7 S.E.2d 332 | Ga. Ct. App. | 1940
The evidence does not support the verdict. The court erred in charging on the law of conspiracy and in overruling the motion for new trial.
The record shows that before the trial of McCorkle, Tillman had been convicted of involuntary manslaughter in the commission of an unlawful act. The unlawful acts shown were the operation of the car while under the influence of whisky and driving on the left side of the road while meeting another car. If Tillman was driving the car at the time of the collision a verdict of guilty as to him was warranted. If he was not driving the car he was not in the commission of an unlawful act by merely riding in the car being driven by McCorkle. If McCorkle was driving at the time of the collision a verdict of guilty as against him was authorized by the evidence. There is no contention that the driving of the car was the joint act of both of the named defendants. Neither of the defendants was the owner of the car so that the act of the driver might be imputed to the one riding as a passenger in the car at the time, as was held *745
in Moreland v. State,
There is no evidence in this case to warrant any charge or to support any verdict based on a conspiracy. If Tillman was driving the car, and there was plenty of direct evidence to that effect, as well as the position of his body immediately after the collision, he and he alone was guilty. There was no joint enterprise between Tillman and McCorkle in the operation of the car at the time. Tillman drove the car from Claxton to the filling-station, according to the undisputed evidence. McCorkle got in the car there to ride to his home. This fact did not constitute their riding together a joint enterprise, nor did it make the person riding in the car a principal in the second degree, since he was not aiding or abetting the driver of the car. In Easterling v. State,
The court in the present case charged on the law of conspiracy, and error is assigned on such charge as being unsupported by any evidence. "In criminal law, conspiracy is a combination or agreement between two or more persons to do an unlawful act, and may be established by proof of acts and conduct, as well as by direct proof or by express agreement."Bolton v. State,
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.