Taylor v. State , 70 Ga. App. 526 ( 1944 )

1. The evidence authorized the charge on the law of principal in the first and second degree.

2. Where the evidence is insufficient as a matter of law to sustain the contention that another was an accomplice, the court did not err in failing to charge that the evidence of an accomplice alone is not sufficient to sustain a conviction, and that the evidence of an accomplice must be corroborated.

3. The evidence was sufficient to sustain the verdict.

DECIDED JANUARY 22, 1944. Robert Taylor was jointly indicted and tried with Rance Colbert for the offense of cattle-stealing. He was convicted and filed a motion for new trial on the general grounds. Two special grounds were added by amendment. The court overruled the motion, and he excepted. It appears from the evidence that the defendants were tenants on the farm of J. C. Estes, on which Estes had some 60 head of cattle. The defendants were engaged to some extent, if not principally, in looking after the cattle. Rance Colbert was of age. Robert Taylor's age is not given. It may be inferred from the evidence, however, that he was twenty-one, or over. Rance Colbert lived in the house with his mother, Lucille Harden. and his 12-year-old brother, James Colbert. The subject-matter of the indictment was a 10-months-old bull yearling which the younger boy, James, had broken and used to ride. The animal was a pet. The conduct and evidence of James in regard to the transaction led to the detection and conviction of both his older brother Rance, who did not appeal, and the defendant in the instant case, Robert Taylor. As to the transaction, James Colbert testified in part as follows: "On the second day of July I saw Rance Colbert and Robert Taylor there do something to that little bull. I know about that little bull leaving that place about the second day of July; us carried him to Oscar Moore's home. Rance and Robert were with me; that is they sitting right there. Me and Rance caught him. . . When Rance and I went over to catch the calf Robert Taylor was not with us when we started over there. I know where Rob Taylor was; he was up the road a piece. Rance called him and he came down there. When we caught the calf Rob didn't say anything about where to put the calf; he said drive him in the woods and catch him. The reason he said drive him in the woods to catch him was so nobody would see us. After this took place Robert Taylor came to see me and talked to me about what I must say in this case; that was a day or so afterwards. He told me not to tell he was in it, and to say he didn't know anything about it. . . I did not say that we first saw Robert after we got up in the road with the calf; I told the Solicitor that he came in the pasture. When I first saw Robert was when he came down when Rance hollered for him. . . Me and Rance left home together, nobody but us. . . I seen Rob Taylor that day when he came on down there; that was about 12 o'clock. Rob Taylor wasn't with us no longer than we caught it. He did not say anything to me; he told Rance he could depend on what he said. Rance is twenty-one years old. I saw Rob there in the road, and he came in the pasture with us. Rance and I had not already caught the calf when he came there. I said that me and Rance caught the calf. Rance is the one who put the chain around his neck. I gave him the grass. We got the grass from the other side of the road. Robert pulled the grass. I said Robert went on home and passed by there. I said that Rance put the calf back in the pasture." It may be inferred from the evidence that it was conceived that the easiest way to catch the pet yearling was to have James, the little boy, do it. Therefore Rance Colbert, his older brother, induced James to go along by telling James that their mother wished the calf caught. After the calf was caught Robert Taylor left, and at the direction of his older brother Rance, James rode the animal to the home of one Oscar Moore, where it was arranged that the yearling would be killed about sunrise on the following morning. The little boy after hearing plans to kill his pet, ran home crying. The mother had gone to "town." Upon her return she found James crying, and on inquiry learned from him of the intended fate of his pet, "Sam." Whereupon, she went to Macon the next morning and informed her landlord, Mr. Estes. There is no evidence that James would have participated at all in the transaction except for the deception practiced upon him by his older brother. It does appear that at the first opportunity, after learning the design of his older brother, he reported the whole incident to his mother. James was not indicted. Since the special grounds and the general grounds are so related, we will deal with the special grounds first.

Special ground 1 assigns error because the court charged the law of principal in the first and second degree as contained in the Code, § 26-501. There are three criticisms lodged against this charge: (a) that the evidence did not authorize the charge as to a principal in the second degree; (b) that it authorized the jury to convict the defendant if he was "near the place" where the crime was alleged to have been committed; (c) that the charge confused the jury, in that it was calculated to make them believe that if the defendant came nearby the place where the alleged crime was committed they would be authorized to convict him as a principal in the second degree, when in fact there was no evidence which would authorize them to find that he was keeping watch. Under the evidence of James Colbert, which we have mentioned more particularly in the facts, and the whole setting of the case, including the statement of the defendant, and the evidence of Rance Colbert, sworn in behalf of the defendant, the charge was not error, but to the contrary was authorized. There is no merit in this contention.

Special ground 2 assigns error for the reason that the court failed to charge: "That the testimony of an accomplice alone is not sufficient to convict, but such testimony would have to be corroborated by other testimony, or by other facts and circumstances." The criticism is that the omission to charge as indicated authorized the jury to convict the defendant upon the testimony of an accomplice alone. "An accomplice is one who is present at the commission of the crime, aiding and abetting the perpetrator. `Criminal intent is a necessary ingredient of crime, and is an essential to render one an accomplice.' Applying these principles of law to the facts of the present case, there was no witness for the State who was an accomplice in the commission of the crime charged against the accused; and it was not error for the court to fail to charge `the law relating to conviction upon the evidence of an accomplice.' Birdsong v. State, 120 Ga. 850,854 (48 S.E. 329); Walker v. State, 118 Ga. 757 (45 S.E. 608), and cit." Baker v. State, 121 Ga. 189 (2) (48 S.E. 967). "Participation in the commission of the same criminal act and in the execution of a common criminal intent is necessary to render one criminal, in a legal sense, an accomplice of another."Hargrove v. State, 125 Ga. 270, 273 (54 S.E. 164). See in this connection, DeWitt v. State, 27 Ga. App. 644 (5) (109 S.E. 681). Under the record in this case the evidence is not sufficient to authorize an inference that James Colbert participated in the commission of the same criminal act with a common criminal intent. The facts overwhelmingly refute such an inference. There is no merit in this ground.

As to the general grounds, it is our opinion that the evidence was sufficient to sustain the verdict. The court did not err in overruling the motion for a new trial.

Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.