17 Ga. 356 | Ga. | 1855
By the Court.
delivering the opinion.
The assault and battery is not denied. Tompkins pleads that he was justified in striking Crockett. There is some conflict'of testimony as to what transpired when the, rencontre took place; and the doubt consequently is, who was culpable for forcing the fight ? Now if it could have been shown that there was a preconcerted plan — a common enterprise set on foot by Crockett and his crowd, to beat Tompkins, is not the proof admissible, as calculated to reflect light on the conduct of Crockett, when he overtook Tompkins ?
But a portion of the proof connects itself still closer with the transaction. When Crockett dismounted from the wagon,. McDaniel, who was riding with him, jumped out also and pulled off his coat; and Phillips, another one of the associates, held the reins of the horse. Do not these demonstrations, connected with the previous purpose, make McDaniel and Phillips parties to the combat ? Were they not actually present, aiding and abetting ?. And may we not — nay, must we not, suppose that Tompkins acted in the light of these surrounding circumstances, indicating the peril which beset him ?
It is not for us to decide, neither was it for the Court below, how far the connection between Crockett and the other parties is proved. This could only be done by their acts and declarations made in the presence of Crockett and in furtherance of the scheme which they had on foot. There was enough offered to make out such a prima facie case of concert and joint action as to make it proper to submit the whole to the Jury.
The general rule is this: in cases of crime perpetrated by several persons, when once the combination is established, the act or declaration of one accomplice in the prosecution of the enterprise, is considered the act of all, and is evidence against all. (Arch. Crim. Law, 6th 3d. note, by Waterman, p. 125-.’3.)
Did Wingard and Ham vs. The State, sanction this proceeding ? Two propositions were embraced in that decision. First. That playing and betting with cards, at any one of the games designated in the 11th section of the 10th division of the Penal Code, will constitute an offence; and that for every such game, unconnected with the other, an indictment will lie; yet, when all are perpetrated by the same person at the same time, they constitute but one offence. And Secondly. That the proof of guilt was not confined to the day mentioned in the indictment; but may extend to any period previous to the finding of the bill and within the statutory limit for prosecuting the offence.
This judgment, we are clear, cannot be sustained.
As a' new trial will be awarded, we forbear to express any opinion upon the evidence.