State v. . Chastain

Avery, J. — after stating the facts: The defendant J. P. Chastain excepted to so much of the charge of the Court as related exclusively to the question of his guilt, and relies solely upon the ground of error in misdirecting the jury. As to him, the case was submitted in two aspects, both of which naturally arise out of different views of the evidence. First, the jury were told that if the testimony should satisfy them beyond a reasonable doubt, that Anderson was fired upon by a person, or persons, lying concealed in ambush, hid in the bushes and covered by darkness, that such shooting was with intent to kill, and that if J. P. Chastain was present, taking part in such shooting, or present aiding and abetting, he was guilty. It was not contended by counsel that the Judge did not state the law correctly in the first proposition. It was insisted that the other view submitted was erroneous, because it was not applicable to the testimony, and for the reason that it contained an intimation of opinion on the facts. His Honor’s additional instruction was, that if he (J. P. Chastain) was one hundred and fifty yards in rear, and in sight of, the shooting, armed with his rifle, and he-was there with knowledge that his brother was to assault. Anderson, by lying in wait, with intent to kill, and his purpose was to afford aid and assistance to his brother, if hard-pressed, and he was acting as a second line of battle, or “ backer,” to his brother (the testimony being that his rifle *904 would carry to the spot of the fighting), he would be aiding and abetting, and guilty as a principal. It appears, from the testimony offered on both sides, that J. P. Chastain went to the house of his brother two hours before daylight, and told him that Anderson and others were tearing down a fence, and that E. H. Chastain immediately went out with his gun, closely followed by his brother (J. P. Chastain), who was also armed, and, according to all the evidence, it seems that the former opened fire on Anderson and his party under the cover of the bushes and darkness. The testimony for the State tended to prove that the latter advanced with his brother, and joined actively in the attack; but he testified, in his own behalf, that he stopped one hundred and fifty yards short of the point from which his brother (E. H. Chastain) was firing, and did not shoot at all, though he remained in sight of his brother during the whole encounter, until the balls fell so thickly around him as' to cause his retreat to the house. It appears as a fact, that his gun would carry a ball from the point where he was stationed to the adversary party. We cannot examine the record of another appeal, as suggested by counsel, for conflicting testimony as to the character of the weapon. ■Our attention must be confined to the facts appearing in this record. It seems to us that there was abundant testimony to make it the imperative duty of the Judge to instruct the jury that the defendant might be guilty as principal, because of aid and encouragement given by him to the •other defendant, even if they believed that he did not actively participate in the attack made by his brother, and the instruction is couched in such language as to give them a clear comprehension of the law. There is no intimation, in the charge of his Honor, that any disputed fact was or was not fully proven by the testimony, and it is not, therefore, amenable to objection as an expression of opinion on the facts. The Code, §413. *905 There was no exception, as expressly appears from the statement of the case on appeal, on behalf of E. H. Chas-tain, either to the admission of testimony or the charge of the Court. The statement is that “the Court charged, in addition to matters not excepted to,” as already stated, and after embodying in the statement that portion of the charge objected to for J. P. Chastain, the Judge states that the “rest of the charge is not set out,” for the obvious reason that no exception is taken to it and no error assigned. The case on appeal appears to have been stated for both defendants. E.. H. Chastain first withdrew and then renewed and perfected his appeal. He had a right to renew and reinstate it, within the time prescribed by law, if he had no other object to attain but to delay the execution of his sentence. As it appears not only that he did not actually assign error, but that he did not object to any ruling of the Court as a ground of motion for a new trial wre must assume that there was no error, and must refuse the motion for a writ of certiorari. We therefore conclude that judgment should be affirmed as to both defendants. Affirmed.