Conley v. State
| Decision Date | 25 April 1890 |
| Citation | 11 S.E. 659,85 Ga. 348 |
| Parties | CONLEY v. STATE. |
| Court | Georgia Supreme Court |
Error from city court of Atlanta; VAN EPPS, Judge.
D. P Hill and R. J. Jordan, for plaintiff in error.
F. M O'Bryan and Arnold & Arnold, for the State.
1. The first error alleged is that the court, upon demurrer overruled the defendant's plea in bar, which was that he had before been put in jeopardy for the same offense. The following appears from the record: Upon the former trial the accusation did not charge the offense to have been committed in the county of Fulton; and, after the defendant had been put on trial under this accusation, the jury sworn, testimony submitted, and argument of counsel in part made, the court over objection of the defendant, allowed the accusation to be amended so as to charge that the offense was committed in the county of Fulton. The defendant was convicted, and brought the case to this court; and it was decided that the court committed error in allowing the amendment to the accusation to be made, and upon that ground reversed the judgment of the court below. Conley v. State, 10 S.E. 123, (October term, 1889.) The constitution of this state (Code, § 5000) 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." There is no jeopardy if the indictment on the former trial is so defective as to be good cause for arresting the judgment. 1 Bish. Crim. Law, § 1021; Whart. Crim. Pl. & Pr. (8th Ed.) § 507; Cooley, Const. Lim. 327; Jones v. State, 55 Ga. 625; Reynolds v. State, 3 Ga. 53; Morrisette v. State, 77 Ala. 71. If for any reason the former proceeding is void, and so declared on motion of the accused for a new trial, it is no bar to a subsequent prosecution for the same act. Such proceeding necessarily involves the conclusion that he was not in jeopardy, and it is no bar to subsequent prosecution. So we think there was no error in the ruling of the court below on this point.
2. The next ground of error alleged is that the verdict was contrary to law, in that the acts of 1887, under which the defendant was tried, were as to him ex post facto, not being of force at the time of the commission of the offense. The act of 1871 (Code, §§ 4600, 4601, 4601 a,) made the fine double the amount of the debt, and, for failure to pay immediately, imprisonment not less than six, nor more than twelve, months in the county jail. The act of 1875 (page 2) extended these sections to liens for rent, etc. The act of 1876 (page 114) punished offenses against the act of 1875 according to section 4310 of the Code. Section 4600 a. The act of October 8, 1887, (page 37,) amended section 4601 a by striking the words "superior court," which made the section read as follows: "The proper court held for the county in which the party violating section 4600 resides shall have jurisdiction to try the offender." The act of October 13, 1887, pp. 37, 38, amended section 4600 as it originally appeared, so as to make it read as it did before the act of 1875; and the punishment for not paying the fine immediately was changed to confinement in the chain-gang or the county jail for a period of not more than 12 months. The evidence shows that Conley sold and disposed of the property which is alleged to have been mortgaged after the passage of the act of October 13, 1887, above referred to, and that prior to such sale a judgment had been rendered against him and Maher, his surety on the bail-bond, for a sum over $6,000; there being another surety, one Buck. We think that, while Maher may have stood Conley's surety before the passage of the act of October 13, 1887, yet the offense, if any, committed by Conley, in the sale and disposition of the property mortgaged by him to Maher to save Maher harmless as surety on his bond, having been committed by Conley since the passage of the last-mentioned act, rendered him amenable to that act.
3. It is insisted that the Code, § 4600, is unconstitutional, because it imposes an excessive fine; the fine in this case being $6,152.98. No discretion is left by the statute to the judge. It is an invariable law and fixes the amount of the fine at double the mortgage debt; and it pays no regard to the circumstances of the case, the manner of fault, or the ability of the party to pay. It is said that it is violative of that section of the constitution which says excessive fines shall not be imposed. Code, § 5001. The constitution (Code, § 5023) expressly confers on the legislature power to provide for the punishment of fraud, and there is certainly nothing excessive in requiring the perpetrator of fraud to pay two dollars for one; that is, double the amount of the debt sought to be evaded by the fraudulent act. Such a measure of forfeiture or penalty would not be unreasonable for recovery in a civil action, were such action given by statute.
4. It is further insisted that the act of October 8, 1887, is unconstitutional because it gives jurisdiction to the "proper court" held for the county in which the offender resides. It is true that, if the offender should not reside in the county where the "proper court" is given jurisdiction, then such court would not, by force of the act itself, have jurisdiction; but, if he should reside in such county, and the offense is also committed there, then the "proper court," though it be the city court, which has jurisdiction, would be a court in which the offender could be tried.
5. It is alleged as error that the court admitted in evidence an exemplified copy of the mortgage made by Conley to Maher to secure and indemnify him against loss as surety for Conley, because there was no proof of the execution of the original, and because there was a material variance between the paper offered and admitted, and the mortgage set out in the accusation. We do not think this exception is well founded. There was no need of any proof of the execution of the original mortgage, because the paper offered in evidence was an exemplified copy of a mortgage which had been admitted to record, and upon proper probate. The original mortgage itself, if it had been offered in evidence, having been recorded, would have been admissible under the laws of this state, because the same had been duly probated and admitted to record; and we think the loss of the original mortgage was sufficiently proven to admit this secondary evidence. We think there was no material variance between the mortgage set out in the accusation, and the paper offered and admitted.
6. It is alleged as error that the court allowed Maher to testify that he had signed a bond,--a replay bond,--the bond alleged to have been given in a trover suit. The court, in a note to this ground, certified that he allowed this evidence to get to the jury because the mortgage given by Conley to Maher recited the bond, and, if he executed the...
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