Opinion
54904.
SUBMITTED NOVEMBER 1, 1977.
DECIDED FEBRUARY 2, 1978.
Armed robbery. Cobb Superior Court. Before Judge Bullard.
Rees R. Smith, for appellant.
Thomas J. Charron, District Attorney, Richard L. Sloss, Assistant District Attorney, for appellee.
We must reverse Hannah's armed robbery conviction for the reason that the confession of a co-defendant, who did not testify at the trial, was improperly admitted against Hannah, denying him his Sixth Amendment Right to confrontation. Porter v. State, 143 Ga. App. 640 (3) ( 239 S.E.2d 694) (1977). The confession was a custodial, post-arrest statement identifying Hannah and his role in the alleged robbery. The state, citing Bennett v. State, 231 Ga. 458 ( 202 S.E.2d 99) (1973), contends the confession was made during the concealment stage of a conspiracy and thus was admissible hearsay. However, the Supreme Court later reconsidered its ruling in Bennett and held "that a statement made to police by a conspirator, whether inculpatory or exculpatory as to the declarant, which statement incriminates the other conspirator as a party to the crime, also constitutes termination of the conspiracy. Thus, such statement by a conspirator is not made during the pendency of the criminal project and is not admissible under Code Ann. § 38-306." Crowder v. State, 237 Ga. 141, 153 ( 227 S.E.2d 230) (1976).
This inadmissible statement was important to the state's proof against Hannah; hence, it cannot be said that its admission was harmless beyond a reasonable doubt. The remaining enumerations of error have no merit; but for the reasons stated above the judgment of conviction must be reversed and a new trial granted.
Judgment reversed. Bell, C. J., concurs. McMurray, J., concurs in the judgment only.