This is a companion case to
Cunningham v. State,
The facts surrounding the murder of William B. Crawford are adequately set forth in the сompanion case and will not be repeated here.
Enumerations of error one through six assign error on the following: overruling of the appellаnt’s motion for new trial on the general grounds, failure to establish a conspiracy, failure to corroborate her statement, and admitting evidence rеlating only to the co-defendant.
1. “ ‘Conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, the existence of which agreement may be established by direct proof,
or by inference, as a deduction from acts and conduct,
which discloses a common design on their part to act together for the accomplishment of the unlawful purpose.’ (Emphasis supplied.)
Chappell v. State,
2. However, the appеllant in her 7th and 8th enumerations of error contends that her statements were inadmissible in that they were not given freely, nor voluntarily, nor with a valid waiver of her right to consult with her attorney and have her attorney present during questioning.
The appellant testified that her husband was allowed to see her *836 in jail; she testified: “He said, help me, Babe. He said, tell them people that you were, he said to tell them there people that you was with me. If you don’t, he said, Mr. Danner said yоu won’t see your children no more.” The state’s rebuttal witness, a fellow prisoner, testified that the appellant’s husband told the appellant that if she didn’t tell thе truth she wouldn’t see her children. The witness also testified that no law enforcement officer was present while these statements were made to the appellant.
The state presented evidence that the appellant was given her Miranda warnings at each instance in which she was interrogated, аnd that no hope of benefit or threats were made in order to obtain the statements. The appellant denied that she was advised of her Miranda rights.
Thе trial judge, after hearing the evidence, admitted the statements. A confession otherwise admissible is not inadmissible because it is prompted by the advice of a relative of the defendant.
Dick v. State,
The appellant further argues that since two attorneys had been appointed to represent her at the time of her third statement, the law enforcement authorities should have determined who these attorneys were and had them present before they attempted to question her. The state’s evidence showed that Agent Carver, who took the statement on all three occasions, did not know that an attorney had been appointed for the appellant. However, he asked her who her attorneys were. She stated that she did not have an attorney, and her family was going to get her a lawyer. He thereafter asked her, after he had read her her rights, whether she would speak to him, and she said she would. The appellant testified that at the last interview she requested that her attorney be present.
Thе trial judge resolved that conflict in the evidence in favor of the state and admitted the confession. We find no error. Dick v. State, supra.
Furthermore, this court declines to adopt a per se rule urged by the appellant that all witnesses to a waiver of Miranda rights must be produced by the state in order to overcome tеstimony of a defendant disputing having received Miranda warnings in order to carry the state’s burden in a Jackson v. Denno hearing.
3. The appellant next contends that her confession was not *837 corroborated. However, there was corroboration of the portions of the confession as to: the location of the appellant and her husband prior to their walking tо the victim’s house; the location of the murder; and the location of the money taken from the victim. These portions of the confession were cоrroborated by evidence that the appellant and her husband were seen walking from the laundry in the direction of the victim’s house within the time frame of the murder; that the victim’s body was discovered in the cigarette room; and that the victim kept his money in the bedroom. The state further introduced evidence that the victim died from criminal agency.
This evidence suffices to establish the corpus delicti, and corroboration of a confession in any material partiсular satisfies the requirements of the law.
Jones v. State,
4. The state sought to introduce a certain wrench and clothing in evidence over objection. The evidencе was tentatively admitted by the trial judge subject to being connected with the crime and properly identified. The appellant, at the close of the stаte’s evidence, renewed the objection on the ground that the state had not connected up the evidence. The trial judge overruled the objection.
The appellant, in her 13th enumeration of error, contends that the trial judge erred in admitting this physical evidence. We agree.
The wrench was not identified as anything other than having been found in a field. The clothing was also identified only as having been found in an old well. The witness identifying the clothing carefully avoidеd saying whether it was a man’s or a woman’s clothes, nor were any of these items connected to the crime or the defendant in any manner whatsoever.
The state contends that since this was a bench trial, the trial judge is presumed to consider only the admissible evidence and reject the inadmissible. However, in the present case, the trial judge, at the close of the evidence, expressly ruled on the admissibility of this evidence. Therefore, the trial judge necessarily considered the evidence to have been properly admitted and considered it in reaching his verdict. We are unable to say that it is highly probable that the error did not contribute to the judgment.
Thomas v. State,
5. The remaining enumerations of error need not be ruled оn in that they either were raised in the appellant’s husband’s case,
Cunningham v. State,
supra, or would likely not reoccur at trial. However, under the present record, thе appellant could not be convicted of both murder and armed robbery, since the armed robbery is an included offense.
Burke v. State,
Judgment reversed.