Burns v. State

Decision Date22 October 1940
Docket Number13318.
Citation11 S.E.2d 350,191 Ga. 60
PartiesBURNS v. STATE.
CourtGeorgia Supreme Court

Syllabus by the Court.

1. The Supreme Court has jurisdiction of the writ of error in this case, because the constitutionality of a statute of this State was drawn in question.

2. The indictment for robbery was not subject to demurrer on the ground that the property alleged to have been taken was not described with sufficient particularity, or for the reason that the indictment valued the articles collectively and did not state the separate value of each.

3. The plea in abatement, based on alleged irregularity in drawing the names of the grand jurors who returned the indictment, should have been filed before pleading to the merits, and not having been so filed was too late. Furthermore, it appeared from the evidence that the defendant was arrested and gave bond before the indictment was returned. In such case he should have made objection to the grand jurors before return of the indictment, and, failing to do so, could not afterwards object by plea in abatement.

4. Where the jury convicted the defendant of the offense of robbery alleged to have been committed in the year 1936, it was their duty under the Code, § 27-2502, to fix the punishment that should be imposed; but their failure so to do did not render the verdict void, since the verdict would nevertheless have supported a sentence by the court for the minimum punishment prescribed by law. Any error in overruling the motion in arrest of judgment was cured by the action of the court in sustaining the defendant's motion for a new trial filed during the same term.

5. The verdict referred to in the preceding note not being void and a new trial having been granted, there was no merit in the plea of former jeopardy, and it was properly dismissed on motion of the solicitor general.

6. On the trial of an indictment for robbery, in which the several articles alleged to have been taken were not valued separately but an aggregate value of all of the articles was stated, there was no error in admitting evidence as to the separate value of each of such articles, there being an implied averment that each of them was of some value.

7. The testimony of a witness who was examined on a former trial of a criminal charge, where opportunity of cross-examination was afforded, is admissible in evidence on a subsequent trial of the same defendant upon the same charge, upon proof that the witness has removed from the State or is otherwise inaccessible.

8. A conspiracy may extend beyond the actual commission of the criminal offense charged. It may expressly or impliedly include such matters as concealing the crime concealing or suppressing evidence, taking means to prevent or defeat prosecution, possession and disposition of the spoils--depending on the nature and extent of the agreement as expressly or impliedly entered into by the alleged conspirators. Under this principle, the court did not err in admitting the evidence referred to in grounds 9 and 10 of the motion for new trial.

9. Even if the testimony referred to in grounds 11 and 12 was objectionable for any reason, neither statement of the witness was cause for a mistrial, in view of the instructions given by the court to the jury in reference thereto, in which instructions the evidence was virtually excluded and the jury were directed to 'disabuse their minds completely of it.'

10. The excerpts from the charge of the court complained of in the motion for new trial were all substantially correct; and if any of them were inapplicable, the defendant was not harmed thereby. The evidence authorized the verdict, and the court did not err in refusing a new trial.

E. W. Maynard, W. O. Cooper, Jr., and W. A. McClellan, all of Macon, and W. R. Bentley, of Atlanta, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, for defendant in error.

BELL Justice.

Pee Wee Burns was convicted of the offense of robbery by force, alleged to have been committed upon the person of Pete Modena in Bibb County, Georgia, on July 17, 1936. His motion for new trial was overruled, and he excepted. Error is assigned also upon exceptions pendente lite taken by the defendant to several antecedent rulings.

1. At the date of the alleged offense, robbery by force was not a capital felony, and the writ of error was not made returnable to the Supreme Court upon any theory relating to the nature of the offense. Code, § 26-2502; Ga.L.1937, p. 490. It is the contention of the plaintiff in error that the case was properly returned to this court, because it involves construction of provisions of the State and Federal constitutions, and because it is a case in which the constitutionality of a statute of this State is drawn in question. We agree to the latter contention, but not to the former. That is to say, we think the case is properly before this court, for the reason that it is one in which the constitutionality of a statute of this State is drawn in question, but not for other reason. Code, § 2-3005 (Const. art. 6, § 2, par. 5). Accordingly, the motion of the solicitor general to transfer the case to the Court of Appeals is denied. This does not mean, however, that the constitutional question must necessarily be decided; for even though such a question may be so raised in the record as to confer jurisdiction upon the Supreme Court, it is well settled that no such question will be determined if there is any other ground in the case upon which the court can properly rest a decision. Georgia Power Co. v. Decatur, 173 Ga. 219(3), 223, 159 S.E. 863. The alleged ground of error which serves to bring the case within the jurisdiction of this court will be found in division 4 of this opinion.

2. The verdict which is directly under review was returned in November, 1939, but the exceptions are such as to require consideration of two previous trials, or at least some facts connected therewith. The indictments were returned during the November term, 1936. The defendant was arraigned and pleaded not guilty in December, 1936, and was tried and found guilty during the same year. A new trial was granted by the judge. The defendant was convicted again in February, 1938. A new trial was again granted by the judge. During the February term, 1938, and before the second trial, the defendant demurred to the indictment. The demurrer was overruled on the ground that it was filed too late, and exceptions pendente lite were taken. When the case was called for the third trial, in 1939, the defendant refiled the same demurrer, at the same time requesting the court to allow him to withdraw his plea of not guilty for the sole purpose of interposing such demurrer. The court refused to allow withdrawal of the plea, and dismissed the demurrer 'on the ground it is res adjudicata.' To these rulings the defendant excepted pendente lite. In the bill of exceptions, error is assigned on these exceptions pendente lite, and upon those relating to the former one 38-calibre Smith & Wesson pearl-handle presented the contentions (1) that the property alleged to have been taken was not described with sufficient particularity, and (2) that the indictment did not state a separate value of each article, but alleged only the total value of all of them. The articles and the valuation were stated in the indictment as follows: 'One lady's diamond ring, one man's diamond ring, one 38-calibre Smith & Wesson pearl-handle pistol, one stick pin with diamond and green emerald, one flashlight, two baby pins on chain, one baby ring, one kodak, two hundred and five cases of assorted whisky, and two hundred and fifty-seven dollars in lawful United States currency denominations unknown to the grand jury, all of the value of $3,659 & 25/100 dollars.'

Even if we should treat the demurrer as having been filed in time, there is no merit in the contention as to insufficiency of description, especially as the offense alleged amounted to a compound larceny. The allegation that the property was taken from the person of a named individual served to particularize the transaction, rendering a more general description permissible than might be the case in an indictment for simple larceny. The indictment here was sufficient so far as related to description of property, whether or not such description would be sufficient in an indictment for simple larceny. Powell v. State, 88 Ga. 32, 13 S.E. 829; Cody v. State, 100 Ga. 105(2), 28 S.E. 106; Humphries v. State, 100 Ga. 260, 28 S.E. 25; Melvin v. State, 120 Ga. 490, 491, 48 S.E. 198; Cannon v. State, 125 Ga. 785, 54 S.E. 692; McDonald v. State, 2 Ga.App. 633(3), 58 S.E. 1067. Nor was the indictment subject to demurrer for the reason that it valued the articles collectively, and did not state the separate value of each. In Bone v. State, 120 Ga. 866(3), 48 S.E. 356, it was held: 'When the larceny of several articles is charged in one bill of indictment, it is the better practice to set out the value of each article, but it is not indispensable to the validity of the indictment that this should be done. The indictment is good if it alleges merely the aggregate value of the articles charged to have been stolen.' In that case the court affirmed a judgment overruling a special demurrer raising substantially the same question as that presented in the instant case. The case of Johnson v. State, 109 Ga. 268, 34 S.E. 573, is not in point. It was there held that an indictment alleging the forging of an order for something other than money was fatally defective for failure to allege that the thing was of some value. However, there was only one thing to be valued, and no value whatever was stated. For similar reason, Davis v. State, 40 Ga. 229 is distinguished from the present case.

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    • United States Supreme Court
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