O'quinn Et Ux v. State, (No. 19727.)

• Decision Date: 11 June 1929
• Docket Number: (No. 19727.)
• Citation: 148 S.E. 618,39 Ga.App. 829
• Parties: O'QUINN et ux. v. STATE.
• Court: Georgia Court of Appeals

39 Ga.App. 829

148 S.E. 618

O'QUINN et ux.

v.STATE.

(No. 19727.)

Court of Appeals of Georgia, Division No. 1.

June 11, 1929.

(Syllabus by the Court.)

Error from City Court of Baxley; M. E. Wood, Judge.

Isham O'Quinn and wife were convicted of riot, and they bring error. Affirmed.

J. B. Moore and J. P. Highsmith, both of Baxley, for plaintiffs in error.

Wade H. Watson, Sol., of Baxley, for the State.

LUKE, J. Isham O'Quinn and his wife, Mrs. Bertha O'Quinn, were jointly charged with the offense of riot, and were jointly tried and convicted. They demurred to the accusation, and, on the overruling of the demurrer filed exceptions pendente lite. In their bill of exceptions they assign error on the overruling of the demurrer, and on the overruling of their motion for a new trial.

The accusation was sufficient to withstand the demurrer.

The substance of the testimony is that Isham O'Quinn went to the home of Miss Annie Laurie Heape, who was living at the home of Mr. and Mrs. Lightsey, and demanded that she pay him for an incubator, or for the use of the incubator. Miss Heape stated that the incubator was no good, and that she had turned it back and did not owe anything on it. O'Quinn "became very angry and cursed, and said he was going to get his wife and bring her over there and have her beat hell out of Miss Heape." He did go and got his wife and brought her back, and then "took the baby from his wife and told her to go ahead." Mrs. Lightsey asked O'Quinn "to take his wife away, and he refused to do so." Miss Heape told Mrs. O'Quinn "not to come in, and that if she did I would strike her with the chair. She, Mrs. O'Quinn, came upon the porch, and appeared to be in a rage. She used a lot of bad language and picked up a hot iron that was on the porch where the girls had been ironing. Mrs. Lightsey prevented her from coming in. She then started around the house, and when she got to a window threw the iron at me through the window." Mrs. O'Quinn, in her statement at the trial, did not deny that she went there, or that she "used a lot of bad language, " or that she threw the hot iron through the window at Miss Heape; but she did state that she was not guilty of the offense charged, and "that her husband did not have anything to do or say in it."

There is no merit in the general grounds of the motion for a new trial. According to the testimony, Isham O'Quinn said he was going to get his wife and have her beat hell out of the prosecutrix, and he did go and get her, and refused, upon request, to take her away, and took the baby from her and told her to go ahead. Mrs. O'Quinn did "go ahead, " according to the evidence. "If two or more persons do an unlawful act of violence, or any other act in a violent and tumultuous manner, they shall be guilty of a riot." Penal Code (1910) § 360. And "all persons connected with and sharing in the common purpose of the assembly were guilty of riot, whether their conduct was violent and tumultuous or not." Green v. State, 109 Ga. 536 (2), 35 S. E. 97. (Italics ours.)

The first special ground of the motion for a new trial alleges that the defendants were tried jointly; that under the act creating the city court of Baxley, as amended, the defendant has four strikes and the state two; that movants contended that they were entitled to four strikes or challenges each, giving them together eight strikes; that the court ruled that the defendants were not each entitled to four strikes, but together were entitled to four strikes; and that this ruling was error. Neither the state nor the defendants elected to sever. There was no evidence or allegation that any unknown party, or any one other than the two defendants on trial, participated in the alleged riot. It is settled by section 360 of the Penal Code (1910), and by Lewis v. State, 5 Ga. App. 497, 63 S. E. 571, that the offense of riot "is a joint offense, for which one person alone can not be indicted or convicted, " unless it be shown that the party named, jointly with one or more others whose names are unknown, participated in the unlawful act or acts that constitute the offense of riot. In the instantcase, since only the two defendants were involved, if one were acquitted, the other alone could not have been guilty of riot; and consequently the acquittal of one meant the acquittal of both. It takes two or more to commit the offense of riot. It is the general rule that "where there is a joint trial under a joint indictment, each defendant may challenge the whole number of jurors to which he would be entitled if tried separately." And thus each defendant would get the benefit of his own challenges and the challenges of his codefendants. However, in this state there is a well-recognized exception to this rule; and that exception is that where two persons are jointly indicted for an offense that requires their joint action or concurrence, such as riot or affray, and there is no allegation or contention that any other person participated in the crime, and neither the state nor the defendants elect to sever, and the defendants are tried jointly, and the acquittal of either will operate as an acquittal of both, they may be required to join in their challenges. This exception to the general rule was followed by the Supreme Court in 1853, and has been consistently followed ever since. An affray, like a riot, requires two or more persons (see sections 360 and 361 of the Penal Code), and the Supreme Court, in Hawkins v. State, 13 Ga. 324, 58 Am. Dec. 517, in passing on a motion for a new trial where two were indicted for an affray, said: "The defendants are to be tried together, and for the purposes of the trial, and in making their defense, are to be considered as having one common interest; and this view of the question disposes of the objections made to the refusal of the court to allow each defendant to strike seven of the jurors peremptorily. * * * Where two are indicted for an affray, the successful defense of one will operate as an acquittal of both. * * * Let the judgment of the court below be affirmed."

Since the ruling of the Supreme Court quoted above, this court has by direction of law refrained from conflicting therewith. In ...