Pride v. State

• Decision Date: 02 July 1906
• Citation: 125 Ga. 750,54 S.E. 688
• Parties: PRIDE. v. STATE.
• Court: Georgia Supreme Court

54 S.E. 688

125 Ga. 750

PRIDE.

v.STATE.

Supreme Court of Georgia.

July 2, 1906.

1. Indictment—New Trial—Second Indictment.

Where a defendant is indicted upon a given state of facts for robbery by force and by intimidation, and goes to trial and is convicted by the jury, and afterwards moves the court for a new trial, which is granted, it is competent for the state, without entering an order of nolle prosequi upon the indictment, to prefer a second indictment against him, involving the same transaction, charging him in the second instance with robbery by force as defined by the amending act of 1903.

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, §§ 83-88; vol. 14, Cent. Dig. Criminal Law, § 375.]

2. Robbery—Force and Violence.

Under Pen. Code 1895, § 151, as amended by the act of Aug. 6, 1903 (Acts 1903, p. 43), a sudden snatching or taking of money, with intent to steal, from the owner or person in possession or control thereof, without the consent of the owner or person in possession or control thereof, is robbery by force, and punishable as prescribed in Pen. Code 1895, § 152.

[Ed. Note.—For cases in point, see vol. 42, Cent. Dig. Robbery, § 6.]

3. Same—Evidence.

The credibility of the witness was a question for the jury. The evidence supports the verdict, and no sufficient reason appears for reversing the judgment of the court below.

(Syllabus by the Court,)

Error from Superior Court, Fulton County; L. S. Roan, Judge.

Jesse Pride was convicted of robbery, and brings error. Affirmed.

Robert L. Rodgers, for plaintiff in error.

C. D. Hill, Sol. Gen., for the State.

ATKINSON, J. 1. The questions made in the fifth and seventh grounds of the motion for new trial relate to a plea in abatement and the pendency of an older indictment based upon the same transaction. In the ease of Irwin v. State, 117 Ga. 706, 45 S. E. 48, it is held that, "in a criminal proceeding, the pendency of a former indictment for the same offense is no ground for a plea in abatement or in bar, although the accused may have been arraigned thereon and have filed a plea." It is also ruled in that case that, "where several indictments for the same offense are pending against the same person, it is immaterial upon which he is first tried." The rulings quoted virtually control the case at bar. It is true that in Irwins Case the record discloses that the case lid not proceed further than the filing of the defendant's plea of not guilty, while in the case at bar the record discloses the facts that the defendant filed his plea of not guilty, and that his case was fully submitted to a jury, and a verdict was rendered against him, and a motion for new trial was granted. The fact that the motion for new trial was made by the defendant defeats the plea of former jeopardy and avoids any distinction between the case at bar and Irwin's Case, supra. The defendant goes into jeopardy twice, but it is upon his "own motion, " and this brings the case within the exception prescribed by section 11 of the Penal Code of 1895, wherein it is provided that "no person shall be put in jeopardy of life or liberty more than once for the same offense, save on his or her own motion for a new trial, after conviction, and in case of...