Orr v. State

Sognier, Judge,

concurring specially.

I concur in the judgment of the majority. I write specially to amplify my reasons for concurring in the majority’s rejection of appellant’s enumeration of error concerning corroboration.

The fact that the testimony of police officers and others was consistent with that of the co-defendant as to the details of the break-in is not sufficient. A distinction must be made between evidence which tends to prove the truth of the accomplice’s general testimony and that which tends to prove the identity and participation of the accused. West v. State, 232 Ga. 861, 865 (209 SE2d 195) (1974). “Accordingly, under [OCGA § 24-4-8], evidence must be presented at trial which corroborates the accomplice’s testimony both as to the history of the felony and as to the identification of the accused as a participant in the crime, and, as regards the latter corroboration, the evidence must originate from an independent source.” Mulligan v. State, 245 Ga. 266, 269 (264 SE2d 204) (1980).

In this case, much of the corroborative evidence went to the truth of the accomplice’s general testimony. There was some other evidence, however, corroborating the accomplice’s testimony that appellant participated in the commission of the crime. Police officers testified that appellant was found on the victim’s property shortly after the break-in occurred. In addition, appellant testified that he was in that location because he was on his way to pawn some gold chains, but no gold chains were found on his person. The issue presented in appellant’s enumeration is whether that is sufficient corroboration of the accomplice’s testimony implicating him.

In reviewing the question of whether sufficient corroboration exists of an accomplice’s testimony implicating the accused, it is not necessary that the corroborative evidence itself be sufficient to warrant a verdict. Further, conduct on the part of the accused may act to corroborate the testimony of the accomplice. Drake v. State, 241 Ga. 583 (247 SE2d 57) (1978). In Birt v. State, 236 Ga. 815 (225 SE2d *381248) (1976), evidence that the accused was seen in a disabled vehicle 12 miles from the scene of the crime and about 100 miles from his home was sufficient corroboration of accomplice’s testimony. In that case, “[appellant’s own] testimony seeking to explain the evidence of corroboration [why he was there] could not dispel that evidence; it merely made a question for the jury to decide. [Cit.]” Id. at 826. “ ‘The sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. [Cit.]’ [Cit.] Contrary to appellant’s; assertions, ‘[t]he necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime. [Cit.]’ [Cit.]” Berry v. State, 248 Ga. 430, 432 (283 SE2d 888) (1981).

Decided November 22, 1988. Floyd H. Farless, for appellant. Stephen F. Lanier, District Attorney, for appellee.

I find the evidence in this record implicating appellant sufficient, although slight, to corroborate the accomplice’s testimony.

I am authorized to state that Judge Carley joins in this special concurrence.