Opinion
41751.
SUBMITTED JANUARY 5, 1966.
DECIDED FEBRUARY 23, 1966.
Larceny of automobiles. Newton Superior Court. Before Judge Dean.
Ballard Thigpen, Troy R. Thigpen, for appellant.
Richard Bell, Solicitor General, for appellee.
1. Statements made under oath upon the trial of the case being heard are not declarations but testimony. Crawley v. Selby, 208 Ga. 530, 536 ( 67 S.E.2d 775).
2. "One may be legally convicted of a felony other than treason or perjury where the only evidence directly connecting him with the offense charged is the testimony of an accomplice, and where the only corroboration is the testimony of other accomplices." Pope v. State, 171 Ga. 655 ( 156 S.E. 599).
3. "`It is not error to admit evidence which is objected to as a whole when any part of that objected to is admissible. A party objecting to evidence must specify the portion which is objectionable, and if he fails to point out exactly that portion which is objectionable and move its exclusion he cannot complain that the whole of the evidence objected to, a part of which was admissible, was admitted over his objection. . . . Gully v. State, 116 Ga. 527 (2) ( 42 S.E. 790).' Turner v. McKee, 97 Ga. App. 531, 536 ( 103 S.E.2d 658)." Brantley v. Heller, 101 Ga. App. 16, 18 ( 112 S.E.2d 685).
4. Where a defendant admits his presence at the scene of a crime and knowledge of the commission of the crime, but in the same breath denies his participation in such crime, the statement is not a confession but at most an incriminating admission.
5. Where a defendant makes an incriminating admission, not amounting to a confession, it is error to charge the law on confessions. See Johnson v. State, 204 Ga. 528 ( 50 S.E.2d 334); Hobbs v. State, 206 Ga. 94 (1) ( 55 S.E.2d 610). The trial court erred in charging on confessions.
6. The remaining enumerations of error deal with matters which will probably not recur on another trial and which, accordingly, will not be dealt with.
Case remanded for new trial. Hall and Deen, JJ., concur.
SUBMITTED JANUARY 5, 1966 — DECIDED FEBRUARY 23, 1966.
James Allen Haggard, Ralph Darrell Drake and Gary Godfrey, were jointly indicted for the larceny of two described automobiles. James Allen Haggard was tried separately and found guilty on each count. Thereafter, his motion for new trial was overruled and he filed his appeal enumerating as error the admission of evidence, excerpts of the charge, the overruling of his motion for a new trial and because the evidence was insufficient to authorize a conviction.
On the trial of the case each of the two co-indictees testified as to the conspiracy to steal the automobiles and their part in such actions. The defendant Haggard testified under oath and admitted that he was at the scene where one of the automobiles was stolen, that he heard the co-indictees talking about stealing such automobile and how they could dispose of it for a profit, but he denied that he was involved in such theft. Other evidence not necessary for decision of the case was also adduced on the trial.