Syllabus by Editorial Staff.
Existence
of conspiracy may be shown by circumstantial evidence.
Evidence
authorized finding that there was conspiracy between accused
and his joint indictee to kill deceased and that deceased was
killed pursuant thereto.
Evidence
sustained conviction for murder.
Error
from Superior Court, Troup County; C. C. Pittman, Judge.
James
Jenkins was convicted of murder, and he brings error.
Affirmed.
HUTCHESON
J., and RUSSELL, C.J., dissenting.
PER
CURIAM.
1. The
existence of a conspiracy may be shown by circumstantial as
well as by direct evidence. McLeroy v. State, 125
Ga. 240 (2), 54 S.E. 125.
2.
There was sufficient evidence to authorize the jury to find
that there was a conspiracy between the accused and another
person jointly indicted, to kill the deceased, and that the
deceased was killed in pursuance of such conspiracy.
3.
There were no special grounds in the motion for new trial.
The evidence
authorized the verdict, and the judge did not err in refusing
a new trial.
Judgment
affirmed.
All the
Justices concur, except RUSSELL, C.J., and HUTCHESON, J., who
dissent.
HUTCHESON
Justice (dissenting).
As the
motion for new trial is based solely on the general grounds,
it is necessary that consideration be directed to the
evidence. The state introduced two witnesses. One of these,
Charley Jenkins, testified as follows: "I know the
defendant. I knew Dan Daniel, and he is dead. He got killed
in Troup County, Georgia, on the 14th of November, 1934. He
was struck and killed with a club-ax. I am related to the
defendant. I am his uncle. The time Mr. Daniel was killed was
around seven o'clock in the morning. He lived on Mr.
Thornton's place. * * * At the time he was killed me and
Mr. Daniel was grinding an ax. * * * Five of us there, Mr,
Daniel, the dead man, James Jenkins, the defendant, Charles
Beasley, who has already been tried for this crime, Mr.
Daniel's son, and myself. James Jenkins and Charles
Beasley came up there together. * * * Mr. Jimmy and these
other two men got there about the same time. Mr. Daniel was
holding the ax, and I was turning the grindstone. * * * One
of these men lived near a quarter of a mile from the house,
and the other stayed about 300 yards from the house. James
Jenkins lived closer than Charley Beasley to the house. When
they came up there, they brought an ax and a pair of
scissors. * * * James put the scissors on the grindstone to
sharpen them. * * * The first thing that happened, James
walked up there to sharpen the scissors, and Mr. Daniel says:
'James, I want my house. I want you to get out of the
house.' James said, 'Have you heard from Mr.
Thornton?' * * * Mr. Daniel told him Mr. Thornton had
nothing to do with the house, he rented him the house. James
told him he thought it was Mr. Thornton's house. That was
all that was said. The lick took place then. I couldn't
tell you how it happened. There was a lick. * * * I had my
back and side to them. I heard something hit the tin on the
shelter up there, that was what made the lick. I looked back
and Mr. Daniel was on the ground. * * * I looked at the
fallen man. * * * I did not see the lick that killed Mr.
Daniel. I heard something hit the roof of the house, the tin.
* * * The defendant, James Jenkins, was gone and I ain't
seen him no more until last court. * * * Before I looked
around he was gone. I did not hear anything said between Mr.
Daniel and this defendant or between Mr. Daniel and Charley
Beasley, except what I have stated, in reference to the
trouble. * * * I stayed there until Mr. Daniel was carried
away. Mr. Daniel lived until next morning about four
o'clock, I think, and died. He never spoke after he was
hit. I saw the wound on his head. It was a big hole right up
there on the side of his head. Beasley would not have to come
by James Jenkins' house in order to get up to Mr.
Daniel's place. He could have gone the other way. * * * I
hadn't heard him (the defendant) make any threat to Mr.
Daniel. If he had made it I would have heard it. Mr. Daniel
started the conversation when he told him he wanted him to
give him his house. Beasley was standing out behind. Mr.
James Daniel is a son of the dead man. Charley Beasley and
James Daniel wasn't saying nothing. * * * Charley Beasley
killed Mr. Daniel. I ain't see James Jenkins do nothing
towards killing him and I was present all the time. As to how
far Mr. Daniel was from the defendant, I answer the
grindstone ain't more than about three feet. Mr. Daniel
did not have a stick in his hand. He had an ax."
The
other witness for the state, J. E. Daniel, testified to
practically the same state of facts, except that he was more
specific, as follows: "Papa told him, says, 'James
there are plenty houses now, and I want you to get you a
house, because I am going to need mine about the first of the
year. I told you here sometime back if you kept drinking on
the place you would have to get you a place. I warned you two
or three times, and you won't listen to me.' James
says, 'I hate to have to move and have to work a whole
year for house rent.' Papa told him: 'I can't
help it what you have to do. You haven't worked a whole
year for house rent for me. What work you have done for me I
have paid you for it, and took out so much for house rent
when you worked. I know you haven't been able to work
much, because your leg was broke.' James says, 'Mr.
Thornton been down?' Papa says 'No, he hasn't
been down. Mr. Thornton hasn't got anything to do with
it, because I traded for the place for a
year. I am looking after it for this year.' James says
'You haven't nothing to do with it.' I says
'James, shut up your mouth here; don't, you...
