Lee v. State

• Court: Georgia Court of Appeals
• Writing for the Court: GARDNER, Judge.
• Citation: Lee v. State, 66 Ga.App. 613, 18 S.E.2d 778 (Ga. App. 1942)
• Decision Date: 30 January 1942
• Docket Number: 29286.
• Parties: LEE v. STATE.

18 S.E.2d 778

66 Ga.App. 613

LEE v. STATE.

No. 29286.

Court of Appeals of Georgia, Division No. 1.

January 30, 1942

Rehearing Denied Feb. 14, 1942.

Syllabus by the Court.

The indictment on which the defendant was tried contained 6 separate counts charging the defendant with the offenses of assault and battery on six different persons on different dates. Before trial count 1 was nol-prossed. The defendant was convicted on the remaining counts. A motion for new trial was filed on the usual general grounds which was amended by adding five special grounds. The court denied the motion, except as to count 4, on which a new trial was granted. To this judgment the defendant excepted.

John H Hudson and H. A. Allen, both of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., Durwood T. Rye, E. E. Andrews, and Daniel Duke, all of Atlanta, for defendant in error.

GARDNER Judge.

1. The only assignment of error on the general grounds is concerning the verdict in connection with the judgment granting a new trial as to count 4 of the indictment. It is contended that the verdict was general and indivisible, and that since there was not sufficient evidence to support count 4, the verdict was bad as to the other counts.

The court charged the jury: "It is your duty to find a verdict on each charge separate and independent of the others. It is your duty to find a verdict of guilty or not guilty on each of the five counts which you are trying," and "You are to consider each charge, each count separate from the others and make a verdict on each count, just as though you were trying one count at one time and others at other times." The court further charged: "As I told you a while ago, you are to consider each count separately under all of the evidence applicable to each count, and find a verdict of guilty or not guilty upon each count, separately. You need not consider count 1 at all. If you should find a verdict of guilty beyond a reasonable doubt upon any count, then you should write a verdict to that effect. If you should find a verdict of guilty upon all counts, you should name each one of the counts upon which you do find the defendant guilty. If you find a verdict of not guilty, or if you have a reasonable doubt of his guilt upon either or all counts, then of course you should find a verdict of not guilty as to each such count, and the form of your verdict would be, if you have found him guilty on one or more counts 'We the jury, find the defendant guilty on count 2, or 4, or 6'; or whatever counts you do find a verdict of guilty on, specifying the counts on which you find a verdict of guilty. If you find a verdict of guilty on some of the counts and not guilty on some of the counts, you could say, after the language I have just given you 'and we find the defendant not guilty on counts (blank) and (blank),' and so forth, naming those counts. If you find a verdict of not guilty on all counts, you could merely write a verdict 'We, the jury, find the defendant not guilty'; that would mean upon all counts." In conformity with the court's charge, the jury returned the following verdict: "We, the jury, find the defendant guilty on counts 2, 3, 4, 5 and 6".

In denying the motion as to counts 2, 3, 5, and 6 and granting the motion as to count 4 of the indictment, the learned trial judge rendered an able, written opinion which evidences much research and clarity and correctness of reasoning. We quote it here: "The court is of the opinion in this case that the motion should be sustained as to count 4 and overruled as to counts 2, 3, 5, and 6. An order will be entered accordingly. The question has arisen, that when several distinct crimes are charged in separate counts, as in this case, in an indictment, as to whether or not the insufficiency of the evidence as to one count, as in this case, automatically and by reason thereof demands a new trial as to the other counts. I have reached the conclusion that such does not largely result.

"There are many cases holding that where a general verdict is rendered on such an indictment, and if the evidence be insufficient to convict as to one of the counts, then a new trial results as to all of the counts. This, however, does not seem to be the rule adopted by our appellate courts in every case, and does not seem to be correct as to the facts of this case. The verdict does not seem to me to have been a general verdict on the entire indictment, but rather a general verdict on five separate and distinct counts, and therefore, five separate and distinct verdicts. Code, § 27-2301 provides for 'a general verdict of "guilty" or "not guilty."' It also provides: 'verdicts are to have a reasonable intendment, and are to receive a reasonable construction, and are not to be avoided unless from necessity.' This section evidently contemplated an indictment where only one crime was charged, and could not have contemplated only a verdict of guilty or not guilty on the entire indictment where several crimes were charged. This would seem to be true under decisions of our appellate courts, authorizing and, in fact, approving verdicts which specify the count upon which the verdict of guilty or not guilty is rendered. Therefore, when the rule became established that separate crimes could be joined in one indictment, it would seem that the above Code section should be construed as applying to each one of those counts as separate and independent cases, and that 'a general verdict' should be rendered as to each one of the separate cases.

"Tooke v. State, 4 Ga.App. 495, at page 504, 61 S.E. 917 [921], holds: 'On the other hand, where the same indictment really charges a number of distinct and separate transactions, it becomes the duty of the trial court to conduct the case and of the appellate court to review it just as if it were a consolidation of separate indictments; and, where the defendant has been convicted generally--that is to say, on all of the counts--or specifically on more than one of them--it was the course at common law to sentence the defendant on each count, and these sentences might be cumulative.' This case also holds that a jury may legally acquit as to some and convict as to others, and it further holds 'better practice is to require the jury to render a separate verdict as to each count contained in the indictment.' This case seems to have been cited twenty-three times with approval of the general rule laid down in the first quotation, thereby establishing the 'separate case' theory. In the case of McHenry v. State, 58 Ga.App. 410, 198 S.E. 818, two misdemeanors were charged in one indictment, one having a pistol without a license, and the other carrying concealed weapons. The Court of Appeals sustained the conviction on one count, while it granted a new trial on the other count. This decision would seem to be in line with logic and reason, and no reason has occurred to me why the trial court should not have the same power. In the case of Perry v. State, 25 Ga.App. 481, 103 S.E. 719, there was a general verdict of guilty on two counts. The evidence authorized conviction only under the second count, although the court sentenced him on both counts; but later the court struck the sentence on the first count and allowed only the sentence imposed under the second count to stand. This action of the trial court is apparently approved by the appellate court. In the case of Selvester v. United States, 170 U.S. 262, 18 S.Ct. 580, 42 L.Ed. 1029, the plaintiff in error was indicted in four counts for four different crimes. It was held not error to receive a verdict of guilty on the first, second, and third counts, with disagreement on the fourth. The court said on page 268 of this opinion [in 170 U.S. , page 582 of 18 S.Ct. 42 L.Ed. 1029]: 'Although distinct offenses were charged in separate counts in one indictment, they nevertheless retained their separate character to such an extent that error or failure as to one had no essential influence upon the other.' And the United States Supreme Court held in the case of Putnam v. United States, 162 U.S. 687 [at page 714, 16 S.Ct. 923, 934], 40 L.Ed. 1118: 'The ends of justice will best be subserved by affirming the judgment and sentence under the seventh count, and by reversing the judgment as to the second count, and remanding the case to the court below for such proceedings with reference to that count as may be in conformity to law.'

"The court has considered and read many cases on this point, and is not convinced by any of them that the basic principles of the law in such cases as those stated is unfair. In addition to the cases already cited and discussed, the following cases may be examined with reference to this point:Dozier v State, 14 Ga.App. 473, 81 S.E. 368; Vinson v. State, 45 Ga.App. 220, 164 S.E. 208; Jones v. State, 27 Ga.App. 600, 110 S.E. 37; Innes v. State, 19 Ga.App. 271, 91 S.E. 339; Driver v. State, 112 Ga. 229, 37 S.E. 400; Morse v. State, 10 Ga.App. 61, 72 S.E. 534; Lynes v. State, 46 Ga. 208, 209; Simmons v. State, 162 Ga. 316, 134 S.E. 54; Butler v. State, 18 Ga.App. 201, 89 S.E. 178; Schofield v....