Brock v. Thestate Of Ga.

• Decision Date: 31 March 1857
• Docket Number: No. 21.,21.
• Citation: 22 Ga. 98
• Parties: Thomas W. Brock, plaintiff in error. v. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

22 Ga. 98

Thomas W. Brock, plaintiff in error. v. The State of Georgia, defendant in error.

No. 21.

Supreme Court of the State of Georgia

MARCH TERM, 1857.

Indictment for Gaining, from Forsyth Superior Court. Tried before Judge Brown, at February Term, 1857.

The defendant in the Court below, Thomas W. 'Brock, was specially presented by the Grand Jury of Forsyth county, at August Term, 1850, for the offence of playing and betting at cards. It was agreed between defendant's counsel and the Solicitor General, that the former would waive the making out and filing the indictment upon the special presentment, if the latter would consider the indictment found and filed as of that day, the 19th February, 1857, and allow the defendant the benefit of the plea of the statute of limitations; and the following entry was endorsed on the presentment: " We waive an arraignment, and consent to consider the bill of indictment as filed of to-day, 19th February Term, 1857, (signed) by G, W. Lester and W. J. Peeples, defendant's attorney."

Before going into the trial, defendant's counsel demurred to the indictment and moved the Court to take a verdict of not guilty, upon the ground that the indictment showed upon its face that the same was not found and filed within two years after the commission of the offence charged therein, and that the same was barred by the statute of limitations. The Court overruled the demurrer and motion, and defendant excepted.

After the testimony was closed, defendant\'s counsel requested the Court to charge the jury that if the indictment upon its face showed, and they believed from the evidence, that the offence was committed two years before the finding of the indictment, that the same was barred by the statute of limitations, and that the defendant ought to be acquitted: which charge the Court refused to give, but charged the jury, that if the special presentment was found within two years from the commission of the offense, that the defendant was not protected by the statute of limitations, although the indictment was not made out until after the lapse of two years from the time of the commission of the offence, and if they were satisfied from the evidence that the defendant had committed the offense at any time within two years prior to the finding of the special presentment, that the statute was no bar, and they should find defendant guilty. To which charge and refusal to charge, defendant excepted. The jury found the defendant guilty; and the Court sentenced him to pay a fine of $100 and cost of suit; and on failure to pay the same, to three months imprisonment, unless said fine and costs were sooner paid. To which judgment and sentence, defendant excepted.

And thereupon counsel for defendant tendered their bill of exceptions, and assign as error the rulings, judgment, charges, and refusals to charge above excepted to.

Irwin & Lester; and W. J. Peeples, for plaintiff in error.

Sol. General, for defendant in error.

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

The...