Hamby v. State
Hamby v. State
Opinion of the Court
1. In special ground 1 of the motion for a new trial, as amended, the following portion of the charge of the court to the jury is assigned as error: “Now, in this case, the State relies on what is known—it relies in part on what is known as the testimony of an accomplice. And I give you this principle of law to govern you there. The testimony of a single witness is generally sufficient to establish a fact. An exception to this rule is made in the case of a felony. Where the only witness is an accomplice, in such [a felony] case, corroborating, circumstances may dispense with another witness. The corroborating circumstances referred to must be such as to connect the defendant with the perpetration of the crime, and independently of the other evidence in the case, must connect the defendant with the commission of the crime charged in the bill of indictment.” (Brackets ours.) The defendant contends that this charge was erroneous in that this charge was an intimation or expression of an opinion of the trial judge in his charge to the jury that the State’s witness and codefendant, Robert Junior Chambers, was an accomplice, and denied to the jury the right to determine whether or not the State’s witness and codefendant, Robert Junior Chambers, was an accomplice. The judge, in the excerpt here referred to, was classifying the testimony relied upon in part by the State as being a class o'f testimony known or called accomplice’s testimony. He was not classifying the particular witness delivering it as an accomplice. He did not call the name of any witness in connection with such testimony. He did not state what any witness had testified. He was merely charging an abstract rule of law as it related abstractly to the testimony of any accomplice in any given case, which rule of law, he said, the State relied upon in the instant case. The court
2. Special grounds 2 and 3 assign error upon the failure of the court anywhere in its charge to the jury to define what is necessary to constitute one an accomplice, and the failure of the court to instruct the jury that it was a question for the jury to determine whether the witness and codefendant, Robert Junior Chambers, was an accomplice. “Where the sole witness directly connecting the accused with the crime . . was an accomplice, the failure of the trial judge to instruct the jury what would, under the law, constitute an accomplice, or to define the term accomplice, is not reversible error, where it does not appear that there was a timely written request for such an instruction.” Baker v. State, 14 Ga. App. 578 (1) (81 S. E. 805); Butts v. State, 14 Ga. App. 821 (1) (82 S. E. 375); Cantrell v. State, supra; and see, in this connection, Cammons v. State, 59 Ga. App. 759, 766 (2 S. E. 2d, 205). In the absence of a request to charge upon these points, we do not think that grounds 2 and 3 are meritorious.
3. “ 'A conviction in a case of felony is sustainable upon the testimony of a single witness, though an accomplice, when the same is corroborated by other testimony connecting the accused
Robert Junior Chambers, the codefendant of Hamby under the indictment, testified for the State in part as follows: “ . . I know the defendant on trial, Mr. Fred Hamby. . . I have known him about five years. I have worked for him, about that length of time. . . Yes, I am jointly indicted with Mr. Hamby for burning the dwelling house of Rosa Edwards. Yes, sir; I did burn her dwelling house. _ On the 4th of June, Saturday evening, I was at home asleep, and my brother came around there and woke me up and told me Mr. Hamby wanted to see me. I went around there to see what he wanted and he told me to pay him. I told him I didn’t have his money right then—
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the whole court
Judgment affirmed.
Dissenting Opinion
(dissenting). As to the first division of the opinion, I dissent because I believe that ground 1 of the amended motion for a new trial requires a reversal. Therein it is set out that the trial court charged the jury as follows: “Now, in this case, the State relies on what is known—it relies in part on what is known as the testimony of an accomplice.” Thereupon the trial court proceeded to charge the jury in substance Code § 38-121, which provides for the requirement of corroboration of the testimony of an accomplice. It is contended in the amended motion for a new trial that this charge was error in that it amounted to the expression of an opinion by the trial judge in his charge to the jury that a witness for the state was an accomplice of the defendant, Fred Hamby, and denied the jury the right to determine whether or not such witness was such an accomplice; that therefore said charge amounted to an expression of opinion by the trial judge in his charge to the jury that Fred Hamby participated in the crime of which he was charged and for which he was on trial, with the State’s witness; that all this was a violation of Code § 81-1104 which forbids the trial court to express an opinion as to what has been proved or as to the guilt of the accused in a criminal case and which requires the appellate courts of this State to reverse the case for a new trial where such error is assigned. The case here, therefore, should turn solely on the question of whether or not the trial judge expressed such an opinion when he charged the jury that “in this case the State relies on what is known as the testimony of an accomplice.” From the record it appears that Robert Junior Chambers was jointly indicted with the defendant. It further appears that Robert Junior Chambers was the principal witness for the State. He admitted in his testimony that he burned the buildings in question. He swore that the defendant procured him to do so. All this was denied by the defendant. Thus an issue for the determination of the jury was made as to whether or not Robert Junior Chambers was an accomplice of the defendant. The charge of the court, in my opinion, does
The following charges have been held reversible error: “The witness, ‘having been convicted, is an accomplice as a matter of law.’” Sellers v. State, 41 Ga. App. 572 (153 S. E. 782). “ 'One of the witnesses testified in this case to having worked at this still for this defendant, and that, under the law, constitutes what is known as an accomplice.’ ” Demonia v. State, 69 Ga. App. 862 (27 S. E. 2d, 101). “ T charge you as a matter of law that the codefendant, L. C. Moffett, a witness for the State, is an accomplice so far as your consideration of his testimony is concerned.’ ” Middleton v. State, 72 Ga. App. 818 (35 S. E. 2d, 317). “ 'Charles McDonald of course admits he is an accomplice. He has filed a plea to this crime; and he being an accomplice in the case of a partner with the defendant, and having admitted to have been there, you would not be authorized to convict James Pope Kryder on the testimony of McDonald alone.’ ” Kryder v. State, 57 Ga. App. 200 (194 S. E. 890). “ T believe it is admitted in this case that Tommy Lyons was an accomplice.’ ” Golden v. State, 45 Ga. App. 501 (165 S. E. 299). “ ‘Now, you are to determine, gentlemen, whether or not he is an accomplice. He denies having anything to do with the commission of■ this offense himself; he states that he had nothing to do with it, and was not an accomplice.’ ” Suddeth v. State, 112 Ga. 407 (37 S. E. 747).
In Demonia v. State, supra, it is held as follows: “Section 81-1104 of the Code makes it reversible error for a trial judge to intimate or express in his charge to the jury his opinion as to what has or has not been proved. Hence, on the trial of a person accused of distilling spirituous and alcoholic liquors, it was reversible error to charge, ‘Gentlemen of the Jury, one of the witnesses testified in this case to having worked at this still for this defendant, and that, under the law, constitutes what is known as an accomplice.’ This was an expression of an opinion that the witness referred to was an accomplice of the defendant.”
I am authorized to say that Felton, J., concurs in this dissent.
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