Bolton v. State

• Decision Date: 01 November 1917
• Docket Number: 8973.
• Citation: 94 S.E. 95,21 Ga.App. 184
• Parties: BOLTON v. STATE.
• Court: Georgia Court of Appeals

94 S.E. 95

21 Ga.App. 184

BOLTON v. STATE.

No. 8973.

Court of Appeals of Georgia, Second Division

November 1, 1917

Syllabus by the Court.

In criminal law conspiracy is a combination or agreement between two or more persons to do an unlawful act, and may be established by proof of acts and conduct, as well as by direct proof or by express agreement.

(a) The evidence in this case authorized the charge of the court on conspiracy, and no error appears in the excerpts complained of.

There was evidence to support the verdict.

Error from Superior Court, Gwinnett County; A. J. Cobb, Judge.

W. I Bolton was convicted of assault with intent to murder in the second degree, and he brings error.Affirmed.

The indictment charges that the defendant--

"did commit the offense of assault with intent to murder in the second degree, by then and there being present, aiding and abetting the act to be done, and did then and there procure and direct and tell Jeff Staples to shoot Allen Sudderth, and that the said Jeff Staples then and there, with force and arms and a certain pistol, being a weapon likely to produce death, did unlawfully and with malice aforethought shoot and wound one Allen Sudderth with said weapon."

The record shows that Allen Sudderth, the person alleged to have been assaulted, was a policeman, that there was a show in town, and that while he was on the show grounds the defendant walked up in front of him and began to curse.What immediately followed is thus told by Sudderth:

"I walked to him and asked him to be quiet; that he would have to quit cursing, and he said he was going to kill that woman or that man.He said so much I can't remember all he did say.I says, 'Mr. Bolton, you will have to quit cursing or get off the show grounds; that is all there is to it.'He said, 'This is my land, and I will stay on it as long as I God damn please.'I told him again I said, 'Mr. Bolton, you will have to quit cursing or get off the show grounds, or I will have to lock you up.'He said, 'I won't do no such a God damn thing;' that I wasn't man enough; and he kept cursing.His little boy began to plead with him and beg him to go home.I said, 'Mr. Bolton, if you won't listen to me, listen to your little boy down there at your knees pleading and praying for you to go home.'He said, 'God damn you and him too.'I says, 'Mr. Bolton, I will have to lock you up, or you will have to go home, one.I took hold of his arm, and when I took hold of his arm he tried to jerk loose from me, and his top shirt sleeve tore out, but his undershirt sleeve didn't tear, so I held to his sleeve.Then he hit at me and knocked my cap down over my eyes, and I knocked my cap off, and he hit me again on the side of the head, and I hit him with my billy.We were going around and around; he was a little better man than I was, and he jerked me around and around, and we had gone something like 20 feet, I guess, just drifting off, and I turned around, still hold of his sleeve, and something hit me, I don't know what it was, whether a man or what it was; something hit me and knocked me off in a scale pit, and I heard him say, 'Shoot the God damn son of a bitch; kill him.'* * * I did not have hold of Bolton at the time Staples shot me.Bolton made the statements to Staples with reference to shooting when he knocked me in the pit--when Mr. Staples knocked me in the pit.Staples kicked me in the pit; he run between us and kicked backwards like that (indicating), and kicked me in the stomach, and I fell backwards.Mr. Staples did not say anything at the time, not a word that I heard.Mr. Bolton said, 'Shoot the son of a bitch, God damn him, kill him.'After I was shot I was taken to Dr. Mauldin's office.Prof. McLeroy and Prof. Burson were about the first ones to me, and I told them to carry me to Dr. Mauldin's office; that I was shot.He had an X-ray.When I got to the corner of Dr. Mauldin's office Mr. Bolton came round the corner and tried to get to the car, and somebody held him.He wanted to get to me to kill me; said if I didn't die he would finish me; if I wasn't dead he would finish me.I was in an automobile at the time, on the street in front of Dr. Mauldin's office."

A. W. Burson testified that he heard the statement made by Mr. Bolton to Mr. Staples with reference to the shooting:

"He just said for him to shoot him.'Shoot him.God damn him'--I think were the words.I could not be positive as to the exact words."W. W. Wilson swore that immediately after the difficulty between the policeman and the defendanthe saw the policeman in front of Dr. Mauldin's office, and when the defendant saw the policeman--

"he made a rush at him, at the automobile, like he was going to go into it.Young Humphries pulled him away.That was all I saw.Looked like he had a fighting mind on him."

J. E. Cruce testified that on the night after the difficulty he was with the defendant, and the following occurred:

"I think he asked was Mr. Sudderth dead.I believe I told him that he was not dead, but that I didn't think he would live.He made the remark, if Mr. Sudderth was not dead, he would kill him."

The jury found the defendant guilty, his motion for a new trial was overruled, and he excepted.

O. A. Nix, of Lawrenceville, and D. K. Johnston, of Atlanta, for plaintiff in error.

W. O. Dean, Sol.Gen., of Monroe, for the State.

BLOODWORTH J.

1.The...