Coker v. State

• Decision Date: 17 February 1945
• Docket Number: 15074.
• Citation: Coker v. State, 199 Ga. 20, 33 S.E.2d 171 (Ga. 1945)
• Parties: COKER v. STATE.
• Court: Georgia Supreme Court

33 S.E.2d 171

199 Ga. 20

COKER v. STATE.

No. 15074.

Supreme Court of Georgia

February 17, 1945

Syllabus by the Court.

1.A conspiracy may extend beyond the actual commission of the crime and include such matters as concealing the crime or suppressing evidence.

2.Before a confession can be admitted in evidence, it must prima facie appear that the confession was freely and voluntarily made.If there is a dispute as to whether the confession was freely and voluntarily made, that question then becomes one of fact for determination by the jury; but if the undisputed facts show that the confession was not freely and voluntarily made, the confession should not be admitted in evidence.

3.No error appears in the excerpt from the charge complained of.

The plaintiff in error was jointly indicted with Mary Rowland Overby, charged with the crime of murder.He was separately tried, convicted without a recommendation, and sentenced to be electrocuted.To the judgment overruling his motion for a new trialhe excepts.

It is conceded that the evidence was sufficient to authorize the verdict, provided the alleged confessions of the plaintiff in error were properly admitted in evidence, and provided it was not error on the part of the trial judge to refuse to exclude the confessions from the evidence.For this reason we set forth only that portion of the evidence dealing with the manner and circumstances under which the confessions were obtained.Both the oral testimony with reference to the confession and the written confession introduced in evidence amounted to a plenary confession of guilt.

W. B Royal, a corporal of the Georgia State Patrol; W. A. Ross, of the Georgia Bureau of Investigation; and Merrill Hardigree, a member of the Georgia State Patrol, were the witnesses who testified as to the manner in which the confessions were obtained.The testimony of each was prefaced with the statement that the confessions were freely and voluntarily made, without the slightest hope of benefit or the remotest fear of injury.

The facts developed on cross-examination showed in substance that B. M. Overby was killed about ten o'clock on a Thursday night.The next morning, between two and three o'clock Bernie Coker, who lived in the home with the deceased and the deceased's wife, Mary Overby, was aroused from his bed and arrested on suspicion.He was carried to jail, he at the time protesting his innocence.Between two and three o'clock in the afternoon of the same day on which he had been placed in jail in the early morning hours, he was carried by officers from the county jail to the State Patrol headquarters, where five officers of the law engaged in continuously questioning him until an hour or two before day-light the next morning.He was then returned to jail.That afternoon he was again removed from the jail and taken back to the State Patrol headquarters, where he found in waiting the same group of officers who had subjected him to constant grilling practically all of the preceding afternoon and night.As to the hour on Saturday afternoon when he was for the second time taken from the jail to the State Patrol headquarters, one of the officers testified: 'We next questioned him Saturday afternoon, somewhere between two and three o'clock.I can't remember the exact time for I had lost so much sleep.'In about ten or fifteen minutes after the questioning was renewed on Saturday afternoon, the defendant made the oral confession testified to by the officers, and the confession was then and there reduced to writing, and this was the written confession introduced in evidence.One of the officers testified: 'He did not have any counsel.I did not see any counsel, Judge, and I don't think he had any.No one advised him of his rights, and the State had no counsel there at the time either, but the State did have five officers there.'Another of the officers testified with reference to the time when the confession was made on Saturday afternoon: 'I started questioning Bernie Coker, and he said, 'I have done told you all I know about it.'I said, 'No, you haven't, you know more than that,' and he broke down and cried a little bit.'The officer testified that following this occurrence the confession was made.

Robt.B. Williamson, of Sylvester, for plaintiff in error.

R. D. Smith, of Tifton, W. C. Forehand, Sol.Gen., of Sylvester, T. Grady Head, Atty. Gen., and Maud Saunders, of Atlanta, for defendant in error.

WYATT Justice.

1.The first ground of the amended motion for a new trial, being numbered four, complains because of the admission of the following testimony:

'Q.Did he talk to you about where the shoes were thrown in the pond--and did you make any investigation there?A.Now, Bud didn't tell me that--Mary told us that.

'Q.Did she tell you that, in the place of Bernie or Bud Coker telling you that?A.Yes, sir.

'Q.When did she tell you that--did she tell you that in the presence of Bernie Coker?A.The night we went and got her--John Duffy, trooper Hardigree and myself went and got her.

'Q.Did she carry you and show you where the shoes were?A.She carried us back out there and showed us where Gordon throwed the shoes.'

The objection urged as to the admission in evidence of this testimony is that it was hearsay and not in the presence of the defendant.

True it is that the statement here complained about was made by a defendant jointly indicted and charged with being a co-conspirator in the commission of the crime, and was made by her after the crime had been committed.The jury were authorized to find that the acts were those of a co-conspirator, after the crime had been committed, in an effort to councel the crime and to suppress evidence.

'A conspiracy may extend beyond the actual commission of the criminal offense charged.It may expressly or impliedly include such matters as concealing the crime, concealing or suppressing evidence, taking means to prevent or defeat prosecution, possession and disposition of the spoils.'Burns v. State,191 Ga. 60(8), 11 S.E.2d 350, 352, and cases therein cited.

It follows that there is no merit in this assignment of error.

2.The second and third grounds of the amended motion, being numbered five and six, complain because the confessions were admitted in evidence--the first complaint being because the oral confession was admitted, and the second because the written confession was admitted.The plaintiff in error objected to the introduction in evidence of the alleged confessions, and also moved to exclude them from the evidence, because, as he contends, it affirmatively appears that they were not freely and voluntarily made.

Counsel for the plaintiff in error, in both his oral argument before this court and in his brief filed with this court, makes a very able and fair statement of his position.He readily concedes that, when a prima facie showing has been made that a confession was freely and voluntarily made and thereafter a dispute arises as to whether it was or was not voluntarily made, that question becomes one for the jury, and the finding of the jury thereon is conclusive.His contention is that the undisputed facts show that the confessions were not freely and voluntarily made.

The general rule with reference to confessions is so well stated by this court, and the authorities so well correlated, in Bryant v. State,191 Ga. 686, 710, 13 S.E.2d 820 837, that the author of...