*1 v. THE 53520. FOSTER STATE.
Smith, Judge. in pro appeal by The issues this se Foster were in our decision in the of the same adjudicated appeal case by attorney. Foster’s Foster Ga. App. 805. therefore, appeal, This is dismissed. Bell, J., J., dismissed. C.
Appeal McMurray, Argued February 28, 1977 April 14, 1977. Foster,
James W. se. pro Slaton, Drolet, R. Lewis J. Attorney, Joseph Stein, Donald J. Assistant District Attorneys, appellee. for
53615. SMITH et v. THE al. STATE. Judge. Banke, wife,
Hubert and Montez husband and jointly indicted for murder. The found Hubert Smith and Montez Smith guilty of involuntary Defendants appeal. Held:
1. The evidence shows that defendants were at a dance when they Hyde, received information that Charles wife, the brother of Hubert Smith’s former had gone their in home an intoxicated condition and picked up two minor Smith aby previous children of Montez marriage and the adult married of Hubert daughter (the neice of Charles who was Hyde), baby-sitting for them. The defendants drove to mobile home Hyde’s where in they waiting saw his wife and infant son outside a car. Hyde’s She was asked of whereabouts responded that he in the trailer. Montez Smith then was her, "Well, told your orphan son is to be an because going we’re kill going that son of a bitch.” The defendants time, stood for a outside short on the cursing, beating mobile home threats who made no shouting response. window, Montez Smith then broke a reached door, opened and entered the mobile home followed Hubert Smith. by There were sounds of a beating or fight taking place by followed Hubert Smith gunshot. *2 came to the door of the mobile home and stated that he had shot in a In struggle Hyde’s over rifle. addition to the wound, gunshot death, which was the cause of primary Hyde suffered bruises and lacerations.
2. As to Hubert the evidence is sufficient to the verdict. There was no error in denying defendant Hubert Smith’s motion for new trial. See (1) (232 355) State, 141 Cohran v. SE2d (1977).
3. The evidence is uncontradicted that Hubert Smith fired the fatal shot. Since Montez Smith did not commit homicide, her culpability would only arise as a party or co-conspirator to the "Every crime. person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of (a). § crime.” Code 26-801 (Emphasis The supplied.) the crime committed was that of voluntary manslaughter. Was she a co-conspirator? When individuals associate themselves together to do an act, unlawful any act done in pursuance of that association, by any one of those individuals to the conspiracy, would, in legal contemplation, be the act of each of them. Where a conspiracy shown, is as it may well have been in case, this the act of one becomes the act of all and each is as fully responsible for the act of the other in out carrying the common if purpose, she, herself, had committed the act. The jury found the act committed was that of voluntary manslaughter, whereas convicted of involuntary Thus, it necessarily follows that the jury found Montez Smith guilty of a crime that it also determined was not committed.
Not only is the verdict as to Montez Smith inconsistent with the verdict Hubert, pertaining it is also repugnant to the evidence. Montez made a very clear announcement immediately prior the trailer Hyde.
that she and her husband intended to kill There is no indication that she absolutely was engaged any conduct which could through she have unintentionally (Ga. § Hyde’s caused death. See Code Ann. 26-1103 L. 1276). 1968, 1249, pp. Accordingly, the verdict as to Montez Smith is reversed.
In a case where there is more party than one and the find properly homicide, various degrees better procedure would be for the trial judge carefully instruct as to principles which homicide the conspiracy parties to crime would and would not apply.
4. "Where an objection
testimony
is sustained to
sought
to be elicited from a
on direct
party’s witness
examination,
and the trial court is not informed as to the
testimony expected,
ruling of the trial court will not be
(3) (162
Jarriel,
reversed.” Anderson v.
Submitted March Gault, Richard S. for appellants. Holcomb,
C. B. Mills, III, Frank C. Attorney, Assistant District Attorney, for appellee. Judge, dissenting.
McMurray, Hubert and wife, Montez husband and jointly indicted for murder. The jury found Hubert Smith guilty of voluntary and manslaughter Montez Smith of guilty involuntary manslaughter. On appeal, majority hold the verdict to be inconsistent in that the state presented a case of intentional homicide and the wife as a co-conspirator was either as as her equally husband or not guilty, they reverse as to the defendant Montez since not guilty of murder and I To this do not agree. trying that the defendants were
The evidence shows children after defendant Montez Smith’s to locate minor deceased, had taken them out with Hyde, Charles at the The defendants arrived late at baby-sitter night. high speed at a rate Hyde, traveling mobile home home and on the mobile cursing, beating stood outside made no Montez Hyde response. threats to who shouting in window, opened a reached Smith then broke her door, by and entered the mobile home followed a husband, beating Hubert Smith. There were sounds of or a Hubert Smith fight taking place by gunshot. followed that he had came to the door of the mobile home and stated killing, shot He did not admit it was an intentional Hyde. in the over a Hyde struggle but testified that was shot in my opinion rifle. The evidence is sufficient I both verdicts. find in the denial of defendants’ no error State, 141 joint motion for new trial. See Cohran v. (1) (232 355), SE2d and cases cited therein. The reverse as to Montez Smith. majority in purpose Montez Smith contends that her sole the home of was to find her children. The to believe jury was authorized the evidence by presented that she entered with the intent to commit an unlawful act other I find supra. than Cohran no felony. in error her motion for a directed verdict of denying (a). §§ acquittal. 26-801, See Code 26-802 and 26-1103 If I had been on the I with the jury might agreed majority that she was her husband. equally guilty as window, The evidence shows she broke the and entered (mobile home) premises of the deceased. This was trespass criminal or have amounted burglary; to murder or or voluntary manslaughter involuntary as to her. to a response The foreman that, question by jury] the trial stated "we judge [the *4 from the thought completely she was affair withdrawing and involuntary therefore we found her of jury] guilty [the In the could have found manslaughter.” my opinion jury murder, her of guilty voluntary manslaughter, could have been involuntary manslaughter or she acquitted. involuntary manslaughter guilty As to (Code § of criminal a trespass, which is misdemeanor 814 the and
26-1503). jury to override has no right This court (157 State, 43 95 App. v. Roberts findings. its set aside (1), State, supra. App. 141 Ga. v. 883); Cohran SE such misdemeanors on charged also judge The trial another, loaded or whether at pistol or gun a pointing as the husband to apply also course, this would Of unloaded. manslaughter, voluntary of guilty but he was him. He also to apply did not § 26-2908 hence, Code conduct, and of reckless as to § 26-2910 on Code charged conduct of reckless guilty been course, may the wife without the circumstances under this trailer in entering deceased, and yet the harming or killing of intention any simple to § 26-1301 as Code charged died. He also he assault simple of have been and she could assault jury In the giving misdemeanor. is also a which assault, simple and reckless conduct as to instructions the trespass of criminal arise out both of these on assault The charge the circumstances. under trailer incriminatory or the admission from comes probably assaulted that the wife stating by the husband statement home. in the mobile deceased the I verdict, call the inconsistency of the possible As to (1) State, Ga. 669 v. cases as Allen to such attention (139 tried and jointly 415), persons where two SE as to one to murder a verdict as returned jury ” " in this also to the other. See 'manslaughter’ (4) 10 Ga. of Register connection the case as to (74 an instruction without 429), jury where a even SE of a verdict returned involuntary manslaughter that court held and this manslaughter, involuntary of grades him the higher of thereby acquitted (murder manslaughter), voluntary homicide accept it refused court erred when lower them and instructed verdict involuntary there had That find a different verdict. back and go is, that manslaughter, involuntary on charge requested and the court manslaughter, degrees the different involuntary on instructions give any refused a guilty returned Thereupon, that case was manslaughter, verdict of reversed. (Code 2-201; § Const. Ann.
Under our Constitution *5 1945), in all criminal cases is the judge of both the facts, law and the and the evidence here is sufficient verdict. Nor is the evidence necessarily same as to both determined, defendants as the so I would not set aside the jury verdict.
I therefore respectfully dissent.
I am authorized to state that Judge joins this dissent.
54075. GOSSETT v. THE STATE.
Bell, Chief Judge.
Defendant was convicted of a criminal attempt commit burglary and of possession of a tool commonly used in the commission of the crime of burglary. Held:
1. The evidence even though circumstantial was sufficient to authorize the conviction and it was not error to deny the motion for directed verdict of acquittal.
2. The court charged the in an isolated portion of the charge: "The defendant by plea his of guilty plead has not guilty to both of these counts.” No juror been misled or confused and no prejudice could flow from this palpable "slip of the tongue.” Elsewhere in the charge the jury was clearly instructed that the defendant had pleaded not guilty; and on the concepts of reasonable doubt and presumption of innocence. No reversible error appears.
3. The enumeration concerning admission in evidence of certain paint scrapings has no merit. Judgment McMurray affirmed.
Argued May 24, 1977 July 13, 1977. McAllister, Roberts, for McAllister & J. Dunham appellant. Ison, Wimbish,
William H. Jack T. Attorney, Jr., Attorney, appellee. Assistant District for