DocketNumber: 34508
Citation Numbers: 87 Ga. App. 745, 1953 Ga. App. LEXIS 845, 75 S.E.2d 25
Judges: Carlisle
Filed Date: 3/10/1953
Status: Precedential
Modified Date: 11/8/2024
Woodrow Wilson, and Sherman (Shellnut?) Wilson were jointly indicted for assault with intent to murder Melvin Baker. Upon his separate trial Woodrow was found guilty and convicted as charged. His motion for a new trial, based upon the usual general grounds and two special grounds, was overruled and he excepted.
1. Special ground 2 of the motion for new trial is expressly abandoned in the brief of counsel for the defendant and is not considered. ■
2. The general grounds of the motion for new trial are neither argued nor generally insisted upon, either orally before the court or in the brief, and are treated as abandoned.
3. Although the evidence shows without contradiction that Shellnut (Sherman?) Wilson actually fired the shot which felled Baker, it is fairly inferable from the evidence that a conspiracy existed between him and Woodrow Wilson to commit the assault with intent to murder upon Baker, and “Where individuals enter into a conspiracy to commit a crime, its actual perpetration by one . . of them in pursuance of such conspiracy is in contemplation of law the act of all, and therefore imputable to all, regardless of their presence or absence at the time it is committed. Nelson v. State, 187 Ga. 576 (2), 580 (1 S. E. 2d, 641); Johnson v. State, 151 Ga. 21 (2) (105 S. E. 603); Hill v. State, 28 Ga. 604, 606; Horton v. State, 66 Ga. 690; Handley v. State, 115 Ga. 584 (41 S. E. 992).” Chambers v. State, 194 Ga. 773, 781 (22 S. E. 2d, 487). The trial court correctly instructed the jury in its charge as to the application of the theory of conspiracy to the evidence; and, in view of such charge, the defendant was not harmed by the following portions of the charge on the ground that there was no evidence that the defendant shot Baker: “I charge you here and now if you should believe under the evidence in this case that this defendant shot the man named in the indictment, Melvin Baker . . in this connection
Eor the foregoing reasons, the trial court did not err in overruling the motion for new trial.
Judgment affirmed.