Jenkins v. State
| Decision Date | 20 January 1914 |
| Docket Number | 5,351. |
| Citation | 80 S.E. 688,14 Ga.App. 276 |
| Parties | JENKINS v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Section 175 of the Penal Code of 1910 creates a crime but provides no punishment for its commission
In this state "a crime or misdemeanor shall consist in the violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence." The punishment is not a part of the crime, but is simply a consequence flowing from its commission.
The crime denounced by section 175 of the Penal Code of 1910 being one involving moral turpitude, conviction thereof deprives the offender of the right to register, vote, or hold an office of honor or trust in this state.
The authorities are in conflict as to whether at common law the plea of autrefois convict must set out a valid judgment of conviction, or whether it is sufficient if a verdict of guilty on a valid indictment be shown. Under the practice prevailing in this state, it would seem that, if the plea showed a valid verdict upon a good indictment, it would not be demurrable merely because it was not alleged that a valid judgment of conviction had been entered upon the verdict.
The principle of the common-law maxim, "Nemo debet bis vexari eadem causa," as applied to criminal prosecutions, has been expressed in our Constitution in the following language: "No person shall be put in jeopardy of life or liberty more than once for the same offense, save on his own motion for new trial, after conviction, or in case of mistrial." Liberty, as here used, is not confined to detention of the person, but embraces every inalienable right of the citizen. It includes freedom of locomotion, freedom of contract, and freedom to do and perform all those things which are regarded as inalienable rights; and, as applied to male citizens who are otherwise qualified, it includes the right to vote and hold any office of honor or trust in this state (citing Words and Phrases, vol. 5, p. 4126; see, also vol. 8, pp. 7705, 7706.]
It follows that where one has been convicted of a crime involving moral turpitude, with the consequent loss of the right to vote and hold office in this state, he is deprived of a liberty, within the meaning of the constitutional guaranty, and cannot be again put on trial, under another indictment, charging an offense of the same nature, growing out of the same transaction, even though the first conviction did not subject him either to fine or imprisonment.
The foregoing is true notwithstanding, upon a direct bill of exceptions assigning error on the imposition of sentence upon the first indictment, the convict procured a decision in the reviewing court that the sentence imposed was illegal. Filing an objection to the imposition of sentence and securing a reversal of the judgment refusing to sustain the objection is neither within the letter nor within the spirit of the exception to the constitutional guaranty which denies the right to plead former jeopardy in case a new trial is procured by the convict on his own motion. A new trial is a re-examination of the facts in issue and cannot be had so long as the verdict remains unreversed.
Error from City Court of Elberton; Geo. C. Grogan, Judge.
Will Jenkins was convicted of larceny, and brings error. Reversed.
See also, 79 S.E. 861.
Pulliam Proffitt, of Elberton, for plaintiff in error.
Boozer Payne, Sol., of Elberton, for the State.
The plaintiff in error was convicted, and brought the case to a previous term of this court. At that time he made the point that the indictment was not a good indictment for larceny from the house, under section 176 of the Penal Code, because it failed to allege that the goods were "privately" stolen. He contended that, if the indictment was sustainable at all, it was good only under section 175, and that no penalty was provided by law for the violation of this section. Following the decision of the Supreme Court in Kimbrough v. State, 101 Ga. 583, 29 S.E. 39, this court held that the indictment was good under section 175, though it omitted the word "privately," and that it could not be sustained under section 176. We held further that no penalty was prescribed for a violation of section 175, and that for this reason the court erred in overruling the objection of the accused to the imposition of sentence. 13 Ga.App. ___, 79 S.E. 861. The effect of this decision was that the accused could be indicted and tried under section 175, but that he was not subject to be sentenced either for a felony or a misdemeanor. The questions then decided arose upon a demurrer to the indictment, and upon the overruling of an objection to the imposition of sentence as for a misdemeanor. After the decision just referred to was rendered, the plaintiff in error was arraigned under an indictment charging him with simple larceny, growing out of the same transaction as that disclosed in the first indictment. He pleaded the former conviction in bar of the prosecution. His plea was stricken on demurrer, and he excepted.
1. The question presented by the record is both novel and interesting and is one of first impression in this state. Were it not for the decision of the Supreme Court in Kimbrough v. State, 101 Ga. 583, 29 S.E. 39, we would be inclined to hold that section 175 of the Penal Code is merely definitive and was not intended to create an offense separate and distinct from larceny from the house, as defined in section 176. That decision is, however, controlling authority and must be followed. It is there directly held that an indictment under section 175 is good, and that a violation of that section constitutes a crime. The crime thus created is not denominated a misdemeanor, and no felony punishment is prescribed. This being so, we were compelled to hold, when the question was presented to us in the former case, that the sentence imposed by the court on the former trial was illegal and should have been set aside.
2. In view of the decision in Kimbrough v. State, we need not enter into any metaphysical discussion of the question whether there can be such a thing as a crime, unless some penalty is provided for the commission of the act claimed to be a crime. According to Blackstone, every person is bound in conscience not to do an act which is malum in se, and the doing of every such act is a crime, whether it is so declared or not. 1 Bl. Com. 56-58. In this state "a crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence." Penal Code, § 31. Our law, therefore, recognizes no crimes save such as consist in the violation of a public law. There are no common-law offenses in this state. It is to be noted, however, that, under the Code definition of a crime, neither the imposition of a fine nor sentence of imprisonment is essential to make the act a crime. Penalty is no part of the crime but is simply a consequence flowing from its commission. In some of the states penalty is an ingredient in the crime by express provision of law, but, as has been seen, this is not true in this state.
3. It being settled that the original indictment under section 175 charged a crime, and that crime being one involving moral turpitude (that is to say, a crime which is malum in se) there is a penalty attached to the commission of the act, notwithstanding it is not followed by either fine or imprisonment. By express provision of our law, a person convicted of larceny, unless pardoned, "shall not be permitted to register, vote, or hold an office, or appointment of honor or trust in this state." Penal Code, § 1077. It will thus be seen that serious consequences in...
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