Lewis v. State , 33 Ga. 131 ( 1862 )

By the Court. —

Lumpkin, J., delivering the opinion.

William Skinner, Uriah Skinner and Augustus Lewis were prosecuted for an assault and battery on John Peel. The defendants severed on their trial. William Skinner was convicted of the offense charged, to-wit: an assault and battery; the other two defendants were found guilty of an assault only. A new trial was moved for on several grounds, to-wit:

1st. Because the verdict was contrary to law and evidence.

2d. Because the Court refused to allow defendants’ attorney to prove by the prosecutor that he had expressed himself satisfied, and agreed to settle the case upon the defendants paying all costs.

3d. Because the Court refused to allow counsel for the defendant to prove by the prosecutor the conversation of all three of defendants with the prosecutor at the house of Augpstus Lewis, the same being advice given by Lewis to Peel.

4th. Because the Court erred in charging the jury, that in misdemeanors in this State, there are no principals in the second degree, or accessories, and that if the defendants are guilty, they must all be principals in the first degree; and further, that the jury could find one or more of the defendants guilty of an assault only.

These specifications contain all the errors alleged to have been committed by the Court in overruling the motion for a new trial.

First. Was the verdict so strongly and decidedly against the weight of evidence as to compel this Court to remand this cause and award a re-hearing, notwithstanding the opinion of the jury as to the guilt of the accused, and the refusal by the Circuit Judge to compel their finding ? As to .William Skinner there can be no doubt of the sufficiency of the proof to convict him. True, Uriah Skinner and Augustus Lewis are not so deeply implicated, but yet, if the jury believed, and we think there was testimony to warrant the assumption, that all the defendants acted in concert in this matter, they might have returned a general verdict of “ guilty” against all three, and certainly if they credited John Peel, both Augustus^ Lewis and Uriah Skinner were guilty of an assault.

Second. Without determining whether this was a case which could be settled under the law — was it settled? Defendants’ counsel does not pretend that it was. There is no proof that the costs were paid or tendered. Indeed, he expressly disclaims relying on the supposed settlement as a bar to the prosecution. He argues, however, that it should have been allowed to be introduced to show that, in the person of the prosecutor himself, the transaction was a small affair, and that his subsequently prosecuting the case indicated malice. Grant that both of these suppositions are true, neither one of these inferences, nor both combined, prove that the defendants should have been acquitted. Peel may have been actuated by malice in urging the prosecution after agreeing to settle the case, and yet the defendants be guilty of the offense charged against them.

Third. Ought the “ friendly advice ” given by Augustus Lewis to Peel, the prosecutor, after the fracas was over, to have been admitted in evidence ? The nature of the advice the record does not disclose, but be it one thing or another, it reflected no light on the past disturbance, and was therefore properly rejected.

Fourth. Was the charge of the Court, that in misdemeanors there were no principals in the second degree, nor accessories, right? It is' conceded that this is the rule of the common law. Whether the distinction between felonies and misdemeanors is a wise one we will not discuss. Indeed, the distinction between felonies and migdemeanors at the present day is in a great measure arbitrary and very unsatisfactory, the one being distinguishable from the other rather by the' consequences which follow from a conviction than by any particular element or ingredient appearing in the case. We are inclined to think that our Code did not intend to change the common law in this respect. But grant that the presiding Judge mistook the law on this point, ought the judgment to be reversed for that reason? How were the defendants prejudiced by this immaterial charge? The accused were indicted for an assault and battery, two of them were convicted for an assault only; was it not competent for the jury under the law, thus to, find ? Cannot two persons be indicted for murder, and one found guilty of murder and the other of manslaughter? Undoubtedly. What possible difference can there be between that case and the one sub judioef If this be so, there is no difficulty in this case, either as it regards the formof the indictment, the charge of the Court, or the verdict of the jury.

Let the judgment be affirmed.