Hardin v. State

• Court: Georgia Supreme Court
• Writing for the Court: FISH, J.
• Citation: Hardin v. State, 107 Ga. 718, 33 S.E. 700 (Ga. 1899)
• Decision Date: 31 May 1899
• Parties: HARDIN v. STATE.

33 S.E. 700

107 Ga. 718

HARDIN v. STATE.

Supreme Court of Georgia

May 31, 1899

Syllabus by the Court.

1. The testimony of an accomplice, since deceased, given upon a trial in a court of inquiry, may be proven on the final trial of the same case in the superior court, by any one who heard it, and who professes to remember the substance of the entire testimony in reference to the particular matter about which he testifies.

2. There is no merit in the exceptions to the charge of the court.

3. In the absence of a proper and pertinent written request for instructions thereon, the court is not bound to give in charge the law of a theory of the case arising solely from the statement of the accused.

4. Evidence alleged to be newly discovered is not cause for a new trial when it appears that the accused had full knowledge thereof prior to the rendition of the verdict against him.

5. There was evidence to warrant the verdict, and, the trial judge being satisfied therewith, this court will not interfere.

Error from superior court, Floyd county; W. M. Henry, Judge.

Alfred Hardin was convicted of burglary, and brings error. Affirmed.

Fouché & Fouché, for plaintiff in error.

Moses Wright, Sol. Gen., for the State.

FISH J.

1. Upon the trial two witnesses testified, in behalf of the state that they heard Ed Towns, who was jointly indicted with Alfred Hardin and two others for the alleged burglary for which Hardin was being tried, testify upon the committal trial of Hardin, when charged with the same burglary that Hardin stood up the road, a short distance away, and watched while Towns and the others broke into the store alleged to have been burglarized, and that, after it was broken into, all of them, including Alfred Hardin, entered it. It was admitted that Ed Towns had died since the hearing in the court of inquiry. This testimony of these two witnesses was admitted over the objection of counsel for the accused that what Ed Towns swore on the committal trial "was the declaration of an alleged co-conspirator after the enterprise was ended." There was no merit in this objection. What Towns swore upon the committal trial was not the mere declaration of a conspirator, but it was the testimony, under oath, of an accomplice, which, while needing corroboration, could be proven in the same manner as the testimony of any other witness, since deceased, given under oath on a former trial, upon substantially the same issue and between substantially the same parties, viz. by any one who heard it, and who professed to remember the substance of the entire testimony as to the particular matter about which he testified. Pen. Code, § 1001, and cases there cited.

2. The court charged the jury: "If there was an investigation going on before a justice of the peace, and that investigation was an inquiry into whether the defendant was guilty of the crime charged in this indictment or not, and if that was the matter under investigation, and if Ed Towns was then sworn as a witness and testified, then, gentlemen, if his evidence is proven here before you by such a witness as I have stated might testify to it, then it goes to you as any other evidence. You are, of course, to judge of the weight of it as you would of the weight of any other evidence, because it would then go to you as evidence, not of the confession of Ed Towns,...