West v. State , 153 Ga. 327 ( 1921 )

Eisii, C. J.

Lawyer West was one of the defendants jointly indicted with Buddie Wall, Chess Lewis, and seventeen others, for the murder of Robert Davis. He was separately tried, found guilty, and excepted to the refusal of a new trial. The evidence on the trial of his case was substantially the.same as that in the'cases of Buddie Wall and Chess Lewis, who were jointly tried, and as fully set forth in the statement of facts preceding the opinion in their cases this day decided. Ante, 309.

All the assignments of error made in the motion for a new trial in West’s case are decided in the cases of Wall and Lewis, except as follows: West complained, in separate grounds of his motion, that the court erred in admitting the following evidence: (a) Cunningham testified: “ They got a rope off of Buddie Wall, a rope like a plow-line. I cannot say the rope presented is the same rope, but it looks like it.” (b) Yinson, the sheriff, testified: “ I found the rope presented in Buddie Wall’s pocket; it was cut that night. I didn’t have enough-handcuffs, and we cut the rope to tie them with; it wasn’t cut before I got it.” (o) Kitchens testified: “I throwed my gun on him, Lawyer West, that way [illustrating], and he says, ‘ Don’t shoot me no more; you have done killed me,’ and I took my gun off of him, did not shoot him; and I says, ‘How come you here?’ and he told me Luke West, his father, gave him the gun and shells and told him to go there and protect Fate Chapman.” There was evidence tending to show a conspiracy; and this evidence related to occurrences and declarations of an alleged conspirator pending the conspiracy, and was part of the res gestae, rnd was admissible.

In view of the rulings made in the cases of Wall v. State, and Lewis v. State, ante, it follows that the court erred in refusing a new trial in this ease.

Judgment reversed.

All the Justices concur, except Gilbert, J., cUssentvng.