168 Ga. 598 | Ga. | 1929
Malcolm Morrow, Homer Simpson, E. G. Waller, and Mamie Lee Todd were jointly indicted by the grand jury of Camden County for the murder of C. A. Perry, alleged to have been committed on February 23, 1928. It appears from the record that Malcolm Morrow, E. G. Waller, and Mamie Lee Todd had frequently discussed the ease with which the robbery of the bank in the little town of Kingsland, in Camden County, could be
Considerable time was spent in examining the property until it was about dusk. It was so late that all parties agreed that they would return to Kingsland. .Perry- was sitting in the Dodge car when Morrow, drawing and aiming his pistol, advanced upon Perry and told -him to get out of the car, that he wanted to talk to him. Perry had once been taken out by Ku Klux, supposedly, and, drawing his knife, he jumped from the car and advanced upon Morrow despite the pistol pointed in his face. Morrow fired, the first bullet striking Perry in the leg. Perry had remarked as he leaped from the car that he understood they were going to kill him. He continued to advance and the next discharge of Morrow’s
Perry was carried about forty feet from the roadway and thrown face downward in' the blinding rain; and the Dodge ear being out of commission, Morrow and Simpson got in the Chrysler roadster, and they again started to Jacksonville. When within a few miles of Jacksonville the Chrysler ear ran into a telephone pole, and Morrow received serious injuries. The trio proceeded to Mrs. Todd’s house in Jacksonville in the car of a passer-by, where a physician was summoned for Morrow, and he was taken at once to the hospital at Lakeland, Florida, where he was subsequently arrested. As Waller, Morrow, and Simpson were driving away, leaving Perry on the side of the road in the rain, W. S. Yan Daly, who was on his way from Fernandina to Jacksonville, came up, stopped near the disabled Dodge car, and inquired if anybody was under the car or hurt. He was informed that no one was hurt, and the Chrysler ear containing Waller, Simpson, and Morrow rapidly drove away. After their departure Yan Daly again in
Earely, if ever, has a case of conspiracy been more clearly proved by direct and circumstantial evidence, and supported by the statement of the defendant, than in this case. The defense to the crime of murder rests upon the proposition that the confessed conspiracy to rob the bank of Kingsland did not include any agreement to kill the cashier. The court is considering together and reviewing the trial of both Simpson and Morrow. Though these defendants were separately tried and the verdicts were returned by separate juries, the defense in both cases is the same. In Morrow’s ease the point as to whether the court should have allowed other questions to be propounded to the jurors than those propounded upon the voir dire is raised, and no such request appears to have been made in Simpson’s case. The admissibility of the testimony of Acosta was not challenged in Morrow’s case, while in the case now before us exception is taken to the fact that the court permitted Acosta to testify to the statement set forth in the fourth ground of the motion for a new trial. The defendant objected to Acosta’s testimony for the following reasons: "(a) No proper foundation had been laid by the State for the introduction of a dying declaration. (b) In order for a dying declaration to be admissible,
Eegardless of the preliminary examination of the witness, and of the fact that his testimony did not disclose that the declarant himself said that he was in a dying condition and that his statement was made in the consciousness that he was in extremis, we do not think that the court erred in admitting the testimony to which objection is taken. The court had already heard the testimony of the physician as to the nature of the wound. It had also heard the testimony of Yan Daly, to the effect that the deceased was so thoroughly conscious of his condition, not only that he must die because his entrails were shot to pieces, but that death might be extremely imminent for the reason that he told Yan Daly, lying there in the cold February rain, in what one witness described as an awfully stormy night, that he would not risk even being lifted into the shelter of an automobile, for fear that he would “pass out” before he could give Yan Daly the information which he wanted communicated to the authorities. The purpose of a preliminary examination by the court into the admissibility of alleged dying declarations is solely to enable the court to determine whether or not such alleged declarations are prima facie admissible. Where it plainly appears, as in the present instance, that statements have been made which tend to prove that the declarant is in fact dying
The fifth ground complains of the admission of the testimony of W. S. Van Daly. The objection was in these words: “May it please your honor, before proceeding to cross-examine this witness further, we desire to move the court to rule out all of the testimony of Mr. Van Daly with reference to statements made to him by the deceased which are introduced by the State as dying declarations, for the reason that in order for a dying declaration to be admissible the person must be in the article of death and conscious of his condition, and the State has failed to prove that he was in the article of death and conscious of his condition.” The court did not err in admitting the testimony of this witness. The dying man could not have conveyed to a listener a more vivid portrayal of his consciousness of his impending death than the expression of his fear that he would die even if he allowed himself to be lifted from the beating of the pitiless rain and placed under the
The charge to which exception is taken in the sixth ground of the motion for a new trial is controlled by the ruling of the court this day in Morrow v. State, ante.
In the seventh ground of the motion error is assigned upon a charge of the court to the effect that if the jury believed that the defendant and another or others formed a common intent and purpose to commit a crime as charged in this indictment, and should believe that in pursuance of such common intent such crime was actually committed, and should further believe that this defendant either committed the crime himself or was present aiding or abetting in the crime at the time it was committed, it would be their duty to convict him. Further, "If you find there was a conspiracy and that the defendant participated in, the common intent and purpose to do what was done, and that which was done is that which is alleged in the indictment, then what was done by another person named in the indictment in pursuance of such common intent and .purpose would be just as binding upon ‘him as if he did the act himself.” In addition it is complained that the court charged in effect that whatever was done in pursuance of the conspiracy would be just as binding upon the defendant as if he himself did it, and it would be quite immaterial except that the jury might consider that feature in returning their verdict. There is nothing in the exception which would warrant a reversal of the judgment overruling the motion for a new trial. It is true that the indictment charges murder in that the the four named defendants are accused of shooting C. A. Perry to death with a pistol, and, as contended by the defendants, the original conspiracy as confessedly proved and admitted did not include the killing of the cashier; but a conspiracy to commit robbery always includes tacit consent to kill the person to be robbed if necessary 'to accomplish the robbery. It is in the blood of every man to resist being forcibly despoiled of
For the reasons already stated, the court did not err in the instruction of which complaint is made in the eighth ground of the motion for a new trial. The charge complained of was adjusted to the facts of the ease, and was not misleading. It was not necessary for the court to call to the attention of a jury of ordinary intelligence the fact that the killing of Perry occurred six or seven miles from the bank, for it is very plain from the record that the killing arose while the conspirators were proceeding in their plan to rob the bank by taking Perry back in terror to the bank and forcibly compelling him to aid them in entering the vault and obtaining the money. The conspiracjr was still afoot; and it had reached a crisis when Morrow, in the presence and with the common intent of his colleagues, aimed his pistol at Perry and ordered him to “stick ’em up.” In that act the defendant became the ag
In the ninth ground of the motion for a new trial complaint is again made that the court committed error in failing to charge on the question of whether or not under all the facts and circumstances the killing of Perry was murder or justifiable homicide. For the reasons just stated, this was not error under the facts of this case. In the tenth ground of the motion error is assigned because the court failed to charge the jury section 63 of the Penal Code of 1910. This ground has been dealt with in the case of Morrow v. State, supra, in which the same assignment of error is presented. Likewise the same exception was made, and has been ruled in Morrow's case, as is contained in the eleventh ground of the motion.
■Judgment affirmed.