Covington v. State

• Decision Date: 14 October 1887
• Citation: 7 S.E. 153,79 Ga. 687
• Parties: COVINGTON v. STATE.
• Court: Georgia Supreme Court

7 S.E. 153

79 Ga. 687

COVINGTON v. STATE.

Supreme Court of Georgia

October 14, 1887

Syllabus by the Court.

Admissions by the prisoner, which only tend to prove his participation in the crime charged, are not direct, but circumstantial evidence; and, in charging the jury upon them, the court should not characterize them as a confession, since doing so would imply that the prisoner had acknowledged his guilt.

In charging the jury, it is error to assume that the prisoner has made a confession, and then go on to instruct as if the confession were already established.

Error from superior court, Fulton county; RICHARD H. CLARK, Judge.

Wimbish & Walker and S. Wardlaw Smith, for plaintiff in error.

C. D Hill, Sol. Gen., for the State.

BLECKLEY C.J.

The chicken-house of Lawrence, on Hollins street, in the city of Atlanta, was broken open on a Sunday night, and 13 chickens stolen therefrom. Four of the chickens were afterwards found in the yard of a woman named Morgan, 200 or 300 yards from Lawrence's premises. The prisoner and one Cosby were jointly indicted for the burglary. Cosby admitted his share in the transaction, and entered a plea of guilty. Covington was tried, convicted, and sentenced to six years in the penitentiary. He moved for a new trial, and it was refused. No witness for the state saw the offense committed or knew who committed it. Cosby was introduced by the prisoner, and testified that the prisoner was not concerned in it. The case, as against the prisoner, rested wholly on circumstantial evidence, including certain admissions made by him before the trial, together with his statement at the trial. He was arrested by the police some two weeks after the burglary, carried to the station-house, and there Cosby, who was also in custody, repeated in the hearing of the prisoner, the prosecutor, and a policeman a statement which he (Cosby) had previously made to the policeman. The prisoner himself also made a statement at the same time and place, which was heard by the policeman and the prosecutor, both of whom testified on the trial. The policeman testified to what Cosby said in the prisoner's hearing, and also to what the prisoner said. Cosby's statement in the prisoner's hearing was, in substance, that he and the prisoner were at a boarding-house together; that they went from there to church, and from church to where they got the chickens. Cosby went in, got two chickens out of a hen-house on a lot close to the church, (from the description given it was prosecutor's lot,) and gave them to prisoner, and prisoner held them while he (Cosby) went back and got two more. They carried them to a woman's house, (Morgan's) and there left them. Prisoner then proposed to go back to church, wanting to get rid of Cosby. They went off, and left the chickens at that place (Morgan's) that night. The prisoner's admissions, as detailed by the policeman, were, in substance, that he held the chickens that night; that he went with Cosby to church; that he got the chickens, and carried them to this woman's house; that he carried the chickens off, and left them at her house. He said Cosby told him to wait in a certain vacant space (there is such a space by the side of prosecutor's house) until he (Cosby) came back; that he did not know what Cosby was going after; that Cosby had a sack, went off, got two chickens, came back, gave them to prisoner, then went off again, and returned with two more. As detailed by the prosecutor, the prisoner's admissions were, in substance, that he got into trouble by falling in with another fellow. That he was going down to Willow Tree Church, and struck up with Cosby, who said to him, "Let's go down to church." That they went to church, and Cosby said, "Let's go up here to Hollins street;" and they went up there, and Cosby stopped him at a certain place, went off, got a chicken under each arm, and gave them to him to hold; then went off and got two more, and brought them to this place, where they found the chickens; and he (the prisoner) told Cosby to go on; he did not want to get into any trouble in that matter; and Cosby said, "There is nothing wrong about it, and we will leave these chickens here, and try to sell them and get some money." That he (prisoner) held the chickens given him to hold while Cosby was gone for the others. The material admissions in the prisoner's statement to the jury at the trial were that he and Cosby went to Willow Tree Church together on Sunday night. Finding the congregation at prayer, they stood outside, and Cosby requested him to go off with him a short distance. They went about 25 yards from the church, and there, at Cosby's request, prisoner waited. In a few minutes Cosby returned, with two chickens under his arm. Prisoner did not know where he got them. They went (prisoner going reluctantly) 200 or 300...