Beck, P. J.
(After stating the foregoing facts.)
In the first ground of the motion for a new trial error is assigned upon the following extract from the charge of the court: “I call your attention to the point mentioned by the counsel of the defendant to the jury, that this defendant has been previously tried, and the record now appears on the indictment. He said that the verdict had been set aside. I will state that I granted the defendant a new trial on account of an error I made in instructing the jury. You are not concerned with any other trial, and you are not to be influenced by anything that occurred as to the granting of the new trial.” In view of the fact that counsel for the defendant in his argument to the jury called attention to the judgment setting aside the first verdict of guilty, and that the jury might have been led to infer from this statement of counsel that the verdict had been set aside because the evidence did not authorize it, there was nothing improper in the court’s stating to the jury that the former verdict had been set aside and a new trial granted on account of an error in the court’s charge to the jury; [598] especially as lie instructed the jury, in immediate connection with that statement, that they were “not concerned with any other trial, and were not to be influenced by anything that occurred as to the granting of the new trial.” This charge was not open to the exception that “it is argumentative and unduly influenced the jury to the theory that the evidence was amply sufficient to support the verdict rendered in that case, and that the verdict was right and would have met the approval of the judge except for the error in the charge to the jury.”
Error is assigned upon the failure of the court “to charge on circumstantial evidence, movant contending that all the evidence in any way connecting the defendant as an aider and abettor was circumstantial, though he admitted his presence.” We can not agree to the contention that all of the evidence tending to show that the defendant aided and abetted in the commission of the crime was circumstantial. The man who fired the fatal shot admitted the shooting, and testified in part: “The crowd ran one way or the other. Hood [the defendant] went on the east side of the house. He had the gun then. He handed it to me. E. K. [O’Neal, the deceased] ran through the field like he was coming angry towards us, and stopped. Some of the boys said, ‘Who is that?’ I said, ‘I don’t know.’ He said, ‘Find out who it is.’ He said, ‘Shoot and see who it is.’ . . Hood didn’t tell me to shoot him. He simply said to shoot, and that is all he said. He did not tell me to shoot when he gave me the gun. He handed me the gun when he walked behind the house. This man was running, and he stopped. Hood asked me what it was. I said, ‘I don’t know.’ He said, ‘Shoot and see.’ I thought I would sprinkle him, and I shot, and the shot killed him. I did not shoot to kill. I did not know the gun would kill a man that far. He was about 85 yards off. He was standing still, and it was dark where I shot, and I could not tell which way he was facing. It looked like he was facing me.” Evidently, from this testimony, the witness who committed the act of shooting the deceased knew that it was a man out in the field. While he testified that it was dark, it is clear from his testimony that he did not mean it was so absolutely dark that he could not perceive any object; for he testified that the deceased ran through the field towards him or towards the group, as if he was angry. He did testify that he [599] could not tell which way he was facing, but he added, “It looked like he was facing me.” In view of these facts and this testimony, the court did not err in failing to charge upon the subject of circumstantial evidence. “It is only where a case is wholly dependent upon the law of circumstantial evidence that the trial judge is required to give the law of circumstantial evidence.^ It follows that where the indictment is supported by both circumstantial and direct evidence, it is not erroneous for the court to omit a charge upon the law of circumstantial evidence.” Nobles v. State, 127 Ga. 212 (56 S. E. 125).
Error is assigned on the failure of the court to charge on the subject of impeachment of witnesses. There is no merit in this exception, as it does not appear that there was any written request for a charge upon this subject. We do not know of any other principle of law that has been so frequently ruled as this. See 11 Enc. Dig. Ga. R. 681.
The ruling made in the fourth headnote requires no elaboration.
Movant excepts to the failure of the court to charge upon the subject of involuntary manslaughter in the commission of an' unlawful act, and also in the commission of á lawful act without due caution and circumspection. The failure of the court to charge upon this subject was not error. Roscoe Holt, who had been convicted as principal in the first degree, and who was introduced as a witness for the State, shows by his testimony that the crime which he committed by shooting and killing O’Neal was murder. Read, in this connection, the testimony of Holt which we have quoted above. Consider especially the following brief restatement of a part of that testimony: “Hood had the gun then. He handed it to me. R. K. [meaning O’Neal, the deceased] ran through the field like he was coming angry towards us, and stopped. Some of the boys said, ‘Who is that?’ I said, ‘I don’t know.’ He [referring to the defendant in the present case] said, ‘Find out who it is.’ He said, ‘Shoot and see who it is.’ . . I thought I would sprinkle him, and I shot, and the shot killed him. I did not shoot to kill. Did not know the gun would kill a man that far.” But it did kill the man who was shot at. And the killing was not reduced to a lower grade of homicide merely because the man who fired the gun and the man who aided and [600] abetted the act might have thought that the gun “would not kill a man that far.” Studstill v. State, 7 Ga. 2; Stovall v. State, 106 Ga. 443 (32 S. E. 586).
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Beck, P. J.
(After stating the foregoing facts.)
In the first ground of the motion for a new trial error is assigned upon the following extract from the charge of the court: “I call your attention to the point mentioned by the counsel of the defendant to the jury, that this defendant has been previously tried, and the record now appears on the indictment. He said that the verdict had been set aside. I will state that I granted the defendant a new trial on account of an error I made in instructing the jury. You are not concerned with any other trial, and you are not to be influenced by anything that occurred as to the granting of the new trial.” In view of the fact that counsel for the defendant in his argument to the jury called attention to the judgment setting aside the first verdict of guilty, and that the jury might have been led to infer from this statement of counsel that the verdict had been set aside because the evidence did not authorize it, there was nothing improper in the court’s stating to the jury that the former verdict had been set aside and a new trial granted on account of an error in the court’s charge to the jury; [598] especially as lie instructed the jury, in immediate connection with that statement, that they were “not concerned with any other trial, and were not to be influenced by anything that occurred as to the granting of the new trial.” This charge was not open to the exception that “it is argumentative and unduly influenced the jury to the theory that the evidence was amply sufficient to support the verdict rendered in that case, and that the verdict was right and would have met the approval of the judge except for the error in the charge to the jury.”
Error is assigned upon the failure of the court “to charge on circumstantial evidence, movant contending that all the evidence in any way connecting the defendant as an aider and abettor was circumstantial, though he admitted his presence.” We can not agree to the contention that all of the evidence tending to show that the defendant aided and abetted in the commission of the crime was circumstantial. The man who fired the fatal shot admitted the shooting, and testified in part: “The crowd ran one way or the other. Hood [the defendant] went on the east side of the house. He had the gun then. He handed it to me. E. K. [O’Neal, the deceased] ran through the field like he was coming angry towards us, and stopped. Some of the boys said, ‘Who is that?’ I said, ‘I don’t know.’ He said, ‘Find out who it is.’ He said, ‘Shoot and see who it is.’ . . Hood didn’t tell me to shoot him. He simply said to shoot, and that is all he said. He did not tell me to shoot when he gave me the gun. He handed me the gun when he walked behind the house. This man was running, and he stopped. Hood asked me what it was. I said, ‘I don’t know.’ He said, ‘Shoot and see.’ I thought I would sprinkle him, and I shot, and the shot killed him. I did not shoot to kill. I did not know the gun would kill a man that far. He was about 85 yards off. He was standing still, and it was dark where I shot, and I could not tell which way he was facing. It looked like he was facing me.” Evidently, from this testimony, the witness who committed the act of shooting the deceased knew that it was a man out in the field. While he testified that it was dark, it is clear from his testimony that he did not mean it was so absolutely dark that he could not perceive any object; for he testified that the deceased ran through the field towards him or towards the group, as if he was angry. He did testify that he [599] could not tell which way he was facing, but he added, “It looked like he was facing me.” In view of these facts and this testimony, the court did not err in failing to charge upon the subject of circumstantial evidence. “It is only where a case is wholly dependent upon the law of circumstantial evidence that the trial judge is required to give the law of circumstantial evidence.^ It follows that where the indictment is supported by both circumstantial and direct evidence, it is not erroneous for the court to omit a charge upon the law of circumstantial evidence.” Nobles v. State, 127 Ga. 212 (56 S. E. 125).
Error is assigned on the failure of the court to charge on the subject of impeachment of witnesses. There is no merit in this exception, as it does not appear that there was any written request for a charge upon this subject. We do not know of any other principle of law that has been so frequently ruled as this. See 11 Enc. Dig. Ga. R. 681.
The ruling made in the fourth headnote requires no elaboration.
Movant excepts to the failure of the court to charge upon the subject of involuntary manslaughter in the commission of an' unlawful act, and also in the commission of á lawful act without due caution and circumspection. The failure of the court to charge upon this subject was not error. Roscoe Holt, who had been convicted as principal in the first degree, and who was introduced as a witness for the State, shows by his testimony that the crime which he committed by shooting and killing O’Neal was murder. Read, in this connection, the testimony of Holt which we have quoted above. Consider especially the following brief restatement of a part of that testimony: “Hood had the gun then. He handed it to me. R. K. [meaning O’Neal, the deceased] ran through the field like he was coming angry towards us, and stopped. Some of the boys said, ‘Who is that?’ I said, ‘I don’t know.’ He [referring to the defendant in the present case] said, ‘Find out who it is.’ He said, ‘Shoot and see who it is.’ . . I thought I would sprinkle him, and I shot, and the shot killed him. I did not shoot to kill. Did not know the gun would kill a man that far.” But it did kill the man who was shot at. And the killing was not reduced to a lower grade of homicide merely because the man who fired the gun and the man who aided and [600] abetted the act might have thought that the gun “would not kill a man that far.” Studstill v. State, 7 Ga. 2; Stovall v. State, 106 Ga. 443 (32 S. E. 586).
Evidently, though it was dark, Holt knew that the object, out in the field was a man. Hood — this defendant — told him to shoot. Holt’s testimony shows that when he shot and killed O’Neal he committed murder. Hood, this defendant, had handed him the 'gun and told him to shoot. If Holt was guilty of murder under these circumstances, Hood, aiding, abetting, and counseling the act done, was guilty as principal in the second degree of the same crime. This defendant made a statement which is in the record. He narrates the circumstances of the killing, but does not refer to the statement of the witness Holt and another witness wherein they swore that he said, “shoot.” His entire description of what happened at Dewberry’s house, where the killing occurred after the several groups of persons had arrived there after they left Ella Wilson’s house, is vague and obscure. Here is his narrative of what occurred as they left or were leaving the house of Ella Wilson and going to the Dewberry house: “Dus Moore walked behind him when he walked off, but I stayed behind there at the house. When R. K. got off a piece he turned around and came back and said, ‘Gr — • d — n you, somebody said you was killed.’ They then went off up the road and commenced shooting over on the other side of the branch. They shot twenty-five times. I slacked up and did not go in that crowd. On the way, before I caught up with the crowd, Roseoe and James Meadows passed me with a shotgun and asked me who it was shooting up there. I said it was the crowd that had passed on over there, and for them not to go up there and start anything. Roseoe said he was not going to start anything but to stop something. When he got near the crowd he called out for his papa to come to him. When he said that, the folks broke and run, some went to the left and some went to the right. I told them not to go toward the house or cross that way, they might get shot. Roseoe and James Meadows were as far from me as the middle of the court-house. I thought they had shot some one up there. There is a little round house out to the side of the road, and I turned and ran out towards it. I made two steps from the road and heard the gun fire over back of the house. I did not see the gun fire. I stopped right then, and James and [601] Eoscoe came back towards me. I heard James say, 'I saw something fall/ and I walked back in the road when I heard James say, 'I saw somebody fall/ General Holt told me I had better not go out there. Somebody may be in the grass and bust you open. James Meadows said he saw somebody fall, and let’s go and see who it was. I went and got as close as to that post, and saw somebody out in the cotton-patch. I was standing on a terrace and saw the body. I said if they would go I would go with them. James, General, and Bud walked out to where he was. I did not go. They said it was E. K. General Holt got his pistol, and James Meadows got it from him; that- was the way it was. General Holt managed about the pistol. He gave it to Bud and then he got it back. When they got up there they asked who killed E. K.; who shot the gun. James said, 'Eoscoe, you know you did it/ Eoscoe said, 'Well, I have got to go/ and he got back in the road. His papa said, 'I told you a week ago that you were going to kill somebody or somebody kill you/ Eoscoe said, 'Don’t talk that way; I have got to go/ and asked if he had any money. He said, 'Yes, I have got two dollars/ and he gave it to him. That’s all I know about it. I had nothing to do with it at all. General said, 'Let’s move him/ I said, 'I don’t believe we can move him/ for us to go and see Mr. Bush. We asked him what about moving the man that got killed. He said he did not know, and I did not know whether we could move him of not. They went to town to see Mr. Owens, but I did not go any further. I said, 'I will stay till you come back/ ”
If Holt was guilty of murder in killing O’Neal (and it is clear that he was from the evidence), then this defendant was guilty in the second degree, if he aided, and abetted the act. And his own statement does not suggest guilt of a lower grade of homicide. In his statement he says, it will be noticed, after vaguely and obscurely narrating the events, as it appears from a quotation from his statement, “That’s all I know about it. I had nothing to do with it at all.” He denies his guilt of any crime. But the jury found his positive statement that he was not guilty to be untrue.
Error is also assigned upon the failure of the court to give in charge to the jury certain requested instructions. These are as follows: (a) “A principal in the second degree is a person [602] [who], though he does not give the mortal wound, is present at the time it is given, and is aiding and abetting the principal in the first degree to cómmit the specific crime charged, and actually participates in the felonious design of the slayer to take human life.” (b) “In order to constitute any one a principal in the second degree, he must not only be present at the time, but must also aid and abet the principal in the first degree in the commission of the alleged crime. And it takes all three of these elements: that is, presence, aiding, and abetting.” (c) “In criminal law, the word aid means help or assist in the commission of the unlawful act.” (d) “The word ábel means to encourage or set another on to commit an unlawful act. Thus to abet another to commit a crime means to command, procure, or counsel him to do it. And it takes all the elements; that is, presence, aiding, abetting, or entering into the felonious design of the principal in the first degree, and the absence of either element is sufficient to free the person charged as principal in the second degree from guilt of the crime charged.” (e) “Though one be present at the time of the commission of the crime and mentally consents to it or approves it, yet if this consent or approval is unknown to the principal in the first degree, and he does not enter into the felonious design, he is not guilty as a principal in either the first or second degree.” (f) “Where one, jointly indicted for murder with others, is on trial, if there is no evidence of conspiracy, and the person did not inflict the mortal wound, a verdict of guilty should not be returned, unless the State shows beyond a reasonable doubt that there was-such a conspiracy between the person on trial and the actual perpetrator of the crime.”
The court did not err in refusing these requests. In so far as they state the law applicable to the issues made by the evidence, they were sufficiently covered in the court's charge. The court actually charged upon the subject dealt with in these requests, as follows: “The principal in the second degree is one who was present aiding and abetting the act to be done; he would be a principal in the second degree. In this case he would be one, if there was one, who was present aiding and abetting the principal in the first degree to commit the offense; it is one who aids and abets within the meaning of the law. If the crime is committed, it is necessary that such person be not only present at the time the [603] crime is committed, but he participated in some way in the commission of the crime. He must have aided and abetted in the commission of the crime. It is not sufficient that he merely consented to it. It is not sufficient that he approved of it. He must do some act, in some way, in the commission of the crime. He must abet, encourage its commission, procure its commission, counsel or advise its commission. Whether or not, if a crime was committed by any one on this occasion, within the meaning of this law the accused aided and abetted the commission of the crime, are all questions of fact for you to- determine. 'You must see whether the facts authorize you to say that he was present at the time, and that he participated in it — encouraged it, counseled or. commanded it, or procured its commission. If you find he did, his conviction is authorized. If you can not say he did, if you are unable to say he did or not, or if you have a reasonable doubt of it, his conviction would not be authorized.”
The evidence authorized the verdict.
Judgment affirmed.
All the Justices concur, except Bussell, O. J., dissenting, and Gilbert, J., absent for providential cause.