Bailey v. The State Of Ga.

• Decision Date: 30 November 1858
• Citation: 26 Ga. 579
• Parties: Pierce Bailey, plaintiff in error. v. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

26 Ga. 579

Pierce Bailey, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1858.

Murder, in Taliaferro Superior Court. Decision by Judge Thomas, at February Term, 1858.

At August Term, 1852, Pierce Bailey was indicted for the murder of his slave, and the grand jury returned a "true bill." At August Term, 1856, he was put upon his trial, and found guilty of voluntary manslaughter. Bailey carried the case to the Supreme Court, and at the Athens Term, Nov., 1856, that Court pronounced the following judgment:

This case came before the Court upon a transcript of the record from the Superior Court of Taliaferro county, and after argument had, it is considered and adjudged that a new trial be granted, it being the opinion of this Court that the Court below erred in not requiring the questions mentioned in the bill of exceptions to be put to the jurors as requested by the accused.

At the February Term, 1858, the defendant Bailey was again put upon his trial, and withdrew his plea of the general issue, and pleaded specially:

1st. That the former finding in this case by the jury of "voluntary manslaughter, " was an acquittal of the defendant of the crime of murder, and he can not again be put upon trial for said offence.

2d. That having been once put in jeopardy of life, upon his former arraignment and trial for the crime of murder, he can not again be put upon trial upon the same indictment for the same crime.

The Solicitor-General demurred to the foregoing pleas.

The Court sustained the demurrer, overruled the defendant\'s pleas, and assigned that they constituted no sufficient bar to putting defendant again upon his trial for murder as charged in the indictment.

To which decision counsel for defendant excepted.

F. H. Cone, for plaintiff in error.

T. M. Daniel, Sol. Gen., contra.

By the Court.—McDonald, J., delivering the opinion.

The verdict of the jury finding the plaintiff in error guilty of voluntary manslaughter was set aside and a new trial ordered at his instance. If the verdict had stood, it would have been an effectual bar, unquestionably, to another prosecution for murder, for the same homicide. The indictment charged the offence of murder only; but it was competent for the jury on the trial, not finding malice, to convict the accused of manslaughter. Such a conviction, without more, is an implied acquittal of the higher charge of murder. The plaintiff in error, when he was convicted of manslaughter, was acquitted of murder, but he moved to set aside that verdict; and this Court set it aside and ordered a new trial. When he was called for trial, after the reversal of the judgment, he withdrew his plea of not guilty, and pleaded in bar his former acquittal; and, that, having been once put in jeopardy of life for the same offence, he can not now be put on his trial for the same crime. The latter plea was not insisted on in this Court.

A plea of former acquittal "is of a mixed nature, and consists partly of matter of record and partly of matter of fact. The matter of record is the former indictment and acquittal, the matter of fact is the averment of the identity of the offence, and of the person as formerly indicted. As to the matter of record, it is now settled to be absolutelyrequisite to set forth in the plea, the record of the former acquittal, " &c. I Chit. Crim. Law, 459. The pleas in this case, conform to this simple rule of pleading, but go one step further and show, that the verdict relied on as an acquittal of the plaintiff in error, was set aside, and that a new trial was ordered. The Solicitor-General demurred to the pleas, and the Court below sustained the demurrer. If the defendant rely upon the record, as he must, for his acquittal, he must plead and prove a subsisting record of acquittal. It is no record if set aside. But it is argued, that the acquittal of the offence of murder, remains,...