Fews v. State
| Decision Date | 31 January 1907 |
| Docket Number | 181,182,183. |
| Parties | FEWS v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Although a claim or a defense may be asserted or resisted under a clause of the Constitution, unless a construction of such clause of the Constitution is involved, this court is not required to certify the question to the Supreme Court. Where the meaning of the language used in the constitutional provision is unambiguous and undisputed, or where the recognized construction which has been given such a provision is unchallenged, no question of construction is involved. No such question is presented in the mere determination of whether a given state of facts establishes or disestablishes a claim or a defense asserted or resisted under an unquestioned construction of a constitutional provision. If the particular question of construction sought to be raised has been passed upon directly by the Supreme Court, such question will not be certified to the Supreme Court for repetition of its former decision.
The finding of the trial court against the plea of former conviction was not unauthorized; it appearing that, while both indictments were for assault with intent to murder, the assaults were separate, were upon two different individuals and were not in response to a joint attack of the persons assaulted, although one of the assaults immediately followed the other.
[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 382.]
The charges complained of were not erroneous. The law against shooting at another was not involved in the case, nor was the law as to simple assaults; hence the court did not err in refusing to charge on these subjects. Each verdict was fully warranted by the evidence.
Error from Superior Court, Bibb County; Felton, Judge.
One Fews was convicted of assault with intent to kill on two indictments, and brings error. Affirmed on each bill of exceptions.
John R Cooper, for plaintiff in error.
William Brunson, Sol. Gen., for the State.
The defendant was tried and convicted of the offense of assault with intent to murder in each of two cases. In case No. 183 the felonious assault is alleged to have been committed upon W. G. Solomon, Jr., and in No. 181 upon Charlie Adams, Jr. The defendant was first tried and convicted upon the charge relating to Solomon (case No. 183). Upon being arraigned upon the indictment relating to the assault upon Adams, he filed a plea of former jeopardy, alleging that the indictment in this case charged him with the same transaction for which he had been convicted in the case relating to the assault upon Solomon. By consent this plea was heard by the trial judge who, upon hearing the evidence, found against the plea. Exception to this finding of the court was taken, and this forms the basis of case No. 182 in this court. The evidence against the accused in each case made out a malicious, wanton, and unprovoked case of assault with intent to murder; the state's testimony showing that Solomon, Adams, and certain other young men were quietly walking along, upon the "circle," or "midway," at the State Fair in Macon, when, without provocation or warning, the defendant, who was unknown to them, first fired two shots, one of which struck Solomon, and then turned his pistol upon Adams, who, seeing that he was about to be shot, ran towards defendant and grabbed hold of him; and, while Adams was struggling with the defendant, the defendant managed to get his pistol in such position that he fired it, striking Adams in the abdomen. The defendant's statement, which, however, was abundantly contradicted by other proof in the case, was that some one had assaulted him, knocked him down, and was on him, beating him and kicking him, when he shot his pistol in the air, thus inflicting the wounds upon Solomon and Adams. In each of the separate motions for new trials, in cases No. 181 and 183, the defendant complains of a charge of the court upon the effect of the evidence of good character introduced by the defendant, and as to the manner in which the contentions of the state are set forth. Since these charges appear to us to be so manifestly without error, and since a decision upon them would not be to announce any new principle...
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