Manry v. State, 31994.

• Decision Date: 06 May 1948
• Docket Number: No. 31994.,31994.
• Citation: 47 S.E.2d 817
• Parties: MANRY. v. STATE.
• Court: Georgia Court of Appeals

47 S.E.2d 817

MANRY.

v.STATE.

No. 31994.

Court of Appeals of Georgia, Division No. 2.

May 6, 1948.

Syllabus by the Court

1. An acquittal for the offense of accessory before the fact to a particular crime is not a bar to the conviction of the same person for the offense of accessory after the fact to the same crime.

2. Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the Code, or so plainly that the nature of the offense charged may easily be understood by the jury. See Code, § 27-701 and many cases annotated under catchwords "Test of sufficiency."

3. Upon the trial of a defendant charged with the offense of concealing a crime and harboring, assisting or protecting the person charged with or convicted of the crime, it is not essential to prove that the principal offender has been convicted of the main crime, but it is sufficient to prove his guilt.

4. The evidence complained of in ground 5 of the amended motion for a new trial was admissible for the reasons set out in the fourth division of this decision.

5. Timely written requests to charge, although stating applicable principles of law, may be refused where covered by general charge. See Loeb v. State, 6 Ga.App. 23 (3), 64 S.E. 338.

6. One who, with full knowledge that a crime has been committed, conceals it, but who does not harbor, assist or protect the person charged with it, is not guilty of the offense of accessory after the fact as defined in Code, § 26-604.

Error from Superior Court, Calhoun County; Carl E. Crow, Judge.

Lucile Manry was convicted of accessory after the fact to the murder of her husband, and she brings error.

Judgment reversed for new trial.

Mrs. Lucile Manry, plaintiff in error, hereinafter referred to as the defendant, was indicted and tried at the December Term, 1947, of the Superior Court of Calhoun County for the offense of accessory after the fact to the murder of her

husband.

The jury trying the case was authorized to find facts substantially as follows: That Talmadge Manry was on the night of August 7, or the early morning of August 8th, brutally murdered; that his body was found on the morning of August 8th, prior to 8:30 o'clock in a wooded section of Calhoun County near his parked automobile; that his death resulted from gunshot wounds and blows by a blunt instrument about his head; that around 8 o'clock A.M. on August 8th, Charlie Turner told the defendant he had fought with the deceased on the previous night and killed him; that within an hour after her conversation with Turner she told three men she did not know the whereabouts of her husband; that about one hour after that she asked another man if her husband's death could have been the result of suicide; that on August 10th and 11th she stated she did not know who could or would have killed her husband; that on August 16th when informed by the sheriff that Charlie Turner had admitted killing her husband, she replied, "If he did, you made him do it." That on August 19th, she made a statement in which she admitted that Charlie Turner had told her about killing her husband on the previous night, he having told her about it on the morning of August 8th between 7 and 8 o'clock. Also that Charlie Turner, the principal offender was arrested for the murder on the afternoon of August 9th and placed in jail.

The jury returned a verdict of guilty and the defendant was accordingly sentenced. She filed a motion for a new trial on the general grounds which was later amended by adding certain special grounds. Error is assigned on the judgment of the trial court overruling the motion for a new trial as amended. Exceptions are also taken to two other rulings of the trial court. These questions are discussed and decided in divisions 1 and 2 of this decision.

Miller & Miller, of Edison, and Stone & Stone, of Blakely, for plaintiff in error.

Maston O'Neal, Sol. Gen., of Bainbridge, and J. M. Cowart, of Arlington, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. On the same date the defendant was indicted for both the offenses of accessory before the fact and accessory after the fact in separate indictments. She was first tried and acquitted for the offense of accessory before the fact, and then the case against her for the offense of accessory after the fact was sounded. Before pleading to the merits she filed a plea in abatement to the latter indictment, in which she alleged these facts and prayed that the indictment be quashed. On motion of the solicitor general this plea was stricken. Exceptions pendente lite were duly preserved to this ruling and the same is here assigned as error. This was the equivalent of a plea of former jeopardy, or autrefois acquit.

"An accessory before the fact is one who, though absent when the crime is committed, procures, counsels, or commands another to commit same." Code, § 26-602.

"An accessory after the fact is a person who, after full knowledge that a crime has been committed, conceals it, and harbors, assists, or protects the person charged with or convicted of the crime." Code, § 26-604.

"No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his, or her own motion for a new trial after conviction, or in case of mistrial." Art. I, Sec. I, Par. VIII, Constitution of Georgia, Code, § 2-108. (Italics ours.)

The offense of accessory before the fact and the offense of accessory after the fact, constitute two separate and distinct offenses. This statement is supported by Ivey v. State, 186 Ga. 216, 197 S.E. 322, 324, which, after defining the offense of accessory after the fact, continues as follows: "This definition eliminates the idea of participation by a person guilty of such an offense in the perpetration of the major crime * * * as an accessory before the fact."

If, by reason of the definition of the offense of accessory after the fact, a person guilty thereof cannot be guilty of the offense of accessory before the fact, it then necessarily follows that the two are separate and distinct offenses.

The Bill of Rights protects against being put twice in jeopardy for the same offense. Here the offenses were separate The establishment of the defendant's innocence of the crime of accessory before the fact leaves open the question of herguilt or innocence of the crime of accessory after the fact.

In Harris v. State, 193 Ga. 109 (1), 17 S.E.2d 573, 574, 147 A.L.R. 980, the following is held: "In order to sustain a plea of former jeopardy, it is always incumbent upon the defendant to plead and prove that the transaction charged in the second indictment is the same as a matter of fact as that charged in the first indictment under which he was put in jeopardy. In addition to pleading and proving that the transaction is the same as a matter of fact, it is also necessary to plead and prove: Either (a) that the transaction charged in the second indictment is an offense which is identical in law with that charged in the first indictment, or else that under the actual terms of the first indictment proof of the second offense was made necessary as an essential ingredient of the offense as first charged; or (b) that the transaction charged in the second indictment is an offense which represents either a major or minor grade of the same offense of which the defendant might be convicted under an indictment for the major offense; or (c) where the transactions are the same as a matter of fact, even though the offenses be not identical or in effect identical as a matter of law, so as to come within the scope of the preceding subsections (a) or (b), he may nevertheless, under the principles of res judicata which may be included in a plea under the broader doctrine of former jeopardy, show that his acquittal on the first charge was necessarily controlled by the determination of some particular issue or issues of fact which would preclude his conviction of the second charge."

The plea in the instant case does not meet the requirements of this rule. The offenses of accessory before and after the fact do not constitute the same transaction. Different facts must be alleged in respective indictments charging these offenses. Different evidence must be introduced in order to prove them.

An acquittal for the offense of accessory before the fact to a particular crime is not a bar to the conviction of the same person for the offense of accessory after the fact to the same crime.

This assignment of error is without merit.

2. The defendant demurred to the indictment generally on three grounds, to wit, (1) that it fails to set out any offense; (2) that it fails to sufficiently allege the guilt of the principal, and (3) that it fails to allege that at the time the defendant harbored, assisted and protected the principal, that he was charged with the principal crime or had been convicted thereof.

The indictment here charges that the defendant "did then and there after full knowledge that Charlie Turner had killed and murdered one Talmadge Manry, did conceal the crime and did harbor and assist and protect the said Charlie Turner, the said Charlie Turner has been convicted * * *, " etc.

Reference to Code, § 26-604, which defines the offense of accessory after the fact reveals that the indictment states the offense in substantially the language of the Code. Section 27-701 of the Code provides in part as follows: "Every indictment or accusation of the...