Bell v. State
| Decision Date | 28 February 1898 |
| Citation | 30 S.E. 294,103 Ga. 397 |
| Parties | BELL v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Inasmuch as the act establishing the criminal court of Atlanta does not authorize that court to discontinue a trial and commit or bind over the accused to the next superior court, if, after hearing evidence, it shall appear that the offense is beyond the jurisdiction of such criminal court neither the law embraced in section 761 of the Penal Code nor the decision rendered by this court in Cunningham v. State, 5 S.E. 251, 80 Ga. 4, is in such case applicable. When, therefore, such a trial is once begun, the accused is in legal jeopardy, and may avail himself of this defense in a subsequent prosecution for the same act.
2. Where a person has been put in legal jeopardy of a conviction of an offense which is a necessary element in, and constitutes an essential part of, another offense, such jeopardy is a bar to a subsequent prosecution for the latter offense, if founded upon the same act.
3. Accordingly, where a person was put upon his final trial in the criminal court above referred to for an alleged assault and battery upon a woman, and, after the evidence had been closed, the court, without his consent, discharged the jury, and bound the accused over for the offense of assault with intent to commit a rape, the prosecution upon this latter charge could not, as against a proper plea of former jeopardy, be sustained.
4. The court in the present case erred in holding that the plea of former jeopardy did not allege a complete defense against the indictment.
Error from superior court, Fulton county; John S. Candler, Judge.
Oscar Bell was convicted of assault with intent to commit rape, and he brings error. Reversed.
J.K. Hines and S.C. Crane, for plaintiff in error.
C.D. Hill, Sol. Gen., for the State.
1. Was the plea of former jeopardy, under the facts alleged therein, and admitted by the state, good in bar of the prosecution under the indictment for assault with intent to commit a rape? The facts set forth in the plea show that the prosecution in the criminal court of Atlanta put the accused in jeopardy of a conviction of assault and battery, and in jeopardy of a conviction of assault. This is not disputed by the state. The state contends that, while this is true, the accused was not in jeopardy so far as the crime of assault with intent to commit a rape is concerned, and that the jeopardy in which he was placed by the proceedings had in the city criminal court was no bar to his subsequent prosecution for the greater offense for which he was tried in the superior court. In support of this contention the state cites the decision in Cunningham v. State, 80 Ga. 4, 5 S.E. 251. That decision is not applicable in this case. An accusation was preferred against Cunningham in the county court of Decatur for the offense of assault. He waived indictment by the grand jury, and demanded a trial by a jury in the county court. During the progress of the trial the judge of that court, after hearing the evidence, concluded that the evidence made a case of assault with intent to murder, or of shooting at another, and stopped the trial, over the protest of counsel for the defendant, and bound the defendant over to the next term of the superior court. Cunningham was subsequently indicted and tried in the superior court for assault with intent to murder. When arraigned in the superior court, he pleaded former jeopardy arising out of the trial in the county court. The judge presiding at the trial in the superior court held this plea to be invalid, and this court sustained his ruling; holding that when Cunningham waived indictment, and demanded a jury trial in the county court, it amounted to an agreement on his part to be tried under the provisions of the act regulating trials in that court, "including the right of the judge of that court, if at any time during the progress of the trial he should be of opinion that the evidence produced before him made the offense a felony, instead of a misdemeanor, to stop the trial at once, and commit the defendant to jail, or require him to give bond for his appearance at the next term of the superior court." This right of the judge of the county court to discontinue the trial, and exercise the powers of a committing court, is found in the provisions of the statute embraced in section 761 of the Penal Code. The provisions of this section are not applicable to the criminal court of Atlanta. When an accusation is preferred against a party in the criminal court of Atlanta, and he waives indictment by the grand jury, and demands a trial by a jury in that court, he impliedly agrees to be tried for the offense named in the accusation, under the provisions of the law regulating trials in that court. He does not agree to be tried under the provisions of the law regulating trials in the county courts. The law regulating trials in that court is found in the act establishing the criminal court of Atlanta. Acts 1890-91, p. 935. There is nothing in that act which authorizes the judge of that court to discontinue a trial, and bind over the accused to the next superior court, if, after hearing the evidence, he should be of opinion that the defendant is guilty of an offense which is beyond the jurisdiction of such criminal court. Therefore, when a person against whom an accusation is preferred in that court waives indictment, and demands a jury trial therein, he does not consent for the judge to stop the trial, dismiss the jury, and bind him over to the superior court, if, in the opinion of the judge, the evidence makes out a case of felony. By his waiver and demand he does not consent for the judge of that court to exercise in his case a power which the law has not conferred upon him. It was said by the court in Cunningham's Case, supra, that the "defendant made the waiver above alluded to with the knowledge and understanding that the law was that if the county judge should determine from the evidence that it was a felony, and not a misdemeanor, he would have the right to stop the trial, and bind the defendant over for a felony." In this case it may be said that the defendant made the waiver with the knowledge and understanding that if the judge of the criminal court of Atlanta should determine that the offense was a felony, and not a misdemeanor, he would have no right to stop the trial, and bind him over for the greater offense. Without this knowledge and understanding he might not have made the waiver. When, therefore, the accused was put upon trial in the criminal court of Atlanta upon an accusation charging him with assault and battery, and a jury was impaneled and sworn to try the case, he was in legal jeopardy, and could avail himself of this defense in a subsequent trial for assault with intent to commit a rape, founded upon the same act.
2, 3. In the case of Copenhaven v. State, 14 Ga. 22, this court laid down the broad rule that "the plea of autrefois acquit or convict is sufficient whenever the proof shows the second case to be the same...
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