dissenting. The majority opinion holds that the written confession of appellant’s co-defendant, one Timms, was admitted in evidence, and that such admission into evidence was erroneous in that the confession of Timms was induced "by the slightest hope of benefit” in violation of Code § 38-411.
However, the majority’s decision goes on to hold that this erroneous admission of evidence was not harmful error requiring a reversal of the trial court.
I agree that the admitted confession was inadmissible against the appellant. I disagree with the majority in holding that its admission was not harmful error.
The written confession of Timms, the co-defendant of the appellant, obtained in a manner proscribed by our statute, and admitted in evidence against the appellant over his objection was, to my mind, prejudicial to him. And this is true even though there was other evidence introduced by the State from other witnesses pertaining to the same subject matter as contained in the confession. The jury may or may not have believed the testimony of the other witnesses unless it had been fortified by the illegally admitted confession.
In the case of Green v. State, 115 Ga. App. 685, 690 (155 SE2d 655) Mr. Justice Jordan speaking then for the Court of Appeals said: "Guilt beyond a reasonable doubt must be determined solely on admissible evidence of probative value. It was prejudicial error to allow the jury to consider the inadmissible evidence.”
If the co-defendant’s confession was inadmissible, and I believe that it was, then its admission in evidence for consideration by the jury was harmful to the appellant to the extent of requiring the granting of a new trial.
I would reverse the judgment.
I respectfully dissent.