Brown v. State

• Decision Date: 27 January 1900
• Citation: 34 S.E. 1031,109 Ga. 570
• Parties: BROWN v. STATE.
• Court: Georgia Supreme Court

34 S.E. 1031

109 Ga. 570

BROWN v. STATE.

Supreme Court of Georgia

January 27, 1900

Syllabus by the Court.

1. An accused person cannot set up former jeopardy upon an accusation which was quashed on a demurrer filed by himself and this is true though the judge, at the time the demurrer was submitted, overruled it, and allowed the case to proceed to the extent of introducing testimony, but afterwards recalled his original ruling, and adjudged that the demurrer was good, and the accusation insufficient in law.

2. It is not essential to the validity of an accusation that a warrant for the arrest of the accused should be issued upon the affidavit on which the accusation is founded, or that such affidavit should minutely describe the offense.

3. The evidence fully warranted the conviction, and there was no error in overruling the certiorari.

Error from superior court, Troup county; S.W. Harris, Judge.

Garfield Brown was convicted of larceny. His petition for certiorari being overruled, he brings error. Affirmed.

E. T Moon, for plaintiff in error.

T. A Atkinson, Sol. Gen., for the State.

COBB J.

Garfield Brown was placed on trial in the county court of Troup county upon an accusation charging him with the offense of larceny from the house, and was convicted. His petition for certiorari, complaining that certain errors were committed by the county judge during the progress of the trial, having been overruled, he excepted.

1. It appears that the accused was first put upon trial upon an affidavit and accusation to which he demurred; that the court at first overruled the demurrer, and ordered the case to proceed to trial; that, after the accused had pleaded not guilty, and the state had introduced one witness, the court came to the conclusion that the demurrer should have been sustained, reversed his former ruling, and quashed the accusation. It does not distinctly appear from the record that the accused objected to this at the time. When he was again placed on trial upon another accusation charging him with the same offense, he entered a plea of former jeopardy, averring that the first accusation should not have been quashed, and that, when arraigned thereon, he was put in jeopardy. The plea was overruled, and this is one of the errors assigned. Although the demurrer filed by the accused was at first overruled by the judge, the subsequent ruling sustaining the same was the one that the accused himself invoked, and it does not distinctly appear that he objected at the time to the judge sustaining the demurrer at that stage of the case and ordering the accusation to be quashed. It therefore does not lie in his month on a subsequent trial to say that the accusation was good, and that for that reason he was in jeopardy on the former trial. Whether the first accusation was good or bad is immaterial. The accused obtained a ruling that it was bad, accepted the benefit of that ruling, and he will not be allowed to bring in question the propriety of a ruling which he himself invoked. We are aware that a contrary view was taken by the majority of the court in the case of Black v. State, 36 Ga. 447, but the dissenting opinion of Walker, J., which is directly in line with the ruling we make, is, we think, the sounder view of the law. The decision in Black's Case has never been followed. On the contrary, the position of Judge Walker has been recognized by this court as the sounder and better one, though no reference was made in terms to his opinion. Small v. State, 63 Ga. 386. That this is in accord with the adjudicated cases there can be no doubt. See Com. v. Gould, 12 Gray, 171; Von Rueden v. State (Wis.) 71 N.W. 1048; People v. Casborus, 13 Johns. 351; Gerard v. People, 3 Scam. 362; 1 Bish. New Cr. Law, §§ 998 (5), 1000, and cases cited.

2. Another assignment of error is that the court erred in overruling the demurrer to the second affidavit and accusation....