28 Ga. 604 | Ga. | 1859
By the Court.
delivering the opinion.
"We affirm the judgment of, the court below on all the grounds taken in the motion for a new trial. And there is but one which we think requires any comment. Hill was indicted as a principal, and the evidence makes it probable that Griffin struck the blow or blows which killed Mrs. Saddler. Can Hill be convicted under the indictment ?
Mr. Justice Foster says, that the identity of the person supposed to have given the stroke is hut a circumstance, and a very immaterial one. The stroke of one is considered in law, and on sound reason, as the stroke of all. “ They are all principáis in law, and principals in deed,.” And the case which elicited these remarks was this; The indictment charged that A gave the mortal blow, and that B and C were present aiding and abetting, &c.; but on the trial it appeared that B struck and A and 0 were present, aiding, &c. It was held that this was not a material variance. For that the stroke was adjudged in law to be the stroke of every one; as much so as if all three had held the weapon and had altogether struck the de
Considering the participation of Hill in this tragedy, and that whether convicted as principal in the first or second degree, the offence is murder and the punishment the same, we affirm the judgment on this ground as well the rest.
Judgment affirmed.
I did not concur in the judgment in this case, but reserved to nfyself the privilege of writing a dissenting opinion or not, according as reflection might confirm my objections or remove them. The result is that I feel constrained to adhere to my dissent.
There are two points oh which I differ with a majority of the court.
1. They held that under this indictment evidence was admissible over the objection thereto by the defendant, showing that he was guilty, not as principal in the first degree, but as principal in the second degree. The indictment was for murder generally, — that is to say, without any discrimination between principal in the first degree and principal in the second degree, — in effect, therefore, an indictment against the accused as principal in the first, degree. I hold, that under such an indictment, no evidence is admissible to show that the accused was guilty as principal in the second degree, or, in other words, that under an indictment against one as principal in the first degree, there can be no conviction of him as principal in the second degree, and of course no evidence admitted showing him to be such. The reason is briefly this: The indictment does not give notice of the nature of the proof, and so, does not afford the accused opportu
2. The proof in thisi case clearly and confessedly shows the accused not to have been the pierpetrator of the crime. He struck no blow upon the deceased, and had nothing to do with her, but was engaged in-a scuffle with other persons, while the murderer performed his deed upon a helpless woman. I do not think the proof shows even that the two negroes had any common intent of murder. Their mission was probably one of lust, to be gratified peaceably if possible, forcibly if necessary. The purpose of murder did not probably arise in the mind of the perpetrator himself till it was excited in the heat of the contest with his resisting victim; and is not shown ever to have been in the mind of Hill at any time. He did not help the other negro, but was himself engaged with another woman, whom he neither killed nor tried to kill, and who was a witness against him on the stand. The evidence is far from satisfying me that Hill was guilty of murder in either degree, and it is indisputable that he was not principal in the? first degree.. The verdict is, that he was guilty as principal in the first degree. The verdict, therefore, is against the evidence. The verdict is not the