Kearce v. State, 9724.
| Decision Date | 16 January 1934 |
| Docket Number | No. 9724.,9724. |
| Citation | 172 S.E. 643,178 Ga. 220 |
| Parties | KEARCE. v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Error from Superior Court, Worth County; R. Eve, Judge.
Nim Kearce was convicted of being an accessory before the fact to murder, and he brings error.
Reversed.
Perry & Perry and R. S. Foy, all of Sylvester, for plaintiff in error.
W. C. Forehand, Sol. Gen., of Sylvester, and M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.
Sandy Walker and Jim Thomas were jointly Indicted for the murder of Cliff Kearce by striking him with a shotgun. Nim Kearce was charged in the same indictment as accessory before the fact to the same murder. It was alleged that, though Nim Kearce was absent at the time the blow was inflicted, he procured, counseled, and commanded the principal defendants to commit the homicide. Ona separate trial Nim Kearce was convicted on testimony delivered in part by Sandy Walker as a witness for the state, to the effect that witness committed the actual murder by procurement of the defendant Nim Kearce, who was absent at the time of the homicide. The jury recommended that he be punished by service in the penitentiary for life. The defendant's motion for a new trial was overruled, and he excepted.
[I] 1. In view of corroborated and uncontradicted testimony of Sandy Walker as a witness for the state, to the effect that he committed the homicide without justification or mitigation, and the statement by the defendant before the jury that "he" (referring to Sandy Walker) "come up here and committed that murder--he said he did it, and I know it's so, " the judge did not err in charging the jury: "Now Sandy Walker who testified in this case is the confessed murderer of Cliff Kearce, the deceased." The criticism of the charge is that it was expression of opinion on an element in the case required to be proved.
2. Whether a witness is an "accomplice" within the meaning of the exception in the Penal Code, § 1017, relating to the number of witnesses necessary to establish a fact, the test in general is, "Could the witness himself have been indicted for the offense, either as principal or as accessory?" Springer v. State, 102 Ga. 447, 30 S. E. 971; Stone v. State, 118 Ga. 705 (3), 45 S. E. 630, 98 Am. St. Rep. 145; Montford v. State, 144 Ga. 582, 87 S. E. 797. See, also, People v. Bright, 203 N. Y. 73, 96 N. E. 362, Ann. Cas. 1913A, 771; Levering v. Commonwealth, 132 Ky. 666, 117 S. E. 253, 136 Am. St. Rep. 192, 19 Ann. Cas. 140; 16 C. J. 670, 671; 1 R. C. L. 156, § 2. In Montford v. State, supra, the judge charged the principle as applied to the facts of that case, but refused to charge it In the language requested; and it was held on review that, in view of the charge, it was error to refuse the request.
3. If a person commits the crime of murder by procurement of another, though such other be absent at the time, the latter is an accessory before the fact, and both are conspirators with a common intent and design to commit a single crime, for which both may be indicted. Accordingly each is an accomplice with the other, under the principle announced in the preceding...
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Chambers v. State
... ... 971; ... Stone v. State, 118 Ga. 705, 45 S.E. 630, 98 ... Am.St.Rep. 145; Birdsong v. State, 120 Ga. 850, 48 ... S.E. 329; Kearce v. State, 178 Ga. 220(2), 172 S.E ... 643; Street v. State, 179 Ga. 636(2), 176 S.E. 633; ... Lanier v. State, 187 Ga. 534, 539, 1 S.E.2d ... ...
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Moore v. State, 32745
...an "accomplice" within the meaning of Code § 38-121 (see e. g., Mills v. State, 193 Ga. 139, 17 S.E.2d 719 (1941); Kearce v. State, 178 Ga. 220, 172 S.E. 643 (1933); Springer v. State, 102 Ga. 447, 30 S.E. 971 (1897); Allen v. State, 74 Ga. 769 (1885) ), or a "party to the crime" under Code......
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Payne v. State
...Stone v. State, 118 Ga. 705(3),45 S.E. 630, 98 Am.St.Rep. 145; LaFray v. State, 48 Ga.App. 133(1),172 S.E. 115; Kearce v. State, 178 Ga. 220(2), 172 S.E. 643.' Perryman v. State, 63 Ga.App. 825, 827, 12 S.E.2d 392, 393. It is not necessary that the state have brought criminal proceedings ag......
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Chambers v. State
... ... question above stated, that the defendant and York and ... Palmour were all accomplices. See, also, Kearce v ... State, 178 Ga. 220, 172 S.E. 643. According to the ... testimony of York and Palmour, Chambers was the instigator of ... the crime. This ... ...