188 Ga. 771 | Ga. | 1939
George and Jesse Johnson, father and son, together with Forest Ivey, were jointly indicted for the murder of James Evans, a°boy about eight or nine years of age, stepson of the defendant George Johnson. Convictions of George Johnson and Forest Ivey have been heretofore reviewed by this court. In each of those cases the judgment was reversed for errors in the charge to the jury. Johnson v. State, 186 Ga. 324 (197 S. E. 786); Ivey v. State, 186 Ga. 216 (197 S. E. 322). Later, Jesse Johnson was tried and convicted, and we now have his case for review. The exception is to the refusal of a new trial. The evidence is substantially the same as that adduced in the case of George Johnson, except that some additional evidence was introduced in the trial of Jesse. To avoid repetition, reference is made to the report in that case.
In the first special ground of the motion for a new trial the movant complained of a charge to the jury on the subject of flight, contending that there was no evidence to authorize a charge on this subject. This assignment of error is not sustained by the record. The evidence showed that the defendant left the State of Georgia and went to Michigan during the latter part of 1936, about a month after the date of the alleged homicide. No indictment had been returned when he left, and none was returned until the following April; nor had any warrant been issued. He was arrested and returned to Georgia after indictment. He later escaped jail, and returned to Michigan, where he was again arrested. Hnder this evidence, the charge on flight was not unauthorized. Smith v. State, 106 Ga. 673 (2) (32 S. E. 851, 71 Am. St. R. 286); Grant v. State, 122 Ga. 740 (2), 742 (50 S. E. 946); Callaway v. State, 151 Ga. 342 (2) (106 S. E. 577).
The evidence included testimony that the defendant made his escape from jail by getting possession of the sheriff’s pistol, which he then “held” on the sheriff until he could leave in the sheriff’s automobile. Grounds 4 and 5 complain of the admission of this evidence, because it tended to show separate and distinct
The movant complained of a charge to the jury on the subject of conspiracy, on the asserted grounds that the indictment did not allege a conspiracy, nor was there any evidence of such; and that the charge on conspiracy did not set out with whom the unlawful agreement, if any, was made, or what unlawful act, if any, there was a purpose to commit. In Johnson v. State, supra, it was held that a similar charge was unsupported, but in that case the evidence to connect George Johnson with a conspiracy was circumstantial only, and was considered by this court insufficient for the purpose. According to one witness, however, the present defendant, by his own words, was party to a conspiracy with his father to have the deceased killed for the purpose of collecting insurance on his life, and the charge in this case was authorized by the evidence. Nor was the charge erroneous, as contended, for the reason that the indictment did not allege conspiracy in express terms. Dixon v. State, 116 Ga. 186 (8) (42 S. E. 357); Whitaker v. State, 159 Ga. 787 (5) (127 S. E. 106). Nor was the charge erroneous for other reasons assigned.
The movant complains that the court erred in charging the jury on alibi, contending that no such defense was involved. There is no error here. According to the evidence, James Evans came to his death some time between seven and nine o’clock in the morning of November 9, 1936. He was found dead in Long Creek, near Elam road in Warren County. The defendant lived in this section. He stated to the jury that on that day he and Forest Ivey went in an automobile to Crawfordville and Augusta, returning in the afternoon. Forest Ivey testified that in leaving they traveled the Elam road and crossed the Long Creek bridge about daylight. Considering together the evidence and the defendant’s statement, we can not say that the charge on alibi was unwarranted. Taylor v. State, 155 Ga. 785 (118 S. E. 675).
In ground 6, the movant complained of the admission in evidence of a note and mortgage signed by George Johnson, to
In ground 7 the movant complained because the following statement was made by the judge, in ruling upon the admissibility of evidence, in the presence of the jury: "It appearing from the
In grounds 8, 10, and 11 it is contended that the court erred in failing to instruct the jury as to the purpose for which they might consider the documentary evidence referred to in division 5 of this opinion, and as to the weight and credit they might ascribe to it. There is no merit in this ground. Since the evidence related only to a collateral issue, the judge was not required to instruct the jury thereon, in the absence of a timely and proper request. Branch v. Bishop, 135 Ga. 110 (2) (68 S. E. 1021); Knapp Manufacturing Co. v. Cook, 171 Ga. 330 (2) (155 S. E. 321); Bishop v. Georgia National Bank, 13 Ga. App. 38 (4) (78 S. E. 947).
The evidence authorized the verdict; and no error of law having been committed, the court did not err in refusing a new trial.- Judgment affirmed.