Springer v. State

1. “An accomplice is strictly defined as one who is associated with others in the commission of a crime, all being principals.” 1 Am. & Eng. Ene. L. (2d ed.) 389. Participation in the commission of the same criminal act, and in the execution of a common criminal intent, is therefore necessary to render one criminal, in a legal sense, an accomplice -of another. “Criminal intent is a necessary ingredient of •crime, and is essential to render one an accomplice. It follows that where this element is absent, one is not an accomplice.” Ibid. 391. Applying this rule to a case where two persons are engaged in a criminal enterprise, in the execution of which two separate offenses may be committed, it is obvious that there is not this concurrence of act and intent unless each is guilty of and subject to punishment for both offenses; for though each may commit a crime in connection with the same ■criminal enterprise, neither is, in legal contemplation, an accomplice of the other. “The test in general to determine whether a witness is, or is not, an accomplice is the inquiry: ■Could the witness himself have been indicted for the offense, ■either as principal or as accessory? If he could not be so in■dicted, he is not an accomplice.” Ibid. 390.

2. In Minor v. State, 58 Ga. 551, the accused “was placed upon trial for the offense of simple larceny, alleged to have been committed in the stealing of a cow”; and it was held that: “When the strong and decided weight of the evidence . . is that the cow was stolen, not by the prisoner, but by others, with or without his procurement, and brought to his premises in his absence; that he there, after the larceny was complete, received the animal, and, without removing it therefrom, took part in slaughtering it, and in removing the meat, .and in appropriating it to his own use and the use of some <of his confederates, his offense, under the code, is not that of *452a principal felon. If he procured the larceny to be committed, he is an accessory both before and after the fact; or, if he did not procure it to be committed, and yet knew the animal to be stolen, he is guilty as accessory after the fact, or of the equivalent misdemeanor of receiving stolen goods, knowing them to be stolen.” See page 554.

In this State, receiving stolen goods, knowing the same to have been stolen, is indictable and punishable as an offense separate and distinct from the larceny itself, although the offender’s connection with the latter crime is recognized to be that of “ an accessory after the fact,” and it is provided that he “shall receive the same punishment as would be inflicted on the person convicted of having stolen or feloniously taken the property.” Penal Code, §§171, 172. “The gist of the offense is the felonious knowledge.” O’Connell v. State, 55 Ga. 191, 192. Accordingly, as was held in Minor’s case, supra, the receiver of stolen goods can not be indicted and punished for the offense of simple larceny, notwithstanding he thus aided and abetted the thief. Nor could the latter be indicted under the sections above cited; for the part he would play in the unlawful transaction thereby rendered penal, would be h> “dispose of”—not to “receive”—goods known to have been stolen.

“The authorities are not in accord as to whether an accessory after the fact is or is not an accomplice within the rule that the testimony of an accomplice should be corroborated.” 1 Am. & Eng. Ene. L. (2d ed.) 393. In Lowery v. State, 72 Ga. 649, and in Allen v. State, 74 Ga. 769, this court answered this question in the negative, expressing the view that even though a witness be accessory after the fact, he is not an accomplice within the meaning of our statute (Penal Code, §991) providing that no conviction can be had in any case of felony upon the uncorroborated testimony of an accomplice. See also State v. Umble, 115 Mo. 452; People v. Chadwick, 7 Utah, 134; State v. Hayden, 45 Iowa, 11; Harris v. State, 7 Lea, 124. The latter case is peculiarly in point; for it was therein held that the receiver of stolen goods is guilty of a substantive offense, and is not the accomplice of the thief within the mean*453ing of the Tennessee statute requiring a corroboration of accomplices.

3. There was evidence warranting a charge upon the law relating to confessions. The instruction given to the jury in this connection was unobjectionable as an abstract proposition of law, though not, perhaps, nicely adjusted to the facts as disclosed by the evidence. It was general, rather than specific; yet we think it sufficiently indicated to the jury the weight to he attached to the statements of the accused which the State contended amounted to a confession, under the circumstances attending their utterance, that he knew when he received the goods that the same had been stolen. We are not, therefore, of the opinion that the charge complained of is cause for a new trial. Had the accused desired an instruction on this subject specially framed in order to cover the peculiar facts of the case on trial, it was his right to present a written request so to charge, which, if proper, the trial judge would doubtless have given.

4. The evidence was amply sufficient to sustain the conviction ; and for no reason assigned by the plaintiff in error did the court below err in refusing to grant a new trial.

Judgment affirmed.