Dalton v. State

Cobb, J.

When one is informed that another intends to commit an offense against him or his property, the law permits him to afford opportunities for its commission and lay traps which may result in the detection of the offender. To this end he may employ another to act with the intending criminal and he present with him at the time the crime is to be committed; and if the intending criminal does himself acts which would constitute the offense, he will not, when charged with the crime, he protected from punishment by reason of the fact that, at the time the criminal act was-performed by him, another, who was there with the knowledge, consent, and approval of the victim and even by his direct employment, aided in and encouraged its perpetration. In such a case, however, it must appear that the person charged with the offense did himself everything necessary to make out a complete offense against the law. Nothing that was done by the person present with the knowledge and consent of the victim will be imputed to the accused ; and if, in order to constitute the offense, it is necessary that something done by such person shall be imputed to the accused, then the prosecution will fail. Or, if it appears that the intent to commit the crime did not originate with the accused but was suggested by the person present with him, with the knowledge and approval of the victim, the prosecution will likewise fail. See Williams v. State, 55 Ga. 391; Varner v. State, 72 Ga. 745; State v. Jansen, 22 Kan. 498; Speiden v. State, 3 Tex. Ct. App. 156, s. c. 30 Am. Rep. 126, 129, note; 1 Whart. Cr. L. (10th ed.) § 149 et seq.; 1 Bish. New Cr. L. § 262 et seq.; 25 Alb. Law J. 184.

Applying these principles to the facts of the present case, a jury would be authorized to find that the plan to wreck the train originated with the accused; that while Patterson was present at the time the alleged attempt to wreck the train took place, with the knowledge, consent, and approval of the railroad company, and did himself certain acts which would amount to an attempt to wreck the train, the accused, independently of what Patterson did, performed acts which in themselves would make him guilty of a complete attempt to wreck the train. As a finding to this effect was authorized, the verdict can not be said to be unsupported by evidence, although there was evidence from which the jury might have come to a contrary conclusion. There was no error of law complained of, and the discretion of the trial judge in refusing to grant a new trial will not be controlled.

Judgment affirmed.

All the Justices concurring.