Harris v. State
| Decision Date | 11 November 1941 |
| Docket Number | No. 13771.,13771. |
| Citation | 17 S.E.2d 473 |
| Parties | HARRIS. v. STATE. |
| Court | Georgia Supreme Court |
1. In order to sustain a plea of former jeopardy, it is always incumbent upon the defendant to plead and prove that the transaction charged in the second indictment is the same as a matter of fact as that charged in the first indictment under which he was put in jeopardy. In addition to pleading and proving that the transaction is the same as a matter of fact, it is also necessary to plead and prove: Either (a) that the transaction charged in the second indictment is an offense which is identical in law with that charged in the first indictment, or else that under the actual terms of the first indictment proof of the second offense was made necessary as an essential ingredient of the offense as first charged; or (b) that the transaction charged in the second indictment is an offense which represents either a major or minor grade of the same offense, of which the defendant might be convicted under an indictment for the major offense; or (c) where the transactions are the same as a matter of fact, even though the offenses be not identical or in effect identical as a matter of law, so as to come within the scope of the preceding subsections (a) or (b), he may nevertheless, under the principles of res judicata which may be included in a plea under the broader doctrine of former jeopardy, show that his acquittal on the first charge was necessarily controlled by the determination of some particular issue or issues of fact which would preclude his conviction of the second charge.
2. If the State, instead of demurring to a plea of former jeopardy, so as to give the allegations of fact a constructive verity (Lock v. State, 122 Ga. 730 [2], 731, 50 S.E. 932; Burnam v. State, 2 Ga.App. 395, 396, 58 S.E. 683), files a traverse denying such allegations, the burden of proving them falls on the defendant; and unless the identity of the offenses as a matter of fact appears from the record of the two cases, it must be shown by other evidence. Sweeney v. State, 16 Ga. 467, 468; Gully v. State, 116 Ga. 527, 530, 42 S.E. 790; Mance v. State, 5 Ga.App. 229, 62 S.E. 1053.
(a) On a first indictment charging the defendant with the murder of a named person on a stated day in a stated county, the defendant was acquitted. A second indictment charged him and another person as principals, and two others as accessories before the fact, with robbery by open force and violence in taking a pocketbook from the same person on the same day and in the same county as
charged in the previous indictment for murder. The plea of former acquittal alleged that the facts and circumstances in both cases constituted the same transaction, and sufficiently set forth the previous determination of the actual controlling issue in the former trial. But under the immediately preceding rule, and the traverse by the State of the averments in the plea, the court did not err in directing a verdict against the plea, since the defendant, although introducing the two indictments, the previous verdict of acquittal, and a brief of the evidence in the former trial for murder, did not show that the robbery for which he was prosecuted under the second indictment was in fact the same transaction as that for which he was previously tried and acquitted.
(b) "Where a defendant is tried and acquitted of an offense, and thereafter * * * is again accused of a crime of the same general denomination, and files, upon the second trial, a special plea that the previous prosecution was for the same transaction and offense as that for which he is about to be tried, and the State takes issue on the plea, and a verdict is rendered against the plea, the State is estopped, on the trial of the case in chief, from relying, for a conviction, upon any transaction which might legally have been investigated and adjudicated under the former prosecution." Mance v. State, 5 Ga.App. 229 (2), 230, 02 S.E. 1053; Lock v. State, 122 Ga. 730, 733, 50 S.E. 932. If the defendant on the trial of his plea had shown the facts developed in the trial of the main robbery case, he would have been entitled to prevail under the rule in subdivision (c) of headnote 1. Accordingly, where the State, without questioning the legal sufficiency of the plea, by its traverse in effect only took the position that the facts and circumstances charged in the two cases were not the same as a matter of fact, and that as a matter of fact no controlling issue existed in the murder trial, which would also exist in the robbery trial, and on which the acquittal of murder would preclude a conviction of robbery, the State, by this position, estopped itself from introducing evidence to the contrary. Upon the objection by the defendant to the robbery testimony on the ground of estoppel, and exception taken to its admission, all the evidence in the two trials, including this testimony, must be considered. On such consideration, the admission over objection, in the robbery trial, of the testimony, which must necessarily have raised the controlling issue and determined the verdict of acquittal in the former trial, was erroneous, since, under the doctrine of res judicata and the principle of estoppel, the State could not use such testimony to again litigate the controlling issue already determined.
3. The preceding rulings being controlling, other exceptions are not considered.
Error from Superior Court Glascock County; C. J. Perryman, Judge.
J. S. Harris was convicted for robbery, and he brings error.
Reversed.
At the February term, 1939, the grand jury of Glascock County returned an indictment for murder against John Sherman Harris, in that he did in that county, on December 17, 1938, "with force and arms * * * unlawfully, and with malice aforethought, kill and murder one Clellian Chalker * * * by then and there shooting him with a certain firearm * * * and thereby inflicting upon [him] a mortal wound." After the judgment of conviction was reversed (Harris v. State, 188 Ga. 745, 4 S.E.2d 651), and a change of venue was ordered, the defendant on November 28, 1939, was tried in Taliaferro County and acquitted on this indictment.
At the February term, 1940, the grand jury of Glascock County returned an indictment charging John Sherman Harris and Jim Davis as principals, and Roger Harris and Hardwick Harris as accessories before the fact, with robbery by open force, in that John Sherman Harris and the other principal did in Glascock County, on December 17, 1938, "with force and arms * * * unlawfully, feloniously, wrongfully, and fraudulently and violently by open force and violence and by intimidation, take and carry away from the person of Clellian Walker, without [his] consent, * * * and with intent to steal the same, " a described pocketbook of a stated value with its contents, the value and a description of the contents being unknown. In a trial of John Sherman Harris in Glascock County under this last indictment, on February 20, 1941, he was found guilty and given a sentence of ten to twenty years' imprisonment.
Before a trial of the present case for robbery, he filed a plea designated as one of former jeopardy, and made a "profert of a brief of the evidence used" in the previous trial for murder "to show that both indictments involved the same transaction." The plea set forth that "the facts and circumstances in each" of the two cases and indictments, "involved the same transaction;" that the previous indictment for murder "involved the same facts, circumstances, and transactions as charged in the indictment" for robbery by open force. The plea further stated that to put the defendant on trial for the second charge, "dependent upon the same circumstances, and growing out of the same transaction as the murder for which he was indicted, tried, and acquitted, " was jeopardy in violation of the State Constitution, Code, § 2-108, Const. art. 1, § 1, par. 8, and a denial of his rights under the fourteenth Federal amendment requiring due process of law, Code, § 1-815; that the State having previously indicted him for murder "upon a given state of facts, and upon trial thereof" he having been acquitted, the State "cannot now proceed under a second indictment alleging precisely the same state of facts, and charging commission of a crime upon the same person alleged to have been murdered, designating it by another name;" that "the criminal acts complained of in the indictment for robbery grew out of the same transaction as the murder grew out of;" and that "the State, having made its election as to the nature and character of the offense for which it would prosecute this defendant upon a given state of facts, whereupon he was acquitted, it cannot now prosecute him for the same criminal acts." The plea also set forth that "the indictment charging defendant with murder necessarily charged him with a crime that had force as one of its constituent elements, in that it charged" him with killing by force and arms the person named by "shooting [him] with a certain firearm, " and the indictment for robbery also charged him "with a crime that had force as one of its elements" against the same person, in the same county, and on the same day, all of which "became one and the same transaction, and the lesser offense of robbery became a part of the greater offense of murder; and when this defendant was acquitted under the indictment charging him with murder * * *, this necessarily included the lesser offense of robbery by force upon him, " the person named, and the defendant "cannot now be tried for a second time for the same offense without denying to him the right guaranteed to him" under the Federal and State Constitutions as set out above.
The State did not demur to the plea, but filed a traverse denying the averments of fact. On a trial of this special...
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