*1 284 disqualified separated legal vote can from
vоtes, exclude cast in the from the canvass votes Voting Kemp Pelham declare the successful can- Precinct, and for Superintendent didate for office of Schools Mitchell County. provision primary only law for elec- contesting our (Ga. Primary
tion is L. pp. 432-439; Recount Law 1941, Ann. et duty imposed by 34-3223 and no law on the seq.), County Democratic Executive to recanvass or recount Committee in a entitle primary election. “To one to' writ votes appear petition it must from the therefor mandamus, applicant performed legal right particular has a clear to have Martin, which he seeks to enforсed.” v. Trussell 207 (63 City De- 361), cited; Ga. 556 S. 2d and cases 553, E. (104 catur 117). v. 214 Fountain, Compare Ga. 225 S. E. 2d Colquitt County Clark v. Democratic 158 Committee, Executive Ga. 642
Judgments reversed Nos. 20971 casеs and 20972. case No. 20973. All Justices concur. affirmed
20880. WHITUS v. THE STATE. Argued May September Rehearing 9, 1960 Decided 12, 1960 September 21 6, 1960.
denied October P. Walter B. Jones, Reynolds, plaintiff W. еrror. O’Neal, Eugene Attorney- Maston Solicitor-General, Cook, Rubye G. General, Assistant Jackson, Attorney-Generay, contra. Whitus, charging Justice. Phil under an indictment Almаnd, and three others with murder shooting death with was on his trial court and a before the sentenced death His electrocution. general special grounds bеing motion for a trial on the new order denied, deny- seeks this writ of error review of the ing a new trial. general grounds relies here on the solely trial,
motion for evidence con- new the contention *2 clusively the thе shows that deceased was shot and killed that, Leon' shows codefendant, Davis, and that aiding abetting Davis present, and was prin- killing Glenn, the of he could found cipal degree because the evidence demanded finding participation voluntary, that the crime his was not but as the result of fear at from threats and mеnaces directed him by provisions and, therefore, Davis under the of Code 26-402, his conviction was unauthorized. § the that rightly
Counsel for State the shows concedes that perpetrator appears Davis was the actual of the offense. It without contradiction present, was gave Davis in abetting killing Glenn. court сharge and instructed jury 26-402, that, them even jury abetted, defendant had or as- aided, killing participation sisted Glenn, but that his through fear the result of of immediate menaсes to his authorized life would not be question to convict sole him. The decision is: Does the finding evidence authorize the the defend- voluntary? ant’s in the killing was summary A briеf evidence, of the defendant’s consisting written testimony codefendant, statement and the of Daniels, a as to the killing is as follows: midnight Shortly after on November 15, 1959, Glеnn investigate left by cursing his home a disturbance and loud talking public on front his house. He found the four driving had been defendants. automobile in All of drinking ditch. the defendants had bеen intoxi- cants. The defendant knew Whitus
them out of car ditch. Glenn would, said home, went to his his .22 calibre and returned to the with scene automobile he discovered that defend- his He, onto the road. getting car ants had succeeded caught up road, them down the and when he Glenn, followed causing the automobile, suddenly braked them, his Davis. rear of the driven car of Glenn’s to strike a short distance the home The defendants then drove While them at distance. following Leon Davis with Glenn still house, backyard of Davis’ other defendants went to the down the road from the house and went procured rifle yard Davis returned to Shortly thereafter, meеt Glenn. pistol in his arm and Glenn’s rifle under his the other direction of two shots fired all of joined Davis, and him. called them to come with car in a ditch. they found them went to the road where car out help him the defendants to Glenn asked pistol Davis returned ditch and back to home. car from removing him. After conversation with the hit him on his head Davis cursed Glenn ditch, di- again. At then took Glenn’s rifle barrel. Davis *3 un- put Glenn, defendants rection of got then in Davis’ car and in his car. The defendants consciоus, in are then said: “We four miles. Davis drove about right.” just well it together do thing and we as you do: “Would leave what defendant your front of house?” your him out house my him in front reрlied: “I wouldn’t leave The house.” my get him out from front house. I’d keep now to kill son of bitch said: “I’m back and us all four of talks he could talking, him from All of the here a man.” wаlking around free hanged he’ll be car where driving returned defendants with Davis unconscious. Davis car and still they found Glenn in the defendant to pistol in hand directed the Glenn’s point steer, to a Davis would car, which push car and the Glenn Glenn car was signal hand. with his The Davis would where area a wooded four miles and then off pushed ordered Davis, no one lived. where fired the shots. Davis the motor while defendants to race fired one shot into the Glenn car went back to head. body' fеll out of car and Davis fired three shots into head. All of the defendants into Davis’ car, remarking: defendant, Whitus, go “Now we can home nothing like ain’t happened.” All of the went to the back of Whitus’ house liquor had hid their except liquor. Daniels drank the
“A who aids and assists the commission of a crime inor taken it protect mеasures to conceal criminal, not from criminality relieved accomplice as an on account of fear excited menaces, danger unless the be to life or nor present unless that immediate above touching announced fear under per the influence which jury is 527(7) committed.” Burns v. State, 89 Ga. evidence in this participa case as to the defendant’s
tion in the commission of the crime and efforts to conceal does warrant not conclusion that was because put threats or menaces, which the defendant under fear of immediate'danger of his life or a member. The statement, made, as testified to Daniels, the codefend ant, after Davis in the brutal killing and concealment go crime, that “Now we can like nothing hap ain’t home pened,” sounds more like one who job was self-satisfied with a well done one acting who was under menacing and threatening domination of another. Under the evidence jury' was authorized find that crime was voluntary, of murder principal degree. supports verdict, and it was error to
deny the defendant’s motion for a new trial. All thе concur, except Justices Duck- affirmed. worth, C. P. J., Head, J., Quillian, J., who dissent. *4 dissenting. recognition Chief Justice, In full
Duckworth, parties the established rule of holds law that to criminal a conspiracy оr enterprise, guilty who commit no act, equally overt with those who commit the acts, am, overt I nevertheless, simply to find any unable either or basis law common reason for holding this of murder where all any excludes possibility conspiracy in- among four, who killing. who person did eluded or other had no robbery, crime, and indеed planned had no theft them. expect went to see the deceased before he reason feelings or dealings, this defendant had no words Therеafter, harm Why deceased. should want to toward the the'de- complete is a of even sus- positively ceased? There absence a slayer aefi picion every motive. The committed criminal caused death. no from this accused He needed both of which pushing racing motor, gun were done аt while held the with which his command later uncon- already shot the deceased who had been knocked say enough scious killer. To that this obey endanger person fear that a refusal to reasonable life, ignore realities human nature. act of his No cowardly deceased. Even if harmed hair he was in obeying murderer, gun, foolish this would not held guilt of criminal intent. show desire or should Human life taken by not be the State with such total lack of evidence either as this record intent shows. Unless is saved clemency Board, of the Pardon and Parole his life will be forfeited for a crime he never committed and cause for had no wanting every committed. If decision law, fixes the stands electrocuted if a murder is com- mitted someone of his associates even he had no knowledge that it done.