
    STREET v. THE STATE.
    No. 10367.
    October 11, 1934.
    
      
      Fdwin J. Feiler and Charles Debele, for plaintiff in error.
    
      M. J. Yeomans, attorney-general, Samuel A. Conn, solicitor-general, B. D. Murphy, J. T. Goree, and Andrew J. Ryan Jr., contra.
   Hutcheson, J.

Mose Street was indicted for murder, and was found guilty. A motion for new trial was overruled, and tbe defendant excepted.

An accomplice is one who is present at the commission of the crime, aiding and abetting the perpetrator, or who could be convicted of such crime as an accessory before the fact. Kearce v. State, 178 Ga. 220 (2) (172 S. E. 643). In the instant case there is nothing in the evidence to show that either of the witnesses who were present at the commission of the crime actually participated therein, or was guilty as an accessory. Baker v. State, 121 Ga. 189 (2) (48 S. E. 967).

One of the witnesses for the State was jointly indicted with the defendant. This witness and two other witnesses were present at the time of the commission of the crime, but there was no evidence to show that they actually participated in the crime. Therefore an instruction on the law relating to the testimony of accomplices would have been improper. Walker v. State, 118 Ga. 757 (45 S. E. 608); Davis v. State, 122 Ga. 564 (50 S. E. 376).

Though there was some conflict in the testimony, the jury exercised its prerogative as to what they would believe to be the truth of the case. The trial judge, who was in the atmosphere of the ease, was satisfied; and the judgment overruling the motion for new trial will not be interfered with.

Judgment affirmed.

All the Justices concur.  