Dudley v. State

• Decision Date: 20 December 1978
• Docket Number: No. 56667,56667
• Citation: Dudley v. State, 148 Ga.App. 560, 251 S.E.2d 815 (Ga. App. 1978)
• Parties: DUDLEY v. The STATE.
• Court: Georgia Court of Appeals

Page 815

251 S.E.2d 815

148 Ga.App. 560

DUDLEY v. The STATE.

No. 56667.

Court of Appeals of Georgia.

Submitted Oct. 16, 1978.

Decided Dec. 5, 1978.

Rehearing Denied Dec. 20, 1978.

Brown, Katz, Flatau & Hasty, S. Phillip Brown, Macon, for appellant.

Beverly B. Hayes, Dist. Atty., James Stanley Smith, Jr., Asst. Dist. Atty., for appellee.

McMURRAY, Judge.

Defendant was indicted, tried and convicted of the offenses of burglary (Count 1); possession of burglary tools some five days after the first offense of burglary (Count 2); and, of criminal attempt to commit the crime of burglary occurring on the same date as the offense of possession of burglary tools (Count 3). He was sentenced to serve 20 years in the penitentiary as to the burglary conviction; five years as to Count 2 to run consecutive to Count 1; and 10 years as to Count 3 to run consecutive to Counts 1 and 2; a total of 35 years. Defendant duly filed a motion for new trial which was later amended and after a hearing denied. Defendant appeals. Held :

Defendant was convicted principally on the testimony of an accomplice who had been tried the day before and received a verbal sentence of 20 years later reduced to five years when his sentence was reduced to writing. The accomplice had already testified and implicated the defendant in the three counts for which he was charged when he was sentenced to serve five years.

Thereafter, the sheriff was called to testify as to his investigation of the burglary occurring on the 15th of March, 1976, and the attempted burglary five days later on the 20th of March, 1976. He testified as to what his investigation disclosed including the finding of the burglary tools at the scene of the second crime, and his examination of the arrested accomplice in which he stated, "I couldn't get anything out of him." He was then asked further, "Q. Did Jimmy Burden, Jr. (the accomplice) ever make a statement to you? A. Yes, he did. Q. Was it what he testified to here today? A. Yes, it was." Whereupon objection was made by counsel for the defense, and he moved for a mistrial, contending it was an attempt to use the confession of the co-conspirator at a time after the conspiracy had ended at a trial where the co-conspirator is not on trial contrary to the law of Georgia, and that the district attorney knows it and that it is not admissible.

Reference was there made to Code § 38-414 which states clearly that the confession of one joint offender or conspirator, "made after the enterprise is ended, shall be admissible only against himself." The accomplice had fully implicated the defendant. It was, therefore, necessary to corroborate his testimony. Code § 38-121. Clearly this testimony was offered for the purpose of corroborating the testimony of the accomplice who had previously testified that he and the defendant had committed the crimes.

Here the joint enterprise had terminated. The sheriff's testimony as to what he was told by the accomplice was not made under such circumstances to render it part of the res gestae of the transaction, nor was it under the circumstances brought within any of the exceptions to the rule excluding hearsay evidence at the time of the original investigation by the sheriff wherein he could have testified as to information he received as a part of the res gestae of the transaction or as a part of his investigation under Code § 38-302 to explain conduct and ascertain motives.

The purpose of this testimony was to corroborate the testimony of the accomplice, which testimony was extremely weak at this point in time. Clearly it was violative of Code § 38-414 and extremely prejudicial to the defendant. Unless stricken from the record and the defect in some way cured, the motion for mistrial should have been granted. See Gibbs v. State, 144 Ga. 166(1, 2), 86 S.E. 543; Brandon v. State, 169 Ga. 808(1, 2), 151 S.E. 493; Brown v. State, 132 Ga.App. 200(2), 207 S.E.2d 682; Crowder v. State, 237 Ga. 141, 153, 227 S.E.2d 230. The enumeration of error complaining of the failure of the court to strike this statement as an attempt to use a confession by a co-conspirator at a time after the conspiracy has ended at a trial where the co-conspirator is not on trial is therefore meritorious.

2. As the evidence was sufficient to authorize the verdict of guilty, the trial court did not err in overruling the defendant's motion for directed verdict at the end of the state's evidence and at the end of all the evidence. The testimony of the accomplice was otherwise corroborated by the owner of the burglarized store who testified that the sledge hammer found at the scene of the attempted burglary some five days later had been stolen during the burglary of his store. This testimony was independent corroborating evidence which tended to connect the accused with the crime. Turner v. State, 235 Ga. 826, 827, 221 S.E.2d 590. It was also independent of the accomplice's testimony. West v. State, 232 Ga. 861, 864(2), 209 S.E.2d 195; Birt v. State, 236 Ga. 815, 824(2), 225 S.E.2d 248. There was also other circumstantial evidence tending to prove the identity and participation of the defendant, although it was not as strong as the evidence as to the sledge hammer (a burglary tool stolen in the burglary on March 15, 1976 and found at the scene of the attempted burglary).

There is no merit in this complaint as the corroboration goes beyond that specified as necessary in Adams v. State, 140 Ga.App. 621, 231 S.E.2d 547, which is relied upon by the defendant.

3. The testimony of a sequestered witness who remains in a courtroom in violation of the rule of sequestration may not be stricken nor excluded if it is admissible and relevant, and the witness is competent to testify; although its weight and credit is for the jury under proper instructions by the trial court. Still v. State, 142 Ga.App. 312, 315(3), 235 S.E.2d 737; McFarland v. State, 137 Ga.App. 354, 357(5),223 S.E.2d 739; Howard v. Echols, 31 Ga.App. 420, 422(1), 120 S.E. 815; Wallace v. Mize, 153 Ga. 374(7), 388, 112 S.E. 724. The witness here was not incompetent or disqualified, and his testimony was relevant and material. See Pippins v. State, 224 Ga. 462(2), 464, 162 S.E.2d 338; ...