People v. Graney

SHAW, J.

Defendant as charged in an indictment, was convicted of the crime of attempted robbery, and prosecutes this appeal from the judgment thereon pronounced against nim.

[1]

On the afternoon of October 2d, four men, all of whom were armed, entered the First National Bank of Hynes and attempted to rob the same. One of them, Dave Curry by name, was captured while engaged in the felonious act. On the following day, defendant and two other men were arrested as participants in the commission of the crime. In company with Curry, they were taken to the office of the sheriff, at which time Curry admitted his guilt and, in the presence of defendant, stated the latter was a full participant therein. During the examination of Curry, the question was asked: “Did you have any talk together as to what you were going to do or where you were going?”

[774]

in response to which Curry said, “No.” And continuing, the interrogator stated: “Something had been said, wasn’t there? What did you say to one another?” whereupon defendant interposed, saying: “Our counsel gave us orders not to talk about the case until we were taken into court.” The interrogation of Curry proceeded, and upon the completion of his statement, defendant was asked if there was anything in the statement which he wanted to correct or add anything thereto, to which he replied, “No, sir.” And again: “Is there anything that Curry has said, boys, that is not right or that you want to correct? . . . Anything you want to correct or fill in, Graney?” To which he replied, “No, sir.” Not only did defendant object to the introduction of this testimony, but thereafter moved the court to strike out the same, which motion was denied; and this ruling constitutes the only error of which defendant complains.

"While appellant concedes the rule stated by the court in instructing the jury, that “you cannot take into consideration the substance of said confession or the truth or falsity of it against the defendant, but can only consider what the defendant did or said when said statement was made in his presence,” he insists that by reason of the mere avowal that his attorney had advised him not to talk, what he said or did in response to Curry’s statement as to his participation in the crime was not admissible in evidence, and hence it follows that it was likewise error to admit Curry’s statement.