Nolan v. The State Of Ga.

• Decision Date: 31 July 1875
• Citation: 55 Ga. 521
• Parties: John H. Nolan, plaintiff in error. v. The State of Georgia,defendant in error.
• Court: Georgia Supreme Court

55 Ga. 521

John H. Nolan, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Page 521 Criminal law. Verdict. Jury. New trial. Before Judge Tompkins. Chatham Superior Court. November Term, 1874.

*Nolan was placed on trial for the offense of murder alleged to have been committed upon the person of Martin Grogan. Evidence was submitted to a jury regularly impanneled, argument had, and a charge delivered by the court. Subsequently, whilst the defendant was confined in jail, in the absence of his counsel, and without his consent, the jury returned a verdict finding him guilty of voluntary manslaughter, and were discharged. The defendant, at a subsequent term, moved that said verdict be set aside on the ground that it was rendered and published in his absence and without his right of being present having been waived. The court ordered accordingly.

The defendant was subsequently arraigned a second time upon the same indictment, when he pleaded especially in bar the aforesaid facts as constituting his having been placed once in jeopardy, and claimed his discharge.

This plea was overruled by the court, and defendant excepted.

A verdict finding the defendant guilty of voluntary manslaughter was returned.

Error is assigned upon the above ground of exception.

S. B. Adams; A. P. Adams, for plaintiff in error.

A. R. Lamar, solicitor general, by Walter G. Charlton, for the state.

Bleckley, Judge.

Without restating the specific propositions embraced in the headnotes, some observations will be added on the general topic.

One trial, and only one, for each crime, is a fnudamental principle in criminal procedure, and must be the general rule practically administered in all free countries. For the public authority, whether king or commonwealth, to try the same person over and over again for the same offense, would be ranktyranny. It would amount, in capital cases, to cruelty *not unlike that of keeping a loaded repeater pointed at the prisoner\'s head, and, with deadly purpose, but bad aim, discharging slowly one cartridge after another. Though some exceptions to the general rule are to be admitted, as when a new trial is had on the prisoner\'s motion, or when judgment upon a void indictment has been arrested, the transcendant importance of the rule itself requires that the exceptions should be few and strictly guarded.

Where a first trial is complete, and its result, whether conviction or acquittal, left to stand, there is little or no room for any diversity of opinion on its sufficiency to bar a second. In such a case the ordinary plea of former conviction or of former acquittal is applicable, in terms, and would be upheld by all courts alike. But we reach debatable ground when we come to those cases in which trials have been begun but not ended; and some others, in which the endings have been ineffectual because irregular or wholly void. Courts are not fully agreed where jeopardy begins, or how far the defense of once in jeopardy differs, if at all, under our American constitutions, from that of autrefois convict or autrefois acquit, under the English common law. In the view of some judges jeopardy arises not out of the trial but out of the verdict; as if, in a combat intended to be mortal, there was no danger of being slain until you are hit.

The former decisions of this court have tended always to treat a jury, when impanneled, sworn and charged with the case, as the consecrated body of peers whose individual minds and personal consciences are laden with the prisoner's destiny. Not a jury, simply, but this jury, are to pronounce upon his guilt or innocence. They, and they alone, are to pass between the state and the prisoner, and arbitrate the grave matter in dispute. Their decision may or may not be final as against the prisoner, but it will conclude the state forever, unless annulled at his instance. Though he may avoid it for any material error committed against him, the state cannot avoid it at all, but is bound by it irrevocably, so long as he suffers it to stand. He has a right to have it *made up and legally returned into court, so that he may, if it suits him, accept it. A verdict, on this trial and from this particular jury, not on some future trial before another jury, is what he may demand, and what the state, subject only to obstacles amounting to legal necessity, undertakes to afford: "What say you, gentlemen of this jury, am I guilty or not guilty?" To this question he is entitled to an answer, if to obtain it be within the compass of legal possibility. He takes the risk of its being adverse, and may claim whatever chance there is of its being favorable. The fear of the situation is upon him, and he is entitled to its hopes also. Condemnation or deliverance, here and now, is the one alternative. Only with his consent, or for some legal necessity, can the crisis be ended whilst the voice of his jury remains...