Copenhaven v. State

By the Court.

Starnes, J.

delivering the opinion.

[1.] At August Term, 1853, of this Court, held at Decatur, it was decided that the offence of robbery, with which this prisoner was charged, and for which he was tried at March Term, 1853, of Monroe Superior Court, constituted a part of the same transaction for which the prisoner had been tried, and of which he had been convicted, upon a charge of burglary, at the same Court. We held that the prosecuting officer for the State, in charging the felonious intent which, together with the breaking and entering the dwelling-house of another, is a necessary ingredient in the crime of burglary, had so framed his indictment in the case of burglary, as to involve the proof of the robbery, in the evidence required to make out the crime of burglary. In other words, that he had charged the prisoner Yvith having burglariously broken and entered the dwell-ing-houso of John Jackson, “with intent, then and there, silver, coins, &c. of the money of the said John Jackson, in the dwelling-house aforesaid, then and there being, then and there feloniously, turongfully, fraudulently, by open force and violence, and burglariously in the night aforesaid, to steal, take, and,carry away from the person of said John Jackson”.— And that the record showed, that to make proof of the felonious intent, so charged, evidence had been submitted which proved the robbery in question, to have been committed.

We held, therefore, that upon the trial for this burglary, the circumstances of the robbery had been proven against the prisoner, as a part of the same transaction; and that it was proper to infer that after they had been so proven, and he had been convicted, the Court had taken these circumstances into consideration as characterizing the burglary, and had graduated the penalty with reference to this double crime.

Our decision accordingly was, that the offence of robbery in question, might bo said to have constituted a pari of the same transaction with the crime of burglary, of which the prisoner had been convicted; and that having had his punishment fixed with reference to it, he might, in some sense, be said to have been already in jeopardy on account of the charge of robbery, and that in this point of view, his plea of autre fois convict should have been sustained. Wo were supported in this decision, by the plain reason of the case; by elementary principles, and by adjudicated cases ; for which, see the case: Roberts and Copenhaven vs. The State, (14 Ga. R. 8.)

We did not suppose, however, that it would have entered into any one’s imagination to conceive, that we had decided, that because, as the case was presented, the robbery constituted a part of the burglary, necessarily, the burglary also formed a part of the robbery. This is now, in effect, insisted on before us ; and it is argued, that being acquitted of the robbery, by effect of the former judgment of this Court, the prisoner has been acquitted of the burglary.

We suppose this position has had its origin in a misapprehension of the principles upon which the Court put the decison, on which I have remarked. From whatsoever source it arises, it is wrong, as must be sufficiently obvious, without further comment, from the distinct statement we have made of the grounds on which the other judgment -was placed.

Let the judgment be affirmed.