Martin v. State

• Decision Date: 06 March 1946
• Docket Number: 31075.
• Citation: 37 S.E.2d 411,73 Ga.App. 573
• Parties: MARTIN v. STATE.
• Court: Georgia Court of Appeals

37 S.E.2d 411

73 Ga.App. 573

MARTIN v. STATE.

No. 31075.

Court of Appeals of Georgia, Division No. 1.

March 6, 1946

Rehearing Denied March 21, 1946.

Syllabus by the Court.

1. A nolle prosequi may, without the consent of the accused, be entered at any time until after the jury have been empanelled and sworn.

2. '* * * There is no such plea to an indictment as pendency of a former indictment or autrefois arraign.' Doyal v. State, 70 Ga. 134(3).

3. The first count in the accusation charged a misdemeanor as follows: 'Count 1. That the said Wesley Barron, alias Fred Martin, in said County of Fulton, on the 16th day of August, 1943, did keep, maintain and operate a lottery known as the number game, for the hazarding of money; the date herein alleged being an essential averment as to this transaction; contrary to the laws of said State, the peace good order and dignity thereof.' (Italics ours.) Each of the other of the 15 counts in the accusation are the same except they each allege a different date. Each of course alleges that the date herein alleged is 'an essential averment as to this transaction' alleged in that particular count.

4. With regard to similar misdemeanors that cover a period of time within the statute of limitations, which is two years the prosecution may elect to charge a particular offense at a particular time, or charge a general offense which would cover in one count the whole period of two years prior to the filing of the accusation, and proof of the commission of the misdemeanor on any date within two years prior to the filing of the accusation including the date alleged would authorize a conviction, and only one punishment could be inflicted for such general offense.

5. The prosecution here elected to charge a particular congruous offense at a particular time in each count, and the words in each count, 'the date herein alleged being an essential averment as to this transaction,' make the date in each count essential to identify the particular transaction described in that count.

6. Such averments in each count distinguish the offense charged therein from all the other offenses charged in the other counts of the indictment on the other particular days alleged in the other counts.

7. Proof that the offense of the lottery charged in a particular count was committed on any other day, or on every other day, within two years prior to the filing of the accusation, would not authorize a verdict of guilty on that count charging a particular crime on a particular day.

8. Under the accusation in the form in which it is drawn there is no one day common to two counts, and the accusation does not charge a general offense; but each count charges a particular offense, and when the defendant is convicted on each of the 15 counts, 15 punishments as for a misdemeanor may be inflicted.

9. The verdict is legal even though written on the wrong paper. Verdicts acquire their legality from return and publication.

10. 'The bill of rights modifies the Code, § 4634 (27-1403), to this extent and no more, that the accused shall be furnished with a copy of the indictment and lists of witnesses who gave testimony before the grand jury, on demand.' In the instant case the defendant had no right to demand an indictment for the misdemeanor with which he was charged. The accusation here was founded upon an affidavit of E. I. Hilderbrand who signed the accusation to which such affidavit was attached, and the witnesses indorsed on the back thereof were E. I. Hilderbrand and Charlie Hodges. The defendant was furnished with a copy of this accusation with the names of these two witnesses on the back thereof. Held: It was not erroneous to allow Luther Thomas, whose name did not appear on the accusation or on any list of witnesses furnished the defendant, to testify over the objection that 'his name did not appear on the accusation as a witness and his name was not furnished to petitioner prior to his arraignment after a legal demand for the same had been made.'

11. The remarks of the solicitor general were improper, but in view of the corrective measures applied by the court, the refusal to declare a mistrial on account of them will not require the grant of a new trial.

12. The declarations to the witness (Ailmack) of Lomax and Winder made during the time the lottery enterprise or scheme was being carried on by each of them and the defendant, Martin, were admissible as declarations of one of the conspirators during the pendency of the criminal project.

13. It does not appear in the assignment of error here in question what the admission or confession was that the defendant's counsel objected to on the ground that it was not freely and voluntarily made and without the hope of reward, although the record discloses that the attorney for the defendant was present when the defendant made the alleged statement or confession in another investigation and knew what the statement was, the introduction of which he was wishing to exclude.

14. 'With reference to confession evidence, what the law altogether abhors is the testimonial unworthiness of the confession. If the inducement is sufficient by possibility to elicit an untrue confession of guilt, then the confession is to be rejected; otherwise it is to be admitted under proper instructions from the court.' Held: Under this rule the evidence of the confession was properly admitted. Wilson v. State, 19 Ga.App. 759(4), 92 S.E. 309.

15. The special grounds which were mentioned but not argued, upon examination, disclose no grounds for reversible error.

Wesley R. Asinof, of Atlanta, for plaintiff in error.

E. E. Andrews, Sol. Gen., Lindley W. Camp, Sol., and Durwood T. Pye, all of Atlanta, for defendant in error.

MacINTYRE Judge.

1. A nolle prosequi may, without the consent of the accused, be entered at any time before the case has been submitted to the jury. Code, § 27-1801. A case is not submitted to the jury, within the meaning of this section, until the jury have been empanelled and sworn in the cause. Fortson v. State, 13 Ga.App. 681 and cit. 79 S.E. 746; Mitchell v. State, 126 Ga. 84(1, 2), 54 S.E. 931.

2. The plea, denominated a 'plea in bar and former jeopardy,' alleged that an indictment was returned against the defendant for the offense of lottery; that the State nol prossed it after the defendant had been arraigned on it; that immediately after said indictment was thus withdrawn the State presented an accusation charging the defendant with the same offense; that this accusation was withdrawn over the objection of the defendant after formal arraignment; and that the accusation in the present case thereafter was presented and the defendant was arraigned on it, tried and convicted. The plea does not show that the jury had been sworn on the first indictment or the first accusation. Such plea, while called by the defendant a plea of former jeopardy, was, in fact, one of former indictment or autrefois arraign. There being no such plea as former indictment in the same case, or autrefois arraign, such alleged plea was here properly stricken. Doyal v. State, 70 Ga. 134(3), 146.

3. The defendant, Wesley Barron, alias Fred Martin, was charged in 15 counts with the offense of keeping, maintaining, and operating a lottery known as the lottery game, a misdemeanor. The first count in the accusation is: 'Count 1. That the said Wesley Barron, alias Fred Martin, in said County of Fulton, on the 16th day of August, 1943, did keep, maintain and operate a lottery known as the number game, for the hazarding of money; the date herein alleged being an essential averment as to this transaction; contrary to the laws of said State, the peace, good order and dignity thereof.' (Italics ours.) Each of the other of the 15 counts in the accusation are the same except they each allege a different date. Thus each of course alleges that the date therein alleged is 'an essential averment as to this transaction' alleged in that particular count. With regard to similar misdemeanors that cover a period of time within the statute of limitations, which is two years, the prosecution may elect to charge a particular offense at a particular time, or charge a general offense which would cover in one count the whole period of two years prior to the filing of the accusation, and proof of the commission of the misdemeanor on any date within two years prior to the filing of the accusation including the date alleged would authorize a conviction, and only one punishment could be inflicted. 2 Wharton's Criminal Evidence, 10th Ed., 1230, § 589; 1 Wharton's Criminal Procedure, 10th Ed., 214,§ 162. If the italicized words are construed as making each count in the accusation a particular offense which must be proven to have been comitted on the day alleged in that particular count and on that day only, before conviction could be had on that particular count, each count in the indictment would be charging a particular offense in the particular instance as identified by the count. The words 'the date herein alleged being an essential averment as to this transaction' are so averred that the date, August 16, 1943, becomes essential to identify the particular transaction described in count one. And thus the averment in such count distinguishes the particular offense charged therein from all the other offenses charged in the other counts of the indictment on other particular days alleged in the other counts, which counts likewise each charge a particular offense. Proof that the offense of lottery charged in count one was committed on any other day, or every other day, within two years prior to the filing of the accusation, would not authorize a verdict of guilty on count one. Without the italicized words in count one the count...