Opinion
13033.
OCTOBER 10, 1939.
Murder. Before Judge Gardner. Dougherty superior court. July 22, 1939.
Howell Cobb, for plaintiff in error.
Ellis G. Arnall, attorney-general, Carl E. Crow, solicitor-general, R. B. Williamson, Duke Davis and C. E. Gregory Jr., assistant attorneys-general, contra.
1. The verdict of guilt of murder was authorized not only by testimony as to confessions by the defendant, but by expert and other testimony that two discharged shotgun shells, found at the scene of the homicide from shotgun wounds, had been fired by a stolen shotgun which both before and after the killing was in the possession of the defendant.
2. "Where certain evidence is admitted, but subsequently the judge rules it out, and so informs the jury, and instructs them that they should not consider it in arriving at their verdict, as a general rule this will not require a new trial." Buchanan v. State, 137 Ga. 774 ( 74 S.E. 536). Accordingly, even if, as contended, there was any error in the admission, or if its admission amounted to an expression of opinion by the court, in merely overruling an objection and admitting testimony of a ballistic expert that it was "an established fact" that the discharged shells had been fired in the shotgun traced into the possession of the defendant, over the stated objection that "such was a question to be determined by the jury from the evidence," the effect of any such error was sufficiently removed where, after further examination of the witness, the court allowed the solicitor-general to withdraw the testimony, and then stated to the jury: "You will disregard the question which the solicitor propounded to the witness, in which he asked if it was an established fact, and the witness testified it was. That is incompetent evidence, and it is not proper for you to consider the question and answer, and you will exclude that from your mind."
3. "Where a crime capable of being committed by one person alone is . . committed by two persons acting jointly and with a common purpose, one as principal in the first degree and the other as principal in the second degree, the offenders may be indicted either jointly or separately; and where the principal in the second degree is indicted separately, he may be treated in the indictment as if he were the absolute and sole perpetrator of the crime, no reference therein to any other participant in the crime being necessary; and where so indicted, the principal in the second degree may be convicted upon proof alone that he was present actually or constructively at the scene of the crime, aiding and abetting its commission by his confederate, who was the actual perpetrator." Hatcher v. State, 176 Ga. 454, 465 ( 168 S.E. 278), and cit.; Nelson v. State, 187 Ga. 576 (2), 580 ( 1 S.E.2d 641), and cit.; Kettles v. State, 145 Ga. 6, 7 ( 88 S.E. 197); Johnson v. State, 151 Ga. 21 (2) ( 105 S.E. 603), and cit.; Id., 148 Ga. 546 (2) ( 97 S.E. 515); Bullard v. State, 34 Ga. App. 198, 200 ( 128 S.E. 920). Under testimony as to a confession by the defendant that he and another person who was armed with a shotgun together held up the deceased and robbed her of money, and that, although the other person fired the fatal shot, the defendant told the deceased "to stick up," the court did not err in charging to the jury the rules of law as to principals in the first and the second degree in the language of the Code, § 26-501.
4. On these, the sole exceptions, the court did not err in refusing a new trial.
Judgment affirmed. All the Justices concur.
No. 13033. OCTOBER 10, 1939.
Shep Bruno was found guilty, without a recommendation, of the murder of Mrs. Earnest Aultman in September, 1938. The bodies of the deceased and a companion, both of whom had been killed by shotgun wounds, were found in an automobile about two miles from Albany, Georgia. Two sets of foot-tracks led from the scene of the homicide to the edge of a wood. One set continued about a mile and a quarter to a street leading into Albany. Two discharged shotgun shells were picked up at the scene of the homicide; and some papers identified as belonging to Mrs. Aultman were found about 75 yards away. Later a single-barrel Winchester shotgun was found in Albany at a room occupied by the defendant. A witness for the State, who lived about 300 yards from the scene of the homicide, identified this gun as having been stolen from his home on the previous fourth Saturday in July. He heard two shots from the direction where the bodies were found at about 7 o'clock at night. The sheriff's office at Albany sent the shotgun, the two discharged shells, and some unfired shells found in the room with the gun, to the Federal Bureau of Investigation at Washington, D.C. The ballistic expert, who examined them with special laboratory apparatus, testified as to the identity of irregularities made on the discharged shells and irregularities by the gun on other shells which he tested, and exhibited pictures of these markings. He said that they would not be reproduced by any other weapon; and that the discharged shells had been fired by the gun, which other testimony showed was in the possession of the defendant. The State introduced testimony from a number of witnesses as to confessions or incriminatory statements made by the defendant. He said that another negro, Jafus Peeples, brought the gun over to the defendant's house; that he and Peeples were driving in a truck, parked it near where the two persons were killed, and they went together to the car of the victims; that Peeples had the gun and said, "Put them up," fired, and both of the deceased persons fell; that Peeples told him to get the money, and the defendant picked up a pocketbook from which he got $3.50, and as he walked off some papers fell out; and that he came back to the highway and got in the truck where Peeples was sitting. The defendant also located the house, where he admitted that he had stolen the shotgun from the witness who testified as to its ownership. When taken to the scene of the homicide, the defendant showed where the car and the bodies of the deceased persons were found, how they were sitting, and where he had dropped the pocket-book and papers. In another statement he said, "I told Jafus Peeples not to shoot them, just to stick them up;" that Peeples fired the gun; that he (defendant) got the pocket-book; that Peeples went up to the man and took something out of his pocket; and that after running some distance the defendant looked in the pocket-book and got about $3.50.
In a lengthy rambling statement to the jury, most of which related to matters unconnected with the homicide, the defendant denied that the shotgun had been in his possession, and that he had any connection with the homicide; and he endeavored to place the responsibility on Peeples and some unidentified white man. The defendant also offered testimony from several witnesses as to his having been in Albany at or about the time of night when the evidence as to the firing of the shots indicated that the homicide had occurred. Peeples, testifying for the State, denied that he had any connection with the killing, and identified the shotgun as having been previously in the possession of the defendant.
The defendant excepted to the refusal of a new trial on the general grounds and the two special grounds referred to in the syllabus opinion, supra.