dissenting. The writer,’being of the opinion that hone of the assignments of error require the grant of a new trial, dissents from the judgment of this court reversing the trial judge and ordering a new trial. The judgment of this court in granting a new trial is based only upon the rulings in the second, fourth, fifth and ninth headnotes. It is well recognized that mere error does not require the grant of a new trial. If it were otherwise, especially in long, hotly contested cases,- consuming much time and labor, reversals would often result where no injury was suffered by the complainant. In many cases this court has held that harmless error will not require the grant of a new trial. In considering the four rulings upon which the reversal in this case is based, the established facts, many of which are undisputed, should be borne in mind.
1. In the division of the opinion corresponding to the second headnote the majority hold that the court erred in admitting evidence of acts and sayings of coconspirators on the same day and a few hours preceding the homicide. These rulings were held to be error on the ground that the acts and sayings preceded the forming of the conspiracy. The homicide occurred about nine o’clock at night. Something like an hour previously to that time there was much shooting within the city limits of Byromviile at the scene where later the homicide occurred. The difficulty between the town marshal and Fate Chapman, which furnished the spark from which afterwards developed the conflagration, figuratively speaking, occurred during the morning of the same day. Almost immediately after the difficulty murmurings and meetings began between those who were, at the time of the homicide, -included in the crowd comprising the conspirators. At just what moment the conspiracy was actually formed perhaps no human mind, from the evidence, can definitely, say. Under our system of jurisprudence, however, the trial jury are expected to form an exception to the general rule applicable to the mental ¡lowers of human • beings. It was for the jury to determine when the conspiracy began, if it was not shown without controversy so that it became matter of law. Under the facts of the ease the jury were *325authorizéd to find that the formation of the conspiracy preceded all of the acts and sayings which were admitted by the trial court. Moreover, these acts and sayings were admissible to be considered by the jury in determining whether a conspiracy did exist, and when it was formed. The existence of a conspiracy, it has been frequently held, may be shown by circumstances, and in fact can be rarely shown by direct evidence. For all of these reasons it is insisted that the admission of such evidence does not require the grant of a new trial. Compare Slaughter v. State, 113 Ga. 284, 288 (38 S. E. 854, 84 Am. St. R. 242); Coleman v. State, 141 Ga. 731, 735 (82 S. E. 228).
According to the rulings of a majority of the court, the trial court was authorized to charge the jury on the subject of conspiracy. It follows, therefore, that there was evidence from which the jury could have found that a conspiracy existed at the time of the homicide. It is not disputed that there were many, including the plaintiffs in* error in these cases, at the scene of the homicide, armed with pistols, shotguns, army rifles, and the like, that much shooting occurred previously to the homicide, and that one of those jointly indicted had suggested the first firing for the purpose of attracting “the white people ” to the scene. One of the-accused had a shotgun and buckshot cartridges, and the body of the deceased was riddled with buckshot. The homicide was undenied, as was also the fact that these defendants were on the scene armed and in a crowd, from the direction of which the'gun which killed the deceased was fired; that the deceased was one of the posse led by the sheriff, the town marshal, and the justice of the peace of the district, all of whom were peace officers. ITnder these circumstances should be viewed the assignments of error on which the case is reversed and remanded for a new trial.
2. One of the rulings on which the judgment is reversed is that found in the fourth headnotc, where it is held in substance that the court erred in refusing to permit the defendant to show by the sheriff, who was a witness for -the State, on his cross-examination, that he refused to permit counsel for defendant to have a conference with his client out of the presence of other inmates of the same cell. It is contended that such refusal on the part of the sheriff was unfair to the defense, and tended to show bias.on the part of the witness against the accused, because *326he had allowed the State’s counsel this privilege. The only possible relevancy of this testimony was to discredit the testimony of the sheriff. In view of the fact that there was no substantial denial of any of the testimony of the sheriff, and of the very slight basis which this testimony would have afforded to affect the credibility of the sheriff as a witness, it is respectfully insisted that this ruling of the trial judge affords no ground for the reversal of the judgment denying a new trial.
3. In the fifth headnote it is ruled that the court erred in admitting, over the defendant’s objection, proof that one of said alleged conspirators, after the criminal enterprise was over, brought to the home of the witness a pistol, and in admitting in evidence such weapon. In connection with this ruling it must be borne in mind that there was admitted in evidence the following: “ Colt automatic 32-calibre pistol; large army pistol; Colt 45; three double-barrel shotguns; two rifles; one single-barrel shotgun, together with box of assorted ammunition identified by “the sheriff.” Surely it could not have been prejudicial to the defendant to have admitted evidence that one of the conspirators, after the conspiracy was over,' simply brought to the witness a pistol. In connection with this no evidence was admitted of any saying of the coconspirator who brought the pistol to the witness, but simply that he brought the pistol. The writer cannot conceive of any injury to the defendant resulting from the mere admission by the court of the fact stated. In this connection compare the case of Horton v. State, 66 Ga. 690. In this case, where several conspired to and did rob another of $590, on the trial of Horton evidence was admitted that one Wilson, a coconspirator, was arrested in another county and that he had $620 concealed in his clothing, among which was a fifty-dollar bill identified by the person robbed as his own; that another conspirator was arrested on the same day in still another countjq that he had sixty-five dollars in money, a diamond, and a one-thousand-dollar certificate of deposit; and that he attempted to make an escape. All of these facts were admitted after the robbery had been completed and the conspirators had fled.
4. In the ninth headnote the majority hold that it was reversible error for the court to refuse a written request duly submitted to give in charge the following: “The sheriff or no other *327officer has any legal authority to arrest a person charged with a crime, unless the offense was committed in his presence or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant.” In view of the fact that the court did charge in full Penal Code section 917, which is the precise principle of law requested, but stated it affirmatively, instead of as in the written request, even if error at all, it is not of sufficient importance to require the grant of a new trial. This court has repeatedly held that where the substance of written requests is given- in charge instead of using the exact language, a reversal is not required.