Collins v. State

• Decision Date: 11 January 1892
• Citation: 14 S.E. 474,88 Ga. 347
• Parties: Collins. v. State.
• Court: Georgia Supreme Court

14 S.E. 474

88 Ga. 347

Collins.

v.State.

Supreme Court of Georgia.

Jan. 11, 1892.

Criminal Law—Principal and Accessory—Accomplice Testimony.

1. One indicted as principal merely can be convicted on evidence proving him guilty as principal in the second degree, if the facts be such as that the act by which the crime was perpetrated will, on established principles of law, be imputed to him as committed by himself through the agency of another. In such case, the distinction of degree is immaterial.

2. Evidence that the witness heard a person jointly indicted with the prisoner on trial say that the prisoner hired him to commit the crime, and agreed to give him $50, is hearsay, and should have been excluded. The matter embraced in this evidence, being no part of a previous conversation to which the witness had testified on direct examination, was not rendered admissible by the fact that such previous conversation had been given in evidence.

3. The foregoing error is cause for a new trial, inasmuch as the evidence strongly indicates that the conviction rests chiefly on a self-criminating fabrication of an alleged accomplice, induced by threats and coercion, and first promulgated under the influence of fear for his life, and probably adhered to afterwards under a like influence, though any ground for reasonable fear had then ceased to exist.

(Syllabus by the Court.)

Error from superiorcourt, Gordon county; T. W. Milnek, Judge.

Indictment against Rufus Collins and Stephen Custer for murder. The first count charged them as principals; the second count charged Custer as principal and Collins as accessory. They severed on the trial, and Collins was convicted on the first count. His motion for a new trial being overruled, he brings error. Reversed.

W. R. Rankin and Dabney & Fouche", for plaintiff in error.

A. W. Fite, Sol. Gen., W. A. Little, Asst. Atty. Gen., and IV. J. Cantrell & Son, for the State.

Simmons, J. Stephen Custer and Rufus Collins were indicted for murder. There were two counts in the indictment. The first count charged them both as principals; the second charged Custer as principal and Collins as accessory before the fact. They severed on the trial, and Collins was tried first, and convicted on the first count. He made a motion for a new trial, which was overruled.

1. One of the grounds of the motion, relied upon for reversal of the judgment of the court below in refusing to grant a new trial, was "that the evidence in said case was not sufficient to authorize his conviction on the first count in said indictment, and was insufficient to support the same. " It was argued by learned counsel for the plaintiff in error that the evidence showed that Collins was either a principal in the second degree or an accessory before the fact, and he could not, therefore, be convicted upon the first count in the indictment, which charged him with being a principal perpetrator of the crime. Our Code, (section 4305,) in defining principals in the first and second degree, says: "A person may be principal in an offense in two degrees. A principal in the first degree is he or she that is the actor or absolute perpetrator of the crime. A principal in the second degree is he or she who is present, aiding and abetting the act to be done; which presence need not always be an actual, immediate standing by, within sight or hearing of the act, but there may be also a constructive presence, as when one commits a robbery or murder or other crime, and another keeps watch or guard at some convenient distance." The evidence on this point, in brief, is that Collins, a white man, brought Custer, a negro boy about 15 years old, from North Carolina to this state as a servant, and that, while on their journey to this state, Collins told Custer that he wanted him to kill his (Collins') wife, and after reaching Gordon county, in this state, he mentioned the subject to him upon several occasions, promising to pay him.$50 if he would kill her, and Custer finally consented; that upon the day of the homicide Mrs. Collins called Custer to assist her In moving a mattress; that Custer was at that time at a distillery about 50 yards from the dwelling-house where Mrs. Collins was, and as he started to the dwelling-house he passed Collins, who told him that the pistol was loaded, to snap it once, and the second time it snapped it would fire; that Custer went to the house, got the pistol from under the head of the bed, snapped it once in the front room, saw Mrs. Collins, and snapped it at her, and it fired then, as Collins said it would. Collins did not go to the house with Custer, but remained at the distillery or grocery, about 50 yards from the house. This evidence, if it be true, makes Collins, at least, a principal in the second degree, if not an "actor, or absolute perpetrator of the crime." He was not actually present in the house where the crime was perpetrated, but he was constructively present, —sufficiently near to encourage, by his presence, the principal actor, and to assist him, if assistance should become necessary. Confederacy with the absolute perpetrator of the crime, supplemented by constructive presence, makes one a principal in the second degree. 1 Whart. Crim. Law, §§ 213, 218, 219; Kerr, Horn. 110; 1 Bish. Crim. Law, § 653; 2 Rose. Crim. Ev. *p.752; Desty.Crim. Law, § 37a.

Having shown that Collins was a principal, It is immaterial whether he was a principal in the first or second...