Walker v. State

• Decision Date: 12 April 1911
• Citation: 70 S.E. 1016,136 Ga. 126
• Parties: WALKER v. STATE.
• Court: Georgia Supreme Court

70 S.E. 1016

136 Ga. 126

WALKER v. STATE.

Supreme Court of Georgia

April 12, 1911

Syllabus by the Court.

Three defendants were jointly indicted and tried for murder. The evidence was sufficient to show concert of action in killing the person named in the indictment, and authorized an instruction on the law of conspiracy, and of principal in the first and second degree.

Where two or more persons are jointly indicted in a single court for murder, and there is no dispute in the evidence that one of them inflicted the mortal wound under circumstances which made him guilty of murder, there can be no conviction under that indictment, as to the others, of assault with intent to murder, based on an assault independent of that which caused the death.

The charge of the court was comprehensive and fair, the evidence did not authorize a charge on the law of voluntary manslaughter, the verdict was authorized by the evidence, and no error of law appears in the record.

Error from Superior Court, Jasper County; H. G. Lewis, Judge.

Cornelius Walker was convicted of murder, and brings error. Affirmed.

A. S Thurmond and Greene F. Johnson, for plaintiff in error.

Jos. E Pottle, Sol. Gen., and H. A. Hall, Atty. Gen., for the State.

EVANS P.J.

The plaintiff in error and two others were jointly indicted for the murder of John Childs. The jury returned a verdict of guilty, with a recommendation, as to him, and of not guilty as to his co-defendants. He made a motion for new trial, complaining of certain charges and of omissions to charge. His motion was denied.

1. The evidence as to what occurred at the scene of the homicide was not harmonious, but it was of such character as to authorize a charge on conspiracy to kill. All the defendants came in company to the place where they found the deceased, which was the scene of the homicide. There was evidence that all were armed, and that in the combat of words, immediately before the killing, at least two of them were engaged with the deceased, and on the same side of the controversy. Two of them drew their pistols before the deceased got his out, and one witness testified that, when the plaintiff in error fired upon the deceased, the other defendant fired before the deceased fired at him. When the deceased attempted to escape the attack of the defendants, and seek the protection of the house, all of the defendants pursued; some of them firing their pistols at the retreating man. It is true that there was evidence contradictory of some of these circumstances but the court properly adjusted his charge to the various phases of the case as presented by the evidence.

2. It is settled law in this state that under an indictment for murder the accused may be convicted of a lower grade of felony, or of a misdemeanor, if the lesser offense is one involved in the homicide and is sufficiently charged in the indictment. Watson v. State, 116 Ga. 607, 43 S.E 32, 21 L.R.A. (N. S.) 1; Smith v. State, 126 Ga. 544, 55 S.E. 475. But whether the jury should be instructed on the law of a lesser offense, or they would be authorized to convict of a lesser offense, depends on the evidence. If there is only one defendant, and the evidence affords an inference that death did not result from his assault, he may be convicted of a lesser offense included in the crime described in the indictment, provided the elements which constitute the offense appear in the evidence. The principle on which a conviction of an offense less than murder or manslaughter may be had is that the accused person may be convicted of a crime included in the same physical act charged in the indictment, though the consequences of such act may not have culminated in death. Of course, if the assault of the accused caused the homicide, he cannot be convicted of an offense less than one of the grades of punishable homicide. likewise, if several defendants are jointly indicted for murder in a single count, and the evidence furnishes an inference that the deceased did not die from wounds inflicted by either of the defendants --that is, the death of the person alleged to have been killed was not caused by the assault charged--the defendants may be convicted of a less offense than murder or manslaughter. But several defendants, when jointly indicted in a single count,...