Terrell v. State , 138 Ga. App. 74 ( 1976 )

Evans, Judge,

concurring specially.

A home owner was awakened in the early hours of the morning (1:30 a.m.) by noises in his home. He armed himself with a pistol; he heard several voices; saw a person’s head creeping up on his bed; shot at this burglar and apprehended him. He told the burglar to tell the others to leave, as he was in fear of what they might do to him. The companions of the burglar left when the apprehended burglar told them he had been caught. He then told the victim and his wife that two men had picked him up while he was hitchhiking and had forced him at gunpoint to break into the house.

The police were called, saw an abandoned vehicle near the dwelling, and took charge of the prisoner. In response to a question by an officer, the prisoner stated that the car was involved and that the other two men were armed.

A back-up unit was called to investigate the automobile, and two men, one being the defendant in this case, were found seated in the automobile when the police arrived. Handguns were found in plain view and the defendant and his companion were wearing wet clothing.

I concur fully with the majority opinion as to all but the last paragraph of Division 2 wherein the apprehended burglar’s statement to the policemen that his two companions were armed was held admissible and allowed in evidence as original evidence under Code § 38-302 as showing the conduct of the officers. I do not agree that such statement was admissible for this reason, as it was completely unnecessary to explain any conduct on the part of the officers.

However, the statement was admissible as a declaration by one of the conspirators during the pendency of the conspiracy and showing sayings and acts in the concealment of the wrongful act since the other two had fled the scene. The statement of the apprehended burglar, while both exculpatory and inculpatory in nature, could be used against all the defendants, and the court did not err in allowing it in evidence. See Code Ann. § 38-306; Bennett v. State, 231 Ga. 458, 461 (1) (202 SE2d 99); Chatterton v. State, 221 Ga. 424 (5) (144 SE2d 726); Hutchins v. State, 229 Ga. 804, 805 (1) (194 SE2d 442); C. A. J. v. State of Ga., 127 Ga. App. 813 (195 SE2d 225); Johnson v. State, 136 Ga. App. 719 (222 SE2d 181).

The majority opinion is well-reasoned and well written, and I concur in it fully, with the minor exception pointed out above.