Gore v. State

• Decision Date: 13 May 1926
• Docket Number: 5356.
• Citation: 134 S.E. 36,162 Ga. 267
• Parties: GORE v. STATE.
• Court: Georgia Supreme Court

134 S.E. 36

162 Ga. 267

GORE v. STATE.

No. 5356.

Supreme Court of Georgia

May 13, 1926

Rehearing Denied June 28, 1926.

Syllabus by Editorial Staff.

In murder prosecution, instruction on intent of conspirators to rob if one of them killed human being in furtherance of common intent held not to express opinion that state had proved joint intent.

In murder prosecution, instruction on intent of conspirators to rob if one of them killed human being in furtherance of common intent held not to unduly accentuate idea of common intent.

In murder prosecution, instruction on intent of conspirators to rob if one of them killed human being in furtherance of common intent held not tantamount to direction of verdict of guilty.

Where three persons conspired to rob a merchant and one conspirator remained in automobile in front of store while others entered and in furtherance of common design killed the merchant killing is probable consequence of unlawful design to rob and all are guilty of murder; it not being necessary that murder be part of original design.

Where defensive theory in murder prosecution rested solely on defendant's statement, failure to charge thereon did not require new trial in absence of timely written request.

Failure in murder prosecution, to charge on principle of Pen. Code 1910, § 41, held not error, in absence of timely written request, where defensive theory rested on defendant's statement.

Failure in murder trial, to charge on Pen. Code 1910, § 1031, as to effect of uncorroborated confession, held not error in absence of timely written request.

Omission in murder trial, to charge on law of confessions, if error, was harmless in view of other sufficient evidence to warrant conviction.

Omission, in murder trial, to charge on admissibility of confessions within Pen. Code 1910, § 1032, held not error in absence of timely written request.

Failure, in murder trial, to charge on fact of confession being induced by hope of benefit, was not error, where no timely request therefor was made.

In murder prosecution, permitting state's counsel to ask state witness to refresh his memory from ticket, and to say whether he saw defendant on named night, held not abuse of discretion.

Where defensive theory that defendant was coerced into committing robbery rested solely on his statement, refusal of instruction thereon, in absence of timely written request, was not error.

Where killing was alleged to be in furtherance of conspiracy to rob, failure to charge on Pen. Code 1910, § 148, which defines robbery, was not error, in absence of timely request therefor.

Failure to charge that specific intent to murder was essential element of crime thereof held not error, where murder was in furtherance of common intent to rob.

Assignment of error that court did not charge defendant's contentions is too general.

Exception to entire charge that it did not state defendant's contentions is unavailable, unless the entire charge was erroneous.

Generally, in prosecution for particular crime, evidence showing accused has committed another wholly independent crime is irrelevant and inadmissible, but it is admissible to show motive, plan, or scheme.

If evidence of other independent crimes is admissible on question of motive, it is not inadmissible because it establishes guilt of other crime than one charged.

Where killing was in furtherance of common intent to rob, there was no error in admitting evidence of defendant's statement in rebuttal that he and codefendants had committed a previous robbery; it being admissible on issue whether he voluntarily engaged in robbery which resulted in death or was threatened or coerced into engaging therein.

Complaint that sentence of death by electrocution imposes a cruel and inhuman punishment, in violation of Const. Ga. art. 1, § 1, par. 9, and Const. U.S. Amend. 8, cannot be made ground of motion for new trial.

Where, in conspiracy to rob, one conspirator kills party attempted to be robbed, but others aided and abetted felonious design to rob, killing was act of all, and was murder.

In prosecution for murder in furtherance of conspiracy to rob, evidence held sufficient to sustain conviction.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

M. M. Gore was convicted of murder, and he brings error. Affirmed.

Reuben A. Garland, Louis S. Maritzer, W. A. James, and Linton S. James, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. W. LeCraw, and E. A. Stephens, all of Atlanta, Geo M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

Syllabus OPINION.

HINES J.

John Wilson, alias Jack Wilson (sometimes referred to in the record as Jack Martin), T. R. Berry, and M. M. Gore were indicted for the murder of W. H. Cheek. Gore was tried separately and convicted, without a recommendation. He made a motion for new trial, which was overruled by the court, 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 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. If two or more persons form a common intent and purpose to go to the place of business of another and commit a robbery at such place of business, and if in pursuance of such common intent and purpose to commit a robbery such persons should

go to said place of business of the person where it is contemplated that the robbery would be committed, and if, in pursuance of such common intent and purpose to commit a robbery, one of those present, aiding and abetting in such effort to commit a robbery, and acting with intent and purpose, if such should be the case, should shoot and kill the person sought to be robbed, then and in that event the act of the one shooting and killing the other would be attributable to and as the act of all present, aiding and abetting in an effort to commit such crime, and each and all would be equally guilty under the law, if they went there with the common intent and purpose, and in pursuance of such common intent and purpose a crime was committed and they were all present aiding and abetting in the commission of the crime. Now, gentlemen, if you believe beyond a reasonable doubt that this defendant, in the county of Fulton and state of Georgia, at any time prior to the date of the finding and return of this bill of indictment into court by the grand jury, did form a common intent and purpose with another, or others, to commit a robbery, and if you should further believe that, in pursuance of such common intent and purpose, the defendant himself and such other person or persons went to the place of business of another with such common intent and purpose, that is to say, with a common intent and purpose to commit robbery, and if you should further believe that in furtherance of such common intent and purpose, and with the intent and purpose to commit a robbery, one of those present shot and killed the person named in this bill of indictment, in furtherance, as stated, of a common intent and purpose to commit a robbery there, and upon such person, and if you should believe that this defendant was there present, aiding and abetting in the commission of the act, that he went there with a common intent and purpose to commit a robbery, as stated, that in pursuance of such common intent and purpose and in furtherance of such effort one of them shot and killed the one named in this indictment, and, as stated before, this defendant was there aiding and abetting in the commission of the crime, then and in that event each and all so present aiding and abetting in the commission of the crime would be equally guilty, and each and all would be guilty of the offense of murder. Now, gentlemen, if you believe that this defendant, acting with a common intent and purpose with others, went to the place of business named in this indictment, with the common intent and purpose to commit a robbery, and that in furtherance of such common intent and purpose one of them shot and killed the man named in this indictment, and that this defendant was there aiding and abetting the other in his efforts to commit a robbery, and at the time the other shot and killed the one named in this indictment, and you believe that beyond a reasonable doubt, then and in that event it will be your duty to find him guilty of murder."

In his motion for new trial the defendant excepts to and assigns error upon the above instruction, upon the grounds: (a) That it made the test of intention against the defendant the intent to commit a robbery, and not the intent to commit murder; (b) because it was error for the court to deliver this charge on the subject of common intent, without a qualification that if the defendant acted under the coercion and fears of the person who actually killed the deceased, the defendant would not be guilty of possessing a common intent (c) that the failure to charge on the subject of coercion and fear was especially hurtful to the defendant, for the reason that the court admitted, over his objection, his signed confession that before the killing of the deceased this defendant had jointly participated in another robbery; (d) because it was error, after the court had recognized the defendant's statement to the extent of admitting evidence tending to contradict it, for the court to fail to give the contentions of the defendant as well as those of the state on the subject of common intent; (e) that the court in giving the above...