1. Thе appellants in 52303 urge that the indictment against them should have been dismissed. The case was originally called on February 9, 1976, issue was joined and the clerk began to call the names of the first 42 jurors. The state thereupon announced that it could not proceed and that it would cаll another case, because the appellants had filed a motion to suppress. Then the names of the entire jury panel werе called to determine their presence or absence, the panel was qualified and given the *51 oath of Code § 59-706. On February 12, 1976, the case against appellants was called again, the motion to dismiss overruled and the conviction resulted.
Code Ann. § 26-507 (a) (2) provides: "A prosеcution is barred if the accused was formerly prosecuted for the same crime, based upon the same material facts, if such formеr prosecution was terminated improperly after the jury was impaneled and sworn. . .” In the first instance, the prosecution was not "terminatеd” but merely continued until the motion to suppress could be heard; the trial resumed three days later with the same jury panel. Secondly, the jury was nоt "impaneled and sworn” within the meaning of § 26-507 (a) (2) because the oath in criminal cases of Code § 59-709 had not been administered. There was no error in overruling the motion to dismiss the indictment.
2. The appellants in 52303 and in 52306 urge reversible error in failing to suppress identification testimony. Both identificаtions were preindictment; as such United States v. Wade,
3. The appеllants in 52303 cite as error the court’s refusal to charge Code Ann. § 26-702 on mental capacity and that prior and subsequent conduct could be considered as showing a lack of wilful intent. The record reveals that the appellants’ story was that they were too *52 drunk to remember what had happened. The jury was fully instructed on intoxication under Code Ann. § 26-704. There was no error.
4. The appellants in 52304 and 52305 predicate error upon allowing statements of their co-defendant into evidence under the co-conspirator exception to the hearsаy rule. Objection was made to the statement as "hearsay against the other two defendants and prejudicial and therefore inadmissible.” This is true but in a joint trial, the testimony relating each of the statements was admissible against at least one of the co-defendants. Code § 38-414. " 'The trial сourt was not requested to limit the admissibility of such testimony to the co-defendant against whom it was admissible. We find no error
here.’ Poston v. State,
5. The appellants in all four cases object to the following charge: "When circumstantial evidence is relied upon to establish a fact, the evidence must bе such as to reasonably establish the theory relied upon to
preponderate
to that theory rather than to any other reasonable hypothesis. The comparative weight of circumstantial evidence on any given issue is a question of fact for the determination of you the Jury.” (Emphasis supplied.) This charge was held to be erroneous in
Wells v. State,
6. The appellants in 52304 and 52305 argue that the trial judge erred when he charged in the language of Code
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Ann. § 79A-812: " 'Any person who attempts or conspires to commit any offense defined in this chapter shall be punished by imprisonment’ — no, I had better not put that in there. I believе that’s all I’m supposed to charge in this.” We are cited to
Moore v. State,
7. Other enumerations of error in 52304 and 52305, going to the trial judge’s charge, are not erroneous for any of the reasons cited.
8. The evidence is sufficient to support the verdict of guilty of burglary in 52303.
9. The evidence is sufficient to support thе verdict of guilty of attempting to obtain possession of a controlled substance through forgery under Code Ann. § 79A-812 in 52306.
10. The evidence however is insuffiсient to support the guilty verdicts in 52304 and 52305. The appellant in 52306, Holland, made a statement to the officers admitting that he had attempted to оbtain drugs with a forged prescription. His statement in no way implicates appellants Beal and Smallwood in a conspiracy to obtain the contraband. We quote from his statement: "At about 11:30 a.m. this date Jerry Smallwood and Edward Beal came by my house and ask. me to go ride around. I ask them to bring me to Winder. They said o.k. I told them I wanted to go to Winder and try to get some demerol and/
told them, I had the scrip to get it with. .
.” (Emphasis supplied.) The state’s witnesses identified Holland as the one who had tried to fill the forged prescription but neither could identify the other two defendants. The only evidence linking the appellants in 52304 and 52305 to the "crime” was that when their car was stopped Holland was
*54
in the back seat. There is absolutely no evidence in the record from which it was either circumstantially or directly shown that Beal and Smallwood entered into a corrupt agreement to obtain controlled drugs through
fraud or forgery,
an essential element of conspiracy under Code Ann. §§ 26-3201, 79A-812 and 79A-822 (a) (3). The most that can be said is that they agreed to drive Holland to fill a prescription, though not necessarily a prescription they knew to be fraudulent or forged and that after Holland’s attempts failed they were found in his presence when arrested. This is not sufficient to support a verdict of guilty of conspiracy.
Patterson v. State,
Judgments affirmed in 52303 and 52306; reversed in 52304 and 52305.