Robinson v. State , 84 Ga. 674 ( 1890 )

Bleckley, Chief Justice.

1. This conviction did not rest on the evidence of the alleged accomplice alone, but in -a large measure upon that of the policeman who was assaulted and beaten. The code, §3755, says: “The testimony of a single witness is generally sufficient to establish a fact. Exceptions to this rule are made in specified cases; such as to convict of treason or perjury, in any case of felony where the only witness is an accomplice, and to rebut a responsive statement in an answer in equity — in these cases (except in 'treason) corroborating circumstances may dispense with another witness.” The policeman was barbarously beaten by a mob, and he'identified the accused as one of the persons present whilst the mob was raging^ and as being armed with a.stick. He was in a room where he had no business to be, unless he were cooperating with the mob. Unless he, with others, pursued the policeman into that room, his presence there was wholly unaccountable. His actually striking the policeman was shown by the evidence of the accomplice only, but whether he did the striking, or some one else, is not material to his guilt, if he was there for the purpose of aiding in the work of the mob; and there is not the least suggestion in the evidence that his presence was for any other purpose. Indeed, he denies in his statement that he was present at all. But the policeman knew him well, and identified him beyond all question. Under these circumstances, we hold that it was not incumbent upon the court to put the jury on their guard against trusting to the evidence of the accomplice, more especially as no request was made by the prisoner’s counsel for any charge on that subject, and as the court thought there was no evidence before it fixing upon the witness the character of an accomplice. The State did not seek to convict upon the evidence of the accomplice alone, but adduced other evidence,’ almost, if not wholly, sufficient to warrant the verdict, independently of the evidence of the accomplice. This being so, the rule of corroboration laid down by the code does not apply in its letter, and unless the attention of the court had been called to the accomplice element in the evidence, especially as the judge says he was not aware of it, we think the conviction was not vitiated by the omission to charge on that subject.

2. Some of the grounds of the motion for a new trial complain of the admission of evidence over the objection of counsel for the accused. But in no instance is the objection which was presented and ruled upon, disclosed in the'motion.

8. The court charged, amongst other things: “If the evidence does establish beyond a reasonable doubt either that the defendant committed the assault as charged, or was engaged in a riot in pursuance of which the assault was committed, then of course you should find him guilty.” It is complained that the court failed to define the term “riot,” and failed to charge that the defendant could, under the indictment, have been found guilty of a riot. The facts disclosed in evidence showed a most outrageous riot, and the jury could not possibly have misunderstood the meaning of the court on that subject.

4. And as to failing to charge that the accused could have been found guilty of a riot, this objection is fully answered by two facts : One is, that he was indicted alone. The other is, that no riot is charged, or even disclosed in the bill of indictment. Though there was undoubtedly a most aggravated riot committed, it was not before the court and the jury as a substantive offence, but only as a part of the facts surrounding the assault with intent to murder which the indictment alleged. In its nature (Code, §4514) riot is a joint offence for which one person alone cannot he indicted, and though by section 4692 each may be tried separately, this latter section gives no countenance to indicting one of several rioters, or to finding any one guilty of a joint offence upon an indictment which charges no such offence.

5. The omission to instruct the jury that under the indictment the accused could have been found guilty of an assault, or of an assault and battery, was not error, for there was nothing in the evidence to justify the court in so instructing the jury. The facts in proof showed conclusively that the assailants of the policeman were after blood and life, and had no such purpose as the commission of a mere assault, or assault and battery. Hendricks v. State, 73 Ga. 577.

6. We concur with the trial judge in thinking that the newly discovered evidence (for which see the official report) was not such as to. require the grant of a new trial. And in view of all the facts, we think there was no error in refusing the motion.

Judgment affirmed.