Gully v. State

• Decision Date: 12 November 1902
• Parties: GULLY. v. STATE.
• Court: Georgia Supreme Court

42 S.E. 790

116 Ga. 527

GULLY.

v.STATE.

Supreme Court of Georgia.

Nov. 12, 1902.

BIGAMY—INDICTMENT—FORMER ACQUITTAL— EVIDENCE—GENERAL OBJECTION.

1. An acquittal under an indictment charging that the accused committed bigamy by contracting an unlawful marriage with "Gussie Shingler" will not be a bar to a prosecution subsequently instituted under an indictment charging that, on the same date as that named in the first indictment, the accused committed bigamy by contracting an unlawful marriage with "Bessie Shingler, " especially when it appears that, at the time upon which the marriages were alleged to have taken place, there were in life persons answering to the names both of Gussie and Bessie Shingler. The above is true notwithstanding it appears that the witness who testified before the grand jury by mistake gave the name of Gussie Shingler when he intended to give that of Bessie, and that the name of Gussie was inserted in the indictment under a misapprehension growing out of this mistake of the witness; there having been but one marriage, and it having been in fact contracted with Bessie, and not Gussie.

2. Where objection is made to specified evidence as a whole, part of which is admissible and part inadmissible, and the objection does not point out the objectionable portion, there is no error in admitting the entire evidence.

¶ 2. See Criminal Law. vol. 14. cent. Dig. § 1637.

(Syllabus by the Court.)

Error from superior court Decatur county; W. N. Spence, Judge.

R. C. Gully, alias C. R. Bridges, was convicted of bigamy, and brings error. Affirmed.

W. D. Sheffield, by J. D. Harrison, for plaintiff in error.

W. E. Wooten, Sol. Gen., by R. R. Arnold and Donalson & Fleming, for the State.

COBB, J. R. C. Gully, sometimes known as C. R. Bridges, was placed upon trial, charged with the offense of bigamy; the indictment charging that on November 7, 1901, the accused married one Bessie Shingler; his lawful wife, Annie Bridges, being then in life, which fact was known to him. The accused filed a special plea setting up that at i a previous term an indictment had been preferred against him, charging him with the offense of bigamy, in that on November 7, 1901, he had married one Gussie Shingler, —his lawful wife, Annie Bridges, being thenin life, which fact was known to him; that he was arraigned on this indictment, and pleaded "Not guilty"; and that the trial resulted in a verdict of acquittal; a copy of the proceedings being attached to the plea. It was alleged that the offense charged in the indictment in the present case is the same as that charged in the indictment upon which the accused was previously indicted; that the present indictment charges identically the same and only the offense charged in the former indictment; that, in order to convict upon the present charge, it would be necessary to introduce the same evidence, without any additional facts, as was produced upon the trial under the former indictment; that the finding of the jury at the former trial was upon the same evidence and issue that would be had and made In the present case, and none other: that while the former Indictment charged that the accused committed the offense of bigamy by marrying Gussie Shingler, and the present indictment alleges that he committed the offense by marrying Bessie Shingler, still both indictments relate to the same unlawful marriage, and both allege the same date upon which the marriage took place; the only difference in the allegations in the two indictments being in the name of the person with whom the marriage was alleged to have been contracted. It appeared from the evidence that there were two Shingler sisters, one named Gussie and the other Bessie; that no marriage had taken place between Gussie and the accused, she herself being married to another on the date she was alleged in the indictment to have been married to the accused: and that the only unlawful marriage contracted by him was the one with Bessie Shingler. The name of Gussie appeared in the first indictment as the result of a mistake made by a witness who testified before the grand jury, the witness intending to give the name of Bessie instead of that of Gussie. The accused entered a plea of not guilty upon the indictment, and the issue raised by this plea and that raised by the special plea were submitted to the same jury, by whom a verdict was returned finding the accused guilty; thus, in effect, finding against the special plea. The accused filed a motion for a new trial upon various grounds. The motion was overruled, and he excepted. The only grounds of the motion which were insisted on in this court were those which alleged, in substance, that the verdict, so far as it amounted to a finding against the special plea, was contrary to evidence, and one ground which assigned error upon the admission of certain testimony.

1. It is contended that under the evidence the jury should have found in favor of the special plea setting up former acquittal, for the reason that the offense involved in the present case was the same as that for which the accused had been placed on trial and acquitted. To entitle the accused to plead suc cessfully former acquittal, the offenses charged in the two prosecutions must have been the same in law and in fact; and, while there is no infallible test that can be applied in all cases for determining the identity of the offenses charged in the different indictments, it has been said that it is a rule of almost universal application that if the facts required to support the second indictment would have been sufficient, if proved, to procure a conviction under the first indictment, the offenses are identical. See 17 Am. & Eng. Enc. Law (2d Ed.) 596, 597. See, also, 1 Archb. Cr. Proc. & PI. (8th Ed.) top page 341. The rule above referred to is that which is sometimes called the "same evidence test." There is also another rule which declares that if the prosecution under the second indictment involves the same transaction which was referred to In the former indictment, and it was or might have properly been the subject of investigation under that indictment, an acquittal or conviction under the former indictment would be a bar to a prosecution under the last indictment. This rule is sometimes called the "same transaction test." The latter rule has been the one adopted and generally followed in this state. In Roberts v. State, 14 Ga. 8, Judge Starnes, after stating that there seemed to be some difficulty about applying In all cases the rule known as the "same evidence test, " says: "To avoid any confusion on this subject, we adopt the rule as it is otherwise more generally, and perhaps more accurately, expressed, viz., that the plea of autrefois acquit or convict is sufficient whenever the proof shows the second case to be the same transaction with the first." The rule thus laid down was applied In the following cases: Holt v. State, 38 Ga. 187; Jones v. State, 55 Ga. 625; Buhler v. State, 64 Ga. 504; Goode v. State, 70 Ga. 752; Knight v. State, 73 Ga. 804; Knox v. State, 89 Ga. 259, 15 S. E. 308. See, also, in this connection, Crocker v. State, 47 Ga. 568; Johnson v. State, 65 Ga. 94 (2); Craig v. State, 108 Ga. 776, 33 S. E. 653; McWilllams v. State, 110 Ga. 280, 34 S. E. 1016.

If the two prosecutions really Involve the same transaction, the fact that the offense charged in the second indictment is by name a different offense from that which is set forth in the first does not prevent a judgment under the first from being a bar to the second prosecution. Holt v. State, supra. On the other hand, if the two offenses are nominally the same, but are substantially different, a judgment in one will not be a bar to a prosecution in the other. Brown v. State, 85 Ga. 713, 11 S. E. 831 (3). It has also been held that where a person has been put in jeopardy of a conviction of an offense which is a necessary element in, and constitutes an essential part of, another offense, such jeopardy is a bar to a subsequent prosecution for the latter offense, if founded upon the same act Bell v. State, 103 Ga. 397, 30 S, E. 294, 68 Am. St. Rep. 102. See, also, Copenhaven v. State, 15 Ga. 264; Pat v. State, 116 Ga. 92, 42 S. E. 389. In Blair v. State, 81 Ga. 629, 7 S. E. 855, it was held that the true rule is, if the evidence required to convict under the first indictment would...