Crowe v. State

• Court: Georgia Court of Appeals
• Writing for the Court: TOWNSEND; MacINTYRE, P. J., and GARDNER
• Citation: Crowe v. State, 83 Ga.App. 325, 63 S.E.2d 682 (Ga. App. 1951)
• Decision Date: 15 February 1951
• Docket Number: No. 33416,No. 2,33416,2
• Parties: CROWE v. STATE

Page 682

63 S.E.2d 682

83 Ga.App. 325

CROWE v. STATE.

No. 33416.

Court of Appeals of Georgia, Division No. 2.

Feb. 15, 1951.

Syllabus by the Court.

(a) Where a witness swears to one state of facts on direct examination and on cross examination completely repudiates his testimony and admits that he swore a lie, he has sworn wilfully and knowingly falsely, and it is the duty of the jury to disregard his testimony entirely unless corroborated by circumstances or other unimpeached evidence sufficient to convince them of its truth.

(b) While the uncorroborated testimony of an accomplice is insufficient to convict, such testimony is sufficient when corroborated by the testimony of another accomplice connecting defendant with the offense and tending to show his guilt.

(c) Where one of such accomplices has been successfully impeached, he having sworn wilfully and knowingly falsely, his testimony may nevertheless be used as corroboration of the testimony of another accomplice where the testimony of the latter is sufficient to convince the jury that part of the testimony of the impeached witness is true.

Wendell Crowe was indicted, tried and convicted in the Superior Court of Floyd County for the offense of manufacturing whisky. Upon the trial of the case, a member of the Floyd County police force testified that about May 4, 1949, he went to Morton's Bend to engage in a search for an old negro, Haywood Smith, who had disappeared; that in so doing he located a groundhog still made of tin and showing evidence of having been worked within the last day or so. Charles Zinnerman testified that he went down to a still at Morton's Bend with John Ellis [Ellen?] in a car borrowed from the defendant for the purpose of selling timber; that he was down there again gambling with the defendant, and that was all. Thereupon the State pleaded entrapment, reading a statement previously signed by the witness to the effect that he, Ellen and another had been driven to the still by the defendant; that the defendant helped them make whisky and caught it in a foot tub as it ran out of the still. The defendant admitted making the statement and offered the explanation that 'at the time they got that they had me for killing Haywood Smith.'

John Ellen testified on direct examination that the defendant took him to the district; that Zinnerman and W. T. Crowe were with them; that he dug a hole for a still; that they all went back on another occasion and finished it; that they made whisky and ran it off and the defendant put it in cans; that they all returned on a subsequent occasion and again made whisky, and that they were there the day Smith disappeared. However, on cross examination he stated that his testimony on direct examination was untrue and the statement made to the police officers was untrue; that he and the defendant had not made liquor, and that he had so stated and testified because he and Zinnerman were arrested on two occasions after Smith disappeared and were informed by the authorities that they had 'either killed a man or was making liquor', and that he testified as he did because he would rather be tried for making whisky than for murder; that the only reason he and Zinnerman had been down in the woods was for the purpose of gambling.

Ike Campbell testified that the location of the still as it was pointed out to him was about a quarter of a mile below his pasture; that he had carried two one-thousand pound loads of sugar down there at the request of Ellen; that Ellen went with him to show him where to dump it and Ellen and Zinnerman unloaded it from his wagon; that Ellen had promised him some of the whisky for doing this and that he had found a gallon of whisky at the place where Ellen agreed to leave it; that the night his brother-in-law, Haywood, Smith, disappeared he heard a car go by his place and into the woods; that he followed it and saw Zinnerman and Crowe loading liquor in cans and grain sacks in a pick-up truck; that Zinnerman was loading and Crowe was on the truck stacking; that the whisky he saw was in sacks under a brush pile behind the back line of the pasture. A city detective further testified that the still was located five or six city blocks from the home of Ike Campbell and that he had seen the still and that it was made of heavy corrugated tin. There was also testimony as to the manner in which the statements of Ellen and Zinnerman had been taken, and that Zinnerman testified before the grand jury in accordance with his written statement. The defendant made a statement in which he contended that he had been in the community on several occasions selling insurance and knew nothing about the still.

Upon conviction the defendant filed a motion for a new trial on the general grounds which motion was overruled.

Hicks & Culbert, Rome, for plaintiff in error.

W. T. Maddox, Sol. Gen., Rome, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

The general grounds devolve upon the question of what credence, if any, is to be placed on the testimony of the alleged accomplices, together with what corroboration, if any exists as to facts testified to by them.

Code, § 38-1806 states as follows: 'When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury, but if a witness shall...