
    Ward v. The State.
   Fish, J.

1. A conviction for murder can not stand, when the evidence not

only fails to show affirmatively that the accused on trial committed or participated in the perpetration of the homicide, but leaves it uncertain by whom the killing was actually done.

Argued June 21, 22,

Decided July 7, 1897.

Indictment for murder. Before Judge Hutchins. Gwinnett superior court. February term, 1897.

In the first count the indictment charged Zeke Ward, Jim Ward, and Lee Watkins with the murder of J. C. Cook, by stabbing him in the back. In the second count Jim Ward and Lee Watkins were charged as principals in the second degree, by aiding and abetting Zeke Ward in the murder. Zeke Ward was tried and found guilty, with recommendation to life imprisonment, and his motion for a new trial was overruled. The testimony shows that Cook and Dally, upon an afternoon in December, went to Zeke Ward’s house and there found Zeke and Jim Ward and Lee Watkins. A quart of whisky was sold to-the visitors, who remained some time. Zeke played his fiddle for a while, and then brought out cards and proposed to play for drinks. After playing for a while, a dispute arose between Dally and Zeke about the game, and Dally got up to go home. At this juncture Dally was knocked down and stunned, and when he arose Zeke was coming at him with his hand held down by his leg and slightly behind. Dally then seized a hoe that was lying on the ground, and told Zeke if he came any further he would burst his brains out. Zeke was cursing, but said, “ Let’s drop it,” and Dally then looked and saw Cook on his knees with blood running out of the wound in his back. As-Zeke approached Dally he said, “We will do you up,” or something of that sort. Jim Ward, Lee Watkins, and Zeke’s mother and wife were standing close by Cook. The mother was nearest to him, and had a knife,in her hand. Cook made no statement after he was cut. He was carried into the house, and Zeke said it was a slight wound and that when Cook got sober he thought it would be all right. He died on the next day as. the result of the wound. Dally testified that he was not mad but was arguing over the game; the main dispute was between him and Zeke. He did not remember what Zeke or the others said. When he saw Cook after he was cut, Cook was six or seven steps from where they had been playing. Dally asked Watkins, in the presence of Zeke, what made Zeke hit him. The reply was that Dally was talking blackguard and cursing in the presence of his family. On the next morning Zeke went to the house of William Watkins who had been present at Ward’s house when Cook was killed, and informed Watkins that Cook was dead, and said that he wanted Watkins to tell that he saw Cook up in the old sage-field, that he (Zeke) would post them all to tell the same, and that if Watkins did not tell that, the cutting would be poked off on his son Lee. The material grounds of the motion for new trial are sufficiently apparent from the headnotes.

2. There being no evidence putting the accused on explanation of his conduct with reference to his alleged connection with the homicide, and no evidence as to any conspiracy between himself and others with whom he was jointly indicted, it was error to give in charge to the jury the law bearing upon such matters.

Judgment reversed.

All the. Justices concurring.

A. C. Stone, George & George and E. G. Armistead, for plaintiff in error. J. M. Terrell, attorney-general, and G. H. Brand, solicitor-general, contra.  