Dye v. State, 32022.

• Citation: 48 S.E.2d 742
• Decision Date: 01 June 1948
• Docket Number: No. 32022.,32022.
• Parties: DYE . v. STATE.
• Court: United States Court of Appeals (Georgia)

48 S.E.2d 742

DYE .

v.STATE.

No. 32022.

Court of Appeals of Georgia,

Division No. 2.

June 1, 1948.

Rehearing Denied July 26, 1948.

Syllabus by the Court

1. "Where individuals enter into a conspiracy to commit a crime, its actual perpetration by one or more of them in pursuance of such conspiracy is in contemplation of law the act of all, and they may be held responsible accordingly." Simmons v. State, 196 Ga. 395(2), 26 S.E.2d 785.

2. It is within the sound discretion of the trial court to require a defendant in a criminal case to go to trial on a second indictment after the first charging a similar offense, had been handed his counsel by the solicitor general, his counsel having entered waiver of arraignment and plea of not guilty thereon, the solicitor general having handed defense counsel the first indictment instead of the second through error, the State not being ready for trial on the first indictment, but both parties being ready for trial on the second indictment. Thus publicizing the fact that there is more than one indictment pending against the defendant before the jurors who are assembled in the court room to try these and other pending cases, is not so prejudicial to the defendant as to require a new trial.

3. Where part of the evidence is admissible the overruling of an objection to it as a whole is not error. See many cases cited under Code § 70-203, catchword "Part".

4. Joint principals to a crime as accomplices are competent witnesses against each other, and while the one sought to be used as a witness has the right to claim the protection afforded by Art. I, Sect. I, Para. VI, Code, 2-106, of the Constitution of the State of Georgia, providing that no person shall be competent to give testimony tending in any manner to criminate himself, yet this constitutional guaranty is a personal privilege belonging to the witness and can not be claimed for him for the benefit of another party. See McCray v. State, 134 Ga. 416(8), 68 S.E. 62, 20 Ann. Cas. 101.

5. Special ground 5 of the amended motion for a new trial is without merit.

Error from Superior Court, Richmond County; G. C. Anderson, Judge.

Carl Dye was convicted of larceny from the person of an amount of more than $50, and he brings error.

Judgment affirmed.

The plaintiff in error, Carl Dye, hereinafter referred to as the defendant was tried in the Superior Court of Richmond County for the offense of larceny from theperson of more than $50. Construing the evidence in its most favorable light to support the verdict the jury was authorized to find facts substantially as follows: That Roland Keenan, the prosecutor, had on his person in Augusta in the month of May, 1947, the sum of $600 which consisted of 50 ten dollar bills and 5 twenty dollar bills; that he met up with four girls, viz., Margaret Sanders, Dorice Kitchens, Billie and Virginia Johnson, and after going around with them to several places and drinking with them they wound up at the Flamingo Club, in Augusta; that the defendant and another man later showed up in the party at this place; that one of these men proposed to the defendant that they play some poker; that the prosecutor indicated that he would like to play poker and upon inquiring where the poker game was to take place was informed that Billie, one of the girls, knew where to come to; that the two men and Margaret Sanders left in their car presumably to go to the place to play poker; that the prosecutor who had the other girls in the car with him drove across the street to the Clover Club and informed the women he was not going to the poker game as previously arranged; that they then asked him to buy them a chaser; that he went into the Clover Club to buy a soft drink; that while in there he felt in his pocket and his pocket-book was gone; that he recalled having his pocket-book about 20 minutes previously; that he returned to his car and his pocket book was lying in the front seat, empty, and his erstwhile women companions absent; that after notifying the police of his loss the prosecutor returned to the Flamingo Club; that he saw the defendant walk out of the club, get in his car and drive slowly away; that the prosecutor got in his car and followed the defendant; that when they reached the Augusta Coal and Ice house, the defendant and a man in the car with him, stopped and approached the prsecutor in a threatening manner; that the man in charge of the business intervened and the men got in their car and left; that at this time one of the women who had previously been with prosecutor when his pocket-book was rifled, was with the defendant and the other man; and that all the women entered pleas of guilty to taking the money from the person of the proscecutor except Virginia Johnson. The record is silent as to whether she had been charged with this offense.

Margaret Sanders testified in substance that she took the money from the person of the prosecutor and used all of it herself; that the defendant received the benefit of no part of the money; that shortly after she took it, she, realizing that she would probably be arrested, gave it to the defendant to hold for her; that she did not tell him where she got it and insofar as she knows he did not know; and that he held this money for her for several hours. In the meantime it appears that she was arrested and put in jail and it is not clear from her testimony to whom the defendant paid over the money. However, she further testified that her mother gave her the money to pay to her lawyers, thus inferring that the defendant paid the money which she says was only $410 to her mother to be returned to her. The substance of the testimony of Virginia Johnson is that the women hereinbefore named and certain men including the defendant entered into a conspiracy to take the prosecutor's money, and that pursuant to this conspiracy the defendant brought her the sum of $30 which she designated as "hush money", stating at the time that they got from him the sum of $160; that after they had procured this money from the prosecutor they all met at a designated point pursuant to previous arrangements and there the defendant made the statement herein referred to about getting the money and paid her the $30. The testimony of these women witnesses who were put up by the State was corroborated in some particulars as to times and places where these women, the defendant and others had met and been together at the time of and immediately following the larceny.

The defendant made a statement in which he offered an explanation for being with the women and denied any connection with the larceny.

The jury returned a verdict of guilty and fixed the punishment at 2 years in the penitentiary.

The defendant filed a motion for a new trial on the general grounds which was later amended by adding 5 special grounds.

The trial judge overruled the motion for a new trial as amended and this judgment is assigned as error.

Pierce Bros., of Augusta, for plaintiff in error.

George Hains, Sol. Gen., of Augusta, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. The testimony of Virginia Johnson is sufficient to show a conspiracy to steal the money of the prosecutor, in which the defendant participated. It is sufficient to show that he helped to conceal the money after its theft, and that he paid $30 of it for secrecy. Assuming that she is an accomplice, her testimony is amply corroborated by other evidence. Where one person steals property, and another, knowing it to have been stolen, assists in its asportation, the latter is also guilty as principal. See Laminack v. State, 54 Ga. App. 207, 187 S.E. 620. "Where individuals enter into a conspiracy to commit a crime, its actual perpetration by one or more of them in pursuance of such conspiracy is in contemplation of law the act of all, and they may be held...