176 Ga. 446 | Ga. | 1933
Th'ad Lumpkin was placed on separate trial under a joint indictment charging him and Percy Carter with the murder of Will Wester by shooting him with a gun. The jury returned a verdict finding the defendant guilty and recommending mercy of the court. A motion for new trial was overruled, and the defendant excepted. The evidence showed, without contradiction, that Thad ■Lumpkin, Percy Carter, and two others went off at night in an automobile (a Dodge Sedan), to procure and transport a quantity of liquor. The automobile was the property of Lumpkin, as was also a loaded shotgun and several extra shells and an unloaded pistol, placed in the car at the beginning of the expedition by Lumpkin. One phase of the evidence was that these weapons were carried “to trade for liquor,” while another was that they were carried for “the purpose of running a bluff, bluffing this liquor.” They obtained through theft, or a process of “hijacking,” twenty gallons of liquor late at night, and were transporting it in the car, when they saw the headlights of another car some distance in front of them. When they approached within about thirty feet of the other ear they found that it was parked in the road, and they stopped, the lights of both cars being turned on and facing each other. The second car was that of officers Tolbert and Wester, who, anticipating the capture of a different car, had parked and were waiting for it to come along. When the first-mentioned car stopped, the officers saw that it was not the car they were looking for, but became suspicious and started to investigate. At this stage the accounts of what happened differ. The theory of the State was that as the officers were approaching, without a word having been spoken or any show of force having been made, a shot was fired from the shotgun by a man from within the liquor car, aimed at and wounding Tolbert in the legs and causing him to fall; that the same man changed his position and fired the gun at Wester, striking him in the chest; that about the time of the second shot Wester fired two shots with his pistol at the man, and Tolbert fired at him also; that Wester died immediately after firing; that all the men in the liquor ear fled; that Lumpkin returned and undertook to drive his car away, but could not get it to move; that he started off again, and was wounded by Tolbert, but
1. A conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act. This agreement may be established by direct proof, or by inference, as a deduction from conduct, which discloses a common design on the part of the persons charged to act together for the accomplishment of the unlawful purpose. Tanner v. State, 161 Ga. 193 (11) (130 S. E. 64). Where several persons conspire to engage in the unlawful acts of possessing and transporting intoxicating liquors in this State, and in pursuance of the common design one of the conspirators furnishes an automobile in whicli a loaded shotgun and several extra shells are placed, and all the conspirators enter the automobile and on the proposed expedition after acquiring possession of the liquors, and while they are engaged in the transportation they are confronted by an officer of the law, and one of them other than the one who furnished the automobile, while seated in the automobile with, all the others, in furtherance of the design to transport the liquors, takes up the gun from where it is being carried and shoots and kills the officer as he is approaching the car and before he has spoken to them, such killing is the probable consequence of the unlawful design to possess and transport the liquors, and all the conspirators are guilty of murder, including the proprietor of the automobile. It is not necessary that the crime of murder should be a part of the original design, but it is enough if it be one of the incidental, probable consequences of the execution of their design and should appear at the moment to one of the participants to be expedient for the common purpose. The intent of the actual slayer is imputable to his co-conspirators. Gore v. State, 162 Ga. 267 (134 S. E. 36). See also Berryhill v. State, 151 Ga. 416 (107 S. E. 158). The requests to charge set out in the eleventh, twelfth, and thirteenth grounds
2. Certain requests to charge set forth in the grounds numbered 4) 5, 6, 7, 8, 9, and 10 relate to the right to defend as against illegal search and illegal arrest without a warrant and illegal shooting by an officer to prevent the escape of the defendant and to accomplish his arrest for a misdemeanor. Some of the requests to charge did not state correct principles of law properly adjusted to the evidence and the prisoner’s statement before the jury. In so far as any of them stated correct principles of law properly adjusted to the facts of the ease, they were covered by the general charge, and such grounds show no cause for new trial.
3. The charge complained of in ground 15, “The crime being a misdemeanor only, an officer has no right to kill one to effect an arrest on a charge of misdemeanor; he has no right to use any force except such as may be necessary to take the party alive and not dead,” was not cause for reversal for the reasons as stated, (a) that “if an arrest was attempted and in progress, it was illegal, because the officers did not have any warrant and did not know that defendant and his companions were violating any law;” (b) that “the foregoing charge authorized and instructed the jury that the officer under the facts detailed could use legally any amount of force short of actually killing him, in order to effect an arrest, and that he could legally shoot at him and even shoot him if he did not kill him to effect the arrest;” (c) that “the officers had no right whatever, under the evidence in this case, to either search the car in which defendant was riding or arrest the occupants of the car, and effort to make such search and arrest was illegal, and that the officers could not legally arrest defendant or search' his car under the facts of this case, and any show of force in attempting an arrest was illegal, and defendant had a right to resist such arrest -with such force as necessary to prevent it;” (d) “that the court, instead of the above charge, should have charged the jury that the officers could not, under the facts of this case, make an arrest nor use any force whatever in attempting to do so.”
4. In ground 16 complaint is made of the following instruction to the jury: “In this case the question of a conspiracy you mil be instructed on, and I desire to call your attention to the law of conspiracy. A conspiracy is defined as a combination or agreement be
5. In ground 17 complaint is made of the following instruction to the jury: “If he knew he was about to be arrested, and if he was not apprised to the fact that the party seeking to arrest him was an officer, if he was not put on full acquaintance and knowledge of the situation and had reason to believe the arrest was illegal, he had a right to resist it, but not to take life.” This charge is not entirely accurate, but it does not afford cause for a reversal for the reason, as contended, “that the court in this charge predicated the right to resist the illegal arrest upon the theory that the defendant was not put on full acquaintance and knowledge that the deceased was an officer; and further, because the court limited the right to resist with the words, ‘had a right to resist it, but not to take life,’ which excluded from the consideration of the jury the evidence and the contention of the defendant that the effort to search and arrest was accomplished with a show of force, violence, and drawn weapons, and an actual shooting.”
6. In ground 18 complaint is made of the following instruction to the jury: “Whisky is considered of no value, it is true; but the carrying of whisky through the county, hauling it, is an unlawful
7. In ground 14 complaint is made of the followdng instruction to the jury: “An officer in this State may arrest one for a crime committed in his presence, without a warrant. A crime is committed in the presence of an officer if he sees it committed, or by the exercise of any of his senses he has knowledge, together with' what he sees, that a crime is being committed by the person sought to be arrested.” This charge was not erroneous for the reason, as contended, that it was not authorized by the evidence.
8. The evidence was sufficient to support the verdict, and the judge did not err in refusing a new trial.
Judgment affirmed.