T. L. Coggeshall was jointly indicted with F. W. McClellan and S. J. Scarborough, on a charge of having murdered W. C. Wright, in Putnam County, on March 4, 1925. Coggeshall and McClellan were put upon trial, but Scarborough was not tried with them. The jury returned a verdict against Coggeshall and McClellan, finding both of them guilty of murder, without recommendation, and they were sentenced to be electrocuted. Each made a separate motion for new trial, on the usual general grounds and sixteen special grounds. The motion of Coggeshall was overruled by the court, and he excepted. The State’s theory of the case was that Coggeshall, McClellan, and Scarborough left Tampa, Florida, a few days before the commission of the crime for which they stand charged, and went as far as Lake City, Florida, in a stolen automobile, which broke down at Lake City, and they abandoned the car and walked to Macon, Georgia, and from there through Eatonton and Putnam County, where the homicide occurred. The evidence for the State tended to show that all three of those indicted passed through Eatonton in Putnam County, and on March 3, 1925, spent the night in a vacant house near Eatonton, and on the morning of the 4th of March, the day of the crime, started on their way along the highway leading from Eaton-ton towards Athens, Georgia, and traveled a distance of some seven or eight miles north of Eatonton, at which place on the suggestion of the defendant McClellan, the defendants Coggeshall and Scarborough turned back towards Eatonton, and caught a ride in an automobile with one Hallman, riding with him towards Eatonton to a point within two miles of that place, where they left Hallman’s car and started back up the road towards Athens; that they were then picked up by Prof. W. C. Wright, the deceased, who was traveling in the same direction in a Dodge touring car; that McClellan had waited by the side of the road at a point seven or eight miles north of Eatonton, and when Coggeshall and Scarborough, who were riding in the car with Wright, reached the point where McClellan was, Coggeshall struck Wright over the head with a piece of an automobile spring, which he had been carrying since the day before. This blow stunned Wright, and then the ear was driven off from the main highway into the edge of some woods, and McClellan pulled Wright out of the car and dragged him into some bushes and there, robbed and struck him a number of blows with
The evidence showed that when the defendants were arrested and searched, it was found that McClellan had in his pocket a bunch of keys which belonged to Mr. Wright, the murdered man, and also a knife which some of the witnesses identified as the property of Mr. Wright. The defendants claimed that McClellan had found these keys on the side of the road a short time 'before he was arrested. Mr. Wright’s automobile was found near the side of the road a short distance from Athens, on the other side of Athens from where the defendants were arrested. The automobile had been abandoned at this point. The evidence also showed that there was considerable blood in the car, both on the back of the front seat and in the tonneau of the car. Witnesses for the State testified that they had seen the defendants in the vicinity of Eaton-ton on the day the murder was committed. These witnesses also identified the defendants from having passed them while riding in an opposite direction in an automobile traveling along the
From an examination of the evidence in the ease we are of the opinion that the evidence of Scarborough, one of the alleged accomplices, is corroborated by other evidence in the case; and though the evidence is conflicting on the question of alibi, the evidence as a whole is sufficient to authorize the verdict.
Error is assigned in the second ground of the motion for new trial, because the court charged the jury as follows: “Now, the law says a person can be guilty of a criminal offense as principal in the first degree or as a principal in the second degree. A principal in the first degree is the actual perpetrator of the criminal offense; a principal in the second degree is one who is present aiding and abetting the principal in the first degree to commit a criminal offense, which presence need not be immediately standing by, but there may be also a constructive presence, where one keeps watch and another commits a criminal offense.” It is insisted that the court in charging in general terms the law as contained in the Penal Code, § 4$, failed to instruct the jury on any of the elements involved in this code section. This charge is not error for the reasons assigned, that there was no evidence justifying that portion of the charge in these words: “which presence need not be immediately standing by, but there may be also a constructive presence, where one keeps watch and another commits a criminal offense.” Nor on the ground that the court did not in this portion of the charge or elsewhere instruct the jury in effect that mere presence at the commission of a crime by one who is jointly indicted with another, and where the actual perpetratipn of the crime was committed by one of the other defendants, would not of itself render such person, who was merely present at the commission of the crime, guilty either as a principal in the first degree or second degree. Nor is it error on the ground that the charge as given,
Movants contend that the court erred in failing to instruct the jury on the law of involuntary manslaughter in the commission of an unlawful act, on the ground that the jury might have found and believed from the evidence that this movant had entered into a conspiracy with the other defendants jointly indicted with him to commit the offense of robbery, and that an assault was made upon the deceased, Wright, with a weapon not likely to produce death, and that there was no actual intention to kill and no conspiracy to kill or to commit a homicide, but that the death of the deceased resulted from an assault on the deceased with a weapon not likely to produce death, made by one of the defendants. This ground of the motion is without merit. In Berryhill v. State, supra, this court held: “Where two or more persons conspire to rob another who is employed in a building, and one of the conspirators keeps watch or guard at a convenient distance while the others enter the building and, in furtherance of the common design to rob, kill the person intended to be robbed, such killing is a probable consequence of the unlawful design to rob, and all the conspirators are guilty of murder, including the one on guard. Penal Code (1910), § 42; 1 Wharton’s Crim. Law (11th ed.), § 258; Wharton on Homicide (3d ed.), 660, § 430; Clark’s Crim. Law (2d ed.), 106, § 47; Brennan v. People, 15 Ill. 511; Stephens v. State, 42 Ohio St. 150; Miller v. State, 25 Wis. 384; State v. Barrett, 40 Minn. 77 (41 N. W. 463); Weston v. Commonwealth, 111 Pa. 251 (2 Atl. 191).” Neither did the court err in failing to instruct the jury on the law of involuntary manslaughter in the commission of an unlawful act, for the reason that the court had stated to the jury, “Now it becomes my duty to instruct the
In the 9th ground of the motion for new trial the movant alleges error because of the following charge: “Now, the defendant, T. L. Coggeshall, has also made a statement, and'-under § 1036 of the Criminal Code of the State of Georgia the defendant, T. L. Coggeshall, has the right to make to the court and jury just such statement as he sees proper to make in his defense. This statement is not required to be under oath, and when the defendant makes a statement it is left entirely with the jury as tó what credit you will give the defendant’s statement. You have a right to accept it or you have a right to reject it, or you have a right to believe it in preference to the sworn testimony in the case, if you see proper to give it that degree of credit.” The above charge is not error because the court used the words “this statement is not required to be under oath,” instead of using the identical words as contained in § 1036 of the Penal Code of 1910 that it “shall not be under oath.” The use of the above language was not calculated to prejudice the jury against the movant, as contended, and was not calculated to lead them to believe and understand that the defendant might under the law have made his statement under oath, but was not required to do so, whereas the law provides that this statement can not be made under oath. Nor is the charge error because the court failed to instruct the jury that they might believe a part of the defendant’s statement and reject a part of it. The court did instruct the jury that they had a right to accept or they had a right to reject it, and further that the jury had a right to believe the statement of the defendant in preference to the sworn testimony in the case. Suple v. State, 133 Ga. 601 (2), 602 (66 S. E. 919); Wilder v. State, 148 Ga. 270 (2) (96 S. E. 325).
(10) The following charge of the court is assigned as error: “Now, the defendants in this case set up what is called the plea of alibi, and in this connection I will read you the following sec
(11) The following charge of the court is assigned as error by movant: “Under § 1017 of the Criminal Code the court charges you that you would not be authorized to convict the defendants on the testimony of any accomplice alone, unless such testimony has been corroborated by other evidence or other circumstances in the case. Such corroboration, if any, must, independent of the testimony of the accomplice, be sufficient to connect the defendant with the perpetration of the criminal offense. Such corroboration, if any, as to the time, place, and circumstances of the transaction, would not be sufficient, but the corroboration must, independently of the testimony of the accomplice, be sufficient to directly connect the defendants with the perpetration of the criminal offense, if any has been committed.” The criticism is that the court, by the use of’ the words, “such corroboration, if any, as to the time, place, and circumstances of the transaction would not be sufficient, but the corroboration must, independently of the testimony of the accomplice, be sufficient to directly connect the. defendants with the perpetration of the criminal offense, if any offense has been committed,” entirely omits the essential element and principle that the corroborating evidence must be sufficient, independently of the testimony of the accomplice, to prove the corpus delicti. This
(12) Movant assigns error on the following charge of the court: “In the event you should reach the conclusion that there are conflicts in the testimony of the witnesses that can not be reconciled upon any reasonable basis, upon passing upon the question of what witness or witnesses you are to believe, why then you take into consideration every fact and every circumstance developed in the trial of this case. You take into consideration the manner and demeanor of the witnesses upon the stand; you take into consideration the knowledge of the facts or the want of knowledge of the facts testified to by the witnesses; you take into consideration the intelligence or want of intelligence of the witnesses, so far as the same legitimately appears from the trial of this case; you take into consideration the opportunities of the witnesses knowing the facts to which they testify. You also take into consideration the prejudice or. bias, or the want of prejudice or bias, that any witness may have that has testified in the trial of this case, the interest or want of interest that any witness may have in the result of the trial of this case, the probability or the improbability of the facts testified to by the witnesses, the personal credibility of the witnesses so far as the same legitimately appears from the trial of the case.” The criticism of the charge is that the court in effect, by the use of the words, “you take into consideration the manner and demeanor of the witnesses upon the stand; you take into consideration the knowledge of the facts or the want of knowledge of the facts testified to by the witnesses; you take into consideration the intelligence or want of intelligence of the witnesses; you take into consideration the opportunities or means of the witnesses knowing the facts about which they testify, or the want of means or opportunities of the witnesses knowing the facts about which they testify; you take into consideration the prejudice or bias or the want of prejudice or bias that any witness may have, the interest or want of interest that any witness may have in the result of the trial of this case,” etc., instructed the jury in effect that it was mandatory to take these several matters into consideration, instead of instructing the jury that they might take these matters into consideration, and thereby invaded the province of the jury. This criticism of the charge is without merit.
Ground 13 of the motion for new trial assigns error upon the following charge of the court: “Now, applying the principles of law as given you in charge by the court to the facts in evidence in this case, if you are satisfied to a reasonable and moral certainty and beyond a reasonable doubt of the guilt of the defendants that are now upon trial, it would be your duty to convict them; but if you have any reasonable doubt growing out of the evidence or the want of evidence, or engendered by the defendants5 statements, it would be equally your duty to return verdicts of not guilty against the defendants.55 The criticism is that the effect of this charge was to instruct the jury that they must convict both of the defendants on trial, or acquit both of the defendants on trial, and that the court erred in not instructing the jury in this connection that they would be authorized, if they should so find under the law and evidence, to find one of the defendants guilty and to acquit the other defendant on trial. By reference to the entire charge of the court it will be apparent that this ground of the motion for new trial is without merit. The court in its general charge instructed the jury to. consider the evidence as to each of the defendants separately, and the record shows that the jury did return separate verdicts as to the plaintiff in error here, and the other defendant, McClellan.
Movant alleges error in ground 15 of the motion for new trial, because the court failed to charge the law applicable to impeachment of witnesses, especially as the court in beginning the charge to the jury stated to them “Now, it becomes my duty, to instruct the jury upon all the principles of law applicable to the issues involved in the trial of this case.55 Movant says that testimony was introduced by the defendants tending to impeach the witness Scarborough, who was introduced' as a witness for the State. This ground is without merit. In the absence of a timely request it is not error for the court to fail to charge the law with reference to impeachment of witnesses. Benjamin v. State, 150 Ga. 78 (102 S. E. 427); Brady v. State, 159 Ga. 469 (4) (126 S. E. 250); Perdue v. State, 135 Ga. 277 (6), 278 (69 S. E. 184).
The 16th ground of the motion for new trial complains that the court erred in admitting in evidence, over objection of defend
Other headnotes require no elaboration.
Judgment affirmed.