Daniels v. State

• Decision Date: 02 November 1938
• Docket Number: 26832.
• Citation: 199 S.E. 572,58 Ga.App. 599
• Parties: DANIELS v. STATE.
• Court: Georgia Court of Appeals

199 S.E. 572

58 Ga.App. 599

DANIELS v. STATE.

No. 26832.

Court of Appeals of Georgia, First Division

November 2, 1938

Syllabus by the Court.

1. It is no cause of challenge to the array that "the jury to be put upon the defendant on the day before heard the verdict of guilty read against Charlie Thompson who was jointly indicted with the defendant." Such cause of challenge was not good against the panel but would have been available only to challenge the poll.

2. While the acts and declarations of each conspirator emanate from him individually, they are a part of a common purpose or design so that evidence of such acts or declarations are relevant although each conspirator's act may constitute an independent offense. The true question is whether the evidence is relevant to the issue on trial and shows some logical connection and reveals knowledge, design, or plan and if it shows this, it is not excluded merely because the act sought to be introduced in evidence happens to be punishable under our law as a crime.

3. In opening a criminal case to a jury preliminary to the introduction of evidence, the solicitor general may state what he expects to prove. If on an objection to a statement by the solicitor general, the court declines to interfere but instructs the jury, "Of course, you will understand gentlemen of the jury, what the solicitor says is not evidence, and unless he adduces evidence of what he says he is going to prove, you won't consider it at all," no error is committed where it does not appear that the remarks of the solicitor general were otherwise than in good faith.

4. A person entering into a conspiracy already formed is deemed in law, a party to all the acts done by the other co-conspirators before or afterward in the prosecution of the enterprise. When the concerted action is once established, all the facts and circumstances which preceded and connectedly lead up to the robbery are relevant. It was proper to trace the conspiracy from the beginning.

5. A witness can not be impeached by a showing by parol evidence that he had been tried and sentenced for robbery and the exclusion of such evidence is not error. The record is the highest and best evidence.

6. The contention of the defendant in special grounds 15 and 25 is decided adversely to the defendant in the ruling in the companion case of Thompson v. State, 199 S.E. 568.

7. The contention of the defendant in special ground 16 is not meritorious. Under all the facts and circumstances of this case, it was a question for the jury to determine whether the defendant was connected with the taking of the jewelry at the time of the robbery.

8. "The word abet includes knowledge of the wrongful purpose of the perpetrator, and counsel and encouragement in the crime."

9. The gist of the contentions in special grounds 19, 28, and 29 is that a definition of conspiracy which states that a conspiracy is a combination or agreement between two or more persons to do something that is unlawful is incomplete in that there can be no conspiracy unless there is an overt act in pursuance of the combination or agreement. These contentions are not meritorious. There is no such crime in Georgia as conspiracy, but one may be found guilty of a crime caused by acts pursuant to an already formed conspiracy. The crime is the act prohibited by statute, but not the conspiracy alone. The conspiracy of itself is no crime. The conspiracy is an incident to and one of the means by which, the act is accomplished.

10. Special ground 27. "The testimony of one accomplice, if satisfactory to the jury, is sufficient corroboration of the testimony of another accomplice to authorize a conviction of felony." Austin v. State, 47 Ga.App. 217, 221, 169 S.E. 729.

11. Special ground 21. Whisky is a subject-matter of larceny or robbery. The legislature did not intend to say that it was wise to license robbery so as to discourage intoxication. At least we do not like to impute such a construction to them.

12. Special ground 22. The request to charge in this ground was covered by the general charge.

13. Special grounds 20 and 30. With reference to the exceptions complained of in these grounds, the court did not commit error in stating a particular hypothesis where the establishment of the hypothesis was left to the jury to determine from the evidence.

14. The evidence authorized the verdict.

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

Fred Daniels was convicted of robbery, and he brings error.

Affirmed.

A witness cannot be impeached by parol evidence that he has been tried and sentenced for robbery, since the record is the highest and best evidence.

E. W. Maynard, of Macon, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, for defendant in error.

MacINTYRE Judge.

The defendant, Fred Daniels, was jointly indicted with Pee Wee Burns and Charles Thompson for the robbery of Pete Modena. It was alleged that on July 17, 1936 they took by force "one lady's diamond ring, one man's diamond ring, one 38 caliber Smith & Wesson pearl-handle pistol, one stick pin with diamond and green emerald, one flash light, two baby pins on chain, one baby ring, one kodak, 205 cases of assorted whisky, and $257 in lawful U.S. currency, of the value of $3659.25."

The evidence for the state tended to show that a man named B. H. O'Conner, alias Hugh Gibson, and one named L. M. Wilson, alias Ned Welch, had been released from the Federal Penitentiary a short while before the commission of the robbery complained of. They had both been out of the State for several weeks, and they met in Atlanta on Sunday, July 12, 1936, for the purpose of going to work for a night club in the environs of Atlanta. On the following Wednesday, O'Conner struck up with Charlie Thompson, who was an old acquaintance, and that night Thompson brought Pee Wee Burns up to the room in the Georgian Terrace Hotel, which was occupied by O'Conner and Wilson. There the four agreed that Thompson, O'Conner, and Wilson would come to Macon the next day and look over the approaches to the residence of Pete Modena, and that on the following night they would all come to Macon and go to Modena's residence with a truck and rob him of his money and his whisky, the agreement contemplating that O'Conner and Wilson were to receive $900 in cash from Burns and one-third of the money taken from Modena. The next day Wilson went out and provided himself with two pairs of handcuffs, a large roll of two-inch adhesive tape and a roll of flexible picture wire for the purpose of binding and blinding the Modena family, and Thompson, Wilson, and O'Conner came to Macon and looked the situation over and went back to Atlanta. That night they met near the Federal Penitentiary in Atlanta and Burns informed them that his truck had gone on ahead. They overtook the truck about twelve miles out of Atlanta, and Fred Daniels, the defendant, was driving it. He was spoken of in the evidence, without objection, as being the "yes man" for Burns. Omitting the details of the robbery, it is sufficient to say that Burns and Wilson, according to the evidence, perpetrated the actual robbery, while O'Conner, Daniels, and Thompson waited on the outside. It is important probably to call attention to the evidence to the effect that they did not drive the truck directly to Modena's house, but Daniels parked the truck at the Municipal Stadium, about a block away, all five of the men got in a car and rode up and down the street for an hour or two in the neighborhood of Modena's house, waiting for the lights to go out at the Modenas' house and in the homes of his neighbors. Gibson, a co-conspirator and a witness for the State, in part testified that "After we got here me and Wilson and Burns and Thompson and Daniels were riding around looking the situation over, and I don't think Daniels knew he was coming here to hijack any whisky up to that time. Daniels was present when Burns and all of us were discussing how we were going to handle the Modenas. Daniels heard the discussion. When we got ready for the truck to come up to Modena's house I motioned to Daniels and he drove the truck up to Modena's house and backed it in there and he stayed in the truck and loaded the whisky. Daniels drove the truck in Modena's back yard and turned around and backed the truck up to the house. I don't think Daniels knew the jewelry was taken. I knew it." The wife of Modena testified, "Mr. Thompson knew we had Walker's 93 liquor in the pantry on the back porch. That was a popular brand of whisky at that time."

1. Special grounds 1 and 2. When the case was called, the defendant made a motion to continue the case until another array of jurors could be impaneled on the ground that "this jury to be put upon the defendant" on yesterday heard the verdict of "guilty" read against Charlie Thompson who was jointly indicted with him. The defendant's counsel stated that he only asked the court to continue the case until next week in the hope that a new panel of jurors might be placed upon him and was not trying to delay ununecessarily the trial of the case. The Solicitor General stated "that some of the jurors may have heard the verdict read in court but they have not heard any of the evidence. There may have been four or five jurors in court when the verdict was read." The defendant contends that the failure to continue the case was prejudicial error which required the granting of a new trial. We can not say that the trial judge abused his discretion in refusing to continue the case. Schnell v. State, 92 Ga. 459, 17 S.E. 966; Paulk v. State, 2 Ga.App 662(2), 58 S.E. 1109. When this motion was overruled, a formal challenge to the array was filed on the same ground. This contention of the...