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Violating liquor law; from Bulloch Superior Court-- Judge Renfroe. August 31, 1950.
1. A motion to quash or dismiss an indictment is no more than a demurrer, and is not a proper method for attacking the indictment for any defect not appearing on the face thereof.
2. The confession of the defendant was efficiently coroborated by his presence at the place where the crime was being committed and by proof of the corpus delicti. The verdict was therefore supported by some evidence; and since it has the approval of the trial court, no error of law appearing, it will not be disturbed by this court.
Harvey Lastinger was jointly indicted with Albert Shuman, at the July, 1950, term of Bulloch Superior Court for the offense of manufacturing whisky. It appears that these defendants, with another, had been jointly indicted for the same offense at the January, 1950, term of court; that one of the codefendants had been convicted under the original indictment and, on appeal, the conviction had been reversed on the ground that the indictment was fatally defective. (See Shuman v. State, 82 Ga. App. 130, 60 S. E. 2d, 521). The case on appeal here is based upon the indictment returned at the July term of court. Before trial the defendant made a written motion to dismiss on the ground that the court had no jurisdiction of the case, and this motion was overruled.
Upon the trial the evidence, construed most favorably to support the verdict, was in effect that on November 25, 1949, certain police officers raided a still in Bulloch County, and found a fire going under it and moonshine whisky running out of it at the time. The defendant, Albert Shuman, and Albert Smith were present at the still and were taken in custody. Two police officers testified that within a day or two the defendant came into their office to make bond and stated at that time, that "There wasn't but one thing, I was there helping to make whisky but it wasn't my still, it was Albert Shuman's still." They further stated that this confession was freely and voluntarily made. The defendant denied making any confession, and contended that he had merely told the officers he was there, and that he went there for the purpose of getting his brace and bit, but that he was not making whisky.
Error is assigned on the rulings of the trial court overruling the motion to dismiss the indictment and overruling the motion for a new trial on the general grounds.
(After stating the foregoing facts.) 1. The motion to quash or dismiss the indictment contends that--since the defendant had been previously indicted with the same codefendant for the same offense, and since the codefendant had been convicted and that conviction reversed by the Court of Appeals, but, before the judgment of the Court of Appeals was made the judgment of the trial court--the defendant was again indicted at a time when the trial court had no jurisdiction of the case. This contention is without merit for two reasons. First, it is not contended that the indictment upon which the defendant was tried was defective upon its face. A motion to quash, being merely a demurrer, is not a proper method of attacking an indictment for a defect not appearing upon its face. See Tate v. State, 24 Ga. App. 279 (100 S. E. 765); Owens v. State, 54 Ga. App. 417 (187 S. E. 890). Had the position of the plaintiff in error been tenable, it could properly have been raised only by a plea in abatement. Secondly, however, there is no error in proceeding upon a subsequent indictment in a criminal case while a previous indictment is still pending. As stated in Irwin v. State, 117 Ga. 706 (45 S. E. 48): "In a criminal proceeding the pendency of a former indictment for the same offense is no ground for a plea in abatement or in bar, although the accused may have been arraigned thereon and have filed a plea. Doyal v. State, 70 Ga. 134. . . Where several indictments for the same offense are pending against the same person, it is immaterial upon which he is first tried. Whenever he has been acquitted or convicted upon any one of them, he can plead such acquittal or conviction in bar of a prosecution of any of the others." See also Harris v. State, 11 Ga. App. 137 (2) (74 S. E. 895); Sheppard v. State, 44 Ga. App. 481, 488 (162 S. E. 413).
2. While a conviction based upon an uncorroborated confession cannot be sustained (see Cook v. State, 9 Ga. App. 208 (3), 70 S. E. 1019), proof of the corpus delicti may be sufficient corroboration of a confession of guilt to sustain a verdict of guilty. Bryant v. State, 26 Ga. App. 611 (106 S. E. 797); Davis v. State, 105 Ga. 808 (3) (32 S. E. 158); Allen v. State, 8 Ga. App. 90 (68 S. E. 558). While it is the rule that the testimony of an accomplice must be corroborated by circumstances definitely connecting the accused with the perpetration of the crime, this is not the rule in reference to the corroboration of a confession. Cochran v. State, 113 Ga. 726 (2) (39 S. E. 332); Chester v. State, 74 Ga. App. 667 (1) (41 S. E. 2d, 162). Accordingly, the testimony of the two witnesses for the State, that the defendant admitted to them that he had been helping to make whisky at the time and place in question, together with the undisputed evidence that he was present at the time of the raid at a still then in operation and where whisky was being made, is sufficient to support the conviction.
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.
Walton Usher, Solicitor-General, contra.
W. G. Neville, for plaintiff in error.
Saturday May 23 05:28 EDT

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