Phillips v. State, 16888

• Decision Date: 10 January 1950
• Docket Number: No. 16888,16888
• Citation: 206 Ga. 418,57 S.E.2d 555
• Parties: PHILLIPS v. STATE.
• Court: Georgia Supreme Court

Page 555

57 S.E.2d 555

206 Ga. 418

PHILLIPS v. STATE.

No. 16888.

Supreme Court of Georgia.

Jan. 10, 1950.

Rehearing Denied Feb. 17, 1950.

R. I. Stephens, Dublin, John B. Spivey, Swainsboro, for plaintiff in error.

W. W. Larsen, Sol. Gen., Dublin, L. F. Watson, Dublin, E. L. Rowland, Wrightsville, Eugene Cook, Atty. Gen., J. R. Parham, Asst. Atty. Gen., for defendant in error.

Syllabus Opinion by the Court

HAWKINS, Justice.

Drew S. Phillips and Harry T. McClung were jointly indicted for the offense of murder in the alleged shooting and killing of L. M. Barron, in Laurens County, Georgia. On separate trial Drew S. Phillips was convicted of the offense charged, with a recommendation of mercy. His motion for a new trial, containing the general grounds and five special grounds, was overruled, and he excepted. Held:

1. Had the State sought to hold the defendant responsible for the homicide only upon the theory of conspiracy by aiding and abetting the other defendant as the actual perpetrator, it would have been incumbent upon the court to charge the jury the law applicable to a conspiracy, as insisted in the first ground of the amended motion for a new trial. Coleman v. State, 141 Ga. 731, 82 S.E. 228; Fudge v. State, 148 Ga. 149, 95 S.E. 980; Patterson v. State, 199 Ga. 773, 775, 35 S.E.2d 504. Since, however, the evidence adduced upon the trial and the statement of the defendant disclosed that he, and not the other defendant named in the indictment, actually shot the person alleged to have been killed, the defendant in his statement seeking to justify the killing upon the grounds of self-defense, it thus appears that, if guilty at all, the defendant is guilty as the actual perpetrator of the crime, and it was not incumbent upon the court to charge the law of conspiracy. 23 C.J.S., Criminal Law, § 1287, page 859; Harris v. State, 52 Ga.App. 300(1), 183 S.E. 107.

2. The second ground of the amended motion complains of the failure of the court to instruct the jury as to the law of confessions. In the absence of a timely written request, it is not error for the trial court to fail to charge the jury upon the subject of confessions or incriminatory admissions. Miles v. State, 182 Ga. 75(2), 185 S.E. 286; Walker v. State, 118 Ga. 34(3), 44 S.E. 850; Cantrell v. State, 141 Ga. 98(2), 80 S.E. 649.

3. The third and fourth grounds of the amended motion complain of the admission of certain testimony by two named police officers of the State of Florida as to facts and circumstances surrounding the arrest of the defendants, and the information they had with reference to the robbery of the defendants of a taxicab driver in Florida and the taking of his taxicab in which the defendants were riding at the time of their arrest. Part of the evidence objected to in ground four was excluded by the court. Other questions propounded, to which objections were made, were never answered by the witnesses. The testimony actually admitted was with reference to the information these officers had relative to the robbery of the taxicab driver, in explanation of their reason for being on the lookout for the taxicab and their arrest of the defendants when found in possession thereof, and with reference to a statement made by the joint defendant McClung, which will be dealt with in the following headnote. The testimony of these officers was properly admitted, over the objection that it was hearsay, to explain the conduct and motives of the officers in being on the lookout for the taxicab and of the arrest by them of the defendants when found in possession of the taxicab. Code, § 38-302 provides: 'When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence.' See also Daniel v. State, 66 Ga.App. 59, 17 S.E.2d 91; Brandt v. State, 71 Ga.App. 221, 222(8), 30 S.E.2d 652; Garrett v. State, 157 Ga. 817, 122 S.E. 211; Bryant v. State, 191 Ga. 686, 689(14), 13 S.E.2d 820; Coleman v. State, 127 Ga. 282, 56 S.E. 417.

4. The fifth ground of the amended motion complains of the admission in evidence, in the trial of Drew S. Phillips, of the written statement made by the joint defendant Harry T. McClung, wherein certain incriminatory admissions were made by McClung concerning the shooting of the person named in the indictment, and the robbery of the taxicab driver in Florida, and implicating the defendant on trial in the commission of both offenses. To the admission of this written statement counsel for the defendant objected on the grounds: (1) because McClung is present in court himself; (2) because the defendant is charged with committing the crime for which he is now on trial, on October 30, and the date of the confession is November 19, which shows that it was made after the enterprise was ended, after the crime had been committed, and made by a joint defendant that is not on trial, and is only binding against him and not the defendant on trial; (3) because the evidence discloses that it was not made freely and voluntarily, as required by law; and (4) because it puts the character of the defendant in issue, which cannot be done unless he places it there himself, in that the confession sets out other crimes that are alleged to have been committed by McClung and the defendant, and the same is prejudicial and hearsay. C. W. Potterton, Captain of Detectives of the Miami Police Department, testified: 'I read this statement that McClung had made; I read it to him in the presence too of Phillips and everybody else in the office, and asked McClung if that was the true story. He said it was. * * * I asked Phillips at that time--I...