Clarke v. State
Clarke v. State
Opinion of the Court
The verdict was supported by sufficient competent evidence. The record discloses no merit in the general grounds of the motion for new trial.
Ground 4 of the amended motion for new trial complains that, over timely objection of movant’s counsel, the trial judge admitted the following testimony of a State’s witness: “I had just walked in the office and was on the telephone at the time. Mr. Howell came in the door, my office door from outside and he told me . . . ‘There are some suspicious looking Negroes around here at the station,’ and I was listening to him, I put my hand on the phone. He said, ‘I am going around here to see about them.' ” The objection was that the testimony of the witness was hearsay and not admissible under any exception to the hearsay rule. Ordinarily the reason of the deceased for seeking the defendant or his purpose in going to the scene of the homicide expressed to another, but not communicated to the defendant, is hearsay and not admissible under Code § 38-302 to explain the conduct of the deceased. Woolfolk v. State, 81 Ga. 551 (8 SE 724); Tiget v. State, 110 Ga. 244 (34 SE 1023) ; McCray v. State, 134 Ga. 416 (7) (68 SE 62, 20 AC 101). But the testimony of the witness in the present case relating the conversation with the deceased, which occurred less than a minute before the homicide and within about 50 feet front the scene of the tragedy, was admissible as part of the res gestae, (Thomas v. State, 67 Ga. 460 (3)), and as explaining the conduct of the deceased. Warrick v. State, 125 Ga. 133 (1) (53 SE 1027); Smith v. State, 148 Ga. 467 (96 SE 1042); Thompson v. State, 166 Ga. 512 (143 SE 896); Shirley v. State, 168 Ga. 344 (1) (148 SE 91).
The ground is without merit.
The ground recites the evidence of the officer necessary to show the connection in which the quoted testimony was offered and admitted, but specifically confines the objection and assignment of error to the admission of the conversation the witness Shattles related he overheard. The objections to the evidence were:- (1) “I want to object to this discussion unless this defendant was present.” (2) “I want to object to this testimony unless this witness can identify who said it. It is highly prejudicial. I think the jury should be instructed to disregard such testimony. . . If it please the court, for example somebody might be talking about a bank robbery.” (3) “Before he goes any further I want to object to any statement made by any other defendant. It is not binding on this defendant.” (4) “Just for the record I would like to insist on the objection and all the testimony this witness testified to relating to a conversation that he cannot identify to any person including the man on trial be stricken from the record and so move it as being highly prejudicial to the defendant on trial.”
The trial judge overruled the objections stating: “I will admit it for the purpose stated. This is the only consideration the
Obviously the statement concerning the pistol could not be attributed to the defendant, for he was not identified as the person who made the same. But the State contends that applicable here is the rule: “Where a criminal enterprise between two co-conspirators is shown not to have terminated, declarations made by one of them during its pendency are admissible against the other.” Pressley v. State, 205 Ga. 197 (la) (53 SE2d 106).
The rule is, of course, sound, but is subject to the qualification that the declaration of a conspirator to be chargeable against a co-conspirator must be made concerning the subject matter tif the conspiracy and not in reference to some other matter, compact or enterprise to which the spokesman and his confederate are parties. “The rule that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one of the conspirators is- in legal contemplation the act of all, is subject to the qualification that each is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy.” Handley v. State, 115 Ga. 584 (41 SE 992).
The conversation recounted by the police officer constituted a declaration by one of the co-conspirators made concerning the subject matter of the conspiracy and during its pendency, and was sufficient to authorize the jury to find that such conversation related to an act done in pursuance or furtherance of the conspiracy. Hence, all evidentiary requirements were met and there was no error in the admission of such evidence. Handley v. State, 115 Ga. 584, supra; Pressley v. State, 205 Ga. 197, supra.
The sixth special ground of the amended motion for new trial complains of the admission, over timely objection of the defendant’s counsel, of a series of answers to questions propounded on cross examination of Tommy Davis by the State’s counsel in which the defendant’s witness testified that he was
Upon the testimony being introduced, defendant’s counsel interposed no formal objection. He merely remarked: “If it please the Court, 'the proper way to impeach this witness is to introduce copies of crimes involving moral turpitude.” Counsel for the State insist the language employed was not technically sufficient to present any ground of objection. They cite Pylant v. State, 191 Ga. 587 (1) (13 SE2d 380), in which it is held: “The statement by the defendant’s attorney in reference to testimony given by a witness for the State, “I don’t see the relevancy of that,’ did not amount to an objection; nor did the question, ‘Does my brother intend to go into character?’ referring to other testimony.”
The rule as to the technical sufficiency of an objection to evidence is found in Johns v. State, 178 Ga. 676 (2) (173 SE 917): “Language which sets forth enough to make the ground of an objection sufficiently specific to be understood will be considered by this court.” Just what the remark of counsel meant is not clear. Copies of crimes involving moral turpitude could be mere copies of statutes. The objection did not, as contended by movant’s counsel, include an invocation of the principle that the witness could not be impeached by merely proving he was charged or indicted for criminal offenses, for no reference is made to that principle. The remark was not understandable and was no valid objection.
The record further discloses that the defendant’s counsel on re-direct examination asked the same witness, “You are out on bond on these cases you were testifying about?” and received the answer, “Yes, sir.” Whether or not certain testimony is admissible, its admission is not error where substantially the same evidence is introduced without objection. Massey v. State, 220 Ga. 883 (142 SE2d 832), and cases therein cited.
Judgment affirmed.
Dissenting Opinion
dissenting. I dissent from the holding of division three of the foregoing opinion. As I construe the evidence there was none adduced upon the trial that connected the pistol mentioned in the conversation overheard and quoted
In my opinion, the admission of the quoted evidence was error and such error was hurtful to the defendant because, while the incident referred to in the conversation overheard by the officer was not shown to have been connected with the'offense charged in the indictment, the conversation overheard by the officer did have the effect of impressing upon the jury that the defendant was involved in some crime of potential violence.
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