Nance v. State, 45845
| Citation | 123 Ga.App. 410,181 S.E.2d 295 |
| Decision Date | 11 February 1971 |
| Docket Number | No. 3,No. 45845,45845,3 |
| Court | United States Court of Appeals (Georgia) |
| Parties | Hoyt NANCE v. The STATE |
Barnes & Little, James M. Barnes, Dalton, for appellant.
Robert B. Adams, Dist. Atty., Dalton, for appellee.
Syllabus Opinion by the Court
A defendant convicted of larceny appeals from the denial of his plea of autrefois convict and from the denial of his motion for new trial.
Defendant was indicted in the United States District Court for conspiring to, and transporting stolen property across State lines. He entered a plea of guilty and was given a sentence which was suspended on probation and payment of a fine. He was subsequently indicted in Georgia for larceny (based on the same transaction as that for which he was indicted in the Federal court), was tried, convicted and sentenced to the penitentiary. Before his trial in the State court, he entered a plea of autrefois convict which was overruled. After sentencing, he filed a motion for a new trial which the court denied.
1. Defendant contends tht the double jeopardy provisions of both the Federal and Georgia Constitutions protect him, after conviction in a Federal court, from a second trial in a State court based upon the same transaction. There is no constitutional bar to a second prosecution when the transaction constitutes a crime under the laws of both the United States and the State of Georgia. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684; Cooley v. State, 152 Ga. 469, 110 S.E. 449; Scheinfain v. Aldredge, 191 Ga. 479, 12 S.E.2d 868.
2. As special grounds for his motion for a new trial, defendant contends the court improperly admitted hearsay evidence in two sparate instances. The court did not err since this evidence was in the form of declarations made by co-conspirators, and admitted only after evidence proving a prima facie case of conspiracy had been introduced. Code § 38-306; Evans v. State, 222 Ga. 392(15), 150 S.E.2d 240, cert. denied 385 U.S. 953, 87 S.Ct. 336, 17 L.Ed.2d 231.
3. In another contended admission of hearsay, the evidence was proffered in explanation of the conduct of the witness, conduct which defendant's attorney was at that very point calling into question. The court properly allowed the testimony as explanation of conduct only, and cautioned the witness concerning the form the testimony should take. Estes v. State, 224 Ga. 687, 164 S.E.2d 108.
4. Defendant contends the court denied him the right to give a witness a thorough and sifting cross-examination when the court refused to let his lawyer paraphrase this witness's testimony at a previous trial and required him to read the testimony in question from the transcript ...
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