Holt v. State

• Decision Date: 31 December 1868
• Citation: Holt v. State, 38 Ga. 187 (Ga. 1868)
• Parties: JOHN HOLT, plaintiff in error. v THE STATE OF GEORGIA,defendant in error.
• Court: Georgia Supreme Court

38 Ga. 187

JOHN HOLT, plaintiff in error. v THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1868.)

Autre fois acquit. Demurrer. Decided by Judge Knight. Gilmer Superior Court. October Term, 1868.

At October Term, 1865, of said Court, John Holt and six others were indicted for assault with intent to murder. The indictment charged that, on the 10th day of August, 1865, in said county, said defendants, with a loaded pistol, willfully, feloniously, and of their malice aforethought, assaulted Margaret Ral-ston, and shot at her, etc., with intent, then and there, to murder her. It was unexceptionable as to form.

At May Term, 1866, of said Court, five of the defendants, including Holt, demanded a trial, and a jury being empanelled, and no trial being had at that term, the Court ordered that they be tried during the next term, or discharged and acquitted of said offence. At the October Term, 1866, there *being proper juries to try said case, the defendants being ready, and demanding trial, and no trial being had, the Court ordered that said defendants "be absolutely discharged and acquitted of the offence charged in the said indictment."

At May Term, 1867, another indictment was found, charging six persons of the same names, (as those before charged,) with the offence of aggravated riot. It was in proper form, specifying that they, on the 10th day of August, 1865, in said county, feloniously and maliciously, with a loaded pistol, struck and beat and shot at one Margaret Ralston, with a pistol, said pistol being loaded with gun-powder and one leaden ball, being an instrument likely to produce death, etc. Upon this last indictment, three of said five defendants were arraigned for trial. They plead the former indictment, and orders; that they were the identical persons who had been so discharged and acquitted, and that the felony charged in said last indictment, was the identical felonycharged in said first indictment, and not another and different felony, and also plead not guilty.

The Solicitor General demurred to the plea of former acquittal, and after argument, the Court sustained the demurrer, and overruled that plea, upon the ground that it was no bar to said trial. The case was then continued, as to Holt, (the other two were tried, and found not guilty,) and he now assigns as error the order overruling said plea of former acquittal.

Geo. D. Rice and Jas. R. Brown, (by the Reporter,) for plaintiffs in error, cited 2d Hale's P. C, 244; Rix v. Shern, 2d C. & P., 634; State v. Ray, 1st Rice, 1; Roberts & Copenhaven v. the State, 14 Ga. R., 8; 3d Gr. Ev., sec. 36, and note, and State v. Shepard, 7 Conn., 54.

S. C. Johnson, Solicitor General, for the State.

*WARNER, J.

The error assigned to the judgment of the Court below is, in sustaining the demurrer to the defendants' plea of former acquittal by the order and judgment of the Court, as provided by the 4554th section of the Code. In the first indictment, the defendants are charged with shooting at Margaret Ralston with a loaded pistol, on the 10th day of August, 1865,...