Nunn v. The State Of Ga.

• Decision Date: 31 March 1846
• Docket Number: No. 36.,36.
• Parties: Hawkins H. Nunn vs. The State of Georgia.
• Court: Georgia Supreme Court

1 Ga. 243

Hawkins H. Nunn vs. The State of Georgia.

No. 36.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

This was a bill of indictment, founded upon a presentment of a grand jury at Sumter Superior Court, against the plaintiff in error, for a high misdemeanor, for having and keeping about his person, and elsewhere, a pistol, the same not being such a pistol as is known and used as a horseman's pistol, under an act of the General Assembly of the State of Georgia, entitled "An Act to guard and protect the citizens of this State against the unwarrantable and too prevalent use of deadly weapons, " assented to on the 25th December, 1837; upon which bill was endorsed by the solicitor-general, that the same was "founded on the presentment of a grand jury."— The bill of indictment, so made out and endorsed, as founded upon presentment, &c, had not at any time been sent out to a grand jury and found a true bill; that the only evidence of their having been a presentment made in said case whs a paper purporting to be a presentment of the grand jury for the November Term, 1844, of said court, and an entry made upon the minutes of the court for the said term, as follows, to wit:

"The State

vs.

"Hawkins H. Nunn

High Misdemeanor."

And the names of the grand Jurors inserted in the said paper, purporting to be the presentment, were the names of the grand jurors of said term.

At May Term, 1846, of said Superior Court, the said bill of indictment came on to be tried before Judge Warren; when the plaintiff in error having been arraigned, and plead not guilty by his counsel, moved to quash the indictment on the following grounds:

1st. That the before-recited statute of the State of Georgia, assented to on the 25th of December, 1837, under which said indictment was found, is contrary to, and in violation of, the Constitution of the United States of America.

2d. That said statute is contrary to, and in violation of, the Constitution of the State of Georgia.

3d. That the indictment does not show and charge that the defendant below carried the pistol, with the having and keeping of which he is charged, secretly.

4th. That there is no sufficient legal evidence of record upon the minutes of the court, at the term at which the presentment, upon which said indictment is framed, purports to have been made, that said presentment ever was in fact made by the grand jury, or delivered into court.

5th. That bill of indictment was never sent before any grand jury for action upon it.

6th. That said statute is void for uncertainty, and for the absurdity and contradiction in its different provisions.

All of which said grounds were overruled by the court below; and the plaintiff in error excepted. George Dykes, a witness for the State, was then introduced, and proved that on the 4th day of November. 1844, the plaintiff in error, in said county of Sumter, had a pistol in his hand, which was not a horseman's pistol, but a breast pistol. And thereupon, after argument, the Judge of the court below charged the jury that the aforesaid statute was constitutional and of force, and if they believed that the defendant had the pistol, they should bring in a verdict of guilty. To which the plaintiff in error also excepted.

Dudley and Crawford and T. C. Sullivan, for the plaintiff in error.

Contended, 1st. That the act of 1837, under which the indictment in this case was framed, is contrary to the Constitution of the U. S.— Crin. Dig. 900 2d, Amendment; Patrol law Prin. Dig. 774; Militia Law V. S. Ing. Dig. 596; lb. Georgia, Crinl. Dig. 588; 4 Wheaton 2d, Condensed Reps. Supreme Ct. 326; 9 Wheat. 562; 1 Ala. Rep. New Series, 614; 2d Lift. 90; 3 Blackf'd 229.

2d. That said act is contrary to the Constitution of the State of Georgia.— Prin. Dig. 904; 17 sec. 1st art. Constitution.

8d. The indictment does nut charge that the pistol was carried Secretly — Pamphlet Laws of 1837, p. 90; Prin. Dig. 774.

4th. That there was no sufficient legal evidence that the presentment had been made and delivered into court by the grand jury. Our statute requires the clerk to keep minutes of all the proceedings in the court, (Prin. Dig. 428,) and presentments should either be entered at full length on the minntes, or such an entry should be made as to show conclusively that the presentment has been made. Such an entry as made in this case, to wit: " The State vs. Hawkins H. Nunn, high misdemeanor, '' is insufficient

6th. That the indictment was never acid by the grand jury.—Prin. Dig. 659; 14 division 5th sec. 3 Blk. Com., 4 Com. Dig. 646, Chitt Cr. Law 162-3; Stephen Crim Law.

6th. Said statute is void for its absurdities and conflicting provisions.— pum phlet Laws, 1837, page 90. Wm. J. Patterson. Solicitor-General for the State.

Before the court will declare an act of the Legislature unconstitutional, a case must be presented in which there can be no rational doubt.—1 Ala. Rep. 612, New Series; 1 Cowen Rep. 550; 1 Com. Law Rep. 146. There was sufficient legal evidence of the presentment.—4 Phillips' Ev. 1068-1074; Roscoe's Crim. Ev. 186. It was not necessary for the grand jury to act upon the bill of indictment, predicated as it was on a special presentment.—1 Chit. Crim. Law, 162; 4 Blk. Com. 301.

By the Court— Lumpkin, Judge.

This was an indictment for a high misdemeanor, founded upon the presentment of a grand jury in Sumter Superior Court.

At May Term, 1846, the defendant, being arraigned, pleaded not guilty, and moved to quash the proceeding on the following grounds, to wit: 1st and 2d. Because the act of 1837, under which he was prosecuted, was contrary to the Constitution of the United States and of the State of Georgia.

3d. Because the indictment does not show and charge that the defendant (below) carried the pistols secretly, with the having and keeping of which he is charged in the indictment.

4th. Because there is no sufficient evidence of record that said presentment ever was made by a grand jury, or delivered into court.

5th. Because the bill of indictment was never sent before any grand jury for action upon it.

6th. Because the act of 1837 is void for uncertainty, and the absurdity and contradictions in its different provisions

All these objections being overruled by Judge Warren, they are now presented in the bill of exceptions for the determination of the Supreme Court

The view taken by us of the first grounds submitted to our consideration, will dispose finally of this case: still, as there are several important points of practice contained in some of the other grounds, and which are properly before us, and have been fully discussed by counsel, we deem it advisable to express our opinion respecting them.

In the opinion of this court, it is not necessary that an indictment, founded upon presentments, should be referred to the grand jury for the further action of that body. A presentment is the notice taken already by the grand jury of any offence, from their own knowledge or observation, and into which it is their duty to inquire. And although the party cannot be put to answer it until it is delivered into court, and an indictment framed thereon by the proper officer, still, it is never sent back to the grand inquest to be acted on a second time.— Burn's J. Presentment; 1 Chitty's Crim. Law, 163. Neither is it indispensably necessary that? the whole presentment be spread upon the minutes of the court, with the action of the jury thereon. The endorsement on the paper itself, of file in the office, or the signatures of the body, or of the foreman, in the name of himself and his fellows, aided by the testimony of the solicitor and clerk, would be sufficient. It is, however, a highly useful and safe practice, and a duty required to be performed, no doubt, by the law, that the whole presentment be put upon the minutes.

It is always with unfeigned reluctance that we approach a question involving the constitutionality of a state law. It is made our duty, how-ever. in the present case, and we should be unworthy of the exalted station we occupy, if we were to shrink from its performance.

There are certain fundamental principles appertaining to questions of this character, which should never be overlooked. I will state a few of them, and then proceed to examine the statutes in controversy.

It ought seldom or ever to be decided, in a doubtful case, that a law is void for its repugnance to the Constitution. And it is not on slight implications and vague conjectures that the Legislature is to be pronounced to have transcended its powers. On the contrary, the opposition between the law and the Constitution should be such that the judges feel a clear and strong conviction of their incompatibility with each other. The presumption is in favor of every legislative act, and the whole burden of proof lies on him who denies its constitutionality. These doctrines have been repeatedly advanced by the highest judicatory in the nation.— See 6 Cranch, 128; 4 Wheaton, 625; 12 Ib. 436.

The act of 1837 was passed to guard and protect the citizens of the State against the unwarrantable and too prevalent use of deadly weapons. Section 1st enacts, " That it shall not be lawful for any merchant or vender of wares or merchandise in this State, or any other person or persons whatever, to sell, or to offer to sell, or to keep or to have about their persons, or elsewhere, any of the herein-after-described weapons, to wit: Bowie or any other kinds of knives, manufactured and sold for the purpose of wearing or carrying the same as arms of offence or defence; pistols, dirks, sword-canes, spears, &c, shall also be contemplated in this act, save such pistols as are known and used as horseman's pistols, " &c. Section 2d, prescribes the punishment.

Section 3d, makes it the duty of all civil officers to be vigilant in carrying the act into full effect, &c.

Section 4th, disposes of the fines arising under the act, and exempts sheriffs and other officers, therein named, from its provisions...