Syllabus
by the Court.
The
evidence was sufficient to authorize the court to give to the
jury the definition of a principal in the second degree, and
in doing so the court did not charge in such way as to
mislead or confuse the jury.
"Statements
made by a defendant charged with murder, that he did the
killing charged because of certain facts which, if true
furnished no legal excuse or justification therefor amount to
a confession." The statements made by the defendant in
the present case were of that character.
On the
hearing of a motion for a new trial, one of the grounds being
alleged incompetency or disqualification of one of the jurors
trying the case, on account of alleged bias and prejudice
against the accused, the judge is the trior of that issue
and where in such case the evidence is conflicting, his
discretion in refusing a new trial on that ground will not be
disturbed, unless it is manifestly abused. Such discretion
was properly exercised in the present case.
The
other grounds of the motion for a new trial are without
merit, and the court did not err in overruling the motion.
Error
from Superior Court, Troup County; J. R. Terrell, Judge.
John
Thompson was convicted of murder, his motion for a new trial
was overruled, and he brings error. Affirmed.
HILL
J.
John
Thompson and Walter Eastridge were jointly indicted for the
murder of W. B. Shirey. Thompson was placed on trial, and a
verdict of guilty was rendered against him, without
recommendation. He made a motion for a new trial, which was
overruled, and he excepted.
1. The
first special ground of the motion complains that there was
no evidence in the case to authorize the charge of the court
on the law applicable to a principal in the second degree,
and that the charge given was calculated to confuse and
mislead the jury, and was therefore harmful and prejudicial
to the defendant. The charge complained of was as follows:
"A person, gentlemen, may be principal in an offense in
two degrees. A principal in the first degree is the actor or
absolute perpetrator of the crime. A principal in the second
degree is he who is present aiding and abetting the act to be
done. The punishment for a principal in the second degree is
the same as the punishment for a principal in the first
degree. There is no difference, gentlemen, in the punishment.
If you should find in this case, under the evidence and under
the law as I have already given you in charge and will
hereafter give you in charge, that the defendant, John
Thompson, is guilty of murder under the evidence, that he was
the actor or absolute perpetrator of the crime, why then that
would end your deliberations, and you should return a verdict
accordingly. But you may inquire whether or not, under the
evidence, if he is not the actor or absolute perpetrator of
the crime, as to whether or not, under the evidence, he is
guilty as a principal in the second degree. In order to
constitute one a principal in the second degree--a common
intent existing in the minds of both, that is, in this case
in the minds of John Thompson and Walter Eastridge, to kill
and murder W. B. Shirey; and it must further appear, in order
to constitute John Thompson a principal in the second degree,
not only that this common purpose existed, that there was a
felonious design to kill and murder W. B. Shirey, and that
John Thompson shared that design with Walter Eastridge--that
must not only appear, but it must further appear that John
Thompson was present in pursuance of that design, and that he
was present aiding and abetting Walter Eastridge to commit
that crime. If you believe from the evidence in this case
that Walter Eastridge, was the actual perpetrator of the
crime, that is, if you find, under the evidence, that he
killed and murdered W. B. Shirey, and you further find from
the evidence that there was a common purpose, a common
intent, a common design, existing in the minds of John
Thompson and Walter Eastridge to kill and murder W. B.
Shirey, and you further find that John Thompson was present
participating in the killing and murdering of W. B. Shirey,
and that he was aiding and abetting Walter Eastridge to
commit the crime, why then, gentlemen, under such
circumstances as those, John Thompson would be guilty of
murder as principal in the second degree. In criminal law,
gentlemen, the word 'abet' means to encourage, to set
another on to commit a crime. To abet another to commit a
crime is to command, to procure, or to counsel him to do it;
and presence and participation are necessary to constitute
one an abettor. Even if one is present at the commission of a
crime, mentally approving or consenting to the same, yet, if
that consent was unknown to the person committing the crime,
the one so mentally approving could not be held guilty as a
principal. If you believe from the evidence that it was the
common purpose shared in by both of them, by the defendant on
trial, John Thompson, and Walter Eastridge, to kill and
murder W. B. Shirey, or any person at such still at the time
W. B. Shirey was shot and killed, that they both shared in
the felonious design and purpose to kill W. B. Shirey or any
person at the still, as indicated, at that time, in pursuance
of such common purpose, and you further find that the
defendant, John Thompson, was present and in pursuance of a
common purpose and design to do so, shared by himself and
Walter Eastridge, was aiding and abetting Walter Eastridge in
seeking to kill and murder W. B. Shirey or some person at
such still at the time indicated, and under such
circumstances Walter Eastridge shot and killed W. B. Shirey,
and you find that Walter Eastridge is guilty of murder in
killing W. B. Shirey, then, John Thompson, the defendant on
trial, would be guilty of murder as principal in the second
degree, and you should so find if you believe those facts to
exist."
We do
not think the charge is open to the criticisms directed
against it. It is a full and clear statement of the law
applicable to the phase of the case...
