Whitaker v. State, (No. 4395.)
| Decision Date | 19 February 1925 |
| Docket Number | (No. 4395.) |
| Citation | 127 S.E. 106,159 Ga. 787 |
| Parties | WHITAKER. v. STATE. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Putnam County; James B. Park, Judge.
R. S. Whitaker was convicted of murder, and he brings error. Reversed.
R. C. Jenkins, of Eatonton, and W. O. Cooper, Jr., of Macon, for plaintiff in error.
Doyle Campbell, Sol. Gen., of Monticello, Meriwether P. 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 was not actually slain by the defendant on trial, he was slain by one of the accomplices or conspirators, and that the accused was present aiding and abetting. Whether such a conspiracy actually existed or not, and whether the defendant was participating in a common intent to commit the crime with which he is charged, under the evidence in this case became questions for the jury. Counsel for the plaintiff in error strongly urges that there was no evidence to authorize the charge upon that subject. We here append a brief statement of the state's evidence upon this subject:
Ed. Harwood, a brother of the decedent, testified for the state: Whitaker and Allen and one other came to the sawmill on the day of the killing; they had been drinking to some extent. Allen said they had some whisky stolen and were trying to locate it, and claimed that the decedent and his brother and some colored boys got it. They stayed at the mill until quitting time, about 7 o'clock, and left the mill in the company of the mill employees. After going with them for a hundred yards or so, Whitaker said he would go by another road, and left them. After proceeding for about a half hour they met an automobile, and out of it stepped Whitaker, the defendant, and one Heath, and there was another in the car. Heath and the decedent began talking, but witness did not know there was any trouble between them. Whitaker came near witness. Allen was on the other side of the car, to the rear of it. The shooting began from the direction of Allen, but witness did not know whether or not that shot struck his brother. Witness saw Whitaker fire a pistol, being within five or six feet of him, and it looked to witness that defendant was shooting towards the decedent. There were other shots fired besides those fired by Whitaker. Decedent's back was not turned towards the defendant, so far as witness saw, but decedent was shot in the back, and lived less than an hour afterwards. Witness did not actually see any one but the defendant shoot. Witness' broth-er, the decedent, said before he died that Heath shot him.
Emanuel Banks, a witness for the state, testified that when he and the other sawmill employees quit work for the day they went by a shack, but that Whitaker went ahead, and later they met him and Heath in an automobile. They both got out of the automobile, and Heath asked what was the matter, and Allen said, "We want to know who stole the whisky, Mr. Harwood or them boys." Heath pulled off his coat and asked the decedent...
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