Pope v. State

• Decision Date: 13 December 1930
• Docket Number: 8074.
• Citation: 156 S.E. 599,171 Ga. 655
• Parties: POPE v. STATE.
• Court: Georgia Supreme Court

156 S.E. 599

171 Ga. 655

POPE v. STATE.

No. 8074.

Supreme Court of Georgia

December 13, 1930

Rehearing Denied Jan. 22, 1931.

Syllabus by the Court.

Evidence of accomplice, corroborated only by evidence of other accomplices, is sufficient to convict for felony, except treason or perjury (Pen. Code 1910, § 1017).

One may be legally convicted of a felony other than treason or perjury, where the only evidence directly connecting him with the offense charged is the testimony of an accomplice, and where the only corroboration is the testimony of other accomplices.

Certified Question from Court of Appeals.

D. F Pope was convicted of an offense, and he brings error. On certified question from Court of Appeals.

Question answered.

Jno. D Pope, of Knoxville, Tenn., Norman Shattuck, of La Fayette and Mann & Mann, of Dalton, for plaintiff in error.

M. Neil Andrews, Sol. Gen., and Rosser & Shaw, all of La Fayette, and Dean Owens, of Rome, for the State.

GILBERT J.

The Court of Appeals certified to this court the following question: "Can a defendant in as felony case be legally convicted of the offense charged, where the only evidence directly connecting him with the offense charged is the testimony of several accomplices, and where the only corroboration of the testimony of each accomplice is the testimony of the other accomplices?"

In this state the only statute relative to the question propounded is found in the Penal Code (1910), § 1017, as follows: "The testimony of a single witness is generally sufficient to establish a fact. Exceptions to this rule are made in specified cases, such as to convict of treason or perjury, and in any case of felony where the only witness is an accomplice; in these cases (except in treason) corroborating circumstances may dispense with another witness." On the argument it was urged that the testimony of the accomplice amounted to "nothing," and that to corroborate such testimony with the testimony of another accomplice would be to add nothing to nothing; the result still being nothing. Counsel for the accused urged the view expressed by Chief Justice Russell, in his special concurrence in Williams v. State, 159 Ga. 728, 126 S.E. 844. That view probably could not be more strongly expressed. But the court did not express any view of the question in that case. This construction of the statute, we think, is contrary to its terms. It refers to the number of witnesses "when the single witness is an accomplice." If the lawmakers had intended to treat as a nullity the testimony of the witness who was an accomplice, they would undoubtedly have used a more definite term by simply declaring that an accomplice shall be incompetent as a witness. The mere fact that the statute provides for corroboration of an accomplice demands the construction that the testimony of an accomplice is not a nullity, but on the contrary that the testimony of an accomplice, standing alone, while not entitled to full credit, as in the case of a witness in no way discredited, still may be considered by the jury, and, when corroborated by other circumstances, a conviction may be credited.

There is no limitation placed upon the character or standing of witnesses by whom other circumstances may be proved. "At common law one could be convicted on the uncorroborated testimony of an accomplice." Stone v. State, 118 Ga. 705, 45 S.E. 630, 98 Am.St.Rep. 145. The disputed question was answered by Chief Justice Jackson, speaking the unanimous opinion of the court, as to corroboration of an accomplice, in Partee v. State, 67 Ga. 570, 571, as follows: "It is argued that as the confession, uncorroborated, itself would not be sufficient to convict, therefore it is not sufficient to prop up the testimony of the accomplice so that the two sorts of testimony together can legally convict. This is a non sequitur. On the contrary, the testimony of the accomplice would be wholly valueless, if it must be corroborated with evidence outside of itself which would legally be ample to convict. The testimony of the accomplice is good, competent evidence, but must be strengthened by other good and competent evidence in order to have sufficient force to carry legal conviction. That other legal evidence need not absolutely fix conviction,but only tend to fix it. [ Childers v. State] 52 Ga. 106. So also it was ruled at the last term, in the case of McCalla v. The State . Slight circumstances will suffice to support and corroborate the accomplice and make the conviction legal. [Roberts v. State] 55 Ga. 220."

That argument was again answered by Mr. Justice Lamar in Stone v. State, 118 Ga. 705, 711, 45 S.E. 630, 633, 98 Am.St.Rep. 145. That learned justice spoke for the entire court as follows: "He insists that these three witnesses were at least participants in the crime, and, if not accomplices within the letter of the definition, they were such in substance; that, in considering the probative value of testimony, the spirit of the rule should govern, and verbal niceties should be ignored; that, according to the practice in criminal cases, the jury were instructed not to convict even on the uncorroborated testimony of two or more accomplices; and that in the present case the application of these well-recognized principles of law demanded Stone's acquittal. This argument necessarily proceeds upon the idea that accomplices in all respects form an exception to the rule laid down as to the right of the jury to pass upon the credibility of impeached witnesses (Civ. Code 1895, § 5295 [1910, § 5884]); that their testimony is inherently bad; that to add testimony of one accomplice to that of another is to add nothing to nothing, the result still being nothing. On the contrary, on general principles, and until a comparatively recent date, the testimony of even a single accomplice was sufficient to support a conviction. At common law, where one had been found guilty of a felony, and judgment had been entered thereon, he was considered infamous and incompetent to testify. But when the witness showed that he was in fact guilty of a felony, as an accomplice of the defendant on trials, it appeared that nothing was needed except a formal judgment, to render him actually incompetent. This, among other reasons, finally led the judges, in the exercise of their broad power to advise concerning evidence, to caution the jury that, while they could consider such testimony, it ought to be corroborated before a judgment could be sustained thereby. In his work on Testimony of Accomplices. pp. 1--6. Baron Joy says: 'At what time the regulation came to be adopted is not easy to ascertain. *** In the conduct of Lord Holt it is nowhere discoverable. I do not find that Lord Hardwicke, when he presided in the King's Bench, had an idea of its existence; and even Lord Mansfield does not seem, at least in the year 1775, to have had a conception either of its existence or its necessity.' As late as 1788 Buller, J., being in doubt 'whether the evidence of an accomplice, unconfirmed by any...