77 Ga. 155 | Ga. | 1887
Spencer and Peck, both negro men, were tried for assaulting McClung, a white man, with intent to murder him by shooting. They were convicted of the minor offense of shooting at him (Code, §4370), and the court refused to grant them a new trial.
This shooting on the part of the negroes was clearly justifiable. The superintendent was the aggressor. Suppose the position of the parties reversed, and who could have any doubt?
Peck did no hostile act after McClung turned to retire'; neither did he go back to the tree, or have any communication with Spencer before the latter fired. The interval was very short between the shooting in which all three participated, and that done by Spencer alone. No doubt the latter was still smarting from the wound in his face. At the time of this single shot, McClung had just left his position, turned round, and was walking away from the negroes towards his own house. The effect of this discharge was to pepper him lightly in the back with bird-shot.
The evidence, fairly construed, furnishes no ground for any theory of a common enterprise or purpose which was not defensive in its nature and design, or which embraced any attack upon the prosecutor after he had ceased to face to the front and occupy an offensive attitude; it was therefore error to charge the jury as to the responsibility incurred by persons who participate in a common enterprise or purpose to make an unlawful attack.
A common purpose, formed suddenly in an emergency, to defend with even too much force and violence, will not render one participant responsible for offensive acts done by the other alone after defence has been accomplished, and whilst the original assailant is retreating from the scene of conflict.
Our conclusion is, that Peck certainly ought to have been acquitted; and that whether Spencer was guilty or not, both ought to have been tried without embarrassing the case with any instructions to the jury touching conspiracy, or a combination for unlawful attack. How much harm this erroneous charge may have done, even to Spencer, we know not. Any suggestion of conspiracy, where no suggestion of the kind is appropriate, tends to prejudice the accused. If the evidence were such as to
Judgment reversed.