Tribble v. State, (No. 7161.)
| Decision Date | 13 June 1929 |
| Docket Number | (No. 7161.) |
| Citation | 148 S.E. 593,168 Ga. 699 |
| Parties | TRIBBLE et al. v. STATE. |
| Court | Georgia Supreme Court |
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(Syllabus by Editorial Staff.)
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Jesse Tribble and another were convicted for larceny, and they bring error. Affirmed.
Jesse Tribble and John Dixon were jointly indicted for the larceny of an automobile. The indictment alleged that they had been previously jointly convicted and sentenced for the larceny of another automobile. Counsel for the defendants moved to quash the indictment, upon the grounds: (a) That said allegation was highly prejudicial to them, tended to charge and prove their bad char: acter before they had in any manner placed their characters in issue; (b) that said allegation deprived them of their constitutional guarantee of a fair and impartial trial by Jury, and violated paragraph 5 of section 1 of article 1 of the Constitution of this state; and (c) that because of said allegation they would be twice placed in jeopardy for the same offense, in violation of paragraph 8 of section 1 of article 1 of the Constitution of this state.
The court overruled the motion to quash the indictment, and the defendants excepted pendente lite, and they assign error on said ruling. They were convicted, and made a motion for a new trial upon the general grounds and on the following special grounds:
The court overruled the motion for new trial, and the defendants excepted.
Jones & Anderson, of Atlanta, for plaintiffs in error.
John A. Boykin, Sol. Gen., and J. W. Le Craw, both of Atlanta, for the State.
Syllabus Opinion by the Court.
HINES, J. [1] 1. If any person, who has been convicted of an offense and sentenced to confinement and labor in the penitentiary, shall afterwards commit a crime punishable by confinement and labor in the penitentiary, he shall be sentenced to undergo the longest period of time and labor prescribed for the punishment of the offense of which he stands convicted. Penal Code 1910, § 1068. This section does not violate paragraph 8 of section 1 of article 1 of the Constitution of this state, which declares that "no person shall be put In jeopardy of life, or liberty, more than once for the same offense." Civil Code 1910, § 6364.
(a) The propriety of inflicting severer punishment upon old offenders has long been recognized in this country and in England; and they are not punished a second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies heavier penalties when they are again convicted. Graham v. W. Va., 224 U. S. 616, 32 S. Ct. 5S3, 56 L. Ed. 917; Rand v. Commonwealth, 9 Grat. (Va.) 740, 741; King v. Lynn, 90 Va. 345, 18 S. E. 439; Kelly v. People, 115 111. 5S3, 4 N. E. 644, 56 Am. Rep. 184; Ingalls v. State, 48 Wis. 647, 4 N. W. 785; People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401; People v. Coleman, 145 Cal. 609, 79 P. 283; McDonald v. Mass., 180 U. S. 311, 21 S. Ct. 389, 45 D. Ed. 542; Moore v. Missouri, 159 U. S. 673, 16 S. Ct. 179, 40 L. Ed. 301; Cross v. State (Fla.) 119 So. 380 (7); State v. Moore, 121 Mo. 514, 26 S. W. 345, 42 Am. St. Rep. 542; State v. Findling, 123 Minn. 413, 144 N. W. 142, 49 L. R. A. (N. S.) 449.
(b) The punishment is for the last offense committed, and it is rendered more severe in consequence of the situation in which the accused previously brought himself. Ross' Case, 2 Pick. (Mass.) 165. The law simply prescribes a longer sentence for a second or a subsequent offense, for the reason that the prior conviction, taken in consideration with the subsequent offense, demonstrates the incorrigible and dangerous character of the accused, thereby establishing the necessity for an enhanced restraint. Bishop's Crim. Law (9th Ed.) § 993a.
2. Section 1068 of the Penal Code of 1910 does not violate paragraph 5 of section 1 of article 1 of the Constitution of this state, which guarantees to one accused of crime an impartial trial. The general rule is that, in a prosecution for a particular crime, proof and allegations of another crime wholly independent from that for which the defendant is on trial, even though it be a crime of the same nature, are irrelevant and inadmissible; but to this rule there are exceptions. Williams v. State, 152 Ga. 498, 521, 110 S. E. 286. One of these exceptions is where the grade or punishment of the second offense is made by statute different from...
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