Martin v. State

• Decision Date: 29 April 1902
• Citation: 115 Ga. 255,41 S.E. 576
• Parties: MARTIN v. STATE.
• Court: Georgia Supreme Court

41 S.E. 576

115 Ga. 255

MARTIN

v.STATE.

Supreme Court of Georgia.

April 29, 1902.

RIOT—EVIDENCE—INDICTMENT. Where, under an indictment charging two named persons, "together with others, " with the offense of riot, one of the persons named was convicted and the other acquitted, the conviction will be upheld when the evidence shows that any other person capable of committing the crime participated with the person convicted in the criminal acts charged in the indictment. Failure to allege in the indictment that the other persons were unknown would be cause for quashing the same on special demurrer, but would not constitute any reason either for arresting the judgment or granting a new trial. (Syllabus by the Court.)

Error from superior court Liberty county; P. E. Seabrook, Judge.

Sandy Martin was convicted of riot and brings error. Affirmed.

Donald Fraser and B. A. Way, for plaintiff In error.

Livingston Kenan, Sol. Gen., for the State.

COBB, J. Sandy Martin was convicted of the offense of riot. The indictment contained two counts. The first charged that "Sandy Martin and Stephen Martin, together with others, " committed an unlawful act of violence which constituted riot, and the second count charged that "Sandy Martin and Stephen Martin and others" were guilty of certain acts done in a violent and tumultuous manner, constituting riot Upon the trial the jury returned a verdict of guilty as to Sandy Martin, and not guilty as to Stephen Martin. A motion for a new trial filed by Sandy Martin having been overruled, he excepted and brought the case to this court by writ of error.

The controlling question in the present case is whether the conviction of the plaintiff in error was warranted by the evidence, when the other person named in the Indictment was acquitted and the evidence showed that the acts alleged in the indictment were committed by the plaintiff in error jointly with other persons not therein named. One person may be indicted for a riot or conspiracy, but the general rule is that the names of the other persons who participated with him in the unlawful acts must be set forth in the indictment. It was, however, under the common law, permissible to set forth the name of one person and charge that he committed the offense with other persons unknown; and if the proof showed that the accused participated with one or more persons in an act of conspiracy, or with two or more persons in an act of riot, he could be convicted. If, however, several persons were indicted for a riot and the proof showed the guilt of only one or two, all must have been acquitted. "On an Indictment for a riot against three or more, if a verdict acquit all but two, and find them guilty, or on an indictment for a conspiracy, if the verdict acquit all but one, and find him guilty, it is repugnant and void as to the two found guilty in the first case, and as to the one found guilty in the second, unless the indictment charge them with having made such riot or conspiracy simul cum aliis juratoribuslgnotis; for other wise it appears that the defendants are found guilty of an offense whereof it is impossible that they should be guilty, for there can be no riot where there are no more persons than two, nor can there be a conspiracy where there is no partner. Yet it seems agreed that if twenty persons are indicted for a riot or conspiracy, and any three found guilty of the riot, or any two of the conspiracy, the verdict is good." 2 Hawk. P. C. 621, 622. See, also, 2 Bish. New Cr. Proc. § 998 (3); 2 Clark & M. Crimes, p. 1008; State v. Brazil, Bice, 257; Com. v. Berry, 5 Gray, 93; 2 Whart. Cr. Law (9th Ed.) § 1515; Whart Or. Pl. (9th Ed.) § 306; Rex v. Scott, 3 Burrow, 1262, 1 W. Bl. 291; Turpin v. State, 4 Blackf. 72; Rex v. Heaps, 2 Salk. 593; Hardebeck v. State, 10 Ind. 459. There is no statute in Georgia changing the rules of the common law with respect to the matter above referred to, except that in this state the joint act of only two persons constituted a riot (Pen. Code, § 354), and persons guilty of this offense may be separately tried (Pen. Code, § 969), in which latter case the acquittal of the one first tried will not operate to acquit the other. Rachels v. State, 51 Ga. 375. Where it is necessary in an indictment to name persons other than those indicted, an allegation such as "divers others" or "several others, " without stating that they are unknown, will be bad on special demurrer. People v. Pish, 1 Sheld. 537; State v. Irvin, 5 Blackf. 343. And in State v. O'Donald, 1 McCord, 532, 10 Am. Dec. 691, where a true bill was returned against two persons and "divers other persons, to wit, to the number of five, " without alleging that they were unknown, the court went so far as to hold that a motion in arrest of judgment would be sustained. In the...