Garnett v. State

• Decision Date: 20 November 1911
• Docket Number: 3,586.
• Citation: 72 S.E. 951,10 Ga.App. 109
• Parties: GARNETT v. STATE.
• Court: Georgia Court of Appeals

72 S.E. 951

10 Ga.App. 109

GARNETT v. STATE.

No. 3,586.

Court of Appeals of Georgia

November 20, 1911

Syllabus by the Court.

A plea in abatement, setting up that a member of the grand jury who returned the indictment was also a member of the firm whose store was alleged to have been burglarized, is insufficient in law.

A point, not insisted on in the brief of counsel for the plaintiff in error, will be treated as abandoned.

Where in the chain of evidence fixing unmistakable guilt on the accused, there is one link consisting of his own incriminatory admission leading to the discovery of other independent circumstantial evidence, the incriminatory admission, together with the circumstances, should go before the jury, even though it appear that the incriminatory admission was induced by promise of immunity from prosecution.

The corpus delicti was sufficiently proved by the circumstantial evidence, coupled with the incriminatory admissions of the accused.

While from some of the numerous grounds of the motion for a new trial, complaining of the admission of evidence, there appears some hearsay and some irrelevant testimony, it also appears that the defendant was not prejudiced thereby; and the trial being otherwise free from error and the evidence strongly indicative of guilt, this court would not be justified in reversing the judgment overruling the motion for a new trial.

The venue was sufficiently proved.

The charge was full and fair, and covered the written requests in so far as they were appropriate to the issues in the case.

Error from Superior Court, Richmond County; H. C. Hammond, Judge.

J. W Garnett was convicted of burglary, and brings error. Affirmed.

Isaac S. Peebles, Jr., for plaintiff in error.

John M. Graham and J. S. Reynolds, Sol. Gen., for the State.

RUSSELL J.

The defendant, Garnett, who, at the time of the transaction set out below, was a policeman of the city of Augusta, was convicted of the offense of burglary and sentenced to seven years' imprisonment. Some time in 1907 it was reported to the prosecutor, J. J. O'Connor, a member of the firm of Rice & O'Connor Shoe Company, that there were a lot of his shoes in a certain cellar. The matter was investigated by the police department of the city, and, having cause to suspect the defendant, his locker at the police barracks was examined, and therein was found a pair of ladies' shoes, which were identified by the prosecutor as shoes from his stock. The defendant was then sent for, and, in an interview which followed between him and the prosecutor, at which several other witnesses were present, he admitted that he had taken the shoes from the prosecutor's store one night, by using a key with which he effected an entrance through the front door. He further admitted that he had taken about $250 worth of shoes from the same store, and thereupon agreed to pay $150 in settlement of the matter, to which the prosecutor assented. Whether the money was ever paid does not clearly appear, but it is fairly inferable from the testimony that it was not. The evidence does show that about a dozen pair of shoes were returned by the defendant to the prosecutor, and that these shoes were clearly identified as shoes sold only by the prosecutor's firm at Augusta, and of their brand, size, and mark. After the conversation in which the defendant admitted that he had effected the entrance into the store with a key, the prosecutor met him in the street and asked him for the key, and was given by him a key with which the prosecutor afterwards unlocked the door of the store. The shoes returned by the defendant were kept by him at the house of a fortune teller, with whom he was intimate. Shortly afterward the defendant fled from the state, and he remained in hiding for three years.

It appears that, at the first interview between the prosecutor and the defendant, the prosecutor promised not to hurt a hair of the defendant's head if he would tell the truth about the matter, and further promised to help him hold his position on the police force. Relying on these promises of immunity from punishment, and hope of being rewarded by retention in his position, the defendant made the admissions, and undertook, by causing the return of goods, to make satisfactory restitution and settlement of the matter. In his statement at the trial he denied all guilt, and explained his admissions previously made by saying he was trying to shield the fortune teller, who feared trouble with the police, because she had not paid her license fee. He accounted for his flight by saying that, after the matter was given publicity, he noted that public opinion was so strong against him that, under the advice of his attorney, he fled from the state until sufficient time had elapsed to insure his having a fair trial, when he voluntarily returned and surrendered.

1. Before pleading to the merits, the defendant filed a plea in abatement, on two grounds, the first of which was that it appeared that J. J. O'Connor, a member of the firm whose store was alleged to have been burglarized, was a member of the grand jury by whom the presentment was found. There was a day when parties litigant were wholly incompetent as witnesses; the reason of the law at that time being that their interest in the result of the case was such as to make their testimony of no probative value. It is a far cry from that day to this, when usually the only, and certainly the most important, witnesses in every case are the parties litigant themselves, whose testimony is admitted to the jury to have such weight as that tribunal may see fit to give it. No less interesting is the change as to the qualification of a juror as a witness. There was once a time in our law when, after retiring to the jury room, the jury could administer the oath to one another, hear their own evidence as...