Selvidge v. State

• Decision Date: 07 March 1984
• Docket Number: No. 39889,39889
• Citation: 313 S.E.2d 84,252 Ga. 243
• Parties: SELVIDGE v. The STATE.
• Court: Georgia Supreme Court

Page 84

313 S.E.2d 84

252 Ga. 243

SELVIDGE v. The STATE.

No. 39889.

Supreme Court of Georgia.

March 7, 1984.

G. Alan Blackburn, Atlanta, for James Kenneth Selvidge.

John Strauss, Dist. Atty., Covington, for the State.

BELL, Justice.

Selvidge was tried on three counts of theft by receiving. The counts charged him with receiving stolen goods from, respectively, a hardware store known as Hayes Truck and Tractor, Malcolm's Grocery, and a convenience store known as Pop Breedlove's. Selvidge was granted a directed verdict on the Malcolm's Grocery count, but was convicted on the remaining counts. Selvidge appealed, and the Court of Appeals affirmed the two convictions. Selvidge v. State, 166 Ga.App. 80, 303 S.E.2d 294 (1983). We granted certiorari to review a question relating solely to the Pop Breedlove's count: whether the testimony of David Grant, the burglar of Breedlove's store and the principal witness against Selvidge on the Breedlove's count, required corroboration under OCGA § 24-4-8 (Code Ann. § 38-121). In answering this question, we will supplement the facts as stated by the Court of Appeals only where necessary to this opinion.

A basic rule of our criminal law is that in a felony case the uncorroborated testimony of an accomplice is insufficient to support a conviction. OCGA § 24-4-8 (Code Ann. § 38-121); Kesler v. State, 249 Ga. 462(2), 291 S.E.2d 497 (1982); Slocum v. State, 230 Ga. 762(3), 199 S.E.2d 202 (1973). Applying the traditional definition of an accomplice--one who is a party to the crime, Kilgore v. State, 251 Ga. 291(1)(a), 305 S.E.2d 82 (1983); Moore v. State, 240 Ga. 210(1), 240 S.E.2d 68 (1977); Ford v. State, 232 Ga. 511(7), 207 S.E.2d 494 (1974)--and relying upon the general rule that a thief and the receiver of the goods he has stolen are not accomplices within the meaning of OCGA § 24-4-8 (Code Ann. § 38-121), see Springer v. State, 102 Ga. 447(1)(2), 30 S.E. 971 (1897); Harris v. State, 67 Ga.App. 446(4), 20 S.E.2d 434 (1942), cited in Selvidge, supra at 83, 303 S.E.2d 294; accord, Birdsong v. State, 120 Ga. 850(1), 48 S.E. 329 (1904); Stover v. State, 158 Ga.App. 644(1), 281 S.E.2d 642 (1981); Bradley v. State, 2 Ga.App. 622(1), 55 S.E.2d 1064 (1907); contra, Roberts v. State, 55 Ga. 220(1) (1875), the Court of Appeals found that Selvidge and Grant were not accomplices. Accordingly, the court concluded that Grant's testimony as to Selvidge's participation in the crime of receiving stolen goods from Breedlove's store did not have to be corroborated. Selvidge v. State, 166 Ga. at 82-83, 303 S.E.2d 294. We disagree with the court's conclusion that Grant and Selvidge were not accomplices; however, we uphold the court's affirmance of Selvidge's conviction on the Breedlove's count because we find that sufficient corroboration existed.

Although we agree that the general rule is that a thief and his receiver are not accomplices within the meaning of OCGA § 24-4-8 (Code Ann. § 38-121), we find that, in light of the evil which § 24-4-8 (Code Ann. § 38-121) is designed to remedy, an exception to this general rule is justified where there is evidence that the thief and the receiver have engaged in a common criminal enterprise. See 53 A.L.R.2d 817, 838-846; Wilson v. Commonwealth, 75 S.W.2d 202 (Ky.1934) ; People v. Lima, 154 P.2d 698 (Cal.1944). The corroboration requirement of OCGA § 24-4-8 (Code Ann. § 38-121) is based upon the concern that an accomplice, due to motives such as a hope or promise of leniency or immunity, may perjure himself to aid the state in procuring the conviction of others. 7 Wigmore on Evidence, § 2057 at 322 (3rd Ed.1940); 30 Am.Jur.2d, Evidence, § 1148; Coleman v. State, 227 Ga. 769(1), 183 S.E.2d 379 (1971). In cases where the thief and his receiver have acted pursuant to a common criminal enterprise and one or both are testifying against the other, the opportunity and motives for perjury which present themselves are essentially the same as those in criminal prosecutions involving the traditional forms of accomplices, and the testimony should be afforded the same measure of distrust.

For this reason, we now hold that, if a thief and a receiver of the stolen goods have acted pursuant to a common criminal enterprise, they are to be considered accomplices within the meaning of OCGA § 24-4-8 (Code Ann. § 38-121). Accordingly, the Court of Appeals' decision in the instant case and the other cases cited above which have held that the thief and receiver are not accomplices of each other are hereby disapproved to the extent they are inconsistent with this opinion. We emphasize, however, that many cases involving a thief and a receiver of stolen goods will fall outside the ambit of the above exception, in that there will have been no connection between the thief and the receiver other than the passing of stolen goods from one to the other. In those instances, the thief and receiver are not accomplices, and no corroboration is necessary.

In the instant case, there is some evidence that Grant and Selvidge were involved in a common criminal enterprise. There was evidence that Selvidge drove Grant and Flowers to Breedlove's, where he dropped them off and left the scene. Grant's testimony shows that, when Selvidge returned close to midnight and picked them up in front of the store, they loaded goods stolen from Breedlove's into Selvidge's car. Moreover, the record shows that Grant, Selvidge, and Flowers aided each other in transporting the goods to Selvidge's trailer and in consuming and disposing of the stolen goods. Under these circumstances, we find that Grant should be considered an accomplice of Selvidge for the purposes of the evidentiary rule of OCGA § 24-4-8 (Code Ann. § 38-121).

It being determined that Grant was an accomplice of Selvidge, it follows that his testimony as to Selvidge's identity and participation in the crime of receiving stolen goods had to be corroborated, and that that...