Crocker v. State, 47 Ga. 568

Crocker v. State

47 Ga. 568 | Ga. | 1873

Warner, Chief Justice.

The error complained of in this case is in overruling the defendant’s plea of autrefois convict to the indictment by the Court below. The principle of the law is, that the defendant shall not be twice put in jeopardy for the same offense. The plea of autrefois convict should set forth the former record, including the former indictment, so that it may appear to the Court therefrom, and by proper averments in the plea, that his former conviction was for the same offense as the one for which he is now indicted. The plea in this case is defective because it does not set forth the indictment on the former trial, so that •the Court might determine whether the defendant had been *570put in jeopardy .on the former trial, for an assault with intent to murder Shephard E. Green. The plea, however, assumes that the indictment on the former trial charged the defendant with an assault with intent to murder James Shephard Green, and was convicted therefor. The defendant is now indicted for an assault with intent to murder Shephard E. Green, and there is no averment in the plea that James Shephard Green and Shephard E. Green, are one and the same person, but it is conceded in the argument that they are not. It is insisted, however, that inasmuch as the two alleged assaults grew out of the same difficulty between the parties, the conviction of the defendant for an assault with intent to murder James Shephard Green is a bar to the indictment for an assault with intent to murder Shephard E. Green. Although the evidence may be substantially thé same, as to the difficulty between the parties at the time of the shooting, except as to the fact that defendant assaulted, and shot at Shephard E. Green, as well as James Shephard Green — Shephard E. Green and James Shephard Green being two distinct persons, and not one and the same person, the defendant may have assaulted and shot at both of them during the same difficulty, and the intent with which the assault was made by the defendant on both, or either of of the Greens, would be a question for the jury. In no view of the facts, as alleged in defendant’s plea, does it affirmatively appear that the defendant has ever been put in jeopardy for an assault with intent to murder Shephard E. Green, and for that reason the plea of autrefois convict was properly overruled.

Let the judgment of the Court below be affirmed.