The defendant appeals her conviction for armed robbery. Held:
1. The defendant was tried along with her husband, the co-defendant. Basically the evidence showed that the defendant drove an automobile to the scene of the crime, parked the vehicle at a nearby car wash and remained there while her husband, the passenger, went inside a convenience store and committed a robbery by use of a pistol. A police officer arrived on the scene and began to question the defendant when the husband came out of the store and immediately ran away. He subsequently gave himself up and confessed to the robbery. At the time the defendant was talking with the officer, according to his testimony, she gave her former married name, rather than her present one, said that her husband was “running around” and she was there to look for him and misdescribed her present husband, giving a description that matched that of her former husband.
Defendant’s second enumeration of error asserts the trial court erred in admitting into evidence the confession of defendant’s husband, the co-defendant. Bruton v. United States,
The following language contained in the confession is crucial to our determination if Bruton’s precepts were violated. The co-defendant in the course of his recitation of what transpired interjected: “ Gail did not know I was going to rob a store, but she knew I was up to something, but she didn’t know what.” He then stated that after driving to the convenience store, “I told Gail to pull around back to the car wash, she did and we sat there a minute, then I got out and did not tell her nothing. I then got out with the gun in the back of my pants and went into the store and robbed them.”
“To be harmless, a Bruton error must be harmless beyond a
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reasonable doubt. Schneble v. Florida,
The evidence against the defendant in this case was not so overwhelming as to render any error harmless. Was the statement contained in the confession prejudicial? Certainly it was ambiguous — on one hand indicating a lack of guilt with merely some knowledge that her co-defendant was up to something. On the other hand, taking the darker side, the confession contains two not so contradictory expressions: the co-defendant recited for the record that the defendant did not know anything, but implied she actually did have guilty knowledge, while not saying so expressly. We therefore cannot hold that such ambiguity is harmless beyond a reasonable doubt. For, if the jury took the statement in a light unfavorable to the defendant, in view of remaining evidence, there would be a reasonable probability that the admission of that part of the co-defendant’s confession contributed to the defendant’s conviction.
Hence, the admission of such statement was error requiring the grant of a new trial to the defendant Gail Hamilton.
2. The first enumeration of error complains of the failure to sever the trial of the two co-defendants. In view of ruling in this first division the defendant will now have a separate trial and any issue on this point is moot.
3. The third enumeration of error is “The trial court erred in instructing the jury that it was the duty of the jurors to accept that evidence which is most reasonable and credible to them where it could not reconcile conflicting evidence.”
In support of her contention we are cited United States v. Holland, 526 F2d 284, reviewing a charge to the effect that the jury should reconcile the testimony of witnesses so that they speak the truth but if unable to reconcile, then reject the testimony which the jury believes to be untrue or mistaken. The court held this charge: “impermissibly condition [ed] the jury’s right to disbelieve even uncontradicted testimony,... and suggests that, where the testimony of witnesses conflicts in any particular, all of one must be received and all of the other rejected.” Id. p. 285. Upon examination of this *622 case we were not pursuaded by the Fifth Circuit’s logic nor by the authority therein cited which did not sustain the position taken. Moreover, the Fifth Circuit was not persuaded by its own logic, as evidenced by United States v. Holland, 537 F2d 821, wherein United States v. Holland, 526 F2d 284, supra, was modified by that court which, upon reconsideration, found the change not to be harmful error. In arriving at that determination, the court made the following observations: “[I]t is not an invasion of the province of the jury for a judge to furnish jurors some guidance in their deliberations.” The court noted that the federal trial judges should make clear that the ultimate decision as to truth or falsity lay with the jury. Moreover, including in the charge the admonition “the members of the jury were the ‘sole judges of the facts in the case, the weight of the evidence and the credibility of the witnesses’ ” served to accomplish this objective.
The trial judge in this case made it clear that the jurors were the exclusive judges of the witnesses, their credibility, and the weight to be given their testimony. The questioned charge merely furnished some guidelines which are not, of necessity, erroneous and harmful.
The principle is well established that “perjury is never presumed.”
Ga. Power Co. v. Owen,
In view of this authority we do not find this enumeration of error to be meritorious.
4. The remaining enumerations of error are without merit. We do point out for purposes of the retrial, it is well settled that where the evidence in a criminal case shows that two or more persons, acting in concert, were concerned in the commission of an alleged crime, it is not harmful error to charge the jury on the law of conspiracy
(Battle v. State,
Judgment reversed with direction that a new trial be granted.