176 S.E. 620 (Ga. 1934), 9871, Herndon v. State

Docket Nº:9871.
Citation:176 S.E. 620, 179 Ga. 597
Opinion Judge:BELL, Justice. RUSSELL, Chief Justice.
Party Name:HERNDON v. STATE.
Attorney:Ewing C. Baskette, of Nashville, Tenn., and John H. Geer and Benjamin J. Davis, Jr., both of Atlanta, for plaintiff in error. John A. Boykin, Sol. Gen., J. Walter Le Craw, and John H. Hudson, all of Atlanta, and M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for...
Judge Panel:All the Justices concur, except RUSSELL, C.J., not participating.
Case Date:September 28, 1934
Court:Supreme Court of Georgia
 
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Page 620

176 S.E. 620 (Ga. 1934)

179 Ga. 597

HERNDON

v.

STATE.

No. 9871.

Supreme Court of Georgia

September 28, 1934

Syllabus by the Court.

1. The original decision as reported in 178 Ga. 832, 174 S.E. 597, explained.

2. This court will not pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge.

3. There is no merit in the motion for rehearing.

Error from Superior Court, Fulton County; L. B. Wyatt, Judge.

On motion for rehearing.

Motion denied.

For former opinion, see 178 Ga. 832, 174 S.E. 597.

Ewing C. Baskette, of Nashville, Tenn., and John H. Geer and Benjamin J. Davis, Jr., both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter Le Craw, and John H. Hudson, all of Atlanta, and M. J. Yeomans, Atty. Gen., and B. D. Murphy and Jno. T. Goree, Asst. Attys. Gen., for the State.

BELL, Justice.

Angelo Herndon was convicted of the offense of an attempt to incite an insurrection as defined in Penal Code, § 56, and was given a sentence in accordance with section 57. His motion for a new trial was overruled and the judgment was affirmed by this court in a decision reported in 178 Ga. 832, 174 S.E. 597.

No attack upon the constitutionality of the statute under which he was convicted was made in the court below, and none was attempted in this court prior to the decision referred to and the judgment based thereon. But, during the same term in which the judgment of affirmance was rendered and before the remittitur was forwarded to the clerk of the trial court, the defendant (plaintiff in error) filed a motion for a rehearing, suggesting some constitutional considerations, and being in its material parts as follows:

"Upon the trial of this case in the court below, the trial judge charged the jury (R. 195): '* * * That advocacy, however reprehensible morally, is not sufficient to convict the defendant where there is no evidence to indicate that the advocacy would be acted upon immediately. In order to convict the defendant, gentlemen, it must appear clearly by the evidence that immediate serious violence against the State of Georgia was to be expected or advocated.' And also (R. 195) 'that an attempt to commit an act which is, in fact, a crime, is not complete unless the alleged crime is dangerously near completion.'

Thus, as the trial judge construed the statute in question, it does not make criminal every attempt, by persuasion, or otherwise, to induce others to join in combined resistance to the authority of the State, but only such attempts as are intended to bring about

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such resistance immediately or as are likely under all the circumstances to bring about such resistance immediately.

The jury having returned a verdict of guilty, the plaintiff in error moved for a new trial on the ground that the verdict was contrary to law and the evidence (R. 16), and, his motion for a new trial having been denied, he duly excepted (R. 2).

In construing the statute for the purpose of determining whether the evidence was sufficient to support the verdict, this court said in its opinion (178 Ga. 832, 174 S.E. 609): 'It is immaterial whether the authority of the state was in danger of being subverted or that an insurrection actually occurred or was impending.' And this Court also said (178 Ga. 832, 174 S.E. 610): "Force must have been contemplated, but, as said above, the statute does not include either its occurrence or its imminence as an ingredient of the particular offense charged. Nor would it be necessary to guilt that the alleged offender should have intended that an insurrection should follow instantly or at any given time, but it would be sufficient that he intended it to happen at any time, as a result of his influence, by those whom he sought to incite. It was the intention of this law to arrest at its incipiency any effort to overthrow the state government, where it takes the form of an actual attempt to incite others to insurrection.'

Thus, as this Court construed the statute, every attempt to persuade others to join in combined resistance to the authority of the State is criminal, provided only that the person making the attempt intended forcible resistance to occur at some time, however remote, as the result of his persuasion, however unlikely that his attempt would succeed. It is obvious that this Court's construction of the statute is radically different from that of the trial judge. That means that the statute as applied by the trial court was a very different statute from the statute as applied by this Court.

Under the trial judge's construction, the evidence was insufficient to support the verdict of guilty unless it was proved either that the plaintiff in error attempted to persuade others to...

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