This is аn appeal from an armed robbery conviction and life sentence received by the defendant after a jury trial in the Superior Court of Barrow County.
The defendant was indicted jointly with three other defendants for the murder and armed robbery of William Eugene Mann at the latter’s grocery store-filling station in Barrow County. Count 1 of the indictment charged the defendants with murder in that with malice aforethought defendants killed the victim by shooting him with a .22 caliber pistol. Count 2 charged the theft of the victim’s money from him with the use of the pistol. This defendant, William Leon (Sonny) Woods, Sr., was given a separate trial from the other defendants and was aquitted of murder but found guilty of the armed robbery.
The evidence showed essentially that William Eugene Mann, the proprietor of the store, was killed with *496 a .22 сaliber pistol during the commission of an armed robbery of his store and that approximately $100 of his money was stolen. Defendant Woods, together with two of the other indictees and another party, had traveled from Atlanta to the home of defendant Young Hamilton Hunter in Jackson County on the day preceding the commission of the alleged crimes. The next morning defendant Woods and the other defendants began consuming alcoholic beverages and smoking marijuana. While doing so, the co-defendаnt Hunter expressed a grudge against William Eugene Mann, the grocery store-filling station proprietor. Hunter obtained a .22 caliber pistol and all four of the co-indictees then proceeded to travel to Mann’s store in the defendant Woods’ autоmobile with this defendant driving the vehicle. Upon arrival at the store, defendant Woods remained in the automobile in front of the store while the others who accompanied him went inside and took the money with the use of the pistol. During the course of the rоbbery, the store owner was shot and he died as a result. Subsequently, all of the indictees returned to Jackson County where they picked up another party and then traveled to Atlanta. During this trip the money taken in the robbery was divided and defendant Woods madе a statement during the course of their conversation that he did not know the co-indictee Hunter had the nerve to do it. Defendant Woods remained in Atlanta until he was arrested a couple of weeks after the robbery. Following his arrest, he was interrogated by W. P. Stone, an agent of the D.O.I.
I.
Voluntariness of Defendant’s Incriminating Statement.
Defendant first enumerates as error the admission into evidence of Agent Stone’s testimony concerning the voluntariness of an incriminating statement made by defendant during his interrogation. In the course of the interrogation by Agеnt Stone, defendant was informed of the charges against him and of statements made by a co-indictee implicating him. He was then asked if he wanted to make a statement. Agent Stone testified that
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defendant agreed to tell his side of the story, and at that time the agent advised him of his constitutional rights and defendant signed a waiver reciting that he understood these rights. During Agent Stone’s testimony at the trial, defendant’s counsel requested the court to conduct a Jackson-Denno hearing to determine the voluntariness of defendant’s statement before it was introduced into evidence. This hearing was conducted outside the presence of the jury and the trial judge considered the direct testimony of Agent Stone and his cross examination by defendant’s counsel relating tо the voluntariness of the incriminating statement made by defendant. The trial judge then ruled the statement had been made voluntarily and could be submitted to the jury. Agent Stone was subsequently asked during the course of his direct examination before the jury if the statement werе freely and voluntarily made. Defense counsel objected to the question on the ground that it called for a conclusion on the part of the witness. Defendant asserts that the admission of this testimony was improper and prejudicial. In
Thompkins v. State,
II.
Motion for Mistrial.
Defendant also contends the trial court erred in failing to grant a mistrial upon the motion of defendant after the following testimony of Lili Hailey, a witness for the state, placed the chаracter of the defendant in issue before he had done so himself: "Q. Do you know Sonny? *498 A. I met Sonny in prison with my brother.” At that point, defendant’s counsel made a motion for a mistrial. The trial judge, after a brief conference with counsel, instructed the jury to disregard this unresponsive answer given by the witness and asked the jury to wipe it from their minds completely. The trial judge polled the jurors individually asking each if he could disregard the answer and not consider it. Each juror responded affirmatively.
The granting or refusal to grant a mistrial has long been held to be largely in the discretion of the trial judge, but a mistrial should be granted when it is essential to preserve the right of fair trial. See
Queen v. State,
III.
Jury Instructions.
Defendant also аsserts as error two instructions of the trial judge to the jury. The first portion of the charge assigned as error reads as follows: "Now when circumstantial evidence is relied upon to establish a fact, the evidence must be such as to reasonably establish thе theory relied upon, to preponderate to that theory other than to any other reasonable hypothesis.”
Defendant acknowledges that in the second sentence following the above quoted portion of the charge, the triаl judge correctly stated to the jury: "However, before you would be authorized to convict on circumstantial evidence alone, the proven facts must not only be *499 consistent with the hypothesis, or conclusion of guilt, but must exclude every reasonаble hypothesis or conclusion except that of guilt of the accused.” This latter excerpt from the charge was given, in essence, if not verbatim, several times by the trial judge before completing the instructions to the jury. In addition, that portion of the charge assigned as error was preceded and followed in the trial judge’s instructions by a complete and accurate charge on the law requiring proof beyond a reasonable doubt for conviction in criminal cases.
Appellаnt argues that, even though other parts of the charge were correct, the jury, in effect, was required to select one part of the charge to the exclusion of another and this is reversible error. Appellant requests that we, overrule
Pless v. State,
The remaining instruction complained of by the defendant relates to a part of the charge given by the trial judge on the issue of conspiracy. The specific charge complained of reads as follows: "If you find a conspiracy to do an unlаwful act, and conceal it, actually existed between the defendant and the co-defendants at the time of the alleged acts and declarations beyond a reasonable doubt, then such evidence is admissible, and may be considered by yоu to establish the crime and the guilt of the defendant.” Defendant contends that this portion of the charge on conspiracy authorized the jury to convict defendant of armed robbery solely upon a finding of a conspiracy to conceаl an unlawful act. Defendant apparently reads the conjunction "and” in the first portion of the quoted sentence from the charge to be disjunctive rather than conjunctive. This part of the charge did not authorize the jury to convict solely upon
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the finding of a conspiracy to conceal an unlawful act as contended by defendant. The trial court gave the jury a full and correct charge on the law of conspiracy. The charge, when considered as a whole, was fair and did not mislead the jury. See
Hilton v. State,
IV.
Inconsistent Verdicts.
Defendant’s final contention is that the jury’s verdicts of innocent on the count of murder and guilty on the count of armed robbery are inconsistent, repugnant and require a reversal. Defendant emphasizes in his argument that there was no evidence presented at the trial which showed that he participated directly in either of the crimes of which he was charged in this case. Defendant contends that if the evidence shows he was guilty of any crime, at most, it shows he was guilty only of conspiring tо commit the crimes charged against him. Defendant argues forcefully that the recent case of
Fallings v. State,
In the present case, defendant was indicted in separate counts for the offenses of armed robbery and murder. Unlike
Fallings,
defendant was not indicted in this case for felony murder, but was indicted for murder as a separate offense. Thus, it was incumbent upon the state to prove the defendant was a part of the conspiracy to commit each of these offenses. "Mere presence and participation in the general transaction in which a homicide is committed is not conclusive evidence of consent and concurrence in the perpetration of the crime by a defendant sought to be held responsible for the homicide as aiding and abetting the actual perpetrator, unless such defendant pаrticipated in the felonious design of the person killing.”
Futch v. State,
The evidence is sufficient to support the jury’s finding that the defendant is guilty of armed robbery and we find no harmful error for any reason enumerated in this appeal. The judgment of conviction and sentence will, therefore, be affirmed.
Judgment affirmed.