Burnam v. State

• Citation: 58 S.E. 683,2 Ga.App. 395
• Decision Date: 25 July 1907
• Docket Number: 539.
• Parties: BURNAM v. STATE.
• Court: United States Court of Appeals (Georgia)

58 S.E. 683

2 Ga.App. 395

BURNAM v. STATE.

No. 539.

Court of Appeals of Georgia

July 25, 1907

Syllabus by the Court.

No question of constitutional construction is involved, such as to require certification of the case to the Supreme Court.

The court erred in striking the plea in bar on demurrer.

[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 408.]

Error from Superior Court, Dodge County; J. H. Martin, Judge.

Le Roy Burnam was indicted for an assault with intent to murder and, from the judgment for the state striking his plea of former jeopardy and acquittal, he brings error. Reversed.

De Lacy & Bishop and John R. Cooper, for plaintiff in error.

E. D Graham, Sol. Gen., for the State.

POWELL J.

The defendant, being arraigned upon an indictment charging him with an assault with intent to murder Mrs. Ray on January 31 1905, filed a plea of former jeopardy and former acquittal. He alleged that at a preceding term of the court he had been arraigned, tried, and acquitted on an indictment charging him with the murder of M. P. Livingston, "alleged to have been committed at the same time and place as in the present indictment, and an acquittal on the same evidence was had, and the same issue made as exist and would necessarily be made in this case, and which is the very same offense which he is now charged with, and called upon to be tried in this very court." It was further alleged that the two transactions were identical, and that the former trial was in a court of competent jurisdiction. A copy of the record in the former trial was attached. The Solicitor General filed a demurrer, and the plea was stricken.

1. We fully discussed in the case of Fews v. State, 1 Ga.App. 122, 58 S.E. 64, the question as to whether such a plea presents any necessity for constitutional construction. We do not deem it necessary to say more now than is there said.

2. Of course, we do not know what is the real truth as to the allegations of the plea. If the facts of the matter are such as they are stated to be by the Solicitor General in his argument in this court, the acquittal on the first indictment was probably not a bar to the prosecution of the second case. However, by filing demurrers instead of traverse, the Solicitor General gave to the allegations of the plea a constructive verity, which in this court is absolute. That the allegations of the plea are sufficient against demurrer s...