Webb v. State, 9532.

• Decision Date: 14 July 1933
• Docket Number: No. 9532.,9532.
• Citation: 177 Ga. 414,170 S.E. 252
• Parties: WEBB. v. STATE.
• Court: Georgia Supreme Court

177 Ga. 414

170 S.E. 252

WEBB.

v.STATE.

No. 9532.

Supreme Court of Georgia.

July 14, 1933.

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Syllabus by the Court.

The Court of Appeals certified the following question: "An indictment charged in five separate counts four separate robberies and one separate attempt to rob, it being alleged in the indictment that the five crimes were committed at different times and places and upon different persons, and there being no allegation that the separate offenses charged had some continuity of purpose or intent, so as to make them a part of a general plan or scheme. Was the indictment subject to the following written and timely presented demurrer: 'The indictment seeks to join in one indictment, in five separate counts, five separate and distinct criminal charges and transactions involving distinct and separate offenses alleged to have been committed at separate and distinct times and against separate and distinct persons or individuals, which is not permitted in the same indictment, as all of said charges are felonies, and it is not permissible in any case to try a defendant on the same indictment for more than one distinct felony. The indictment should be quashed, unless the State shall strike from said indictment four of said counts charging separate and distinct felonies, and proceed against the defendant on only one felony charge?'" Answered in the negative.

ATKINSON, J., dissenting.

Certified Question from Court of Appeals.

B. P. Webb brings error to the Court of Appeals, which certifies a question.

Question answered.

R. D. Feagin and J. E. Feagin, both of Macon, for plaintiff in error.

Chas. H. Garrett, Sol. Gen., of Macon, for the State.

BELL, Justice.

The question as propounded by the Court of Appeals, and set forth in the headnote, is answered in the negative. In 14 R. C. L. 190, § 41, it is stated: "Every separate count charges the defendant as if he had committed a distinct offense, because it is upon the principle of the joinder of offenses that the joinder of counts is admitted, and in strict point of law, it is permissible to insert several distinct offenses of the same class, though committed at different times, in different counts in the same indictment against the same offender, in the absence of statute prohibiting the joinder of more than one offense in the same indictment." Of the several cases cited in support of this text, see especially the following: Sarah v. State, 28 Miss, 267, 61 Am. Dec. 544; Hampton v. State, 8 Humph. (Tenn.) 69, 47 Am. Dec. 599; Ben v. State, 22 Ala. 9, and cases cited in note in 58 Am. Dec. 234. In 1 Chitty's Criminal Law (5th Am. Ed.), 252, is the following statement: "In cases of felony, no more than one distinct offense or criminal transaction at one time should regularly be charged upon the prisoner in one indictment, because, if that should be shown to the court before plea, they will quash the indictment lest it should confound the prisoner in his defense, or prejudice him in his challenge to the jury; for he might object to a juryman's trying one of the charges, though he might have no reason to do so in the other; and if they do not discover it until afterwards, they may compel the prosecutor to elect on which charge he will proceed....