125 Ga. 24 | Ga. | 1906
The plaintiffs in error were jointly indicted for robbery, and, upon their conviction, moved for a new trial, which was Tefused.. They sued out a bill of exceptions, assigning error upon the overruling of their motion for a new trial, in which they complained, among other things, of the illegal admission of certain testimony. The prosecutor testified that he was set upon by three negro women and a sum of money was' forcibly taken from his person by one of them. The pressure of the case was upon the identity of the accused. Another witness testified, that he was a police officer and received a telephone request to come to the scene of the alleged robbery, that he promptly responded and arrived there within a few minutes, when he was informed by the prosecutor that he had been robbed by three women; that the prosecutor indicated a house in which he said the three women had gone, after the robbery, whereupon the witness knocked-on the door and entered a room in which he found two of the defendants and a colored man. Over objection of counsel for the accused, this witness was further permitted to testify: “I hadn’t mentioned anything about what we were wanting at all, and this negro man spoke up and says, ‘How much money did they get off of the old man?’ That was before I opened my mouth in the presence of these women. He said it in their presence and before he knew what we wanted at all.” The objection to this testimony was that the sayings of a third party could not bind the defendants, even though made in their presence. The court overruled this objection, in so far as concerned the two defendants who were present in the room when this occurred.
Before the sayings of a third person, made in the presence of one who is subsequently charged with the commission of a criminal offense, should be admitted in evidence against him, there should be proof affirmatively disclosing that the circumstances were such as to call upon the accused to make some response to what was said
The other assignments of error relate to matters with which it is unnecessary to deal, as we feel constrained to order a new trial