Franklin v. State

• Decision Date: 02 June 1890
• Parties: FRANKLIN v. STATE.
• Court: Georgia Supreme Court

11 S.E. 876

85 Ga. 570

FRANKLIN v. STATE.

Supreme Court of Georgia

June 2, 1890

Syllabus by the Court.

That a nolle prosequi was entered without the prisoner's consent after issue was joined and the jury were sworn will bar a subsequent indictment for the same assault with intent to murder, where the first indictment alleged that offense, and was good and sufficient for a simple assault, even if not so for the aggravated assault charged. There can be no second jeopardy as to either grade of assault, and, as the major includes the minor, the second indictment comprehends the same simple assault of which the accused was acquitted on the first indictment.

Error from superior court, Chatham county; FALLIGANT, Judge.

W. W Osborne, by S. B. Adams, for plaintiff in error.

W. W Fraser, Sol. Gen., for the State.

PER CURIAM.

The constitution (Code, § 5000) declares: "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." Our statute law (Code, § 4649) declares that "no nolle prosequi shall be entered on any bill of indictment after the case has been submitted to the jury, except by the consent of the defendant." That jeopardy begins when the jury are impaneled and sworn is the rule recognized in Georgia Newsom v. State, 2 Ga. 60; Reynolds v. State, 3 Ga. 53; Nolan v. State, 55 Ga. 521. And the same view is taken by the better authorities elsewhere. Bigelow, Estop. p. 89; 1 Herm. Estop. § 419. In this case, after "not guilty " was pleaded and the jury were sworn, and without the prisoner's consent, a nolle prosequi was entered on the first indictment. That indictment, after charging and accusing the plaintiff in error, Thomas Franklin, with the offense of assault with intent to murder, proceeded as follows: "For that the said Thomas Franklin, in the county of Chatham and state of Georgia aforesaid, on the 14th day of November, in the year of our Lord one thousand eight hundred and eightynine, with force and arms, in and upon one Sol Williams, in the peace of said state being, did unlawfully, willfully, feloniously and of his malice aforethought, make an assault; and with a certain pistol loaded with gunpowder and leaden ball, said pistol so loaded being a weapon likely to produce death, in, at, towards and upon him, the said Thomas Franklin did unlawfully, willfully, feloniously, and of his malice aforethought discharge and shoot off, with the intent him the said Sol Williams unlawfully, willfully, feloniously and of his malice aforethought to kill and murder, contrary to the laws of said state, the good order, peace and dignity thereof." By the aid of punctuation and emphasis, (which we supply,) it will be seen that this indictment may be made consistent, in all its parts, and a good indictment, not only for a simple assault, but for an assault with intent to murder, by the use of a weapon likely to produce death. Without these aids it would be ambiguous, and would doubtless be amenable to a special demurrer, but would not, we are inclined to believe, be so defective as to warrant an arrest of judgment had the accused been found guilty upon it of the aggravated assault for which he was indicted. Bishop says: "The doctrine is general that the court will consult sound sense, to the disregard of captious objections, in looking for the meaning of allegations in an indictment. Moreover, of two permissible constructions, it will adopt the one sustaining the proceeding." And again: "It ought not to be ambiguous; and, if really equivocal, it will be inadequate. But, referring to a milder sort of ambiguity, Chitty observes 'that, where a matter is capable of different meanings, that will be taken by the court which will support the proceedings, not that which would defeat them.' And 'it does not seem to clash with any rule of construction, applied even to criminal proceedings, to construe it in that sense in which the party framing the charge must be understood to have used it, if he intended his accusation to be consistent."' 1 Bish. Crim. Proc. §§ 356, 510. And the rule of our Code is that an indictment is sufficient which charges the offense in the language of the Code, or so plainly that the nature of the offense charged may be easily understood by the jury. Code, § 4628. Surely the jury might have understood from the language of this indictment, construed all together, that Thomas Franklin attempted to kill and murder Sol Williams, not by shooting at himself, but by shooting at Sol Williams. But, be this as it may, the indictment certainly charges an assault by Franklin upon Williams, and, therefore, whether it be good for an aggravated assault or not, Franklin, under our law, could have been legally convicted upon it of a simple assault. Bard v. State, 55 Ga. 319; Rataree v. State, 62 Ga. 245, Inasmuch, therefore, as the punishment for a simple assault may be imprisonment with or without labor, (Code, § 4358;) the accused was undoubtedly put in jeopardy of his liberty by this first indictment.

The second indictment is for the same aggravated assault intended to be alleged by the first, and therefore comprehends necessarily, the offense of simple assault, (LUMPKIN, J., in Jacobs v. State, 20 Ga. 841,) of which the accused might have...