Thompson v. State
| Decision Date | 16 August 1928 |
| Docket Number | 6604. |
| Citation | 144 S.E. 301,166 Ga. 758 |
| Parties | THOMPSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
In prosecution for murder, instruction to convict defendant, if evidence showed some other person than defendant killed deceased, and that defendant was present at time, aiding and abetting such other person in commission of unlawful act, and participating in criminal intent, held authorized by evidence.
Charge in prosecution for murder, to find defendant guilty, if some other person than defendant killed deceased, and defendant aided such other person in commission of act, was not error on ground that indictment charged defendant and two other named persons with offense, and that instruction authorized jury to inquire whether others than defendants mentioned committed crime.
Instruction in prosecution for murder, to find defendant guilty, if evidence shows conspiracy to rob deceased, that defendant was party to conspiracy and had not withdrawn therefrom prior to killing, and that conspirator killed deceased while attempting to carry out original purpose of conspiracy though defendant was not actually present at scene of killing, and did not intend to kill, was supported by evidence showing conspiracy between defendants.
Instruction, in prosecution for murder, to convict defendant if evidence showed conspiracy to rob deceased, and that defendant was party to such conspiracy, and did not withdraw therefrom before killing by co-conspirator, though not intending to kill, and not present, was not error, as expressing opinion that there was conspiracy.
Instruction to convict defendant of murder, if party to conspiracy to rob deceased, and not withdrawing prior to killing, held not error, as not applying where husband and wife are defendants.
Instruction, under Pen. Code, 1910, § 1013, that question in criminal case was whether there was sufficient testimony to satisfy mind beyond reasonable doubt, whether dependent on positive or circumstantial evidence, immediately following instruction that circumstantial evidence must be sufficient to exclude every reasonable theory save guilt, was not error, as confusing, and eliminating distinction between positive and circumstantial evidence.
Instruction, under Pen. Code 1910, § 1013, that question in criminal case is whether there is sufficient testimony to satisfy the mind beyond reasonable doubt whether evidence be positive or circumstantial, immediately following instruction that circumstantial evidence must exclude every reasonable hypothesis save guilt, was not error, as permitting inference that there was other than circumstantial evidence in case.
Where court defines direct and circumstantial evidence, and gives jury rule governing sufficiency of circumstantial evidence to authorize conviction, omission to instruct that defendant's guilt is sought to be established only by circumstantial evidence is not sufficient ground for new trial.
Requested charges, in prosecution for murder, that if defendant remained in car while other defendants went to deceased's home with intent to rob him, defendant would not be guilty, unless she aided in criminal intent, and would not be guilty if others killed deceased in quarrel, and defendant was not present aiding and abetting criminal intent, held properly refused, as covered by instruction requiring defendant to be present, actually or constructively, and aiding and abetting actual perpetrator of crime, to be convicted as principal.
In prosecution for murder, based on conspiracy of defendants to rob deceased, requested instruction that, to convict, jury must find defendant consented and concurred in perpetrating act of killing, and had felonious design on deceased, or participated in felonious design of persons killing deceased, and that mere presence and participation in general transaction in which homicide was committed was not conclusive evidence of concurrent design with person killing, was properly refused as not adjusted to facts of case.
Where three persons conspired to rob, and one of them was not actively, but was constructively, present aiding and abetting robbery, while others killed person intended to be robbed, killing was probable consequence of design to rob, and all conspirators were guilty of murder, including one constructively present; it being sufficient that murder is one of incidental probable consequences of execution of design to rob, without being part of original design to rob.
Where killing of deceased is incidental and probable consequence of execution of design to rob, and appears at moment to be expedient for common purpose, intent of actual slayer is imputable to co-conspirators.
Requested instruction, in prosecution for murder, that conviction of defendant, though present at time of crime, could not be had, unless evidence showed beyond reasonable doubt that she assisted in killing deceased, or shared criminal intent of actual slayer, was properly refused.
Testimony, in prosecution for murder, that deceased was man who carried considerable money all the time, and that such fact was generally known in community, held properly admitted, where there was evidence from which jury might draw inference that defendant had knowledge that deceased was accustomed to keep on hand considerable money.
In prosecution for murder, based on killing by defendants, conspiring to rob deceased, testimony that one defendant requested witness to exchange guns with him, and to take him to Georgia and bring him back before daylight, was properly admitted over objection that it was hearsay and irrelevant, under Pen. Code 1910, § 1025, admitting declarations of conspirator during pendency of criminal project, after fact of conspiracy is proved.
Under Pen. Code 1910, § 1025, declarations which form part of chain of connected facts connecting prisoner with crime are admissible, though not made in his presence or during pendency of criminal project.
Where witness testified that he came to trial on same train with process server, and that he expected to pay hotel bill himself, refusal of court to permit witness to answer question whether he had paid his railroad fare, on ground that state was under duty to pay fare of nonresident witness, was not error, as restricting right of cross-examination, and minimizing effect of evidence that fare was paid by process server, where witness had answered question twice.
In cross-examination of state's witness, in prosecution for murder, as to when witness first added that he told about defendant trying to get pistol from him and riding to Georgia, to which solicitor general objected as having been covered, question by court to witness to tell, if he remembered, witness answering he did not remember, held not error, as denial of right of thorough cross-examination, and because interruption by court tended to minimize effect of cross-examination.
Where, in prosecution for murder, defendant's counsel asked state's witness as to when he first added statement that defendant tried to get pistol and wanted to go to Georgia, to which solicitor general objected as having been gone over, statement by court, "Tell him if you remember, and if you don't remember," held not error, as suggestion to witness of answer he should make to question.
Testimony, in prosecution for murder, that witness for the state always had money in his house, held properly admitted, where there was evidence that witness generally kept money on his person and in his house, which was generally known in neighborhood in which defendant lived, that codefendant went to home of witness with intent to rob, and that all defendants were near witness' home.
Testimony, in murder prosecution, by wife of deceased, that deceased sold cotton shortly before he was killed, and that deceased cashed a good many checks of people working at sawmills, held not inadmissible, as irrelevant and incompetent.
Questioning of defense witness by court, in prosecution for murder, as to witness carrying milk to home of defendants on certain night, and as to whether he work them up every night, and reason therefor, held not error, as impeaching witness' credibility, and intimating to jury that witness was unworthy of belief.
Testimony by state's witness that defendant asked him to exchange guns and to take him to Georgia that night, and that he did not desire to go in car in which he drove up with defendant, held not inadmissible on ground that matter testified to took place prior to alleged conspiracy.
Testimony by state's witness, in prosecution for murder, that he obtained gun from deputy sheriff, which defendant admitted was his, even though inadmissible, as irrelevant, incompetent, hearsay, did not require grant of new trial.
In prosecution for murder, testimony by wife of deceased that she called her husband during the night, and that husband stated it was same white man and negro that were there the other night, held properly admitted as part of res gestae.
Circumstantial evidence of conspiracy by codefendant to rob deceased, and killing of deceased by one of defendants during course of robbery, supported conviction for murder.
Error from Superior Court, Murray County; C. C. Pittman, Judge.
Eula Elrod Thompson was convicted of murder, and she brings error. Affirmed.
Refusal to permit witness to answer whether he paid own railway fare to trial, after answering question twice, held not error, as minimizing evidence that fare was paid by process server.
Clifford Thompson, Eula Elrod Thompson, and Jim Hugh Moss were jointly indicted for the murder of Coleman Osborn. Clifford and Eula Elrod Thompson were husband and wife. Jim Hugh Moss was a negro....
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