Fallings v. State

• Decision Date: 24 September 1974
• Docket Number: No. 28753,28753
• Citation: 209 S.E.2d 151,232 Ga. 798
• Parties: John Frank FALLINGS v. The STATE.
• Court: Georgia Supreme Court

Page 151

209 S.E.2d 151

232 Ga. 798

John Frank FALLINGS v.The STATE.

No. 28753.

Supreme Court of Georgia.

Sept. 24, 1974.

Silver, Zevin & Sewell, Murray M. Silver, Paul J. Sewell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., H. Allen Moye, Raoul Lerow, Melvin England, Asst. Dist. Attys., Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Richard L. Chambers, William F. Bartee, Jr., Asst. Attys.Gen., Thomas P. Burke, Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

JORDAN, Justice.

John Fallings, appellant herein, was indicted along with three other men by a Fulton County Grand Jury on May 22, 1973.The four were charged, in two separate indictments, with the crimes of armed robbery and murder resulting from the robbery of an A & P supermarket on February 9, 1973.The appellant, after being tried separately by a jury in the Fulton Superior Court, was acquitted of murder, convicted of armed robbery and sentenced to life imprisonment.From this conviction appellant appeals.

Two of appellant's co-indictees plead guilty and testified against the appellant at his trial.One of the men that plead guilty testified as to a conversation that took place out of the presence of the appellant between himself and another of the co-indictees, and appellant claims that it was error for this conversation to be admitted in that there appeared nowhere in the record aliunde proof sufficient to establish prima facie the fact of a conspiracy between the parties, other than the declarations and acts of his alleged co-conspirators both in and out of his presence.

The appellant also complains that 'The trial court erred in failing to charge the jury on the law of the withdrawal of a co-conspirator from the conspiracy, after timely objection.'Held:

1.Code§ 38-306, provides as follows: 'Declarations by conspirators-After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.'

Without reference to the testimony given by the two alleged co-conspirators we find present in the record evidence that appellant had been with the others while the robbery was being planned and discussed, that appellant had procured a pistol on the day of the incident and that he was present in the vehicle utilized for the crime before the act.Although some of the above described evidence came in subsequent to the complained of testimony, we have held that 'while it may generally be the better practice to require a prima facie case of conspiracy first to be made, before admitting evidence of the acts and declarations of one of the alleged conspirators, there is no inflexible rule to that effect.The trial court has some discretion as to the order in which testimony may be introduced; and, if a prima facie case...