence against the accused not being entirely circumstantial, and the court having fully and correctly charged the jury as to the law of reasonable doubt and the amount and character of the evidence necessary to authorize a conviction. McElroy v. State, 125 Ga. 37, 53 S.E. 759; Smith v. State, 125 Ga. 296, 54 S.E. 127;

Bannon v. State, 140 Ga. 787 (7), 788, 80 S.E. 7.

Where three persons were jointly indicted for murder, one charged as principal, and the other two as accessories before the fact, on the separate trial of one of the latter, a plea of guilty having been entered by the defendant charged as principal, it not appearing that sentence had been imposed in accordance with such plea, it was not cause for a new trial on behalf of the defendant tried and convicted as accessory, that the court charged the jury to the effect that, if they found that the principal had entered such plea, then they might "consider the charge against the defendant on trial of being an accessory before the fact."

There was evidence to authorize the verdict, and the court did not err in refusing a new trial.

Additional Syllabus by Editorial Staff.

Pen. Code 1910, § 49, provides that an accessory before or after the fact may be indicted, tried, convicted, and punished notwithstanding the principal offender may have been pardoned or otherwise discharged after his conviction. Held, that the word "conviction" is often used to mean a verdict of guilty or a plea of guilty and to include judgment, but as used in such section does not necessarily include a sentence (citing 2 Words & Phrases, 1584).

Error from Superior Court, Hall County; J. B. Jones, Judge.

Jim Cantrell was convicted of homicide as an accessory before the fact, and he brings error. Affirmed.

Johnson & Johnson, of Gainesville, for plaintiff in error.

Robt. McMillan, Sol. Gen., of Clarkesville, and T. S. Felder, Atty. Gen., for the State.

FISH C.J.

Bart Cantrell, Jim Cantrell, and Sylvia Hawkins were jointly indicted charged with the murder of Arthur Hawkins, Bart Cantrell as principal and the other two as accessories before the fact. Bart pleaded guilty, and such plea was entered on the indictment. Subsequently and on the same day Jim was separately placed on trial and was found guilty as charged. He moved for a new trial, which being refused, he excepted.

The headnotes 1 to 7 inclusive require no elaboration.

Complaint was made in the motion for new trial that: "The court erred in not instructing the jury that the bill of indictment, upon which the plea of guilty was entered by Bart Cantrell, before judgment of the court was pronounced, was not a conviction." And also erred in giving the following charge: "The defendant Jim Cantrell could not be placed upon trial before the conviction of the principal Bart Cantrell. It is contended on the part of the state that the principal, as alleged in the bill of indictment, Bart Cantrell, has pleaded guilty to the offense of murder as charged in the bill of indictment. If that is true, the record will be out before you, and if the record shows that he has pleaded guilty to that offense, then I charge you that you may consider the charge against the defendant on trial of being an accessory before the fact." This instruction was alleged to be erroneous on the ground that it assumed a plea of guilty without sentence being pronounced to be a conviction. An "accessory" is one who is not the chief actor in the offense, nor present at its performance, but is some way concerned therein, either before or after the act committed. Penal Code 1910, § 44. "An accessory before the fact is one who, being absent at the time of the crime committed, doth yet procure, counsel, or command another to commit a crime." Penal Code 1910, § 45. "An accessory before the fact, except where it is otherwise provided, shall receive the same punishment that is prescribed for the principal in the first degree." Id. § 46. Thus the crime of being an accessory...