22 Ga. App. 770 | Ga. Ct. App. | 1918
(After stating the foregoing facts.)
In the opinion in the case just cited, Mr. Justice Lumpkin said: “Objection.was made to several parts, of the evidence which were only admissible as tending .to show a conspiracy, or on the basis of a conspiracy; and error was also assigned on certain charges on the law of conspiracy. It was contended that the evidence was irrelevant, and that there was no sufficient evidence of a conspiracy on which, to base its admission or the charges .on that subject. After the fact of conspiracy is proved, the declarations of any one of the conspirators, during the pendency of the criminal project and connected therewith, are. admissible against all. Penal Code (1910), § 1025. While it may generally be -the better practice to require a prima facie case of conspiracy first to be made, before admitting evidence of the acts and declarations of one of the alleged conspirators, there is no inflexible rule to that effect. The trial court has some discretion as to the order in which testimony may be introduced; and if a prima facie ease of conspiracy is shown from the whole evidence, the admitting of such testimony is not error. Unless, however, a conspiracy -is shown prima facie, such • evidence can only operate against the person whose acts and declarations are proved, if he is on trial; or if he is not on trial; they are not admissible against the defendants being tried, and should be rejected. 8 Cyc. 682. If sufficient prima facie evidence of a conspiracy is introduced to authorize the admitting of evidence of acts and declarations of one of the alleged conspirators, ultimately it is for the jury to determine whether, from the whole evidence, s&
Affirmed.