McLeroy v. State , 125 Ga. 240 ( 1906 )

Atkinson, J.

1. The evidence was not sufficient to authorize the jury to conclude that the defendant fired the fatal shot. No witness would pretend to say that he did. The most that could be said was that the defendant was one of four who from different directions fired with pistols at the same time upon the deceased. Two shots took effect, either of which may have been fatal. The others missed or failed to penetrate. There was really no way of placing the author of the two effective shots, except by the course from which the bullets had come. The wounds did not indicate that, either bullet had come from the direction of the defendant. There being no evidence sufficient to prove beyond a reasonable doubt that the defendant fired the fatal shot, it was erroneous for the court to charge as complained of in the fourth ground of the motion for new trial. If the defendant did not kill, and if he was not in conspiracy with the one who did kill, he certainly was not guilty of murder. In principle the ruling here made is controlled by the ruling in the case of Walker v. State, 116 Ga. 538. The charge was harmful to the defendant, because it instructed the jury in such a way as to have authorized them to find the defendant guilty, independently of the theory of his having participated in the offense' as a conspirator.

2. The charge complained of in the fifth ground of the motion for new trial was not erroneous. .The existence of a conspiracy may be shown by circumstantial as well as direct evidence; and in a case like the one at bar, it is not inappropriate to charge upon the law of conspiracy merely because the indictment does not in terms allege that there was a conspiracy. Dixon v. State, 116 Ga. 186; Hudgins v. State, 61 Ga. 182; Davis v. State, 114 Ga. 107. The evidence was sufficient to authorize the charge. IJpon the subject of conspiracy, the court having properly charged the law of reasonable doubt relative to the entire case, it was not necessary to charge that law with special reference to the subject of conspiracy, and certainly not when a request was not made to that effect.

It is unnecessary to consider any of the other grounds of the motion for new trial.

Judgment reversed.

All the Justices concur.