Smith v. State, 28042
| Decision Date | 05 September 1973 |
| Docket Number | No. 28042,28042 |
| Citation | 199 S.E.2d 793,230 Ga. 876 |
| Parties | Herbert Dean SMITH v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
The rule that any act done in pursuance of a conspiracy by one of the conspirators is in legal contemplation the act of all, is subject to the qualification that each conspirator is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy.
Thomas A. Roach, Canton, for appellant.
C. B. Holcomb, Dist. Atty., B. B. Robertson, Canton, Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, Daniel I. MacIntyre, IV, Asst. Attys. Gen., Atlanta, George D. Lawrence, Deputy Asst. Atty. Gen., Eatonton, for appellee.
Herbert Dean Smith was jointly indicted with Charles Bennett, James Lingerfelt, and Marcus W. Ratledge for the murders of William Cantrell and Larry Mulkey. Smith was tried separately. He was found guilty, and sentenced to life imprisonment for each murder, the sentences to be served consecutively. His motion for new trial, as amended, was denied, and he appeals from his conviction and sentence, and the denial of his motion for new trial.
It is strongly urged by the appellant that the verdict was without evidence to support it.
William Cantrell, Deputy Sheriff of Forsyth County, while in the performance of his duties, and Larry Mulkey, who was with him, were murdered early Monday morning, January 10, 1972. Their bodies were discovered in the trunk of the police car in which they had been riding. The cause of their deaths was multiple bullet wounds.
Two burglaries had occurred in the county on Wednesday night, January 5, 1972, or early the next morning, and another burglary had occurred on Saturday night, January 8, 1972, or early the next morning. The transcript shows that the murders occurred while Deputy Sheriff Cantrell was investigating the latter burglary.
The license number of a car was found in the police car in which the bodies were found, and a police alert was issued to stop this car. The car was followed by police officers in Atlanta, and Ratledge was apprehended after he abandoned the car. The murder weapon was in the possession of Ratledge when he was captured. The evidence showed that this weapon had been purchased by Lingerfelt. The car abandoned by Ratledge contained stolen merchandise from one of the Forsyth County burglaries on Wednesday night, and from the burglary on Saturday night.
The following is the testimony relied on by the state to prove the participation of the appellant in a burglary conspiracy in Forsyth County with the co-indictees.
Lt. Bert Frye, with the Georgia Bureau of investigation, testified: In the investigation of the murders the witness had three conversations with the appellant. The appellant told him the following: The appellant met Ratledge while in the DeKalb County Jail. After he was released on bond he received a call from Ratledge and went to Atlanta and met Ratledge at an all-night shopping center. This was on January 5. They talked for a while, and Ratledge came to Forsyth County looking for a place to stay. He had recommended the Lakeview Motel to Ratledge. He did not come to Forsyth County with Ratledge, but came to the Lakeview Motel later, where he met Ratledge. Ratledge got in the car with him and they drove to Lingerfelt's home. Lingerfelt 'had been wanting a job done for some time.' He did not want to talk to the witness about this job. It was after he received the call from Ratledge that he (or they) decided that the job would be done that night. It was decided that Bennett would be the lookout while the job was being done. He and Ratledge went to the Globe Oil Station, and stayed there for some time. Later on they saw Lingerfelt and Bennett going past the station. He and Ratledge drove to a roadside park, where the car was parked in which Lingerfelt and Bennett were riding. After a few minutes he and Ratledge left. He did not want to talk to the witness about where they went. About 4:00 a.m. on January 6, the four men met back at Lingerfelt's home, and stayed there for a while. He did not want to talk to the witness about what they did there. He then carried Ratledge back to the Lakeview Motel and left him.
Mrs. James Lingerfelt testified that she saw the appellant and Ratledge late in the afternoon of Wednesday before the murders on Monday, at her trailer. They came together in the appellant's car. She heard them discuss some kind of gun. Later she noticed the absence of a gun that was there prior to the time they were there. She did not know what happened to the gun. That was the last time she saw the appellant until two or three weeks later when he came by their...
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