Lewis v. State

• Decision Date: 05 May 1897
• Citation: 28 S.E. 970,101 Ga. 532
• Parties: LEWIS et al. v. STATE.
• Court: Georgia Supreme Court

28 S.E. 970

101 Ga. 532

LEWIS et al. v. STATE.

Supreme Court of Georgia

May 5, 1897

Syllabus by the Court.

Where on a writ of error to this court, a conviction for a criminal offense was held not to be supported by the evidence, and a new trial ordered, there was no error, when the case came on for a rehearing in the trial court, and before it was again submitted to a jury, in allowing the solicitor general, over the objection of the accused, to enter a nolle prosequi.

Error from city court of Savannah; T. M. Norwood, Judge.

Sarah Lewis and others were on trial for the offense of forcible entry and detainer. From an order granting the solicitor general's motion to enter a nolle prosequi, defendants bring error. Affirmed.

Giquilliat & Stubbs, for plaintiffs in error.

W. W Osborne, Sol. Gen., and Robt. M. Hitch, for the State.

LUMPKIN P.J.

Section 957 of the Penal Code reads as follows: "After an examination of the case in open court, and before it has been submitted to the jury, the solicitor general may enter a nolle prosequi with this consent of the court. After the case has been submitted to the jury, a nolle prosequi shall not be entered except by the consent of the defendant." The plaintiffs in error in the present case were tried for and convicted of the offense of forcible entry and detainer, and upon a writ of error to this court, were granted a new trial because the evidence was insufficient to show that there had been a forcible entry, it being essential under the indictment to show both a forcible entry and detainer. See 99 Ga. 692, 26 S.E. 496. The question whether or not a verdict of guilty could have been up held if the indictment had charged a forcible detainer only was not, however, passed upon. When the case went back for another trial, the solicitor general moved to enter a nolle prosequi upon the indictment, and it is plainly inferable, though the record does not distinctly so disclose, that his purpose was to lay before the grand jury a new indictment charging simply a forcible detainer. The motion to enter the nolle prosequi was sustained over objections to the effect (1) that there had been no "examination of the case in open court," and (2) that, the case having been submitted to a jury, a nolle prose qui could not be entered except by consent of the accused. There had been no second submission of the case to a jury before the motion to enter a nolle prosequi was...