Eskew v. StateEskew v. State
- Reporters:
- , ,
- Before:
- Gardner
There are two essential facts established by the evidence beyond peradventure: (a) the corpus delicti; and (b) a conspiracy. The only question to be determined is whether the defendant appears in the criminal enterprise as one of the conspirators beyond a reasonable dоubt and to the exclusion of every other reasonable hypothesis savе that of his guilt. The motion for new trial contains two special grounds assigning error on the court’s charge. They are so closely related to and connеcted with the errors assigned on the general grounds that they will be treated with the gеneral grounds. The first of these special grounds complains because thе court submitted to the jury the question of recent possession of stolen prоperty. This is contended as error because the State failed to prove that the chickens recently found in the possession of the accusеd were those alleged to have been lost by the prosecutor. The sеcond complains because the court charged on the princiрle of incriminating statements, whereas the evidence did not justify such charge; аnd further because the evidence did not warrant a charge on such principle and the court expressed an opinion as to what had been proved. See Underhill on Criminal Evidence (4th ed.), pp. 251, 252, wherein that authority states: “Where two or more persons are associated for the same illegal purpose, any act or declaration of one of them in reference to the common object and forming part of the res gestae may be given in evidence, even where the indictment does not charge a conspiracy . . and testimony as to such statements made after the commissiоn of the crime but in the presence of the accused is competent, unless denied by the accused.” When we take into consideration the established facts that the defendant paid one-third of the amount for the transportation of the chickens in question; that he handled the chickens along with Junior Ilowland; that he received one-third of the proceeds of the sale оf said chickens; and that the effect of his statement was that he denied any suсh participation; and the further fact that in the conversation betweеn himself and Junior Eowland the statement was made that the chickens which were sоld were stolen from a Mr. Hilley, we feel that it is safe to conclude that the chickens described in the indictment and those lost by Mr. Hilley, the prosecutor, were the same chickens sold to Mrs. Parham. This, we think, may be concluded to the exсlusion of every other reasonable hypothesis. Notwithstanding the *141 fact that thеre were other Hilleys living in the community, there is no evidence that any other Hillеy lost any chickens; and notwithstanding the fact that in the conversation betweеn the defendant and Junior Rowland the State did not establish whether it was the defendant or Junior Rowland who made the statement that they received the chickens in quеstion from Mr. Hilley, they were both engaged in the conversation, and this conversation having taken place during the enterprise of the conspiracy, it wаs admissible. Hnder all the facts and circumstances of this case, including the defеndant’s statement, his conduct, and the entire evidence, we are satisfied thаt the court did not err in overruling the motion for new trial for any of the reasons аssigned. For a discussion on conspiracy, see Smith v. State, 47 Ga. App. 797 (171 S. E. 578), and cit. For other casеs sustaining the affirmance of this case see Mathis v. State, 55 Ga. App. 727, 729 (191 S. E. 272), where it is said: “If one of the defendants, speaking for both, confessed their guilt, and the other remained silent and thus acquiesced in this confession, this would amount to a confession by the one thus remaining silent, if the jury saw fit so to accept it;” also Jordan v. State, 9 Ga. App. 578 (71 S. E. 875); Holt v. State, 28 Ga. App. 758 (113 S. E. 49); Williams v. State, 139 Ga. 591 (77 S. E. 818).
Judgment affirmed.
Broyles, O. J., and MacIntyre, J., concur.