Jackson v. The State Of Ga.

• Citation: 51 Ga. 402
• Parties: Thomas O. Jackson, plaintiff in error. v. The State of Georgia, defendant in error.
• Decision Date: 31 January 1874
• Court: Georgia Supreme Court

51 Ga. 402

Thomas O. Jackson, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Criminal law. Jury. Assault with intent to murder. Officers. Before Judge Pottle. Hancock Superior Court. October Term, 1873.

Jackson was placed on trial for the offense of assault with intent to murder, alleged to have been committed upon the person of one James M. Achord, on December 28th, 1872. Upon arraignment the defendant pleaded specially in bar as follows:

At the last term of the court the defendant was placed on trial for the same offense and upon the same indictment upon which he is now arraigned, when he waived arraignment and filed a plea of not guilty. After the case had been submitted to the jury, the solicitor general, without the consent of the defendant, took the following order:

"It appearing to the court that James Bass, who was qualified as a juror in this case, served upon the grand jury which found the true bill, it is, upon motion of the solicitor general, ordered by the court that the case be withheld from consideration by the jury, and continued for trial."

This order was duly entered of record on the minutes of the court, thereby denying to the defendant the right to have said jury, to whom his case had been regularly submitted for trial, make a verdict in the same. He therefore pleads the *facts aforesaid in bar to the further progress of the case, and prays that he be discharged and acquitted of the said offense.

Upon demurrer, said plea was stricken, and defendant excepted.

It appeared, by admission of counsel, that at the time the aforesaid order was taken, all the juries had been discharged except the one impanneled to try this case, and that said order was taken in the presence of the defendant and his counsel, and without objection from either.

The defendant pleaded not guilty. Upon the trial of the issue thus formed, substantially the following evidence was introduced:

James M. Achord, sworn: The defendant made an assault upon him in Hancock county, at Mr. Johnson's grocery, on December 28th, 1872. He shot witness with a pistol, the ball lodging in his arm, near the left elbow. This shot was fired whilst witness was fighting with McCook, and whilst his back was towards defendant. Witness then turned towards defendant, when he fired a second shot which struck witness in or near the knee of his left leg; defendant started to run after firing the second shot, witness following him to the door of the grocery; he had had no words or difficulty with the defendant prior to the firing of these shots; when witness entered the grocery, a man by the name of McCook, was in there singing, "At the roll-call, I'll be there;" he had one foot on the counter, and was dancing with the other on the floor; witness was acting at the time as the deputy marshal of the town of Sparta; he requested McCook to desist, stating that he would break the glass; saw that McCook was trying to raise a difficulty, in which he subsequently succeeded, and witness went round to shut the windows, in order to get everybody out of the house; acting upon the information that McCook had cut a negro, he went back and asked him what he meant by cutting up men in that way; told him to shut his knife and give it to witness, or to put it up; he asked where Mr. Sunham, the marshal of the town of Sparta, was; witness replied that it did not matter; he then drew *and opened his knife, saying that he did not shut his knife for any one, and started at witness; thought it was McCook's intention to cut him, so he struck him with his stick; he started again towards witness with his knife drawn back; witness struck him a second time with his stick, when he was shot from behind; supposed that the defendant fired this shot; saw the pistol when defendant fired the second time; the defendant fired a third shot at him, but it failed to take effect; when he was shot the second time he drew his pistol; did not see McCook lay his knife on the counter, nor hear him say he gave it up but not because he was afraid. Did not, when McCook laid his knife on the counter, turn to a crowd and say, "come in boys, here he is;" did not see him put his knife on the counter at any time.

Dr. E. O. Alfriend testified as to the dangerous character of the wounds, etc.for the defendant.

Joseph B. Knowles, sworn: Was present when the difficulty occurred between Achord and McCook; was standing at the corner of the counter next to the partition; McCook was at the right hand of the witness; Achord came into the room with, a pistol in his hand, which he put to McCook's breast, and said, "give up." McCook replied, "I give up." Achord said, "lay that knife down." McCook laid it down, but said, "I did not do it because I was afraid." Achord then said, "come in boys, " upon which several negroes, some of whom were armed with pistols, came in. As they entered the room, McCook picked up his knife. Achord then struck him over the head with his stick, and said, "here he is, boys;" struck him three or four licks. McCook did not advance upon Achord; he seemed to be warding off the blows; the stick used was a weapon which would have killed a man or a mule; a pistol was fired while Achord was striking with the stick; "the boys" were coming in before a blow was struck; three or four shots were fired in the room; Achord did not fire.

*McCook corroborated Knowles. He stated, in addition, that he was very drunk at the time of the difficulty.

Other evidence was introduced by the state, not material here. It mainly tended to show that McCook' was too drunk at the time of the difficulty to have known anything about it.

The court, amongst other things, charged the jury as follows: "If, on the other hand, you find from the evidence that Achord was an officer of the law, I charge you that the case stands upon a different footing. If you believe from the evidence that Achord was acting in the capacity of a deputy marshal of the town of Sparta, the law presumes that he was rightfully in office as such. I further charge you, that as such officer, he had a right to interfere to prevent a breach of the peace between McCook and any other person, and if in the execution of his official authority he was obstructed or interfered with by the defendant, and in this interference the defendant did make the assault with the intent to kill the prosecutor, Achord, it would have been murder if Achord had died, unless you believe that the defendant had some provocation other than is set up in this case."

To this charge the defendant excepted.

The jury found the defendant guilty. He moved for a new trial upon the ground that the court erred in each of the aforesaid rulings to which exception was taken. The motion was overruled, and defendant excepted.

J. T. Jordan, for plaintiff in error.

1st. Jackson cannot a second time be put on trial. 1st. His case was before submitted to the jury: Newsom v. State, 2 Ga., 60. 2d. It could not then be withdrawn: Reynolds v. State, 3 Ga., 53; 1 Wharton's Crim. Law, 588. Defendant in criminal case waives nothing unless it is expressed: Hoy v. State, 39 Ga.. 718.

2d. Jackson justified in defending McCook: Code, 4330; Roscoe on Crim. Ev., 765; 2 Wharton's Crim. Law, secs. 1019-20; Rust on Homicide, 32, 34. 3d. Jackson not culpable for resisting an officer, unless the *evidence shows he knew Achord was an officer endeavoring to preserve the peace: 2 Wharton\'s Crim. Law, sec. 1290.

Samuel Lumpkin, solicitor general, for the state.

1st. Special plea of once in jeopardy properly overruled. The case was not submitted to a legal jury; case not submitted till full and legal jury is sworn: 1 Bishop on Criminal Law, (5th edition,) section 1014, (659.) This...