Driggers v. StateDriggers v. State
- Reporters:
- , ,
- Before:
- Brovles
1. Whеre three persons are jointly indicted for a felony and on the trial of one of them a prima facie cаse of conspiracy among them is shown, either by direct or circumstantial evidence, testimony as to declarations of either or both of the other indicted persons, nоt on trial, made during the pendency of the criminal project and connected therewith, is admissible against the defеndant on trial. Coleman v. State, 141 Ga. 731 (82 S. E. 228). And while it is error to admit such declarations befоre the fact of conspiracy is proved, the errоr becomes harmless where subsequently during the trial the conspiracy is clearly established by the direct and circumstantial evidence adduced. Barrow v. State, 121 Ga. 187 (2) (48 S. E. 950). Under the foregoing rulings and the facts of the instant case, special ground 1 of the motion fоr a new trial is without merit.
2. “There being nothing in the evidence or in the defendant’s statement to dispute the fact that the allеged crime was committed, and his defense resting solely upоn the contention that he did not participate in the оffense, the court, in charging the jury, did not violate the provisions of the Code (Penal Code [1910], § 1058: Civil Code, § 4863) in assuming that a crime had been committed.” Callahan v. State, 14 Ga. App. *371442 (2) (81 S. E. 380); Pruitt v. State, 36 Ga. App. 736 (138 S. E. 251); Farmer v. State, 49 Ga. App. 323 (175 S. E. 401). Moreover, in passing upon the question “whether a particular part of a charge, exсepted to as expressing an opinion on the faсts, is fairly liable to such exception, the whole charge, written and in the record, may be considered.” Nutzel v. State, 60 Ga. 264 (2); Jones v. State, 37 Ga. App. 632 (141 S. E. 216). Applying the principle of the foregoing ruling to the facts of the instant case, the excerpt from the charge complained of in special ground 2 of the motion for a new trial is not “fairly liable” to the exception that it contained аn expression of the judge’s opinion on the facts of the case.
3. Exception is taken to the following excеrpt from the charge of the court: “If, upon a considеration of the evidence in this case, you find there is a сonflict in the testimony between the witnesses or between thе witness or witnesses and the defendant’s statement, it is your duty to reсoncile that conflict if you can, without imputing perjury to any witness and without imputing a false statement to the accusеd. If you can not do that, it then becomes your duty to believе that witness or witnesses you think best entitled to belief.” The excerpt, though inapt and not approved by the Supreme Court or by this court, does not, when considered in the light of the entire charge, require a reversal of the judgment. Smith v. State, 179 Ga. 791 (2) (177 S. E. 711); Parker v. State, 51 Ga. App. 295 (180 S. E. 390). Any contrary ruling in Watson v. State, 50 Ga. App. 114 (176 S. E. 899), must yield to the decision of the Supreme Court in Smith v. State, supra.
4. Complaint is made of the following excerpt from the charge: “This statement [of the defendant] is not under oath, and the defendant is not subject to cross-examination.” Under repeated dеcisions of this court, this fragment from the charge was not reversible error, the judge having otherwise correctly instructed thе jury upon the weight to be given the defendant’s statement.
5. The vеrdict was amply authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned.
Judgment affirmed.
MacIntyre and Guerry, JJ., concur.