Plain v. The State Of Ga.

• Decision Date: 31 January 1878
• Citation: 60 Ga. 284
• Parties: Plain. v. The State of Georgia.
• Court: Georgia Supreme Court

60 Ga. 284

Plain. v. The State of Georgia.

Supreme Court of the State of Georgia

(January Term, 1878.)

Criminal law. Evidence. Principals. Charge of Court. Sentence. Practice in the Superior Court. Before Judge Underwood. Polk Superior Court. August Term, 1877.

*An indictment was found against Plain and others, the material portion of which was as follows: "Charge and accuse Perry Plain, Young Prior and Foster Peck, of the county and state aforesaid, with the offense of assault with intent to murder, for that the said Perry Plain, Young Prior and Foster —, in the county and state aforesaid, on December 25th, 1876, did then and there commit an assault, and with two large rocks and with two large pieces of brick, the same being a weapon likely to produce death, which they in their hands then and there held, in and upon one Samuel Talbot, in the peace of God and said state then and there being, did then and there, unlawfully, wilfully, feloniously and of malice aforethought, make an assault, and the said rocks and pieces of brick did then and there throw and hurl at and against him, the said Samuel Talbot, with intent him, the said Samuel Talbot, then and there unlawfully, wilfully, feloniously, and of his malice aforethought, to kill and murder, contrary, " etc.

The defendants severed, and Plain was first placed on trial. He pleaded not guilty.

In the course of the trial, the state proposed to prove by E. F. Gibson, that, at the time and place alleged in the indictment, he saw the defendant have a rock or brickbat in his hand, and that he threw it at and struck Samuel Talbot. To this evidence the defendant objected on the following grounds: 1st. That the witness could not testify disjunctively that it was a rock or brick; that it must have been the weapon charged to have been used, and not one or the other of them. 2d. That the indictment did not state with sufficient certainty which one of the defendants had or threw the rock or brick; that it did not charge that the defendant had it, or threw it at the prosecutor.

The objection was overruled and the evidence admitted.

The jury found the defendant guilty, and the court sentenced him orally to seven years in the penitentiary. A motion for new trial and in arrest of judgment was made, on the following grounds:

*lst. Because the admission of testimony above stated was error.

2d. Because the indictment does not charge which one ofthe three defendants was principal in the first degree—that is to say, who was the actual perpetrator of the offense; and does not state who was principal in the second degree, or in what other character the other defendants acted, provided they took any part in said difficulty, it being impossible for all to have been principals, according to the facts charged.

3. Because after charging the law as to assault with intent to murder, and as to assault and battery, the court failed to charge the circumstances under which the jury might find the defendant guilty of an assault.

4. Because the punishment inflicted was cruel and excessive.

The sentence of seven years in the penitentiary was pronounced from the bench, in the presence of the defendant. Soon thereafter, before the sentence was written out, and before there was time to prepare the motion for a new trial and in arrest, the defendant was delivered by the jailer to the principal keeper of the penitentiary, on the demand of the latter. With this prompt delivery, the court had nothing to do. When the sentence was formally written out, in the absence of the defendant, the court reduced the term of imprisonment to five years.

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