Newsom v. The State Of Ga.
| Decision Date | 31 January 1847 |
| Docket Number | No. 6.,6. |
| Citation | 2 Ga. 60 |
| Parties | Benjamin F. Newsom, plaintiff in error. vs. The State of Georgia, defendant in error. |
| Court | Georgia Supreme Court |
Indictment, and nol. pros. entered. Macon Superior Court, Judge Warren presiding, October Term, 1846.
For the grounds of error, see the opinion of the Supreme Court.
Miller for the plaintiff in error, while submitting his brief, was stopped by the Court.
McCay representing Patterson, Solictor-General for the State.
By the Court—Nisbet, J., delivering the opinion.
The plaintiff in error was indicted in the Court below; he was arraigned and plead not guilty, and a jury was empanelled and sworn to try him. The Solicitor-General read the indictment to the jury and opened the case to them, and then tendered the warrant by which the accused was arrested, which being upon demurrer rejected, the State having no other testimony, the defendant moved the Court that a verdict of not guilty be entered, which was refused, and the Solicitor-General was permitted by the Court to enter a nolle prosequi, and the jury was discharged.
The plaintiff in error now comes hither, and says the Court erred in refusing the motion for a verdict of acquittal, and also in permitting the bill of indictment to be nol-prosed without the consent of the defendant.
This question is to be determined upon a construction of our own statute. In the 326th section of the 14th Division of the Penal Code, it is enacted, that ''no nolle prosequi shall be entered on any bill of indictment after the case has been submitted to a jury, except by the consent of the defendant." Prince. 661.
The question is, whether this case was submitted to the jury in the sense of this Act, or not—if it was, then the Court erred in permitting the nolle prosequi to be entered, the defendant not consenting. We think it was.
We think this statute was intended to restrict the large license which the Crown in England and the State here exercised, as to the right of dismissing prosecutions with a view to recommencing under more favorable circumstances. Defective testimony, an unfavorable jury, prejudice, passion, almost any circumstance, was, for years in England, seized by the Crown as a pretext for nol-prosing indictments; and the subject was harassed, not unfrequently, with many and bitter persecutions; and often, when favorable opportunity offered, convicted, in despite of innocence. Originally we know, in England all the advantages were in favor of the Crown, and all the wrong and oppression upon the subject. Not so now, however; our Legislature has put the rights of the citizen in this regard beyond the caprice, or passion, or corruption of the State. It intended to provide, that when an indictment against a citizen was submitted to a jury, that he should then and there and by that jury be tried. The only thing for us to determine is, what is meant by submitting a case to a jury. If this case was submitted, then the nolle prosequi could not be entered without the consent of the defendant, and if it could not be so entered, then we hold the defendant had a right to have the case passed upon by the jury, and that the jury, in the absence of all evidence of guilt, would have been compelled to find a verdict of acquittal.
The idea of counsel for the defendant in error, seems to be this: submission of a case to the jury, is an entire abandonment of it to them, which occurs only when the evidence has been concluded and the Court has summed it up and given its charge and sent them out to find the issue. This construction would leave the defendant in a worse condition as to the right of the State to enter the nolle prosequi, than he was in before the statute, for according to this construction, the bill may be nol-prosed at any time before the jury is sent out. If left to a mere verbal criticism, we should say, that submitting is the act of presenting a case to the jury through the pleadings and evidence, and that the submission is as perfect when that process begins as when it concludes. The proceeding in England, upon trials for misdemeanors as well as for higher offences, seems to be as follows—The sheriff having returned into Court the panel of the jury, and the time for trial having arrived, the clerk calls the jury on their panel, enjoining them to answer to their...
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...and sworn . . . Barbour v. State, 66 Ga.App. 498, 500, 18 S.E.2d 40. See also Peavey v. State, 153 Ga. 119(1), 111 S.E. 420; Newsom v. State, 2 Ga. 60; Reynolds v. State, 3 Ga. 53(2); Nolan v. State, 55 Ga. 521(1) (21 Am.Rep. 281); Doyal v. State, 70 Ga. 134(3); Franklin v. State, 85 Ga. 57......
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...impaneled and sworn. Barbour v. State, 66 Ga.App. 498, 500, 18 S.E.2d 40. See also Peavey v. State, 153 Ga. 119(1), 111 S.E. 420; Newsom v. State, 2 Ga. 60; Reynolds v. State, 3 Ga. 53(2); Nolan v. State, 55 Ga. 521(1); Doyal v. State, 70 Ga. 134(3); Franklin v. State, 85 Ga. 570, 11 S.E. 8......
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