Pippin v. State
| Decision Date | 12 May 1949 |
| Docket Number | 16624. |
| Citation | 53 S.E.2d 482,205 Ga. 316 |
| Parties | PIPPIN v. STATE. |
| Court | Georgia Supreme Court |
[Copyrighted Material Omitted]
Syllabus by the Court.
1. While the Supreme Court has jurisdiction of a writ of error where the constitutionality of a statute of this State is drawn in question, no such question will be determined if there is any other ground in the case upon which the court can possibly rest a decision.
2. Separate and distinct offenses of a similar nature and of the same class or species, may properly be joined in different counts in the same indictment.
3. The fact of a former conviction and sentence must be charged in the indictment where a second or subsequent conviction would affect the grade of the offense or require the imposition of a different punishment.
4. 'Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury.' Code, § 27-701.
5. In a case where there are several counts in an indictment charging similar offenses, the question of whether the court will or will not, on motion, require the solicitor-general to elect upon which count he will proceed to try the defendant, is a matter within the sound discretion of the court.
6. An objection to the admission of evidence on the ground that it is 'immaterial and irrelevant' is not such an objection as it would be reversible error to overrule.
7. Every ground of an amended motion for a new trial must be complete within itself, and one which complains of a ruling on an objection to the admission of evidence but which is so incomplete that it requires reference to the brief of evidence, or other parts of the record, in order to ascertain what the evidence was to which the objection is urged presents no question for determination by this court.
8. 'Overruling an objection made generally to specified evidence is in no event cause for reversing a judgment unless it appears that the objection was good as to all of such evidence.' Collins Park & Belt R. Co. v. Ware, 112 Ga. 663, 37 S.E. 975.
9. 'Though it is better for him not to do so, it is not usually cause for a new trial that the judge gives in charge to the jury an entire statutory or Code provision, a part of which is applicable and a part inapplicable to the case under consideration.' Thompson v. Mitchell, 192 Ga. 750(2), 16 S.E.2d 540.
10. The court did not err in charging the jury as complained of in the sixth and tenth grounds of the amended motion for a new trial.
11. Where a case is not wholly dependent upon circumstantial evidence, the failure of the trial judge to charge the law touching such evidence, in the absence of an appropriate request for such charge, furnishes no ground for a new trial.
12. The provision of Code, § 38-414, that 'The confession of one joint offender or conspirator, made after the enterprise is ended, shall be admissible only against himself,' has no application in a case in which no confession of a joint offender or conspirator is offered, but where such joint offender or conspirator is sworn and testifies as a witness.
13. The evidence amply authorized the verdict, and the trial court did not err in overruling the motion for a new trial.
An indictment was returned against L. G. Pippin, in Upson Superior Court, charging him in three separate counts with misdemeanors, the material allegations of the first count being that the said accused did then and there unlawfully and with force and arms maintain and keep a lewd house and place for the purpose of fornication and adultery contrary to the laws of the State of Georgia, good order, peace and dignity thereof.
The second count of the indictment charged the defendant with a misdemeanor, for that the said L. G. Pippin did then and there unlawfully and with force and arms permit one Fay Doan Parker to remain in the place of said defendant, and premises of said place and being known as Live Oak Filling Station for the purpose of prostitution and assignation; contrary to the laws of said State, the good order, peace and degnity thereof.
The third count of the indictment charged the defendant with a misdemeanor, for that the said L. G. Pippin did then and there unlawfully and with force and arms permit one Carolyn Cadwell to remain in said place known as Live Oak Filling Station, and premises of same, for the purpose of prostitution and assignation; contrary to the laws of said State, the good order, peace and dignity thereof.
The this indictment the defendant demurred and also moved to quash the same upon the grounds:
(1) That counts two and three were unconstitutional, in that said counts refer to a crime as defined in the Code, §§ 26-6203 to 26-6207, inclusive, which said sections are codified from the acts of the legislature of 1943, Ga.L.1943, pp. 568 to 571 inclusive, in that said Code sections and said law contravene and are repugnant to Article I, section I, paragraph V, of the Constitution of Georgia, for that said act deprives this defendant of a 'public and speedy trial by an impartial jury,' since § 26-6206 of the Code permits the reputation and character of the defendant to be put in issue upon the trial of said case and declares that said character and reputation shall be admissible in evidence in support of any charge thereunder.
(2) That counts two and three of said indictment are unconstitutional, in that they violate, contravene, and are repugnant to Article III, Section VII, Paragraph XVI, of the Constitution of Georgia, which provides that 'No law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending, or repealing act, shall distinctly describe the law to be amended or repealed, as well as the alteration to be made,' in that the Act of 1943 and the Code sections taken therefrom repeal § 38-202 of the Code of Georgia, which provides that the general character of the parties, and especially their conduct in other transactions, are irrelevant matter, unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct, since under the provisions of said Act and Code, § 26-6206, it is provided that 'in the trial of any person, charged with a violation of any of the provisions of this law (§§ 26-6203 to 26-6207) testimony concerning the reputation or character * * * of the defendant or defendants, shall be admissible in evidence in support of a charge thereunder.'
(3) Because the indictment is fatally defective and void in that defendant is charged with maintaining and keeping a lewd house under section 26-6102 of the Code in count one, and is charged in counts two and three with committing the crime of prostitution and assignation under the Code (Ann.Supp.), § 26-6203, and these offenses are entirely separate, dissimilar and distinct and cannot be joined in one indictment.
(4) Because the indictment charges the defendant with an offense amounting to a misdemeanor under Code, § 26-6102, and also with a felony of a dissimilar nature entirely separate and distinct, as defined in Code, § 26-6203.
Grounds five and six of the demurrers are based upon the grounds that each of counts two and three of the indictment embraces two separate and distinct offenses of equal degree and involves and constitutes separate and distinct transactions, as defined by Code, § 26-6205, and that said counts are void.
Ground seven is stricken as referring to a count four, which does not appear in the indictment.
Ground eight demurs to counts two and three for the reason that they are void, in that said counts were drawn under Code § 26-6203, and said section of the Code fixes and defines different grades of punishment for fitst and second offenses committed thereunder, and said counts are indefinite, void, and uncertain, in that they fail to put the defendant on notice as to whether he is charged with a first offense or a second offense, and he cannot properly prepare his defense on account of the ambiguity of the allegations in these counts.
In Grounds nine and ten the defendant demurs to each of Counts two and three, upon the ground that each fails to allege, set up, and charge a crime under Code § 26-6203, or any other section, pertaining to prostitution or assignation as defined in the Acts of 1943, or Code, §§ 26-6203 through 26-6207.
The other ground of the demurrer, designated and described in one of the demurrers appearing in the record as ground twelve, and in the other as ground ten, is abandoned by counsel in his brief.
These grounds were overruled by the trial court, exceptions pendente lite were duly presented and certified, and error is assigned thereon in the bill of exceptions.
After the ruling on demurrer, counsel for the defendant presented to the court his written motion as follows:
'Now comes the defendant and moves this Honorable Court to require the solicitor general to elect upon which one of the three counts this defendant is to be tried, inasmuch as said indictment charges a distinct and separate offense in count 1 to that charged in counts 2 and 3, and furthermore defendant prays and demands an election between count 1 and counts 2 and 3, inasmuch as count 1 charges a dissimilar, distinct and separate offense from that which is charged in counts 2 and 3.'
To the judgment overruling this motion the defendant also excepted pendente lite, and error is assigned thereon.
On the trial the jury returned a general verdict of guilty against the defendant, who duly filed his motion for a new trial twice amended by the addition of ten...
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