Annis v. State

68 S.E.2d 473, 85 Ga. App. 188, 1951 Ga. App. LEXIS 1024

• Court: Court of Appeals of Georgia
• Decided: November 26, 1951
• Docket: 33572
• Status: Published

Opinions

MacIntyre, P. J.

The defendant was convicted of burglary. The jury was authorized to find that the corpus delicti had been proved as alleged in the indictment. The pressure here is not on whether the burglary had been committd, but whether the defendant was guilty of the burglary as charged in the indictment.

The jury was. authorized to find that on Sunday, October 29, 1950, between 8:30 p.m. and 6:30 the next morning the burglary was committed; that the defendant, Tom Annis, and Perk Griffin were together the night of the burglary, from “just about night until 9 p.m.”; that Griffin rode home with the defendant at about 9 p.m.; that the .defendant and Pink Best met af about 11 p.m. on the night of the burglary in a negro section of Tifton, near a restaurant operated by Lee Williams’s sister; "that there Lee Williams joined them and Pink Best and Lee Williams went off in the defendant’s car, and subsequently came back with 200 cartons of cigarettes which were later identified as some of the cigarettes stolen in the burglary here charged, that thereupon Pink Best and the defendant went to the defendant’s house and there got into the car of the defendant’s brother and went to Perk Griffin’s house; that on Monday, at about 10 a.m., the defendant, accompanied by Pink Best, delivered 100 cartons of cigarettes to Perk Griffin, and these were later identified as being part of the cigarettes stolen in the burglary in question; that a few days later Lee Williams was arrested and 50 cartons of the stolen cigarettes were found in his possession; that when the cigarettes which Griffin had 'purchased were found in his house, on Friday after the burglary on Sunday night, Griffin told the officers he had bought them from the defendant; that the officers thereupon went to the defendant’s house with a search warrant, but found no cigarettes, and when they told him what Griffin had said, the defendant said that Griffin was “a liar”; that on a second occasion the defendant emphatically denied that he had sold the cigarettes to Griffin, but when the officers confronted the defendant with Griffin, the defendant admitted that he had sold Griffin the 100 cartons of cigarettes on the night of the burglary and had delivered them the next morning, Monday; that when the defendant was asked “about the two cases that were left after selling Perk [Griffin] two cases—[that is] what he did with the other two [cases], he claimed that he burnt them,” because, after he heard of the burglary in question, he did not wish to be found in possession of the cigarettes; that when Griffin discovered that the cigarettes which he had bought from the defendant were unstamped, he took the matter up with the defendant and the defendant went to Tifton with Griffin and looked up Pink Best and told him the situation with reference to the cigarettes being unstamped; that Best thereupon saw Lee Williams and returned with tax stamps which were also identified by their serial numbers as having been stolen in the burglary in question,, at the same time the cigarettes were stolen; that thus the defendant and Pink Best, Perk Griffin, and Lee Williams were all found in possession of some of the stolen goods recently after the burglary, that the physical conditions at the scene of the burglary showed that more than one person participated therein.

The defendant undertook to explain his possession by saying that his meeting with Pink Best at about 11 on the night of the burglary was purely coincidental; that while he and Best were talking, Lee Williams came up and offered to sell him some cigarettes at a bargain; that they traded and the defendant got out of his car and sent Best and Williams to get the cigarettes; that they returned with 200 cartons, and the defendant, accompanied by Best, went to his home to get the money to pay for the cigarettes and not having enough money for this purpose, he took some of his wife’s money; and, still accompanied by Best, the defendant went to the home of Perk Griffin at about 11:30 and woke him and offered to sell him some of the cigarettes at the same bargain price at which he had obtained them, $1.25 per carton; that Griffin lent him, the defendant, $250, but the agreement was that he would deliver 100 cartons to Griffin and repay Griffin $150 upon the delivery of the cigarettes, and he would keep 100 cartons; but, Griffin’s testimony was that the defendant did not repay him the $150 on the next day after the burglary when he delivered the cigarettes to him, and that the defendant repaid the $150 only after both the defendant and Griffin were arrested and under bond. The jury obviously did not accept the defendant’s explanation and convicted him of burglary.

“The recent, absolute, and unexplained possession of property stolen from a house proved to have been burglarized may be sufficient to authorize a conviction of burglary, but the presumption of guilt arising from proof of such facts is not one of law.” Cuthbert v. State, 3 Ga. App. 600 (60 S. E. 322); Lundy v. State, 71 Ga. 360.

It seems to us that from all of this contact with each other and the possession of the cigarettes by the defendant, Best, Williams, and Griffin on the night of the burglary, when considered with the circumstances connected therewith, the jury was authorized to find that there was a conspiracy between these men to commit the burglary charged in the indictment.

“In criminal law, conspiracy is a combination or agreement between two or more persons to do1 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 (94 S. E. 95).

There is no such crime as conspiracy under our law, but one may be found guilty of a crime caused by acts pursuant to an already formed conspiracy. The crime is the act prohibited by statute, not the conspiracy alone. The conspiracy of itself-is no crime. “ ‘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).” Randall v. State, 73 Ga. App. 354, 370 (36 S. E. 2d, 450).

Conspiracy being an incident and one of ,the means by which a criminal act is accomplished, in order to authorize the court to charge on conspiracy, it is enough if there be evidence from which a legitimate inference can be drawn that there was a combination between two- or more parties to- do an unlawful act (this is the conspiracy) and that the combination was the means by which the criminal act was accomplished, and this inference may be drawn from proof of acts and conduct as well as by direct proof or express agreement.

“ ‘It is seldom that any one act, taken by itself, can be seen as tending to prove a conspiracy, but when taken in connection with other acts, its tendency to prove the fact may be more clearly discerned. We may be satisfied from circumstances attending a series of criminal acts, that they result from concerted and associated action, although if each circumstance was considered separately, it might not show confederation; but, where linked together, circumstances that in themselves are inconclusive, yet taken as a whole, may show that apparently isolated acts spring from a common object and have in view the promotion of a common purpose.’ . 2 Wharton’s Criminal Evidence (10th ed.), § 888.” Nelson v. State, 51 Ga. App. 207, 211 (180 S. E. 16).

Frequently among the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts. Randall v. State, supra.

The defendant contends that the rule, that the jury is forbidden to arbitrarily disregard direct and positive testimony which is wholly unimpeached, not contradicted, and in no way discredited, is applicable to the instant case, under the authority of Gibbs v. State, 8 Ga. App. 107 (68 S. E. 742), Hampton v. State, 6 Ga. App. 778 (65 S. E. 816), and certain other cases to the same effect upon which he relies in his brief.

The State contends that the following rule is applicable: Where a defendant is charged with burglary and the corpus delicti has been proved, if the defendant’s guilt is wholly dependent upon an inference arising from the possession of some of the described stolen property recently after the burglary, and this possession is shown by direct, uncontradicted and unimpeached evidence to be consistent with the defendant’s innocence, such evidence should be credited and have the effect of overcoming the mere presumption arising from such possession of the property alleged to have been stolen in the burglary; but, that where the witnesses’ testimony is contradicted by circumstances that can be taken as incompatible with such direct evidence as referred to above, the courts and the juries are not bound to refrain from exercising their own judgments and blindly adopt the statement of a witness or witnesses for the simple reason that no other witness has denied the testimony and that the character of such witness has not been impeached. Goldwire v. State, 56 Ga. App. 379 (192 S. E. 643); Lankford v. Holton, 187 Ga. 94, 102 (200 S. E. 243); Fortson v. State, 69 Ga. App. 378 (25 S. E. 2d, 820); Cooper v. Lumbermen’s Mutual Casualty Co., 179 Ga. 256, 261 (175 S. E. 577); Anderson v. State, 50 Ga. App. 182 (177 S. E. 526); Detwiler v. Cox, 120 Ga. 638 (48 S. E. 142).

Since the jury was authorized to find that Best, Williams, and the defendant participated in the conspiracy to burglarize during the existence of such conspiracy, it would necessarily follow that the rule in the Gibbs case and the Hampton case, together with the other cases to the same effect relied upon by the defendant, is not applicable in the instant case for the reason that the testimony of Williams and Best was necessarily contradicted by circumstances which the jury was authorized to find were incompatible with the truth of their testimony and the jury was not compelled to blindly accept the testimony of those two' witnesses for that reason. Furthermore, it might be added that the rule in the Gibbs and Hampton cases is not applicable to Williams’s testimony for the reason that on the day before the present' defendant’s trial, Williams had been convicted of a felony involving moral turpitude (burglary) which was sufficient reason to cause the jury not to believe his testimony.

Under all the circumstances of the case, the jury was authorized to- find the- defendant guilty as charged.

From what has already been said with respect to conspiracy in the foregoing division of this opinion, it follows that the assignments of error in special grounds 2 and 6 (numbered 5 and 9), upon the ground that there was no evidence of a conspiracy such as to authorize the court to charge the jury on the subject, are without merit.

Special ground 1 (numbered 4) is expressly abandoned by the defendant in his brief and will not be considered. Code § 6-1308.

In special grounds 3 and 4 (numbered 6 and 7) error is assigned upon the following excerpts from the charge of the court: “Now, gentlemen, I charge you further in this case, that the recent possession of goods stolen or feloniously taken, if not satisfactorily explained, is sufficient to authorize a conviction in cases of larceny from the house and burglary where the corpus delicti is established. . . The mere fact, gentlemen, that you believe that the warehouse was broken into- and property stolen therefrom would not authorize you to find the defendant guilty unless you are also satisfied that he was the person who committed the offense alleged to have been committed and as charged in the indictment; and in determining the question as to whether he was the person who wrongfully and fraudulently did break and enter this building you may consider, if the evidence shows it, the recent possession of the defendant of property alleged to have been stolen, the law being that the unexplained, or unsatisfactorily explained, possession of property the fruit of a recent larceny or burglary raises a presumption of guilt against the possessor. The presumption, however, is one of fact and not of law. It would authorize a conviction unless the possessor can make an explanation of his possession of the stolen goods consistent with innocence.” These excerpts complained of are not subject to the criticism that they instruct the jury that as a matter of law the defendant would be guilty as the result of the possession of recently stolen property, the possession of which is unsatisfactorily explained, but only instructs the jury that such possession is sufficient to authorize the jury as a matter of fact to find the defendant guilty. Harris v. State, 47 Ga. App. 864 (171 S. E. 871); Morris v. State, 47 Ga. App. 792 (171 S. E. 555); Cook v. State, 49 Ga. App. 86, 88 (174 S. E. 195).

In special ground 5 (numbered 8) error is assigned upon the following excerpt from the charge of the court to the jury: “I charge you further, now, gentlemen, in this case on the subject of admissions: An admission as applied to a criminal case is a statement by the defendant of a fact or facts pertinent to the issue, and tending, in connection with proof of other facts or circumstances to prove the guilt of the accused, but which is of itself insufficient to authorize a conviction. An admission is a circumstance which requires the aid of further testimony to generate a reasonable conclusion of guilt.” The error assigned upon this excerpt from the charge is that it “is not a full and complete statement of the law with reference to admissions in the case and that the failure of the court to charge that the ‘other facts or circumstances to prove the guilt of the accused’ must of necessity be such facts or circumstances as directly connects the defendant with the perpetration of the offense of burglary as charged, [and] the failure to charge the jury that an admission, even though coupled with the proof of other facts or circumstances, unless such other facts or circumstances directly connects the defendant with the perpetration of the offense of burglary, tended to place a greater burden upon the defendant than is authorized by law and tended to authorize a conviction even though such other facts or circumstances did not directly connect the defendant with the perpetration of the offense.”

In the brief of counsel for the defendant, it is conceded that the charge complained of presented a correct abstract principle of law, and we think the charge on the subject of admissions was full and fair, and if the defendant had wished á more detailed charge on the subject a timely written request therefor should have been interposed. This ground of the motion for a new trial is not meritorious.

The trial court did not err in overruling the motion for a new trial for any reason assigned.

Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the whole court consider any case in, which one of the judges of a division dissents, this case was considered and decided by the court as a whole.

Judgment affirmed.

Sutton, G. J., Gardner and Worrill, JJ., concur. Felton and Townsend, JJ., dissent.