Dutton v. Smart

• Citation: 148 S.E.2d 396,222 Ga. 35
• Decision Date: 07 April 1966
• Docket Number: No. 23385,23385
• Parties: A. L. DUTTON, Warden v. David M. SMART.
• Court: Georgia Supreme Court

Page 396

148 S.E.2d 396

222 Ga. 35

A. L. DUTTON, Warden v. David M. SMART.

No. 23385.

Supreme Court of Georgia.

April 7, 1966.

Syllabus by the Court

1. The double jeopardy provision of the Fifth Amendment to the United States Constitution does not apply to a trial in a state court.

2. The imposition on the defendant in this case of two consecutive twenty year sentences is not a cruel and unusual punishment such as is prohibited by the Georgia Constitution.

3. Where the same evidence was used to convict the defendant of burglary and assault with intent to rape at one trial under separate indictments, the assault having occurred after the breaking and entering, the defendant has not been placed in double jeopardy in that the two offenses were part of the same transaction so as to violate the Georgia Constitution because these offenses are separate and distinct as a matter of law.

Arthur K. Bolton, Atty. Gen., Carter A. Setliff, Asst. Atty. Gen., Atlanta, B. Daniel Dubberly, Jr., Deputy Asst. Atty. Gen., Glennville, for appellant.

Kravitch, Garfunkel & Hendrix, Aaron Kravitch, Savannah, for appellee.

ALMAND, Justice.

This is an appeal from a judgment granting a writ of habeas corpus. David M. Smart, appellee here, was indicted by the grand jury of Chatham County, Georgia, on February 3, 1954, in separate indictments for the crimes of burglary and assault with intent to rape. While the date of the crime charged in each indictment was not the same, this mistake was recognized by all parties and is not material to the issue before us. The record shows that the appellee was tried under the two indictments at the same trial, and the evidence showed that the assault with intent to rape was committed immediately after the appellee allegedly broke and entered the home of the victim. On May 21, 1954, a jury found appellee guilty of the offense charged in each of the two indictments, and he was sentenced to twenty years on each offense. The sentences were to be computed consecutively. Appellee has completed service of his first sentence and was serving his second sentence at the time this case was brought.

In 1964, appellee filed a petition for a writ of habeas corpus in the Superior Court of Chatham County. This action was dismissed by the court upon the ground that it was without jurisdiction as the Georgia Code sets forth that jurisdiction in habeas corpus cases shall be in the county of incarceration, and appellee was incarcerated at the Georgia State Prison in Tattnall County. Appellee then filed another petition for habeas corpus on December 23, 1964, in the United States District Court for the Southern District of Georgia. This action was dismissed upon the ground that the appellee did not exhaust the available remedy of habeas corpus in the state courts, and this decision was upheld by the Fifth Circuit Court of Appeals on November 1, 1965.

Appellee then filed his petition for a writ of habeas corpus in the City Court of Reidsville. The trial court was of the opinion that appellee had already served the only legal sentence imposed and that he was sentenced twice for the same offense, arising out of one and the same transaction. The court thereupon granted the writ of habeas corpus and released appellee from further custody. Appellant has assigned error on this judgment.

1. In his petition in the trial court, appellee contended that his incarceration under the circumstances set out above violated the Fifth Amendment to the United States Constitution which provides in part 'nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb * * * nor be deprived of life, liberty or property, without due process of law.' (Code § 1-805). No issue is raised here regarding the United States Constitution since the double jeopardy provision of the Fifth Amendment thereto does not apply to trials in state courts. Brock v. State of North Carolina, 344 U.S. 424, 73 S.Ct. 349, 97 L.Ed. 456; Lewis v. State Bd. of Medical Examiners, 162 Ga. 263, 133 S.E. 469.

2. Appellee also contended in the lower court that his sentences constituted a cruel and unusual punishment prohibited by Art. I, Sec. I, Par. IX of the Georgia Constitution (Code Ann. § 2-109). The purpose of this provision of our Constitution was explained in Whitten v. State, 47 Ga. 297, and in Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766. This court said that '(s)o long as they (the legislature) do not provide cruel and unusual punishments such as disgraced the civilization of former ages, and make one shudder with horror to read of them, as drawing, quartering, burning, etc., the Constitution does not put any limit upon legislative discretion.' Whitten v. State, 47 Ga. 297 at 301, and Sims v. Balkcom, 220 Ga. 7, 10, 136 S.E.2d 766, 768. The sentences imposed upon the appellee here are not the type of punishment which falls within this Constitutional provision.

3. Appellee's petition also stated 'that having been convicted of the offense of burglary which necessarily carried with it as an attempt to commit a felony, to wit, attempted rape, he could not thereafter be convicted of the attempted rape as a separate offense where both offenses resulted out of the same transaction and at the same time, in the same place, and directed upon the same person.' Appellee relied upon Art. I, Sec. I, Par. VIII of the Georgia Constitution (Code Ann. § 2-108) which provides that '(n)o 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.' Appellee also relied upon the case of Harris v....