Morgan v. State , 231 Ga. 280 ( 1973 )

Mobley, Chief Justice.

Michael Morgan was charged with the murder of his father and mother. His wife, Hollis Wingo Morgan, his brother, Steven Morgan, Robert Howard, and Bob Shaw were jointly indicted with him. He was tried separately. The jury found him guilty and gave him a death sentence. He appeals from his conviction and sentence, and from the denial of his motion for new trial.

1. It was not error to overrule the general grounds of the motion for new trial.

2. The only ground of the amendment to the motion for new trial was as follows: "The jury was removed from Forsyth County to Hall County out of the jurisdiction of the bailiffs and court without the knowledge or consent of the defendant or counsel.” No evidence was submitted to substantiate this ground, and it was not error to overrule it.

3. It is contended that the court erred in admitting in evidence the confessions and admissions of the appellant. A hearing was held by the trial judge, out of the presence of the jury, on the question of the admissibility of these statements. The evidence authorized the judge to find that the constitutional rights of the appellant were not violated in obtaining these statements, and that they were freely and voluntarily made.

4. The appellant asserts that the court erred in admitting confessions of co-conspirators made after the enterprise had ended.

The statements of Robert Howard, Hollis Wingo Morgan, and Bob Shaw, made to investigating officers during the investigation of the murders, were allowed in evidence over the objection of appellant that the conspiracy had ended, and under Code § 38-414 the statements were not admissible. These co-indictees of the appellant did not testify at the trial. The state urged that the statements were admissible because at the time they were made the identity, or the extent of the participation, of all the perpetrators of the crime had not been determined, and the conspiracy was still in existence. See Evans v. State, 222 Ga. 392, 402 (150 SE2d 240).

Argued September 12, 1973 Decided October 25, 1973. Emory Lipscomb, III, Mobley F. Childs, for appellant. C. B. Holcomb, District Attorney, B. B. Robertson, Arthur K. Bolton, Attorney General, Courtney Wilder Stanton, Assistant Attorney General, G. Stephen Parker, Deputy Assistant Attorney General, for appellee.

The admissions and confessions of the appellant introduced in evidence showed that he had hired Robert Howard to kill his father and mother. The murders were committed in an extremely savage and brutal manner. There was evidence in the case that corroborated the appellant’s admissions and confessions. The appellant made no statement on the trial, and offered no defense except testimony purporting to show that he was insane at the time of the commission of the crimes. Even if the statements of the co-conspirators were not properly admitted on the trial, their admission was harmless error beyond a reasonable doubt under the circumstances of this case. Burns v. State, 191 Ga. 60, 73 (11 SE2d 350).

5. It is contended that the court erred in submitting the death penalty as an alternative to the jury, in that the penalty was an illegal and unconstitutional punishment at that time. The appellant was convicted on August 19, 1972.

The death sentence of the appellant must be vacated and a judgment entered sentencing him to be imprisoned for the balance of his life. Direction is given that the appellant and his counsel of record be served with a copy of the life sentence within five days from the date of entry. See Sullivan v. State, 229 Ga. 731 (194 SE2d 410); Howard v. State, 231 Ga. 186.

Judgment of conviction affirmed; sentence reversed, with direction.

All the Justices concur, except Gunter and Ingram, JJ, who dissent.