Small v. The State Of Ga.

• Decision Date: 30 September 1879
• Parties: Small. v. The State of Georgia. Johnson v. The State of Georgia.
• Court: Georgia Supreme Court

63 Ga. 386

Small. v. The State of Georgia. Johnson v. The State of Georgia.

Supreme Court of the State of Georgia

(September Term, 1879.)

Criminal law. Jeopardy. Before Judge Tompkins. Chatham Superior Court. February Term, 1879.

At a special term for the trial of criminal cases, held in the county of Chatham, in the month of April, 1878, Johnson and Small were placed on trial for the offense of murder, alleged to have been committed upon one McDermott. The former was found guilty of murder, the latter of voluntary manslaughter. They moved in arrest of judgment upon the ground that the term at which they were tried was a special term of the superior court of said county, held under an order passed by Judge Tompkins, of the Eastern circuit, which comprises the county of Chatham, and Judge Johnson, of the Middle circuit, before whom they were tried, had no authority to try or sentence them. After argument had, the motion was sustained.

At the regular February term, 1879, of the superior court, they were again arraigned on the same indictment, when they pleaded as former jeopardy the proceeding above detailed. The plea was overruled, the defendants severed, and were tried with the same result as before. Each moved for a new trial upon numerous grounds, amongst them, because of alleged error in overruling the special plea of former jeopardy. The motions were overruled, and they excepted.

Johnson also moved in arrest of judgment that of former jeopardy, are not deemed sufficiently material to be reported.

J. J. Abrams, by R. E. Lester; R. D. Walker, Jr., for plaintiffs in error.

R. N. Ely, attorney-general; A. B. Smith, solicitor-general, for the state.

*BlEckley, Justice.

The bill was found at a regular term of the superior court, and was in all respects a good indictment. The special term was appointed by the judge of the circuit, but was opened and held by the judge of another circuit. The statutory provisions which were supposed to be applicable are in sections 242, 243 and 3245 of the Code, which, thrown together, are as follows: "The jurisdiction of the judges of the superior courts is co-extensive with the limits of this state, but they are not compelled to alternate unless required by law. Each of the said judges shall discharge all the duties required of him by the constitution and laws, for the circuit for which he was elected or appointed, although he may hold courts in other circuits, and may also exercise other judicial functions for them when permitted by law. The judges of the superior courts of this state may, in their discretion, hold adjourned terms of said courts in every county within their respective circuits, when the business requires it to close the dockets, and may, in the exercise of a sound discretion, cause new juries to be drawn for the same, or order the juries drawn for the regular term to give their attendance at such adjourned terms; and such judges are authorized to hold special terms of said courts for the trial of criminals, in any county of their circuits, at discretion, and to compel the attendance of grand and petit jurors, either of a previous term, or to draw new jurors for the same, according to the laws now of force." After verdicts of guilty were rendered at the special term, each of the prisoners moved in arrest of judgment. The motion made by Johnson is not copied in the record, but there is a recital of its substance. That made by Small was upon the sole ground that Judge Johnson, "holding court outside of his said circuit, has no authority under the statute of the state of Georgia to try or to sentence the said defendant, and that the discretion to hold said court is vested in thehonorable Henry B. Tompkins, and not in the honorable *Herschel V. Johnson." The final order on Small\'s motion was in these terms: "After argument heard on the foregoing motion, it is ordered that the same be, and it is hereby sustained, and that the judgment be arrested." The final order on Johnson\'s motion was as follows: "It appearing to the court that John Johnson, who has been on trial for the offense of murder in this court, has been convicted, and a motion in arrest of judgment having been made, based upon the want of jurisdiction of the court, caused by the illegality of the judge of themiddle circuit presiding over a special term for the trial of criminal cases in Chatham county, in the eastern circuit, it is ordered, adjudged and decreed, that the said John Johnson be remanded to jail, and that the verdict be set aside." These orders were passed during the special term, and each of them was signed by Herschel V. Johnson, as the judge presiding. The second trial of the prisoners took place upon the same indictment, at a regular term of the court, and Judge Tompkins presided. The special plea filed by Small set out the indictment, the plea of not guilty, the verdict, and all the proceedings had at the special term, and alleged that upon the same indictment, for the same offense, he being the same identical person, he was, at the special term, put in jeopardy, tried and found guilty of voluntary manslaughter, and the verdict duly received and recorded; and that afterwards, "the judgment in said cause was duly arrested by the judge of said court as appears of record." By Johnson, two special pleas were filed, one of them alleging "that he has been convicted once by a jury of his countrymen, in Chatham superior court, all of which appears of record; that he now pleads autre fois convict, and says he cannot be tried again, under the constitution of Georgia, as that prohibits a second jeopardy, " etc., and the other alleging "that he cannot be tried upon the same indictment; that after an arrest of judgment that is the end of the first indictment, and he cannot be tried again under said indictment, that a new indictment must be found." *The special pleas were all stricken. After the second verdict of guilty Johnson moved in arrest of judgment, the ground being substantially the same as the matter of his second special plea. The motion was overruled.

1. Notwithstanding the difference in phraseology of the two final orders granted at the special term, we think the orders the same in substance. It is obvious that they were granted on motions similar in their nature, and that the ground of the...