Pitts v. State, 47587

• Decision Date: 12 February 1973
• Docket Number: Nos. 1,2,No. 47587,3,47587,s. 1
• Citation: 197 S.E.2d 495,128 Ga.App. 434
• Parties: Clyde M. PITTS v. The STATE
• Court: Georgia Court of Appeals

Page 495

197 S.E.2d 495

128 Ga.App. 434

Clyde M. PITTS v. The STATE.

No. 47587.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 12, 1973.

Rehearing Denied March 8, 1973.

Glenn Zell, Atlanta, for appellant.

Edward E. McGarity, Dist. Atty., McDonough, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

The defendant was indicted, tried and convicted of burglary. He was sentenced to serve 20 years. The appeal is from that judgment, in that his conviction was based upon the uncorroborated testimony of an accomplice, and insufficient evidence to support the verdict. Held:

The State contends that Summerville, Pitts and another, who were drug addicts, met in Atlanta and entered into a conspiracy to burglarize a drug store in order to steal drugs which they much needed at the time. Defendant Pitts was convicted, and on appeal he contends that the testimony of the accomplice was not sufficiently corroborated to sustain a conviction.

Dr. George Luna, pharmacist, testified that he was called by a policeman to come to the Luna Drug Store in Hampton, Georgia, on the early morning of September 29, 1971; that he reached the drug store around 3:15 a.m. and found that the door had been pried open and a burglary committed, including the theft of narcotics.

Summerville, the accomplice, testified that he and defendant Pitts and another met together in Summerville's apartment in Atlanta on the preceding night; that they were all drug addicts, had no money and were in need of drugs; that they agreed to burglarize a drug store and steal narcotics therefrom; that in pursuance of this agreement they left Atlanta after midnight and drove an automobile to a drug store in Hampton which resulted in the Luna Drug Store being burglarized.

All of the above testimony by the accomplice was corroborated by defendant Pitts in his unsworn statement to the jury. He stated to the jury: 'My name is Clyde Pitts and most of what David Summerville told you is true. We did meet in Atlanta and decided to come down to Hampton to commit a burglary of George Luna's Drug Store. We did leave Atlanta and come down I-75, and we went into Hampton. We drove past the drugstore and David told us where there would be a police officer, so we went there and the police officer was there . . .' (Emphasis supplied)

Without going any further, and completely disregarding the testimony of the accomplice, it is submitted that the foregoing constitutes sufficient evidence on which to base a conviction. The defendant admitted that he conspired and agreed to burglarize the Luna Drug Store; admitted that he was a drug addict, and desperate for drugs, that he drove from Atlanta to Hampton on the night in question for the purpose of burglarizing the Luna Drug Store. At a time closely coinciding with Pitts' arrival in Hampton, it was discovered that the very drug store he had planned to burglarize was indeed entered and burglarized; among the missing articles was a large quantity of narcotics, an item of drugs which defendant said he badly needed. We repeat, Dr. Luna's testimony and defendant's statement constituted sufficient evidence to uphold a conviction.

But there was also sufficient corroboration of the testimony of the accomplice for a conviction. It is quite true that defendant Pitts stated to the jury that he changed his mind about the burglary and did not enter the drug store, and took no part in the burglary 'other than knowing about it.' The accomplice testified that Pitts actually entered the drug store and burglarized it, while the accomplice remained outside as a look-out. Thus, they were sharply contradictory as to who entered the drug store. However, the law specifically lays down the rule that if the accomplice is corroborated in material parts of his testimony, then he may be believed by the jury as to other material parts as to which there is no corroboration. That is set forth in Code § 38-121.

The following authorities govern this matter and show plainly the extent of corroboration that is required in such cases:

1. It is not essential that the testimony of the accomplice shall be corroborated in every material particular. Dixon v. State, 116 Ga. 186(7), 42 S.E. 357; McPherson v. State, 96 Ga.App. 839(1), 101 S.E.2d 750.

2. 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. Waldrop v. State, 221 Ga. 319(1), 144 S.E.2d 372.

3. Such corroborating circumstances need not be enough to amount to another witness or sufficient to support one to that extent. Ransone v. Christian, 56 Ga. 351(4).

4. Slight evidence of corroboration connecting defendant with the crime is sufficient. Lindsey v. State, 227 Ga. 48, 52, 178 S.E.2d 848; Hargrove v. State, 125 Ga. 270, 275, 54 S.E. 164; Whaley v. State, 177 Ga. 757(3), 171 S.E. 290.

5. The sufficiency of corroboration of the accomplice is entirely a matter for the jury. Potts v. State, 86 Ga.App. 779(4), 72 S.E.2d 553. And if there be some corroborating testimony, this court will not say the evidence did not authorize the verdict. Walters v. State, 41 Ga.App. 570(2), 153 S.E. 925.

In other words, if the accomplice is shown to be truthful (corroborated) as to certain material matters he may be believed without corroboration as to other material matters. Was the accomplice so corroborated? The defendant himself began his statement to the jury with a strong endorsement of the veracity of the accomplice, when he stated: 'Most of what David Summerville told you is true.'

Were the matters on which the accomplice was corroborated by the defendant material? Did they tend to connect the defendant with the crime? Surely both of these tests are met. The corroboration included facts showing that both accomplice and defendant were drug addicts and in need of drugs; both agreed and conspired to burglarize a drug store in Hampton, Georgia; both of them rode together in an automobile to Hampton after midnight for the specific purpose of burglarizing the Luna Drug Store. Now another witness comes on the scene and corroborates the accomplice. Dr. George Luna testified that his drug store was indeed burglarized on the very night the accomplice and defendant planned and agreed to burglarize it; he discovered the burglary shortly after they arrived in Hampton in the early hours of the morning; he found that a large...