Whitaker v. State

• Decision Date: 19 February 1925
• Docket Number: 4395.
• Parties: WHITAKER v. STATE.
• Court: Georgia Supreme Court

127 S.E. 106

159 Ga. 787

WHITAKER v. STATE.

No. 4395.

Supreme Court of Georgia

February 19, 1925

Syllabus by the Court.

The court did not err in excluding testimony to the effect that one Allen, jointly indicted with the defendant, came to the house of witness within 25 or 30 minutes after the killing and requested that he be carried home; that Allen commenced to tell about the killing of the decedent, and said that he "shot him down, and after he fell we poured it into him again."

(a) The evidence was not admissible as a confession or admission made by Allen. Lyon v. State, 22 Ga. 399; West v State, 155 Ga. 482, 117 S.E. 380.

(b) Nor was it admissible as a part of the res gestæ. It is in form and substance a narrative of what took place, and is not a declaration accompanying the act or so nearly connected therewith in time as to be free from all suspicion of device or afterthought. Sullivan v. State, 101 Ga. 800, 29 S.E. 16.

The court charged the jury as follows: "And he enters into the trial of this case with the presumption of innocence in his favor, and that presumption of innocence remains with the defendant throughout the entire trial, in the nature of evidence as a shield and a protection until the state convinces your minds by the evidence in the case, beyond a reasonable doubt, of the guilt of the defendant. That is under the laws of the state of Georgia, where a defendant files a plea to the bill of indictment of not guilty, it puts in issue every material allegation contained therein; and it then devolves upon the state to satisfy the minds of the jury by the evidence in the case, by the circumstances developed in the trial of this case, to a reasonable and moral certainty and beyond a reasonable doubt, of the guilt of the defendant before you would be authorized to convict him." Plaintiff in error excepts to this charge upon the ground that the court "did not go further and inform the jury that the burden was on the state to show the defendant's guilt beyond a reasonable doubt, and that this burden remained upon the state until it showed the guilt of the defendant." The charge as given affords the movant no ground of complaint. That the court did not charge in this connection that the burden was on the state to show the defendant's guilt beyond a reasonable doubt, and that this burden remained upon the state until the guilt of the defendant was proved, affords the plaintiff in error no ground of complaint, especially as it is not alleged that the court did not in other portions of the charge instruct the jury, literally or in substance, that the burden was upon the state to prove the defendant's guilt beyond a reasonable doubt. Moreover, in the very language here complained of it would seem that the court, in substance at least, instructed the jury that the burden was upon the state to prove beyond a reasonable doubt the allegations of the defendant's guilt, though he did not use the word "burden" or "burden of proof."

The court did not err in charging the jury upon the subject of malice, and in giving the correct definition of malice. The evidence authorized the charge upon the subject.

Certain evidence had been offered and rejected; and it was not error in the charge to instruct the jury that it would not be proper for that body to consider testimony that had been excluded by the court from the consideration of the jury.

Error is assigned upon portions of the court's charge relating to a conspiracy between the accused and other parties. The court did not err in charging upon this subject, although conspiracy was not charged in the indictment. Nor is the exception to those portions of the charge well taken which assigns error on the ground that there was no evidence authorizing the same. An examination of the record shows that there was some evidence from which the jury would be authorized to find the existence of a conspiracy between the accused and other parties to commit the crime charged in the indictment.

There was evidence in the case, as shown by the record, from which the jury would have been authorized to find that the defendant was guilty, not of murder, but of voluntary manslaughter; and the court should have charged upon that subject. The failure to do so was error.

The law of justifiable homicide was not involved in this case, either under the evidence for the state or the accused, or under the statement of the defendant; and the assignment of error upon the court's failure to charge upon that subject is without merit.

Error from Superior Court, Putnam County; James B. Park, Judge.

R. S Whitaker was convicted of murder, and he brings error. Reversed.

Hill and Hines, JJ., dissenting.

R. C. Jenkins, of Eatonton, and W. O. Cooper, Jr., of Macon, for plaintiff in error.

Doyle Campbell, Sol. Gen., of Monticello, Meriwether F. Adams, of Eatonton, Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.

BECK P.J.

R. S. Whitaker was tried under an indictment charging him and one Allen with the offense of murder, it being alleged that the two defendants unlawfully and with malice shot and killed one O. C. Harwood. The jury trying the case returned a verdict of guilty, with a recommendation. The defendant made a motion for a new trial, which was overruled, and he excepted.

1-4. The rulings made in headnotes 1 to 4, inclusive, require no elaboration.

5. Several grounds of the motion for new trial contain assignments of error upon portions of the court's charge relating to a conspiracy between the accused and other parties, some of whom are not named in the indictment, and it is insisted that all of those portions of the charge based upon the theory that there was a conspiracy or common felonious intent upon the part of the accused and other parties to kill Harwood, the named decedent, were error. In some of the exceptions to these portions of the charge it is urged that the charges given were error, because, in the first place, conspiracy is not charged in the indictment and, in the second place, that there is no evidence of a conspiracy. The first ground of objection to the portions of the charge referred to is obviously without merit. Dixon v. State, 116 Ga. 186, 42 S.E. 357. Where two or more persons, in pursuance of a common intent to commit murder, carry out and execute the plan, though but one of them be indicted, on the trial it may be shown that the person actually indicted was guilty of murder in the second degree, if he was there aiding and abetting the crime, though the criminal act was actually perpetrated by one of his accomplices. If there be proof offered for the consideration of the jury that there was a conspiracy, the acts of the conspirators or accomplices of the accused, who were present participating in the commission of the crime, may be proved; and it is not necessary to charge, in the indictment, that the defendant was guilty of murder in the second degree, in order to offer proof that he was guilty of that offense. The existence of a conspiracy may be shown as well by circumstances as by direct evidence, as has been frequently ruled. While the evidence tending to show conspiracy in this case is not strong, under all the evidence and circumstances proved it was proper to submit that theory of the state's case to the jury and give to the jury instructions appropriate to the contention that if the decedent...