Waller v. State

• Decision Date: 24 May 1898
• Citation: 104 Ga. 505,30 S.E. 835
• Parties: WALLER. v. STATE.
• Court: Georgia Supreme Court

30 S.E. 835

104 Ga. 505

WALLER.

v.STATE.

Supreme Court of Georgia.

May 24, 1898.

Former Jeopardy—What Constitutes—Review.

1. One who, upon an indictment for murder, has been convicted of voluntary manslaughter, and to whom, upon his own motion, a new trial has been granted, may again be tried for murder. The true intent and meaning of paragraph 8, § 1, art. 1, of the constitution, which declares that "no person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of mistrial, " are that one who, after conviction upon an in dictment, voluntarily seeks and obtains a new trial thereon, becomes subject to another trial generally for the offense therein charged.

2. There was no material error in any of the charges or refusals to charge of which complaint is made, the evidence warranted the verdict, and the court therefore did not err in refusing a new trial.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Pelton, Jr., Judge.

Charlie Waller was convicted of voluntary manslaughter, and brings error. Affirmed.

John R. Cooper and Marion W. Harris, for plaintiff in error.

Robt. Hodges, Sol. Gen., for the State.

SIMMONS, C. J. Waller was indicted for the offense of murder. He was put upon trial, and was convicted of murder. He moved for a new trial, and, when this motion was overruled, brought the case to this court, where the new trial was granted. 28 S. E. 77. He was again tried in the lower court, and convicted of voluntary manslaughter. He made another motion for new trial, which was overruled by the trial court, and granted by this court. 28 S. E. 284. Upon his third trial, when arraigned in the lower court, he filed pleas alleging that he had been once acquitted of the crime of murder by the verdict of the jury finding him guilty of voluntary manslaughter, and could not be again put in jeopardy for the same offense; that he was being denied due process of law, and the equal protection of the laws; that he could not be again tried upon the indictment for murder, and the same should be quashed; and that he submitted himself for reindictment for voluntary manslaughter. The state's counsel demurred to this plea, the demurrer was sustained by the court, and the pleas were stricken. The trial proceeded, and Waller was again convicted of voluntary manslaughter. He moved for a new trial, and the motion was overruled by the court. To this ruling he excepted, and again brought the case here for review.

1. One of the grounds of the motion for new trial is that the court erred in striking the defendant's special pleas, and this ruling is alleged as error in the bill of exceptions also. In the argument of this point before this court, learned counsel for the plaintiff in error read and cited many authorities, opinions of text writers, and decisions of other courts to the effect that the pleas filed by the accused should have been sustained. We have carefully read those authorities, and frankly admit that they are from writers and courts of great respectability, and that, if our laws were the same as those of the states wherein the decisions were rendered, we would be inclined to follow them, as a sound exposition of the constitution and laws In regard to this matter, although there is considerable authority to the contrary. The question has never been directly decid-ed by this court. The case of Bailey v. State, 26 Ga, 579, was decided at a time when the provision of our constitution upon the subject of jeopardy was the same as those of the constitutions of the United States, and of the states where the decisions above alluded to were rendered. The decision in 26 Ga. does not deal with this directly, as a matter of constitutional rights, but as a question of pleading and evidence, as will be seen by reference thereto. We could base upon that case our decision of the present one, as the pleadings are the same; but inasmuch as the soundness of that case has been doubted and questioned by other state courts, and by some of the United States circuit courts, we prefer to rest the decision of this case upon the constitution of our state. Prior to the constitution of 1865 all of the constitutions of this state had read, In regard to this matter, "No person shall be put in jeopardy of life, or liberty, more than once for the same offense." Under the same or a similar provision, many courts had held that a person who had been tried for murder, and convicted of a lower offense, was by the verdict, acquitted of the higher offense, and could not be again put upon trial for it. When the constitutional convention of 1865 (of which the writer was a member) met and organized, Charles J. Jenkins was appointed chairman of the committee to draft a new constitution. He was at that time a member of the supreme court of Georgia, and had served for several years. Judge Jenkins had doubtless read the various opinions of the courts and text writers upon this question, and, in order to put the question at rest in this state, he added to the provision of the older...