Floyd M. Buford, Alfred D. Fears, for appellant.
Clarence James Baker appeals from his conviction and life sentence for murder. He was tried jointly with two other codefendants in a trial at which a fourth defendant was granted immunity to testify for the state. The other two co-defendants' (Eddie Albert and Ralph Pullin, Jr.) convictions were affirmed at
235 Ga. 718 (221 SE2d 413) (1975). We also affirm Baker's conviction.
1. In his first enumeration of error, the defendant contends that the evidence is insufficient to support his conviction for murder, because the testimony of the defendant granted immunity was not adequately corroborated. "The law is settled in Georgia that the corroborating facts or circumstances must connect the defendant to [the] crime or lead to the inference that he is guilty, and that such corroboration must be independent of the accomplice's testimony. [Code Ann. 38-121]; Allen v. State,
215 Ga. 455 (111 SE2d 70) [1959]; Price v. State,
208 Ga. 695 (69 SE2d 253) [1952] . . . But insofar as the participation and identity of the accused is concerned, there must [specifically] be independent corroborating evidence which tends to connect the accused with the crime." West v. State,
232 Ga. 861, 864, 865 (
209 SE2d 195) (1974). Accord, Birt v. State,
236 Ga. 815 (225 SE2d 248) (1976); Smith v. State,
236 Ga. 12 (222 SE2d 308) (1976). In reviewing this question on appeal, we may consider all the evidence introduced at trial. Bethay v. State,
235 Ga. 371 (219 SE2d 743) (1975).
The state's evidence against Baker reveals that Baker, at the request of Eddie Albert, gave Albert a ride in his Volkswagen to a rendezvous with Ralph Pullin, Jr., at a Tenneco station. There they met Darry Lewis Moseley and invited him along, and the four of them proceeded to an apartment across the street. Witnesses in the apartment corroborated Moseley's testimony at trial that Baker and Albert, with guns, accosted the victim, Richard Thomas, as he attempted to leave the apartment, that while struggling to tie him up with a telephone cord, severely beat him, and that a shot was fired that went through a wall without injuring anybody. Ralph Pullin stood in the doorway and was seen with a gun. Albert and Baker then dragged their victim to Moseley's Pontiac and put him in the trunk. Albert drove the car to a deserted house in Henry County off the Kelleytown road. Baker and Moseley followed in the VW with Pullin proceeding behind them in his own car. Thus only the four defendants were present at that site.
Moseley, who was granted immunity, testified for the state. Pullin testified in his own defense, but neither Albert nor Baker took the stand. Detective David Wynn reported the confession of Albert, but it, of course, was not admissible against Baker. See Division 2 of this opinion. Moseley stated that Albert and Baker tied a cement block to the victim and held him over an open well; then, that Baker shot him under the left arm at close range before he was dropped head first into the well.
Pullin also testified that Albert and Baker held the victim over the well, that Moseley was standing several feet behind Baker and that from Pullin's vantage point out of earshot near the parked cars, it appeared that Baker, whom he did not see with a gun, was trying to talk Albert out of harming the victim further. Albert had nevertheless shot him in the back of the head. The autopsy showed that the victim had been shot in the back of the head.
Moseley's testimony as to the presence of Baker at the apartment was clearly corroborated by the persons present there when Thomas was abducted. On the other hand, the only evidence tending to support Baker's participation at the well was offered by another accomplice, Pullin. It is well settled, however, that the testimony of one accomplice may be corroborated by the testimony of another. Jones v. State,
235 Ga. 103 (218 SE2d 899) (1975); Hackney v. State,
233 Ga. 416 (211 SE2d 714) (1975); McCormick v. State,
237 Ga. 759 (229 SE2d 606) (1976).
4. There is no merit to Baker's fourth contention that photographs of the body of the victim and the well should have been excluded by the trial court. Butler v. State,
235 Ga. 95 (218 SE2d 835) (1975); Allen v. State,
231 Ga. 17 (200 SE2d 106) (1973).
5. Baker raises questions concerning the charge in Enumerations 5, 6, 7, 8 and 9. Enumeration 5 cites as error the failure, on request, to charge on voluntary manslaughter, because there was "slight evidence" that Albert had previously been beaten and robbed by the victim. Baker relies on Banks v. State,
227 Ga. 578, 580 (
182 SE2d 106) (1971). Where, however, the alleged robbery took place on Tuesday or Wednesday and the perpetrator is not located, beaten and shot until Sunday, "the serious provocatIon sufficient to excite sudden, violent and irresistible passion in a reasonable person" has not been established. Gillespie v. State,
236 Ga. 845 (225 SE2d 296) (1976). Therefore, there was not even slight evidence requiring such a charge. See Williams v. State,
232 Ga. 203 (206 SE2d 37) (1974); Young v. State,
232 Ga. 285 (206 SE2d 439) (1974); Jarrard v. State,
233 Ga. 781 (213 SE2d 624) (1975). Such a charge was not authorized by the evidence.
Further, we conclude that the charge on reasonable doubt, corroboration of an accomplice's testimony, and the presumption of innocence adequately and correctly stated the law. Thus Enumerations 7, 8 and 9 present no grounds for reversal.
There being no reversible error, the judgment is affirmed.
E. Byron Smith, District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellee.
1977
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