Kryder v. State, 19186

• Decision Date: 14 February 1956
• Docket Number: No. 19186,19186
• Citation: 91 S.E.2d 612,212 Ga. 272
• Parties: James Pope KRYDER v. The STATE.
• Court: Georgia Supreme Court

Page 612

91 S.E.2d 612

212 Ga. 272

James Pope KRYDER v. The STATE.

No. 19186.

Supreme Court of Georgia.

Feb. 14, 1956.

Rehearing Denied March 1, 1956.

Syllabus by the Court.

1. The motion to quash the indictment was properly denied.

2. This court will not pass on the constitutionality of a so-called law when it is challenged by a party whose rights are not affected thereby, nor until an attempt is made to exercise some right claimed under the provision sought to be attacked affecting the rights of the attacking party.

3. Assignments of error on th order overruling special demurrers to the indictment, not being argued in this court, are considered as waived.

4-5. Special grounds 4, 5, 6, 7, and 8 of the motion for a new trial were properly overruled.

6. The evidence supports the verdict.

James R. Venable, Atlanta, Al. Jennings, Walter B. Fincher, Margaret Hopkins, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Eugene L. Tiller, Frank S. French, Atlanta, for defendant in error.

ALMAND, Justice.

James Pope Kryder was indicted in Fulton Superior Court for the offense of burglary. The indictment charged that, prior to committing the offense therein set out, the defendant had been convicted and sentenced to confinement in the penitentiary, for three felony cases, in the courts of this State, and for two felony convictions in the (United States) Northern District Court of Georgia. His motion to to quash the indictment, and certain special demurrers thereto, were overruled; and on the trial before the court and a jury the defendant was convicted and sentenced to serve a term of not less and not more than twenty years. His motion for a new trial being denied, he brings the case to this court by a bill of exceptions, in which he assigns error on the order denying his motion to quash the indictment, on the overruling of his special demurrers to the indictment, and on the order denying him a new trial.

1. The contentions in the motion to quash the indictment, that the allegations therein as to previous convictions (1) are prejudicial as tending to place the defendant's character in issue, (2) deprive him under the Federal and State Constitutions of a fair and impartial trial by a jury, and (3) that he will be twice placed in jeopardy for the same offense, are all without merit. Tribble v. State, 168 Ga. 699(1), 148 S.E. 593; Reid v. State, 49 Ga.App. 429(1, 2, 3), 176 S.E. 100; McDonald v. Commonwealth of Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542; Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917. Code, § 38-202 provides that the general character of parties, and especially their conduct in other transactions, are irrelevant unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct. In Code, § 27-2511 (which first appeared in the Penal Code of 1833), the legislature declared that, as to defendants charged with a felony punishable by labor in the penitentiary, evidence of a previous conviction and sentence for a felony is relevant evidence on the question of the punishment to be inflicted in the event of a conviction for a second felony. This statute relates only to procedure in the trial of a criminal case, and does not affect any vested privilege or constitutional right of the defendant. Melton v. State, 180 Ga. 104(1), 178 S.E. 447.

2. In the motion to quash it is also contended that the act of 1953, Ga.L.1953, Nov.-Dec.Sess., p. 289, which amended Code, § 27-2511, this Code section as thus amended now appearing as Code Ann. 1954 Supp. § 27-2511--by adding to said section the following: 'provided, however, any person who, after having been three times convicted under the laws of this State of felonies, or under the laws of any other State or of the United States, of crimes which, if committed within this State would be felonious, commits a felony within this State other than a capital felony, must, upon conviction of such fourth offense, or of subsequent offenses, serve the maximum time provided in the sentence of the jury of the judge based upon such conviction, and shall not be eligible for parole until the maximum sentence has been served. For the purpose of this section conviction of two or more crimes charged on separate counts of one indictment or information or in two or more indictments or informations consolidated for trial, shall be deemed to be only one conviction,' is unconstitutional. The constitutionality of this amendment is challenged on several grounds, one of them being that the provisions that a defendant so convicted must serve the maximum time provided in the verdict of the jury and 'shall not be eligible for parole until the maximum sentence has been served' is in conflict with art. 5, sec. 1, par. 11 of the Constitution of 1945,...