Bennett v. State , 135 Ga. App. 615 ( 1975 )

Stolz, Judge.

The defendants appeal from their convictions of burglary.

1. Defendant Green’s conviction was authorized by evidence that he and his two co-defendants (including appellant Bennett) left home on the morning of the burglary, allegedly to see a man about getting a job, whose name and place of residence they didn’t know; that the two appellants left their co-defendant and went down the street where the burglarized house was situated; that three persons were reportedly observed in the carport of the burglarized house; and that two of the co-defendants were arrested together near the burglary scene, one of whom having stolen property and a revolver on his person. Accordingly, the trial judge did not err in overruling the general grounds of the motion for new trial and the motion for a directed verdict of acquittal.

2. The trial judge did not err in admitting in evidence the pistol which was concealed on the person of one of the co-defendants when he was arrested subsequent to and near the scene of the crime, or in denying a motion for mistrial based on testimony of the state’s witness that appellant Bennett was first charged with carrying a concealed weapon when arrested (especially where the prosecution disavowed knowledge that Bennett had been so charged, and the judge instructed the witness not to refer to such charge, and instructed the jury to disregard this reference). All the circumstances connected with the arrest, including how the accused or his co-conspirator was armed, are properly admitted to be weighed by the jury. State v. Luke, 232 Ga. 815 (209 SE2d 165) and cits.

3. The charge on conspiracy was not error. It was authorized by the evidence and was not confusing by injecting a separate crime into the jury’s deliberation, since conspiracy itself is "a separate crime only in cases where the crime conspired to be committed had not in fact been committed, that is, where the conspiracy had been, so to speak, 'nipped in the bud.’ ” Crosby v. State, 232 Ga. 599, 601 (207 SE2d 515).

Submitted July 1, 1975 Decided September 2, 1975. William M. Warner, for appellants. Richard Bell, District Attorney, George N. Guest, Assistant District Attorney, for appellee.

Judgments affirmed.

Deen, P. J., and Evans, J., concur.