Opinion
28779.
ARGUED APRIL 8, 1974.
DECIDED NOVEMBER 27, 1974. REHEARING DENIED DECEMBER 17, 1974.
Murder. Forsyth Superior Court. Before Judge Pope.
Jane Kent Plaginos, for appellant.
C. B. Holcomb, District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Deputy Assistant Attorney General, for appellee.
This case emerged from the same factual situation as Morgan v. State, 231 Ga. 280 ( 201 S.E.2d 468) (1973). The appellant in that case was the husband of the appellant here. The appellant, along with her husband and two other parties, was indicted for murder, and the state prosecuted on the theory that she was a conspirator in the commission of the alleged crimes. She was tried separately, convicted by a jury, and she has appealed.
A number of errors have been enumerated in this court, but we deem it necessary to treat only two in this opinion.
1. The appellant complains, in several enumerations of error, that the admission into evidence of statements of co-conspirators Michael Morgan and Robert Howard was erroneous and prejudicial to the extent of requiring a reversal. The co-conspirators did not testify at the trial, and their statements implicating the appellant were admitted in evidence under approximately the same circumstances as were the statements in the earlier reported case of Morgan v. State, supra. In that case a majority of this court was not convinced that the implicating statements were inadmissible, but we held there that even if they were not properly admitted, "their admission was harmless error beyond a reasonable doubt under the circumstances of this case." Id., p. 281. We therefore hold that the enumerated errors on this point do not require a reversal in this case.
2. The appellant contends that the trial court committed error in submitting the death penalty as an alternative to the jury, because at the time of these alleged murders the death penalty was an illegal and unconstitutional punishment. In Morgan v. State, supra, we vacated the sentence and directed that a sentence imposing life imprisonment be entered upon remand. We do the same in this case. See Sullivan v. State, 229 Ga. 731 ( 194 S.E.2d 410).
3. Having reviewed this record, we conclude that the evidence was sufficient to sustain the conviction and the overruling of the general grounds of the motion for a new trial was not erroneous. The other enumerated errors we find to be without merit.
Judgment of conviction affirmed; sentence reversed, with direction. All the Justices concur, except Gunter and Ingram, JJ., who dissent.
ARGUED APRIL 8, 1974 — DECIDED NOVEMBER 27, 1974 — REHEARING DENIED DECEMBER 17, 1974.
I respectfully dissent in this case for the same reasons as stated in the dissenting opinion of Mr. Justice Ingram in Morgan v. State, 231 Ga. 280 ( 201 S.E.2d 468) (1973), which I joined.
I am also authorized to state that Justice Ingram joins in this dissent.