Another v. State

• Citation: 77 Ga. 155,3 S.E. 661
• Parties: Spencer and another v. State.
• Decision Date: 05 March 1887
• Court: Supreme Court of Georgia

3 S.E. 661
77 Ga. 155

Spencer and another
v.
State.

Supreme Court of Georgia.

March 5, 1887.

1. Conspiracy—What Constitutes—Joint Self-Defense.

On trial of two persons, A. and B., who were laborers on a plantation, for the offense of shooting at another, the evidence showed that the plantation overseer, after angrily and profanely reprimanding defendants, fired a gun into or by a window in the house of one, while the latter and his family were within; that then, seeing defendants go away as if to complain to the owner of the plantation, the overseer pursued, and after defendants had taken shelter, fired at them, and wounded A., and that defendants in the same moment fired at him; that A. immediately told B. to shoot, but that B. instead, rushing to the overseer, who still held an offensive attitude, drew his gun to strike, and threatened to kill, but was prevented by bystanders; that the overseer then retreated, whereupon A., without communicating with B., fired again at the overseer. Held, that the evidence did not show a conspiracy on the part of defendants to make an unlawful attack, but did show that their firing together was proper self-defense and that B. was innocent.²

2. Same.

A common purpose of self-defense, even with excessive force, if formed suddenly, in an emergency, will not render one participant in the purpose liable for acts done by another participant alone, and after the defense has been accomplished.

3. Same—Failure to Prove—Effect of Verdict.

Where, on the trial of an indictment against two persons, there is no evidence of a conspiracy, but the court instructs the jury on the law of conspiracy, such instruction is improper, and if both defendants are convicted, the judgment will be set aside as to both, unless the evidence against one is conclusive.

Error from superior court, Dougherty county; Bower, Judge. Wright & Arnheim and J. W. Walters, for plaintiffs in error. W. N. Speuce, Sol. Gen., (by B. H. Pope,)contra.

Bleckley, C. J. 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.

1. A careful study of the evidence leaves no room to doubt that the conviction of Peck, under the indictment, could not have happened without grave error on the part of the court, or gross mistake by the jury. The superintendent of a plantation has no more right to...