The court did not err in overruling the motion for a new trial, for any reason assigned.
DECIDED MAY 19, 1944. The defendant brings the case here assigning error on the judgment overruling his motion for a new trial on a conviction for chicken stealing. The evidence presents the following over-all picture: On July 8, Mr. Jasper Hilley, of Hart County, lost from his unlocked chicken house about thirty Rhode Island Red hens and an equal number of hens of the Barred Rock variety. Tracks of five men were discovered around the house. These tracks led from the chicken house across a field to the chicken house of Mr. *Page 139 Cortez Bryan, a near-by neighbor. Mr. Hilley, the prosecutor testified that he also missed some fryers. Mr. Bryan testified that he lived about half a mile from Mr. Hilley's chicken house. Raymond Sewell testified for the State that on or about July 7 or 8 he saw the defendant and Jesse Rowland; that while he did not have any conversation with the defendant, he did make arrangements with Jesse Rowland to carry some chickens to Elberton the next day. On the next day Sewell went over "there" and found Eskew, Jesse Rowland, and Junior Rowland with four or five sacks of chickens. The chickens were put into a car. Jesse Rowland was riding on the front seat; Eskew and Junior Rowland were on the back seat. The chickens were carried to Elberton, and sold to Mrs. Martin Parham, who operated a boarding house there. She gave a check for $20 payable to Junior Rowland. Eskew, Jesse Rowland, and Junior Rowland took the chickens out of the car, and delivered them to the purchaser. Junior Rowland took the check to the bank and returned with the money, which he divided equally among Eskew, Jesse Rowland, and himself. Eskew, Jesse Rowland, and Junior Rowland each paid Sewell $1 for the trip. On the return trip the witness and Jesse Rowland were riding in front, and the defendant and Junior Rowland were riding on the back seat. The witness overheard a conversation between the two on the back seat. He testified: "I heard them [meaning the defendant and Junior Rowland] say they got them from Mr. Hilley. I don't know exactly who was doing the talking, but it was Junior or Eskew one. Both of them was talking and I wouldn't say which one said it. I heard somebody on the back seat say they did get the chickens from Mr. Hilley. Jess didn't open his mouth." The witness further testified, "There is a lot of Hilleys live up there." The witness testified also that Jasper Hilley was his uncle by marriage, and he did not think they would be talking about that particular Hilley. Mrs. Parham testified as to the purchase of the chickens, and further stated: "I got some fryers . . some hens and also one rooster." The defendant stated: "I raised some chickens and sent a sack full down there to sell them. They wasn't stolen. I carried them to Dewey Rose and sold them. I went down there with Junior Rowland . . I am not guilty of stealing chickens, because I didn't steal them." There are two essential facts established by the evidence beyond peradventure: (a) the corpus delicti; and (b) a conspiracy. The only question to be determined is whether the defendant appears in the criminal enterprise as one of the conspirators beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis save that of his guilt. The motion for new trial contains two special grounds assigning error on the court's charge. They are so closely related to and connected with the errors assigned on the general grounds that they will be treated with the general grounds. The first of these special grounds complains because the court submitted to the jury the question of recent possession of stolen property. This is contended as error because the State failed to prove that the chickens recently found in the possession of the accused were those alleged to have been lost by the prosecutor. The second complains because the court charged on the principle of incriminating statements, whereas the evidence did not justify such charge; and further because the evidence did not warrant a charge on such principle and the court expressed an opinion as to what had been proved. See Underhill on Criminal Evidence (4th ed.), pp. 251, 252, wherein that authority states: "Where two or more persons are associated for the same illegal purpose, any act or declaration of one of them in reference to the common object and forming part of the res gestae may be given in evidence, even where the indictment does not charge a conspiracy . . and testimony as to such statements made after the commission of the crime but in the presence of the accused is competent, unless denied by the accused." When we take into consideration the established facts that the defendant paid one-third of the amount for the transportation of the chickens in question; that he handled the chickens along with Junior Rowland; that he received one-third of the proceeds of the sale of said chickens; and that the effect of his statement was that he denied any such participation; and the further fact that in the conversation between himself and Junior Rowland the statement was made that the chickens which were sold were stolen from a Mr. Hilley, we feel that it is safe to conclude that the chickens described in the indictment and those lost by Mr. Hilley, the prosecutor, were the same chickens sold to Mrs. Parham. This, we think, may be concluded to the exclusion of every other reasonable hypothesis. Notwithstanding the *Page 141 fact that there were other Hilleys living in the community, there is no evidence that any other Hilley lost any chickens; and notwithstanding the fact that in the conversation between the defendant and Junior Rowland the State did not establish whether it was the defendant or Junior Rowland who made the statement that they received the chickens in question from Mr. Hilley, they were both engaged in the conversation, and this conversation having taken place during the enterprise of the conspiracy, it was admissible. Under all the facts and circumstances of this case, including the defendant's statement, his conduct, and the entire evidence, we are satisfied that the court did not err in overruling the motion for new trial for any of the reasons assigned. For a discussion on conspiracy, see Smith v. State,47 Ga. App. 797 (171 S.E. 578), and cit. For other cases sustaining the affirmance of this case see Mathis v. State,55 Ga. App. 727, 729 (191 S.E. 272), where it is said: "If one of the defendants, speaking for both, confessed their guilt, and the other remained silent and thus acquiesced in this confession, this would amount to a confession by the one thus remaining silent, if the jury saw fit so to accept it;" also Jordan v.State, 9 Ga. App. 578 (71 S.E. 875); Holt v. State,28 Ga. App. 758 (113 S.E. 49); Williams v. State, 139 Ga. 591 (77 S.E. 818).
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.