Burke v. State

• Decision Date: 02 June 1975
• Docket Number: No. 29609,29609
• Citation: 234 Ga. 512,216 S.E.2d 812
• Parties: Charles BURKE, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 812

216 S.E.2d 812

234 Ga. 512

Charles BURKE, Jr. v. The STATE.

No. 29609.

Supreme Court of Georgia.

June 2, 1975.

William Ralph Hill, Jr., LaFayette, W. Benjamin Ballenger, Summerville, for appellant.

Earl B. Self, Dist. Atty., Lawrenceville, Arthur K. Bolton, Atty. Gen., John W. Dunsmore, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

This is an appeal from convictions on two counts of aggravated assault, two counts of armed robbery, and one count of murder 'with malice aforethought.' Appellant was sentenced to life on the murder charge, ten years on each of the armed robbery charges, and one year on each of the aggravated assault charges, all to run concurrently.

On December 14, 1973, three men, appellant and two friends, drove to a small grocery store in Walker County. Appellant entered the store, asked the proprietor for a gas can, and then went outside to get the can. Appellant's friends entered the store, one carrying a sawed-off shotgun. The friends took money from the cash register, fatally wounded the proprietor, threatened and took money and other items from a customer, struck the customer with a shotgun, and fired the gun at a milk deliveryman who happened upon the scene. Appellant remained outside the store during these events, but the three men left the scene together and shared the stolen money. The transcript includes a fully corroborated in-custody statement from appellant, not challenged on appeal, which supports a finding that all the crimes charged occurred in the execution of an agreement to commit armed robbery.

1. The appellant argues the general grounds with respect to all five convictions. He argues especially that there is no evidence in the record to support his conviction for murder 'with malice aforethought.' He contends that, even viewing the evidence favorably to the State, it supports only a charge of murder in the commission of a felony pursuant to Code Ann. § 26-1101(b). (Acts 1968, [234 Ga. 513] pp. 1249, 1276).

2. 'A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.' Code Ann. § 26-1101(a). (Acts 1968, pp. 1249, 1276). The evidence here supports a finding that the appellant's coconspirator committed murder with malice aforethought. The appellant is equally guilty of murder with malice aforethought under the following principle of law.

'Where two or more persons conspire to rob another who is employed in a building, and one of the conspirators keeps watch or guard at a convenient distance while the others enter the building and, in furtherance of the common design to rob, kill the person intended to be robbed, such killing is a probable consequence of the unlawful design to rob, and all the conspirators are guilty of murder, including the one on guard.' Berryhill v. State, 151 Ga. 416, 107 S.E. 158. '. . . It is not necessary that the crime of murder should be a part of the original design; but it is enough if it be one of the incidental probable consequences of the execution of their design, and should appear at the moment to one of the participants to be expedient for the common purpose. The intent of the actual slayer is imputable to his coconspirators.' Gore v. State, 162 Ga. 267(1a), 134 S.E. 36. This has been the law of this State for many years. Callahan v. State, 209 Ga. 211(6), 71 S.E.2d 86; Pressley v. State, 207 Ga. 274, 282, 61 S.E.2d 113; Hill v. State, 201 Ga. 300, 306, 39 S.E.2d 675; Kalb v. State, 195 Ga. 544, 555(6), 25 S.E.2d 24; Burns v. State, 188 Ga. 22, 26, 2 S.E.2d 627; Thompson v. State, 166 Ga. 758, 775(6), 144 S.E. 301; Coggeshall v. State, 161 Ga. 259, 264(3), 131 S.E. 57. As stated in McClung v. State, 206 Ga. 421, 424, 57 S.E.2d 559, 561: '(it) is not necessary that the crime of murder should be a part of the original design; but it is enough that it be one of the incidental and probable consequences of the execution of the design of the parties, and should appear at the moment to one of the participants to be expedient to the common purpose. In such case, the intent and act of the slayer is imputable to the other party, though he be merely present and he himself does not inflict the mortal wound. Gore v. State, 162 Ga. 267(1a), 134 S.E. 36. Where one is present at the time of the homicide, the question whether or not the defendant participated in the felonious design of the person killing is one to be determined by the jury from all the facts and circumstances of the case.' This comports with the general law. 'It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them . . . And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose . . .' 16 Am.Jur.2d 134, § 14.

The evidence in the instant case supports a finding that the appellant was guilty of murder 'with malice aforethought.' He was part of the conspiracy to commit armed robbery. The murder was a probable consequence of the armed robbery. Therefore he is equally responsible for the murder although he was not the actual slayer and was not present at the time of the killing. The result would be no different if we agreed with appellant that the evidence supports only a charge of murder in the commission of a felony pursuant to Code Ann. § 26-1101(b). Felony murder involves a nonintentional killing committed in the prosecution of a felony. It is still murder and is subject to the same penalties as 'malice murder.' The only difference is the absence of intent and malice. Under the indictment and facts here 'felony murder' was an included offense as a matter of fact. Edwards v. State, 233 Ga. 625, 212 S.E.2d 802. 'An accused may be convicted of a crime included in a crime charged in the indictment, information, or accusation. A crime is so included when: (a) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged . . .' Code Ann. § 26-505(a). (Acts 1968, pp. 1249, 1267). '. . . He may not, however, be convicted of more than one crime if (1)one crime is included in the other . . .' Code Ann. § 26-506(a). (Ga.L.1968, pp. 1249, 1267).

3. Applying the foregoing statutes to the instant case the defendant's conviction of the armed robbery of the murder victim must be vacated. His conviction of malice murder is supported because he was a conspirator in the armed robbery and the murder was a probable consequence of that armed robbery. The malice and intent of the actual slayer is imputed to the defendant because of his participation in the armed robbery as a conspirator. Therefore proof of the armed robbery is essential to support his conviction of malice murder and is an included offense. The armed robbery and aggravated assault of the customer and aggravated assault upon the deliveryman are separate crimes against other persons and are supported by additional facts not essential to the murder conviction. They also are the probable consequences of the original conspiracy to commit armed robbery. Accordingly, we affirm the convictions of murder, armed robbery of the customer, and the two aggravated assaults. We vacate the armed robbery conviction of the murder victim.

Woods v. State, 233 Ga. 495, 500, 212 S.E.2d 322 does not require a different conclusion. The issue there was 'inconsistent verdicts.' The appellant had been acquitted of murder but convicted of armed robbery. The verdicts were not inconsistent under the rationale of Woods as applied to the particular facts of that case. Similarly the verdicts would not have been inconsistent under the law of included crimes. 'An accused may be convicted of a crime included in a crime charged in the indictment . . ..' Code Ann. § 26-505. '. . . He may not, however, be convicted of more than one crime if (1) one crime is included in the other . . ..' Code Ann. § 26-506. Fallings v. State, 232 Ga. 798, 799(3) 209 S.E.2d 151. Under these cases, there is no problem of inconsistent verdicts in murder and other felony prosecutions. The problem that usually arises is, as in the case at bar, whether one crime is included in another so as to require one conviction to be vacated.

4. The 1968 Criminal Code § 26-801(a) (Acts 1968, [234 Ga. 516] pp. 1249, 1271) does not alter the principle that conspirators are responsible for the probable consequences of the execution of their design. A careful reading of the committee notes will show that Code Ann. § 26-801 merely eliminated the former designation of principals in the first degree, principals in the second degree, and accessories before the fact. It grouped them together as 'parties to the crime.' It discarded old common law designations which have little significance under modern procedure. 'Under many statutes, the distinction between principals of the first and second degree is not of much practical importance, and in some instances is entirely abolished. The statutes in varying terms make all persons who are present and concerned in the commission of a crime guilty as principals.' 21 Am.Jur.2d 198, § 121. In our opinion that was the purpose of Code Ann. § 26-801. It did not alter the responsibility of parties to a crime. As stated in Scott v. State, 229 Ga. 541, 544, 192 S.E.2d 367, 370, 'Section 26-801...