Thompson v. State

• Decision Date: 25 October 1938
• Docket Number: 26833.
• Citation: 199 S.E. 568,58 Ga.App. 593
• Parties: THOMPSON v. STATE.
• Court: Georgia Court of Appeals

199 S.E. 568

58 Ga.App. 593

THOMPSON v. STATE.

No. 26833.

Court of Appeals of Georgia, First Division

October 25, 1938

Rehearing Denied Nov. 23, 1938.

Syllabus by the Court.

1. Where, as under the facts of this case, a witness, not the prosecutor, makes answer, not responsive to the question asked by the solicitor-general, whether or not the answer is responsive is not always controlling, which answer attacks or puts in issue the character of the defendant, it is not error to overrule a motion to declare a mistrial, where it appears that the solicitor was not seeking to bring out any such testimony and himself asked that it be ruled out, and the court promptly excluded it and instructed the jury at length to obliterate any such statement from their minds.

2. Acts, conduct, and declarations of an accomplice during the pendency of the wrongful act, not alone in its actual perpetration, but also in its subsequent concealment, are admissible against another accomplice. In legal contemplation the enterprise may not be at an end so long as the concealment of the crime or the identity of all the conspirators has not been disclosed. Acts and declarations of such undisclosed conspirators, looking to the concealment of identity and the suppression of evidence, are admissible against other conspirators.

3. None of the remaining assignments of error require the grant of a new trial.

Error from Superior Court, Bibb County; W. A. McClellan, Judge.

Charlie Thompson was convicted of robbery, and he brings error.

Affirmed.

W. O Cooper, Jr., of Macon, for plaintiff in error.

Chas H. Garrett, Sol. Gen., of Macon, for defendant in error.

GUERRY Judge.

The defendant, Charlie Thompson, was jointly indicted with Pee Wee Burns and Fred Daniels for the robbery of Pete Modena. It was alleged that on July 17, 1936, they took by force from Pete Modena one lady's diamond ring, one man's diamond ring, one S & W pistol, one diamond and emerald stick pin, two hundred and five cases of whisky, and $257 in money. Thompson was tried separately and convicted, and now complains to this court.

The evidence for the State showed that Modena was a wholesale and retail bootlegger in Bibb County, Georgia. That he had been handling liquor in wholesale quantities for some time, and that Charlie Thompson had been a regular customer of his. Charlie Thompson lived in Atlanta.

He had suggested to Modena that he was in danger of being "hi-jacked." Bob O'Conner, alias Hugh Gibson and L. M. Wilson, alias Ned Welch, both of whom had criminal records in various parts of the county and who had served time together and had become acquainted in the Federal Penitentiary in Atlanta, were State witnesses. O'Conner had known Charlie Thompson before, and in July, 1936, they met again in Atlanta. O'Conner and Wilson were staying together at the Georgian Terrace Hotel and on Wednesday night, July 16, Thompson brought Pee Wee Burns with him to Wilson's room. Thompson told the others that Modena was a bootlegger and on the following night would have a truck load of whisky brought to his place valued at $6000, and that they could go down to Macon and get the liquor and the money. He made a map of the location of Modena's house and it was agreed that they would "pull it" or "hi jack" it-the money and the whisky. Burns was to furnish a truck to haul the whisky. On Thursday morning Thompson carried O'Conner and Wilson to Macon in Wilson's car and showed them Modena's house, and the best way from the house out to the Atlanta road. They came back to Atlanta Thursday afternoon and had an agreement to meet Burns that night out near the Federal penitentiary. Wilson and Burns left the Georgian Terrace Hotel about 9 o'clock, came by the Piedmont Hotel, picked up Thompson, and then met Burns at the appointed place. Burns told them that he had sent the truck on to Macon by Daniels. This was the first appearance of Daniels in the conspiracy. Thompson got in the car with Burns and rode to Macon with him. When they got near Modena's house they parked the truck and then showed Daniels the way to get out of Macon back towards Atlanta. They waited until after the lights in all the houses in the neighborhood of Modena's house had gone out and then drove in and went to his back door. Burns and Wilson went to the back door and knocked and told Modena they were federal agents looking for corn whisky. After he let them in the house they handcuffed him and his small boy together and also Mrs. Modena and then taped up their mouths and ears. The whisky, jewelry, and money were then taken.

Modena testified that he recognized Thompson's voice while they were moving the whisky out of his house, and that he, Thompson, called for the keys to the pantry where a particular brand of whisky, which Thompson had been buying, was stored. Modena made complaint to the officers in Bibb County the next morning, but did not tell them at the time that he had recognized any of the parties who had robbed him. O'Conner and Wilson both testified that Thompson did not get any of the money or jewelry, but that the money was divided between them and Burns, and that Burns got the jewelry. They were to be paid $900 for their services and the whisky was to belong to Thompson and Burns. After hiding the whisky near Thomaston, Georgia, that night, they went back to Atlanta about sunup. Wilson and O'Conner were arrested on the following Sunday and placed in Bibb County jail, have since pleaded guilty, and have been given sentences of five years for their part in the robbery. Sometime in August, while they were in jail, O'Conner's sister, Mrs. McSinnett, from Kentucky, came down to see him and he sent her to Atlanta to see Thompson, Burns, and Daniels. Neither of them had been arrested at that time. She testified that she saw Thompson and told him why she wanted to see him and that she wanted to make restitution to the Modenas; that if he did not co-operate it would be just as bad on him and Burns and Daniels as on her brother, and he said he knew it. Thompson got up $50 and gave it to her, and she carried it to her brother in the Macon jail. She also got into communication with Daniels and Burns, and they gave to her the two diamond rings and the stick pins which were returned to the Modenas. Thompson, in his statement, admitted his connection with Modena, and that he had been a regular customer of Modena's for six months or more, but denied any knowledge of the robbery, but he admitted that he had warned Modena that he was in danger of being "hi jacked," and also that he gave Mrs. McSinnett $50 for her brother, but claimed he did it through friendship. This is a brief statement of the facts as developed by the testimony.

The first and second grounds of the amended motion complain of the refusal of the trial court to declare a mistrial because while O'Conner, one of the State's witnesses, was testifying he stated: "We then went back to Atlanta and went out to Thompson's house to see if his suit case had been sent to his room as his wife was getting a divorce from him," and also, "I had met Mrs. Thompson in West Palm Beach, Florida, when Thompson was trying to make a junk connection, a morphine connection." The objection was that the testimony tended to bring in issue the character of the defendant by charging him with a separate crime. In reply the solicitor stated that he was not asking about any such thing as that, was only asking the witness about his acquaintance with Mrs. Thompson, and that the response had nothing to do with the case on his question and that he too asked that it be ruled out. The court fully instructed the jury then and there not to consider such statement and to obliterate it from their minds. It is apparent that the answer was not responsive to any question by the solicitor, and that the court was painstaking in its instruction to the jury in reference thereto. The witness himself was not the prosecutor. It is true that impressions may be sometimes created because...