Opinion
31778.
DECIDED OCTOBER 23, 1947.
Burglary; from Troup Superior Court — Judge Boykin. August 12, 1947.
Horace E. Richter, for plaintiff in error.
L. M. Wyatt, Solicitor-General, contra.
The court erred in overruling and dismissing the plea of former jeopardy of the defendant and entering judgment on the verdict of guilty against the defendant based on the indictment.
DECIDED OCTOBER 23, 1947.
J. R. Jordan was indicted by the Grand Jury of Troup County for the offense of burglary. He was charged with having broken and entered the place of business of the Atlanta and West Point Railroad Company with intent to commit larceny, and that after he had broken and entered he did take therefrom the following property: "A S.K.L. No. 5 coupon tickets; 35 coach tickets form 622 ch. and two Pullman tickets No. 4128 and 4129, of the value of $405.00," all the stolen property being the property of the railroad company. When the case was called for trial in the Superior Court of Troup County, and before pleading to the merits, the defendant filed a plea of former jeopardy alleging that previously to the finding and the return of the indictment that he had been put in jeopardy in the City Court of LaGrange upon an accusation which charged him with a misdemeanor in that he did enter the same office of the same railroad company on the same date as alleged in the indictment and that he did: "take and carry away from the ticket office of A. and W. P. R. Company, in Hogansville, Georgia, certain railroad tickets to wit: Four tickets not filled in of the value of $2.00 each ticket, and $8.00 for said four tickets and so taken with intent to steal the same." In the City Court of LaGrange when the defendant was arraigned on this accusation he entered a plea of not guilty and the judge of the City Court of LaGrange proceeded with the trial upon said accusation by agreement of counsel to pass upon the same without the intervention of a jury. After the defendant had entered his plea of not guilty and during the trial and after the judge of the City Court of LaGrange had heard evidence, he entered an order to the effect that the evidence developed that the value of the tickets alleged to have been stolen from the office of the railroad company exceeded the value of $50, and that therefore the City Court of LaGrange was without authority to try the case. The plea of former jeopardy alleged that the transaction mentioned in the accusation and the one mentioned in the indictment were one and the same, and that since the lesser offense embraced within the accusation, which is larceny, was also embraced in the greater offense of burglary contained in the indictment, and since he had been put in jeopardy on the lesser offense and without his consent and over his objections he was discharged and bound over to the superior court by the judge of the City Court of LaGrange that his indictment and subsequent arraignment and trial and conviction for burglary was without authority of law. The court heard argument on the plea of former jeopardy and overruled and dismissed the plea of former jeopardy and forced the defendant to stand trial upon the indictment. The defendant then and there filed exceptions pendente lite to the overruling and dismissing of his plea of former jeopardy. The jury returned a verdict of guilty against the defendant for burglary and fixed his punishment for a term of years in the penitentiary. Error is assigned here on the overruling of his plea of former jeopardy, and the verdict and judgment against him on the indictment.
The State does not deny that the larceny charge as contained in the accusation in the City Court of LaGrange was not the same transaction as alleged in the indictment and that the lesser crime of larceny charged in the accusation was not also embraced and induced in the greater offense of burglary. The only contention the State makes is that the burden of proving the allegations of fact in the plea of former jeopardy rested on the defendant and the record does not reveal that the defendant introduced any evidence to sustain his plea of former jeopardy. While it is true that the burden rests upon the defendant to make out by proof the allegations of a special plea of former jeopardy ( Mance v. State, 5 Ga. App. 229, 62 S.E. 1053), but that does not seem to be the issue raised here under this record. It appears that the issue formed by the plea of former jeopardy never reached that stage. It is a clear inference from the record that the judge of the superior court dismissed the plea of former jeopardy as being insufficient as a matter of law. It therefore follows that the defendant was not required or permitted to introduce evidence to sustain the plea of former jeopardy. It is a clear inference from the record that the superior court considered the allegations of the plea of former jeopardy to be insufficient as a matter of law even though the allegations thereof should be proved. In this view we think the court erred in overruling and dismissing the plea of former jeopardy. Code, § 2-108 provides: "No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his or her own motion for a new trial after conviction, or in case of a mistrial." It clearly appears that the trial on the accusation in the City Court of LaGrange was proceeding before the judge of that court, without a jury as provided in the Code, § 102-106, and as interpreted by the court in Logan v. State, 86 Ga. 266 ( 12 S.E. 406), and Moore v. State, 124 Ga. 30 ( 52 S.E. 81), and that the City Court of LaGrange was a court of competent jurisdiction to try a case of larceny as alleged in the accusation. In Ingram v. State, 124 Ga. 448 ( 52 S.E. 759), the court says: "Where the indictment or accusation is not fatally defective, the law recognizes two reasons only as justifying the discharge of the jury before they have agreed upon a verdict and legally returned it into court, viz., the prisoner's consent, and necessity in some of its various forms, one of which is mistrial. Lancton v. State, 14 Ga. 426. And where a criminal case has been submitted to a jury upon a valid indictment, and is withdrawn from their consideration by the judge for any reason other than the two above named, it is equivalent to an acquittal of the accused." See numerous decisions cited in Ingram v. State, supra. In Franklin v. State, 85 Ga. 570 ( 11 S.E. 876), Judge Bleckley, speaking for the court concerning the issue before us, states it thus: "Where the conviction or acquittal is upon an indictment covering no more than one of the smaller crimes, included, as before mentioned, within a larger, — will it bar fresh proceedings for the larger? If it will not, then the prosecutor may begin with the smallest and obtain successive convictions ending with the largest; while, if he had begun with the largest, he must there stop, — a conclusion repugnant to sound sense. Besides, as a larger includes a smaller, it is impossible one should be convicted of the larger without being also convicted of the smaller; and thus, if he has been found guilty or not guilty of the smaller, he is, when on trial for the larger, in jeopardy a second time for the same, namely, the smaller offense." We call attention to Bell v. State, 103 Ga. 397 ( 30 S.E. 294, 68 Am. St. R. 102), which deals with a situation similar to that in the instant case, and which arose in the Criminal Court of Atlanta. Upon an examination of the act creating the City Court of LaGrange and the amendments thereto, on the question before us, we think the two acts are identical in substance. See Local and Special Laws Index, Vol. 33, p. 83, Code (Ann.) 1933. In Bell v. State, supra, the court said: "The law regulating trials in that court is found in the act establishing the Criminal Court of Atlanta. (Acts of 1890-91, p. 935.) There is nothing in that act which authorizes the judge of that court to discontinue a trial and bind over the accused to the next superior court, if, after hearing the evidence, he should be of the opinion that the defendant is guilty of an offense which is beyond the jurisdiction of such criminal court. Therefore, when a person against whom an accusation is preferred in that court waives indictment and demands a jury trial therein, he does not consent for the judge to stop the trial, dismiss the jury, and bind him over to the superior court, if, in the opinion of the judge, the evidence makes out a case of felony. By his waiver and demand, he does not consent for the judge of that court to exercise, in his case, a power which the law has not conferred upon him."
It therefore follows from what we have said that the court erred in overruling and dismissing the plea of former jeopardy, and in entering judgment on the verdict of guilty against the defendant based on the indictment.
Judgment reversed. MacIntyre, P. J., and Townsend, J., concur.