Lampkin v. State

• Citation: 13 S.E. 523,87 Ga. 516
• Parties: Lampkin v. State.
• Decision Date: 13 July 1891
• Court: Supreme Court of Georgia

13 S.E. 523

87 Ga. 516

Lampkin v. State.

Supreme Court of Georgia

July 13, 1891

Syllabus by the Court.

1. The misjoinder of offenses in the same count of an indictment is matter of form, and, under the Code of Georgia, is no ground for arresting judgment upon a verdict finding the accused guilty in express terms of one of the offenses so charged.

2. Robbery by force and robbery by intimidation are not two offenses, but different grades of the same offense, and both may be charged in the same count.

3. Robbery by intimidation was a felony prior to the act of March 20, 1866, and was not reduced to a misdemeanor by that act. Consequently it is still a felony. Where a bill, as passed by the general assembly, applies by number to one section of the Code, and, as enrolled, signed by the presiding officers of the two houses and approved by the governor, the completed act applies by number to another section of the Code, and the two sections relate to different offenses, the first to robbery and the second to rape, and where a subsequent act recognizes the law of rape as changed but not the law of robbery, the result is that no change is effected in the law of robbery.

4. On a trial for robbery committed in a certain hotel, it is competent for the state to prove by the prosecutor that he hurried down from the hotel, and met a policeman on the street, to whom he made complaint that he had been robbed and by the policeman that the prosecutor came down to him on the street, and said that he had been robbed at the hotel that a certain named person had taken his money, and that the accused was present. The evidence indicating that all this took place immediately after the criminal act, and as a natural and probable consequence therefrom, it was admissible as a part of the res gestae.

5. Although the prosecutor was intoxicated when he was robbed it was not competent evidence for the accused that three nights previous-thereto he was in a certain saloon intoxicated, and complained that two men were trying to rob him, but that he was prepared for them, and only carried two or three dollars with him. This was immaterial to the issue on trial, and was not admissible to discredit the prosecutor, who had testified that he did not go to the saloon, and had not made the statements attributed to him. Nor was it admissible because tending to show that he was in a state of drunkenness for several days prior to the alleged robbery, and while in that state was under the delusion that he was being robbed.

6. The presiding judge was warranted in finding, upon the affidavits adduced, construing them all together, that the juror alleged to be incompetent had not heard any of the evidence at the preliminary trial in the justice's court, and consequently that, whether he had formed and expressed an opinion or not, he might be a competent juror, his apparent incompetency, as indicated by some of the affidavits taken separately, being answered and explained by the others and the attendant circumstances.

7. When facts, and a witness by whom they can be proved, to manifest the incompetency of a juror, come to the knowledge of counsel for the accused, after the jury are sworn, but before any further step in the trial has been taken, the question of the juror's competency should then be raised and submitted to the court. It is not sound practice for counsel to remain silent, take the chances of acquittal for his client, and then, after conviction, urge the juror's incompetency as a ground for setting the verdict aside.

8. There was evidence to support the finding, and the newly-discovered evidence is not such as to require a new trial.

Error from superior court, Clark county; N. L. Hutchins, Judge.

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