Chandler v. Johnson , 39 Ga. 85 ( 1869 )

McCay, J.

1. The charge of the Court, that the defendant must prove that a felony had been actually committed, was, we think, too strong, and calculated, without explanation, to mislead the jury. The natural inference from the charge, is that it was upon the defendant to make out a clear case of guilt on his part. We do not think this is the law. It is sufficient if there be a bona fide charge against the defendant of a felony. Any stronger case than this, required to defend a note, tinctured with illegality, by reason of its being given to compound a felony, would make the law a farce. It is a high requirement of public policy that felonies shall be punished, since the law frowns upon any attempt to suppress the investigation of such a charge, and the agreement not to prosecute, is the illegality: Chitty on Contracts, 582, and note.

2. Stabbing, by our law, as it stood at the time of this transaction, was or was not a felony, in the discretion of the Court passing the sentence. It might be a felony since it was in the discretion of the Court to punish it by imprisonment in the penitentiary: Cobb’s Dig., 789. And this higher law is the criterion determining the grade of a crime not punishable with death : Cobb’s Dig., 780. This charge, therefore, might be a felony. That would depend on the investigation, and on the wise discretion of the Court, under the facts as they might appear on the trial. This, however, according to the defendant’s case, now under consideration, it was the very object of the contract set up to avoid, and clearly it comes within the reason and spirit of the law, against compounding a felony.

3. Without discussing what was the old law, it is sufficient to say that our Code, sections 2703, 2707, 2999, settles clearly the questions made on the second charge of the Court. Section 2999, whilst it expressly enacts that torts may be settled, that the person injured may receive compensation for the damages he has received, just as positively and just as clearly provides that any attempt to satisfy the public offence, or to suppress a prosecution therefor vitiates the whole agreement It makes no difference that the amount received or agreed to be paid is not more than a fair compensation for the injury, if the settlement of the felony forms any part of the agreement — is an ingredient entering into the intentions and promises of the parties, the whole agreement is illegal and void. So, too, section 2703 of the Code provides that if the consideration be illegal in whole or in part, the whole promise fails. A distinction must, however, be made between a void consideration and an illegal one. An illegal consideration is void, but a consideration may be void, though not illegal, a contract may have no consideration for a part of the promise, and one that has totally failed. In such cases, if it be possible to sever that part of the contract founded on this void or defective consideration from the good part, it may be done, and the good part will stand. But if the consideration for any part of it be illegal, the whole contract is void. The illegality corrupts and vitiates the whole, and the Courts will have nothing to do with it: Sec. 2703 of the Code.

Again, a distinction must be taken between the consideration and the promise. If any part of the consideration of a promise be illegal, the whole promise is void. But a promise may be to do two things, one of which is illegal, and, if it be possible to sever the promise — to separate that part of it which is legal from that part which is illegal — the good or legal parts will be enforced : Code, sec. 2707.

The charge of the Court did not, in our judgment, give this law, as it bears upon the facts of this case, to the jury, and there ought to be a new trial.

Judgment reversed.