Opinion
35281, 35282, 35283.
DECIDED JULY 16, 1954.
Carrying concealed pistol; carrying pistol without license; assault with intent to murder. Before Judge Crow. Calhoun Superior Court. May 13, 1954.
E. L. Smith, for plaintiffs in error.
Maston O'Neal, Solicitor-General, contra.
1. The existence of a conspiracy may be established by proof of acts and conduct as well as by proof of an express agreement. The evidence of the acts and conduct of the defendants here who were jointly indicted and tried was such as to authorize a charge by the trial court on the subject of conspiracy.
2. The defendants here were jointly indicted and tried. They each made statements in their own behalf and were sworn and testified as witnesses in behalf of each other. Failure on the part of the trial court, in the absence of request, to specially charge the jury on the weight and credit to be given their sworn testimony was not, in view of the charge generally on the weight and credit to be given the testimony of witnesses, error as contended.
3. Where, as here, there are two defendants who are jointly indicted and tried for the offense of assault with intent to murder, which charge grows out of an affray participated in by a brother of one of such defendants, and the trial court charges the right of that defendant to act to prevent a felonious assault upon his brother, such charge is not error as to the other defendant who had no such brother participating in the affray.
4. On the trial of the indictment of these defendants for the offense of carrying a concealed weapon about their persons, not in an open manner and fully exposed to view, and of unlawfully carrying a pistol without a license, the evidence was sufficient to support the verdicts of guilty.
DECIDED JULY 16, 1954.
Johnnie Nelson Anthony and Joseph Washington were each indicted in the Superior Court of Calhoun County in two counts of carrying concealed pistols and carrying pistols without a license and Joseph Washington (Case No. 35283) was further indicted for assault with intent to murder. The cases were tried together by consent and resulted in verdicts of guilty on all the charges. As the cases involve the same evidence and the same transaction generally, they are here treated together.
The evidence upon the trial, in its light most favorable to upholding the verdicts of guilty, was to the effect that the two defendants and three or four others came to the house of one Boots Harpe, which she occupied with her daughter, her son Roosevelt and others. All of the arrivals were unknown to Boots except Anthony, but they knew Clarence Simmons who was in the house visiting Boots' daughter. Two of them went on through the house and assaulted Simmons, accusing him of stealing a pistol from Washington the day before. They then went to his automobile which was parked in the yard and retrieved the pistol. Boots ordered them off the premises, and while the discussion was going on a rolling store drew up in front of the house. Boots requested of the driver a pencil and paper so that she could write down the license tag and report it to the authorities. Boots bent over to pick up a bottle, which one of the others apparently took to be an unfriendly act, and that person (unidentified by the testimony except as one of the six assailants among whom were these defendants) drew two pistols, one in each hand, and pointed them at her. Boots' son, Roosevelt, called from the house that they were not to shoot his mother, and got a shotgun loaded with bird shot. All six then drew pistols, and a gun battle followed which lasted ten or fifteen minutes. Roosevelt had only two shells; the others fired between 50 and 200 shots. As described by the witness who was operating the rolling store: "When [Roosevelt] said, `Don't shoot my mama', every door in the automobile opened — there were four doors and all the colored boys come out, exactly how many boys there were, I don't know, but there was four or more, and they all come out, and all of them had a pistol. The one that got out of the rear door on the left-hand side — the car was parked with the front of it west — he got out on the other side of the automobile and shot at this boy on the porch and the boy on the porch shot back and he ducked behind the automobile when he shot, and they were all — it was just like a wild west picture — they scattered around there around the house shooting as they went." Some of the men fired from behind the automobile while others circled the house; as they fired they shouted directions to each other. One of the assailants, a brother of the defendant Joseph Washington, was hit by Roosevelt's shotgun and blinded, and Roosevelt was severely wounded.
The jury returned verdicts of guilty as to each defendant. Cases Nos. 35281 and 35282 are here on exceptions to the denying of motions for new trial on the general grounds only. The exception in case No. 35283 is to the denying of the motion for new trial which, as amended, contained two special grounds, and the general grounds of this motion, not being argued by the plaintiff in error, are treated as abandoned.
1. Special ground 4 of the amended motion for new trial in case No. 35283 of assault with intent to murder against Joseph Washington contends that the court erred in charging on the subject of conspiracy because (a) the indictment did not charge movants with conspiracy, and (b) the evidence did not authorize such a charge. There is no contention that the charge as given was an incorrect principle of law.
The common-law offense of conspiracy does not exist in Georgia; it is the criminal act which is prohibited, the conspiracy being an incident and means of accomplishment of such act. Bishop v. State, 118 Ga. 799 (4) ( 45 S.E. 614); Nobles v. State, 98 Ga. 73 ( 26 S.E. 64, 38 L.R.A. 577). "The gravamen of the action . . . is the injury done, and not the conspiracy to do it." Hill v. Reynolds, 19 Ga. App. 334 (2) ( 91 S.E. 434). Accordingly, it is not necessary to allege in the indictment that a conspiracy existed before proof may be admitted so as to make the act of one of the co-conspirators the act of all. The existence of a conspiracy may be established by proof of acts and conduct as well as by proof of an express agreement. Stevens v. State, 8 Ga. App. 217, 218 ( 68 S.E. 874); Bolton v. State, 21 Ga. App. 184 ( 94 S.E. 95); Sheppard v. State, 28 Ga. App. 735 ( 113 S.E. 54). As stated in Patterson v. State, 199 Ga. 773 (7) ( 35 S.E.2d 504): "It is not necessary, in order to show joint concert of action, that a preliminary antecedent agreement should have been formulated. A joint concert of action, amounting to a conspiracy, may be shown by circumstantial as well as by direct evidence. See Georgia Digest, Vol. 5, p. 688 (Conspiracy § 47), citing numerous cases. Whether conspiracy is in fact established is a question for the jury." See also Hudgins v. State, 61 Ga. 182. The evidence here authorized the jury to find that there was a prearrangement among these defendants and the others in the group to seek out Clarence Simmons and recover a pistol allegedly stolen from Washington, and that all of the men came armed for this purpose; that when ordered off the premises they became angry and one of them threatened the woman, Boots Harpe; that when her son attempted to defend her all of them immediately drew their guns, surrounded the house, and acted in concert to quell the only person therein putting up any resistance. Such joint concert of action, under the Patterson case and others therein cited, is sufficient to authorize a charge on this subject. This ground is without merit.
2. The defendants, in addition to making unsworn statements in their own behalf, were sworn, gave testimony, and were cross-examined, on behalf of each other. Error is assigned in the 5th special ground in that the court, while charging correctly on the weight to be given the defendants' statements, failed to charge specifically on the weight and credit to be given their sworn testimony. The court charged generally upon the weight and credit to be given the testimony of witnesses. The defendants, when sworn on behalf of other defendants in other cases, were under the general classification of witnesses. Had any of them desired the court to point up the distinction between his unsworn statement and his sworn testimony (or the sworn defendant in his behalf) this should have been made the subject matter of timely written request. In the absence of such request, the instructions given were sufficient.
3. Special ground 6 of the amended motion for new trial assigns error, as to the movant John Nelson Anthony, on a charge of the court to the effect that one has a right to prevent a felonious assault upon one's brother and that shooting under such circumstances would be justifiable. This charge was given by the court for the benefit of the defendant Joseph Washington, whose brother, Sam Washington, was wounded in the affray, and is alleged to have been prejudicial to Anthony, who did not happen to be provided with a brother at the time, on the ground that it left the jury "without any guide as to the duty of the jury to said defendant Anthony, not a brother." The charge as given was not error for any reason assigned, since Anthony could not possibly be helped or hurt by the jury's action in sustaining or rejecting a special defense urged by his co-defendant. He was undoubtedly aware that Joseph and Sam Washington were brothers, and he could not deprive a co-defendant of a possible defense peculiar to the latter. Had he felt any prejudice would result therefrom, he could have elected to sever and be tried separately. This ground is without merit.
4. Counsel for the plaintiffs in error concedes that there was ample evidence to support the conviction of both defendants under count 2 of the indictments charging them with carrying a pistol without a license, but contends that there was no evidence which would authorize conviction of carrying concealed pistols. In regard to this, several witnesses testified that when the defendants and their friends arrived they saw no evidence of pistols. One witness saw them "pull them out of their bosoms and put them in their pockets when my mother was telling them to leave." This testimony was sufficient to sustain the conviction. See Williams v. State, 7 Ga. App. 33 (2) ( 65 S.E. 1097).
The trial court did not err in denying the motions for new trial as amended.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.