Tanner v. State , 161 Ga. 193 ( 1925 )

Beck, P. J.

At the March term, 1925, the grand jury of Johnson County returned an indictment against J. J. Tanner and C. G-. Rawlings, charging them with the offense of murder, for that they did, on the 17th day of February, 1925, kill and murder G. A. Tarbutton by shooting him. The defendant Tanner was put upon trial at the March term, 1925, of the superior court of Johnson County,'and the jury trying the case returned a verdict of guilty with a recommendation of' mercy. The defendant made a motion for a new trial, which was overruled, and he excepted.

Tarbutton was killed by a load of shot discharged from a gun which was carried by the defendant in this case. The shot penetrated the back of Tarbutton’s head and came out in front, killing him instantly. The defendant claimed that he tripped and fell; that the gun was accidently discharged, and that the killing of Tar-button was accidental. The State contended that Tanner intentionally fired at the decedent from the rear; that the killing was murder; that there was a conspiracy between the two defendants to commit the murder. The plaintiff in error contends that no conspiracy had been formed between the two, that none existed, and that none was proved.

During the trial of the case the court admitted, over the objection of the defendant duly made, certain declarations of Raw-lings, who was jointly indicted with Tanner, but who was not on trial. The objection to the evidence to establish these declarations was upon the ground that the alleged criminal enterprise had ended before these declarations were made, and that several of the declarations as to which testimony was introduced were made several days after the homicide, and none of them made in the presence of the defendant Tanner. In numerous grounds of the motion for a new trial error is assigned upon the admission of this testimony; and as many of these grounds raise substantially the same question, they need not be taken up separately, but may be disposed of together. Certain of the declarations upon the part of Rawlings which were objected to on the ground that they were made after the criminal enterprise was terminated were so completely immaterial as to be harmless; but others were not immaterial, and related to issues of fact which the jury were to pass upon; and such of these declarations as were material and made after the completion of the criminal enterprise were inadmissible as against the accused on trial, and should have been excluded upon objection duly made. Wall v. State, 153 Ga. 309 (112 S. E. 142).

After the evidence referred to above, that is, declarations made by Rawlings after the completion of the criminal enterprise, had been admitted, and after the lapse of considerable time, and after the State had closed its testimony, counsel for the accused moved the court to rule out the testimony, upon the ground, among others, that the declarations of an alleged accomplice, after the alleged criminal enterprise had ended, were inadmissible; and thereupon the court “said in the presence of the jury that call declarations made by C. G. Rawlings since the alleged homicide are ruled out.’ ” But the court did not expressly tell the jury that they should disregard this testimony, and the movant contends that the admission of the testimony was error, and that the ruling out of the testimony without expressly telling the jury to disregard it did not cure such error; and this court is of the opinion that the failure of the trial court, in connection with the ruling excluding'the declarations referred to, or thereafter, to instruct the jury that they should disregard the same in arriving at their verdict in the case was such error as to require the grant of a new trial. Such is the ruling in the case of Campbell v. State, 155 Ga. 127 (116 S. E. 807). The writer of this opinion desires to state for himself and for Mr. Justice Hines that we hold to the views expressed in the first division of the opinion in the case just cited; but we are of the opinion that the ruling of the court, made by saying in the presence of the jury that “all declarations made by C. G. Eawlings since the alleged homicide are ruled out,” did not cure the error committed in admitting the' evidence of the declarations of Eawlings after the homicide. Eor these declarations were numerous and detailed by several witnesses, and the attention of the jury should have been called to the specific declarations which were ruled out.

Exception is taken to the admission of the following evidence of a witness for the State: “Mr: Eawlings made an inquiry of me after I had gone to town and got back home. He asked me where was Gus’s insurance policies. I told him that I supposed Fluker had them.” This evidence related to what was said by Eawlings after the homicide. We think it should have been excluded upon objection, and should have been ruled out upon motion made, on the ground that it was a statement made after the completion of the alleged joint criminal enterprise. It is true that subsequently, as we have said above, the court made a ruling excluding all declarations of Eawlings made after the homicide, but the jury might not have understood that this inquiry made by Eawlings came under the ruling, as they might have thought that an inquiry made by him could not be classed as a'“declaration” made by him; but the word “declaration,” given its broadest meaning, would include, of course, such an inquiry, yet the jury might not have so understood it and probably did not. But if Eawlings was inquiring after certain insurance policies covering the life of Tarbutton, this was a fact which the jury might, in view of other evidence in the case, have given weight to as against the defendant on trial.

The rulings made in headnotes 4 to 12, inclusive, require no elaboration.

Counsel for the accused duly requested the court, in writing, to give the following charge: “The mere presence and participation in the general transaction in which a homicide is committed is not conclusive evidence of consent and concurrence in the perpetration of a crime by a defendant sought to be held responsible for the homicide, as aiding and abetting the actual perpetrator, unless such defendant participated in the felonious design of the'person killing.” The court did not err in refusing to give this charge. Before the court will be reversed for a refusal to give a written request to charge, it must appear that the charge desired was accurate and correct. That it is substantially correct is not enough; it must contain a perfect statement of the law applicable to the question dealt with, to render it erroneous for the court to refuse to give it in charge to the jury; and this request to charge does not measure up to that. It is undoubtedly true that “mere presence and participation in the general transaction in which a homicide is committed is not conclusive evidence of consent and concurrence in the perpetration of a crime.” In truth, it may be that general participation in a transaction in the course of which a homicide is committed may not. only fall short of being conclusive evidence against one who participated, but it may be no evidence at all. But the mere fact that a written request contains a true statement is not sufficient in itself to require the judge to give it in charge to the jury. The expression, “mere presence and participation in the general transaction in which a homicide is committed,” is vague, indefinite, and ambiguous. The word “transaction” is applicable generally to business affairs and to doings, proceedings, and negotiations affecting property rights, contracts, agreements, and the negotiations resulting in contracts and agreements, and in the transfer of titles, or the obligation of one or both of the parties to do certain specified things, etc., etc.; and it is not usually applied to criminal enterprises and the acts and doings of the parties implicated in the criminal enterprise. In this cáse there is much evidence as to “transactions” in the sense in which it is generally used. There is also evidence relating to a criminal enterprise, — evidence from which the jury would have been authorized to find that there was a conspiracy to bring about results highly criminal; and the word “transaction,” therefore, as used in this charge, was too general and indefinite. It is true, however, that evidence of the mere presence of a partjr at the scene of the commission, of a crime at the moment of its perpetration would not of itself authorize a jury to find the person who was thus present guilty of consent and concurrence in'the perpetration of the crime, without other evidence of his aiding and abetting the actual perpetrator of the crime, or other evidence of his having participated in the felonious design of the actual perpetrator. The request to charge which the court refused was suggested, very probably, by the ruling of this court in the ease of Brooks v. State, 128 Ga. 261 (57 S. E. 483, 12 L. R. A. (N. S.) 889). It was there held: “Mere presence and participation in the act of killing a human being is not conclusive evidence of consent and concurrence in the perpetration of the act by a defendant sought to be held responsible for the homicide as aiding and abetting the actual perpetrator, unless such defendant participated in the felonious design of the person killing. The court committed error in declining to charge the jury in accordance with a written request embodying this principle.” It will be seen, upon comparison of the request to charge with the language of the opinion in the Brooks case, that .the request to charge here under consideration is almost a literal transcript of the language employed by this court in that case; but in the Brooks case it was held that mere presence and participation in the act of killing is not conclusive evidence of consent and concurrence. In the Brooks case the ruling of Brown v. State, 28 Ga. 199, was followed. In each of these cases instructions upon a specific question as to which the jury might easily go wrong were dealt with.

It follows from what we have said that the judgment of the court below must be reversed upon certain grounds with which we have already dealt, because 'of the errors there pointed out; and that being true, there is no occasion for considering the ground based upon the alleged newly discovered evidence. This question can not arise upon the next trial.

Judgment reversed.

All the Justices concur.