Owens v. State

The first; second and fifth grounds of the amended motion assign error on the charge of the court on the subject of conspiracy. Complaint is made that there was no evidence to warrant the charge. A conspiracy may be shown by circumstances, and there was sufficient evidence in the record upon which to base the charge of defendant conspiring with her sons to take the life of her husband. The dissected portions complained of may not have been absolutely accurate, but, taken as a whole, the charges fairly submitted the law of conspiracy. Davis v. State, 114 Ga. 104.

Plaintiff in error contends that there was no evidence justifying the charge on the subject of confessions. It appears from the record that on the morning after the killing, while standing near the body, defendant stated: “ Shep is the cause of it. If he had behaved himself he would not be lying there dead. We had to do it to save ourselves.” The judge construed the effect of such statement to fee a confession of guilt. “A confession, in criminal law, is a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offence charged, and discloses the circumstances of the act and the share and participation he had in it.” Black’s Law Diet. This definition of a confession was adopted and approved by the Court of Appeals of Kentucky in Spicer v. Commonwealth, 51 S. W. 802. “A confession is a person’s admission or declaration of his agency or participation in a crime, and is restricted to admissions of guilt.” 3 Am. & Eng. Enoy. Law,. 439. These definitions of a confession imply an admission of every essential element necessary to establish the crime wherewith the defendant is charged. Unless the statement of the defendant is broad enough to comprehend every essential element necessary to make out the case against him, it can not be said to be an admission of guilt. There is a difference between an incriminating statement and a confession of guilt. In the former only one or more facts entering into the criminal act is admitted, while in the latter the entire criminal act is confessed There are a number of cases in our own reports which clearly draw this distinction. Thus, it is said by Chief Justice Bleckley in Fletcher's case: “ There is a very wide distinction between admitting the main fact and admitting some minor or subordinate fact or series of facts which could be true whether the main fact existed or not.” Fletcher v. State, 90 Ga. 468. To the same effect is Dumas v. State, 63 Ga. 600, and Covington v. State, 79 Ga. 687. :

, It would be a dangerous practice for judges to charge jurors unskilled in weighing evidence that an admission of an act, with a qualification that the act was justifiable, amounted to a confession of guilt, although proper instructions might be.given as to the effect of such admission. To say to the jury that the defendant has confessed to a crime, when the language relied upon was a protestation of innocence, could have no other but the most harmful effect. A charge upon confessions, where there is no evidence upon which to support such a charge, has been repeatedly held by this court to be error. Suddeth v. State, 112 Ga. 407; Dumas v. State, 63 Ga. 600.

Inasmuch as this defendant will be tri'qd again, we forbear to discuss the effect of the evidence, and reverse the judgment denying a new trial, on the ground that the court erred in charging the jury upon the subject of confessions.

Judgment reversed.

All the Justices concur,, except Lamar and Candler, JJ., who dissent.