Hines v. State, 20238.

• Decision Date: 05 March 1930
• Docket Number: No. 20238.,20238.
• Citation: 152 S.E. 616,41 Ga.App. 294
• Parties: HINES . v. STATE.
• Court: Georgia Court of Appeals

41 Ga.App. 294

152 S.E. 616

HINES .

v.STATE.

No. 20238.

Court of Appeals of Georgia, Division No. 1.

March 5, 1930.

Syllabus by the Court.

Error from Superior Court, Chattooga County; James Maddox, Judge.

Will Hines was indicted for manufacturing intoxicating liquors. Defendant's plea of autrefois acquit was overruled, and defendant brings error.

Reversed.

The indictment in this case alleged that the acccused did "manufacture spirituous, alcoholic, malt, and intoxicating liquors." When the case was called for trial the de-fendant filed a plea of autrefois acquit as follows: "1. That on the 1st day of July, 1929, he was placed on trial in the city court of Summerville, which court had jurisdiction to hear and determine the cause, on a legal and valid accusation charging the defendant with the offense of attempting to manufacture intoxicating liquors. A copy of said accusation is hereto attached, marked Exhibit A, and made a part of this plea. 2. That the issues presented by said accusation and the defendant's plea of 'Not Guilty' thereto, were, on said 1st day of July, 1929, referred for determination to a jury in said City Court of Summerville, which said jury had been legally empannelled, sworn, and qualified to try said defendant. Said jury returned a verdict in said cause, on said 1st day of July, 1929, finding the defendant not guilty of the offense charged against him in said accusation. 3. That offense charged against the defendant in said accusation in the City Court of Summerville, in which he was acquitted, was the same identical transaction as the offense charged against him in this cause, and dependent upon the same facts and the same evidence. 4. The defendant, having been tried and acquitted of an offense involving the same identical transaction and dependent upon the same state of facts as the above entitled cause, has, therefore, been acquitted of the offense charged against him in the indictment in this cause, and cannot again be placed in jeopardy for this same transaction." The solicitor general filed a demurrer to this plea, as follows: "1. That said plea is insufficient, as a matter of law, to entitle the defendant to discharge on his plea of autrefois acquit, for that the same does not set up facts upon which a plea of autrefois acquit may be based. 2. For further grounds of demurrer the State shows that the accusation upon which the said Will Hines was tried in the City Court of Summerville, charged the offense of misdemeanor, to wit: Attempting to manufacture liquor, and that said City Court of Summerville was vested by law with authority to try misdemeanor cases only, and had no jurisdiction to try and determine felony cases, and the instant case, being a felony charge, could not have been tried in said City Court of Summerville for want of jurisdiction of said City Court of Summerville. 3. For further grounds of demurrer the State says that said verdict of 'not guilty' on said accusation in said City Court of Summerville, was had and made upon motion of defendant Will Hines for a directed verdict of not guilty, which motion was granted by the court, and said verdict of not guilty then and there directed by the court at the instance of and upon motion of the defendant Will Hines." The demurrer to the plea was sustained, and the accused excepted.

Rosser & Shaw, of LaFayette, for plaintiff in error.

M. Neil Andrews, Sol. Gen., of LaFayette, and Dean Owens, of Rome, for the State.

BLOODWORTH, J. (after stating the foregoing facts).

The court erred in dismissing the plea of autrefois acquit. In the case of Lock v. State, 122 Ga. 730, 50 S. E. 932, the second headnote is as follows: "A plea of autrefois acquit is legally sufficient when it alleges that the offense in the second indictment is identical with the offense which was or could have been made the subject of investigation under the first indictment, and further alleges an acquittal under the first indictment in a court of competent jurisdiction." In the opinion in that case Justice Evans said at page 732 of 122 Ga., 50 S. E. 932, 933: "The Constitution of this state guarantees that 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. Civ. Code 1895, § 5705. When one is put on trial for an offense, and his plea is that the same facts were involved in another charge against him, for which he has been tried by a court of competent jurisdiction, he may plead the final result of the former trial in bar of the second proposition. In determining whether the first case is a bar to the prosecution of the second, the test is whether or not the same transaction is involved; that is, whether both indictments and the investigation that may be had thereunder relate to the same offense. Gully v. State, 116 Ga. 530, 42 S. E. 790. In the case just cited the prior adjudications on the subject were all brought under review, and the conclusion was reached that the accused could successfully defeat a prosecution under the second indictment by identifying the offense charged in that indictment with the offense which was or could have been made the subject of investigation under the first indictment. Among the cases reviewed was that of Holt v. State, 38 Ga. 187. In all essential particulars the facts of that case and those of the case in hand are identical. Holt was indicted for the offense of assault with intent to murder, and was under that indictment absolutely discharged, and acquitted of the offense therein charged. Subsequently h...