1. The question in the instant case is not whether the witness has been guilty of contempt in disobeying the process of the court, but whether there has been a corrupt attempt to obstruct the due course of public justice by "spiriting" away, or attempting to "spirit" away, or by preventing, or attempting to prevent, the attendance of a witness upon a trial.
2. "Since 1833 we have had only statutory offenses."
3. To dissuade or prevent, or to attempt to dissuade or prevent, a witness from attending or testifying upon a trial is a common-law offense, and is also a statutory offense in that it is covered by the Code, § 26-5001.
4. The indictment was not subject to the demurrer urged, and the evidence authorized the verdict.
DECIDED JULY 12, 1945. Wylie Kilpatrick was indicted in two counts for obstructing the due course of public justice. His general demurrer was overruled and he excepted pendente lite. He was tried on a stipulation of facts, agreed to by State and defendant, and being convicted, moved for a new trial upon the general grounds. The motion for new trial was overruled and he excepted, assigning error upon the exceptions pendente lite and upon the judgment overruling said motion. The material parts of the two counts of the indictment necessary to understand the issues raised are as follows: Count 1. "That said accused [Wylie Kilpatrick and Eva Evans] in the County of Fulton and State of Georgia, on the 2d day of June, 1943, with force and arms, Edward Alvin Spicer being then and there under indictment for the murder of Richard Mathis, said indictment being No. 56472 in the records of the clerk's office of Fulton County, Georgia, and the said Edward Alvin Spicer being then in the custody of J. M. Mount, sheriff, in the Fulton County jail awaiting trial on the above-designated indictment, and the *Page 670 accused herein well knowing at the time of the acts herein charged against them that George Morris and Edyth Hill Morris were witnesses for the State on said indictment, and that said persons' appearance as witnesses for the State at the trial of said case was material and necessary, did wilfully, fraudulently, and corruptly conspire, confederate, and agree between themselves to obstruct and prevent the due course of law and justice in said case, and did wilfully, fraudulently, and corruptly conspire, confederate, and agree, each with the other, to induce the above-named persons, George Morris and Edyth Hill Morris, to leave the jurisdiction of this court and to go beyond the limits of the State, and to withdraw from said jurisdiction and this State, and to conceal themselves in order to prevent their being sworn as witnesses in support of said indictment when the said Edward Alvin Spicer should be tried thereon; and all of said acts of accused herein complained of are contrary to the laws of said State, the good order, peace and dignity thereof." Count 2. "That the said accused, in the County of Fulton and State of Georgia, on the 2d day of June, 1943, with force and arms, did attempt, by persuasion and intimidation to prevent George Morris and Edyth Hill Morris, the latter of whom had been a material witness for the State before the Fulton County grand jury, and both of whom were to be and would be material witnesses to the State at the trial of the case of the State v. Edward Alvin Spicer, charged with the murder of Richard Mathis, from attending court and testifying in said cause, when the same should be tried; and did, by persuasion and intimidation, induce the above-named witnesses to withdraw from the jurisdiction of this court and to leave the State of Georgia and to conceal their whereabouts so that they might not be called into court and examined as witnesses in support of said bill of indictment when the said Edward Alvin Spicer should be put on trial for said crime."
The defendant demurred generally to each count, and, as stated in his brief, "The gist of the demurrer to the first count of the indictment was that it charged the defendant with no offense under the laws of Georgia, and that while said first count purports to charge the defendants with a conspiracy, the allegations therein contained failed to show that the defendants conspired to violate any law of the State of Georgia, and that count one of the indictment *Page 671 was wholly insufficient in law," in that the indictment does not charge the violation of any statute by the defendant, and since there is no common-law offense in Georgia, every indictment must necessarily charge the offense of a statutory crime. And that even if the Code, § 26-5001, covered the crime sought to be alleged, yet the indictment "did not allege that the persons who were persuaded to leave the jurisdiction of the court were under subpoena at the time the defendant induced them to go away." To dissuade or prevent or to attempt to dissuade or prevent a witness from attending or testifying upon a trial is an indictable offense at common law. People v. Boyd, 174 Mich. 321 (140 N.W. 475); State v. Keyes, 8 Vt. 57 (30 Am. D. 450); Commonwealth v. Reynolds, 14 Gray 87 (74 Am. D. 665); Commonwealth v. Berry, 141 Ky. 477 (133 S.W. 212, 33 L.R.A. (N.S.) 976). "Since 1833 we have had only statutory offenses."Thrower v. State, 117 Ga. 753, 757 (45 S.E. 126). While there is no provision in our Code which in terms makes it an indictable offense to dissuade or prevent, or to attempt to dissuade or prevent a witness from attending or testifying upon a trial, yet, there appears, at the conclusion of part IX of title 26 of the Code, which deals with Crimes against public justice and official duty, the following section (26-5001): "Any other offense against public justice, not in this title provided for, shall be a misdemeanor." Part IX of title 26 begins with section 26-4001, which defines the offense of perjury, and embraces a complete chapter on misconduct by officers and other persons concerning the administration of justice, and deals with such offenses as the obstructing or attempting to obstruct the due course of public justice by "spiriting" away, or attempting to "spirit" away, or preventing, or attempting to prevent the attendance of witnesses from testifying upon a trial. Ormond v.Ball, 120 Ga. 916, 924 (48 S.E. 383); Prichard v. State,160 Ga. 527 (2) (128 S.E. 655). Hence, to dissuade or prevent, or to attempt to dissuade or prevent, a witness from attending or testifying upon a trial, is an indictable offense under the law, and is a misdemeanor in Georgia, under the express provisions of the Code, § 26-5001. The allegations in count 1 constitute a statutory offense in that it is one of *Page 672 the other statutory offenses against public justice covered in section 26-5001 of the Code.
The next attack on the indictment is that there having been no subpoena served on the person he can not be considered in the light of a witness and the indictment not alleging that the witness had been subpoenaed was defective in this regard. "But it will be difficult to say, just when the person will become so far a witness that it will be an offense to hinder him from giving his attendance upon the court. The essence of the offense is obstructing the due course of justice. This has always been held indictable as a misdemeanor at common law. Whether the witness had been served with a subpoena or not, can not be esteemed very material. The effect of the act and intent of the offender is the same, whether the witness has been or is about to be served with a subpoena, or is about to attend in obedience to a voluntary promise. Any attempt, in either case, to hinder his attendance, is equally criminal, and equally merits punishment." State v. Keyes, supra. The question in the instant case is not whether the witness has been guilty of a contempt in disobeying the process of the court, but whether there has been a corrupt attempt to obstruct the due course of public justice by "spiriting" away or attempting to "spirit" away, or preventing or attempting to prevent, the attendance of a witness upon a trial. If the defendant knew of his being a witness and about in due course of law to attend the trial, and endeavored to dissuade and hinder him therefrom, his offense is complete. State v. Keyes, supra. Such an attempt, as is alleged in count 1 of the indictment, whether successful or unsuccessful, though made before the service of the subpoena, is nevertheless punishable. Count 1 is not subject to the demurrer urged.
The defendant states, in his brief, that the demurrer to count 2 was substantially identical with the demurrer to count 1, except in so far as count 1 purported to charge a conspiracy, that is, the demurrer to count 1 attacked the second count upon the ground that the indictment charged the defendant with no offenses under the laws of Georgia and was wholly insufficient in law. It should be borne in mind that our law recognizes that one may conspire with another to commit a crime, and the conspiracy is referred to as an incident to, and one of the means by which the act is accomplished. The conspiracy of itself is no crime. The crime is *Page 673 the act prohibited by statute. Daniels v. State, 58 Ga. App. 599,609 (199 S.E. 572). To illustrate: It would not be proper to charge the jury to bring a verdict of conspiracy to rob, but the verdict should be for robbery, even though the State should prove that it was a conspiracy to rob, and in pursuance thereof the defendant did rob. Under the rules of law hereinbefore stated, there is no merit in the demurrer.
The stipulation of the agreed statement of facts admits every allegation in the indictment and shows further that the defendant and Eva Evans took the witnesses in question to another county and put them on the bus to leave the State, furnishing them the money for their transportation. The evidence authorized the verdict.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.