Chappell v. State, 18151

• Decision Date: 14 April 1953
• Docket Number: No. 18151,18151
• Citation: 75 S.E.2d 417,209 Ga. 701
• Parties: CHAPPELL v. STATE.
• Court: Georgia Supreme Court

Page 417

75 S.E.2d 417

209 Ga. 701

CHAPPELL v. STATE.

No. 18151.

Supreme Court of Georgia.

April 14, 1953.

Syllabus by the Court.

1. Conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, the existence of which agreement may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose. In this case the jury was authorized to find by reasonable deductions from the acts and conduct of the defendant and his co-indictee that they corruptly agreed with each other to do the unlawful act for which they were indicted; and that, while acting together, each aiding and abetting the other, they accomplished their unlawful purpose.

2. 'It is not a valid ground of criticism upon a charge, correct and proper in itself, that it fails to state some other rule or principle of law pertinent to the issues of the case.' Jackson v. State, 134 Ga. 473(3), 68 S.E. 71.

3. Neither the evidence nor the statement of the accused would have authorized the trial judge to charge upon the offense of voluntary manslaughter. An unlawful killing, without provocation and with malice, is shown by the record.

4. It is not erroneous for the presiding judge on the trial of a capital felony case to inform the jury that the solicitor-general does not insist upon the death penalty. Even error, if without injury, is no cause for a reviewing court to reverse a judgment.

5. The verdict was authorized by the evidence.

Reuben A. Garland and Marvin O'Neal, Jr., Atlanta, for plaintiff in error.

Luther C. Hames, Jr., Solicitor-Gen., Marietta, Eugene Cook, Atty. Gen., and J. R. Parham, Asst. Atty. Gen., for defendant in error.

CANDLER, Justice.

Johnny Lorenzo Chappell and Millard Copeland, Jr., were jointly indicted in Cobb County for the murder of James Clay Green. Chappell was tried separately and was convicted of murder with a recommendation for life imprisonment. He filed a motion for new trial on the usual general grounds and afterwards amended it by adding five special grounds. His amended motion was overruled, and to that judgment he excepted.

1. The court charged the jury as follows: 'If two or more persons form a common intent and purpose to commit a crime, and in pursuance of such common intent and purpose such crime is actually committed, then and in that event the act of each one present aiding and abetting in the commission of the crime is attributable to and is the act of all present aiding and abetting in the commission of the crime and acting with a common intent and purpose to commit the crime. If you believe that this defendant and another or others formed a common intent and purpose to commit the crime as charged in the bill of indictment, and if you believe that in pursuance of such common intent and purpose, such crime was actually committed, and if you further believe that this defendant or either of them committed the crime or was present aiding and abetting in the commission of the crime at the time it was committed, and if you believe that the crime was committed in pursuance of such common intent and purpose and this defendant aided and abetted the other in the commission of the crime, and you believe that beyond a reasonable doubt, it would be your duty to convict him.' In special ground 1 of his motion for new trial, the defendant excepts to this instruction, alleging that it was harmful to him, for the following reasons: (a) it was not adapted, pertinent, or applicable to the facts, as there was no evidence of a conspiracy between the accused and his co-indictee to attack, harm, and kill the deceased, or to do either; (b) it was confusing to the jury because, without more, it, led the jury to believe that a conspiracy between the accused and his co-indictee to commit the act charged was proved by evidence merely showing that they each stabbed the deceased; and (c) it was misleading because, without more, it, caused the jury to believe that they were authorized to convict the accused on the theory of conspiracy, since there was evidence of the fact that the accused and his co-indictee each stabbed the deceased during the fatal fight. The exception is not meritorious. Conspiracy consists in a corrupt agreement between two or more persons to do an unlawful act, the existence of which agreement may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose. In other words, the existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by either direct or circumstantial evidence. Davis v. State, 114 Ga. 104, 107, 39 S.E. 906; Dixon v. State, 116 Ga. 186, 42 S.E. 357; McLeroy v. State, 125 Ga. 240(2), 54 S.E. 125; Weaver v. State, 135 Ga. 317, 69 S.E. 488; Turner v. State, 138 Ga. 808, 76 S.E. 349; Lumpkin v. State, 176 Ga. 446, 168 S.E. 241; Simmons v. State, 181 Ga. 761, 184 S.E. 291; Harris v. State, 184 Ga. 382, 392, 191 S.E. 439; Mills v. State, 193 Ga. 139, 17 S.E.2d 719.

As it relates to this issue, the State's evidence in substance shows: The accused, his co-indictee, and Hollis Martin went as uninvited persons to a birthday party at the colored recreational building in Marietta, Georgia, arriving about 11:30 p. m. They were all drinking. They were traveling in a car owned and operated by the accused. The co-indictee had some whisky and, after joining the birthday party, he, the accused and some of the guests drank it. The deceased was a guest at the party and had as his 'date' a girl the co-indictee had previously 'gone with' for several months. The deceased and his 'date' were also drinking. The accused left the party and went to his car, which was parked in front of the recreational building, and soon thereafter his co-indictee and the deceased became involved in an argument. Hollis Martin went to the car of the accused and notified him of the trouble. The accused got his knife, opened it and immediately rejoined the party, either running or walking fast as he entered the building. The deceased was at that time lying on the floor and the co-indictee was over him and stabbing him with a switch-blade knife. The accused, with the same kind of a knife, and without first making any inquiry as to the cause of the trouble, immediately joined his co-indictee and both stabbed the deceased several times while he was on the floor. The deceased had no weapon of any kind at that time and was begging the accused and his co-indictee not to kill him. The deceased got up from the floor, and the accused and his co-indictee pursued him as he ran out of the building. He fell near the building and died on his way to the hospital. The accused, his co-indictee, and Martin then left together in the car of the accused, the former driving it. They first went to the home of the co-indictee, and shortly afterwards to another place where they inquired about the condition of the deceased. They were told that he died while en route to the hospital, and, on being so advised, the...