Evans v. State

Quillian, Justice,

dissenting. I can not agree with the holding of Division 15 of the opinion. There was, in my opinion, no evidence introduced that corroborated the testimony of Truett before the introduction of the statement attributed to the coindictee, Williams, by the witness Shaw. Hence, no conspiracy had, at the time of the admission of that evidence, been estab*408lished. His testimony was hearsay and, while the admission of hearsay evidence is not always hurtful, in this instance it obviously was prejudicial to the defendant.

I dissent from the holding of Division 3. The charge excepted to is precisely the same as that held in Chapman v. State, 109 Ga. 157 (4), 164 (4) (34 SE 369), to be error. The charge in Rawlins v. State, 124 Ga. 31, 49 (16) (52 SE 1), was: “The testimony of an accomplice in a case is not sufficient of itself to convict a party charged with the commission of a crime, under the law; that testimony, in order to authorize you to convict, must be corroborated, and the extent of the corroboration of the testimony is a question entirely for the jury; however strong it may be, or however slight it may be, is a question for you to determine, and you will give it such credit as you believe under the law it is entitled to”; which does not instruct the jury that “slight” evidence is sufficient to corroborate the testimony of an accomplice, but simply that whether slight or strong its sufficiency is for the jury.

The evidence did not corroborate Truett’s testimony. In the opinion the main support for the contention that it did are the facts: (1) Evans, in his statement, and his wife, in her testimony as to his alibi, stated that he came home about 8:30 p.m.; while Truett had testified that he and Williams on their trip to Atlanta to get the Olds, which Evans had located, called Evans’ house about 6 p.m. and again about 7 p.m. and were told each time he was not at home, but when they called at 9:30 he was there; (2) Truett testified he did not know either of the officers and did not know whether Williams knew them, but that “Alex knew them, or at least they talked like they knew each other, acted like they knew each other very well” and Evans in his statement indicated that he knew the officers.

None of these facts or the several others recited in the majority opinion, according to my view, tended to identify the defendant as the perpetrator of the offense or to show he was present when it was committed. The case of Allen v. State, 215 Ga. 455 (111 SE2d 70), a full-bench decision of this court, probably went much further than the opinions of the court had ever gone before in fixing the standard of proof necessary to corrobo*409rate an accomplice, however, while it stands as unquestioned authority I feel compelled to follow it. In reading it, the conclusion seems to me inescapable that the evidence in that case given in corroboration of the accomplice and held by this court insufficient for that purpose was much stronger than in the instant case.

In this connection, with uttermost deference to my colleagues, I am compelled to decide that the mere fact that a defendant admits knowing the deceased does not corroborate testimony of the accomplice Truett, nor do I think the mere fact that there was evidence that the defendant was at home at the hour when Truett testified he engaged in a telephone conversation with the defendant corroborates the fact of such conversation.