119 Ga. 437 | Ga. | 1904
Dan Amos and Wilborn Thornton were indicted for the murder of Sam Gordon. In one count they were both charged as principals, and in another count Thornton was charged as principal in the second degree. Upon the trial of Thornton it appeared that Amos, Thornton, Gordon, and others attended a dance at the house of one Wilson, in Chattahoochee county; and that, some time between ten and one o’clock of the night of the dance,” Thornton loaned Amos a pistol. Ben Gordon, a witness for the State, testified: “ I saw the defendant [Thornton] give Amos something. Amos came up to him and told him he wanted to get his rip-rap, meaning his pistol. Said Sam Gordon had been taking money away from him when they met, and if he took any more he was going to kill him. Thornton told him to take it and kill him if he took any more. He gave him his pistol.” It appeared that Dan Amos shot Sam Gordon next morning about seven o’clock, in an old field, about one hundred yards from Wilson’s house. Ben Gordon further testified: “When shooting took place Thornton and Amos were pretty close together, about five feet, talking. Dan told Sam he owed him a dime; he was standing, talking, and Sam was sitting down. Sam told him he didn’t owe him any dime; he said, ‘ Yes, you do.’ Sam says ‘ If I owe you a dime, I will pay your dime; and I am going to make some of you boys shoot me with these little guns you are carrying around here.’ Sam had no weapon in his hand, and done nothing to Amos when he shot him. Amos was standing
“ A person may be principal in an offense in two degrees. A principal in the first degree is the actor or absolute perpetrator of the crime. A principal in the second degree is he who is present, aiding and abetting the act to be done; which presence need not always be an actual, immediate standing by, within sight or hearing of the act; but there may be also a constructive presence, as when one commits a robbery, or murder, or other crime, and another keeps watch or guard at some convenient distance.” Penal Code, § 42. Thornton was not a principal in the first degree, as he was not the actor or absolute perpetrator of the crime. Was he, under the evidence, guilty as principal in the second degree ? Under the evidence for the State, he Was present at the commission of the crime; but mere presence is not sufficient to render one an aider and abetter. Lowery v. State, 72 Ga. 649. Though it has been held that if special circumstances or relations create a duty to interfere; mere inactive presence may amount to a criminal participation. 2 Am. & Eng. Ene. L. 33. And it has also been held that presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. Ib. Eor one to be guilty as principal in the second degree, it is essential that he share in the criminal intent of the principal in the first degree; the same criminal intent must exist in the minds of both. Thus, where A told B, who was going to a house fifty yards distant, to get a pistol in a certain place in the house and shoot C, who was in the house, and promised B a reward for so doing, and B did as A directed, while A remained at the place where these instructions were given, A was a principal in the second degree. Collins v. State, 88 Ga. 347. And where A, B, and C were in a room together, and A, having furnished B with a knife, told him to stab C, and B then and there did so, A was principal in the second degree to the crime thus committed. Washington v. State, 68 Ga. 570. In these cases the aider and abetter had the same criminal intent as the actual perpetrator of the crime. In Brown v. State, 28 Ga. 200, it was held: “Presence and participation in the act of killing a human being is not
If Thornton had given his pistol to Amos, with instructions or advice to kill Sam Gordon with it, and Amos had done so when Thornton was present, and nothing more had appeared, then Thornton would have been guilty as principal in the second degree. The evidence for the State shows, however, that when Thornton loaned'his pistol to Amos he told, or advised, him to kill Gordon with it, if he should again rob Amos at cards. His advice or instruction to kill Gordon was, therefore, conditional, or dependent upon the event that Gordon should again rob Amos at cards. Even granting that there was enough in the evidence to • authorize the jury to infer that Amos and Gordon had, subsequently to the loan of the pistol, engaged in playing cards, we think there is nothing in the evidence from which the jury could fairly infer that Gordon had robbed Amos in such a game, or that the killing was in consequence of such robbery. Of course we do not use the words “ robbed ” and “ robbery ” here in their limited legal sense, but as including cheating in a game of cards played for money. The evidence shows that Amos stated to Gordon that he owed him a dime. This Gordon denied, but paid it, saying at the time that he would make some of them shoot him; whereupon Amos immediately shot and killed him. From these facts we do not think it can be successfully contended that the evidence shows that, at the time of the homicide, there was in the-mind of Thornton the same criminal intent and felonious design that was in the mind of Amos. The common intent and purpose in the minds of both, at the time that Thornton furnished Amos with the pistol, was that' Amos should kill Gordon if the latter should again rob him at cards. There is nothing in the evidence to show, or to authorize the jury in finding, that Thom
Judgment reversed.