125 Ga. 281 | Ga. | 1906
Allen Brown, Jake Brown, Will Harris, and Bob Harris were jointly indicted for the offense of murder, the person alleged to have been murdered being Bob Hawk. All of the accused were charged as principals in the first degree, it being alleged that they “unlawful^, feloniously, wilfully, and of their malice aforethought did kill and murder, by shooting with a pistol and cutting with a knife the said Bob Hawk,” etc. At the trial under review, the plaintiff in error, Jake Brown, was alone tried, and was found guilty, with a recommendation that he be imprisoned in the penitentiarjr for life. He made a motion for a new trial, which was overruled, and he excepted.
But whether the abstract charge upon the subject of a principal in the second degree was or was not authorized as applied to the State’s contention, that Allen Brown was the actual perpetrator of the crime, and that the defendant Jake Brown was present, aiding and abetting him in its commission, there was evidence from which the jury might have found that the deceased was killed either by Bob Harris, who was also jointly indicted with the defendant, or by the defendant himself, and that if he was killed by either, the other was present aiding and abetting the actual perpetrator of the homicide. There was evidence which showed that they came upon the scene of the killing about the same time and both fired a number of shots at the deceased, and it was not clear from the testimony which fired first. From the fact that they were there together and
An instruction by the court upon this subject, as applied by the court to the theory that the defendant was present, aiding and abetting Allen Brown to murder the deceased, was excepted to in the motion for a new trial. Such charge was, however, not erroneous for any of the reasons assigned in this ground of the motion. In the argument before this court, this particular instruction was vigorously and forcibly attacked upon a ground not assigned in the motion for a new trial, and which we have, therefore, not taken into consideration in deciding the case.
Judgment reversed.