Thompson v. State , 166 Ga. 758 ( 1928 )

Hines, J.

The court charged the jury as follows: “If you find from all of the evidence in this case that some person other than the defendant killed Coleman Osborn, as charged in the bill of indictment, and that this defendant, Eula Elrod Thompson, was present at the time aiding and abetting such other person or persons in the commission of his or their unlawful act, and participating in his or their criminal intent, the defendant, Eula Elrod Thompson, would be guilty of murder and you ought to so find.” The defendant excepts to this charge, upon the grounds, (a) that there is no evidence on which to base the same, and (b) that the indictment charged that Clifford Thompson, Jim Hugh Moss, and Eula Elrod Thompson committed the offense, and that by the use of the language, “any other person or persons,” the court turned the jury loose to inquire whether or not others besides the defendants named committed the crime. We hold that the evidence authorized tbe instruction, and that the second ground of objection to it is without merit. Thompson v. State, 166 Ga. 512 (143 S. E. 896).

In three grounds of the motion for new trial the defendant excepts to certain instructions to the jury, touching the law of conspiracy, not upon the ground that they do not state correct principles of law, but upon the ground that there is no evidence upon which to base them. The evidence authorized these instructions.

The court charged the jury as follows:' “If a conspiracy to rob Coleman Osborn is shown by the evidence in this case, and it is shown that the defendant was a party to such conspiracy, and had not withdrawn from such conspiracy prior to the time that Osborn was killed; and that one of her co-conspirators killed Osborn while attempting to carry out the original purpose of the conspiracy, the defendant would be guilty of murder, although she may not have been in actual presence at the scene of the killing, and although she may not have had any intention to kill and murder Coleman Osborn.” The defendant excepts to this charge, on the grounds, (a) that there was no evidence tending to show a conspiracy between any of the defendants; (b) that the instruction expressed an opinion that there was a conspiracy; (c) that such instruction does not apply where husband and wife are concerned, as in this case. These exceptions are without merit.

The defendant insists that the trial judge erred, after charging the jury as follows: “In so far as the State relies for conviction in this case on circumstantial evidence, it should be sufficient to exclude, not every possible theory, but every reasonable theory save that of the guilt of the accused. It should be consistent with her guilt and inconsistent with her innocence,” in charging, in immediate connection, as follows: “I charge you that, whether dependent upon positive or circumstantial evidence, the true question in criminal cases is, not whether it be possible that the conclusion at which the testimony points may be false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt.” The assignments of error are, (a) that the giving of the latter instruction in immediate connection with the préeeding one destroyed the true rule in regard to circumstantial evidence, confused the minds of the jury, and tended to wipe out the distinction between positive and circumstantial evidence; and (b) that the first instruction given left the jury to infer that there was other evidence in the case besides circumstantial evidence, and that the court should have instructed the jury that this was a case depending entirely upon circumstantial evidence. The court did not err in giving in charge to the jury section 1013 of the Penal Code, after having instructed them as to the sufficiency of circumstantial evidence to authorize a conviction. Johnson v. State, 128 Ga. 71 (57 S. E. 84); Buckhanon v. State, 151 Ga. 827 (4) (108 S. E. 209). Where the court defines direct and circumstantial evidence and gives to the jury the rule governing the sufficiency of circumstantial evidence to authorize conviction, the omission of the court to instruct in so many words that the defendant’s guilt is sought to be established only by circumstantial evidence is not sufficient ground for new trial. Owens v. State, 139 Ga. 92 (76 S. E. 860). This instruction did not leave the jury to infer that there was other evidence in the case besides circumstantial evdence. Thompson v. State, supra.

The court was requested to give to the jury the following instructions: (a) “I charge you that if the defendant remained in a car at the sehoolhouse, and either Thompson or Moss or both of them went to the store or home of Coleman Osborn, and although their purpose may have been to rob Osborn and in so doing killed him, this defendant would not be guilty unless she was aiding and abetting them and participating in their criminal intent.” (b) “If Cliff Thompson and Jim Hugh Moss or either of them went to the house of Coleman Osborn or to his store for the apparent purpose of getting gasoline, and in doing so a quarrel ensued, and the said Thompson and Moss or either of them shot and killed said Osborn, and the defendant was not present, aiding and abetting them in their criminal intent, she would not be guilty and you should so find.” In two grounds of the motion for new trial the defendant alleges that the requested instructions were pertinent, were not covered by the charge as given, and that the court erred in refusing them. The principles embodied in these requests were covered by the following instructions given in the court’s charge: “To abet another to commit a crime is to command, procure, or counsel him to do it, and presence, actual or constructive, and participation, are necessary to constitute one an abettor. I charge you, therefore, that where one is present where a crime is committed but does not assist in its commission, nor share in the criminal intent, he or she could not be convicted as a principal in the second degree or as a principal in the first degree. I charge you that in order to convict the defendant as a principal in the first degree or principal in the second degree, she must not only be -present, actually or constructively when the crime is committed, if one is committed, but must aid and abet the actual perpetrator of the crime.”

The defendant requested the court to give to the jury this instruction: “That if it is found that there was no conspiracy entered into between the defendant and any other of the codefendants, and if the jury further finds that the defendant did not fire the fatal shot that caused the death of the deceased, Coleman Osborn, but if they find from the evidence that the defendant was present at the time of the killing, aiding and abetting, in order to find her guilty the jury would have to find-that she not only consented and concurred in the perpetration of the act of killing, but also that she had a felonious design upon the person of the deceased, or participated in the felonious design of the person who killed the deceased; that mere presence and participation in the general transaction in which a homicide is committed is not conclusive evidence of a concurrent design with the person killing.” The defendant alleges that the court erred in refusing this instruction, because it was pertinent, was not covered by the general charge, and should have specially been given, as the court had charged the contentions of the State on the question of conspiracy, and the defendant’s connection therewith. /

Where three persons conspire to rob a merchant in his store, and one of them is not actually but is constructively present aiding and' abetting the robbery, and the other two enter the store, and, in furtherance of a common design to rob, kill the person intended to be robbed, such killing is the probable consequence of the unlawful design to rob, and all the conspirators are guilty of murder, including the one who is only constructively present aiding and abetting the robbery. It is not necessary that the crime of murder should be a part of the original design to rob; but it is enough if it be one of the incidental probable consequences of the execution of the design to rob, which should appear at the moment to one or more of the participants to be expedient for the common purpose. In such circumstances the intent of the actual slayer is imputable to his co-conspirators. Berryhill v. State, 151 Ga. 416 (107 S. E. 158); Gore v. State, 162 Ga. 267 (134 S. E. 36). In view of the above ruling, the requested instruction was not correctly adjusted to the facts of’the case, and the trial judge did not err in refusing it.

The defendant requested the court to give to the., jury the following instruction: “I charge you further, that even if you believe from the evidence beyond a reasonable doubt that the defendant was present at the time of the commission of the crime, if one was committed, this would not authorize you to convict her, unless the evidence showed beyond a reasonable doubt that she assisted in the commission of the crime of killing of Coleman Osborn or shared in the criminal intent of the actual perpetrator of the crime; and unless the evidence shows these things, you should acquit the defendant.” The defendant insists that this charge was pertinent, and that the court erred in refusing to give it. The court did not err in so refusing, for the reason we have given in dealing with the refusal of the requested instruction set forth in the paragraph next preceding.

Berry Bennett, a witness for the State, testified that the deceased “was a man that carried a considerable sum of money all the time; he carried some money;” and that this “fact was generally known in the community.” The defendant objected to the admission of this testimony, on the ground that there was nothing in the evidence to show that she or the other defendants jointly indicted with her had any knowledge of this fact. The objection was overruled. The court did not err in admitting this testimony. There was evidence from which the jury might draw the inference that the defendants had knowledge of the fact that the deceased was accustomed to keep on hand considerable money.

S. J. Maples, a witness for the State, testified as follows: “Jim Hugh Moss asked me what kind of a gun I had. I said 45 automatic. He asked me if I would swap with him for his gun; he said he had a gun. I don’t know whether it was a thirty-two or thirty-eight he said; he was stuttering, and I could not understand very plain whether it was a thirty-two or thirty-eight, what caliber it was. I said, What do you want with it ?’ He said he wanted to take a trip; he said, ‘ How about taking me to Georgia to-night ?’ I said, ‘I can’t go down there;’ and he says, ‘1 will give you twenty-five dollars to take me to Georgia.’ I said, ‘ Why don’t you go in the car you are in out there ?’ He says, I don’t want that woman to know I am going.’ He says, I want you to take me and follow them down there and bring me back before daylight, follow them down there and bring me back; to follow Cliff and the woman down there.’ He never said whereabouts in Georgia, just said Georgia.” The defendant objected to the admission of this testimony, on the ground that it was hearsay, immaterial, and irrelevant. It was received over the objection. After the fact of conspiracy is proved, the declarations of any one of the conspirators during the pendency of the criminal project are admissible against all. Penal Code, § 1025. Declarations which form part of a chain of connected facts, connecting the prisoner with the crime, are admissible, though not made in his presence or during the pendency of the criminal project. Jones v. State, 63 Ga. 395. Applying these principles, the court did not err in admitting this evidence.

S. J. Maples, a witness for the State, testified that Burkett Ivens gave him a subpoena requiring him to attend this trial; that he came on the same train with Ivens to attend the trial; that he stayed at the hotel the night before; that his bill had not been paid, but that he expected to pay it himself. After the witness so testified counsel for the defendant asked him if he had paid his railroad fare. The trial judge remarked that he did not see the materiality of the question, as it was the duty of the State to pay the fare of a non-resident witness. Counsel for the defendant stated that he had a right to show that Ivens, who had testified as a witness for the State, was taking an interest in it by bringing witnesses to the trial at his own expense. The solicitor-general stated that Ivens did not bring Maples to court at his own expense. The judge repeated his statement that he did not see the materiality of this evidence, for the reason before given by him. Counsel for the defendant then said: “I understand the law; but if anybody else does it, we have the right”— when the judge broke in and stated that the witness had answered the question twice, and that one time was enough. The defendant assigns error upon the above statements and action of the trial judge, upon the grounds, (a) that it restricted the right of the accused to a thorough and sifting cross-examination of this witness; (b) that it minimized the effect and weight of the evidence that the railroad fare of the witness was paid by Ivens, which was a question for the jury alone; (c) even if there had been any law authorizing the State to pay the transportation and fees of witnesses, it was clearly the right of counsel for the defendant to find out who was paying them; and (d) that the above action of the court was harmful and reversible error. The refusal of the court to permit the witness to answer this question, based upon the fact that the witness had already answered it twice, was not erroneous for any of the reasons assigned.

Maples testified, on cross-examination, as follows: “At the time I talked to Mr. Taylor I told him they were there, and Jim Hugh Moss 'came in the store and inquired about a sack of flour, and left in the car going towards his home; that’s all. That’s all I did tell him.” Counsel for the defendant then propounded to the witness this question: “When did you first add what you have told about him trying to get a pistol and wanting you to come downin Georgia?” The solicitor-general said, “He has been over that.” The court said to counsel for the defendant, “You have been over that.” Counsel for the defendant said, “I asked him who he first told that to. Who did you first tell that to ?” The court then said to the witness, “Tell him, if you remember, and if you don’t remember.” The witness answered: “I don’t remember who I told it to.” The defendant assigns error upon the above action and statements of the trial judge, on the grounds, (a) that it was a denial to the defendant of the right of a thorough and sifting cross-examination; (b) that the interruption of counsel for the defendant by the court tended to minimize the effect of the cross-examination; and (c) that the language, “Tell him, if you remember, and if you don’t remember,” was a suggestion to the witness of the answer he should make to the question. The action of the court was not erroneous for any of the reasons assigned.

The defendant asserts that the court erred in permitting Mont Howell, a witness for the State, to testify, over her objection, that he always had some money in his house. Counsel for the defendant objected to the admission of this testimony, on the ground that there was no evidence that any of the defendants knew that this witness kept money in his house. The court inquired of the solicitor-general if he proposed to show any circumstances by which they knew it. The solicitor-general replied that he expected to show by circumstances that this defendant lived up there, that the witness kept money in his house all the time, that this was known in the community while the defendant lived up there, and was known by all of his neighbors. The court then permitted the witness to answer the question. Movant assigns error upon this ruling, upon the grounds, (a) that there is nothing to show that the defendant or her codefendants were present that night; (b) that even if they had been present, there was no evidence that they knew that this witness kept any money on his person or in his house; and (c) that there was no effort on the part of the person who was at the house of the witness that night to get any money or -rob the witness. There being evidence that the witness generally kept money upon his person and in his house, that this was generally known in the neighborhood, that the defendant had lived in the neighborhood, that her codefendant went to the home of the witness on the occasion testified about, and there being evidence from which the jury might draw the inference that all the defendants on this occasion were at or near his home, and that their purpose was to rob the witness, the court did not err in admitting this testimony.

The defendant asserts that the court erred in permitting Mrs. Osborn, a witness for the State, to testify, over her objection, as follows: “Before Mr. Osborn was killed he had a good deal of cotton on hand; he had something like twenty bales, I don’t know how many; something like that. He had been holding that cotton. He had sold this cotton shortly before he was killed, he sold the cotton, part of it that week or the week before. I think it was the week before he was killed. I won’t say positively when he sold part of it. The sawmills, Hargess Lumber Company, stayed there nearly two years in that country. During the time they were there, Mr. Osborn cashed a good many checks of the people that worked at these mills.” The defendant objected to the admission of this testimony, upon the ground that it was irrelevant and incompetent. The court did not err in admitting this testimony. Thompson v. State, supra.

The defendant insists that the court erred in questioning N. ~W. Puckett, a witness for the defendant, as follows: Q. “You say you carried the milk there; what time of night ?” A. “I would leave home at ten o’clock, had thirty minutes to get ready for the job, it was somewhere between ten and ten-thirty when I was there.” Q. “You wake them up every night?” A. “Yes sir.” Q. “Every night you went there?” A. “Every night I left milk I waked them up.” Q. “How would you know they were not there?” A. “When I went by all the time, turned the curve, I could always see the car there, it was always sitting right on the side of the house; they were on the main road east of the road; and when this car was there I would know there would be somebody there. I would drive up and leave milk.” Q. “What did you wake them up for if the car was there and you knew by the car ?” A. “That was in August.” Counsel for the defendant then addressed the court as follows: “Your honor please, we object to the court questioning this witness in that manner, as it intimates an opinion as to the credibility of this witness.” The court then said: “I overrule your objection.” The court then proceeded to question the witness as follows: Q. “Now, why did you say you did that?” A. “The milk would, spoil if it set out there four or five hours in the hot weather. . . They always wanted to put it in the ice box when I left it.” Q. “And you then woke them up each' night you left milk?” A. “Yes sir, each night I left the milk I woke them up.” The defendant assigns error on the ground that the court's manner of questioning the witness was such as to impeach his credibility, and to intimate to the jury that the witness was unworthy of belief. This assignment of error is without merit.

S. J. Maples, a witness for the State, on direct-examination testified as follows: “Jim Hugh Moss asked me what kind of a gun I had. I said 45 automatic. He asked me if I would swap with him for his gun. He said he had a gun. I don't know whether it was'a 32 or a 38, what caliber it was; he was stuttering and T could not understand very plain whether it was a 32 or 38. I said, ‘What do you want with it?' He said he wanted to take a trip; he said, ‘How about taking me to Georgia to-night?' I said, ‘I can't go down there,' and he said, ‘ I will give you twenty-five dol- ' lars to take me to Georgia.’ I said, ‘ Why don't you go in the car you are in out there ?’ He says, ‘ I don’t want that woman to know I am going.' He says, ‘I want you to take me and follow them down there and bring me back before daylight. Follow them down there and bring me back, to follow Cliff and the woman down there.' (He never said whereabouts in Georgia; just said Georgia.” Counsel"'‘for the defendant moved to exclude this evidence, upon the '•ground that this took place prior to any alleged conspiracy. This assignment of error is without merit, for the reasons assigned in paragraph 9 of this opinion.

The defendant contends that the court erred in permitting J. B. Butler, a witness for the State, to testify, over her objection, as follows: “I got a gun from the deputy sheriff; he got a gun in the room. Cliff Thompson admitted that was his gun, said it was his.” The defendant objected that this testimony was irrelevant, incompetent, and hearsay. If this evidence was inadmissible for any reason assigned, it does not require the grant of a new trial.

The defendant insists that the court erred in permitting Mrs. Osborn, who was sworn as a witness for the State, to testify as follows: “When I called Coleman Osborn he said, ‘That is the same white man and negro that was here Wednesday night.’ ” The defendant objected to the admission of this testimony, upon the ground that it was an expression of opinion, and because it was immaterial, irrelevant, and incompetent to connect either of the defendants with the parties that were there on Wednesday night. The court did not err in admitting this testimony, the same being a part of the res gestse. Thompson v. Stale, supra.

The verdict is supported by the evidence.

Judgment affirmed.

All the Justices concur, except