Roberts v. The State Of Ga.

• Decision Date: 31 August 1853
• Docket Number: No. 3.,3.
• Citation: 14 Ga. 8
• Parties: Ezekiel A. Roberts and Gideon Copenhaven . vs. The State of Georgia.
• Court: Georgia Supreme Court

14 Ga. 8

Ezekiel A. Roberts and Gideon Copenhaven . vs. The State of Georgia.

No. 3.

Supreme Court of the State of Georgia

AUGUST TERM, 1853.

Indictment for Robbery, in Monroe Superior Court. Tried before Judge Starke, March Term, 1853.

The defendants, with others, were indicted for a robbery committed upon John Jackson of said County. At March Term, 1853, they filed a plea setting forth the record of a former indictment against them for burglary, upon which they had been tried and convicted, and which they averred to be the same felony, and none other, for which they were now indicted. To this plea, the Solicitor-General in writing demurred, denying its sufficiency in Law, to operate the acquittal of the defendants. Upon consideration of such demurrer, the plea was overruled by the Court, and the defendants required to answer over. They then pleaded "not guilty, " and moved to continue the cause, on the ground:

1st. That having been in close confinement since their arrest, by reason of the recent finding of the bill, they had not been able to subpœna witnesses, and prepare for trial.

2nd. That the popular feeling of the County was so excited against them, that they could not have an impartial trial.

The Court overruled this motion for reasons which will be found in the opinion of the Court delivered in this case. A jury was then impannelled and sworn. Before proceeding with the case, the presiding Judge was called out of the court-room for a short time, and left the jury in their box. While he was thus absent they left the box, and some of them the Courthouse. On his return, the Judge discovered this, and immediately proceeded to investigate the matter in the manner which will be found stated in the opinion delivered by this Court. After such examination, for reasons which will be in the same place stated, he ordered the trial to proceed.

When the case was submitted to the jury, they were charged by the Court, that if they found the defendants guilty, it must be on the first count (there being two counts to the indictment) inasmuch as the second was defective. The jury returned a verdict of "guilty on the first account." The court orderedthe syllable "ac" to be erased from the last word, the verdict then reading, "guilty on the first count." The defendants then, by their counsel, moved an arrest of judgment, on the grounds of the dispersion of the jury, and because the verdict was not a general verdict, according to the Statute in. such cases made and provided, but was a special verdict; which said motion was overruled by the Court. Thereupon, the defendants excepted to the above proceedings, assigning error on the following grounds:

1st. The Court erred in overruling the plea of autre fois convict.

2nd. In refusing the motion for continuance.

3rd. In proceeding with the trial after the dispersion of the jury, without leave, and without the attendance of an officer, and after the circumstances which had occurred.

4th. In charging the jury that they could return any other verdict in that case than a general verdict of guilty or not guilty.

5th. In ordering or permitting the Solicitor to alter or erase any portion of the verdict, without sending it back to the jury. 6th. In not arresting the judgment on the grounds taken.

Hammond & Lochrane, for the plaintiff in error.

Sol. Gen. Thrasher, represented by Glenn, for defendant.

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

The first point for our consideration, is the alleged error of the Court below in overruling the plea of autre fois convict.

To the plea of former conviction, filed by the defendants, the Solicitor-General demurred, insisting that it was not sufficient in Law, and that the defendants were bound by the Law of the State to answer the indictment. By thus demurring, the State's counsel whilst denying the legal sufficiency of the plea, and of the matters and things therein contained, to operatethe acquittal of the defendants, necessarily admitted the facts stated. Com. vs. Myers, 1 Virg. Ch. 232. The main fact stated, and on which the plea rested, was that the defendants had been previously convicted on the charge of burglary, that judgment had been rendered on said conviction, and that the felony of which they had been so convicted, was one and the same with the felony of which they then stood accused. Of course, the Solicitor, by so demurring, and admitting that this charge of robbery was the same felony, as that of which the defendants had been convicted, intended only to admit that the two indictments related to the same transaction, and did not mean to admit that the charge was the same in each case. Taking this then, as true, it becomes our duty to make the following inquiry: When a prisoner has been indicted for having burglariously broken and entered the dwelling of another with intent to steal the goods and chattels of the owner; and in order to manifest such intent on the trial, proof be adduced, that the prisoner did violently or by intimidation from the person of the owner, steal such goods and chattels; and he be convicted, and afterwards an indictment for the robbery committed at the time be found against him, can he then be tried, if he plead autre fois convict, for such robbery as a separate offence?

The case made by this record invokes an answer from us to this question. The record, it is true, does not show that upon the trial of these defendants for the burglary, that part of the evidence which was relied upon to show the felonious intent was the same with that which was offered upon the trial for robbery; but this is in effect admitted by the demurrer, to the plea, as we have shown; and thus the question presented, arises.

Of the sufficiency of the plea of former acquittal or conviction, the following is said to be a true test, viz.: whenever the prisoner might have been convicted on the first indictment, by the evidence necessary to support the second; or in other words, where the evidence necessary to support the second indictment would have sustained the first. Arch. C. P. 106. Rex.us. Clark, 1 B. and B. 473. People vs. Barrett, 1 John 56. Comm. vs. Cunningham, 13 Mass. 245. 9 Yerg. 357. 17 Wend. 386. State vs. Righer, 1 Rich. R. 222. Duckworth vs. The People, 4 Scamm. 172. 17 Pick. 400. 2 Hawks 98.

This may be said to be the case in all compound felonies. 1 Ross on C. 89. Note.

There seems to be some difficulty in applying this rule (as above expressed) in all cases. It may be said, that the prisoner could not have been convicted on the indictment for burglary, by the proof necessary to convict on the indictment for jobbery; and the evidence necessary to support the indictment for robbery, would not have ensured a conviction, on the prosecution for burglary. If the indictment for robbery, however, had been first tried, then upon the trial of the burglary, the proof necessary to support that last trial would have been such as would have been sufficient to sustain the first prosecution; because after proof of the breaking and entering by the prisoner, the State would have proceeded to prove the violent stealing from the prosecutor, in order to show the breaking, &c, with felonious intent; and this would have been proof of the robbery.

To avoid any confusion on this subject, we adopt the rule as it is otherwise more generally, and perhaps more accurately expressed, viz.: that the plea of autre fois acquit or convict is sufficient, whenever the proof shows the second cage to be the same transaction with the first. 7 Hump. 508. Thach. 206, 207. That rule is decisive of this case.

We regret that we are constrained to hold that it is so; for we have learned from this record, as well as from the statements of the counsel on both sides in the argument, that we have before us two great criminals—offenders who from the crowns of their heads to the soles of their feet, are steeped in the very dregs of crime. We are sorry to loosen the hold, which the strong arm of the Law has upon these bad men. But they live in a land of laws—they are tried by a Court which regards as almost holy, that maxim of our fathers, that "every man is to be presumed innocent, until proved to be guilty" according to Law; a Court which holds, that it is best to maintain the "rule prescribed, " as a sure and steadfast sign to the citizen of right and wrong; even though in doing so in a particular case, we suffer the most iniquitous of offenders to escape.

The rule above stated, by me, is that which is prescribed for this case, and it must be the law for these defendants.

This record shows, that the transaction referred to in the indictment for burglary, is the same with that in the prosecution for robbery, inasmuch as the pleader, in order to show the felonious intent, has made it necessary in the former to prove the circumstances of the stealing, and thus to involve the same transaction (the robbery) in both cases. If the pleader had alleged the breaking with felonious intent (which constitutes burglary,) and had been able to prove otherwise, than by proof of the robbery, that the felonious intent was manifested, then the two might not have constituted the same transaction. But this was settled by the demurrer; and the State's counsel having elected to make his proof of felonious intent in this way, has put his case within the application of the rule.

In passing sentence upon these defendants; after the conviction in the case of burglary, the Court no doubt graduated the penalty according to the circumstances of the transaction, thus taking into consideration the proof of the robbery; for it is to be presumed that a. breaking and entering of a dwelling house, accompanied by an actual robbery, would have been more severely punished than a breaking and entering with an intent to rob which was not consummated. If this be so, and the defendants have been held to some degree of punishment in consideration of the robbery, to try them again for it, would be, as...