Brantley v. State
| Decision Date | 12 May 1909 |
| Citation | 64 S.E. 676,132 Ga. 573 |
| Parties | BRANTLEY v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
When a person has been indicted for murder and convicted of voluntary manslaughter, if he voluntarily seeks and obtains a new trial, he is subject to another trial generally for the offense charged in the indictment, and upon such trial he cannot successfully interpose a plea of former acquittal of the crime of murder or former jeopardy in regard thereto.
(a) This ruling is in accord with article 1, § 1, par. 8, of the Constitution of the state (Civ. Code 1895, § 5705), which provides that "no person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial."
(b) The fifth amendment of the Constitution of the United States including the statement, "nor shall any person be subjected for the same offense to be twice put in jeopardy of life or limb, *** nor be deprived of life, liberty, or property, without due process of law," was a limitation upon the power of the federal government, and not upon the individual states.
(c) If one has been indicted for murder and convicted of manslaughter, and under a provision of the state Constitution, to the effect that, if a new trial is granted to a convicted person on his own motion, it shall be another trial generally for the offense charged in the indictment moves for a new trial and obtains it, thus voluntarily causing the verdict to be set aside, the clause of the fourteenth amendment of the Constitution of the United States, prohibiting any state from depriving a person of life, liberty, or property without due process of law or denying to any person the equal protection of the laws, does not prevent him from being again tried for murder.
[Ed Note.-For other cases, see Criminal Law, Cent. Dig. §§ 285 394; Dec. Dig. §§ 162, 193 1/2 ;* Constitutional Law, Cent. Dig. § 751; Dec. Dig. §§ 250, 260. [*]
For other definitions, see Words and Phrases, vol. 5, pp. 4788-4790.]
Error from Superior Court, Washington County; B. T. Rawlings, Judge.
Solomon Brantley was indicted for murder, and, from a judgment sustaining a demurrer to a plea of former jeopardy, he brings error. Affirmed.
John R. Cooper, for plaintiff in error.
Alfred Herrington, Sol. Gen., Hines & Jordan, and John C. Hart, Atty. Gen., for the State.
Solomon Brantley was indicted in a single count for murder, and on the trial was convicted of voluntary manslaughter. He moved for a new trial, which was refused, and he carried his case to the Court of Appeals by writ of error, and there obtained a reversal. See 5 Ga.App. 457, 63 S.E. 519. When the case again came on for trial in the superior court, he filed a plea of former acquittal and former jeopardy, contending that the verdict finding him guilty of voluntary manslaughter had the legal effect of finding him not guilty of murder, and therefore he could not be again put on trial for murder, but only for manslaughter. The presiding judge sustained a demurrer to the plea. This is the only ruling of which complaint is now made.
In some states the Constitution or a statute declares that the granting of a new trial to one convicted of a crime places him in the same position as if no trial had been had, or contains provisions having that effect. In the absence of such constitutional or statutory provision, where one who has been indicted for murder and convicted of manslaughter moves for and obtains a new trial, the authorities are not in harmony as to whether he can be again placed on trial for murder or only for the lesser offense under the general prohibition contained in state Constitutions against putting a person twice in jeopardy for the same offense. The greater number of authorities take the view that a verdict of manslaughter involves an acquittal of murder, and that a new trial granted on motion of the accused after conviction of the lesser offense is not to be considered as a new trial for the greater offense of which he was acquitted, but must be confined to a retrial of the offense of which he was convicted, as the accused should not be deemed to have waived his right in so far as he was acquitted. The contrary view, which is held by other authorities, with the reasons therefor, may thus be stated: The defendant was found guilty of the lesser offense of manslaughter, included in the charge of murder. Had he permitted the verdict to stand, he could have claimed whatever legal results flowed from it, including the implication that, as he was found guilty of manslaughter, he was not guilty of the higher offense of murder, and that the affirmative finding that he was guilty of the lesser involved in it the exclusion of the greater. But the accused cannot both voluntarily set aside the verdict and also hold to it. A verdict cannot at the same time be of force and not of force. The verdict of guilty is single. He cannot divide it into that which pleases him and that which does not. The positive fact is the verdict of guilty of one offense. The negative implication from that finding is not guilty of the other offense. It is not easy to see how the positive finding which furnishes the sole basis for the negative implication can be destroyed and set aside by the voluntary action of the accused, and yet leave the implication to stand alone without a basis. To sustain a plea of former acquittal, there must be a subsisting record of an acquittal. If the verdict of guilty of the lesser offense operates as a record of acquittal of the greater, when it is set aside at the instance of the accused, it is certainly no longer a subsisting record of conviction. Can it be said to stand as a subsisting record of acquittal? When, on motion of the accused, the verdict is set aside, no verdict is left. When he asks a new trial and it is granted, it is a complete new trial, not a partial one. The accused is tried on the indictment, not on it as limited by the results of a verdict which he himself has voluntarily caused to be set aside and rendered ineffective. This view was taken in the early case of Bailey v. State, 26 Ga. 579. That decision has never been overruled, although Simmons, C.J., in view of other authorities, said that it involved a question of pleadings, and indicated some doubt as to what would be the ruling were it not for the express provision included in our present Constitution on the subject. Waller v. State, 104 Ga. 505, 30 S.E. 835. In Small v. State, 63 Ga. 386, the grant of a new trial was not under consideration, but the judgment on a verdict of guilty was arrested solely on the ground that the judge who presided at the trial was unauthorized by law to hold the court; and it was held that the prisoner could be again tried on the same indictment, whether the arrest of judgment or the setting aside of the verdict was erroneous or not, as he was concluded by a judgment rendered at his own instance, to which the state could not except.
If the question be argued from the standpoint of former jeopardy, rather than that of former acquittal, and the two be not the same within the meaning of the Constitution, as to the thing inhibited, the result must be the same. A court can grant a new trial to a person convicted of crime and retry him, or it cannot. On the first trial the accused has been placed in jeopardy as to the offense of which he was actually convicted quite as much as in respect to the offense of murder. If, under the Constitution, he could never be put in jeopardy again for any offense involved in the former trial, and could not waive such guaranty, and if he moved for and obtained a new trial, he could never be tried again at all. The grant of a new trial would be equivalent to a discharge. It is generally conceded that he could waive the constitutional protection against putting him twice in jeopardy by asking for a new trial and obtaining it at least as to the offense for which he was convicted. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300. If so, then whether the waiver merely has the effect of allowing a new trial as to the lesser offense, or on the indictment as if there had been no previous trial, is a matter of degree and of construction of the extent of the waiver which the law declares the accused makes in asking for a new trial.
In those states where statutes have been passed declaring that if on motion of the accused a new trial is granted, it shall be a complete new trial, we have found no instance in which such a statute has not been upheld. Enactments of that character are, in substance, merely legislative declarations or provisions that, when the accused moves for and obtains a new trial, he waives any right to set up former jeopardy to prevent a complete new trial, or estops himself from so doing. If the declaration that the accused cannot be put on trial for murder after he has caused a conviction of manslaughter to be set aside and a new trial to be granted to him is based on constitutional grounds, such legislative acts could not change the result. If the position be not based upon any strict constitutional inhibition against retrying the accused for murder after the...
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