Mize v. The State Op Ga.

• Citation: 49 Ga. 376
• Parties: JOSEPH MIZE, plaintiff in error. v. THE STATE OP GEORGIA, defendant in error.
• Decision Date: 31 July 1873
• Court: Supreme Court of Georgia

49 Ga. 376

JOSEPH MIZE, plaintiff in error. v. THE STATE OP GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1873.)

Criminal law. Autrefois convict. Jurisdiction. Before Judge Clark. Sumter Superior Court. April Adjourned Term, 1873.

Mize was indicted for gaming, alleged to have been committed on April 12th, 1873. He pleaded former conviction, "that he was, on the affidavit and written accusation of one William Mims, arraigned and tried in the Justice Court for the seven hundred and eighty-ninth district, before their Honors John B. Pilsbury, Notary Public, and W. C. Godwin, Justice of the Peace, for the same offense, and was, on his plea of guilty, sentenced and punished for the same offense, as is set forth in said indictment, said Justice and Notary Public having authority and jurisdiction to try said offense."

Upon the trial of the issue thus formed, the defendant tendered in evidence the affidavit, accusation, plea and sentence set forth in the plea aforesaid. Upon objection to said testimony, on the ground that an indictment was pending in the Superior Court at the time of said proceedings before said Justice and Notary Public, it was excluded.

*The jury found the issue in favor of the State.

The defendant was then placed on trial, upon the plea of not guilty. The jury found to the contrary. A motion for a new trial was made upon the ground of error in the aforesaid exclusion of testimony. The motion was over ruled, and the defendant excepted.

C. T. Goode, for plaintiff in error.

C. F. Crisp, Solicitor General, by Phil. Cook, for the State.

TRIPPE, Judge.

The defendant (plaintiff in error,) had, before this trial, been prosecuted, convicted and punished for the same offense by a Court which had jurisdiction of the case. It is true that the conviction and punishment was by an Inferior Court, of limited jurisdiction, with power given by a special statute totake cognizance of such cases, and that, at the same time, this indictment was pending in the Superior Court. But it does not appear from the record that the defendant had ever been arrested under the indictment, of even had notice of it, or that the Court which tried him had notice of an indictment then pending against him for the same offense. Under this state of facts, it would have been not only hard on the defendant to be twice tried, convicted and punished for the same offense, simply because one Court commenced the prosecution before the other which tried him did, but would seem to subordinate that cardinal provision in the declaration of fundamental principles, older than any American Constitution, that no person shall be put in jeopardy of life or liberty more than once for the same offense, to a mere technical rule, to-wit: That the Court first obtaining jurisdiction shall retain it.

In the case of the State v. Tisdale, 2 Devereaux & Battle, 159, the defendant was indicted in the Superior Court and pleaded thereto a former conviction in the County Court for the same offense. To this plea a replication was filed by the State, *that the present indictment was found against the defendant before prosecution was commenced in the County Court, and had been regularly kept up. Defendant rejoined to the replication, that he had no legal notice of the indictment in the Superior Court before his conviction in the County Court. There was a demurrer to this rejoinder, which...