Webb v. State ( 1913 )

Russell, J.

The accused was arraigned on a special presentment, charging him generally with the unlawful sale of intoxicating liquors on January 1,1913. He filed a plea of autrefois acquit. This plea alleged that he was tried and acquitted in the city court of LaGrange, September 13, 1911, on an accusation filed in that court charging him generally with the unlawful sale of intoxicating liquors on May 5, 1911. He alleged that the special presentment and the prior accusation related to and involved the same transaction. The trial judge sustained the demurrer to the special plea of autrefois acquit. His judgment sustaining this demurrer was as follows: "The demurrer is sustained, the court holding that the State could offer evidence of any sale of intoxicating liquor in Troup county by the defendant after September 13, 1911, and up to the finding of this indictment on which the defendant is being tried.” The accused was thereupon tried and convicted of the offense charged in the special presentment. His motion for a new trial was overruled, and he assigns error on the judgment sustaining the demurrer to his special plea of autrefois acquit, and on the judgment overruling his motion for a new trial.

A plea of former jeopardy is sustained whenever the proof shows the second case to be the same transaction as the first, or “if the facts required to support the second indictment would have been sufficient, if proved, to procure a conviction under the first indictment.” Gully v. State, 116 Ga. 529 (42 S. E. 790), and citations. On the trial of an indictment for a misdemeanor the State is not restricted to proving that the offense was committed on the date alleged, but may prove that it was committed at any time within two years preceding the finding of the indictment. On the trial of the special presentment in this case, which charged generally that the offense was committed on January 1, 1912, the prosecution could show that the accused committed the offense at any time within the two years preceding the date of the presentment; and the range of the evidence against the accused on the trial under the presentment might legally have included the same transaction for which he was tried and acquitted under the accusation in the city court, which charged that the commission of the offense was on May 5, 1911; and hence it follows that on the second trial he was legally in jeopardy for the offense for which he had previously been tried and acquitted.

It is insisted that though it was error for the court to have sustained the demurrer to the defendant’s plea of former jeopardy, this error was harmless, because the court contracted (if that term may be used) to protect the defendant against the introduction of any evidence that might have been pertinent on his former trial. In the opinion of the majority of the court this conclusion is not warranted. Cases can be imagined where to allow testimony unfavorable to the accused to go to the jury, although it be afterward excluded by the court, would be extremely prejudicial. The defendant has the right (which it is not within the power of the court to abridge) to prevent any reference, even by suggestion, to any fact or circumstance which could have been used upon his former trial for the same offense; and it is a withdrawal of this right to say, in response to the defendant’s demand, that the court-will apportion the right in such manner as to see that no injury results to the accused. Aside from any technical reason, the court should always be as much the judge in behalf of the accused as in behalf of the prosecution, and no more the judge for one party than for the other. The provision which protects the citizen from being more than once placed in jeopardy (which means nothing more than subjected to risk) is one of the fundamental rights of Anglo-Saxon people, which justly, is most highly cherished, and the court has no discretion in the administration of the law affecting this right. In any particular case the question of former jeopardy is one strieti juris, and the question presented is a very simple one. Either the accused is likely to be subjected to risk of conviction for an act for which he has already been tried, or the transaction is so different that there is no jeopardy. In either event the question is a single question and not capable of division or subtraction. Eor this reason the majority of this court are of the opinion that the judge was without power to require the accused to be tried upon an agreement that the court would limit the range of the evidence; and, furthermore, that the attempt so to limit it would, in practical effect, generally prove to be prejudicial. The rule that the defendant in a criminal ease, if he insists, has the right to be tried upon an indictment perfect not only in substance but in form is cardinal, and when, by timely demurrer, one accused of crime insists upon his right, he can not be deprived of it except by a subsequent waiver of the right to .which he h'as directed the attention of the court.

Except as herein elaborated, the headnotes are sufficiently self-explanatory. Judgment reversed.