Smith v. The State Of Ga.

• Decision Date: 31 July 1872
• Citation: 46 Ga. 298
• Parties: AARON SMITH, plaintiff in error. v. the STATE OF GEORGIA,defendant in error.
• Court: Georgia Supreme Court

46 Ga. 298

AARON SMITH, plaintiff in error. v. the STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1872.)

Criminal law. Accessory before the fact. Confessions. Before Judge Sessions. Echols Superior Court. April Term, 1872.

Aaron Smith was placed upon trial for being an accessory before the fact to the offense of arson, committed by Albert Franklin. Albert Franklin was present and testified on Smith's trial. He had not then been placed on trial.

The following portions of the testimony are all that are material to an understanding of the decision of the Court, to-wit:

Albert Franklin, sworn: "They took me down to the place at the branch to look at the tracks; they all had guns, and scared me; Mr. Green told me that if I knew anything and did not tell it, that I would be taken to the river swamp, cut open, filled with sand and thrown into the river; Mr. Green did not say he would do it, but that he had known such things to be done or to turn out in that way.

I said Aaron gave me one match, but he did not give me any. I told *them Aaron gave me one match and told me, and I went and burned the house. I did not show them the tracks at all; they showed them to me. I told them that Aaron gave me the match and I burned it, but it was not so. I was scared. They all told me that if I would tell the truth about it, I would come clear. J. L. Crawford and his son, Thomas, Mr. Hendrix and Mr. Elmore told me this."

The following evidence was objected to by defendant's counsel, and the objection overruled by the Court:

Isham Herndon, sworn: "I said to him (Albert Franklin) 'sit down here and tell me all about it.' He was sitting down and I asked, 'Alph., what made you do it?' He said, 'I reckon it was the old devil; yes, I know it was wrong and I am sorry for it; I did not do it with a torch—I did it with a match.' After that he got up and walked off from me. There was no threat made by any parties at all. He went up to the lot, and about one hour after that time he said he could show the tracks where he crossed the branch. There were no inducements offered to him to make him confess anything, nor was it through any fear."

James Carter, sworn: "We asked him (Albert Franklin) how he came to burn all that corn—what made him do it? He replied that the old devil made him do it. His mother asked him what made him do it. He replied that uncle told him to. No intimidation was used, but, on the contrary, he was assured that he would not be hurt."

Adam Zeigler, sworn: "Aaron (Smith) said to me to tell Albert not to use his name—not to bring him into the burning scrape. I delivered the message to Albert. He said that he burned it, and was told to burn it—that a certain man told him to do it."

The jury found the defendant guilty. A motion for a new trial was made, upon the following grounds, to-wit:

1st. Because the Court charged the jury that "an accessory before the fact can be tried before the principal in the crime, " although the principal was in Court awaiting his trial. 2d. Because the Court erred in admitting in evidence the *confessions of Albert. Franklin, the principal felon, for the purpose of showing his guilt.

3d. Because the verdict was contrary to the law and the evidence.

The motion for a new trial was overruled by the Court, and defendant excepted and assigned said rulings as error.

W. H. Dasher; H. G. Turner, by brief, for plaintiff in error. The trial of the principal must precede that of the accessory: Black. Com..p. 40, 323; Wharton\'s Am. Crim. Law, sec. 135; 1st Parker\'s C. C, 246; 17th Ga. R., 196; 28th Ga. R., 217; Code, secs. 4420, 4421.

Simon W. Hitch, Solicitor General, represented by Newman & Harrison,...