Opinion
33446.
DECIDED APRIL 11, 1951.
Cow stealing; from Emanuel Superior Court — Judge Smith presiding. December 2, 1950.
H. Alonzo Woods, for plaintiff in error.
W. H. Lanier, Solicitor-General, contra.
1. Where there is some direct evidence on all the essential elements of the offense for which the defendant is tried, including corroboration of an accomplice, the court's failure, in the absence of a timely, written request, to instruct the jury on the law of circumstantial evidence is not cause for a new trial. Williams v. State, 83 Ga. App. 252 ( 63 S.E.2d, 442); Wright v. State, 184 Ga. 62, 65 ( 190 S.E. 663); McElroy v. State, 125 Ga. 37 ( 53 S.E. 759); Wilson v. State, 152 Ga. 337 ( 110 S.E. 8); Haden v. State, 176 Ga. 304 (17) ( 168 S.E. 272); Harris v. State, 178 Ga. 746 (2) ( 174 S.E. 240); Starnes v. State, 45 Ga. App. 238 (1) ( 164 S.E. 89). This single special ground of the motion for a new trial is not meritorious.
2. ( a) "Where individuals enter into a conspiracy to commit a crime, its actual perpetration by one or more of them in pursuance of such conspiracy is in contemplation of law the act of all, and therefore is 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).
( b) A conspiracy may be shown by circumstantial as well as direct evidence. Weaver v. State, 135 Ga. 317 (1) ( 69 S.E. 488); McLeroy v. State, 125 Ga. 240 ( 54 S.E. 125); Owens v. State, 120 Ga. 296 ( 48 S.E. 21); Dixon v. State, 116 Ga. 186 ( 42 S.E. 357); Randall v. State, 73 Ga. App. 354, 371 ( 36 S.E.2d 450); Swain v. State, 74 Ga. App. 391, 392 ( 39 S.E.2d 727); Davidson v. State, 78 Ga. App. 619 ( 51 S.E.2d 867); Weeks v. State, 66 Ga. App. 553 ( 18 S.E.2d 503); Thomas v. State, 56 Ga. App. 381 ( 192 S.E. 659).
( c) Whether or not a conspiracy has been established is solely for the jury to determine. Weeks v. State, supra; Harris v. State, 184 Ga. 382, 392 ( 191 S.E. 439).
( d) Applying the foregoing rules of law to the facts of this case the jury was authorized to find that the defendant entered into a conspiracy to steal the cow in question and that in pursuance of such conspiracy the defendant's co-conspirator committed the offense of cow stealing thereby making the defendant also guilty of that offense. The evidence authorized the verdict and the court did not err in overruling the motion for a new trial.
Judgment affirmed. Gardner and Townsend, JJ., concur.
DECIDED APRIL 11, 1951.
The defendant, Clarence Johnson, was indicted and found guilty of cow stealing. His motion for a new trial, which was based upon the usual general grounds and one special ground alleging error upon the court's failure to charge upon the law of circumstantial evidence, was overruled and he excepted.
It appeared from the evidence that one George Watson had already pleaded guilty to stealing the same cow and had served his sentence. He testified that he had seen the defendant on the Sunday preceding the Saturday on which the cow was killed and the two of them had planned to steal one of Mr. Roy Lee Smith's cows, the owner of the cow in question in this case. Watson testified: "We made the agreement this way. You see he told me he might work that Saturday afternoon, and if he wasn't to my house about an hour by sun that I was to go kill the cow and get a place by night where we could get the cow that night, I waited until about an hour and a half by sun; I killed the cow with a rifle . . at the time that I went off to kill the cow he hadn't got there to my house, when I went and killed the cow and cut the cow's throat and got back to the house I was not in the house ten minutes, well, I just had put the rifle down when Clarence [the defendant] came walking. I did not let him know right at the time; he asked me what I had did; he asked me if I had went and did what we had planned to do; told him, yes; he told me, he says I forgot my knife, that's what Clarence told me; he says you got what I forget; and I says yes and I give him a knife. Clarence and I started to the cow before dark; we did not get quite to the cow; we got just about to Mr. ---- store there; when started to where the cow was we carried two knives and a whetrock and a sheet, a white sheet. We were going to sharpen the knives with the whetrock; we were going to skin the cow with the knives, and we were going to wrap up the cow with the sheet. When we got down there we saw Buddy Brantley; we saw him to the cow, when we saw Buddy Brantley to the cow me and him [the defendant] made whirl, probably he saw it a little before I did; he whirled and then I saw it. We whirled just about the same time, we went on back down through the woods. We went together, nobody else went down there with us, nobody but me and Clarence, that was before dark. We did not go back again after dark. Clarence asked me about going back but I told him I wasn't going there because they had done found the cow . . Maudine Watson, that is my wife; when we left to go down there to the cow she was at the house." Buddy Brantley testified that he discovered that the cow had been shot and its throat cut. He sent word to the owner and stayed with the cow. Watson's wife testified that the defendant arrived at the Watson house at about the time which George Watson said was the appointed time between him and the defendant to meet to steal and kill the cow in question. She also testified that they took the knives and the sheet off from the house, she knew not where, but they very soon returned, and that she heard the defendant ask her husband if he were going to return later and get the cow. One of the investigations in the case testified that he identified the defendant's tracks among those leading from the vicinity of the cow to the Watson house. He was able to do this by measurement, placing the defendant's shoe in the track, and by the peculiar markings made by the defendant's shoe. This same investigator testified that the defendant, freely and voluntarily, admitted that he had been to the Watson house at the time in question and that he had gone with Watson to butcher the cow. The defendant introduced witnesses as to his good character and in his statement generally denied the charge against him.