90 Ga. App. 448 | Ga. Ct. App. | 1954
Special ground 4 of the amended motion for new trial in case No. 35283 of assault with intent to murder against Joseph Washington contends that the court erred in charging on the subject of conspiracy because (a) the indictment did not charge movants with conspiracy, and (b) the evidence did not authorize such a charge. There is no contention that the charge as given was an incorrect principle of law.
The common-law offense of conspiracy does not exist in Georgia; it is the criminal act which is prohibited, the conspiracy being an incident and means of accomplishment of such act. Bishop v. State, 118 Ga. 799 (4) (45 S. E. 614); Nobles v. State, 98 Ga. 73 (26 S. E. 64, 38 L. R. A. 577). “The gravamen of the action ... is the injury done, and not the conspiracy to do it.” Hill v. Reynolds, 19 Ga. App. 334 (2) (91 S. E. 434). Accordingly, it is not necessary to allege in the indictment that a conspiracy existed before proof may be admitted so as to make the act of one of the co-conspirators the act of all. The existence of a conspiracy may be established by proof of acts and conduct as well as by proof of an express agreement. Stevens v. State, 8 Ga. App. 217, 218 (68 S. E. 874); Bolton v. State, 21 Ga. App. 184 (94 S. E. 95); Sheppard v. State, 28 Ga. App. 735 (113 S. E. 54). As stated in Patterson v. State, 199 Ga. 773 (7) (35 S. E. 2d 504): “It is not necessary, in order to show joint concert of
The defendants, in addition to making unsworn statements in their own behalf, were sworn, gave testimony, and were cross-examined, on behalf of each other. Error is assigned in the 5th special ground in that the court, while charging correctly on the weight to be given the defendants’ statements, failed to charge specifically on the weight and credit to be given their sworn testimony. The court charged generally upon the weight and credit to be given the testimony of witnesses. The defendants, when sworn on behalf of other defendants in other cases, were under the general classification of witnesses. Had any of them desired the court to point up the distinction between his unsworn statement and his sworn testimony (or the sworn defendant in his behalf) this should have been made the subject matter of timely written request. In the absence of such request, the instructions given were sufficient.
Special ground 6 of the amended motion for new trial assigns error, as to the movant John Nelson Anthony, on a charge of the court to the effect that one has a right to prevent a felonious assault upon one’s brother and that shooting under such circumstances would be justifiable. This charge was given by the court for the benefit of the defendant Joseph Washington,
Counsel for the plaintiffs in error concedes that there was ample evidence to support the conviction of both defendants under count 2 of the indictments charging them with carrying a pistol without a license, but contends that there was no evidence which would authorize conviction of carrying concealed pistols. In regard to this, several witnesses testified that when the defendants and their friends arrived they saw no evidence of pistols. One witness saw them “pull them out of their bosoms and put them in their pockets when my mother was telling them to leave.” This testimony was sufficient to sustain the conviction. See Williams v. State, 7 Ga. App. 33 (2) (65 S. E. 1097).
The trial court did not err in denying the motions for new trial as amended.
Judgment affirmed.