Simmons v. State
| Decision Date | 21 February 1936 |
| Docket Number | 10712,10715. |
| Citation | 184 S.E. 291,181 Ga. 761 |
| Parties | SIMMONS v. STATE. NELSON v. SAME. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Where two persons conspire to commit robbery, killing in course of robbery in furtherance of common design to rob, both being present and participating in robbery, is probable consequence of unlawful design to rob, and both are guilty of murder.
Conspiracy may be shown by circumstantial evidence.
Evidence of accused's participation in robbery resulting in fatal shooting held sufficient to sustain conviction for murder.
Prima facie case is sufficient to carry dying declarations to jury ultimate determination as to whether declarant was in article of death and conscious thereof being for jury.
That dying declarant was in article of death may be shown by nature of wound.
Dying declarant's consciousness of impending death need not appear from declaration itself, but may be determined from all circumstances.
Failure to except by motion for mistrial to allegedly improper remarks of court and of solicitor general precluded accused from attacking such remarks in motion for new trial.
Testimony as to incriminating statements of accused held not subject to exclusion on ground that witness to statements did not know whether statements were voluntary, where witness testified that part of statements which he heard was voluntary.
Evidence as to confession held not subject to exclusion on ground that alleged confession was obtained in presence of police officers only, or that circumstances indicated duress and fear of punishment, or that it was not a confession, but series of questions and answers.
In murder prosecution, omission, without appropriate request, to charge law of accident and mistake, held not error although accused's statement authorized charge, where evidence did not authorize charge (Code 1933, § 26-404).
Charge predicating acquittal of murder on finding that accused killed deceased because of coercion held not error as against objections that context contained language charging law of admissions, that charge on confessions and admissions in same case was erroneous, and that charge expressed opinion as to accused's guilt.
Charge on separate verdicts possible against defendants jointly tried for murder held not cause for reversal, as against objections that charge was argumentative and misleading, imposed duty to convict or acquit both defendants, and did not show kind and form of verdict to be returned in various alternatives.
Evidence sustained conviction for murder committed in course of robbery.
Error from Superior Court, Camden County; J. T. Grice, Judge.
John Henry Simmons, alias Johnnie Jones, and Thomas Nelson, alias Lincoln, were convicted of murder, and they bring error.
Affirmed.
Charge predicating acquittal of murder on finding that accused killed deceased because of coercion held not error, as against objections that context contained language charging law of admissions, that charge on confessions and admissions in same case was erroneous, and that charge expressed opinion as to accused's guilt.
Edwin J. Feiler, of Savannah, for plaintiff in error Simmons.
Farr & Mitchell, of Brunswick, for plaintiff in error Nelson.
W. B. Gibbs, Sol. Gen., of Jesup, M. J. Yeomans, Atty. Gen., B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., and E. J. Clower, of Atlanta, for the State.
Syllabus OPINION.
John Henry Simmons and Thomas Nelson were jointly indicted and tried for the murder of N. K. Perry. The evidence tended to show that about 10 o'clock on the night of September 20, 1934, Perry and a woman were seated in an automobile, when the defendants attacked them for the purpose of robbery, and shot Perry at close range with a shotgun loaded with bird shot, inflicting a wound from which he died at 11 o'clock the next day. A post mortem examination disclosed a number of the shot in the heart. The assailants escaped, and shortly afterwards Simmons was first arrested, and then Nelson. Both made to the arresting officer statements admitting a conspiracy to rob the occupants of the automobile, consummation of the robbery, and shooting Perry in the progress of the robbery. They also made statements before the jury which included admissions of similar import. There was corroborative testimony. A verdict was rendered, finding both defendants guilty without any recommendation. Simmons filed a motion for a new trial solely on the general grounds. Nelson filed a separate motion for new trial upon general and special grounds. Both motions were overruled, and each of the movants excepted.
1. Where two persons conspire to commit the crime of robbery and in the furtherance of the common design to rob, both being present and participating in the commission of a robbery, in the course of which one of them shoots and kills the person robbed, such killing is the probable consequence of the unlawful design to rob, and both are guilty of murder. Berryhill v. State, 151 Ga. 416, 107 S.E. 158; Gore v. State, 162 Ga. 267, 134 S.E. 36; Lumpkin v. State, 176 Ga. 446, 449, 168 S.E. 241. Chance v. State, 156 Ga. 428 (3a), 119 S.E. 303, 304. The evidence was sufficient to support the verdict against the defendant Simmons, and there was no error in overruling his motion for a new trial.
2. Findley v. State, 125 Ga. 579, 54 S.E. 106. That the declarant was in articulo mortis may be shown by the nature of the wound, and the declarant's consciousness of impending death may be established by other evidence. It need not appear from the declaration itself, and may be determined from all of the circumstances. 30 C.J. 263, § 504. The evidence as to the character of the wound, and conduct of the declarant and his sayings, was sufficient to show prima facie that he was in the article of death and conscious of his condition when several hours before death he made certain declarations that were admitted in evidence as set forth in the second special ground of the motion for new trial, and there was no error in overruling the motion to rule them out on the alleged grounds: (a) "There was not sufficient evidence that said alleged dying declaration was made by the deceased while he was cognizant of his dying condition and impending death, and that he was in the article of death at the time of making said declarations." (b) "It was only an opinion of the witness that the deceased was conscious of his dying condition, and such condition not shown to be known to the deceased." (c) "It appears that the deceased was in a state of partial unconsciousness at the time of the alleged dying declaration, and did not know whether the person or persons shooting him were negroes or not." (d) "The testimony of the witness was to the effect that his brother, the deceased, was in a dying condition only during the last hour of his life, and the alleged dying declarations were made before the last hour of the deceased's life."
3. Certain statements by the judge while a witness for the state was under cross-examination were complained of as the improper expression of an opinion on the issues involved. The proper mode of excepting to such statements was by motion for mistrial, and the defendant failed to adopt this procedure. He could not abide the chance of a favorable verdict, and, after the return of an adverse verdict, have that verdict set aside on a motion for new trial. Tanner v. State, 163 Ga. 121 (9), 130, 135 S.E. 917; Herndon v. State, 178 Ga. 832 (6), 850, 174 S.E. 597. The same principle applies to alleged improper remarks of the solicitor general during the progress of the examination of the witness. Snell v. State, 179 Ga. 52, 175 S.E. 14.
4. Sid Hurlbert, a witness for the state, testified, that he and Jim Miller took Simmons to the city prison farm (ca...
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