Holt v. State , 38 Ga. 187 ( 1868 )

Warner, J.

The error assigned to the judgment of the Court below is, in sustaining the demurrer to the defendants’ plea of former acquittal by the order and judgment of the Court, as provided by the 4554th section of the Code. In the first indictment, the defendants are charged with shooting'at Margaret Ralston with a loaded pistol, on the 10th day of August, 1865, feloniously and of their malice aforethought, with intent to murder her. In the second indictment, the defendants are charged on the same day, in the same county, with having feloniously and maliciously shot a loaded pistol at Margaret Ralston, striking and beating her. It is true that the first indictment charges the defendants with an assault with intent to murder Margaret Ralston, and the second indictment charges them with an aggravated riot. The plea alleges that the defendants are now indicted for the same acts as charged in the former indictment, for which they have been acquitted, and the demurrer to the plea admits the truth thereof. If the defendants have been legally acquitted for the same criminal acts in the first indictment, as are now charged against them in the second indictment, though a different name is given to the offence in the second indictment, it is extremely difficult to perceive upon what principle they can be twice tried for the same criminal acts; although, technically, it may not be for the same offence in name. Can the State put a party upon trial the second time for the same criminal act after he has been 'acquitted, by changing the name of the accusation ? If it can, then his constitutional protection does not amount to much. The effort here is, to evade the provision of the constitution by changing the name of the offence. The record shows that the defendants have been indicted the second time for the same identical criminal acts for which they have been acquitted, but the reply is, that you are not indicted for the same criminal offencetherefore, the former indictment and acqüittal is no bar. If the State thinks proper, by its prosecuting officer, to indict a party for an assault with intent to murder, upon a given state of facts, and upon the trial thereof, the defendant is acquitted, can the State then prefer another indictment, alleging precisely the same state of facts, (with the exception of the malicious intent,) and put the party again upon his trial for the same criminal acts, by altering the name of the offence f The State, having made its election as to the nature and character of the offence, for which it will prosecute the party upon a given state of facts, if, upon the trial, the defendant is acquitted, ought not the State to be bound by its election, and not be permitted again to indict and prosecute the defendant for the same criminal acts, under the name of another offence ? The question to be answered is, has the defendant been arraigned and put upon his trial upon a sufficient legal accusation, for the same criminal acts with which he is charged the second time ? If he has, then he has been put in jeopardy, within the true intent and meaning of the constitution, and cannot be tried the second time for the same cz’iminal acts, under the same, or a diffez’ent named offence. To hold otherwise, would be to hold that provision of the constitution which declares, “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb,” for all fractical puz’poses, to be a mere shadow, aizd delusion.. These views, are in accordance with the ruling of this Court, in Roberts & Copenhaven vs. the State, 14th Ga. Rep., 8. In that case this Court stated the rule to be, “that the plea of auterfoits acquit or convict is sufficient, whenever the proof shews the second case to be the same transaction with the first.” Let the judgment of the Court below be revez’sed.