135 Ga. 311 | Ga. | 1910
1. On the trial of Paul Eeeves, jointly indicted with Will Bowers, for the alleged murder of‘Burrell Fav.or, the court instructed the jury as follows: “If there was a common design and purpose existing-between persons to do an unlawful act, any one of such persons would be responsible for any act done by another member in furtherance of this common purpose, as well as for all the consequences which would naturally or necessarily result from any act done by any member of the party in pursuance of the common unlawful enterprise. So, you look to the evidence in this ease. Was there a common intent, a common purpose, existing- between Will Bowers and Paul Eeeves to kill Solicitor Dix? Look at the evidence to see whether or not that is true. The defendant insists it is not true. If you believe from the evidence . . that it was the common purpose, shared in by both of them, by Will Bowers and the defendant on trial, Paul Eeeves, to kill Solicitor Dix — that they both shared in the felonious design and purpose to kill Solicitor Dix, and that Will Bowers, in pursuance of-such-common purpose, while endeavoring to shoot and kill Solicitor Dix, shot and killed Burrell Favor, and you further find that the defendant, Paul Eeeves, .was present, and in pursuance of a common purpose and design to do so, shared by himself and Will Bowers, was aiding Will Bowers in seeking- to kill and murder Solicitor Dix, and under such circumstances Will Bowers -shot and killed Burrell Favor when attempting to shoot and kill .Solicitor Dix, though not intending- to kill Burrell Favor, and you find that Will Bowers is guilty of murder in killing Bufrell Favor, then the defendant on trial . . , would be guilty of murder as principal in the second degree, and you should so find, if you believe these facts to exist.” Held, (a) that such instruction correctly-stated a sound legal proposition (Handley v. State, 115 Ga. 584 (41 S. E. 992) ; Jennings v. Com., 16 S. W. 348 (13 Ky. L. R. 79) ; Wharton on Homicide (3d ed. Bowlby), §§ 418, 425, 427, 428, 429); (i) that it was applicable to the evidence submitted by the State; and (c) that it did not express or intimate an opinion of the court that a common design existed between Bowers and Eeeves to kill Dix, and that Bowers in furtherance of such design, shared in by Beeves, while attempting to execute it, shot and killed Fayor instead of Dix, and that Be'eves was present, aiding and abetting Bowers in sp doing.
2. There was no merit in the ground of the motion for a new trial based on alleged newly discovered evidence for the same reasons as stated in Bowers v. State, ante, 310 (69 S. E. 536), headnote 1.
3. The verdict was supported by the evidence, and the court did not err in refusing to grant a new trial.
Judgment affirmed.