Bolton v. State , 21 Ga. App. 184 ( 1917 )

Bloodworth, J.

■ 1. The special grounds of the motion fór a new trial are all based upon alleged errors of the court in charging in reference to “conspiracy.” The plaintiff in error insists that ■the facts do not authorize a charge on conspiracy, and that the portion of the charge in reference thereto was argumentative; that the judge expressed an opinion on the facts, and that the charge “authorized the jury to find movant guilty without movant having participated in the act of assault made by Staples upon Sudderth.” The charge is not argumentative. Nowhere in it do we find that the judge expressed or intimated an opinion on the facts. Nor is it erroneous for the other reason stated: The judge. clearly charged the jcry that the defendant must be present at the scene of the crime, and must have aided and abetted the principal in the commission of the offense. A part of the charge on this branch of the case is as follows: “If you believe from the evidence, beyond a reasonable doubt, that Staples made an assault, as charged in the indictment, upon Allen Sudderth with a pistol, and that the same was a weapon likely to produce death, and that Staples intended to kill him, and that the assault was made under such circumstances as if death had ensued the offense would have been murder, then Staples would have been guilty of assault with intent to murder; and if Bolton was present, aiding and abetting him, and actually participated in the offense committed by Staples, if an offense was committed, and participated in the transaction, and was a- party to the alleged murderous design, then you would be authorized to find Bolton guilty of the offense of assault with intent to murder as principal in the second degree, provided you are satisfied, beyond a reasonable doubt, that he is so guilty, under the rales which I have already given you and under the rules which I will • hereafter give you. . . As stated, if you come to the conclusion in your minds, beyond a reasonable doubt, that Staples, if on trial, would have been guilty of the offense of assault with intent to murder as principal in the first degree, then you will inquire whether Bolton was present at the time, whether he participated in the transaction, and whether he was a party to a design which would have been felonious at that time, such felonious design being to commit the offense of assault with intent tp murder upon the person of Sudderth, an officer who was attempting to make an arrest, if you find that he was such officer and was attempting to make a lawful arrest at the time. In order for Bolton to be guilty as principal in the second degree, it is necessary that he should participate in the transaction and also should be a party to the criminal design. It would not be necessary, however, that there should be any prearrangement between Staples and Bolton before the transaction took place. It would be necessary for you to be satisfied beyond a reasonable doubt that there was a common design.” The cases of Futch v. State, 137 Ga. 75 (3) (72 S. E. 911), Brooks v. State, 128 Ga. 261 (57 S. E. 483), Thornton v. State, 119 Ga. 437 (46 S. E. 640), and Kimball v. State, 112 Ga. 541 (37 S. E. 886), are easily differentiated ;from the instant case. The principle upon which those .cases were based was that the defendant was not guilty of aiding and abetting, because he did not participate in the felonious design; and in this case the evidence shows that the defendant did participate in the felonious design. “A conspiracy in criminal law is a combination or agreement between two or more .persons to do an unlawful act, and this may be established by proof of acts and conduct as well as by direct proof or by express agreement.” Carter v. State, 141 Ga. 308 (80 S. E. 995); Weaver v. State, 135 Ga. 317 (69 S. E. 488). In this case, when Staples ran to the assistance of the defendant, and struck and kicked the policeman, and the defendant yelled to him, “Shoot him, Jeff, kill him, God damn him, kill him,” and thereupon Jeff (Staples) drew his pistol and fired upon the policeman, this showed concert of action, showed that the minds of Bolton and Staples concurred, united in a common purpose; they conspired, “breathed together” a common intent to kill the policeman. Thus it appears that there was ample evidence to authorize the charge on conspiracy. Turner v. State, 138 Ga. 808, 812 (76 S. E. 349); Walker v. State, 136 Ga. 126 (70 S. E. 1016); Weaver v. State, supra; McLeroy v. State, 125 Ga. 240 (54 S. E. 125); Owens v. State, 120 Ga. 296 (48 S. E. 21); Stevens v. State, 8 Ga. App. 217 (3), 218 (68 S. E. 874).

2. The evidence authorized the verdict, and the judge properly refused a new trial,

Judgment affirmed.

Broyles, P. J., and, Harwell, J., concur.