Simmons v. State

26 S.E.2d 785, 196 Ga. 395, 1943 Ga. LEXIS 366

• Court: Supreme Court of Georgia
• Decided: July 8, 1943
• Docket: 14563.
• Status: Published

Opinions

1. The existence of a conspiracy may be shown by circumstantial as well as direct evidence. McLeroy v. State, 125 Ga. 240 (54 S.E. 125).

2. 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 they may be held responsible accordingly. Horton v. State, 66 Ga. 690; Johnson v. State, 151 Ga. 21 (2) (105 S.E. 603).

3. The evidence, though largely circumstantial, was sufficient to authorize a finding that the deceased was killed and murdered as alleged in the indictment, and that if the plaintiff in error, one of three indicted, was not an actual perpetrator, she was nevertheless present, aiding and abetting and participating in the felonious design. Compare Coggeshall v. State, 161 Ga. 259 (2) (131 S.E. 57); Albritton v. State, 175 Ga. 891 (7) (166 S.E. 643).

4. There being some evidence that one of the defendants had planned to rob the deceased, and that as to him such robbery was the accomplished motive for the homicide, evidence that about sixteen months previously the plaintiff in error, a woman apparently not related to him, was present when he committed a robbery upon another person and left the place with him, was relevant and admissible as tending to show that her presence at the commission of the later homicide was not incidental and innocent, but was a guilty presence, and that she was connected with the criminal enterprise. Cawthon v. State, 119 Ga. 395 (4-6), 409 (46 S.E. 897); Cooper v. State, 182 Ga. 42 (184 S.E. 716, 104 A.L.R. 1309); Andrews v. State, 196 Ga. 84 (26 S.E.2d 263). It has "been held that presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." Thornton v. State, 119 Ga. 437, 439 (46 S.E. 640).

5. Under the preceding rulings, the evidence admitted over objection was not inadmissible for any reason urged; nor was the charge on conspiracy erroneous, as contended, upon the ground that it was unauthorized. The evidence was sufficient to support the verdict finding the defendant guilty, and it was not error to refuse a new trial.

6. In the instant case there was no assignment of error upon admission of hearsay testimony, as was true in the companion case of Fuller v. State, 196 Ga. 237 (26 S.E.2d 281), in which case the refusal of a new trial was reversed.

Judgment affirmed. All the Justices concur, except Atkinson, J., who dissents.

No. 14563. JULY 8, 1943.