80 Ga. 4 | Ga. | 1888
Cunningham was indicted by the grand jury of Decatur county for the offence of assault with intent to murder. The second count in the indictment charged him with shooting at another not in his own defence or under circumstances of justification, according to the principles of the code. When the defendant was arraigned he pleaded not guilty, and filed special plea of former jeopardy. This plea averred
‘ ‘ that, at the September term, 1886, of the county court of said county, an accusation was duly made and filed against him for an assault ; and that said court had full jurisdiction or authority over the defendant in the subject-matter of the charge; and that the defendant was, at said September term, placed on trial for said assault, and having waived arraignment, and having demanded a trial by the jury,and having in open court waived an indictment, a legal and qualified panel of jurors was put upon the defendant, as required by law, in said court; the jury were sworn to try the case and were legally empanelled; the witnesses were sworn and examined, and all the evidence in the case relied upon by the State was introduced, and the evidence closed on both sides. As the defendant’s attorney was making the opening argument to the jury, the judge of the county court stopped him, and over defendant’s earnest and urgent protest, withdrew the case from the consideration of the j ury, and bound him over to the superior court of said county to answer to the charge of assault with intent to murder. The assault set out by the charge in the indictment was one and the same assault set out in the accusa*6 tion; and the same evidence adduced against the defendant on the trial in the county court was partly, if not entirely, the same evidence relied upon by the State in this case.”
This plea and the plea of not guilty were both submitted to the jury at the same time; and under the charge of the court, the jury found the defendant guilty. Whereupon he made a motion for a new trial upon the several grounds therein, which was overruled by the court, and he excepted.
The 3d ground of the motion is as follows: “ Because the court erred in holding and ruling that the plea of former jeopardy, as filed by the defendant in said case, the facts being admitted in open court, was insufficient to prevent a trial in this court and in this case, as shown by the charge of the court upon this question.”
The 4th ground was, in substance, that the court erred in charging the j ury that they could only convict the defendant -of an assault with intent to murder, or of shooting at another not in his own defence, or under other circumstances of justification, and that they could not convict of a misdemeanor. So the question for this court to determine is, whether the defendant has been put twice in jeopardy without his own consent.
When a person accused of a crime is arrested and brought before the county court judge for trial, the county court act requires him, before he proceeds with the trial, to ask the defendant (1) if he demands an indictment by the grand jury. If the defendant waives the indictment, the waiver is to be recorded on the minutes of the court. He is then required to ask him (2) if he demands a trial by j ury. If he waives a trial by jury, this waiver is also to be recorded on the minutes of the court. If he demands an indictment by the grand jury, it is made the duty of the court to commit him to jail, or bind him over to the next term of the superior court. If he waives the indictment and demands a trial by jury, the county court judge is required to summon a jury for his trial. In this case, it ap
The same act which contains these provisions also provides, in substance, that if at any time during the progress of the trial the county judge should be of the opinion that the evidence produced before him at the trial makes the offence a felony instead of a misdemeanor, he should stop the trial at once and commit the defendant to jail, or require him to give bond for his appearance at the next term of the superior court. It appears from this record that during the progress of the trial, the county judge, after hearing the evidence, concluded that the evidence made a case of an assault with intent to murder, or of shooting at another, and stopped the trial, over the protest of defendant’s counsel, and bound the defendant over to the next term of the superior court.
At his trial in the superior court upon the indictment found for a felony, he filed a plea of former jeopardy, and the court held, as set out in the 3d ground of the motion, that the plea was invalid; and that is the main question in this case.
Judgment affirmed.