Burns v. State

• Decision Date: 11 April 1939
• Docket Number: 12730.
• Citation: 2 S.E.2d 627,188 Ga. 22
• Parties: BURNS v. STATE.
• Court: Georgia Supreme Court

2 S.E.2d 627

188 Ga. 22

BURNS v. STATE.

No. 12730.

Supreme Court of Georgia

April 11, 1939

O Frank Brant, of Hilltonia, T. J. Evans, of Sylvania, and Dekle & Dekle, of Millen, for plaintiff in error.

W G. Neville, Sol. Gen., Prince H. Preston, Jr., R. Lee Moore and D. C. Jones, all of Statesboro, E. K. Overstreet, of Sylvania, Herschel E. Smith, Asst. Atty. Gen., Ellis G Arnall, Atty. Gen., and Emil J. Clower, of Atlanta, for the State.

Statement by the Court:

An indictment was returned against Osborne Newton, John Burns Lonnie Lanier, and Aaron Nelson, charging them with the murder of C. L. Daughtry by shooting him with a gun. On the separate trial of John Burns, his codefendant, Aaron Nelson testified as to a conspiracy between all of the defendants to rob Daughtry. The participation by Nelson was to get on the bumper of the automobile of Daughtry when he should slow up in passing over a bad bridge, and to ride along on the bumper, passing the co-conspirators who would be watching, and at a certain place Nelson was to get off the bumper if Daughtry was riding alone, thus giving a signal that no one was with Daughtry. Nelson did as so planned, and on leaving the car left to go home, and soon thereafter, he heard four shots fired, and heard of the homicide two days later and after the body had been found. This and other evidence was introduced. The jury found the defendant guilty, with recommendation of mercy. He moved for new trial on the general grounds, and two special grounds as follows:

1. The court charged the jury as follows: 'I charge you that conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, unlawful either as a means or as an end. This agreement may be established by direct proof or by inference, as a deduction from conduct which discloses a common design on the part of the persons charged to act together for the accomplishment of the unlawful purpose. In this case the court leaves it to the jury to determine whether or not there was a conspiracy, or an association, to do the unlawful act alleged in the indictment, and, if so, whether or not the defendant on trial participated in such an agreement and in the commission of the crime charged. The act of one does not bind another, unless and until the criminal intent to do what is done is, to the satisfaction of the jury, established to have existed between the parties; but if you find there was a conspiracy, and that the defendant participated in the common intent and purpose to do what was done, then what was done by another person named in the indictment, in pursuance of that common intent and purpose, would be just as binding upon the defendant on trial as if he did the act himself; the general rule being that when individuals associate themselves to do an unlawful act or acts, any act done in pursuance of that association by any of those individuals is in legal contemplation the act of all. On that subject you look to the evidence and determine whether or not there was an agreement to do an unlawful act, and whether or not this defendant on trial took a part in that agreement. If you find there was such an agreement and that he was a party to that agreement, then he would be responsible for everything done in pursuance of that agreement, regardless of which one did the actual crime, in this case the killing. I charge you, in that regard, it is not necessary that the crime committed if you find a crime was committed in this case, should have been the subject-matter of the original agreement. The law is, if two or more persons enter into an agreement to commit a crime, and in the carrying out of that crime one or some of them commit some other crime, each of the parties to the original agreement is responsible for what was done in carrying out their agreement. Of course, if you find in this case there was no agreement, or if you find there was one but this defendant did not participate in it, the defendant on trial would not be responsible for what somebody else did.' This charge, movant insists, was error for the following reasons: 'Because said charge was not applicable to the state of facts proved by the testimony in said case. The only witness in the trial of said case who testified as to a conspiracy between John Burns and others was Aaron Nelson, who testified that the purpose of said conspiracy was to rob MR.C.L. Daughtry. See brief of the evidence, * * * in the following language, 'The time there when they saw me on Wednesday, something was said to me about what they were going to do to Mr. Daughtry; they said that they was going to rob him, and they wanted some money. Osborne Newton said that John (meaning John Burns) and Lonnie heard him say that. He said they wanted some money.' The expressed purpose of the alleged conspiracy being to rob MR.C.L. Daughtry and not to murder him, the court should have qualified the charge above quoted in substance as follows: If one member of an association, if you find there was any association of these parties, depart from the original design as agreed upon by all, and himself do an act which you find was not contemplated by those who entered into the common purpose, or was not in furtherance thereof, nor the natural or legitimate consequences of anything connected therewith, the person guilty of such act, even if it was itself unlawful, would alone be responsible therefor, and the other individuals of the association, if you find there was any such association, would not be responsible for such act.'

2. The court charged the jury as follows: 'On the question of confessions, I charge you that all admissions should be scanned with care, and confessions of guilt should be received with great caution. A confession alone, uncorroborated by other evidence, will not justify a conviction. To make a confession admissible, it must have

been made freely and voluntarily, without being induced by another by the slightest hope of benefit or the remotest fear of injury. You look to the evidence in this case and determine whether a confession was made by the defendant. If you should believe a confession was made, but that it was induced by another by the slightest hope of benefit or the remotest fear of injury, then and in that event * * * it would be your duty to disregard the testimony of such confession; but, on the other hand, if you find that a confession was freely and voluntarily made by the defendant, without any such inducement by another, then it would be your duty to consider it along with the other evidence in the case. I charge you an admission, as applied to criminal cases, is the avowal of a fact or circumstance from which guilt may be inferred, but only tending to prove the offense charged, and not amounting to a confession of guilt. An incriminating statement is one which tends to establish the guilt of the accused, or from which with the other evidence introduced guilt may be inferred, or one which tends to disprove some defense set up by the accused.' Movant insists that the law of confession should not have been charged in said case, for the reason that there was no testimony as to a confession by the defendant. E. A. Patterson, witness for the State, testified, referring to John Burns, 'So he came up the steps to his house, and he said something or other, 'Well we did something to-night,' but I do not know what he said between. I caught that much of it, but I don't know what happened in between 'Well, we did,' and, 'to-night,' and I heard a terrible screaming and crying and such like over there, and in response to it, his wife said 'Why did you do that? You are already in enough trouble,' something to that effect.' Which statement by John Burns could not be considered a confession, or even an incriminatory statement, but a mere suspicion that he might have referred to the death of Mr. Daughtry.

'Johnnie Jackson, a witness for the State, testified: 'I went over to Rocky Ford, and John Burns...