Porterfield v. State, 51626
| Decision Date | 30 January 1976 |
| Docket Number | No. 1,No. 51626,51626,1 |
| Citation | 137 Ga.App. 449,224 S.E.2d 94 |
| Court | Georgia Court of Appeals |
| Parties | B. R. PORTERFIELD v. The STATE |
Robert D. Peckham, W. Donald Morgan, Jr., law student, J. H. Affleck, Jr., Athens, for appellant.
Harry N. Gordon, Dist. Atty., F. B. Tyler, Jr., Asst. Dist. Atty., Athens, for appellee.
The appellant and Douglas Woodall were jointly indicted for violating the Georgia Controlled Substances Act. At a separate trial, this appellant was convicted. Held:
1. At trial the out-of-court statements made by the co-indictee Woodall were admitted over the objection that the statements were hearsay; and that the statements made by a co-conspirator during the pendency of the conspiracy are inadmissible where, as here, the defendant was not also indicted for the crime of conspiracy under Code § 26-3201. Code § 38-306 provides: '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.' This statutory provision, a rule of evidence, does not include any condition precedent of indictment of a co-conspirator before the provision becomes applicable. The state's evidence established a conspiracy between defendant and his co-indictee and the statements of the co-conspirator were made during the pendency of their criminal endeavor. This evidence was properly admitted.
2. On appeal and for the first time defendant further contends that the co-indictee's statements were inadmissible because the state failed to make a showing that the declarant was unavailable to testify in violation of defendant's confrontation rights under the Sixth and Fourteenth Amendments of the Constitution of the United States. A ground of objection to the admissibility of evidence asserted for the first time on appeal presents nothing for consideration of the appellate courts. Starr v. State, 229 Ga. 181, 190 S.E.2d 58.
3. It is contended that the court erred in failing to charge that the state must prove a conspiracy beyond a reasonable doubt before the evidence of the co-conspirator's declarations could be considered by the jury as evidence of defendant's guilt. There was no error. The jury must weigh all the evidence, including the declarations, in determining whether a conspiracy has been shown; and if they find that none has been established, it is then their duty not to consider the co-conspirator's declarations. Coleman v. State, 141 Ga. 731(2), 82 S.E. 228.
4. The court charged the jury: ...
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Baugher v. State
...were inadmissible hearsay. The fact that Kellums was not indicted is not dispositive of this issue. See Porterfield v. State, 137 Ga.App. 449(1), 224 S.E.2d 94 (1976). During the hearing outside of the presence of the jury, the State proved that Kellums was with the brothers before and afte......
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Britt v. State
...of the conspiracy were also admissible. OCGA § 24-3-5; Harris v. State, 255 Ga. 500, 501, 340 S.E.2d 4 (1986); Porterfield v. State, 137 Ga.App. 449, 224 S.E.2d 94 (1976) (where sufficient evidence of conspiracy shown, OCGA § 24-3-5 applies even though defendant not indicted for conspiracy)......
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Karlsberg v. Hoover, 53726
...an appellate court. Pulliam v. State, 236 Ga. 460, 465, 224 S.E.2d 8 (1976); Curran v. Fleming, 76 Ga. 98 (1885); Porterfield v. State, 137 Ga.App. 449(2), 224 S.E.2d 94 (1976). Furthermore, this court has held that an appellant is required in its initial brief to file an argument which sup......
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Hall v. State
...error on direct appeal. Hart v. State, 227 Ga. 171, 179 S.E.2d 346; Pulliam v. State, 236 Ga. 460, 224 S.E.2d 8; Porterfield v. State, 137 Ga.App. 449(2), 224 S.E.2d 94. 3. Hall complains he was prejudiced by standing trial in prison garb. The facts reflect that the attire was explained to ......