150 Ga. 586 | Ga. | 1920
The four defendants were tried jointly. The evidence is directly to the effect that tlie four defendants were at the house at the time of the homicide, and that two of them shot the deceased, one of them indicting upon the deceased a mortal wound. Another of the defendants was, at the time of the homicide, engaged in a struggle with the sheriff, the companion of the deceased, while the fourth defendant was actively interfering with the sheriff in his attempt to open a door leading into the room where the shooting occurred and to go to the rescue of the deceased. There was no request to give in charge the provision of section 1010 of the Penal Code, quoted above. The case against the defendants is not dependent solely upon circumstantial evidence; and, under the repeated rulings- of this court, the failure to give in charge the rule relating to circumstantial evidence was not error. If the jury believed beyond a reasonable doubt that one or more of the
The opinion of the writer is as follows: The deceased received two gunshot wounds, only one of which was necessarily mortal. The sheriff testified that ho saw both George and Decatur Crawley shooting at the deceased at the same time; and each of them admitted in their statements to the jury that he had shot the deceased, neither admitting that he had inflicted the mortal wound. Such evidence would not show which of them inflicted the mortal wound. In order to convict either for the homicide under these circumstances, it would be necessary to prove that they were in conspiracy. McLeroy v. State, 125 Ga. 240 (54 S. E. 125); Scroggs v. State, 147 Ga. 737 (95 S. E. 226); Fudge v. State, 148 Ga. 149 (95 S. E. 980). The same may be said of Eosa Crawley and Blain Stewart, neither of whom shot at the deceased, and therefore could not -have been the actual slayer. Both were present and engaged in conduct tending to show that they were aiding and abetting George and Decatur Crawley in such manner as would show a conspiracy. While there was positive evidence of circumstances tending to show a conspiracy, such positive evidence did not identify with certainty any one of the defendants as the actual slayer of the deceased; and in order to hold one or all of them responsible for the crime, it was necessary to show that the homicide was committed by one of the defendants while in pursuance of a conspiracy. There was no positive evidence of an agreement to kill the deceased; and in order to show a conspiracy, it was necessary to rely on the circumstances of concert of action among the defendants, which, as circumstantial evidence, pointed to the existence of a conspiracy. Such being the case, the court, without request, should have charged the law applicable to cases of cir
Judgment affirmed.