Simmons v. The State Of Ga.

• Decision Date: 31 May 1848
• Docket Number: No. 50.,50.
• Citation: 4 Ga. 465
• Parties: Dudley L. Simmons, plaintiff in error. vs. The State of Georgia, defendant.
• Court: Georgia Supreme Court

4 Ga. 465

Dudley L. Simmons, plaintiff in error. vs. The State of Georgia, defendant.

No. 50.

Supreme Court of the State of Georgia

MAY TERM, 1848.

Indictment for receiving stolen goods from a negro. Tried before Hon. James A. Merriwether, in Putnam Superior Court, March Term, 1848.

The plaintiff in error, at the March Term, 1848, of Putnam Superior Court, was put upon his trial under an indictment for "receiving stolen goods from a slave."

It was proven by Donaldson Prichard that the watch was stolen from him on the night of 2d Dec, 1843. A negro, Bob, was in the house during the day before, and saw the watch hanging up in the room occupied by witness and his mother; from which circumstance he was induced to have the negro arrested, who was tried and acquitted by the magistrates. The witness heard no one come in the house that night, but heard some one go out. Heard nothing of the watch until the Spring of 1844, when he took out a warrant for defendant and had him arrested by Mr. Wynne, the officer. Defendant refused to let witness or the officer come in his house. Witness told defendant he understood he had the watch, which he denied, or that he knew anything about it. He also denied telling Mr. Johnson, that he won it from witness. After a while, he came out, and was arrested, and they all went to Mr. Johnson's. Defendant called Johnson out, and wished to have a conversation with him, which Johnson refused, unless in the presence of a third person. Mr. Horton, Johnson, and defendant had a conversation together. Witness never gamed with defendant in the year 1843.

It was proven by Jos. Johnson, that defendant told him, previous to the arrest, that the watch was in his possession, or had been, and said he had won it, by gaming, from Prichard. In the conversation with Mr. Horton, and witness, defendant statedwhere the watch was, and said he would go and get it, and deliver it up to Horton; said it was at Warrenton, and that he carried it there, and left it. When defendant said he won it, the conversation was about the arrest of the negro. Defendant said, if Prichard did not stop what he was at. he would let the cat out of the wallet. He said it of his own accord, and said also, that Prichard requested him not to trade the watch in, Putnam, or Hancock county. Defendant gave as his reason for denying ever telling the witness these thiugs, that he wanted to avoid a clash and clamor in the community, and to save the reputations of both of them.

Wilkins J. Horton proved that the watch was his, corroborated the testimony of Johnson and Prichard, went with defendant to Warrenton, and got his watch. The letters on the watch originally, "E. A. L." were erased. Watch worth $40 or $50. While going to Johnson's, defendant said to witness he won the watch from Prichard,

Presley E. Prichard was at his brother's the 1st Dec, 1843, and saw the watch hanging up in the room.

Robert J. Wynn corroborated the testimony of the other witnesses, as to the arrest.

Donaldson Prichard, recalled, swore that the negro, Bob, made a fire in his room the day the watch was stolen. The negro who usually made the fire was sick. Witness never told William Simmons, Sr., nor Asa Simmons, that he let the defendant have the watch.

For the defendant.

Asa Simmons swore that D. Prichard said, in Sept. 1844. that he had certified that he let the defendant have the watch. The certificate was put in writing some 4 or 5 days after he first certified. At the time he first said, "I certify." he was sober; when put in writing, he was pretty drunk. Witness wrote the certificate.

Win. Little saw defendant and Prichard playing cards in the fall of 1844, in a tent at the camp-ground.

Asa Simmons, re-examined—proved the paper offered in evidence. Defendant explained the paper to Prichard, who signed it, and said he would sign any paper to clear defendant of the watch scrape, and would sign Jeff Wynne's death warrant.

The paper was as follows:

"I do certify to the citizens of Putnam county, that Dudley J. Simmons did get the watch from me honestly. Sept. 8th, 1844. Signed, D. PRICHARD."

Wm. Simmons, son of defendant, corroborated the testimony of Asa Simmons.

For the State:

Jas. F. Tucker, sworn—the signature to the paper is not in D. Prichard's handwriting. Has seen him write when drunk.

Robt. Ladd, Christopher Bustin, and John Edmondson swore to the same effect.

Jos. Johnson, re-examined—was requested by defendant to go to his house to hear Prichard make some acknowledgments. He went. Defendant handed Prichard the paper, who looked at it, and said there was one letter on it that looked like one he usually made, but if he signed it, he did not know it, and "you know you did not get the watch from me." Defendant made no reply.

The Court charged the Jury that it was necessary for them to be satisfied beyond a reasonable doubt: 1st. That the defendant received the watch. 2d. That he received it from the negro boy Bob. 3d. That the watch had been stolen, and 4th. That when defendant received it from the slave, Bob, he knew it to have been stolen from Prichard.

That the guilt or innocence of the defendant was not affected by the acquittal of Bob before the magistrates. That the offence is completed, whether the property was stolen by Bob, or some other negro, or a white person. That the person of the thief was immaterial. That it was not necessary to show either that Bob had been convicted, or that Bob, the principal thief, cannot be taken, so as to be prosecuted.

To all of winch the defendant below excepted.

The Jury found the defendant guilty, whereupon defendant moved for a new trial.

1st. That the Jury found without evidence in this: that there was no evidence from which a legal presumption could be raised that the watch in controversy was stolen by the negro, Bob, nor was there any evidence that defendant received or bought said watch from Bob, or any other negro, nor was there any other ev-idence from which the Jury could infer a guilty knowledge on the part of the defendant.

2d. That the verdict was without, and contrary to evidence. Which motion was overruled by the Court, to which decision defendant excepted, and assigned the same as error.

Ashurst & Foster, for plaintiff in error.

Sol. Genl. Bartlett, and Cone, for defendant.

Foster, for plaintiff in error, contended:

That defendant, if guilty at all, is guilty as an accessory after the fact. Acts of 1840, page 140.

An accessory after the fact cannot be tried until the principal felon be convicted. 1 Russel on Crimes, 34, to 40. Penal Code, Prince, 640, 1. 2 Bailey, 34, 49. Roscoe's Criminal Evidence, top page, 721.

Cone, for defendant in error.

1. The Act of 1840, under which the plaintiff is convicted, creates a new original offence, and does not require the previous conviction of the slave, or free person of color. 1 Russell & Ryan, 372.

2. It is not necessary, in order to constitute the offence, that the property should have been stolen by the slave, or free person of color, from whom it is received.

3. It is not necessary, in order to constitute the offence, that the property should have been stolen by a slave or free person of color.

4. The offence is complete if the prisoner receive the watch from a negro, knowing that it was stolen.

5. This Court will not grant a new trial in a criminal case, unless some principle of law has been clearly violated, or where there is manifestly no evidence to sustain the verdict. 1 Kelly, 620.

By the Court.— Nisbet, J. delivering the opinion.

We have two Penal Statutes in relation to the receivingof stolen goods—the 28th Sect. of the 8th Division of the Penal Code, and the Act of 1840. The former is in the following words: "If any person shall buy or receive any goods, money, chattels, or other effects, that shall have been stolen or feloniously taken from another, knowing the same to be stolen or feloniously taken, such person shall be taken and deemed an accessory after the fact, and shall receive and suffer the same punishment as would be inflicted on the person convicted of having stolen or feloniously taken the said goods, money, chattels or other effects so bought or received." Prince, 040. The Act of 1840 is as follows: "If any free white person or persons, shall buy or receive any money, goods, chattels or other effects from any negro or free person of color, that has or have been stolen or feloniously taken, knowing the same to have been so stolen or feloniously taken— such person or persons so offending, shall be taken and deemed to be accessory or accessories after the fact, and being convicted thereof, shall receive and suffer the same punishment as would have been inflicted on such person or persons, had he or they been convicted of stealing or feloniously taking the same." Hotchkiss, 734. Both these statutes declare that the offender shall be taken and deemed an accessory after the fact. That is the legal character given to the offence in both acts—and all the incidents which attach to that offence, attach to the crime in them described. And the same pleadings and proof which are required to convict, are required by each of them. The Penal Code is general in the 28th Sect. 8th Division above quoted.

It applies to any person, whether slave, citizen, or free person of color, whilst the Act of 1840 applies only to free white persons. The code embraces the receiving of stolen goods, &c. from any person whatever, whether slave, free person of color, or free white person, knowing them to be stolen by any persons; whilst the Act of 1840 is confined to the receiving of stolen goods, &c. from a negro or free person of color, knowing them to be stolen. The punishment which the code prescribes, is that which by law is due to the principal offender; and that which the Act of 1840 prescribes, is the same which the law would inflict upon the accessory, were he convicted of the fact to which he is accessory. I see no difference between the Penal Code and the Act...