Watson v. State

• Decision Date: 09 December 1902
• Citation: 43 S.E. 32,116 Ga. 607
• Parties: WATSON v. STATE.
• Court: Georgia Supreme Court

43 S.E. 32

116 Ga. 607

WATSON v. STATE.

Supreme Court of Georgia

December 9, 1902

Syllabus by the Court.

1. The common-law rule that when an indictment charged an offense which included within it another less offense, or one of a lower degree, the accused, though acquitted of the higher offense, might be convicted of the less, is of force in this state, though there is no statute expressly adopting the rule.

2. The common-law qualification of this rule, however, that a conviction for a misdemeanor could not be had under the charge of a felony, has never been of force in this state.

3. But the general rule is to be qualified to the extent that the lesser offense must either necessarily be included in a general charge of the greater, or, if it may or may not be then the averments of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser.

4. Under an indictment for murder, the accused may be convicted of a lower grade of felony, or even of a misdemeanor, if the lesser offense is one involved in the homicide, and is sufficiently charged in the indictment.

5. An indictment for murder which alleges that the accused "a certain pistol, loaded with gunpowder and leaden ball, which [the accused] then and there had and held in, at, towards and upon [a named person], unlawfully, feloniously willfully, and of his malice aforethought did shoot off and discharge, giving to [such person] then and there a mortal wound," of which he died, sufficiently charges the offense of shooting at another, and under such indictment the accused may be convicted of that offense.

6. When, under such an indictment, there is a verdict finding the accused guilty of the offense of shooting at another, it is not erroneous to overrule a motion in arrest of judgment. Upon the hearing of such a motion the court looks only at the indictment and the verdict, the presumption being that the evidence lawfully authorized such a verdict.

7. Whether such a verdict could lawfully stand as against a proper motion for a new trial, when the evidence required a finding that the person shot at died from the effects of the wound given by the accused, is a question not involved in the present case, and will not now be decided.

Error from superior court, Chatham county; Pope Barrow, Judge.

Cicero Watson was convicted of shooting at another, and brings error. Affirmed.

Robt. L. Colding, for plaintiff in error.

W. W. Osborne, Sol. Gen., for the State.

COBB J.

Under an indictment for murder, the accused was convicted of the statutory offense of shooting at another. He makes the point in a motion to arrest the judgment that such a finding was not legally possible under the indictment upon which he was arraigned. The question, therefore, to be determined, is whether under this indictment it was possible, under any conceivable state of facts, for the accused to have been convicted of the offense of shooting at another. Or to state it differently, can a person ever be convicted, under an indictment for murder or manslaughter, of an offense not involving a homicide? The court cannot, of course, on a motion in arrest of judgment, look to the evidence, but must assume that the finding was warranted thereby. In dealing with the point thus made, it may be well at the outset to remark that it is an open question in this state, and that we are at liberty to consider the case unhampered by any previous adjudication.

It was a rule of common law that "when an indictment charged an offense which included within it another less offense, or one of a lower degree, the defendant, though acquitted of the higher offense, might be convicted of the less." Stapp v. State, 3 Tex. App. 138, 144; 1 Chit. Cr. Law, 250; Whart. Cr. Ev. (9th Ed.) § 130; 1 Bish. New Cr. Law, § 780; 1 Bish. New Cr. Proc. § 417; 2 Hawk. P. C. 620. The rule has also been stated to be that "if in the indictment an offense is stated which includes within it an offense of minor extent and gravity, of the same class, then the prisoner may be convicted on that indictment of the minor offense, though the evidence fail as to the major." 1 Rosc. Cr. Ev. (8th Ed.) p. 123. This rule was, however, subject to the qualification that under an indictment for a felony the accused could not be convicted of a misdemeanor. The reason for this qualification was that a person charged with a misdemeanor was entitled to certain privileges to which a person indicted for a felony was not entitled. These privileges were the right to appear by counsel, and to have a copy of the indictment and a special jury; and the object of this qualification to the general rule was to prevent the crown from indicting for a felony a person really guilty of a misdemeanor, and thus deprive him of the special privileges to which he was entitled. See 1 Chit. Cr. Law, 252; Stapp v. State, supra; 10 Enc. Pl. & Prac. 543; 1 Whart. Cr. Law (10th Ed.) § 544; Whart. Cr. Pl. & Prac. (9th Ed.) § 249; 1 Chit. Cr. Law, § 639; Clark, Cr. Law (2d Ed.) 43. The distinction between felonies and misdemeanors in the respect just noted was, however, changed by statute in England, though it seems that the statute was later repealed. See 1 Russ. Crimes (6th Ed.) 45.

In most, if not all, the states of this country, the reasons for this distinction, as stated by the authorities cited above, never existed. With us the rights of the accused on a trial for a felony are as well protected as upon a trial for a misdemeanor. Indeed, in Georgia a person accused of a felony has some rights and privileges which a person charged with a misdemeanor does not have. For these reasons, in the majority of the states the general rule stated above is held to be applicable, even though the minor offense be a misdemeanor. In this state the qualification to the rule has never been adopted. On the contrary, there are numerous decisions of this court where convictions for misdemeanor offenses have been upheld under indictments for felonies. See Wilson v. State, 53 Ga. 205; Hopper v. State, 54 Ga. 389; Bard v. State, 55 Ga. 319; Trowbridge v. State, 74 Ga. 431; Malone v. State, 77 Ga. 767 (4a); Jenkins v. State, 92 Ga. 470, 17 S.E. 693. There have been numerous other decisions where the two offenses belonged to the same generic class, though the punishment fixed by the statute for the offense of which the prisoner was convicted was in some instances less severe than in that for which he was indicted. See Reynolds v. State, 1 Ga. 222; Whilden v. State, 25 Ga. 396, 71 Am.Dec. 181; Ward v. State, 56 Ga. 408; Williams v. State, 60 Ga. 88; Polite v. State, 78 Ga. 347; Lavender v. State, 107 Ga. 707, 33 S.E. 420; Sessions v. State, 115 Ga. 18, 41 S.E. 259; Moody v. State, 54 Ga. 660 (4); Wostenholms v. State, 70 Ga. 720; Brown v. State, 90 Ga. 454, 16 S.E. 204; Gaines v. State, 108 Ga. 772, 33 S.E. 632. In Bell v. State, 103 Ga. 401, 30 S.E. 296, 68 Am.St.Rep. 102, Mr. Justice Fish took occasion to say that "the technical rule of the old common-law pleaders that a misdemeanor is always merged into a felony when the two meet, and that therefore upon an indictment for a misdemeanor the accused should be acquitted if the evidence shows that offense was a felony, and upon an indictment for a felony there should be an acquittal if the evidence shows the offense to have been only a misdemeanor, has long since been abolished in this state." And we might repeat here what was said above,--that the technical rule just referred to has never existed in Georgia since it became a state. In the present case, however, both of the offenses are felonies; and so, even if the rule just referred to were of force in Georgia, it would not be decisive of this case. See Pen. Code, § 113.

What might with some propriety be called the American rule (that is, the English common law, without the qualification with respect to misdemeanors) is the one of force in Georgia. That rule has been stated in this way: "Where a court has general jurisdiction over both misdemeanors and felonies, one may be convicted therein, under an indictment for one crime of any crime proved by the evidence, provided it is included in the crime charged and embraced within the terms of the indictment; and this is true although the crime charged should be a felony, and the one proved but a misdemeanor, except in those states or jurisdictions where the doctrine of merger is in force." 7 Cr. Law Mag. & Rep. 160. Many of the states have a statute embodying substantially the provisions of the foregoing quotation. There is in this state no such statute, but the rule is none the less of force here. The question, then, is whether, under the operation of this rule, a person can be convicted under an indictment for murder for an offense which does not involve a homicide. The weight of authority is that he can. Nevada, Texas, Kansas, Arkansas, and Iowa have statutes which provide, in substance, that the accused may be convicted of any offense which is necessarily included in the crime charged in the indictment. In Nevada it has been held that under an indictment for murder the accused might be convicted of assault with intent to murder. Ex parte Curnow, 21 Nev. 33, 24 P. 430. In Iowa it was held that under an indictment for murder the accused might be convicted of an assault with intent to commit a great bodily injury. State v. Parker, 66 Iowa 586, 24 N.W. 225. In Kansas it was held that a verdict for assault and battery would be upheld under an indictment for murder, if the assault and battery were alleged in the indictment. In the opinion the statute of Kansas is cited as an additional reason why the conviction could be upheld, but it is distinctly stated that such a conviction would...