Dean v. State, 43 Ga. 218

Dean v. State

43 Ga. 218 | Ga. | 1871

Loghrane, Chief Justice.

This was an indictment for the offense of assault with intent to murder, tried in Decatur county. A motion was made to quash the indictment, upon the ground that there was a misjoinder of counts in the same instrument, which was overruled by the Court. The case proceeded to trial and the jury found a general verdict of guilty, upon which a motion was made in arrest of judgment, upon the ground, first, that the defendant was not furnished, previous to his arraignment, with a copy of the indictment and a list of the witnesses who gave testimony before the grand jury, nor did he waive the same; second, because there was a misjoinder of counts in the bill of indictment, viz: a count for an assault with intent to murder, and a count for stabbing; third, because the jury found a general verdict. The Court over*220ruled the motion in arrest of judgment, and sentenced the prisoner to two years in the penitentiary.

Under the facts in this case, we are satisfied the Court ruled properly in overruling the motion for arrest of judgment upon the first ground. Tlie Constitution of Georgia, in its declaration of rights, declares that every person charged with an offense against the laws shall have the privilege and benefit of counsel; shall be furnished, on demand, with a copy of the accusation and a list of the witnesses on whose testimony the charge against him is founded. This constitutional provision overrides all legislative enactments upon the subject; and section 4541, Code, must be construed with such constitutional provisions. The principle of law laid down in the case of Hoy v. The State, has been misunderstood by the bar, in holding that nothing was waived by the prisoner except it was expressly waived. That ease turned upon the jurisdiction of the Court, which, by a host of decisions, had to be expressly waived to bind the prisoner in cases where it could be done. But in the progress of a case, before a Court of competent jurisdiction, the prisoner may, by his silence, or failure to take exceptions to irregularities transpiring in his presence, bind himself by such waivers, and the Court will not afterwards interfere.

As to the second ground, the bill of indictment alleges, in the first count, “that the defendant did commit an assault with intent to murder with a knife,” etc., and in the second count it “charged the offense of stabbing.” Under section 4303 of the Code, it is provided that if the facts and circumstances show that it was the intention of the person stabbing to commit the crime of murder, then and in such case the offender shall be guilty of an assault with intent to commit murder.” Under the peculiar language of this Act, as well as the circumstances of the case, we are satisfied the Court below overruled properly the second ground taken in arrest of judgment.

And in finding a general verdict of guilty, the presump*221tion of law was, that they found him guilty of the highest offense charged in the indictment, and the judgment inflicted was in accordance with law. As to the original motion to quash the indictment, we think the Court ruled properly, whatever might have been his duty on a motion to compel the State to elect on what count they would try the prisoner. It was clearly not his duty to quash the indictment.

Judgment affirmed.