Waller v. State, (No. 5717.)

Citation164 Ga. 128,138 S.E. 67
Decision Date15 April 1927
Docket Number(No. 5717.)
PartiesWALLER. v. STATE.
CourtSupreme Court of Georgia

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Campbell County; John B. Hutcheson, Judge.

George Waller was convicted of murder, and he brings error. Affirmed.

Wm. B. Jones, of Fairburn, Croom Partridge, of Atlanta, and J. A. McCurdy, Jr., of Decatur, for plaintiff in error.

Claude C. Smith, Sol. Gen., of Decatur, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

HILL, J. Ora Whittle, George Waller, Charlie Huggins, and Claude Martin were jointly indicted for the murder of Homer McElreath by "beating and killing the said Homer McElreath with a piece of iron and with some blunt instrument, the exact character of which is unknown to the grand jury." George Waller was separately put on trial, and the state relied on circumstantial evidence and certain admissions or incriminatory statements of the defendant for conviction. The jury returned a verdict of guilty, with a recommendation to the mercy of the court, and he was sentenced to the penitentiary for life. He made a motion for new trial upon the usual general grounds and 20 special grounds. The motion was overruled, and the defendant excepted.

1. George Waller filed his demurrer to the indictment in the present case. For grounds of demurrer he says that the indictment fails to allege that the instrument alleged to have been used in the killing of Homer McElreath was such an instrument as wouldproduce death or likely to produce death; that the indictment does not sufficiently describe the instrument alleged to have been used in the killing of Homer McElreath to put the defendant on notice of the accurate charge against him; that the indictment alleged the 1st day of February, 1926, as the date of the crime charged against this defendant, and nowhere in the indictment does it appear that the indictment was returned after the alleged crime was committed. These grounds of the demurrer are without merit. Where, as in the present case, the indictment alleges that the weapon used by the accused did in fact produce death, it is not necessary to describe with deflniteness the weapon with which the crime is alleged to have been committed, nor to allege that it is a weapon likely to produce death. Bowens v. State, 106 Ga. 762, 32 S. E. 666; Walker v. State, 141 Ga. 525, 81 S. E. 442.

2. This court will take judicial cognizance of the fact that Campbell superior court convenes each year on the first and second Mondays in February and August. The record shows that the indictment was returned during the February term, 1926, of Campbell superior court. There is nothing on the face of the indictment to indicate that it was returned prior to the time alleged in the indictment that the crime was committed.

3, 4. The third and fourth headnotes need not be elaborated.

5. Ground 11 of the motion for new trial assigns error on the following excerpt from the charge of the court to the Jury:

"You will understand that you are not concerned with the names of the other parties named in this indictment who are not on trial, except in so far as the evidence may throw light upon the guilt or innocence of the defendant now on trial, George Waller."

The foregoing instruction is not error for the reason assigned, that it placed in issue the guilt or innocence of the codefendants, Ora Whittle, Charlie Huggins, and Claude Martin, and authorized the jury to assume that the guilt or innocence of any of the codefendants would be evidence of the guilt of the defendant on trial. Nor is the charge erroneous for the alleged reason that it "authorized the jury to consider the last acts, conduct, and conversations of the codefendants in determining the guilt or innocence of the defendant on trial."

Ground 12 of the motion complains of the following charge to the jury:

"The defendant enters upon the trial of this case with the presumption of innocence in his favor, and this presumption remains with him until the [and?] unless the state shall overcome and remove it by the introduction of testimony in your presence and hearing, sufficient to convince your minds beyond a reasonable doubt of the guilt of the accused."

This charge was not error for the reason alleged, that it did not state the doctrine of law as to the presumption of innocence as clearly and accurately as the defendant was entitled to have it presented, and placed upon the state a lighter burden than that placed upon the defendant by law; and that under this portion of the charge the jury was authorized to believe that if the state made out a prima facie case, the presumption of innocence would no longer be available to the defendant, "and instead of lasting 'throughout the trial, ' only remained with the defendant during the introduction of the state's evidence." If a fuller charge on this subject was desired, a timely written request therefor should have been made.

In ground 13 the movant insists that the court erred in charging the jury as follows:

"Moral and reasonable certainty is all that can be expected in legal investigation. In all civil cases the preponderance of testimony is considered sufficient to produce mental conviction. In criminal cases a greater strength of mental conviction is held necessary to justify a verdict of guilty."

It is insisted that this was an improper charge in this particular case, as there was evidence in behalf of the state and the defendant, and the issue to be determined depended upon the weight which the jury might give to the conflicting evidence; and, further, that this charge was error in view of the court's failure to give in charge fully the principle of law as to the presumption of innocence, as set forth in ground 12. The charge complained of is not erroneous for either reason assigned. Penal Code 1910, § 1012.

Ground 14 complains that the court erred in instructing the jury as follows:

"The court does not say, gentlemen, and does not express any opinion, there was or was not a conspiracy in this case, and does not say when it began or when it ended; it is a question for the jury to determine under all the circumstances in the case. A conspiracy may be defined as a combination or agreement between two or more persons to do something that is unlawful. I charge you that the rule is, where individuals associate themselves in any unlawful enterprise, any act done in pursuance of the conspiracy, by one of the conspirators, is in legal contemplation the act of all, subject to the qualification that each is responsible for the acts of the others only so far as such acts are necessarily or naturally done pursuant to or in furtherance of the conspiracy. If the common design was unlawful, and if one member of the party departed from the original design as agreed upon by all of the members, and did an act which was not only not contemplated by those who entered into the common purpose, but was not in furtherance thereof, nor the natural or legitimate consequences of anything connected therewith, the person guilty of such act, if it was unlawful, could alone be responsible therefor. I charge you, gentlemen, that the existence or nonexistence of a conspiracy or common intent may be established by proof of acts and conduct as well as by proof of an express agreement. I charge you, gentlemen, if you find there was a conspiracy and that the defendant participated in the common intent and purpose to do what was done, and what was done is that which is alleged in the indictment, then whatever was done by any other person named in the indictment in...

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9 cases
  • Walker v. State
    • United States
    • Georgia Court of Appeals
    • June 14, 1974
    ...such improper statements. Brown v. State, 148 Ga. 264, 266, 96 S.E. 435; Johnson v. State, 150 Ga. 67(1), 102 S.E. 439; Waller v. State, 164 Ga. 128(4), 138 S.E. 67.' Nelson v. State, 187 Ga. 576, 583, 1 S.E.2d 641; Spell v. State, 225 Ga. 705, 708, 171 S.E.2d 285. See also Moore v. State, ......
  • Hornsby v. State
    • United States
    • Georgia Court of Appeals
    • October 18, 1993
    ...jury such improper statements. Brown v. State, 148 Ga. 264, 266 (96 SE 435); Johnson v. State, 150 Ga. 67(1) (102 SE 439); Waller v. State, 164 Ga. 128(4) (138 SE 67); Nelson v. State, 187 Ga. 576, 583 (1 SE2d 641); Spell v. State, 225 Ga. 705, 708 (171 SE2d 285). See also Moore v. State, 2......
  • Moore v. State, 26964
    • United States
    • Georgia Supreme Court
    • February 11, 1972
    ...such improper statements. Brown v. State, 148 Ga. 264, 266, 96 S.E. 435; Johnson v. State, 150 Ga. 67(1), 102 S.E. 439; Waller v. State, 164 Ga. 128(4), 138 S.E. 67.' Nelson v. State, 187 Ga. 576, 583, 1 S.E.2d 641. Spell v. State, 225 Ga. 705, 708, 171 S.E.2d Where, as in this case, the tr......
  • Martin v. State
    • United States
    • Georgia Court of Appeals
    • March 6, 1946
    ...have to answer any questions tending to incriminate her, we do not think that this assignment shows cause for reversal. Waller v. State, 164 Ga. 128(4), 138 S.E. 67; Nelson v. State, 187 Ga. 576(6), 582(6), 1 S.E.2d 641; Grayhouse v. State, 65 Ga. App. 853, 16 S.E.2d 787. 7. "While it may g......
  • Request a trial to view additional results

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