Sutton v. State

• Decision Date: 15 February 1906
• Citation: 53 S.E. 381,124 Ga. 815
• Parties: SUTTON v. STATE.
• Court: Georgia Supreme Court

53 S.E. 381

124 Ga. 815

SUTTON v. STATE.

Supreme Court of Georgia

February 15, 1906

Syllabus by the Court.

Where an indictment or special presentment contained four counts charging respectively that a man was guilty of fornication with a named woman, both of them being alleged to be single that he was guilty of adultery with the same woman, both of them being alleged to be married; that he was guilty of adultery and fornication with her, he being alleged to be married and she to be single; and that he was guilty of adultery and fornication with her, he being alleged to be single and she to be married, the court was not bound to require the state to elect on which of these counts it would try the accused.

In such a case, after the evidence for the state had been partly introduced and a motion had then been made to require the state to elect on which count it would proceed, if the court granted such motion, there was no error in not requiring the election to be made until the evidence for the state was closed.

Where the evidence showed that on several occasions the defendant who was a married man, visited the house where the woman lived with whom he was charged to have committed adultery and fornication, and that he had once or twice been seen lying in or on the bed with her, it was competent to prove that her general reputation was that of a prostitute, and that the house at which she lived was generally reputed to be a bawdyhouse.

The evidence authorized a conviction, and none of the grounds of the motion for new trial require a reversal.

Error from Superior Court, Miller County; E. J. Reagan, Judge.

Arthur Sutton was convicted of crime, and brings error. Affirmed.

Wm. I Greer, for plaintiff in error.

J. A Laing, Sol. Gen., and R. R. Arnold, for the State.

LUMPKIN, J. (After stating the foregoing facts).

1. One ground of the motion for a new trial was that after the jury had been impaneled and sworn, and some of the evidence had been submitted to them, the state offered evidence to prove that Annie Ethridge was a single woman. The defendant objected to this, on the ground that the special presentment alleged that she was a married woman. The solicitor general replied that it contained four counts. The defendant requested that the state be required to elect on which it relied for conviction. The court held that the state would not be required to elect until all the evidence was in. There was no demurrer to the presentment. It appears in another part of the record that at the close of the evidence for the state, an election was required.

In State v. Hogan, R. M. Charlt. 474, it was said: "Where two distinct felonies are charged upon the prisoner in one indictment, the court may before plea quash the indictment, or, after plea compel the prosecutor to elect on which charge he will proceed. But this rule is to be exercised by the court in its discretion, and will be enforced, when the prisoner may be confounded in his defense, or prejudiced in his challenges, or where the attention of the jury will be distracted by such joinder. And it does not apply, unless the charges are actually distinct, and grow out of different transactions. The court will not compel the prosecutor to elect upon an indictment charging prisoner with larceny, and receiving stolen goods, etc., when it appears by the indictment that the charges relate to the same transaction, modified to meet the proof." In 1 Bish. New Crim. Proc. § 454, subsec. 2, it is said: "We have seen that this compelling of an election pertains rather to judicial discretion than to absolute law. So that in most of our states the determination of the judge thereon will not ordinarily be revised by the higher tribunal. In some states it will; perhaps under special circumstances in all." In sections 457 and 458 it is said: "In felony in states wherein the combined counts are restricted to one felonious transaction, the prosecution will be required to confine its evidence to some particular transaction which it selects. Where the counts are for different felonies really or supposed to be connected with the one transaction, as, larceny and receiving stolen goods, or larceny and abetting the same, or embezzlement and larceny, or making a forged writing and uttering it, or one felony in different degrees, and, a fortiori, where one felony is set out in various ways in the different counts to meet diversities in the proofs, no election of counts will ordinarily be required, but all will be left open for the jury to pass upon in their verdict. In misdemeanor, or in any grade of crime, if by a statute or usage there can be a conviction for only one offense in fact, rules like those just stated prevail the same as in felony. But commonly in misdemeanors, though not quite without exception, two or more congruous offenses may be charged in different counts, and punished substantially the same as though they were different indictments." In Lynes v. State, 46 Ga. 208, it was said: "In cases of misdemeanors, the joinder of several offenses in the indictment will not, in general, vitiate the proceedings at any stage of the prosecution." And in the opinion of Chief Justice Warner (page 210) it was said that "in offenses inferior to felony, the practice of quashing the indictment, or calling upon the prosecutor to elect on which charge he will proceed, does not exist." See, also, Davis v. State, 57 Ga. 67; Dohme v. State, 68 Ga. 339; Williams v. State, 107 Ga. 693, 33 S.E. 641. In Johnson v. State, 26 Ga. 611, it was held that "if an indictment contains two counts varying the charges against the defendant for the commission of the same act, when, on the conviction of the defendant on either, the grade of punishment may be the same, the Attorney General cannot be compelled to elect on which count he will put him on trial." Johnson's Case is cited approvingly in Jackson v. State, 76 Ga. 568. See, also, Stewart v. State, 58 Ga. 577 (3); Memmler v. State, 75 Ga. 576. In Long v. State, 12 Ga. 293, it was said that "two distinct offenses cannot be joined in the same count in an indictment." In Gilbert v. State, 65 Ga. 449, it was held, that "it is a general rule that a defendant cannot be charged with separate and distinct offenses in the same indictment; but offenses which are of the same nature, and differ only in degree, may be joined in an indictment. Further, there are some offenses, though not of the same nature, which may be incorporated in the same indictment, if they constitute but one transaction, but not otherwise." In that case the indictment contained but two counts, by the first of which the accused was charged with burglary and larceny from the house, and by the second with receiving stolen goods. In illustrating the general rule which he announced, that distinct and separate offenses cannot be charged in the same indictment, Justice Crawford referred to larceny and perjury, but added that "the same offense; that is, the same species of offense, may be charged in different ways in several counts to meet the evidence." See, also, Hoskins v. State, 11 Ga. 92; Stephen v. State, 11 Ga. 225; Williams v. State, 72 Ga. 180; Sims v. State, 110 Ga. 290, 34 S.E. 1020; Walker v. State, 118 Ga. 772, 45 S.E. 621; Cody v. State, 118 Ga. 784, 45 S.E. 622; Welborn v. State, 119 Ga. 429, 46 S.E. 645; Bashinski v. State, 123 Ga. 508, 51 S.E. 499.

As to counts varying the allegations in regard to the same transaction in a civil case, see Gainesville Railroad Co v. Austin, 122 Ga. 823, 50 S.E. 983. In Wasden v. State, 18 Ga. 264, it was held that an indictment for adultery and fornication against a single person is good; and it was said that "the offenses here prohibited are all joint offenses. Each is the offense of a man and a woman acting jointly. The remedy here provided is, however, a several remedy, is a separate indictment against each--the man and the woman." In Foster v. State, 41 Ga. 582, it was held that under the Code, the man and woman could not be jointly indicted; but must be indicted severally. There was no question of the form of the indictment against one. In Kendrick v. State, 100 Ga. 360, 28 S.E. 120, it was held that under the Penal Code there are three distinct kinds of indictable sexual intercourse; and that if a man was indicted for adultery alleged to have been committed with a married woman, and the proof showed that she was not married, the verdict of guilty could not be upheld. In that case there was only one count, charging adultery, and it was held that the proof must correspond to the charge; but there was no ruling that there could not be different counts to adapt the indictment to the result of the proof. See, also, Heath v. State, 91 Ga. 126, 16 S.E. 657; Bennett v. State, 103 Ga. 66, 29 S.E. 919, 68...