Mcleroy v. State

• Decision Date: 10 May 1906
• Citation: 54 S.E. 125,125 Ga. 240
• Parties: McLEROY. v. STATE.
• Court: Georgia Supreme Court

54 S.E. 125

125 Ga. 240

McLEROY.

v.STATE.

Supreme Court of Georgia.

May 10, 1906.

1. Homicide—Evidence—Instructions.

It appeared on the trial for murder that the defendant was one of four who fired pistols at the deceased at the same time from different directions; two bullets taking deadly effect, the others missing or failing to penetrate, there being nothing to indicate which of them fired the fatal shots, except the range of the bullets as indicated by the wounds inflicted, and these indicating that the bullets had come from another than the defendant. Such evidence was insufficient to show that the defendant killed the deceased, and there was no evidence upon which to base a charge upon the theory that the defendant fired the fatal shot. Accordingly it was erroneous to charge, in effect, that if the defendant shot and killed the deceased without justification he would be guilty of the offense of murder, whether or not there existed between him and the others a "joint conspiracy, combination, common intent, and preconcerted plan to kill the deceased."

2. Criminal Law—Conspiracy—Evidence-Instructions.

There was sufficient evidence in this case to authorize a charge upon the law of conspiracy, and such a charge would not be inappropriate merely because there was no allegation in the indictment as to the existence of a conspiracy.

(Syllabus by the Court.)

Error from Superior Court, Madison County; H. M. Holden, Judge.

Charlie McLeroy was convicted of murder, and brings error. Reversed.

The defendant was convicted of murder, with a recommendation to mercy. From the evidence it appeared that he and the deceased had attended a picnic. Returning home, they, with others, sought shelter from the rain in a house. While at the house, the defendant and Henry Williams, Will Davis, Tom Davis, and others went under the well shelter and were talking. The defendant was a brother of Crawf Muckle (McLeroy) and a brother-in-law of Henry Williams. George Davis testified that it was Henry Williams and Crawf Muckle who were under the well shed, and said: "It seemed like they were talking a little secret, to me." Will Davis was half drunk, and cursing and threatening to kill the deceased. Before the rain was over, the deceased, with his friends, started home, and they were immediately followed by the persons above named, and others. The quarreling was continued between Will Davis and the deceased. While going along the road Williams kept behind the deceased, and said that, if "others get out of the way, we will kill [deceased]." When the deceased and some of his friends were about to turn off into an other road, Will Davis ran in front. Crawf Muckle handed him a pistol. A rock was thrown by Will Davis. A scuffle ensued. One of the deceased's friends was slapped down by one of Davis' friends. The row thus became quite general. At this stage the defendant and Will Davis, Crawf Muckle, and Williams were all seen firing pistols at the deceased at the same time, and he fell dead as they ceased firing. The defendant shot at the deceased from the front. Only two bullets penetrated the deceased, one into the right side of the body, the other into the right side of the skull; the latter penetrating the brain. Henry Williams was the only one who shot from that side. Except as may be inferred from what is stated above, it is impossible to say who fired the fatal shot The defendant is not shown to have participated in any of the quarreling, or to have been in any way concerned further than by mere presence in the party, until he was seen firing at the deceased. The defendant in his statement to the jury denied having shot or otherwise engaged in a difficulty, and proved good character. There is much evidence tending to support his statement.

The defendant moved for a new trial upon the usual general grounds, and, among others, upon the grounds following: "(4) Because the court erred in charging the jury as follows: 'I charge you, further, that if defendant on trial, Charlie McLeroy, shot and wounded the deceased, Lee Dudley, with an intention to kill him with a pistol, and if the wound was inflicted by the defendant, and if the...