Lumpkin v. State
| Decision Date | 20 February 1933 |
| Docket Number | 8833. |
| Parties | LUMPKIN v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
"Conspiracy" consists in corrupt agreement between two or more persons to dounlawful act, which agreement may be established by direct proof or by inference.
Conspirator furnishing automobile in which was loaded shotgun in furtherance of conspiracy to transport liquor held guilty of murder, where accompanying coconspirator used gun to shoot officer who confronted conspirators; actual slayer's intent being imputable to conspirator.
All conspirators are guilty of murder which is incidental probable consequence of execution of design of conspiracy although not part of original design.
Refusal of requests covered by general charge, in so far as correct held not to authorize new trial.
In prosecution for murder of officer confronting motorists transporting liquor, charge that officer had no right to kill to effect arrest on misdemeanor charge, nor to use force except such as might be necessary to take party alive, held not reversible error.
Charge was not reversible error, as against the contentions that, if officers attempted arrest, it was illegal because officers did not have any warrant, and did not know that accused and his companions were violating any law, that the charge instructed that the officer could use any amount of force short of actually killing accused, and that the officers had no right under the evidence to search the automobile in which accused was riding or arrest the occupants of the car, and accused had the right to resist arrest with such force as was necessary to prevent it.
In prosecution for murder of officer confronting motorists transporting liquor, charge on conspiracy held authorized.
Charge stated that, when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy of one of the conspirators is the act of all, subject to the qualification that each is responsible for the acts of the others only so far as such acts are actually or necessarily done in pursuance of and in furtherance of the conspiracy, and that, if accused and others formed a conspiracy to take or buy and carry away intoxicating liquor at whatever cost, and take human life, if necessary, and if a person were killed by conspirator in carrying out the conspiracy, then all the conspirators who participated or were present and willfully and knowingly and feloniously acted in furtherance of carrying out the conspiracy would be guilty.
In prosecution for murder of officer confronting motorists transporting liquor, charge regarding right to resist illegal arrest held not reversible error.
Charge that, if accused knew he was about to be arrested, and was not apprised of fact that party seeking to arrest him was an officer, nor put on full knowledge of the situation, and had reason to believe the arrest was illegal, he had a right to resist it, but not to take life, while not entirely accurate, was not reversible error, for the reasons, as contended, that the court predicated the right to resist illegal arrest on the theory that accused was not put on full acquaintance that deceased was an officer, and because the court limited the right to resist with the words "but not to take life," which excluded from consideration the evidence and contention that the effort to search and arrest was accompanied by violence and actual shooting.
In prosecution for murder of officer confronting accused and coconspirators while they were transporting liquor, charge that conspiracy to "hijack" should be considered as illustrating mind and motive of accused and extent of conspiracy held not reversible error.
Charge was not reversible error, as against the contentions that it was not adjusted to the facts of the case, and expressed an opinion that, if accused were engaged in hauling whisky, this could be used by the jury as a circumstance against him; that the taking of human life was not a reasonable and probable consequence of an agreement to transport liquor; and that the charge strongly intimated that, if accused were engaged in transporting liquor, it might be considered as a circumstance in determining his guilt.
In prosecution for murder of officer confronting motorists transporting liquor, charge that officer may arrest one for crime committed in his presence without warrant held authorized.
Evidence sustained conviction for murder of officer who confronted accused and coconspirator, who shot officer, while conspirators were transporting liquor.
Error from Superior Court, Polk County; J. R. Hutcheson, Judge.
Thad Lumpkin was convicted of murder, and he brings error.
Affirmed.
In prosecution for murder of officer confronting motorists transporting liquor, charge that officer had no right to kill to effect arrest on misdemeanor charge, nor to use force except such as might be necessary to take party alive, held not reversible error.
Thad Lumpkin was placed on separate trial under a joint indictment charging him and Percy Carter with the murder of Will Wester by shooting him with a gun. The jury returned a verdict finding the defendant guilty and recommending mercy of the court. A motion for a new trial was overruled, and the defendant excepted. The evidence showed, without contradiction, that Thad Lumpkin, Percy Carter, and two others went off at night in an automobile (a Dodge sedan), to procure and transport a quantity of liquor. The automobile was the property of Lumpkin, as was also a loaded shotgun and several extra shells, and an unloaded pistol, placed in the car at the beginning of the expedition by Lumpkin. One phase of the evidence was that these weapons were carried "to trade for liquor," while another was that they were carried for "the purpose of running a bluff, bluffing this liquor." They obtained through theft, or a process of "hijacking," twenty gallons of liquor late at night, and were transporting it in the car, when they saw the headlights of another car some distance in front of them. When they approached within about thirty feet of the other car, they found that it was parked in the road, and they stopped, the lights of both cars being turned on and facing each other. The second car was that of Officers Tolbert and Wester, who, anticipating the capture of a different car, had parked and were waiting for it to come along. When the first-mentioned car stopped, the officers saw that it was not the car they were looking for, but became suspicious and started to investigate. At this stage the accounts of what happened differ. The theory of the state was that as the officers were approaching, without a word having been spoken or any show of force having been made, a shot was fired from the shotgun by a man from within the liquor car, aimed at and wounding Tolbert in the legs and causing him to fall; that the same man changed his position and fired the gun at Wester, striking him in the chest; that about the time of the second shot Wester fired two shots with his pistol at the man, and Tolbert fired at him also; that Wester died immediately after firing; that all the men in the liquor car fled; that Lumpkin returned and undertook to drive his car away, but could not get it to move; that he started off again, and was wounded by Tolbert, but nevertheless escaped. The theory of the defense was that the agreement was confined to acquisition and transportation of liquor, and did not extend to the taking of life; that Lumpkin was sitting with one of the other men on the rear seat, while Percy Carter was on the right front seat with the driver on his left; that, when they stopped, they saw Tolbert and Wester approaching with their guns, and, before a word was said, the officers opened fire and shot at them several times; whereupon Percy Carter seized the shotgun which was carried between him and the driver, and fired the two shots at the officers, with the results as stated above. Referring to the time when the liquor car approached and stopped, Tolbert testified, in part: ...
To continue reading
Request your trial