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CARLEY, Judge.
Cruelty to children. Fulton Superior Court. Before Judge Langham.
Appellant was convicted of cruelty to children and, on appeal, enumerates as error the general grounds. The evidence showed that Carol Davis, a neighbor of the two-year-old victim, David Gresham, saw David outside about 4:00 p.m. and observed that he had a knot on his head, a scratch on his face and that his left hand was swollen. Appellant's wife subsequently told Ms. Davis, the doctor who examined David, and a police officer that, at about 3:30 a.m. on the same day, appellant had inflicted the injuries by beating David with his fists. However, at trial, appellant's wife testified that she inflicted the injuries on David and that she had earlier said that appellant was the culprit because she was in jail on another charge and did not want to take the "rap" alone. Both appellant and his wife were indicted on a charge of cruel treatment and appellant's wife entered a plea of guilt to that charge. Appellant argues that the evidence was insufficient to support the guilty verdict.
SOGNIER, Judge, dissenting.
I respectfully dissent. The sole issue in this case is whether the testimony of appellant's wife, who was charged as an accomplice and pled guilty, was corroborated. In finding that such testimony was corroborated by evidence of a similar offense, the majority relies on Potts v. State, 86 Ga. App. 779, 783 (2) (72 SE2d 553) (1952), to support its holding that evidence of a prior similar transaction can be used to corroborate an accomplice's testimony as to identification of the defendant as a participant in the offense charged. However, Potts did not involve either corroboration of an accomplice's testimony or the use of evidence of prior similar transactions or crimes for such purposes. Rather, Potts dealt with corroboration of the prosecutrix/victim's testimony by showing the conduct of the defendant prior to, during and subsequent to commission of the offense charged.
The only Georgia case I have found dealing with the use of a similar offense to establish the identity of a defendant as a participant in the offense charged is Perryman v. State, 63 Ga. App. 825, 827 (12 SE2d 392) (1940). In that case we held that evidence of a similar crime admitted to show motive, intent, state of mind, etc., is not sufficient to establish the defendant's connection to the crime charged. Applying this rule to the facts of the instant case, I find no corroboration of the accomplice testimony, which consisted solely of prior inconsistent statements, not made under oath. Since a person cannot be convicted solely on the uncorroborated testimony of an accomplice, OCGA 24-4-8, Black v. State, 155 Ga. App. 798 (272 SE2d 762) (1980), I would reverse the conviction in this case.
I am authorized to state that Chief Judge Banke and Presiding Judge Birdsong join in this dissent.
Amy Griffith Dever, for appellant.
Thursday May 21 15:49 EDT

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