Mcwhorter v. State
| Citation | 44 S.E. 873,118 Ga. 55 |
| Parties | McWHORTER. v. STATE. |
| Decision Date | 30 May 1903 |
| Court | Supreme Court of Georgia |
INDICTMENT—FORMER SENTENCE—BURGLARY — PUNISHMENT — EVIDENCE — WITNESS — COMPETENCY—CONFESSIONS.
1. The fact of a former sentence must be charged in the indictment, where a second conviction would affect the grade of the offense or require the imposition of a different punishment.
2. The maximum penalty might be imposed on a first conviction for burglary, and the requirement of Pen. Code 1895, § 1042, that it must be imposed in the event of a second conviction, does not alter the character of the original offense nor provide for a different punishment.
3. Allegation and proof that the defendant had previously been sentenced to imprisonment in the penitentiary would tend to his prejudice, and need not be made as a basis for the im-position of the maximum penalty provided by Pen. Code 1895, § 1042.
4. After a second conviction the judge may inspect the record of the former trial, act on his own knowledge, or hear evidence to satisfy himself of the identity of the accused.
5. One who stands near by and watches while his confederate breaks and enters a house with intent to steal therefrom, is guilty of burglary as principal in the second degree. The act of one is the act of both, and, as principals in the first and second degree are punished alike, no distinction between them need be made in the indictment. Leonard v. State, 77 Ga. 764; Collins v. State, 14 S. E. 474, 88 Ga. 347; Pen. Code 1895, §§ 42, 43.
6. Where a witness who has been put under the rule remains in the courtroom, he is not thereby rendered incompetent. He might be subject to attachment for contempt; but to exclude him altogether might deprive a party of the only witness by which a fact in issue might be established. May v. State, 17 S. E. 108, 90 Ga. 800.
¶ 6. See Criminal Law, vol. 14, Cent. Dig. §§ 1559, 1560.
7. The preliminary proof was sufficient to admit the confession, and the verdict was sustained by the evidence.
(Syllabus by the Court.)
Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.
Eugene McWhorter was convicted of burglary, and brings error. Affirmed.
Lewis B. Herrington and Glawson & Fowler, for plaintiff in error.
Wm. Brunson, Sol. Gen., for the State.
The plaintiff in error insists that the maximum penalty under Pen. Code 1895, § 1042, could not be legally imposed on him, as the fact of the former conviction was not set out in the indictment and found by the jury. Where the second conviction changes the grade of the offense, or authorizes a higher penalty than could otherwise have been imposed, the former conviction enters as an element into the new offense, and must be alleged as a necessary part of the description and character of the crime intended to be punished. Hines v. State, 20 Ga. 614; Cobb's Digest, 827. Under the Code the punishment for the second offense does not exceed that which might be legally imposed for the first conviction, and had the judge, without the aid of this section, sentenced the prisoner for the longest term, there would be no right in this court to control his discretion. In mercy to the defendant, the law will not require the first conviction to be set out in the indictment, nor allow it to be...
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...76-1-19. Other states have done so by judicial decision. See State v. Kirkpatrick, 181 Wash. 313, 43 P.2d 44 (1935); McWhorter v. State, 118 Ga. 55, 44 S.E. 873 (1903); McCallister v. Commonwealth, 157 Va. 844, 161 S.E. 67 (1931); and Heinze v. People, 127 Colo. 54, 253 P.2d 596 (1953). In ......
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Stuart v. State, 45833
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