184 Ga. 674 | Ga. | 1937
Robert Wortham was indicted jointly with Gilbert Evans and Mose Evans for the murder of Otto Wright by a shot from a gun. Upon a severance of the defendants, Wortham alone was tried and convicted, with a recommendation to mercy. He excepted to the refusal of a new trial on the general and on special grounds. Under the undisputed evidence, the actual shot was not fired by Wortham, but there was evidence indicating that it was fired by Gilbert Evans, who ivas shown to have held the gun just previously. The deceased was present merely as a bystander, coming from a near-by church for a drink of water, did nothing to justify or provoke any assault, and there was no testimony which would have authorized a verdict of either voluntary or involuntary manslaughter. The State contends, that, even though Wortham did not fire the fatal shot, the intent of the person firing would be imputed to him and he was guilty of the murder, because the homicide took place in the execution of a conspiracy between Wortham and the two Evans brothers to engage in the unlawful enterprise of “cleaning out” or damaging the drink-stand of Jack Johnson, where the killing occurred. According to the uncontroverted testimony, the three defendants jointly indicted rode out together in an old automobile at about 5 o’clock on a Sunday afternoon. In his statement to the jury Wortham said that he had been staying at the tenant-place of Gilbert Evans; that the wife of Mose Evans drew on her husband a shotgun, belonging to Gilbert Evans; that after Wortham took it away from her, and put it under a mattress in the house of Gilbert Evans, Evans took it and put it in the automobile, which belonged to Gilbert Evans. As to the events following, the testimony shows that the three defendants, driving together in the car, stopped, about 5 o’clock in the afternoon, at the home of an insurance agent, where Gilbert Evans paid a premium and Wortham took out a small policy. The three then stopped at the place of business of Denman, about 150 yards from the drink-stand of Jack Johnson. Denman saw “something in the back seat . . covered up with a canvas,” but could not tell what it was. Wortham 'was introduced to Denman by a different name. Gilbert
Over the objection of the defendant Wortham, Mrs. Lillian Hicks was permitted to testify as to a statement made at her home on this occasion by Gilbert Evans to her, but outside of the immediate presence of Wortham. This was that Gilbert Evans “ couldn’t see [Jack Johnson], that he had it in for him, that they give him a dirty deal, and Jack didn’t like him; . . that they had a fight over there, and some of them got bloody and wanted to go in and wash,-and he wouldn’t let them go in; he put somebody out of the back window and called the law, and the law tried to arrest them; he said- he come over there, but didn’t arrest them, and he said they wouldn’t arrest them. . . He said he would get even with him, Jack Johnson.” As to the actual occurrence of the trouble, one of the State’s witnesses, who was present on the occasion referred to by Mrs. Hicks and in the alleged statement, testified that Johnson then assisted Evans, and “there had not been any trouble between Jack Johnson and Gilbert Evans and Mose Evans.”
The uncontradicted testimony shows, that, after driving from the Hicks home, the three defendants stopped their car near the drink-stand of Jack Johnson. Wortham, who was under the influence of liquor, told those in charge that his name was Bob Hammond (although he denied this in his statement to the jury), ordered and drank a can of ale, and asked particularly as to just what time of night Johnson would be back. He requested that the ale be charged to Johnson, and, upon refusal, paid for it. Mose Evans then came in with a knife in his hand, cursing, and, upon being requested by those in charge not to create a dis
In the special grounds, Wortham, excepts to the court’s failure, on written request, to charge the jury on the law of voluntary and involuntary manslaughter, under testimony quoted in the ground. Also, to the admission of the testimony, above quoted, of Mrs. Lillian Hicks, as to the statement by Gilbert Evans to her just before the homicide, with regard to his feeling toward Jack Johnson and his intention to “get even with” Johnson, over the objection that this statement was made out of the presence of Wortham. The defendant further excepts to the following instruction: “The existence or non-existence of a conspiracy may be proved by acts and'conduct, as well as by express agreement. In other words, in order to make out a conspiracy, it is not necessary to prove that there was an express agreement. If the State has shown beyond a reasonable doubt, by proof of acts and conduct, or by circumstantial evidence or any kind of evidence admitted before you, that there was a conspiracy or common purpose on the part of these defendants to do an unlawful act, or any two of them, then of course, if you believe that, the conspiracy would be established.” The ground of the exception is that the italicized language, taken with the rest of the charge, instructed the jury to find the defendant guilty of a conspiracy and of murder, if any two of the defendants, who might have been Gilbert Evans and Mose Evans, conspired to do an unlawful act, and even though Wortham was not a party to such a conspiracy.
The evidence showing without dispute that the homicide was committed without any legal justification or provocation; and there being no evidence to indicate that the firing of the gun was the result of an unintentional mishap, the court did not err in refusing the request to charge the jury on the law of voluntary and of involuntary manslaughter.
After the fact of conspiracy is proved, the declarations of any one of the conspirators during the pendency of the criminal project, are admissible against all. Code, § 38-306. This is true even though the person against whom the declaration is introduced
It was error, likely to have been very prejudicial, to charge
Judgment reversed.