1. The evidence amply supports the verdict.
2. The special grounds of the motion for new trial are without merit, for the reasons given in the opinion.
DECIDED MARCH 16, 1945. Willis Wells and James Hunter were separately indicted for and convicted of an assault with intent to murder Morgan Mooney and his wife with a "knife and rocks," weapons likely to produce death. They were tried together. Separate verdicts of guilty were returned and each filed a motion for a new trial, which was overruled, and each prosecuted a bill of exceptions to this court to the overruling of his motion.
The evidence shows substantially that on August 10, 1944, Morgan Mooney was driving his car from Winder, Georgia, in Barrow County, about 9:30 at night, traveling south. He was on the front seat with his wife. His little girl was between them. His father and mother were on the back seat. When several miles from Winder Mr. Mooney observed three negroes, one on the right side of the road, and two on the left side. The one on the right apparently staggered out on the paved highway in front of the car. Mr. Mooney pulled the car to the center of the road to avoid striking this negro. The other two were on the edge of the road to the left. The one nearest to Mr. Mooney had on a white shirt. The other one was near the outside of the pavement. At this point an open knife was thrown into the car from the left of Mr. Mooney, and, entering the car over his right shoulder, struck the dash or windshield, and hit his wife in the eye. The knife was recovered in the car by Mr. Mooney, and was introduced in evidence. It was a weapon which was likely to have produced death in the manner in which it was thrown. After the knife was thrown into the car Mr. Mooney stopped the car and, getting his pistol out of the car, got out, when someone, inferentially one of the two negroes to the left of the car, remarked: "Let the son of a bitch have his gun. If he comes out here we will kill him." On account of the darkness Mr. Mooney could not see them but shot in their direction, and then drove about a quarter of a mile and turned and started back toward Winder to notify the sheriff. On the way back, at *Page 200 or about the place where the knife had been thrown into the car, and from the same side of the road from which it was thrown, a barrage of rocks was thrown against the car, breaking the glass and denting the car in several places. Mr. Mooney again stopped the car and shot at the negroes, and they fled. He recognized them as the same negroes who were standing on the side of the road at the place where the knife was thrown, and at the trial identified the defendants on trial as being the same negroes. He did not know which of the two threw the rocks, nor which one threw the knife. One of them had on a white shirt and white pants, and the pants were wet nearly up to the knees. He returned to Winder, reported the incident to the sheriff and to the chief of police, and gave them the best description he could. The light from the car was on the defendants sufficiently to identify them. Mr. Mooney was a bus driver by occupation, and his peculiar training was to look ahead and observe things as they came into view. He testified that the defendants Wells and Hunter were the two on the left side of the road. His father and his wife were sworn. They testified substantially to the same facts as did Mr. Mooney, except that they could not identify either of the defendants, nor could they tell who threw the knife or the rocks.
After the crime was reported to the sheriff and the chief of police, a search for the negroes began. Someone reported to a police officer that Willis Wells and James Hunter were seen traveling from the scene of the crime toward Winder, walking on the railroad tracks, with rocks in their hands, and that one of them, wearing a white shirt, was wet nearly up to his knees. When arrested they were very much under the influence of liquor. They were taken to jail and there questioned. The officer asked James Hunter who threw the rocks and he stated that he did not know; that he was on the other side [meaning the road], and that one of the others threw the rocks; that someone shot. An officer testified that Wells, the defendant in the instant case, stated freely and voluntarily that he was at the scene of the crime; that his pants were muddy up to his knees; that he said he knew nothing about the rocks, but that he was there when someone came along and shot, "and they ran" to keep from getting hit; that both stated that the knife which was thrown into the car belonged to Willie Pope. Willie Pope fled on the night of the occurrence, and had *Page 201 not been apprehended at the time of the trial of Wells and Hunter.
The defendants introduced no evidence, but made statements. Wells made the following statement: "Well, we was on our way coming to town and met this car, and this boy over there he had stopped on the side of the road and I had slowed down waiting on him, and the car stopped, and when the car stopped somebody said that's all right come on here, and he said no, I'm going to kill me a God damn man, and I went over in the gully, and he shot three times, and then he went down the road and come back, and I fell off in the gully and they said we was wet. I fell off a foot log over a creek and got wet, and about the knife part, I don't know nothing about that knife and rocks. I was on the left-hand side of the road, me and this other boy was." Hunter's statement was as follows: "Well, when we was coming on up the road there, coming from home, we heard this car coming, and when I staggered out in the road — I had just come out of the bushes and staggered across the road, and I was on the right-hand side of the road, and these other two boys was on the other side of the road, and when the car stopped — I didn't know nothing about the knife or nothing — and when the car stopped and somebody got out and went to shooting I didn't know what it was all about or nothing. I was sort of behind the other crowd, and when he started shooting I laid down on the side of the road, and when they quit and drove down the road and started back up there I took out across the field up there." After the defendants had made their statements Mr. Mooney testified that they were the two boys on the left of the road.
It is contended here that the judgment overruling Wells's motion for a new trial should be reversed on the general grounds and on six special grounds. 1. The general grounds and the special grounds are largely controlled by the one question, whether or not Wells and Hunter, who were apprehended and tried, and Willie Pope, who fled, acted with a common intent and purpose in a concerted action to make the attack upon Mr. Mogan Mooney and his family. If they did, there was a conspiracy between them. A conspiracy need not be specially pleaded, as counsel for the defendant contends. Dixon v. State, 116 Ga. 186 (8) (42 S.E. 357). And *Page 202 the conspirators need not be indicted jointly. Nelson v.State, 51 Ga. App. 207, 211 (180 S.E. 16). A conspiracy may be proved by conduct, as well as by an express agreement. If the evidence shows that this defendant and James Hunter, or others, acted with a common intent and purpose in the attack on Mr. Mooney and his family, and that the things which were proved to have happened were within the scope of this common intent and purpose, it amounts to a conspiracy. Such being true, the act of one within the scope of the conspiracy and during its progress was the act of all. The court charged the jury the law fully as to what constituted a conspiracy, and the effect of it. From the evidence and the statements of the defendant here and James Hunter, the evidence is overwhelming that the defendant Wells, together with James Hunter, and probably Willie Pope, formed a conspiracy and did waylay and attack Mr. Morgan Mooney and his family while Mr. Mooney's car was traveling upon the public highway. We can not easily comprehend, under the record of this case, how it could be contended otherwise. In our opinion the jury were indeed kind to the defendant and his coconspirator. It does not matter at all which one of the conspirators threw the knife or the rocks, the act of one was the act of the other; the identity of the one who threw the knife or the rocks is immaterial. The defendant Wells and the defendant Hunter both admitted to the officers their presence at the scene, and in their statements admitted their presence at the occurrence. They further corroborated the evidence as to the third person by giving the name of Willie Pope, and sought to exonerate themselves from doing the overt acts of throwing the knife and the rocks by charging the fugitive Willie Pope as having been the one who did these overt acts. Counsel for the defendants seem to have proceeded on the theory that the State was bound to prove just which one of the culprits threw the knife and the rocks into the car, and did the other acts. To do this it is necessary to urge that there was no conspiracy. In this, as we have seen, under the great weight of the evidence, the argument falls. The general grounds are without merit.
2. Special ground 1 assigns error because the court charged on the law of direct and circumstantial evidence. The assignments of error are, first, that there was no evidence, direct or circumstantial, identifying this defendant as the one who threw the rocks or *Page 203 the knife; and second, because all the evidence was direct and none circumstantial. We can not agree with either of these propositions. The evidence was circumstantial as to whether or not there was a conspiracy. We grant that it was so conclusive that it has the appearance of direct evidence, but nevertheless it stands largely on indirect evidence. The contention that all the evidence was direct and none circumstantial is likewise untenable, for the reason mentioned.
3. Special ground 2 assigns error because the court charged the law of conspiracy. This charge is assigned as error (a) because no conspiracy was alleged in the indictment; (b) there is no direct evidence that this defendant entered into a conspiracy; (c) there are no circumstances in the record against this defendant to prove a conspiracy. In his argument counsel citedBranch v. State, 5 Ga. App. 651 (2) (63 S.E. 714), andStevens v. State, 8 Ga. App. 217 (3) (68 S.E. 874), in support of these contentions. We have read these decisions carefully and can not see that they in any wise support the contentions in this ground. We know of no law that a conspiracy need be charged in the indictment, and we have been cited to none, except where the act of conspiracy itself is made a crime. That is not true in this case. This ground is without merit.
4. Special ground 3 assigns error because the court charged on the law of admissions as applied to criminal cases. Error is assigned upon this charge on the ground that there is no evidence to support it. To this contention we can not agree. Both defendants admitted to the officers that they were there when the crime was perpetrated. To this extent it was an incriminating admission. The court properly so charged. This ground has no merit.
5. Special ground 4 complains because the court failed to charge on murder, manslaughter, and justifiable homicide, in a manner specified in this ground, and that the charge was erroneous. The court charged specifically and clearly that the jury must believe beyond a reasonable doubt that the assault was made with malice, with intent to kill, and with a weapon likely to produce death, before they could convict the defendant of assault with intent to murder. He then charged them that if they had any reasonable doubt as to whether or not the evidence showed this offense then they should inquire into the lesser offenses of assault and battery *Page 204 and stabbing. The three offenses charged in the indictment were assault with intent to murder, assault and battery, and stabbing. The instructions to the jury covered fully each charge in the indictment. This special assignment of error is without merit.
6. Special ground 5 complains because the court refused to give in charge a written request as follows: "In a case of assault with intent to murder the identification of the accused as the person who did the assault with intent to murder alleged is of paramount importance and should be established and proven to the jury's satisfaction and beyond a reasonable doubt." If it may be conceded that this request is not argumentative, the refusal to give it in charge was not error under the facts of this case. Counsel for the defendant seems to proceed on the theory that the State was bound to prove the identity of the conspirator who threw the rocks or the knife. It is not even suggested that none of the three, Wells, Hunter, or Pope, did the throwing. As we have endeavored to show in the first division of this opinion, there was a conspiracy, and if so, it is immaterial which one of the conspirators threw the knife or the rocks. The evidence shows conclusively that one of them did it during the conspiracy, and within its scope. This being true, the act of one was the act of the other. Therefore it becomes immaterial which one did the throwing. It necessarily follows, therefore, that it was not of paramount importance to identify the one who did it. This assignment has no merit.
7. Special ground 6 complains because the court admitted, over objections of the defendant, testimony to the effect that previous to the time of the incident, Mr. Morgan Mooney's wife usually met him at 11:30 o'clock, whereas on the night of the incident she met him at 9:30. We can not see that this could in any wise prejudice the defendant's case. It seems to us it was foreign to any issue; but equally as remote from any harm to the defendant's case. This ground has no merit.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur. *Page 205