O.C.G.A. § 16-10-50 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 26-604, as it read prior to revision of this title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section. Obstruction of justice defined. - To obstruct justice is to interpose obstacles or impediments, or to hinder, impede or in any manner interrupt or prevent administration of justice. Baker v. State, 122 Ga. App. 587, 178 S.E.2d 278 (1970), cert. denied, 401 U.S. 1012, 91 S. Ct. 1265, 28 L. Ed. 2d 549 (1971). Essential elements of crime prohibited by former Code 1933, § 26-4601 (see now O.C.G.A. § 16-10-50) were: (1) receiving, harboring, or concealing any person guilty of a felony, and (2) knowledge of such person’s guilt. Moore v. State, 94 Ga. App. 210, 94 S.E.2d 80 (1956); Stynchcombe v. Walden, 226 Ga. 63, 172 S.E.2d 402 (1970). Mere concealment of crime constitutes no offense in this state. Moore v. State, 94 Ga. App. 210, 94 S.E.2d 80 (1956). Sufficiency of indictment. - Trial court did not err by denying the defendant’s general demurrer alleging that the defendant hindered the apprehension of a criminal based on the failure to allege the essential mens rea or intent element because that count expressly referenced the criminal statute on which the charge was based; that count alleged that the defendant knowingly and willfully concealed facts and destroyed evidence of the guilt of the man who murdered the defendant’s husband; and those allegations necessarily raised an inference that the defendant acted with intent. Sneiderman v. State, 336 Ga. App. 153, 784 S.E.2d 18 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206, 789 S.E.2d 391 (2016). Concealing body of murdered person. - When A, knowing that B is guilty of murder, assists B in concealing a crime and body of a murdered person, A is not thereby guilty of ‘‘receiving, harboring, or concealing’’ the murderer, within the meaning of former Penal Code 1910,

§ 326 (see now O.C.G.A. § 16-10-50). Heath v. State, 34 Ga. App. 218, 128 S.E. 914 (1925). Concealing gun used in shooting. - Defendant could be found guilty of hindering the apprehension of a criminal where, knowing that a codefendant had used the gun to shoot someone, the defendant concealed it with the intent of protecting defendant’s self and defendant’s friend from punishment; defendant’s later telling the police where defendant had hidden the gun was not abandonment of a crime because the crimes had already been committed. Hubbard v. State, 210 Ga. App. 141, 435 S.E.2d 709 (1993). Conviction of principal as distinguished from the principal’s guilt is not an element of crime of accessory. Stynchcombe v. Walden, 226 Ga. 63, 172 S.E.2d 402 (1970) (decided under former Code 1933, § 26-604). An accessory after the fact cannot be an accomplice to the major crime. Schmid v. State, 77 Ga. App. 623, 49 S.E.2d 134 (1948) (decided under former Code 1933, § 26-604). Defendant’s conviction for hindering the apprehension of a criminal in violation of O.C.G.A. § 16-10-50 had to be set aside because defendant could not be convicted for both malice murder and hindering the apprehension of a criminal, which was the equivalent of the common law crime of being an accessory after the fact; a party cannot be convicted both of being a principal to the crime and an accessory after the fact. Hampton v. State, 289 Ga. 621, 713 S.E.2d 851 (2011). An accessory after the fact was not considered an accomplice within the meaning of former Code 1933, § 38-121. Moore v. State, 240 Ga. 210, 240 S.E.2d 68 (1977) (see now O.C.G.A. § 24-14-8). Driving principal away from scene of crime renders driver accessory after the fact. - When the defendant knew the principal had killed the victim without justification, by allowing the principal to ride in the defendant’s automobile away from the scene of the crime, albeit for only a short distance, the defendant aided the principal in escaping arrest and was,

therefore, guilty as an accessory after the fact. Moore v. State, 94 Ga. App. 210, 94 S.E.2d 80 (1956). An accessory after the fact is guilty of a separate, substantive offense in nature of obstruction of justice. Moore v. State, 240 Ga. 210, 240 S.E.2d 68 (1977). Accessory after the fact was not a party to the underlying crime under former Code 1933, § 26-801. Moore v. State, 240 Ga. 210, 240 S.E.2d 68 (1977) (see O.C.G.A. § 16-2-20). Since the statutory definition of hindering the apprehension of a criminal eliminates the possibility that one guilty of hindering participated as a party to the major crime, and defendant was convicted of murder as party to a crime, defendant’s conviction for hindering the apprehension of a criminal was set aside. Jordan v. State, 272 Ga. 395, 530 S.E.2d 192 (2000). Indictment must allege conviction of principal offender or that the principal cannot be taken so as to be prosecuted and punished. Roberts v. State, 18 Ga. App. 529, 89 S.E. 1055 (1916). Theft, destruction or substitution of evidence needed in criminal prosecution. - Purloining, destruction or substitution of evidence needed or useful in prosecution of criminal offense in such manner that true and genuine evidence is not available for use in prosecution is one of the ways by which justice may be obstructed. Baker v. State, 122 Ga. App. 587, 178 S.E.2d 278 (1970), cert. denied, 401 U.S. 1012, 91 S. Ct. 1265, 28 L. Ed. 2d 549 (1971). Evidence sufficient for conviction of hindering apprehension of criminal. - See Owen v. State, 202 Ga. App. 833, 415 S.E.2d 537 (1992). Evidence insufficient to support conviction. - When a defendant attempted to conceal a bag of unknown (to defendant) contents upon direction of a friend who was in the custody of a police officer, the fact that the friend was on probation meant that the bag’s contents could have been the product of less than felony activity in order to have caused serious trouble for the friend, and evidence thus did not prove beyond a reasonable doubt that defendant had reasonable grounds to believe that the friend had

committed a felony. Pugh v. State, 173 Ga. App. 670, 327 S.E.2d 745 (1985). Neither the wrongful signing of disclosure letter by county school superintendent, nor the evidence of collusion with assistants to cover up theft by taking after it was committed, constituted evidence that superintendent was a party or aider or abettor of the diversion of funds. Purvis v. State, 208 Ga. App. 653, 433 S.E.2d 58 (1993). Revealing to jury that defendant’s attorney was source of information. - While the state is likely correct that the defendant’s attorney had a positive obligation to reveal the location of the victim’s body to law enforcement officers, it does not follow of necessity that the state should disclose to the jury that the source of the information that led to the discovery of the body was the attorney; offering such testimony is a dangerous practice, and one the supreme court disapproves. However, in light of defendant’s many admissions of guilt, such error was harmless. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989). Requested instruction not necessary. - In the defendant’s trial on a charge of armed robbery, in violation of O.C.G.A. § 16-8-41, the trial court did not err in failing to provide the jury with a requested instruction on hindering the apprehension of a criminal as a lesser included offense pursuant to O.C.G.A. § 16-10-50 as the hindering offense was the equivalent of being an accessory after the fact; moreover, it was not a lesser included offense of the principal crime, but a separate offense. Windhom v. State, 315 Ga. App. 855, 729 S.E.2d 25 (2012). Cited in Ford v. State, 232 Ga. 511, 207 S.E.2d 494 (1974); Downs v. State, 145 Ga. App. 588, 244 S.E.2d 113 (1978); Lemley v. State, 245 Ga. 350, 264 S.E.2d 881 (1980); Highfield v. State, 246 Ga. 478, 272 S.E.2d 62 (1980); Jones v. State, 250 Ga. 11, 295 S.E.2d 71 (1982); Tenner v. Wallace, 615 F. Supp. 40 (S.D. Ga. 1985); Thaxton v. State, 184 Ga. App. 779, 362 S.E.2d 510 (1987); Wheeler v. City of Macon, 52 F. Supp. 2d 1372 (M.D. Ga. 1999); Burnette v. State, 241 Ga. App. 682, 527 S.E.2d 276 (1999).

OPINIONS OF THE ATTORNEY GENERAL Campus police officer must report commission of felony or presence of es-

caped convict to appropriate civil authority. 1970 Op. Att’y Gen. No. 70-69.

RESEARCH REFERENCES Am. Jur. 2d. - 39 Am. Jur. 2d, Harboring Criminals, § 1 et seq. C.J.S. - 30A C.J.S., Escape, §§ 31, 32. 67 C.J.S., Obstructing Justice or Governmental Administration, § 35 et seq. ALR. - Substitution or attempted sub-

stitution of another for one under sentence as a criminal offense, 28 A.L.R. 1381. When statute of limitations begins to run on charge of obstructing justice or of conspiracy to do so, 77 A.L.R.3d 725.