Harris v. State
Decision Date | 06 February 1959 |
Docket Number | No. 20313,20313 |
Citation | 214 Ga. 739,107 S.E.2d 801 |
Parties | Donald M. HARRIS v. STATE. |
Court | Georgia Supreme Court |
Syllabus by the Court
1. A correct charge on conspiracy is not rendered erroneous because, after instructing as to what the evidence must show to prove conspiracy, it stated that if the jury found that the evidence showed these essentials as relates to the accused, then and in that event the defendant and such other parties would be guilty of a conspiracy. The criticism is directed at the use of the word 'guilty,' and it is without merit.
2. The State's witness made a prima facie case for the introduction of an alleged incriminatory statement by the accused, and the statement was put in evidence. On cross-examination of the witness, he gave testimony showing that the statement was not voluntarily made as required by Code, § 38-411, whereupon it was ruled out and the jury forcefully instructed to disregard it. It was not error to deny the motion for a mistrial based upon the fact that the jury had heard and could not disregard the evidence.
3. The general grounds of the motion for a new trial are expressly waived, and no ruling is made thereon.
This case involves the crime of robbery by the use of an offensive weapon. After a trial, in which the defendant was found guilty, he filed his motion for new trial, adding two special grounds complaining of (1) a charge on conspiracy and (2) the refusal of the court to grant a motion for mistrial after the court had ruled out in its entirety certain testimony containing an alleged incriminatory statement of the accused, made to police officers. After a hearing, the motion was denied, and the exception is to that judgment. In the brief of counsel for the plaintiff in error, the general grounds were expressly waived, hence the opinion deals only with the special grounds.
Carpenter, Karp & Mathews, A. Tate Conyers, Robt. Carpenter, Atlanta, for plaintiff in error.
Paul Webb, Sol. Gen., Frank French, Asst. Solr. Gen., Atlanta, Eugene L. Tiller, Eugene Cook, Attys. Gen., Rubye G. Jackson, Deputy Asst. Atty. Gen., for defendant in error.
1. The first amended ground complains of an excerpt from the charge on conspiracy, wherein the court stated that, if the jury found certain facts, then the defendant would be guilty of a conspiracy. It is not contended that the charge incorrectly charged upon what constitutes conspiracy, but the solitary complaint is to the words 'guilty of a conspiracy.' The criticism is predicated upon the fact that a conspiracy is not a crime in this State. The fallacy of the argument lies in the fact that it is not necessary for a conspiracy to be a crime in order for one to be guilty of a conspiracy. One may be guilty of doing innumerable things none of which is a crime. For illustrations, one might be guilty of repeating a rumor, or offending a neighbor, or scolding a child. The charge on conspiracy is full, complete, sound and reflects a keen understanding of the subject on the part of the trial judge. The cases of Bishop v. State, 118 Ga. 799, 45 S.E. 614, and Annis v. State, 85 Ga.App. 188, 68 S.E.2d 473, cited by the movant in support of this ground correctly hold that there is no such crime as conspiracy but they have no relevancy here and constitute no support for the complaint in this ground. The charge is sound and this ground is without merit.
2. The other amended ground is urged with great earnestness, and counsel have cited much law in an effort to have this ground sustained. Indeed we have found it exceedingly difficult to reach a judgment on this ground. Briefly stated, it excepts to the ruling denying a timely motion for a mistrial based upon the ground that, having testified that an incriminatory statement by the accused was made without hope of reward or fear or threats--thus making it prima facie admissible--a policeman witness then related the alleged statement, but under cross-examination he admitted that, although he told the accused he could not help him, he did tell him he would tell the judge that he had co-operated with the officers and it would be up to the judge what would be done for the accused. This evidence was ruled out in its entirety. Then in the regular charge the judge again referred to it as follows: Counsel for the movant cite Hall v. State, 65 Ga. 36; McDonald v. State, 72 Ga. 55; a special concurrence in Campbell v. State, 155 Ga. 127, 130, 116 S.E. 807; Fitzgerald v. State, 184 Ga. 19, 190 S.E. 602; Glenn v. State, 205 Ga. 32, 52 S.E.2d 319; Thompson v. State, 12 Ga.App. 201, 76 S.E. 1072; Jenkins v. State, 73 Ga.App. 515, 37 S.E.2d 230; Felton v. State, 93 Ga.App. 48, 90 S.E.2d 607; Ralls v. State, 87 Ga.App. 655, 75 S.E.2d 26;...
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