Weeks v. State

• Decision Date: 22 January 1942
• Docket Number: 29213.
• Citation: 18 S.E.2d 503,66 Ga.App. 553
• Parties: WEEKS v. STATE.
• Court: Georgia Court of Appeals

18 S.E.2d 503

66 Ga.App. 553

WEEKS v. STATE.

No. 29213.

Court of Appeals of Georgia, Division No. 1.

January 22, 1942

Wilbur B. Nall and Luther Roberts, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. R. Parham, and Durwood T. Pye, all of Atlanta, for defendant in error.

BROYLES Chief Judge.

Carl Weeks was jointly indicted with Howard Darnell for the larceny of a described automobile, the property of N.H Bailey; the indictment alleging that, "prior to committing the above charged crime," Weeks and Darnell had been convicted of designated felonies and sentenced to confinement and labor in the penitentiary for each of those crimes. On October 10, 1940, Darnell was tried on the above indictment and acquitted; and on March 10, 1941, a jury convicted Weeks of the offense charged and fixed his sentence at five years. Weeks' amended motion for new trial was overruled and he excepted to that judgment.

The brief of evidence discloses that the automobile in question belonged to N.H. Bailey and was worth about $650; that on the night of August 30, 1940, Mrs. N.H. Bailey parked it in front of her father's

home in the City of Atlanta and it was gone the next morning that she immediately notified the Atlanta police department of the loss of the car, and at about noon of September 3 1940, police officers of the City of Atlanta located it on Marietta Street; that the officers stopped the automobile after a short but rapid chase and "Darnell was driving the car and Weeks was riding in it"; that both occupants of the car fled, and Darnell was not caught until several days later; that the officers ran Weeks "for about twelve blocks *** through fields and alleys and everywhere else and finally caught him under a house over there back of the Terminal Station"; that when caught Weeks said that "Darnell was in the whisky business and that he was going to go with him and get a load of whisky," but did not tell who was driving the automobile; and that Weeks and Darnell had been knowing each other "a year or more." The State also introduced in evidence an indictment charging that "Carl Weeks, alias James Wallace" and another person committed the offense of robbery on June 23, 1932, in Fulton County, Georgia. To this charge Weeks pleaded guilty and was given a sentence of twelve months. The state next introduced in evidence an indictment charging that Weeks committed the offense of larceny of an automobile on February 15, 1934, in Fulton County, Georgia. To this charge Weeks also pleaded guilty and was sentenced to the penitentiary. The next indictment introduced charged "W. C. Johnson and Carl Weeks, alias George Allen, alias James A. Wallace," with possessing burglary tools on April 30, 1936, in Fulton County, Georgia. A jury found Weeks guilty on this charge and the court sentenced him to a three-year term in the penitentiary. The defendant, Weeks, introduced no evidence, but made to the jury a statement, the material parts of which follow:

"I had been in and was in the whisky business, and this boy *** came by the station where I was hanging out and told me he had a load of liquor out in the edge of town in the woods and asked me to go out there and look at it. In fact, I was going to buy it. As I think the owner of the car stated, the back seat and all was out. The keys were in the switch. I didn't pay any attention because I didn't know the boy was stealing cars, in that line of business, and I wasn't interested in that. I was merely trying to make myself some money, and he was trying to sell me some whisky at a reasonable price, and I didn't know the car was stolen, and so when it wrecked this boy said 'Run,' and naturally, I don't know, I had just been in trouble before, and I ran and tried to get away. Since that time the boy has come to trial and been tried by a jury and come clear for stealing the car. The boy was driving it. Still, I am being brought up here and tried for it, and I am not guilty of any implication in it, or knowing it was stolen, or having to do with the stealing of it. I am guilty of being in it and going out there to buy a load of whisky. That is all I can say."

1. Special ground 1 avers that the court erred in charging the jury upon the law of conspiracy (1) because Darnell's previous acquittal of the offense charged jointly against him and Weeks left no one with whom Weeks could have conspired, and, therefore, eliminated conspiracy from the case; and (2) because there was no evidence, either direct or circumstantial, to warrant the charge. "In criminal law conspiracy is a combination or agreement between two or more persons to do an unlawful act, and may be established by proof of acts and conduct, as well as by direct proof or by express agreement." Bolton v. State, 21 Ga.App. 184(1), 94 S.E. 95, and cit.; Thomas v. State, 56 Ga.App. 381 (2), 192 S.E. 659. In Tanner v. State, 161 Ga. 193(11), 130 S.E. 64, 65, the court approved the following charge: "A conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, unlawful either as a means or as an end. This agreement may be established by direct proof, or by inference, as a deduction from conduct, which discloses a common design on the part of the persons charged to act together for the accomplishment of the unlawful purpose. This question, that is, whether or not a conspiracy has been established, is solely for the jury to determine." To the same effect is Harris v. State, 184 Ga. 382, 392, 191 S.E. 439. Applying the rule of law approved in the above decisions to the facts of this case, we are satisfied that the evidence warranted the court in submitting to the jury the question as to whether a conspiracy had been proved and in charging the law applicable to conspiracy.

But was the question of conspiracy eliminated from Weeks' case by reason of the acquittal of Darnell of the offense charged against them jointly? We think not. There is a wide difference between those cases where the substantive offense of conspiracy is charged and the combination is the very gist of the offense, and that other class of cases where the crime charged is some other offense, such as murder or the larceny of an automobile, and the conspiracy is proved merely as an evidentiary fact to sustain the real charge. For instance, "to render a conspiracy indictable at common law, no overt acts in carrying out the design of the conspirators were necessary. The conspiring was sufficient to authorize an indictment." Brown & Allen v. Jacobs' Pharmacy Co., 115 Ga. 429, 433, 41 S.E. 553, 554, 57 L.R.A. 547, 90 Am.St.Rep. 126. To the same effect is the statement in 5 R.C.L. 1066, § 7, that "the criminal offense, at common law, is complete as soon as the confederacy or combination is formed." "While the common-law offense of conspiracy has not been incorporated in the Penal Code of 1895, our books recognize that one may conspire with another to commit a crime. In such instances the crime is that prohibited by the statute, and the conspiracy is referred to as an incident, and one of the means by which the act is accomplished." Bishop v. State, 118 Ga. 799, 802, 45 S.E. 614, 615, citing Nobles v. State, 98 Ga. 73, 78, 26 S.E. 64, 38 L.R.A. 577. On page 78 of the Nobles case in 98 Ga., page 65 of 26 S.E. 38 L.R.A. 577, the court said: "While the indictment in the present case alleges a conspiracy between the defendants in the execution of a common purpose to murder the deceased, it is not an indictment for the technical offense of conspiracy, which involved at common law proof not only of the illegal act, but the unity of purpose between the conspirators. In that case, the conspiracy was of the gist of the offense; the illegal act only an incident, which served to characterize the conspiracy. Hence it was held that, if the proof of the conspiracy failed as laid, the accused must be acquitted. The provision of our Code, above referred to, eliminates, however, that difficulty, even if, in cases like the present, the doctrine could ever have had application. It will be observed that the distinction between the present [case] and cases like those above referred to lies in the fact that in such cases the conspiracy was made by statute the central incriminating fact, the ultimate result; the homicide, the incident; while in the present case the homicide constituted the breach of the public law, and the conspiracy was only incidentally the means by which the violation of the law was accomplished. It could have been as well accomplished by the commission of the homicide by one person alone, as by that person acting in conjunction with many; and hence the proof of the conspiracy, the conspiracy itself not being a substantive part of the offense, was not necessary to a conviction of those persons who were shown to have participated in both the criminal design and in the criminal act."

In Daniels v. State, 58 Ga.App. 599(9), 199 S.E. 572 578, a case where several persons were jointly indicted for the offense of robbery, this language is used: "The crime is the act prohibited by statute, not the conspiracy alone. The...