Gilbert v. The State Of Ga.
| Decision Date | 30 September 1880 |
| Citation | 65 Ga. 449 |
| Court | Georgia Supreme Court |
| Parties | Gilbert. v. The State of Georgia. |
Criminal law. Indictment. Practice in the Superior Court. Before Judge Simmons. Bibb Superior Court. October Adjourned Term, 1879.
Reported in the decision.
*W. G.Smith; Washington Dessau, for plaintiff in error.
C. L. Bartlett, solicitor—general, for the state.
The plaintiff in error, Mary Gilbert, was tried for burglary, larceny from the house, and for receiving stolen goods knowing the same to have been stolen, under one indictment, and was found guilty of the latter offense. She moved for a new trial, which was refused, and she, by her counsel, excepted.
The indictment under which she was convicted, contained but two counts, by the first of which she was charged with burglary and larceny from the house, by the second, with receiving the stolen goods.
The principal ground relied upon in the motion for a new trial was, that after the reading of the indictment to the jury, counsel moved the court to compel the state to elect under which count it would proceed to try the defendant, which motion was overruled by the court, and the defendant excepted. After the introduction of the evidence and before argument to the jury, the same motion was renewed, and again refused by the court, and the defendant again excepted.
1. A general rule in criminal pleading is that a defendant cannot be charged with separate offenses in the same indictment, as for instance larceny in one count, and perjury in another, for it would embarrass him in his defense, but the same offense, that is the same species of offense, may be charged in different ways in several counts to meet the evidence. Arch. Cr. PI., 30, 31; Hale P. C, m. p. 246, 1 Bishop Cr. D., 1062; 57 Ga. 66.
Offenses differing from each other may be included in the same indictment, provided they are of the same nature anddiffer only in degree. 11 Ga., 92; 12 Ib. 316; 49 Ib.,
534. There are some offenses, however, though *they may not be of the same nature, yet may be incorporated
in the same indictment, if they constitute but one transaction; of this class is burglary and larceny, if committed at the same time. But as they are not similar in character they can never be joined except when blended by the concurrent acts of the offender, and even then it is done more to fix and establish the burglary than to charge the larceny.
2. The indictment in this case charges the defendant with these two distinct offenses in the first count, but to this no de—murrer was made, no ruling by the judge had thereon, and therefore we need not consider it.
But the second count charged the...
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Webb v. State
... ... was no demurrer to the indictment, and under Webb v ... State, 177 Ga. 414, 170 S.E. 252, and Webb v ... State, 47 Ga.App. 505, 170 S.E. 827, 828, it seems that ... it would have availed the defendant nothing to have demurred ... to the same. "In the case of Gilbert v. State, ... 65 Ga. 449, it is said: 'If two distinct offenses are ... charged in the same indictment, and no exception is taken ... thereto by demurrer, the defendant may, nevertheless, demand ... that the state elect on which it will proceed. If the ... indictment shows the difference in ... ...
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Webb v. State
...505, 170 S.E. 827, 828, it seems that it would have availed the defendant nothing to have demurred to the same. "In the case of Gilbert v. State, 65 Ga. 449, it is said: 'If two distinct offenses are charged in the same indictment, and no exception is taken thereto by demurrer, the defendan......
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Henderson v. State
...the law with respect to the joinder on one prosecution of multiple offenses was clearly and succinctly stated in the case of Gilbert v. State, 65 Ga. 449, 450, as follows: 'A general rule in criminal pleading is that a defendant cannot be charged with separate offenses in the same indictmen......
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Wingfield v. State
...here. This has been the law in Georgia for a long time. The following citations make that clear. Adams v. State, 52 Ga. 565(1); Gilbert v. State, 65 Ga. 449(1); Williams v. State, 72 Ga. 180(1); Sims v. State, 110 Ga. 290(2), 34 S.E. 1020; Gaulden v. State, 41 Ga.App. 635(1-a), 154 S.E. 209......