Mitchell v. State

• Decision Date: 31 July 1909
• Docket Number: 1,934.
• Citation: 65 S.E. 326,6 Ga.App. 554
• Parties: MITCHELL v. STATE.
• Court: Georgia Court of Appeals

65 S.E. 326

6 Ga.App. 554

MITCHELL v. STATE.

No. 1,934.

Court of Appeals of Georgia

July 31, 1909

Syllabus by the Court.

While a defendant cannot be charged with separate and distinct offenses in the same indictment, yet it is well settled that offenses of the same nature and differing only in degree may be joined in one count in the same indictment; and it is as clearly settled that offenses, though not of the same nature if they constitute but one transaction, blended together by concurrent acts, may also be joined in one count in the same indictment.

It is a sound and universal rule in criminal pleading that whenever the defendant is charged with a major offense, and the evidence does not support it the jury may convict of any minor offense, which is included in the major and to which the evidence applies, upon the familiar maxim, "Omne majus continet in se minus."

The opinion of an expert witness is competent testimony to be weighed by the jury to aid them in coming to a correct conclusion; but such testimony is not so authoritative that the jury are bound to believe it and to be governed by it. The jury may deal with such testimony as they see fit, giving it credence or not as they may believe it to be the truth.

Where the identity of the accused as the perpetrator of the offense is clearly and strongly shown by both positive and circumstantial evidence of the most credible and convincing character, a new trial will not be granted on the ground of newly discovered testimony tending to establish an alibi contained in the affidavit of a witness of doubtful character and whose statement does not exclude the possibility of the presence of the defendant at the time and place when and where the crime was committed.

Error from Superior Court, Thomas County; L. S. Roan, Judge.

William H. Mitchell was convicted of an assault and battery, and he brings error. Affirmed.

S. A Roddenbery, Roscoe Luke, Theodore Titus, and R. R. Arnold for plaintiff in error.

W. E. Thomas, Sol. Gen., and T. F. Green, for the State.

HILL, C.J. (after stating the facts as above).

1. The demurrer to the indictment was very properly overruled by the court. It is wholly lacking in merit, under welle-stablished rules of criminal pleading, as laid down by all criminal law writers, and under repeated rulings of the Supreme Court. It is true that separate and distinct offenses cannot be embraced in one count in the same indictment, as, for instance, burglary and perjury, larceny and assault and battery; but it is well settled that offenses of the same nature and differing only in degree may be joined in one count in the same indictment, and it is also clearly well settled that offenses not of the same nature, if they constitute but one transaction, may be joined in one count in the same indictment, as, for example, assault with intent to murder with shooting, stabbing, assault and battery, and assault, rape with assault with intent to commit rape, assault and battery and assault, or burglary and larceny. In all such cases the jury may convict of any minor offense which is included in the major and to which the evidence applies, upon the familiar maxim, "Omne majus continet in se minus." Johnson v. State, 14 Ga. 56; Gilbert v. State, 65 Ga. 450; Berry v. State, 124 Ga. 825, 53 S.E. 316; Sutton v. State, 124 Ga. 816, 53 S.E. 381.

The indictment in this case distinctly charges a felony, and sets forth the concurrent acts of the defendant in the commission of the felony; the whole constituting but one transaction. An assault with intent to commit rape can be committed without a battery, and can also be committed by means of a battery. If a battery is inflicted as a part of the felony, it is necessary to charge it; otherwise, he could not be convicted of assault and battery. But the point is too well settled for further discussion. This case is similar to indictments for assault with intent to murder, which in one count can charge a felony, the use of a deadly weapon with felonious intent shooting or stabbing, assault and battery, and assault, and the jury can convict of either offense according to the testimony, and it has never been seriously questioned that this manner of pleading was not only proper, but absolutely essential to prevent a failure of justice in many cases. That an assault and battery can be joined, and to fit the facts in some cases must be joined, in the same count with an assault with intent to commit rape, has been expressly ruled by the Supreme Court in the case of Goldin v. State, 109 Ga. 549, 35 S.E....