These three defendants appeal from their convictions of the offense of robbery by force, for which they were jointly indicted and tried. Held:
1. Enumerated errors 1 through 5 pertain to the number and apportionment of peremptory challenges, or strikes, to which each individual defendant was entitled. Prior to 1972, our courts construed Code § 27-2101 to mean that, where persons jointly indicted for an offense go to trial together, "they do not waive any right of peremptory challenge, but
each
is entitled to his full statutory allowance.” (Emphasis supplied.)
Cumming v. State,
Each individual defendant, if separately tried, would have been entitled to 12 peremptory challenges under Code § 59-805, since the punishment prescribed by Code Ann. § 26-1901 (Ga. L. 1968, pp. 1249, >1298) for the offense of robbery is "imprisonment for not less than one nor more than 20 years,” which is within the category of "any time less than four years” in Code § 59-805. Hence, the three co-defendants were entitled under § 27-2101 to 12 strikes, or 4 strikes each under the trial court’s direction that each was to have "his proportionate share.” Since the trial judge allowed the defendants 20, rather than the prescribed 12, strikes, each defendant had 6 2/3 strikes or 7 by a common sense construction) instead of only the 4 to which he was entitled by law, and there was, therefore, no harmful error committed. For this reason, the trial judge’s refusal to order separate trials for each defendant (on the ground of the alleged deprivation of the full statutory allowance of strikes) and his denial of the requests for additional strikes, both of which are discretionary with the trial judge under § 27-2101 as amended, were not abuses of discretion. In this connection it should be noted that the trial judge, upon the defendants’ counsels’ requests, should have directed the exact number of strikes to which each defendant was entitled if they were not to be exercised jointly, so as not to leave this important matter in doubt, or leave the impression that they might have a fraction of a strike (as 6
2/
3), a result certainly never intended. See
Cumming v. State,
2. Enumerated errors 6 through 13 in each case complain of the *549 admission in evidence, over objection, of the written confessions of the co-defendants and all other testimony and evidence pertaining thereto, on the grounds that a prima facie conspiracy had not been proved or, if so, had terminated prior to such in-custody statements; and that such statements were hearsay, for which the proper foundation had not been established and no findings made of their voluntariness and the defendants’ waiver of their constitutional rights, including the right to counsel, at the time they were made.
"A conviction may be had upon a free and voluntary confession corroborated only by proof of the corpus delicti. . .”
Poythress v. State,
3. Enumerated errors 14, 15 and 21 argue the sufficiency of the evidence to support the verdicts. The refusal of the trial judge to direct verdicts of acquittal was not error here because such verdicts were not demanded as a matter of law. See
Merino v. State,
4. Enumerated error 16 — the trial judge’s refusal to grant a motion for mistrial on the ground of the district attorney’s alleged comment, in his argument, on the defendants’ failure to testify under oath — cannot be ruled on, since the argument was not required to be recorded (Code § 27-2401) and there is no *550 stipulation in the record as to what the alleged comment was.
*550 5. Enumerated error 17, the contended failure to charge the necessity of corroboration, is without merit. The judge charged as follows: "A confession, alone, uncorroborated by other evidence, will not justify a conviction. . . Now, the amount of corroboration to a confession which has been freely and voluntarily made to authorize a conviction upon such confession is a question of fact to be determined by the jury.” Furthermore, as was held in Division 2 hereinabove, each defendant’s conviction was authorized by his own free and voluntary confession corroborated by proof of the corpus delicti.
6. The denial of a mistrial was not error, as is contended in enumerated error 18, on the ground that the co-defendants’ confessions were read to the jury from photo-copies of the originals rather than from the originals. The statements themselves, rather than the documents evidencing them, were what was being put in evidence; therefore, the "highest and best evidence” rule did not apply. Furthermore, the originals were in the courtroom, there was testimony that the copies read from were identical copies, and defense counsel stipulated that "it’s the same thing.”
7. The judge’s refusal to instruct the jury that the defendants had in fact objected to the admission in evidence of the co-defendants’ statements, was not error, as contended in enumerated error 19. As was held in Division 2 hereinabove, the convictions were authorized even without the admission of the co-defendants’ statements. Moreover, the judge fully instructed the jury as to the elements of admissibility and weight to be given such confessions.
8. The appellants enumerate as error (No. 20) the trial judge’s permitting the state to call Division of Investigation agent Colwell to testify after the state had already rested its case. Counsel having cross examined witness Colwell without making any objections to the state’s procedure, they are deemed to have waived their right to complain. See
Timmons v. State,
Judgment affirmed.