Thornton v. State

• Decision Date: 12 February 1904
• Citation: Thornton v. State, 119 Ga. 437, 46 S.E. 640 (Ga. 1904)
• Parties: THORNTON . v. STATE.
• Court: Georgia Supreme Court

46 S.E. 640

119 Ga. 437

THORNTON .

v.STATE.

Supreme Court of Georgia.

Feb. 12, 1904.

CRIMINAL, LAW—PRINCIPAL IN SECOND DEGREE.

1.To constitute one a principal in the second degree, he must not only be present when the crime is committed, but must aid and abet the actual perpetrator of the crime.One who is present when a crime is committed, hut neither assists in its commission, nor shares in the crim-inal intent of its perpetrator, is not guilty as a principal in the second degree.

¶1.SeeCriminal Law, vol. 14, CentDig. § 86.

(Syllabus by the Court.)

Error from Superior Court, Chattahoochee County; W. B. Butt, Judge.

Wilborn Thornton was convicted of murder, and brings error.Reversed.

J. B. Hudson, C. C. Minter, Graham Forrester, and Hatcher & Carson, for plaintiff in error.

S. P. Gilbert, Sol.Gen., and Jno.C. Hart, Atty. Gen., for the State.

FISH, P. J. Dan Amos and Wilborn Thornton were indicted for the murder of Sam Gordon.In one count they were both charged as principals, and in another count Thornton was charged as principal in the second degree.Upon the trial of Thornton, it appeared that Amos, Thornton, Gordon, and others attended a dance at the house of one Wilson, in Chattahoochee county, and that, some time between 10 and 1 o'clock of the night of the dance, Thornton loaned Amos a pistol.Ben Gordon, a witness for the state, testified: "I saw the defendant[Thornton] give Amos something.Amos came up to him and told him he wanted to get his riprap, meaning his pistol.Said Sam Gordon had been taking money away from him when they met, and if he took any more he was going to kill him.Thornton told him to take it and kill him if he took any more.He gave him his pistol."It appeared that Dan Amos shot Sam Gordon next morning about 7 o'clock, in an old field, about 100 yards from Wilson's house.Ben Gordon further testified: "When shooting took place, Thornton and Amos were pretty close together—about five feet—talking.Dan told Sam he owed him a dime.He was standing, talking, and Sam was sitting down.Sam told him he didn't owe him any dime.He said, 'Yes, you do.'Sam says, 'If I owe you a dime, I will pay your dime; and I am going to make some of you boys shoot me with these little guns you are carrying around here.'Sam had no weapon in his hand, and done nothing to Amos when he shot him.Amos was standing up.Thornton gave Amos the pistol before day; can't say exactly what time; the morning before day he was shot It was about a hundred yards from the place he gave him the pistol to where killing took place.* * * I do not say now that they played cards that night before they went out in the field, and Sam won their money.They didn't do it, and they didn't play cards out in the field next morning.They had just got out there, and they were not playing at night.* * * They were sitting down, talking; did not have anything with them; had no cards, no dice; Just sitting around.I was not sitting down.Johnnie Gordon and Wilborn Thornton were there.The fuss started between my brother and Dan, about a dime Dan said he owed him; didn't say about what.* * * Wasn't any row going on there at all; everybody seemed to be in good humor until Dan told my brother that; and the first I knew of it was the shooting.* * * I told him [Sam Gordon] about Dan borrowing the pistol from Wilborn."Arthur Denson, a witness for the state, testified: "Was at Wilson's house where he[Amos] got the pistol.Was out doors, and Dan Luther[Amos] came out, and Wilborn he came out, too, and Dan Luther says, 'Wilborn, lend me your riprap;'he says, 'Sam Gordon has been robbing me in every game I get into with him, and, if he robs me to-night, I will kill him.'So he let him have it.Wilborn says, 'Take it and kill the damn son of a bitch if he robs you.'Wilborn was present, standing out there, when this fellow shot him.I don't know how close he was standing to him.I was not close up myself.* * * I was not there when the difficulty occurred.I was going out there, but hadn't got there, good, before the pistol fired.I don't know how the difficulty started.* * * Couldn't say what the trouble was about.I was not there, and didn't see it.All I saw taking a hand in it was Dan shooting, and the other man fell, and then Dan run.Dan held pistol on him until Sam fell.I didn't see anybody else do anything, except scatter.* * * I could not say what they were doing; did not see them Some were standing up, and some sitting down * * * I believe I saw one card.After the difficulty I saw one, but what they were doing I don't know.I saw the trey of clubs where they had been sitting around, but what they were doing I could not say.* * * Did not see Dan Amos playing cards."Thornton was found guilty, and sentenced to the penitentiary for life.He moved for a new trial upon various grounds, one of which was that the verdict was contrary to the evidence, and without evidence to support it.A new trial was refused, and he excepted.

"A person may be principal in an offense in two degrees.A principal in the first degree is the actor or absolute perpetrator of the...