Jenkins v. State

• Decision Date: 01 March 1946
• Docket Number: 31068.
• Citation: 37 S.E.2d 230,73 Ga.App. 515
• Parties: JENKINS v. STATE.
• Court: Georgia Court of Appeals

37 S.E.2d 230

73 Ga.App. 515

JENKINS v. STATE.

No. 31068.

Court of Appeals of Georgia, Division No. 1.

March 1, 1946

Syllabus by the Court.

The denial of a new trial was error.

Richard Jenkins, Ben O'Neal, Frank Dukes William H. Johnson and James Rufus Williams were jointly indicted for an assault with intent to murder one Ralph Bashlor, by shooting him with a shotgun. Jenkins was tried separately and was convicted of the offense charged, his motion for a new trial was overruled, and that judgment is assigned as error. The record shows that Jenkins and Bashlor are white men, and that the co-defendants are Negroes, and that James Rufus Williams was the person who shot Bashlor with a shotgun, and that Richard Jenkins was not present at the scene of the assault when Bashlor was shot.

Shelby Myrick and Ernest J. Haar, both of Savannah, and Donald Fraser, of Hinesville, for plaintiff in error.

R. L Dawson, Sol. Gen., of Ludowici, for defendant in error.

BROYLES Chief Judge (after stating the foregoing facts).

Special grounds 7, 8 and 9 of the motion for new trial assign as error the ruling of the court in allowing certain named witnesses to state, in the presence of the jury, the contents of a letter written by Ben O'Neal to his wife, which slightly tended to support the State's contention that Jenkins, O'Neal and the other alleged conspirators, had entered into a conspiracy to murder Bashlor. The evidence as to the contents of the letter was objected to on the ground that the letter was written after the alleged conspiracy to murder Bashlor was ended, O'Neal having written the letter after Bashlor had been shot, and after O'Neal had been put in jail, and that, even if such a conspiracy had been shown, the statements in the letter were made by one conspirator against another co-conspirator after the conspiracy had ended and, therefore, were not admissible against the defendant Jenkins.

It is well settled law that after the termination of a conspiracy, the declaration of one of the conspirators is not admissible against another of the conspirators; but as stated in Byrd v. State, 68 Ga. 661, the acts and declarations of one accomplice, done and made during the pendency of a common purpose to conceal a crime already perpetrated, are admissible against another accomplice. In Smith v. State, 47 Ga.App. 797, 803, 171 S.E. 578, 580, this court said: 'But it is also true that proof that a crime has been committed does not necessarily prove the end of the conspiracy so as to render acts and declarations of coconspirators after that time inadmissible against other coconspirators, for the conspiracy may be kept open for various purposes.' And such purposes may be 'for the securing of the proceeds of the crime, the division of the proceeds, the concealment of evidence tending to incriminate the conspirators, influencing witnesses with respect to their testimony, the fabrication of evidence tending to exculpate the conspirators, the fabrication of a defense, or in any way avoiding prosecution or punishment; and where this is the case, the acts and declarations of one conspirator are admissible against the others, where made while the conspiracy continued, although after the actual commission of the crime.' 16 C.J. 661; 22 C.J.S., Criminal Law, § 770. See, to the same effect, Thompson v. State, 58 Ga.App. 593(2), 598, 199 S.E. 568; Carter v. State, 106 Ga. 372, 32 S.E. 345, 71 Am.St.Rep. 262; Baker v. State, 17 Ga.App. 279, 86 S.E. 530.

The case of Brandon v. State, 169 Ga. 808, 151 S.E. 493, cited and relied on by the State, is distinguished by its particular facts from the instant case. The admission of the evidence was not error.

Several of the special grounds assign as error the admission of testimony by several of the co-conspirators tending to show that they had been hired by the defendant Jenkins to kill Bashlor; the objection being that the evidence was inadmission of such evidence before the exthe existence of the alleged conspiracy. It is well settled that in such a case it is within the discretion of the judge to allow the admission of such evidence before the existence of the conspiracy is disclosed, provided that such existence is afterwards shown during the trial; and it is not alleged in these grounds that this was not done.

Special grounds 11 and 12 complain of the court's ruling allowing a witness to state to the jury the contents of an alleged written confession signed by O'Neal and incriminating the defendant Jenkins. The grounds allege as follows: O'Neal had been put on the witness stand by the State, and had been instructed by the court that he need not answer any question that would incriminate him. ...