Weaver v. State , 135 Ga. 317 ( 1910 )

Lumpkin, J.

I am compelled to dissent. The rule is that it is not cause for reversal that the presiding judge did not charge on the subject of circumstantial evidence, without request therefor, if the case did not wholly depend on such evidence. Cliett v. State, 132 Ga. 36. In this case a statement of one of the accused was proved, which, I think, amounted to a confession of a conspiracy to rob, a carrying out of such conspiracy, the participation .therein of the accused making the statement, and a murder committed by one of the conspirators in the execution of the conspiracy. There was also direct evidence of a witness of the robbery by violence committed on the employees in charge of a street-car, and 'an identification of two parties concerned in it (one of the present accused and another person), and a somewhat less certain identification of another defendant. The witness (the conductor) also stated that one of the parties who was armed, after having “had his gun” on the witness, went toward the front of the ear, and that when sufficient time had elapsed for him to reach the front of the car the witness heard the report of a pistol. The mortorman was shot and killed. I think there was direct evidence in the case, and that the omission to charge on the subject of conviction on circumstantial evidence was not a good ground for reversal. I am authorized to state that Presiding Justice Evans agrees with me in this dissent.