Griffin v. The State Of Ga.

• Decision Date: 30 November 1858
• Citation: 26 Ga. 493
• Parties: George M. Griffin, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

26 Ga. 493

George M. Griffin, plaintiff in error. vs. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1858.

Misdemeanor, in Morgan Superior Court. Tried before Judge Hardeman, at—— Term, 1858.

The facts of the case, and the grounds of exceptions to the rulings and decisions of the Court below, are sufficiently set forth in the opinion of Judge McDonald, who pronounced the judgment of this Court, and in Judge Lumpkin's concurring opinion.

A. H. H. Dawson; and Cone, for plaintiff in error.

Sol. General, contra.

By the Court.—McDonald, J., delivering the opinion.

This was an indictment for misdemeanor, in the Superior Court of Morgan county. There were two counts in the indictment. The first count charged that the plaintiff in error, on the fourteenth day of August, in the year 1855, in the county of Morgan, with force and arms, did unlawfully, wrongfully, feloniously and with intent to steal, attempt to break and enter the storehouse of one Charles W. Richter, which storehouse was then and there situated in the town of Madison, in said county, and did then and there unlawfully, feloniously and wrongfully attempt to privately steal, take and carry away from said storehouse, divers jewelry, &c, of the value of five thousand dollars, and other things of value; and then and there deposited and being in said storehouse, and then and there the property of the said Charles W. Richter, which said attempt then and there to commit larceny from the house, (an offence prohibited by law, and punishable by imprisonment and hard labor in the penitentiary, for any time not less than two years nor longer than five years,) was and is contrary, &c.

The second count in the indictment charged that the said plaintiff in error, in the county of Morgan, on the 14th day of August, in the year 1855, with force and arms, feloniously, unlawfully, and with intent to steal, did attempt to break and enter the storehouse of Charles W. Richter, situated in the town of Madison, in said county, and did then and there attempt as aforesaid, to break and enter said storehouse, with intent to steal as aforesaid, by unlawfully, wrongfully and privately taking the impression of the key which unlocked a door of the said storehouse of the said Charles W. Richter, and from said impression so taken, preparing a false key to fit said lock, for the purpose of unlawfully, feloniously, wrongfully and fraudulently entering, and through the agency of said Hiram T. Jones, to break and enter the said storehouse of the said Charles W. Richter, with intent feloniously, wrongfully, unlawfully and privately to steal as aforesaid, the goods, wares, jewelry, &c, &c, of the value of five thousand dollars, and other things of value, and these the property of the said Charles W. Richter, which said attempt to commit said offence of larceny from the house, (an offence prohibited by law, and punishable by confinement and labor in the penitentiary for any time not less than two years, nor longer than five years,) was and is contrary, &c.

The plaintiff in error was arraigned on the bill of indictment, and on his arraignment excepted and demurred thereto, and for cause of exception and demurrer, said:

1st. That there is no offence set forth and charged in said indictment, which is punishable by law, or that will subject him to punishment.

2d. That said indictment contains no statement of factssufficient in law to charge the defendant with the offence of an attempt to commit the crime of larceny from the house.

3d. That the indictment contains no statement of facts sufficient in law to charge the defendant with the offence of an attempt to commit the crime of larceny from the house.

4th. That said indictment contains no charge or allegation, which, if true, are sufficient in law to constitute the crime of attempt to commit larceny from the house.

This indictment is on the 2d section of the 15th division of the penal Code, (Cobb, 844,) which is in the following words: "If any person shall attempt to commit an offence prohibited by law, and in such an attempt shall do any act toward the commission of such offence, but shall fail in the perpetration thereof, or shall be prevented or intercepted from executing the same, such person, so offending, shall be indicted for a misdemeanor, and on conviction thereof, shall, in cases where no provision is otherwise made in this Code, or by law, for the punishment of such attempt, be punished, " &c.

The Act does not describe the manner in which an attempt to perpetrate a crime shall be made to constitute the offence.

If the facts charged in the indictment to have been done, amount to an attempt, the offence of attempt to commit the crime is sufficiently charged, and the demurrer ought to be overruled. The indictment charges, that in the county of Morgan, the accused took the impression of the key, and prepared a false key from that impression, to unlock the door of Charles W. Richter's store, with the intention, through the agency of Hiram T. Jones, to break and enter the store and to steal. So far as the indictment is concerned, the offence, if an offence, is sufficiently charged to have been committed in the county of Morgan. But it is said that no offence is charged, but only an intention to do an act, and a preparation to do it. The intention wrongfully and feloniously tobreak and enter the storehouse of Richter, with the intent to steal, is very distinctly charged in the indictment. It is also alleged, that this was to be done through the agency of Hiram T. Jones. It is alleged that the accused took the impression of the key to the lock on the door of the storehouse, and that he had a key prepared. Here are two acts towards the accomplishment of a felonious object, and done with intent to accomplish it. The having in possession a key, with the intent to break and enter a house, in order to steal, is a criminal act on the part of a person apprehended with it. Penal Code, Cobb Dig. 817. The case of Rex vs. Sutton, 2 Str. 1074, is a strong authority in support of this indictment. The defendant was convicted of a misdemeanor, for having in his possession iron stamps, with the intent to impress the sceptres on sixpences. The Court said, the "intent was the offence, and the having in his custody is an act that is evidence of that intent."

The object of the Act under which the plaintiff in error is indicted, is to punish intents to commit crime, if they are demonstrated by an act. The word "attempt" ordinarily implies an act, an effort, but the General Assembly, in this statute, uses it as synonymous with "intend, " for it declares that if a person shall attempt to commit a crime, and in such attempt shall do any act towards the commission of such offence, &c. The accused, according to the bill of indictment, conceived the purpose of perpetrating the offence, and he did an act towards the commission of it, for it was an act to take the impression of the key, and that alone is sufficient to subject him to the law; but he prepared the key, and for the object, and so the indictment alleges. It is urged, however, by the learned counsel for the plaintiff in error, that if he intended to commit the crime through the agency of another person, that would only have made him accessory, if the offence had been committed by that other. In the case of The King vs. Higgins, 2 East. 5, the solicitation of an-other to commit a felony, was held to be an act, and if there was an act done by the accused, that would have made him a principal felon; if the offence had been committed, any act done towards its commission, would make the offence of "attempt" complete.

Several combined to forge an instrument, and each executed, by himself, a distinct part of the forgery, and they were not together when the instrument was completed, and they were, nevertheless, all held to be guilty as principals. Wharton's Cr. Law, 65; 1 Russ. on Cr. 32; 2 British Crown Cases, 307; Ibid, 304; 1 Ib. 446. (See last case cited.)

Griffin did an act towards the perpetration of the offence, and if the offence had been committed, he would have been a principal and not accessory. The demurrer to the indictment was, therefore, properly overruled by the Court.

After the demurrer was overruled in the Court below, the plaintiff in error moved a continuance of the cause, and in support of the motion deposed that, in consequence of the then recent finding of the indictment, (found at the term of the Court at which the prisoner was put on trial,) he had been able to summon no witnesses; that in the former case pending in said Court, he had summoned A. B. Luce, who resides in Savannah; that, at the previous term, said Luce was in attendance upon the Court, but was then sick at home and confined to his bed; that by the said witness he expected to prove the good character of the defendant and his handwriting, and that letters which it would be attempted to be proved were written by him, were not in his handwriting; that he had no other witness in Court by whom he expected to prove all the foregoing facts; that he expected to have the witness in attendance at the then next term of the Court; that said application was not made for delay, but that justice might be done, and he might be enabled to procure the attendance of said witness.

The presiding Judge refused the continuance on the ground, that this indictment is substantially the same as one whichhad been continued by the defendant for three several terms of the court. At another term of the Court he announced himself ready for trial, and after a jury was empaneled, he absented himself from Court without leave, and forfeited his recognizance. That bill of indictment was nol. pros\'d by the Solicitor General for a mere formal defect, and the one on which he was now to be put on trial was found by the grand jury for the indentical misdemeanor, not at all varying the substance of the same. These are the...