Harris v. State, 36857
| Decision Date | 19 September 1957 |
| Docket Number | No. 2,No. 36857,36857,2 |
| Parties | HARRIS et al. v. The STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. (a) Where the evidence showed that a witness did not actually participate in the commission of a felony and did not know that a felony was being committed, even though he accompanied the perpetrators in an automobile to a point near the scene of its commission and remained in the car while the crime was being committed, and though he may have afterward acquired knowledge thereof, he was not an accomplice of the defendants who did perpetrate the crime, within the meaning of that term as used in Code, § 38-121, and his testimony was not subject to the rule of corroboration as stated therin.
b) Where the evidence with respect to the participation in the crime of one of the defendants was the same as with respect to the witness, the conviction of that defendant was not authorized.
(c) As to the other defendants, the evidence authorized the verdict of guilty.
2. An objection to the admission of evidence does not show error which can be passed on by this court, where it does not appear from the record that the evidence was introduced, and the evidence, or the substance thereof, was not set out in the ground of the motion.
3. The evidence complained of in special ground 2 of the motion was not inadmissible for any reason assigned.
Whitman, Whitman & Whitman, Eatonton, for plaintiff in error.
George D. Lawrence, Sol. Gen., Eatonton, for defendant in error.
Peter Wells, Wilkey Robbins, alias 'Skeet' Robbins, Charlie William Robbins, alias 'Cooter' Robins, and James Harris, alias 'Booster' Harris, were jointly indicted and charged with the offense of assault with intent to murder one Glen E. Gregory. All of the defendants pleaded 'not guilty,' and Charlie William Robbins, having elected to sever was tried separately. This case involves the trial of the three remaining defendants who were tried together.
On the trial the State relied on the testimony of one George Merritt to place the defendants on the scene of the crime and to prove a conspiracy among the defendants to commit the crime. His evidence showed substantially that the four defendants came by his house in Greene County on the night of the crime at about 9:30 and asked him to accompany them for a ride, that he went with them to a point near the beer joint operated by the victim on the Greensboro-Eatonton highway in Putnam County where the automobile which was owned and driven by Wilkey Robbins was stopped, and the defendants, Harris, Charlie William Robbins and Peter Wells, got out, took a shotgun and shells owned also by Wilkey Robbins and walked off through the woods toward the beer joint; that these three were gone from the car about an hour and while they were gone the witness heard two shots about 15, 20, or 25 minutes apart, and after the second shot, the witness heard a car crank up and start off twice; that the three defendants who had gone off with the gun returned to the car with the gun and some beer. This witness also testified that a few days thereafter the defendants procured him to go to Florida for a while and that he returned and the defendants sent him to New Jersey, but that he came back, and at the time of the trial was serving time on the 'public works' after having pleaded guilty of burglary in another case. This witness offered no direct testimony as to any conversation had among the defendants and himself while riding in the car prior to the shooting, and on cross-examination, and again on re-direct examination he testified that he and Wilkey Robbins, who stayed in the car while the others went off in the woods toward the beer joint, did not know that the other three were going over there to rob and shoot Mr. Gregory, and that he and 'Skeet' had nothing to do with the shooting and that while 'Skeet' was doing the driving and while the gun belonged to him, that 'Booster' was directing him where to drive and what to do.
The victim, Mr. Glen E. Gregory, testified that on the night of the shooting he had one white customer in his place when the defendant, Charlie William Robbins, came into his place along with a short light-skinned negro and purchased some beer and left; that shortly thereafter one of them returned, purchased more beer and some crackers; that a few minutes thereafter the white customer left and he commenced locking up for the night; that as he was in the process of locking the back door of his place he was shot in the back with a shotgun by an unseen assailant; that he went back in his place, waited a while and then went to his house some distance away, procured a revolver and returned to lock up the store and on his way back from his house to the store with the revolver he tripped and fell discharging it; that he completed locking up and cranked up his automobile and drove up, stopped and picked up his wife in the driveway and headed off toward Eatonton to go to the hospital to be treated for his wounds.
The State's evidence further showed that a discharged shotgun shell of the size that fit the defendant Wilkey Robbins' gun was found some 45 feet from the back door of the store; that thereafter when said defendant was arrested, a gun which he identified as his was taken from his home and a similar shell was discharged from the gun by the State Crime Laboratory and the two shells were shown to have been fired in the same gun. The witness Merritt identified this gun which was in evidence on the trial as being the same gun taken from the car on the night of the shooting by the three defendants, Wells, Charlie William Robbins and Harris.
1. In their argument on the general grounds the defendants contend that Merritt, upon whose testimony the State relies to place the defendants at the scene of the crime, was an accomplice, and that therefore his evidence comes within the rule stated in Code, § 38-121 to the effect that an accomplice's testimony must be corroborated by other evidence in order to prove a fact. However, the evidence fails to show that Merritt was an accomplice within this rule. A witness is an accomplice within the meaning of the term as used in the Code section relied on if he could have been indicted for the offense either as a principal or as an accessory. Stebbins v. State, 78 Ga.App. 534, 535, 51 S.E.2d 592, and cit. One who conspires with others to commit a felony may be indicted and convicted as a principal even though the evidence shows that he was absent when the crime was committed. Chambers v. State, 194 Ga. 773, 22 S.E.2d 487. 'In criminal law conspiracy is a combination or agreement between two or more persons to do an unlawful act, and may be established by proof of acts and conduct, as well as by direct proof or by express agreement.' Bolton v. State, 21 Ga.App. 184(1), 94 S.E. 95, and cit.; Thomas v. State, 56 Ga.App. 381(2), 192 S.E. 659.' Weeks v. State, 66 Ga.App. 553, 555, 18 S.E.2d 503, 505.
While ordinarily the question of whether or not a conspiracy was entered into is a question of fact exclusively for the consideration of the jury (Tanner v. State, 161 Ga. 193(11), 130 S.E. 64), this question, like other questions of fact, is subject to the scintilla rule and unless there is some evidence to show a conspiracy, a conviction or a finding of fact which has as its basis a...
To continue reading
Request your trial
-
Cartin v. Boles
...Company v. James, 235 Ga. 348, 351, 219 S.E.2d 447; Swift & Company v. Lawson, 95 Ga.App. 35, 54(6), 97 S.E.2d 168; Harris v. State, 96 Ga.App. 395, 401(3), 100 S.E.2d 120. Code § 38-1802. These exhibits were admissible for the purpose of impeaching defendant's contradictory testimony. The ......
-
Brewer v. State, 48070
...a conviction or a finding of fact which has as its basis a conspiracy ought not to be allowed to stand.' Harris v. State, 96 Ga.App. 395, 398, 100 S.E.2d 120, 122. In the instant case the state was unable to offer any evidence controverting the statements of defendants. Since the fact of co......
-
Kapplin v. Seiden
...the evidence where matter essential to a clear understanding of the assignments of error can be found by the court. Harris v. State, 96 Ga.App. 395, 400(2), 100 S.E.2d 120; Maxwell v. State, 97 Ga.App. 334, 336(1), 103 S.E.2d 162; Brown v. Carmanni, 100 Ga.App. 116, 122(5), 110 S.E.2d 543; ......
-
Brown v. Carmanni, 37745
...the motion for a new trial be complete and understandable within itself (Ga.L.1957, pp. 224-232; Code, Ann. § 6-901), Harris v. State, 96 Ga.App. 395, 400, 100 S.E.2d 120, it is, nevertheless, still necessary that the plaintiff in error show in each ground of his motion facts set forth ther......