Dacy v. The State Of Ga.
| Citation | 17 Ga. 439 |
| Decision Date | 28 February 1855 |
| Docket Number | No. 75.,75. |
| Parties | Charles Dacy, plaintiff in error. vs. The State of Georgia, defendant. |
| Court | Supreme Court of Georgia |
Indictment for misdemeanor, in Bibb Superior Court. Tried before Judge Powers, November Term, 1854.
This was an indictment for receiving corn from a slave, charged in the indictment to have been committed on the 1st May, 1852.
When the case was called for trial, defendant moved a continuance, on the ground of the absence of certain witnesses, by whom he expected to prove an alibi on the day named in the indictment. The Sol. Gen'l stating, that he did not expect to prove the offence on that day, the Court refused the continuance; and this decision is assigned as error. The defendant's Counsel then asked for time to plead a former acquittal; and took some half hour to look for the record, but being unable to find it. and the Sol. Gen\'l having examined his papers, into whose custody the indictment was traced, and not finding the former indictment, the Court ordered the trial to proceed, the Counsel for defendant stating in his place, that there was such an indictment and order of acquittal, which could be found, if time were allowed; and this decision is assigned as error.
The State introduced one witness, who proved the receipt of corn from a negro by the defendant, in the early part of May, 1852. The witness did not recollect the day, but said it was not the 1st.
No other testimony was introduced.
The Court charged the Jury, that if they believed, from the evidence, beyond a reasonable doubt, that the defendant received corn from a negro, without written permission from those authorized to give it, at any time within two years before the finding of this presentment, that they should find the defendant guilty.
The defendant had previously moved for an acquittal, on the ground that the offence was not proved on the day charged, which the Court refused; and on this decision, as well as on the charge, error is assigned.
The Jury returned a verdict of guilty.
Afterwards, the defendant's Counsel moved in arrest of judgment, and for a new trial, and produced an order of Court, granted at May Term, 1853, granting an acquittal to the defendant, predicated on two successive demands for trial under the Penal Code. He produced also the bill of indictment, on which said order was granted and which was word for word with the present indictment, except that the other charged the offence on the 1st June, 1852, and that in the description of the slave, between the words "a certain negro man slave" and "of yellow complexion, " there were, in the other indictment, the words, "a wagoner, " which are not in the present indictment. The Court refused the motions, holding the proof of identity in the offences charged in the two indictments was not sufficient, and sentenced the defendant to thirty days\' imprisonment, and payment of costs.
To which refusal and sentence, the defendant excepts, and error is assigned thereon, as well as on the other points above noticed.
L. N. Whittle, for plaintiff.
Sol. Gen'l DeGraffenreid, for the State.
By the Court.—Lumpkin, J., delivering the opinion.
The Court was right in refusing to continue the case. The defendant proposed to prove an alibi by the witnesses who were absent; that is, that on the 1st day of May, 1852, the time stated in the presentment, when the offence was committed, he was absent from home during the whole day. To this, the Solicitor General replied, that he did not expect to show that the misdemeanor was committed on the 1st, but on a subsequent day in May.
This he was entitled to do, as the time need not be proved as laid, unless where it is of the essence of the offence. And the facts may be proved to have occurred on any other day previous to the preferring of the indictment. The authorities are not only uniform in support of this doctrine, but it has been the constant course of proceeding in criminal prosecutions, from the highest offence to the lowest. All objections to this practice on behalf of prisoners have been repeatedly and uniformly overruled.
But where the date of a particular fact is necessary to ascertain, with precision, the offence charged, it must be proved as alleged. Consequently, several exceptions have been made to the foregoing rule, namely: that it will not be necessary to prove precisely the time as laid. 1st. In all cases where written instruments are pleaded, the date, if stated, must correspond with the date of the instrument when produced in evidence on the trial. .) 2d. As deeds may be pleaded, either according to the date which they bear, or to the day on which they are delivered—if a deed produced in evidence bear date on a different day from that stated in the pleading, the party producing it must prove that it was, in fact, delivered on the day alleged in the pleading. 3dly. If any time stated in the pleading is to be proved by matter of record, it must be correctly stated. The slightest variance in any of these respects, will be fatal in felonies. In misdemeanors, in some cases, they are amendable at the trial. 4thly. When the precise date of any fact is necessary to ascertain and determine, with precision, the offence charged or the matter alleged, in excuse or justification, any variance between the pleading and evidence will be fatal. And lastly. Where time is of the essence of the offence, as. in burglary and the like, the offence must be proved to have been committed in the night-time, although the day on which the offence is charged to have been committed is immaterial. In murder, also, the death must be proved to have taken place within a year and a day from the time the stroke was given. (2 Hawkin\'s Ch. 23, §90.)
Of course, then, this waiver on the part of the State, destroyed the materiality of the testimony. Indeed, it rendered it wholly inapplicable to the case. Nor was it forcing a trial, by making admissions which can not be done in civil suits. But it is like striking out a count in a writ or an indictment, to which, alone, the absent proof referred.
We are unanimous, however, that a new trial shouldhave been granted, after the indictment in the former case was found in the possession of the ...
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...of the common law, that death must result within a year and a day from the infliction of the injury, prevails in Georgia. In Dacy v. State, 17 Ga. 439, 442, Lumpkin, in deciding a misdemeanor case, stated: "Where time is of the essence of the offence, as in burglary and the like, the offenc......