Hamby v. State

• Decision Date: 21 June 1950
• Docket Number: No. 32841,Nos. 1,2,32841,s. 1
• Citation: 82 Ga.App. 7,60 S.E.2d 635
• Parties: HAMBY v. STATE
• Court: Georgia Court of Appeals

Page 635

60 S.E.2d 635

82 Ga.App. 7

HAMBY v. STATE.

No. 32841.

Court of Appeals of Georgia, Division Nos. 1, 2.

June 21, 1950.

Rehearing Denied July 7, 1950.

Syllabus by the Court.

The evidence authorized the verdict and there being no merit in the special grounds, the court did not err in overruling the motion for a new trial.

Ralph M. Holleman, Columbus, John C. Mitchell, Mitchell & Mitchell, Dalton, for plaintiff in error.

Hubert Calhoun, Sol. Gen., Columbus, for defendant in error.

MacINTYRE, Presiding Judge.

1. In special ground 1 of the motion for a new trial, as amended, the following portion of the charge of the court to the jury is assigned as error: 'Now, in this case, the State relies on what is known--it relies in part on what is known as the testimony of an accomplice. And I give you this principle of law to govern you there. The testimony of a single witness is generally sufficient to establish a fact. An exception to this rule is made in the case of a felony. Where the only witness is an accomplice, in such [a felony] case, corroborating circumstances may dispense with another witness. The corroborating circumstances referred to must be such as to connect the defendant with the perpetration of the crime, and independently of the other evidence in the case, must connect the defendant with the commission of the crime charged in the bill of indictment.' [Brackets ours.] The defendant contends that this charge was erroneous in that this charge was an intimation or expression of an opinion of the trial judge in his charge to the jury that the State's witness and co-defendant, Robert Junior Chambers, was an accomplice, and denied to the jury the right to determine whether or not the State's witness and co-defendant, Robert Junior Chambers, was an accomplice. The judge, in the excerpt here referred to, was classifying the testimony relied upon in part by the State as being a class of testimony known or called accompliace's testimony. He was not classifying the particular witness delivering it as an accomplice. He did not call the name of any witness in connection with such testimony. He did not state what any witness had testified. He was merely charging an abstract rule of law as it related abstractly to the testimony of any accomplice in any given case, which rule of law, he said, the State relied upon in the instant case. The court in effect charged that the State relies upon a certain rule of law and stated that rule of law in the abstract, but did not apply it to any person or witness concretely. The court simply said in effect that where or if there is any testimony in a felony case by an accomplice--not necessarily in the instant felony case, but in any felony case--the jury should apply the rule of law charged, to that testimony. Cantrell v State, 141 Ga. 98(5), 80 S.E. 649; Wells v. State, 194 Ga. 70(4), 20 S.E.2d 580. After the court had given that portion of the charge complained of in this ground, the court charged: 'After considering all the testimony, the facts and circumstances of the case, the documentary evidence produced, the defendant's statement, and applying the law as given you in charge by the court, to the testimony as you find it to be and believe it to be, if you are satisfied and convinced to a reasonable and moral certainty and beyond a reasonable doubt of the defendant's guilt * * * [you will find the defendant guilty; otherwise, you will find the defendant not guilty].' (Brackets added.) We do not think the charge complained of was erroneous for the reasons urged.

2. Special grounds 2 and 3 assign error upon the failure of the court anywhere in its charge to the jury to define what is necessary to constitute one an accomplice, and the failure of the court to instruct the jury that it was a question for the jury to determine whether the witness and co-defendant, Robert Junior Chambers, was an accomplice. 'Where the sole witness directly connecting the accused with the crime * * * was an accomplice, the failure of the trial judge to instruct the jury what would, under the law, constitute an accomplice, or to define the term accomplice, is not reversible error, where it does not appear that there was a timely written request for such instruction.' Baker v. State, 14 Ga.App. 578(1), 81 S.E. 805; Butts v. State, 14 Ga.App. 821(1), 82 S.E. 375; Cantrell v. State, supra; and see in this connection Cammons v. State, 59 Ga.App. 759, 766, 2 S.E.2d 205. In the absence of a request to charge upon these points, we do not think grounds 2 and 3 are meritorious.

3. "A conviction in a case of felony is sustainable upon the testimony of a single witness, though an accomplice, when the same is corroborated by other testimony connecting the accused on trial with the perpetration of the crime, and tending to show his participation therein.' * * * But 'it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular * * *. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict * * *. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant's guilt is peculiarly a matter for the jury to determine. If the verdict is found on slight evidence of corroboration connecting the defendant with the crime, it cannot be said, as a matter of law, that the verdict is contrary to the evidence.' Hargrove v. State, 125 Ga. 270, 274, 54 S.E. 164, 166; Whaley v. State, 177 Ga. 757, 171 S.E. 290.' Newman v. State, 63 Ga.App. 417(2, 3), 11 S.E.2d 248, 249. See also Roberts v. State, 55 Ga. 220(3), Mitchell v. State, 202 Ga. 247, 248, 42 S.E.2d 767. "The facts relied upon as corroboration may be trifling when viewed by themselves and separately from the entire case; but the jury had the right to consider all the facts and to consider them in their relations one to another, and to determine whether or not, considering the facts and comparing them in their proper setting, under the evidence adduced, they tended to connect the defendant with the commission of the crime and were a sufficient corroboration of the evidence of the accomplice to authorize a conviction of the accused under the law.' Callaway v. State, 151 Ga. 342, 348, 106 S.E. 577.' Blakely v. State, 78 Ga.App. 282, 291, 50 S.E.2d 762, 768.

Robert Junior Chambers, the co-defendant of Hamby under the indictment, testified for the State in part as follows:

'* * * I know the defendant on trial, Mr. Fred Hamby. * * * I have known him about five years. I have worked for him, about that length of time. * * * Yes, I am jointly indicted with Mr. Hamby for burning the dwelling house of Rosa Edwards. Yes, sir, I did burn her dwelling house. On the 4th of June, Saturday evening, I was at home asleep, and my brother came around there and woke me up and told me Mr. Hamby wanted to see me. I went around there to see what he wanted and he told me to pay him. I told him I didn't have his money right then[82 Ga.App. 10] --that it would be later this evening when the man come and paid me. I owed him a dollar and ten cents. And I told him it would be later and I was going back around to the house so I would be there when the man come so I could pay him and he said, 'no,' say 'You don't need to go back' round the house, just stick around,' says, 'Your mother or some of them will get the money,' and I stuck around with him * * *. Later the bartender walked out and he told me that he wanted me to go up to the warehouse to help him straighten up around in there. I went up there with him to help him straighten up and he got a gallon jug and two quart bottles. He got them in the warehouse. In the warehouse, yes, sir, and a funnel and got the can and told me to pour it up into the gallon jug and two quart bottles and I poured it up and he says, 'Robert, I'm going to burn the empty house and Rosa's house and I want you to do it for me.' Well I said, 'Mr. Hamby, you ought not to burn the people's houses up.' He said, 'They're my houses and I know what I want to do with them,' and said, 'If you don't do it I'm going to kill you.' And I went on up to the--we went on back to the beer and wine building and he set them behind the counter. Set the two--the gallon jug and two quart bottles. And later after then the bartender said he was going home to eat supper and he left and he said, 'Well, I'm glad he's gone.' And he told me to carry the two gallon jug and--the two quart bottles and the gallon jug behind--back there and put them in the empty two room apartment back of the beer and wine building. And I put them in the empty two room apartment back of the beer and wine building. * * * Just inside the door in the left hand corner. And he said, 'Stay around here with the place until I get back, I'm going and get Eddie and Rosa and Nettie Jones.' He went and got Rosa and Eddie and Nettie Jones and come back--* * * and set up a half a gallon of wine and told them to drink. And they started drinking [and] he left. Rosa Edwards lived in this corner house here. Nettie Jones, she lived in the other corner house, over there. The one in the middle, it was empty. * * * The three of them came back with Mr. Hamby. And he said, 'here,' say, 'I'm going to set you all up be's you all were so nice to pay the rent this month,' and gave them--set up a half gallon of wine and says, 'If that ain't enough I've got some more up on the shelf.' And me and him walked out and he gave me a box of safety matches and told me to go on and put two quarts in the loft of the empty house and the gallon jug just inside of Rosa's door and strike the match and come on back. * * * I went around there and put the two quarts in the loft and poured the gallon jug just inside of the door. The two quarts in the loft of the...