Lowe v. State , 1906 Ga. LEXIS 43 ( 1906 )

Lumpkin, J.

(After stating the foregoing facts.)

1. While the statement made by the defendant contained certain expressions to the effect that he did not do the killing, and was long, rambling, and full of immaterial details, the substantial effect of it was, that he entered into a conspiracy with Banks to kill Russell, and that Banks did the actual killing, while he remained at a short distance away, keeping watch. 'In other words, it was a confession that Banks was a principal in the first degree, while he was a principal in the second degree. There was, therefore, no error in admitting it as a confession, or in charging on the law of confessions. The defendant made his confession first orally in the presence of one or more witnesses, and afterwards repeated it in the presence of a stenographer, who took it down in stenographic characters and transcribed it into ordinary writing. Both the original oral confession and the written statement were introduced in evidence, the stenographer testifying that the writing was a correct reproduction by him of what the defendant had said. Both of these were objected to because they did not amount to a confession. The oral confession was also objected to because the writing was the best evidence; and the writing was objected to because it was only hearsay, and because its admission would deprive the defendant of his right to be confronted with the witnesses and to cross-examine them. These were substantially the objections made, though several grounds of objection were stated. The court properly overruled them. If a defendant makes a confession at two -different times, both confessions may be proved. Where his statement was reduced to writing by a stenographer who testified that.the paper offered in evidence contained an accurate reproduction of what he had said, the stenographer himself being on the stand and subject to cross-examination, the admission of the written paper did not deprive the defendant of his right to be confronted with the witnesses against him.

The motion for a new trial raised the point, both by exception to the refusal to give requests in charge and by objection to charges which were given, that since the indictment charged the defendant as one of the perpetrators of the crime of murder, he could not be convicted if the evidence showed him to be only a principal in the second degree, and not the actual slayer. A principal in the second degree, except where it is otherwise provided, receives the same punishment as the principal in the first degree. Penal Code, §43. Principals in the first and second degree guilty of the crime of murder are punished alike, and no distinction between them need be made in the indictment. Both may be indicted for murder and may be convicted under such an indictment, although one may be shown to have been the actual slayer, while the other was a principal in the second degree, who had conspired with him and was keeping watch or guard close by while the homicide was being committed. Leonard v. State, 77 Ga. 764; Collins v. State, 88 Ga. 347; Morgan v. State, 120 Ga. 294; McWhorter v. State, 118 Ga. 55; Penal Code, §42. There were other objections to certain parts of the charge, but none of them were well taken. The motion for a new trial was properly overruled.

Judgment affirmed.

All the Justices concur.