Brown v. State
| Decision Date | 11 May 1906 |
| Citation | 54 S.E. 162,125 Ga. 281 |
| Parties | BROWN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where under the facts of the case, it is proper to give to the jury the definition of a principal in the second degree, it is not cause for a new trial to give the whole of such definition as contained in the Penal Code, although the portion thereof in reference to a constructive presence at the scene of a crime may not be applicable to the facts of the particular case.
There was evidence which authorized the court to give to the jury the definition of a principal in the second degree.
Upon the trial of one jointly indicted with others for murder when one of the contentions of the state was, that the defendant on trial, if not the actual perpetrator of the crime, was present at its commission, aiding and abetting A one of the persons jointly indicted, when A. fired the shot which killed the deceased; while the contention of the defendant was that he was neither acting in concert with A. nor present at the scene of the homicide when A. fired the fatal shot, it was error for the court to instruct the jury: "You have a right to consider how long a time elapsed from the time the fatal shot was fired *** before the defendant was in the immediate presence of [A.] and with his gun or pistol was aiding and abetting [A.] to take the life of the deceased."
This charge was erroneous for the reason that it was an expression of OPINION upon a disputed issue of fact in the case.
Error from Superior Court, Calhoun County; W. N. Spence, Judge.
Jake Brown was convicted of murder, and brings error. Reversed.
W. D. Sheffield and Reuben R. Arnold, for plaintiff in error.
T. J. Hofmayer, W. E. Wooten, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.
Allen Brown, Jake Brown, Will Harris, and Bob Harris were jointly indicted for the offense of murder, the person alleged to have been murdered being Bob Hawk. All of the accused were charged as principals in the first degree, it being alleged that they "unlawfully, feloniously, willfully, and of their malice aforethought did kill and murder, by shooting with a pistol and cutting with a knife the said Bob Hawk," etc. At the trial under review, the plaintiff in error, Jake Brown, was alone tried, and was found guilty, with a recommendation that he be imprisoned in the penitentiary for life. He made a motion for a new trial, which was overruled, and he excepted.
1. The court gave to the jury the definition of a principal in the second degree, as contained in Pen. Code 1895, § 42. In the motion for a new trial, error was assigned upon this instruction, upon the ground that there was no evidence to authorize it, especially the latter portion thereof in reference to a constructive presence as distinguished from "an actual, immediate standing by, within sight or hearing of the act." We agree with counsel for plaintiff in error, that there was nothing in the evidence which would have authorized the jury to find the defendant guilty, "on the idea that he was at some convenient distance, keeping watch or guard for the real perpetrator of the crime"; but we do not think that the instruction complained of was cause for a new trial. The court merely gave the whole of the definition of a principal in the second degree, from the Penal Code, and while there was in the evidence nothing to which a part of this definition could apply, we do not think that, for that reason, the court was bound to only partially define the meaning of the term ""principal in the second degree." The state did not contend that the defendant was keeping watch or guard, at some convenient distance, for the actual perpetrator of the crime, and there was nothing whatever, in the evidence, which could have led the jury to believe that he was. No sensible juror, under the circumstances, could have been misled by the fact that the court gave the whole of the definition of a principal in the second degree.
2. We do not agree with the contention that there was no evidence to authorize the court to charge upon the subject of a principal in the second degree. From the charge of the court sent up with the record, it appears that the state insisted upon two theories for a conviction. One was, that the defendant, himself, fired the shot which killed the deceased and was, therefore, the actual perpetrator of the homicide, and under the circumstances disclosed by the evidence, was guilty of murder. The other was, that Allen Brown, one of the parties jointly indicted with the defendant, without justification or excuse, fired the fatal shot, and the defendant, Jake Brown, was at the time present, aiding, and abetting him in his effort to kill the deceased, and was therefore equally guilty of murder. There was but slight evidence to sustain this latter theory, although the trial judge devoted a considerable portion of his charge to its elucidation. From the evidence it appeared that the difficulty between Allen Brown and Bob Hawk, the deceased, arose suddenly. Allen Brown was standing...
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