Jones v. The State Of Ga.
| Decision Date | 31 January 1876 |
| Parties | Poney Jones, plaintiff in error. v. The State of Georgia, defendant in error. |
| Court | Georgia Supreme Court |
Criminal law. Indictment. Autrefois acquit. Before Judge Knight. Lumpkin Superior Court. September Term, 1875.
Reported in the opinion.
Wier Boyd; Estes & Boyd, for plaintiff in error.
C. D. Phillips, solicitor general, for the state.
The defendant was indicted for simple larceny and put on trial. The indictment was nol. prossed without his consent, on the ground that the day on which the offense was laid was an impossible one, being subsequent to the trial. He was then indicted for burglary in the same transaction, and pleaded his former jeopardy on the indictment for larceny. The court overruled the plea and he was convicted of the burglary. A motion for a new trial was made on this and other grounds disclosed in the record. That motion was refused by the court, and this refusal to grant the new trial is the error complained of.
In the view we take of the case, it is unnecessary to consider any ground of the motion except the overruling this plea of former jeopardy.
1. The first question is, was the indictment for larceny good, *or was it bad, because an impossible clay was laid. This is not an open question with us. It had been ruled before and was ruled again at the last term in the case of Williams v. The State. We there held the indictment good.
2. This indictment being good, the defendant was in jeopardy; his case had gone to the jury and could not be withdrawn without his consent at the option of the state by entering a nolle prosequi. Such withdrawal was equivalent to an acquittal of the charge of simple larceny: Reynolds v. The State, 3 Georgia Reports, 53, 69; Code, section 4649.
3. His plea of former jeopardy alleges that the prosecution for burglary is on the same transaction or for the same offense. The demurrer admits its truth. If true, he was about to be tried for the same offense, the same transaction, under a different name. It has been repeatedly held by this court that this cannot be done under our constitution: Code, sec. 5000; Roberts & Copenhagen v. The State, 14 Georgia Reports, 8, 11, 12; Copenhagen v. The State, 15 Georgia Reports, 266; Holt v. The State, 38 Ibid., 187, 189, 190; Black v. The State, 36 Ibid., 447, 450;see also, 1 Bishop\'s Crim. Law. 683, 688, 689; Hopkins\' Annotated Penal Laws, secs. 1574, 1575, 1577, et seq. We think, therefore, that...
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...citations of cases under catchword, 'Time' of Code, § 27-701. This rule obtains even where an impossible date is alleged, Jones v. State, 55 Ga. 625(1); McMath v. State, 55 Ga. 303, 304(5); Walker v. State, 12 Ga.App. 91, 95, 76 S.E. 762; or where a date subsequent to the indictment, presen......
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