Walden v. State

• Decision Date: 06 February 1970
• Docket Number: No. 2,No. 44802,44802,2
• Citation: Walden v. State, 173 S.E.2d 110, 121 Ga.App. 142 (Ga. App. 1970)
• Parties: John R. WALDEN v. The STATE
• Court: Georgia Court of Appeals

Page 110

173 S.E.2d 110

121 Ga.App. 142

John R. WALDEN v. The STATE.

No. 44802.

Court of Appeals of Georgia, Division No. 2.

Feb. 6, 1970.

Stanley H. Nylen, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., J. Roger Thompson, Tony H. Hight, Atlanta, for appellee.

Syallabus Opinion by the Court.

EVANS, Judge.

The defendant was indicted, tried and convicted of the offense of unlawfully receiving, harboring and concealing an escaped convict. The appeal is from the judgment and sentence, including the overruling of a motion to quash the indictment and the motion for new trial, as amended. The substance of the alleged crime as disclosed by the evidence was that the accused assisted in the escape and then harbored the escaped State prisoner. This was shown by facts and circumstances amounting to an alleged conspiracy by the accused to assist the prisoner to escape, after which he was allegedly harbored by the accused. The testimony, in the main, discloses that the accused and his wife, both using an assumed name, together with another man and a little girl, visited the prisoner at the Reidsville Penitentiary shortly before he was transferred to the Talmadge Memorial Hospital in Augusta, from which he escaped. Another prisoner testified that the (escaped) prisoner on the night before he escaped gave him the Atlanta telephone number of the accused and wanted him to call the accused and tell him he would be in Augusta, that a guard was supposed to call but he wanted to be sure. This prisoner also testified that a custodial officer named O'Neil told the (escaped) prisoner in their presence shortly before leaving for Augusta that he had got a call through to Raymond and he is going to be at the hospital to pick you up. An Atlanta telephone official testified that there was a long distance call from Collins, Ga., to this number on the day before the escape. The Atlanta number was listed in the name of J. R. Walden. A white Ford car with an Atlanta license plate was seen following the car in which a guard and two prisoners being transferred to Reidsville were riding; a white car was also seen in the vicinity of the hospital thereafter, and also a light or off-white car was seen at or near the mother's home in Atlanta during the time the escapee was supposedly there, and the accused and another man and a little girl were seen riding in the car. Another witness testified that during the period the prisoner was allegedly harbored in the home of the mother of the accused she heard voices through the walls in the mother's apartment. The voices were male voices talking to a child, and one of the voices sounded like that of the accused, but she would not testify that it was his voice. A police officer testified that escapee was found in the apartment of the defendant's mother. He further testified that an informant told him the accused took the escaped convict from the Talmadge Memorial Hospital to his mother's home, and, based on the information of the informant, the police officers obtained a search warrant and recaptured the escaped convict.

The appeal is from the overruling of motions to quash, for new trial, as amended, and in arrest of judgment. Error is enumerated on the denial of the motion for new trial as amended, a charge on the law of conspiracy, and on the admission of a number of documents, being copies of indictments. Held:

1. A conspiracy may be shown by circumstantial evidence. It is not necessary that the conspirators ever had a meeting, or a formal or other agreement to accomplish the purpose of their joint efforts and it may be inferred from the acts, declarations and conduct of the co-conspirators, together with other circumstances in the case. 'To show conspiracy, it is not necessary to prove that the parties met together or entered into any specific or formal agreement, or that by words or writing they formulated their unlawful objects. Proof that two or more persons, either positively or tacitly, come to an understanding that they will accomplish an unlawful design, or a lawful design unlawfully, is sufficient.' Woodruff v. Hughes, 2 Ga.App. 361(3), 58 S.E. 551. See also Huckaby v. Griffin Hosiery Mills, 205 Ga. 88, 91, 52 S.E.2d 585, 587-588, wherein it is said: 'A conspiracy or common intent may be shown to have existed between parties by proof of acts and conducts, Davis v. State, 114 Ga. 104, 39 S.E. 906; Odum v. State, 183 Ga. 854, 190 S.E. 25; and it may be shown by circumstantial or direct evidence. McLeroy v. State, 125 Ga. 240(2), 54 S.E. 125. 'The law recognizes the intrinsic difficulty of proving a conspiracy. * * * The conspiracy may sometimes be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances.' Woodruff v. Hughes, 2 Ga.App. 361, 58 S.E. 551, 553; Horton v. Johnson, 192 Ga. 338, 346, 15 S.E.2d 605.' Again, in Nottingham v. Wrigley, 221 Ga. 386, 388, 144 S.E.2d 749, 751, the Supreme Court held: '* * * conspiracy may sometimes be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances. * * * It is not necessary to prove an express compact or agreement to the parties thereto. The essential element of the charge is the common design; but it need not appear that the parties met to gether either formally or informally, or entered into any explicit or formal agreement; nor is it essential that it should appear that either by words or writing they formulated their unlawful objects. It is sufficient that two or more persons in any manner either positively or tacitly come to a mutual understanding that they will accomplish the unlawful design. * * *' See also Holbert v. Allred, 24 Ga.App. 727(2), 102 S.E. 192, and citations; Archer v. Gwinnett County, 110 Ga.App. 442(2), 138 S.E.2d 895; Cook v. Robinson, 216 Ga. 328, 329-330, 116 S.E.2d 742. The evidence here of a conspiracy by and between Cozzalino and Walden was based on circumstances alone. But, under the above authorities, the evidence was sufficient for the court to charge on conspiracy and also to authorize the jury to find that a conspiracy existed...