Nobles v. State

• Decision Date: 18 February 1913
• Docket Number: 4,568.
• Citation: 77 S.E. 184,12 Ga.App. 355
• Parties: NOBLES et al. v. STATE.
• Court: Georgia Court of Appeals

77 S.E. 184

12 Ga.App. 355

NOBLES et al. v. STATE.

No. 4,568.

Court of Appeals of Georgia

February 18, 1913

Syllabus by the Court.

Where two or more persons are jointly indicted, and put on trial for an offense for which one may be convicted and the others acquitted, each is entitled to the same number of peremptory challenges as would be allowed him if the case against him had been tried separately. This rule is applicable in misdemeanors as well as in felony cases.

Where the sayings or conduct of one assaulted do not as a matter of law justify the assault, it is not error so to instruct the jury. Lawful questions in good faith propounded to a witness by a member of a grand jury afford no justification for a battery afterwards committed upon the grand juror by a relative of the person whose conduct was under investigation in the grand jury room.

The law relating to the defense by one brother of another in peril was not applicable to any theory of the evidence, and the trial judge properly refused to give such law in charge to the jury.

Error from Superior Court, Laurens County; K. J. Hawkins, Judge.

Dave Nobles and others were indicted for an assault. One was acquitted, and two convicted, and the latter bring error. Reversed.

T. E Hightower and J. G. Howard, both of Dublin, for plaintiffs in error.

E. D Graham, Sol. Gen, of Mc Rae, for the State.

POTTLE J.

Three brothers were jointly indicted and tried for the offense of assault and battery. One was acquitted, and two were convicted. Those convicted filed a motion for new trial which was overruled, and they excepted.

1. The prisoners consented to be tried jointly. Upon arraignment they moved the court to allow them 21 peremptory challenges. This motion was denied, and the prisoners were allowed only seven strikes. At common law defendants jointly indicted had no right to sever, but the crown could require them to do so. The crown had no right of peremptory challenge at all, but the prisoner had. This right of the prisoner to peremptory challenges was, however, confined to felony cases. Such challenges were not allowed in misdemeanors. 24 Cyc. 232; 4 Blackstone, 353 (6). It seems that, unless the statute confers upon one jointly indicted the right to a separate trial, it is discretionary with the court whether the defendants shall be tried jointly or separately. 12 Cyc. 505. The general rule is that, unless there is some statute which expressly or by reasonable construction confers upon persons jointly indicted the right of peremptory challenge as if they were tried separately, such right does not exist. 1 Thomp Trials (2d Ed.) § 45. In this state, where persons are jointly indicted, any one of them may demand a separate trial, and the state also has the right of severance. Penal Code, § 995. In felony cases "every person indicted" is allowed a specified number of peremptory challenges, varying with the different classes of felonies. Penal Code, § 1000. It is the settled law of this state that a proper construction of this statute requires that where two are tried jointly for an offense for which one may be convicted, though the other be acquitted, each is entitled to his full statutory allowance of peremptory challenges. Cruce v. State, 59 Ga. 84; Cumming v State, 99 Ga. 663, 27 S.E. 177; Rawlins v. State, 124 Ga. 48, 52 S.E. 1. It is insisted in behalf of the state that this rule is not applicable in misdemeanor cases, and that as to such cases there is no statute which permits separate challenges where the persons are jointly tried. It is, of course, conceded that in misdemeanor cases the prisoners have the right of severance just as in felony cases. Bearing in mind the general rule that the right to separate challenges does not exist unless conferred by statute, the question presented depends upon the construction of sections 858, 861, Penal Code. Section 858 provides that in civil cases and in cases of misdemeanors each party may demand a full panel of 24 jurors from which to strike. Section 861 provides that from this panel "the accused shall have the right to challenge seven peremptorily, and the state five." The right to challenge and the right to sever go hand in hand. At common law the prisoners could not sever. They are permitted to do so in this state, and there is no distinction between...