Reynolds v. The State Of Ga.

• Decision Date: 31 July 1847
• Docket Number: No. 8.,8.
• Citation: 3 Ga. 53
• Parties: John Reynolds, plaintiff in error. vs. The State of Georgia, defendant in error.
• Court: Georgia Supreme Court

3 Ga. 53

John Reynolds, plaintiff in error. vs. The State of Georgia, defendant in error.

No. 8.

Supreme Court of the State of Georgia

JULY TERM, 1847.

Indictment for Murder, and trial and conviction for Voluntary Manslaughter. In Stewart Superior Court. Before Judge Alexander. April term, 1847.

The prisoner had been indicted before for the same offence, and was put upon his trial, and a jury was empaneled and swornto pass upon his case, when the solicitor general was permitted by the Court, to enter a nolle prosequi upon the bill of indictment, notwithstanding the objections of the prisoner, and the fact that a jury had been impaneled and sworn.

Upon the trial, the aforesaid proceedings under the first indictment were relied upon by the prisoner, as his defence in bar, and as tantamount in law to an acquittal. The Court below ruled out this defence, and held that it was no sufficient bar of the indictment then pending.

The offence charged, was committed before the repeal of the 48th section of the 14th division of the Penal Code of 1833 by the Act of. 1843, and before the change therein made, as to the mode of selecting jurors in criminal cases. It was therefore contended by the prisoner, that a jury to try him, could not be made under said 48th section of the 14th division of the Code, nor could such selection be made under the new law of 1843, the first being repealed, and the last ex post facto.

This objection was also overruled by the Court below. Upon these decisions, error was assigned. For a more minute statement of the facts of the case, see the opinion delivered by the Supreme Court.

Jones, Benning and Jones, and Hines Holt, for the prisoner, cited the following authorities: 2 Caines R. 100, 304; and 1 John. R. 66; and authorities cited in argument of counsel and in the decision of the Court; 2 John. Cases 301, and cases referred to; 18 John. R. 187; 9 Wheat. 579; 3 Rawle, 498; 6 Sergt. & R. 577; 2 Mass. R. 172; 9 Id. 474; 7 Porter, 187; 7 Ala. R. n. s. 610; 1 Bail R 651; 47 Eng. C. L. R. 200; 41 id. 351; 20 Pick. R. 365; 1 Dev. 491; Kinne Law Comp. 1844, 363; 34 Eng. C. L. R. 36; 6 Bac. Abr. 372 1 Wm. Black. 451; 1 Leach C. L. 271, 481; 2 id. 749; 4 Dallas R. 372; 9 Law L. 39; Starkie on Crim. Pl. 347, 375, 376.

Johnson, and Patterson Sol. Gen. S. W. Circuit for the State, representing Campbell, Sol. Gen. of the Chattahoochee Circuit, who was confined by indisposition and unable to attend in Court.

By the Court. —Lumpkin, J. delivering the opinion.

At May term, 1841, of the Superior Court of Stewart county, John Reynolds was put upon his trial for the murder of Jefferson J. Lamar, by twelve jurors, selected and sworn true deliverance to make between the State of Georgia and the prisoner at the bar. After the jury was thus charged with the case, the solicitor general, without assigning any cause, and without the consent of the defendant, entered a nolle prosequi on the bill of indictment. A new bill was preferred and found, for the same offence, at the October adjourned term of said Court, 1844; and two years thereafter, namely, October, 1846, the accused was again put upon his trial. Counsel for Reynolds objected to the trial\'s proceeding, on two grounds. First—Because they say, the Code of 1833, under which the crime is alleged to have been committed, has been repealed by the act of 1843, as to the qualification and mode of selecting jurors, in capital cases. And, secondly—Because the entry of nolle prosequi by the solicitor general upon the former bill of indictment for the same offence, after the case had been submitted to a jury, amounts to an acquittal.

After taking time to consider, Judge Alexander, at April term, 1847, overruled both objections, and ordered the trial to proceed; and the defendant being convicted of Voluntary Manslaughter, his attorneys excepted to the decision of the Circuit Court as disallowing the foregoing pleas.

The questions presented by the record for the determination of this Court, are of a highly interesting character, and of vital importance to the criminal jurisprudence of the State.

We feel deeply impressed with a sense of our responsibility, both to the prisoner and the people.

In the examination of the two grounds made by the bill [1.] of exceptions, I shall invert their order and dispose of the last first.

The 48th section of the 14th division of the Penal Code of 1833, Prince, 664, 665; (and which was in force at the date of the offence alleged to have been committed by Reynolds, provides that on all trials for crimes, where the punishment is death or imprisonment and labor in the Penitentiary, any juror may be put upon his voire dire, and the following questions shall be propounded to him, viz: "Have you formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar?" If the juror shall answer in the negative, then the following question shall be propounded to him: "Have you any bias or prejudice resting on your mind, either for or against the prisoner at the bar?"

By the Act of 1843, Pamphlet Laws, 137, this section is expressly repealed, and the following questions substituted in lieu of those therein propounded, viz: "Have you, from having seen the crime committed, or having heard any part of the evidence delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar?" "Have you any bias or prejudice resting on your mind for or against the prisoner at the bar?"

As to the first point, we recognize fully the position occupied by the defendant's counsel, to wit; that an offence against a statute, committed before the repeal, cannot be prosecuted after the repeal, without a special clause to allow it. This doctrine and the reasons for it are to be found in all the elementary works. It cannot be tried under the old law, for courts can only act by authority of law, and the State, whose right it is to release crimes and forfeitures against itself, having seen fit to repeal the statute, has thereby taken from the courts all power to proceed. And it cannot, of course, be tried under the new, as it would be ex post facto as to it. If this matter therefore depended upon the general principles, it would be clear for the defendant.

But the 34th section of the Penal Code, (Prince, 662,) enacts that, "all crimes and offences committed shall be prosecuted and punished under the laws in force at the time of the commission of such crime or offence, notwithstanding the repeal of such laws before such trial takes place."

Now here is a general statute, making special provision for this case, and which is untouched by the Act of 1843. This latter act virtually adopts the other, and the legal effect is the same as though the statute of 1843 contained a clause in itself, allowing for the prosecution of this previous offence, under the law against which it was committed.

It would be gratifying indeed if the other question was equally easy of solution. Be this as it may, the fate of this unhappy man and the welfare of society alike forbid, that this Court should falter for a moment, or shrink from its duty. We often painfully feel the disagreeableness of our situation; for we are men, and cannot of course be believed voluntarily to court calumny. But, in the language of the greatest jurist that ever presided in the courts of this or any other country, "If we have no choice in the case, if there be no alternative presented, but a dereliction of duty, or the opprobrium of those who are denomi-nated the word, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace."

The great principle upon which this second objection rests, is that laid down by Lord Coke in his Institutes, namely: "A jury sworn and charged in case of life or member, cannot be discharged by the court or any others." 1 Institute, 227. And again— "To speak it here once tor all, if any person be indicted of treason, or of felony, or larceny, and thereupon a jury is returned and sworn, their verdict must be heard and they cannot be discharged. 3 Institute, 110. The same rule is repeated by Hawkins. He observes, "It seem3 to have been anciently an uncontroverted rule, and hath been allowed even by those of a contrary opinion to have been the general tradition of the law, that a jury once sworn and charged in a capital case, cannot be discharged (without the prisoner's consent) till they have given a verdict. And notwithstanding some authorities to the contrary in the reign of King Charles II., this hath been holden for clear law, both in the reign of King James II., and since the revolution." 2 Hawk. P. C. ch. 47, sec. 1.

The cases here referred to as having occurred in the reign of Charles the Second, were those of Whitehead & Fenwick, where the juries were discharged because there was not sufficient evidence to convict, and in order to bring the prisoner to a second trial when the Crown would be better prepared—a practice which Mr. Justice Foster condemns as a "most unjustifiable proceeding, " and hopes that it may never be practiced again. Foster Crown Cases, 30. And Judge Hall, of North Carolina, in referring to the cases, animadverts, with becoming severity, upon the great hardship and manifest injustice of this practice to the prisoners. "These stains, " says he, "upon the administration of justice, show to what extremes, in a state of civil discord the passions of men urge them to trample upon the most salutary principles of law; and in what degrees judges, holding their office at the will of the sovereign, were eager to pander to his appetite for blood and forfeitures!" 1 Dev. 499.

It is true, that Lord Hale claims for the court, not only the power to discharge the jury where the prosecutor was not fully prepared with evidence, But says that it was usual at the goal delivery at Newgate, that if a jury be charged with several prisoners, and the court find by probable circumstances that...