127 Ga. 262 | Ga. | 1907
This case should not be confused with the proposition that an indictment for the greater will authorize a conviction for a less offense, where the averments in the indictment are sufficiently broad, as was held in Smith v. State, 126 Ga. 544. That is not the question.' We are confronted with a different proposition altogether. The defendant was on trial under an indictment which charged him and others with a criminal design to take the life of the person slain. Evidence was introduced tending to show that the defendant unlawfully shot at the person slain, with a pistol, and his fire was returned by the person assailed, and that at this instant one of the other defendants indicted, but not on trial, fired upon the deceased, inflicting the mortal wound. Under such evidence and under such indictment the court charged the jury as follows: “If you should believe from the evidence in this case that the defendant now on trial was not a principal, either in the first or second degree, under the rules that I have already given you in charge, and you should further believe from the evidence in the case that he acted independently and separately, and if you believe that he committed an assault upon the party who was killed, and that he committed that with the intent at the time he committed the assault, — with intent to kill with some deadly weapon, and that he intended to kill, then you may find him guilty of the offense of assault with intent to murder; but if that intent
We do not think this charge was authorized. The indictment •charged the defendant with a particular criminal act, to wit, the act which actually resulted in the death' of .the deceased, and in which there were other criminal participants. It would not be proper to put the defendant on trial for that particular offense and convict him of any offense based upon a separate and distinct or an entirely different act. For illustration, let us suppose that, with an intent to murder by the unlawful homicide of another, one makes a deadly assault upon such other in the morning and fails ■of his purpose. Let us suppose that the intending slayer should during the day have completely repented of his deadly purpose, yet in the afternoon should form another purpose to kill, and lie in wait and actually slay the person who had escaped unharmed in the -morning. Here is the effort upon two separate occasions to bring about the death of the same person, and yet in legal contemplation it could not have been two attempts to commit the same murder. There could be but one murder, and therefore the previous attempt could not be held to be an attempt to do the murder which was actually accomplished. If the ineffectual attempt to •commit the murder in the earlier part of the day is to be treated
In the ease of Davis v. State, 45 Ark. 464, it was held that “under an indictment for murder the accused may be convicted, of assault with intent to kill, provided the indictment contains-all the substantive allegations necessary to let in proof of the inferior crime, and the proof shows that the offense of which he was-convicted, and the one charged in the indictment, are the same.” In that case the trial judge charged the jury: “If you believe from the evidence that the defendant, in September, 1883, went 'to the office of the deceased in Garland county, Arkansas, and there assaulted him with a deadly weapon, a loaded gun, by pointing it at him and demanding money, and did then shoot at the deceased with said gun, with intent to kill him, but that the shot so-fired by the defendant missed the deceased, you will find the defendant guilty of an assault with intent to kill and murder, although you may find that the defendant, after firing such shot,, really and in good faith abandoned the conflict, and retreated to a-place of apparent safety, and there shot and killed the deceased,, in order to save his own life, or to protect himself from great bodily injury.” Upon review, the Supreme Court of that State-held: “Another limitation, upon the doctrine of convicting for a lower offense, upon an indictment charging a higher one of the same class, is the duty of the State to prove the identity of the two offenses. A conviction can not be had upon evidence of another offense of the same kind, committed on the same day, but not identical with it. Comm. v. Blood, 4 Gray, 31; Same v. Dean,. 109 Mass. 349. The charge of the court implies that there was evidence of two distinct assaults — one unsuccessful, the defendant having missed his aim; and that he then withdrew from the conflict and retired in good faith to a place of apparent security, whither he was pursued by Adams, and was there attacked.
A case may be easily supposed in which one person may be guilty of committing a murder by shooting, and another guilty of an assault with intent to murder by like means, both firing simultaneously upon the same person, and still with no such' concurrence •of act and intent as to render the one responsible for the act of the ■other. The homicide may involve the slaying of the same person, .and yet the offense of each be entirely separate and distinct. Let us suppose that two persons with no common intent, but each with a similar purpose to slay another, lie in wait on opposite sides of
There were other assignments in the motion for new trial, which will now be dealt with. Complaint is made that the judge charged the jury the law in reference to principal "in the first degree and principal in the second degree, and read in connection therewith that portion of § 42 of the Penal Code defining what constitutes constructive .presence. There was some evidence authorizing in
The foregoing discussion deals in substance with all of the assignments of error contained in the motion for new trial, and upon another trial the judge can so frame his charge as to avoid the errors which have been pointed out and adjust his instructions to the evidence as it may then appear, if it should be substantially different from what it was on the former trial.
Judgment reversed.