Black v. The State Of Ga.

• Decision Date: 30 June 1867
• Citation: 36 Ga. 447
• Parties: WILEY BLACK, negro, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

36 Ga. 447

WILEY BLACK, negro, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Milledgeville, June Term, 1867.)

Attempt to commit Larceny. Autre fois acquit. Decided by Judge Vason. Sumter Superior Court. April Term, 1867.

Wiley Black was charged with a misdemeanor, as follows: "for that the said freedman, Wiley Black, on the ninth dayof April, in the year eighteen hundred and sixty-seven, in the county aforesaid, did then and there unlawfully and with force and arms, for that the said Wiley Black, freedman, did, in the said county, on the day aforesaid, make an attempt to commit the offence of simple larceny, but did fail in the perpetration of such offence, for that the said Wiley did attempt wrongfully and fraudulently, to take and carry away one thousand dollars, the property of Michael H. Stephens, the said one thousand dollars being the lawful currency of the United States, with the intent to steal the same, contrary to the laws of said State, the good order, peace and dignity thereof."

The parties announced ready for trial, the jury was empannelled and sworn, and the Solicitor General read to the jury the said bill of indictment, and was about to introduce the evidence for the State.

*Defendant's attorney objected to the introduction of the evidence "on the ground that the charge as laid in the bill of indictment, was too defective to admit of proof sufficient to convict."

This objection was sustained by the Court, and the jury then and there returned, on said bill of indictment, a verdict of not guilty.

By order of the Court said Black was held in custody, a new bill of indictment was found against him for the same offence, and upon this new bill he was put on trial.

Defendant plead autre fois acquit and relied upon the first bill of indictment and the verdict thereon to sustain the plea. The Solicitor General demurred to the plea. The demurrer was sustained by the Court.

The defendant was convicted on his second bill of indictment and fined fifty dollars and costs.

The error assigned for review is, sustaining the said demurrer, and ordering the defendant to be tried on this second bill of indictment.

Samuel C. Elam, Cobb & Jackson, for plaintiff in error.

N. A. Smith, Solicitor General, for the State.

WALKER, J. convict." The Court sustained the objection, and permitted the jury to render a verdict of not guilty. By order of the Court, Black was held in custody, a new bill for the same offence was found, and the next day defendant was again arraigned andpleaded autre fois acquit. This plea was overruled by the Court, and upon the issue of not guilty, *defendant was convicted, and brings the case up, alleging error in the overruling of his plea.

1. The provision incorporated in our constitution, that no person shall be subject, for the same offence, to be twice put in jeopardy of life or limb, is much older than the constitution. It was deeply imbedded in the common-law. In Wetherel v. Darby, 4, Rep., 40a, decided in the 28th year of Elizabeth, it is held that "a man's life shall not be twice put in jeopardy for one and the same offence." In Vaux's case, Ib., 45a, in 33d Elizabeth, it is said: "The maxim of the common-law is, that the life of a man shall not be twice put in jeopardy for one and the same offence, " and that is the reason and cause why autre fois acquitted, or convicted, of the same offence, is a good plea.

2. This a leading case, and in addition to what is already quoted, decides that "the plea of autre fois acquit is a good plea only when the acquittal is upon an indictment sufficient in law."

3. The rule to determine whether an indictment is sufficient in law is, would the judgment be arrested if the defendant were found guilty under the indictment; if it would, a verdict of not guilty would be no protection, because the indictment would be insufficient in law; otherwise it would be a protection. Or, as expressed by Wharton, Am. Cr. Law, 193: "If the prisoner could have been legally convicted upon any evidence that might have been legally adduced, his acquittal on that indictment may be successfully pleaded to a second indictment; and it is immaterial whether the proper evidence were adduced at the trial of the first indictment or not." Rex v. Sheen, 2 Car. & P. 634: (12 E. C. L. R., 776) People v. Barrett & Ward, 1 J. R., 66-77; 3 Greenl. Ev. Sec. 35; 1 Ch. Cr. L., 454.

By the Code, Sec. 4516, an indictment shall be sufficiently correct, which states the offence in the language of the Code, or so plainly that the nature of the offence charged may be easily understood by the jury. By Sec. 4517, no motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offence charged in the indictment. *Tried by these rules, we think the first indictment preferred in this case, sufficiently technical; provided the case is in a condition that we have the right to express an opinion upon its sufficiency.

In the propositions here laid down we all concur; the difference between us arises as to the application of these principles to the facts of the case.

4. By whom shall the sufficiency of the indictment be determined? My associates say, that when a verdict of not guilty hasbeen rendered in favor of a party, though under a decision of the Court that the indictment upon which it is rendered, was insufficient to sustain a conviction, yet if that decision was wrong, and in fact a conviction could have been maintained, under the indictment, such verdict and judgment, when pleaded, will protect the party against a subsequent conviction for the same offence; that in law, the party really was in jeopardy, though it was erroneously held that he was not; that the question upon the validity of the indictment must be determined by the Court when the record of acquittal is introduced; and the judgment, showing upon what ground the verdict was rendered, cannot be given in to affect it; that though the verdict be rendered without any evidence, upon the motion of the defendant, upon the ground that the indictment is insufficient, yet when he pleads it as an acquittal of the offence, he may insist that he induced the Court to commit an error, and that the indictment was good, and he entitled to be discharged from further prosecution. These I understand...