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Concurring Opinion

United States Supreme Court

400 U.S. 74

Dutton  v.  Evans

 Argued: Oct. 15, 1969. --- Decided: Oct 15, 1970


Appellee was convicted of first-degree murder following a trial in which one Shaw testified, over objection, concerning a statement Williams (an alleged accomplice) had made in the prison where both were incarcerated, after Williams' return there from his arraignment, that had it not been for appellee 'we wouldn't be in this now.' There were 19 other prosecution witnesses, one of whom (another alleged accomplice) gave detailed eyewitness testimony of the crime and the participation of the appellee and Williams therein. Shaw's testimony was admitted under a Georgia statute which, as construed by the Georgia Supreme Court, Evans v. State, 222 Ga. 392, 150 S.E.2d 240, allows into evidence a coconspirator's out-of-court statement made during the concealment phase of the conspiracy. Following affirmance of the conviction by the Georgia Supreme Court, appellee brought this habeas corpus proceeding in federal court. The District Court denied the writ but the Court of Appeals reversed, holding that the Georgia statute violated appellee's right to confrontation secured by the Sixth and Fourteenth Amendments. Appellee contends that the Georgia hearsay exception is unconstitutional since it differs from the hearsay exception applicable to conspiracy trials in the federal courts, which applies only if the out-of-court statement of a coconspirator was made in the course of and in furtherance of the conspiracy. Held: The judgment is reversed. Pp. 80-90; 93-100.

5 Cir., 400 F.2d 826, reversed.

Mr. Justice STEWART, joined by THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice BLACKMUN, concluded that:


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).