Rawlings v. State , 163 Ga. 406 ( 1926 )

Russell, C. J.

(After stating the foregoing facts.)

Upon being furnished with a fist of the panel of jurors as provided by section 997 of the Penal Code of 1910, C. G. Rawlings challenged the array. The trial judge overruled’ the challenge, and exception is taken to this judgment. Summarizing the facts upon •which the challenge was based, it appears that a jury was regularly drawn at the preceding September term, for the March term, 1925, of Johnson superior court and at the latter term was regularly empaneled in accordance with the provisions of section 857 of the Penal Code. The traverse jurors were discharged on Saturday, March 28, 1925, and the trial judge drew 57 jurors to appear and serve on March 30, 1925, to which date the court took a recess. The defendant’s case was assigned for trial on March 30, 1925. When the court reconvened in accordance with the order taking the recess, and upon the filing of a bill of exceptions to the judgment overruling a motion made by the defendant for a change of venue, the court discharged the 57 tales jurors who had been drawn for the purpose of being used in the trial of the defendant, and took a recess until the third Monday in June, and then recessed until the third Monday in August, 1925. The court not 'having finally adjourned, on Thursday, August 14, 1925, the judge drew a new panel of 100 “traverse tales jurors,” whom he ordered to be summoned to attend court on Monday, August 17, 1925, and from this 100 jurors the panel put upon the defendant was taken, to the exclusion of all the jurors regularly, drawn for the term and ‘all the tales jurors drawn on March 28, 1925. The complaint of the plaintiff in error is that the presiding judge had no right in law to arbitrarily exclude the regularly drawn traverse jurors, and arbitrarily excuse the first panel of tales jurors drawn by him on March 28, 1925, and arbitrarily substitute the tales jurors drawn by him on August 14, 1925. Johnson superior court convenes twice a year, on the third Mondays in March and September. The length of the term is not fixed by law. Acts 1911, p. 61; Acts 1913, p. 65. It is admitted in the brief and argument that the whole of the second week of the March term, 1925, of Johnson superior court, ending on Saturday, March 28, was consumed in the trial of another case. From the acts fixing the terms of Johnson superior court above referred to, it must be presumed that the regular panel of jurors for that term had already served two full weeks. So we can not say that the discharge for the term of all of the jurors regularly drawn for service at that term was arbitrary, as insisted by the plaintiff in error.

However, regardless of this, when the court reassembled after a temporary recess, and before the qualification of the jury became important or was in order, the defendant moved a change of venue, and upon the overruling of his motion filed a bill of exceptions, which operated to continue the defendant’s trial until an adjudication upon the bill of exceptions. As the court could not foresee the exact length of time which would elapse before a determination of the issue raised in the bill of exceptions, it was entirely proper for the court to discharge the 57 talesmen who had been summoned in anticipation of a trial on March 30, which was indefinitely postponed. The court then ordered an adjournment until June, and then, doubtless because the trial upon review had not been completed, again adjourned until August 17, 1925, and thus was constituted an adjourned term of the court to begin on August 17, 1925, in which the presence of jurors might be necessary; and accordingly, on August 14, the judge drew a jury of 100 who were summoned to appear for duty at this adjourned term of court set for August 17, 1925. Did the court have the power to thus constitute a jury for the trial of the defendant? We think that the ruling of this court in Woolfolk v. State, 85 Ga. 69 (11 S. E. 814), conclusively answers this question, and is controlling. In that ease this court construed section 3942 of the Code of 1882, and-applied it to a state of facts identical with those presented by the challenge to the array in this case in respect to the fact that the court which was about to try one accused of crime found itself without a jury with which to proceed in the trial. Section 3942 still is of full force, it being section 875 of the Penal Code of 1910. In Woolfolk’s case the situation was brought about by the court’s discharge of the regular panel of jurors after a mistrial. In the present case it was brought about by the fact that the court was obliged to suspend or adjourn, because of the filing of the bill of exceptions to the judgment overruling the motion to change the venue. But in Woolfolk’s case, as in the case at bar, none of the original panel of regular traverse jurors were embraced in the jury put upon the defendant and to which the defendant objected by challenging the array. So it will be readily seen that the precise question now before us was adjudicated in Woolfolk's case.

In passing upon this question this court said: “The power of the judge, under the circumstances above stated, to draw a jury and have the jurors summoned and put upon the defendant, is the only question made by the defendant upon this branch of the case. If the judge had the power to draw this jury, he was right in overruling the challenges; if he did not have the power, he should have sustained them. The several sections of the code which regulate the drawing'of juries provide for the drawing of a jury in almost every conceivable case where one is needed; and the general tenor of the code is to give power and authority to the judge of the superior court to draw and summon juries whenever the business of the court requires it. We think that, under section 3942 of the code, the trial judge, under the peculiar facts of this case, had power and authority to draw the jury as he did. That section is as follows: ‘ Whenever the session of any court of record in this State shall be prolonged beyond the week or period for which juries were drawn at the close of the preceding term, as by law provided, or the judge anticipates that the same is about to be so prolonged, or from any other cause such court has convened or is about to convene, and there have been no juries drawn for the same, it shall and may be lawful for such judge to draw juries, so many as may be necessary for such court, and cause them to be summoned accordingly, in the manner prescribed for drawing juries at the close 'of the regular terms of such courts respectively.’ Here was a court which had met for the express purpose of trying the defendant. The juries were properly organized at the commencement of tbe court. For some reason, which the judge doubtless deemed sufficient, these jurors had been discharged and a mistrial had been declared. The above section provides that if the session of the court shall be prolonged beyond the week ‘or period for which juries were drawn, or the judge anticipates that the same is about to be so prolongedit shall be lawful for him to draw juries and cause them to be summoned. . . After the mistrial, a new period for the sitting of the court was entered upon, to wit, the period of a second trial, which was not anticipated when the court convened. To have such second trial at that same term, it was necessary to prolong the court beyond the period for which the discharged jurors had been drawn, that period having terminated when the first trial resulted in a mistrial. It is not doubted or disputed that if the.judge had adjourned his court for a month or a week the day this mistrial was declared, he would have had the power and authority to draw a jury for the adjourned term thereof; if he had adjourned until the following Monday, no one would doubt that he had the authority, under this section, to draw a jury to meet him on that day. If he has the power and authority to open the box and draw a jury under such circumstances, would the giving of his order to the sheriff to summon them for the next morning make the jury illegal? It will be observed that this section of the code does not prescribe for what particular day, or how long in advance, the jury shall be summoned; and it does not appear that any objection was raised to the fact that the jury were summoned for the next day; the objection was that the judge had no power to draw the jury when he did. As the only objection made was want of power to draw the jury, we think there was no error in overruling the defendant’s challenge to the array. . .

“It may not be quite obvious that the drawing of this jury falls within the exact letter of the statute, but that the spirit and meaning of the statute extend to it is manifest. Most courts would still hold that even if it was error for the judge to draw and summon the jury as he did, it was not such an error as would work a reversal of the ease. In Rafe v. State, 20 Ga. 60, it was held by this court that ‘the statutes regulating the selection, drawing and summoning of jurors are intended to distribute the-jury duties among citizens of the county, provide for rotation in jury service, and to insure at each court the attendance of persons to serve on juries, and are no part of a regulation to secure to parties impartial juries.’ This decision has been approved and followed by many courts and text-writers. In 1 Thompson on Trials, § 34, p. 32, it is said: ‘Statutory provisions respecting the drawing of the panel are generally regarded as directory merely, so that irregularities therein, unless plainly operating to the prejudice of the challenging party, form no ground for challenging the array.’ See also authorities there cited. The same principle is announced in Thompson and Merriam on Juries, § 143. See also Colt v. Evans, 12 Conn. 242; Burlingame v. Burlingame, 18 Wisc. 299; State v. Knight, 61 Mo. 373; State v. Pitts, 58 Mo. 556; State v. Massey, 2 Hill (S. C.), 379. And see Friery v. People, 54 Barb. (N. Y.) 319, 336, where the reasoning in Rafe’s case, supra, is quoted and approved. It is not claimed that the defendant was injured or prejudiced in any way by putting this jury upon him. There is no complaint that the jury which tried him was not as fair and impartial as any jury which could have been obtained in the county. . . Why should this long, laborious and expensive trial be gone over again because the original panel sworn at the beginning of the week was not put upon the prisoner ? . . With courts generally, as we gather from the authorities, the great and controlling question is, did the accused have a fair trial by an impartial jury? If so, the law has been complied with, and he has no right to complain that his challenges were not sustained.” We are aware that there are some decisions of this court which indicate that challenges to the array should be sustained upon purely technical grounds, upon the theory that one charged with crime should have accorded to him every right provided by law in the strictest conformity with every regulation affecting form as well as substance; and the writer is in accord with this view as so eloquently expressed by Mr. Chief Justice Bleckley, notably in the case of Cochran v. State, 62 Ca. 731, 732. However, in the present instance, since this court, in Woolfolk’s case, applied the provisions of the Penal Code to a condition practically identical to the one before us, there can be neither difficulty nor doubt in holding that the trial judge did not err in overruling the challenge to the array.

As will be seen from the statement of facts, the fourth, fifth, sixth, seventh, and eighth grounds of the motion for new trial may properly be considered together. In essence, all of these assignments of error raise the question as to how far certain sayings or acts of the codefendant Tanner bind the plaintiff in error, so as to render statements of Tanner admissible as against the accused. We think the trial judge correctly admitted the evidence of which complaint is thus made. It is well settled, of course, that the sayings of a conspirator after' the criminal enterprise has ended are inadmissible as against any of the conspirators other than he who made the statement or admission. Penal Code, § 1035. The extent, however, within which such admissions are competent is largely controlled by the nature of the enterprise which is the object of the conspiracy, and what was the ultimate purpose of the conspiracy. The language of the code (§ 1035), “after the enterprise is ended,” necessarily makes admissible any statements made by any of the conspirators until the ultimate purpose of the conspiracy has been accomplished. Hence as a general rule it has been held that statements of one conspirator, subsequently to the actual homicide, are inadmissible against another conspirator absent at the time of the inculpatory statement. This holding was because the conspiracy included nothing more than the killing and the enterprise had ended. In any case, however, where a killing is only an incident in carrying out a purpose to accomplish some further object, it would seem to follow from the very wording of the code section that where the enterprise had not ended, because the real purpose of the conspiracy has not been achieved prior to the completion of the enterprise, statements made even after such a killing and until the purpose of the conspiracy has been fully accomplished would be admissible on the trial of any of those engaged in the conspiracy. In the present case the evidence for the State tended to show that the ultimate purpose of the conspiracy, if one existed, was to collect for the benefit of Rawlings the proceeds of certain insurance policies whose value would be greatly increased in case the death of Tarbutton, the insured, was caused by accident. If, as indicated by the evidencie for the State in this case, the motive for the killing was the collection of the large sum of money embraced within the policy doubled by the belief that death was caused by accident, and for that reason the homicide whs only an incident necessary to effect the success of the purpose for which the conspiracy was formed, any declarations made by any conspirator would be admissible against any of the conspirators until the collection of the insurance was accomplished; for this was the paramount purpose of the conspiracy itself. Yiewed in this light, we think that the evidence now under consideration was admissible under the general rule, because the enterprise did not end with the homicide. Even if the trial judge was not authorized by the evidence to find that the homicide was a mere incident in a conspiracy, the real purpose of which was to establish the fact that Tarbutton^s death was due to accident, for the purpose of collecting double insurance, by reason of which it was essential to prove that his death was accidental, the evidence now under consideration was admissible for the reason that there was evidence which would have authorized the jury to find that Tanner was a principal in the first degree, and that Rawlings, though also charged as a principal in the first degree, was only guilty as a principal in the second degree.

This court has several times held that where several defendants are all charged as principals in the first degree, one or more of them may nevertheless be convicted even though the evidence only authorized a conviction of the accused as principal in the second degree; and has further held that the guilt of the principal in the first degree must be shown, in order to authorize the conviction of one accused of murder as principal in the second degree. Under the latter rulings, inasmuch as the evidence showed that Rawlings made no assault whatever and had no gun, it devolved upon the State in the present case to establish the fact that Tanner as a principal in the first degree was guilty of the murder alleged. So that the evidence to the admission of which exception is taken was admissible in this case to prove the guilt of Tanner as an essential prerequisite to the conviction of Rawlings for his participation in the alleged murder, in that (although he did no act directly contributing to the death of Tarbutton) he was still present aiding and abetting in the commission of”the homicide. It has always been held by this court that upon the trial of an accessory before the fact the guilt of the actual perpetrator of the alleged crime must be shown. The guilt of the principal in the first degree in such cases may be established by the record of the trial and conviction or plea of guilty of this principal in the first degree, or it may be established by testimony introduced for the purpose of showing the guilt of the principal in the first degree either by direct or circumstantial evidence. However, since a verdict finding the principal in the first degree guilty would only be conclusive upon the named defendant himself and would not be conclusive upon an accessory before the fact, or principal in the second degree, it would devolve upon the State to satisfy the jury beyond a reasonable doubt that the actor, the real perpetrator of the crime, was really a principal in the first degree, before it could be shown that the accused then on trial could be a principal in the second degree. In the case at bar, as only two persons were indicted, the State could not establish the guilt of Rawlings as a principal in the second degree unless it satisfactorily appeared that there was a principal in the first degree, and that the principal in the first degree was Tanner, the person jointly indicted.

As to the admissibility of the evidence for the reason first stated, chis court ruled, in Byrd v. State, 68 Ga. 661: “The acts and conduct of one accomplice during the pendency of the wrongful act, not only in its perpetration, but also in its subsequent concealment, are admissible against the other. So also are his sayings pending the common criminal enterprise.” In that case Byrd and Betts were charged with larceny from the house. The evidence in the record showed that Byrd and Betts were together at the place and time when the larceny was alleged to have been committed; that they were in the store and near the place where the meat alleged to have been stolen was located; that Betts was seen to leave the store with a sack and something in it, and place it in a wagon in which both he and the accused returned home after night; that this occurred on Saturday evening, and on Monday morning, when officers with a search warrant were approaching the house of the defendants, Betts was seen to leave and go around his house with something under his arm wrapped in a cloth. As to this, Mr. Justice Speer said: “Prima facie under this proof, and during the pendency of the wrongful act, not only in the perpetration but in the effort at concealment, the act and conduct of one accomplice is admissible against the other, as are also his sayings pending the common criminal enterprise. They go to establish his guilt; and if the other is shown to have aided and abetted the offence, they are evidence of his guilt, for the act of one is the act of both when the common criminal intent is established.” In Carter v. State, 106 Ga. 372 (32 S. E. 345, 71 Am. St. R. 262), where several defendants were jointly indicted as principals for the offense of arson, the court, over the- objection of the accused, admitted evidence of certain acts on the part of D. H. Moody (a codefendant of Carter) and declarations accompanying the same. These acts were done and these declarations were made some time after the arson had been committed. A letter written by Moody to one Herrington, written at a still later .period, was also admitted. However, inasmuch as there was evidence tending to show that there was a conspiracy to steal goods from the warehouse and burn the building, and also evidence tending to establish the contention of the State that Carter was concerned not only in the theft and arson, but also in a common intent to effectuate a concealment of these crimes, this court, following the ruling in the Byrd case, supra, held the evidence objected to to be admissible. In ruling upon the point Mr. Presiding Justice Lumpkin said: “In other words, there was, outside of the evidence objected to, proof authorizing the conclusion that the alleged conspiracy embraced a 'criminal enterprise’ the scope of which included larceny, arson, and concealment. There was also some evidence warranting the inference that this enterprise was still pending on the occasions to which the evidence complained of as illegal related. It seems, therefore, under the decision of this court in Byrd v. State, 68 Ga. 661, that this evidence was admissible against Carter. In that case it was distinctly ruled that the acts and conduct of one accomplice during the pendency of the wrongful act, not alone in its actual perpetration, but also in its subsequent concealment, were admissible against another accomplice. This holding was doubtless based upon the idea that the criminal enterprise was still pending while the conspirators continued to be active in taking measures to prevent the discovery of the crime or the identity of those connected with its perpetration.”

In Rawlins v. State, 124 Ga. 31 (12) (52 S. E. 1), this court held: “When in the trial of a murder case there is evidence tending to show that the accused on trial entered into a conspiracy to slay the deceased and others, the acts, conduct, and sayings of any of the conspirators while the conspiracy was in progress, and before the crime was committed, are admissible as evidence, as well as an act of a conspirator other than the accused, after the commission of the crime, when the act sought to be proved was contemplated by the terms of the conspiracy to be performed after the perpetration of the crime was completed.” In that case Milton Eawlins was on trial, and the testimony was objected to on the ground “that anything J. G. Eawlins did or said in the absence of Milton Eawlins was inadmissible against the latter,” and yet the court permitted testimony “that on the morning after the killing J. G. Eawlins obtained a loan of $110 from a bank in Valdosta,” there being evidence that Moore, an accomplice in the crime, was to receive $100 for his participation in the crime, and that this $100 was to be paid to him on the morning after the crime was committed. The rulings in the three foregoing cases are cited and approved in the more recent case of Smith v. State, 148 Ga. 332, 338 (96 S. E. 632). See Wall v. State, 153 Ga. 309-317 (112 S. E. 142). Our conclusion is that the evidence complained of was properly admitted, regardless of the rule with reference to conspiracy to which we have just referred, based upon numerous tuIings of this court which require the guilt of a principal in the first degree to be established beyond a reasonable doubt, before a conviction of the principal in the second degree will be authorized. In days of stricter criminal pleading perhaps the rule could not have been so broadly stated; but now, when several persons are jointly indicted for murder, and any one of the accused may be convicted either of murder, either as principal in the first or second degree, or of any lesser offense of which one charged with the offense of murder may be convicted, it seems to be clearly established that one jointly indicted with another for murder as principal in the first degree may be convicted upon evidence showing his guilt as principal in the second degree, and that in such cases the rule always applicable to accessories before the fact becomes applicable, to wit, that the guilt of the principal in the first degree must be established. In the present case it may be said that the State had introduced the evidence of Noah Covington, who testified that he saw Tanner take deliberate aim and shoot down Tarbutton, the deceased. But this proof did not deprive the State of the right to prove the guilt of Tanner aliunde. There was evidence introduced for the purpose of impeaching the witness Covington. The jury might discredit Covington, and might prefer to believe the inference arising from the testimony to which objection was made.

In Kettles v. State, 145 Ga. 6 (88 S. E. 197), it was held: “Where two persons are jointly indicted for murder, each may be convicted upon evidence showing that he was either the absolute perpetrator of the crime or was present aiding and abetting the other in its commission. As principals in the first and second degrees in the crime of murder are punished alike, no distinction between them need be made in the indictment.” There was evidence in this case, that, while Rawlings was present, Tanner fired the shot which caused the death of the deceased. It devolved upon the State to satisfy the jury that in his presence Rawlings was aiding and abetting Tanner in the commission of the crime, for mere presence without participation in the crime does not authorize an inference of guilt. The evidence to which objections were made, with which we are now dealing, tended to raise an inference explanatory of Rawlings’ presence at the time that Tanner shot, and might authorize the jury to find that Rawlings participated in the act of Tanner, and the intent with which the shot was fired (in case the jury found that the shooting was not accidental). Such a finding on the part of the jury would have authorized the conviction of Rawlings as a principal. That the State must prove. the guilt of the principal in the first degree, in order to authorize the conviction of another jointly indicted of the offense of murder as principal in the second degree, was held in Jones v. State, 64 Ga. 697. In that case it was held that “The conviction of one charged with crime as principal in the-second degree is contrary to law where there is no evidence of the guilt of the principal in the first degree.” Under the ruling in Kettles v. State, supra, and similar cases, one may now be convicted of murder as principal in the second degree, without the nature of the degree of the defendant’s participation in the crime being alleged in the indictment; but this rule as to pleading does not affect the rule as to the sufficiency of the evidence which has just been quoted from the Jones case. As ruled by Mr. Chief Justice Warner in that case, the guilt of the principal in the first degree must appear either by the introduction in evidence of the record of his conviction or otherwise, or the conviction of one whom the State contends to be a principal in the second degree can not be sustained against the objection that the finding is contrary to law. Lewis v. State, 136 Ga. 355 (3) (71 S. E. 417); Jackson v. State, 54 Ga. 439-440.

the reasons given in the next preceding division it was not error to admit the testimony of Mell Brantley, as complained of in the ninth ground of the motion for a new trial, nor to submit to the jury the photograph identified by Brantley, of which complaint is made in the tenth ground. A different question might be presented had a different objection been offered, based upon one of the rulings relating to the introduction of evidence of experiments. The objection to Brantley’s testimony, as shown in the ninth ground, was “that the statements of said witness were hearsay evidence, based on hearsay evidence, being based upon statements made by Tanner at the inquest the day after the homicide, and not in the presence of the defendant Rawlings.” The objection urged to the introduction of the photograph was based upon hearsay evidence, etc., following the same language as just quoted.

We are of the opinion that the court erred in admitting in evidence the testimony of Heyman Joiner, to the effect that over thirty years before the trial the defendant Rawlings had stated to the witness that he had swapped places in Johnson County with the Tarbutton boys, who gave him $10,000 and paid every dollar of it in two years. The objection based upon the irrelevancy of this testimony should have been sustained. But inasmuch as, after a very painstaking study of every feature of this case, it does not appear to us that this evidence had a tendency to injure and damage the defendant or could have damaged him in any way, this error would not authorize a reversal of the judgment overruling the motion for a new trial.

The court did not err in overruling the objection to the admission of certain insurance policies of which complaint is made in the twelfth ground of the motion for a new trial. As appears from the statement of facts, these policies were delivered by Raw-lings, under an order of the judge of the superior court of Washington County, to L. B. Holt, of Sandersville, Georgia, as a receiver duly appointed by that judge to take charge of all of the money, effects, and papers of the defendant Rawlings in a civil ease pending in said court. The voluntary delivery of the policies by Rawlings was not made with reference to the instant criminal case. The policies were produced in the trial now under review in response to a subpoena duces tecum, served upon Holt, the receiver. It is alleged in this ground of the motion that the defendant Rawlings was forced to surrender the policies to the receiver. The defendant objected to their admission in evidence, on the ground that, by the process employed to obtain them, he had been forced and compelled by legal process to give testimony tending to incriminate himself, and to furnish evidence against himself, in violation of the laws and constitution of the State of Georgia and of the United States, and particularly in violation of art. 1, sec. 1, par. 6, of the constitution of Georgia, and of the fifth amendment to the constitution of the United States. Under the ruling of this court in Calhoun v. State, 144 Ga. 679 (87 S. E. 893), and numerous subsequent decisions, the policies could have been used as evidence in this prosecution even if they had been taken by force from the person of Rawlings. But we do not think that under the facts in this particular instance the policies were inadmissible in that the defendant was compelled to incriminate himself or to introduce testimony against himself, even as this constitutional provision was construed by this court prior to the time when the decisions just referred to were rendered; nor was the admission of these policies in violation of the fifth amendment to the constitution of the United States as construed by the Supreme Court of the United States. The policies were not found by the superior court of Johnson County in the possession of the defendant, nor were they taken from his custody. At the time the subpoena duces tecum was issued they were in the possession of L. B. Holt, a citizen of this State, amenable to the processes of the courts of this State, and, so far as appears from the record, they were produced without objection on his part. The defendant was not forced to deliver the policies to the receiver at the time and under the circumstances of the delivery. As we have already stated, the issue as to the production of the policies, as being a violation of the constitution of Georgia, is foreclosed by previous decisions of this court; and since it appears that at the time the defendant parted with the policies there was no compulsion which necessitated their delivery to the receiver, the latter having produced them in accordance with law, the ruling of the trial judge was not in conflict with the provisions of the fifth amendment to the constitution of the United States, which declares that no person “shall be compelled in any criminal case to be a witness against himself.”

In ground thirteen of the motion substantially the same objections were made as those presented to the admissibility of the evidence dealt with in the second division of this opinion. Eay Huie testified to the conversation in jail, set forth in the statement of facts. The objection to this testimony was “that Tanner was not on trial, and no statement made by Tanner was admissible as evidence against the defendant Eawlings, in which Eawlings did not consent and concur; and because the declaration of the alleged coconspirator Tanner, made after the conclusion of the enterprise, was admissible only as against himself, and not as against the defendant Eawlings; and because the defendant Eawlings did not concur or assent to the statement of said Tanner, but on the contrary expressly denied the same.” For the reasons already stated in the second division of this opinion, the admission of this testimony was not error so far as the last two reasons for the rejection of the testimony are concerned; and the first objection as stated is without merit, because the proposition “that no statement made by Tanner was admissible as evidence against the defendant Eawlings, in which Eawlings did not consent or concur,” is not sound as matter of law. Many statements made by Tanner with reference to the case, in which Eawlings did not consent or concur, would be admissible under well-settled rules of law,- and the objection did not so specify in what particular respect the evidence was illegal and inadmissible, other than that Eawlings did not consent and concur, as to enable the trial court intelligently to pass upon the point.

The writer is of the opinion that it was error to instruct the jury at all on the subject of confessions, inasmuch as the testimony of Eay Huie can not be construed as more than an inculpatory admission; and that such error, under the previous rulings of this court, requires the grant of a new trial. Dumas v. State, 63 Ga. 601 (5); Covington v. State, 79 Ga. 687 (7 S. E. 153); Fletcher v. State, 90 Ga. 468, 471 (17 S. E. 100); Nightengale v. State, 94 Ga. 395 (21 S. E. 221).; Powell v. State, 101 Ga. 9 (4), 18 (29 S. E. 309, 65 Am. St. R. 277); Lee v. State, 102 Ga. 221 (29 S. E. 264); Davis v. State, 114 Ga. 104 (8), 109 (39 S. E. 906); Owens v. State, 120 Ga. 296 (3) (48 S. E. 21); Shellman v. State, 157 Ga. 788, 792 (122 S. E. 205). However, as appears from the seventh headnote, the court is equally divided upon the question thus raised in the fourteenth ground of the motion for a new trial; from which it results as matter of law that the judgment of the court below as to this ground of the motion stands affirmed by operation of law. Consequently, and inasmuch as we are all agreed that there was no reversible error in the preceding assignments of error, and the evidence adduced is sufficient to warrant the verdict, the judgment overruling the motion for a new trial should not be reversed.

Judgment affirmed.

All the Justices concur, except as to the question last stated.