Brown v. State , 132 Ga. App. 200 ( 1974 )

132 Ga. App. 200 (1974) 207 S.E.2d 682

BROWN
v.
THE STATE.

49433.

Court of Appeals of Georgia.

Submitted May 29, 1974. Decided June 20, 1974.

Nick G. Lambros, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Morris H. Rosenberg, for appellee.

EBERHARDT, Presiding Judge.

Appellant, together with defendants Flinchum, Peterson, George, Brannon, Fagala, Aiken and Schmalz, were jointly indicted for theft by taking in a check kiting operation as a result of which the First Georgia Bank lost in excess of $300,000.

Defendants Aiken, Flinchum and Brown were tried separately and in each case verdicts of guilty were returned. In Brown's appeal error is enumerated on the admission of testimony of co-conspirators Brannon and Peterson, the enumeration being based upon Code § 38-414 which prohibits the admission of a confession of a co-conspirator made after termination of the conspiracy as against any save himself. Error is also enumerated on the overruling of a motion for new trial on the general grounds. Held:

1. The general grounds are without merit. The evidence is ample to support a conviction.

2. The admission of a confession made by a co-conspirator after termination of the conspiracy is quite a different thing from the admission of sworn testimony by a co-conspirator and this has been recognized by the Supreme Court in Pippin v. State, 205 Ga. 316 (12) (53 SE2d 482), where he is held to be a competent witness to testify as to any relevant matter concerning the charge, and that in this situation Code § 38-414 has no application.

Judgment affirmed. Deen and Stolz, JJ., concur.