9 Ga. App. 559 | Ga. Ct. App. | 1911
Maughon was jointly indicted with Kelley Elrod for the crime of murder, and on his separate trial was convicted of voluntary manslaughter. His motion for a new trial being overruled, he brings error.
This is the second time this case has been before this court for review, and on the previous occasion we granted a new trial on exceptions to the charge of the court. In the opinion then rendered we made a full statement of the evidence. Maughon v. State, 7 Ga. App. 660 (67 S. E. 842). It is not now deemed necessary to-repeat this statement, except .in a general way, for the purpose of showing the theories relied upon by the State and the defendant illustrative of the special assignments of error to be considered and determined.
Maughon was a constable. The sheriff of the county asked him to arrest two brothers, Zack and Jake Cleghorn, for whom he held warrants, exhibiting the warrants to Maughon. Complying with the request, Maughon did arrest both of the brothers, telling them that he had warrants against them. They escaped from custody. Subsequently Maughon requested Kelley Elrod to go with him to rearrest the two Cleghorns. They proceeded to the home of the brother-in-law of the two men for whom they were'searching, having been informed that they might be found there, and reached there about daybreak Saturday morning. Maughon went to the front door of the house and Elrod to the back door. The brothers were inside this house, and attempted to escape therefrom. The decedent ran to the front door, where he met Maughon, who took hold of his arm and attempted to hold him, and he jerked loose from Maughon and ran out of the door and around the corner of the house, and while running away he was fired on twice, one shot taking effect. While the witness who testified to these facts could not
The defense relied upon was that Maughon did not shoot at all; that when the decedent came out of the door the accused asked him who he was, taking hold of him with his left hand, and telling him to stop, for he was under arrest; that the decedent shoved him off the veranda, and struck him in the face with his fist, and knocked him to hig knees, "and, when he arose, his pistol being in his overcoat pocket, he attempted to get it, but while he was struggling with the decedent for the pistol he called to Elrod to come around where he was, and, as Elrod came around, he hollered, “Halt! halt!” and fired twice; that Elrod did not fire in the direction of the deceased, but up in the air; that the deceased then broke loose and ran away, and in a few seconds the third shot was fired in the direction in which the deceased ran. He denied the incriminatory statements made by the deceased, and denied that either he or Elrod had fired the fatal shot, and stated that the de
The issues, clear cut and simply stated, between the State and the accused, are these: Did Elrod, itnder the circumstances as proved by the State, fire the fatal shot? If he did so, Maughon was as guilty as he was, being present, aiding and abetting the unlawful act. On the other hand, did the brother of the deceased fire the fatal shot? These conflicting theories are supported by evidence. The question was one for-the jury to determine. They solved the problem in favor of the State, accepting the theory that Elrod fired the fatal shot under the order and command of Maughon; but mitigated, however, the theory of the State to the extent of believing that he was acting under a sudden heat of passion on account of the assault made upon him by the decedent, and so found him guilty pf voluntary manslaughter.
The law applicable to both the theories of the State and the accused was fairly and clearly presented to the jury in the charge of the court; and, unless there is merit in some of the special assignments of error, this court has no right to disturb the verdict. We will take up the special assignments of error in their order and consider them in the light of the evidence, which has been briefly, but substantially, stated.
The first ground of the amended motion presents the fact that since the conviction of the accused for the offense of voluntary manslaughter, Kelley Elrod, his codefendant, has been tried and acquitted; and it is insisted that as the State contended that the accused was guilty of murder because he was present, aiding and abetting Elrod to shoot the decedent, and since the verdict of the jury in the Elrod case proved the fact that neither Elrod nor Maughon fired the fatal shot that took the life of the deceased, but that the fatal shot was fired by some one else, a new trial should be granted to the accused in order that he might have the benefit of the verdict in favor of Elrod.
Both Maughon and Elrod were indicted as the actual perpetrators of the crime, the indictment containing only the one count, but under this one count it is well settled that either or both may have been convicted as principals in the first or second degree, if the evidence had so authorized; and they could have been convicted either of murder or manslaughter under this count. Collins v.
These decisions, and many others which we might cite, show that from a legal standpoint the conviction of the accused for voluntary manslaughter can be sustained, although the State
The case of Jackson v. State, 54 Ga. 439, is relied on by learned counsel for the plaintiff in error in support of his position that a new trial should be granted in order that Maughon may have the benefit of the acquittal of Elrod. The Jachson case does not support this contention. In that case Judge McCay, speaking for the court, gives as the reason' why Jackson, the principal in the second degree, ought to have a new trial on account of the grant of a new trial to the princijoal in the first degree, that the record of the conviction of the principal in the first degree had been used on the trial of the other case and may have injured the accused, and that, this record having been expunged bv setting the verdict aside, the principal in the. second degree ought to have a new trial without this evidence bearing against' him. In construing this decision the Supreme Court holds, in the Bruce case, supra, that the principle there announced did not conflict with the holding that the principal in the second degree may be tried and convicted of murder, although the principal in the first degree had been convicted of voluntary manslaughter only. And we say in this case that this principle does not conflict with the enunciation here made that where two are jointly indicted as principals in the first degree, and one is convicted of voluntary manslaughter, and subsequently the other is acquitted, this presents no reason why the ver■'dict.of conviction should be set aside and another trial granted. If
The first objection urged against this charge need not be considered, since the jury did not find the defendant guilty of voluntary manslaughter as principal in the second degree, but did find him guilty as the principal perpetrator of the crime of voluntary manslaughter, which they were fully authorized to do under the indictment. We clo not see, however, why the jury could not legally return a verdict in the second degree. While one cannot be convicted as an accessory before the fact to a charge of voluntary manslaughter, béeause the existence of an accessory presupposes premeditation and preparation, yet we do not see why one could not be convicted as principal in the second degree in the ofiense of voluntary manslaughter, for one can presently aid and abet a crime which may be committed on a sudden heat of passion, and without premeditation. There is quite a difference in this respect in the offense -of an accessory before the fact and that of a principal in the second degree.
The second objection made to this charge is fully answered in the first division of this opinion, where decisions are- cited in support of the proposition- that one indicted as the absolute actor and perpetrator of the crime could be convicted under such charge as principal in the second degree. The objection urged against the concrete application by the court of the general principles of law to the facts of this case, we think', is without merit. It will be remembered that the theory of the State was that Maughon was-guilty because he commanded Elrod to shoot at Cleghorn; that this; act made him a principal in the second degree at least; in other-words, that the crime actually committed by Elrod was imputed to Maughon as being committed by him through the agency of Elrod, and this made him equally guilty. It was the duty of the court to present this contention of the State to the jury, and in doing-so,
The following charge of the court on the subject of voluntary manslaughter is objected to: “If you believe, from the evidence, that the deceased, Cleghorn, made an assault, either with his- fist or otherwise, upon Maughon, or was attempting to get his pistol to assault him with it, and if you further believe that, smarting under this provocation — and acting under a sudden heat of passion provoked thereby, he, Maughon, ordered Elrod to shoot Cleghorn, and Elrod, acting in pursuance of this request, then and there shot ;and killed Cleghorn while he was fleeing from them, the killing, under these circumstances, would be voluntary manslaughter; and, if you believe this to be the truth of the case, you would be authorized to find the defendant Maughon guilty of voluntary manslaughter.” It is insisted that there is no evidence either on the part of the State or of the defendant to authorize a charge on voluntary manslaughter. The evidence for the State alone or for the defendant alone would probably not authorize a charge on the law of voluntary manslaughter; for if the first was the truth of
The remaining ground of the motion for a new trial is not verified, and is not insisted upon in the brief filed by counsel for plaintiff in error. We have given the case a very careful examination, and we find no error of law, and there is evidence in the record which supports the verdict of voluntary manslaughter.
Judgment affirmed,