Bryant v. State , 97 Ga. 103 ( 1895 )

Atkinson, Justice.

1. The principle announced in the first head-note has been so often ruled in this court, that it does not require further elaboration.

2. The indictment under which the plaintiff in error was tried does not appear in the record; but from the statements concerning the same which we find there, it may be assumed that it was an ordinary indictment for assault and battery committed upon a given day in the county of Fulton, by the defendant upon a child therein named. Upon the trial of the case, it appears that the witnesses for the State testified to the commission of a battery of tbe kind described and at the time charged in the indictment. Another witness testified to the commission of another battery upon the same person at a time other than that alleged in, bnt within two years next before the finding of the indictment. This testimony was objected to, upon the ground that it was not competent for the State to give in evidence two distinct batteries. In cases of felony, this conld be done; but in misdemeanor cases, it is the constant practice to submit to the jury evidence of several misdemeanors of the same character, perpetrated by the same person. No harm can result from this practice; inasmuch as the State is permitted to give in evidence before the jury testimony showing the commission -of the alleged misdemeanor at any time within two years next before the finding of the indictment, the defendant must be prepared to answer for himself as to each occasion upon which the State may elect to prove his guilt, but with the resulting advantage that but one judgment can be given upon the same indictment, and, though he may have committed many misdemeanors of like character, a judgment of conviction as to one will protect him as to all, the indictment being general and not specific in its descriptive averments; and this is true, because under a plea of autre fois acquit or convict, he could establish the fact that he had been tried under an indictment which covered that offense, and from which it could not be gathered that he was not convicted upon the identical evidence relied upon to convict him of the offense for which he then stood indicted. The true test as to whether a plea of autre fois convict or acquit will prevail, is whether the evidence which could have been admitted under a former indictment would support a verdict of guilty under the indictment under review. If so, the plea of former jeopardy will protect the accused against the latter indictment. Blair v. The State, 81 Ga. 629. And hence, when the State elects to prosecute for one misdemeanor under an indictment which, will admit evidence of many misde^ meanors of like kind committed within the period of limitation prescribed for the prosecution of those covered by the indictment, its election is necessarily to prosecute for each of such misdemeanors, and a plea of conviction or acquittal under such indictment is good in bar of a subsequent indictment for any of such offenses. If the State should elect to prosecute separately for each several misdemeanor, the allegations in the indictment must be so certain in their descriptive averments as that in case of a prosecution under another indictment for a similar offense, but committed at a different time and under different circumstances, it could be judicially ascertained that he had not before been tried therefor. Of course, if the indictment be so general as not specifically to describe the special offense for which the defendant was indicted, the testimony of a witness, not a member of the grand jury, would not be sufficient to establish the identity of the transaction concerning which he or she testified, with the transaction for which the defendant was indicted. Hopkins’ Penal Code, paragraph 2 of section 1514.

3. The charge of the court as stated in the third headnote, is in accord with repeated adjudications of this court.

4. The practice of compelling an election by the State has no application to prosecutions for misdemeanors. In order to avoid surprises, however, and to give an opportunity to the defendant to make his defense of which he otherwise would be deprived, the court may, in its discretion, require the State to direct its evidence to proof of a particular battery, excluding other evidence; but no proposition of this kind was submitted in this case. It does not appear that the defendant was in any sense embarrassed or surprised by the testimony introduced by the State, and we do not think the court erred in admitting the evidence. Besides, the testimony of this witness was admissible in contradiction of the statement of the defendant, who denied that he had at any time, or under any circumstances, committed a battery upon tlie child named in the indictment. ' •

Let the judgment of the court below be Affirmed.