Jones v. State

• Decision Date: 17 July 1902
• Citation: 42 S.E. 271,115 Ga. 814
• Parties: JONES v. STATE (two cases).
• Court: Georgia Supreme Court

42 S.E. 271

115 Ga. 814

JONES v. STATE (two cases).

Supreme Court of Georgia

July 17, 1902

Syllabus by the Court.

1. The supreme court will dismiss the writ of error based upon a bill of exceptions, assigning error upon the overruling of a demurrer to an indictment, when it appears that after such bill of exceptions had been sued out a nolle prosequi was, in the court below, entered upon the indictment.

2. It does not follow, because a criminal case was called for trial on the day after that upon which the bill of indictment was returned, that the accused had not had sufficient opportunity to prepare for his defense, when it appears that he had for some time been under indictment for the identical offense charged in that indictment, and that it in fact took the place of a previous indictment upon which a nolle prosequi had been entered.

3. An indictment good in substance will not be quashed upon a demurrer which in mere general terms characterizes it as "vague, uncertain, and indefinite," without pointing out any particulars in which it is so.

4. The words, "contrary to the laws of said state, the good order, peace, and dignity thereof," appearing at the conclusion of an indictment, though apparently, in their grammatical connection, referring to a preceding statement therein not relating to the commission of the act constituting the offense charged, will be held to apply to that act.

5. A special plea in abatement of an indictment, alleging the pendency against the accused of another indictment for the same offense, is certainly not good when the plea itself discloses that a nolle prosequi has been entered upon the former indictment.

Error from superior court, Dooly county; B. D. Evans, Judge.

Lee B Jones was convicted of embezzlement, and brings error on two bills of exceptions. Writ of error in one case dismissed, and judgment affirmed in the other.

Allen Fort, W. J. Grace, and Anderson, Anderson & Thomas, for plaintiff in error.

F. A Hooper, Sol. Gen., for the State.

LUMPKIN P.J.

Lee B. Jones was indicted, in Dooly superior court, for embezzlement. On the 13th day of March, 1902, during the February term of that court, a demurrer to the indictment, which he had filed, was overruled; and thereupon he sued out a bill of exceptions in which the only assignment of error was upon the refusal of the trial court to sustain the demurrer. This bill of exceptions was certified on the 20th day of March, 1902. On the 25th day of that month, a special term of Dooly superior court was convened for the trial of criminal cases, and the solicitor general, with the consent of the presiding judge, entered a nolle prosequi upon the indictment, and immediately presented the case anew to the grand jury in session at this special term, who on that date returned a new indictment for the same offense.

This indictment reads as follows: "Georgia, Dooly county. The grand jurors selected, chosen and sworn for the county of Dooly, to wit: *** In the name and the behalf of the citizens of Georgia, charge and accuse Lee B. Jones with the offense of embezzlement; for the said Lee B. Jones, on the 13th day of April, in the year 1898, in the county aforesaid, did then and there unlawfully and with force and arms, being then and there the president of the Naval Store and Lumberman's Bank, a corporation under the laws of Georgia, and located in said county and state, and having as such president the general management of the business and control of the funds of said corporation, and having as such president custody and control of money belonging to said corporation, did receive as such president, at divers times between May 2d, 1896, and April 15th, 1898, various sums of money, the property of said corporation, aggregating the sum of $45,000, then and there entrusted to him as such president, to be applied by him to the use and benefit of said corporation only; did then and there embezzle, steal, secrete, and fraudulently take and carry away said sum of $45,000 by then and there taking same out of said bank from time to time from May 2d, 1896, to April 13th, 1898, in cash, by then and there drawing out said moneys from said bank from time to time from May 2d, 1896, to April 13th, 1898, by checks, by then and there making and causing to be made false entries in the books of said bank to cover the sums so secreted, stolen, and embezzled from said bank, and by other means unknown to the grand jurors, and all with intent to embezzle, steal, secrete, and fraudulently take and carry away the same. The fact that said Lee B. Jones had committed the above acts of embezzlement, and had stolen, secreted, and carried away said $45,000, as above described, was not known until April 13th, 1898, but by the false and fraudulent conduct of said Lee B. Jones all these facts were concealed until said date,--April 13th, 1898. The said Lee B. Jones having been indicted for this same offense, charged as having been committed at the same time, by the grand jury of Dooly county, at the February term, 1900, and the indictment then and there returned against him having been in open court, on the _____ day of March, 1902, nolle prossed on motion of the solicitor general on the grounds of certain informations: [?] Now, within six months from the date of said nolle prosequi, this indictment is preferred and returned. Contrary to the laws of said state, the good order, peace, and dignity thereof. F. A. Hooper, Solicitor General. E. W. Bullock, Prosecutor."

It does not...