Fews v. State

Jan 31, 1907
181, 182, 183
Reporters:
, ,
Before:
Powell
Powell, J.

The defendant was tried and convicted of the offense of assault with intent to murder, in each of two cases. In case No. 183 the felonious assault is alleged to have been committed upon W. G. Solomon Jr., and, in No. 181, upon Charlie Adams Jr. The defendant was first tried and convicted upon the charge relating to Solomon (case No. 183). Upon being arraigned upon the indictment relating to the assault upon Adams, he filed a plea of former jeopardy, alleging that the indictment in this case charged him with the same transaction for which he had been convicted in the ease relating to the assault upon Solomon. By consent this plea was heard by the trial ‍‌‌‌‌​‌‌​‌‌​‌​‌​‌​‌‌​​​​‌​​​​​‌‌‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​‌‌​‌​​‌​​​‌​​‌‌‌‌‌​‍judge, who, upon hearing the evidence, found against the plea. Exception to this finding of the court was taken, and this forms the basis of case No. 182 in this court. The evidence against the accused in each case n^ade out a malicious, wanton, and unprovoked case of assault with intent to murder, the State’s testimony showing that Solomon, Adams, and certain other young men were quietly walking along, upon the “circle” or “midway,” at the State Fair in Macon, when, without provocation or warning; the defendant, who was unknown to them, first fired two shots, one of which struck Solomon, and then turned his pistol upon Adams, who, seeing that he was about to be shot, ran towards defendant and grabbed hold of him; and while Adams was struggling with the defendant, the defendant managed to get his pistol in such position that he fired it, striking Adams in the abdomen. The defendant’s statement, which, however, was abundantly contradicted by other proof in the ease, was that some one *124had assaulted him, knocked him down, and was on him, beating him and kicking him, when he shot his pistol in the air, thus inflicting the wounds upon Solomon and Adams. In each of the separate motions for new trials, in cases No. 181 and 183, the defendant complains of a charge of the court upon the effect of the ■evidence of good character, introduced by the defendant, and ‍‌‌‌‌​‌‌​‌‌​‌​‌​‌​‌‌​​​​‌​​​​​‌‌‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​‌‌​‌​​‌​​​‌​​‌‌‌‌‌​‍as to the manner in which the contentions of the State are set forth. Since these charges appear to us to be so manifestly without error, and since a decision upon them would not be to announce any new principle of law, we deem it unnecessary to set them out further. In case No. 183 (the Solomon case), exception is also taken to the fact that the court refused to charge the jury upon the law of shooting at another, and upon the law of assault.

1. In case No. 182, relating to the finding of the court upon the plea of former jeopardy, counsel for the defendant asks us to certify the question therein to the Supreme Court for instruction on the grounds that it involves a construction of the clause of the constitution of this State, which provides that “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 mistrial” (Civil Code, § 5705). The constitutional amendment creating this court provides, that “Where, in a case pending in the Court of Appeals, a question is raised as to the construction of a provision of the constitution of this ‘State or of the United States, or as to the constitutionality of an act of the General Assembly of this State, and a decision of ‍‌‌‌‌​‌‌​‌‌​‌​‌​‌​‌‌​​​​‌​​​​​‌‌‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​‌‌​‌​​‌​​​‌​​‌‌‌‌‌​‍the question is necessary to the determination of. the case, the Court of Appeals shall so certify to the Supreme Court, and thereupon a transcript ■of the record shall be transmitted to the Supreme Court, which, .after having afforded to the parties an opportunity to be heard thereon, shall instruct the Court of Appeals on the question so’ certified, and the.Court of Appeals shall be bound by the instruction so given.” Acts 1906, p. 26. It will be seen from the above, that, since the question presented in this case does not involve the constitutionality of an act of the General Assembly, it must appear that it raises a question as to the construction of a provision of the ■constitution, before this court is required to certify it to the Supreme Court. A case that involves merely the applicability ■of a concededly unambiguous clause of the constitution to a given *125state of facts raises no question of construction. Likewise, where a clause in the constitution has been construed by the Supreme Court as having a certain meaning and intendment, and such fixed judicial construction is unchallenged, there is still no question raised as to the construction of a clause of the constitution. The excerpt from the constitutional amendment creating this court, quoted above, is also to be construed in pari materia with another provision, in the same law, that, “The decisions of the Supreme Court shall bind the Court of ‍‌‌‌‌​‌‌​‌‌​‌​‌​‌​‌‌​​​​‌​​​​​‌‌‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​‌‌​‌​​‌​​​‌​​‌‌‌‌‌​‍Appeals as precedents.” Therefore, if the identical question of construction has been before the Supreme Court,, and that court has judicially given a construction to the clause in question, it is unnecessary to certify and to continue to certify such a question to the Supreme Court every time a party may seek to raise it. In this case the able and earnest counsel for the defendant raises no question as to the construction of the clause of’ the constitution under which he attempted to assert his defense;, he merely contends that, under the well known, well recognized,, and fmquestioned construction of that fundamental law, his defense was good. In his argument in this court he contended that under the recognized construction of that provision of the constitution the “ same-transaction test” should be applied to his plea of former jeopardy; and counsel for the State agreed with him. The trial court heard evidence for the express purpose of determining-whether the transaction for which the defendant had been convicted already was the same transaction for which he was about to be put on trial in the second case. The finding of the court, that the transactions were not the same, in no sense involved any construction of the constitutional provision; and by determining, as we now do, that the trial court committed no error in that finding, we have not decided any constitutional question.

2. The defendant shot two separate and.distinct ‍‌‌‌‌​‌‌​‌‌​‌​‌​‌​‌‌​​​​‌​​​​​‌‌‌​​‌‌‌‌​‌​‌​‌​‌​‌‌‌​‌​​‌‌​‌‌​‌‌‌‌​‌​​‌‌​​‌​​‌​‌‌​‌​​‌​​​‌​​‌‌‌‌‌​‍men; the assault, upon each of them was separate; they had made no joint attack upon him; the intent to kill was directed against them individually; the fact that the interval between the two shootings was slight does not make the transactions identical; therefore there was ne lawful reason why he should not be tried and convicted in both cases. Crocker v. State, 47 Ga. 568.

3. The only other assignment of -error not already disposed of is that the court erred in not charging the jury, in the. case relat*126ing to the assault upon Solomon, the law of shooting at another, and the law of simple assault. ‘Under the evidence in the case these offenses were not involved.

Judgment affirmed on each bill of exceptions.