1. The general grounds of the motion for new trial are without merit.
2. The testimony of a witness relating a conversation with the deceased, which occurred less than a minute before the homicide and within 50 feet from the scene of the tragedy, was admissible as part of the res gestae and as explaining the conduct of the deceased.
3. The conversation regarding a gun, overheard by a police officer and related by the officer in his testimony, 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.
4. A remark by counsel for the defendant that "the proper way to impeach this witness is to introduce copies of crimes involving moral turpitude" does not constitute a technically sufficient objection to evidence sought to be elicited on cross examination of the defendant's witness. However, even if the statement be favorably construed as a valid objection it is not meritorious for two reasons: (1) the objection was made to the whole of the evidence, certain portions of which were, without question, admissible; (2) substantially the same evidence was introduced by the defendant's counsel on re-direct examination of the same witness.
Johnny Lee Clarke was indicted by the grand jury of Fulton County for a homicide committed during the robbery of a service station in the City of Atlanta. Glen M. Howell, the owner of the station, was the victim. On the trial of the case the following evidence was adduced.
On the morning of the homicide, August 18, 1964, the defendant Clarke and Tommy Laverne Davis, who shared the same apartment with him, were joined by George Charles Jones and Robert Moore. The four then proceeded to go out riding, pursuing a wandering course around Atlanta and environs. According to the testimony of Davis and the defendant's statement, they were unemployed and looking for construction work. They ultimately returned to the apartment before noon and remained there a short time. Then Jones, Moore and Clark went out again in an automobile, leaving Davis behind.
According to the attendant at the service station where the crime occurred, at around 2:15 pm. on August 18, 1964, Jones came into the station and ordered six packs of cigarettes. When the attendant turned to get the items, Jones stuck a gun in his back and told him to get on the floor. The attendant was forced to kneel or crouch on the floor of the station. At this time, Clarke came in the door and said: "Let him have it and tie him and put him in the bathroom." Jones took some money belonging to the service station out of the attendant's pocket. Clarke then stated, "Here he is," and ran out of the building. Jones also started to leave, but going out the door he encountered the victim entering the station and there shot him. Despite some question made as to his vantage point and the resultant view he had of the perpetrators of the crime, the attendant positively identified both Jones and the defendant Clarke, and related that a few days after the crime he picked them both out of a police lineup. On cross examination the attendant admitted he was "not looking at the people from where the voices came."
After the culprits left, the attendant ran next door and told William Corey that Mr. Howell had been shot. In this connection, Corey testified (over objection) that just prior to the fatal shooting Mr. Howell was at his office in a building which was approximately 50 feet from the service station (30 feet from one building to the other) and stated to him: "There are some suspicious looking Negroes around here at the station. I am going around to see about them." Howell departed for the station and "not even a minute" later Corey heard shots.
Two women testified that around 2:30 to 3 that afternoon the defendant Clarke came by their house which was "three and one-half good blocks" from the service station. Clarke asked for a glass of water which was given to him, asked to borrow a dollar which was refused and then used the telephone to call a taxicab. One of the witnesses related that Clarke was nervous and his trousers were torn. Clarke rode a taxi back to his aunt's house where, according to his statement, he lay in bed until he heard news of the murder. He then called Moore, they met and drove out to the "scene of the crime" and then returned to the vicinity of the apartment.
At around 3 the same afternoon Jones returned to the apartment where Davis had stayed. He had a gun wrapped in a rag which he left there, and told Davis there had been a robbery and "they had to shoot a man." Jones denied he had killed a man and remained with Davis until they heard the news of the killing, when he left. Just before dark Moore and Clarke came to the apartment where they discussed the events that transpired that day.
Some time after the crime, Clarke carried some "snagged" trousers to his aunt's house and, using her scissors, cut them off. The police found a remnant of cloth on a fence about a block from the filling station. It was compared with the cut-off trousers which were found in the apartment occupied by the defendant. Upon comparison the remnant was identified as being of the same color, type and color series as the threads and material in the cut-off trousers.
A doctor testified the cause of the victim's death was a gunshot or bullet wound. A .38 caliber Smith & Wesson was identified by a ballistic test to be the murder weapon. Concerning this, Davis testified that after Jones gave him the pistol wrapped in a "dirty rag" he subsequently gave the weapon to another named individual who pawned it. A police officer who arrested Clarke testified, over objection, that he overheard a conversation "about a gun" in the apartment where only Clarke and Moore were present. He related that someone said when the police first came by, "I had a gun and went in the alley and got rid of it." The officer could not say who made the statement. No showing was made as to where the murder weapon was found.
In his unsworn statement the defendant denied any prior knowledge that Jones planned to rob the service station. He explained that he thought Jones was going into the station to purchase some cigarettes and the first he knew of it was when Moore told him Jones had a gun on the attendant. The defendant recited he then went to the door to attempt to dissuade Jones from committing the robbery but was unable to accomplish this and when he saw someone approaching he fled. Davis testified that Jones told him: "They [Clarke and Moore] didn't know Jones was going to do this." He further related that Clarke told him: "the man . . . tricked us . . . We didn't know he was going to rob that man."
The jury found the defendant guilty of murder without a recommendation of mercy. The defendant filed a motion for new trial on the general grounds and later added three special grounds by way of amendment. The trial judge overruled the motion for new trial, as amended, the defendant excepted and the case is here for review.
1. The verdict was supported by sufficient competent evidence. The record discloses no merit in the general grounds of the motion for new trial.
2. 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 from 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).
3. Special ground 5 of the amended motion for new trial complains that the trial judge erroneously admitted over the timely objection of the defendant, now movant, the testimony of a State's witness, Detective J. L. Shattles, to wit: "Well, when we were going up the rear steps [to the defendant's apartment] we heard a discussion going on . . . We overheard them talking about a gun. He said when the police first came by I had the gun and I went up in the alley. The next time I seen the police I had already gotten rid of the gun." The witness admitted that he did not know whether the defendant himself made the statement, but stated that the defendant and Robert Moore were the only two in the apartment. In answer to a further question as to what statement he overheard, the witness testified: "Yes, sir, there was someone in the apartment talking about a gun and said when they first saw the police coming up the street, I had the gun and went in the alley and got rid of it. I came back and that is when I saw the detectives coming. That is all we overheard at that time."
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 jury will give to the statement." Previously the trial judge ruled: "I will admit the testimony of the witness with reference to the statement that he overheard, as a statement which he heard but not identifying it to either one of the parties in the room."
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 (1a) (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 of 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 nets 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.
4. 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 held as a material witness, was not charged with any larcenies, "just burglary and forgery"; that he had been interrogated by many police officers and they had written statements on crimes he committed, that "I said something about the crimes I committed"; that the police officers went into detail and discussed "these crimes" with him; that while riding on the morning of the homicide there was no discussion of any crime of violence or stealing; that he had nothing at his house from any burglary; that he refused to state, on the ground it would incriminate him, whether he participated in "these burglaries"; that two of his buddies were involved in "these crimes"; that the defendant and Jones were friends of his; that the apartment was not to operate a burglary or robbery business to keep things stored; that he was not worried about charges against him, he was out on bond on the cases referred to; that he was then in jail.
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."
However, had the remark of counsel been technically sufficient to have constituted an objection to the evidence, the ground would have been without merit for another reason. Included in the evidence objected to was certain evidence which, without question, was admissible. The established rule is that, where an objection goes to the whole of the evidence, if any part of it is admissible, the objection is properly overruled. Gully v. State, 116 Ga. 527, 533 (42 SE 790). The admissible evidence consists of answers to questions concerning the associates, conduct and conversations of the witness, the defendant and his co-conspirator on the morning preceding the robbery and murder, the fact that the witness and these parties separated only about 2 hours before the crimes were committed, and the testimony of the witness that he was a friend of the defendant and Jones, who actually killed Mr. Howell. In 58 Am. Jur. 386, Witness, 715, is the text: "It is competent, on cross-examination of a witness, to elicit facts which tend to show the bias, prejudice, or friendship of the witness for the party for whom he testifies, and to show hostility toward the party against whom he is called. This is entirely distinct from impeachment, which is governed by its own rules of evidence." The evidence as to the friendship of the witness and the defendant was of similar import to that held admissible in Rewis v. State, 109 Ga. App. 83, 85 (134 SE2d 875).
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.
QUILLIAN, Justice, 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 by Detective Shattles with the robbery of the filling station or the murder of Mr. Howell. It is significant that the State could have produced evidence to identify the pistol referred to in the reported conversation as the murder weapon, or disclosed frankly that it was not the same. This is true because the State recovered the murder weapon and introduced it into evidence, but withheld the evidence as to the source or place from which the weapon was procured.
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.