2 Ga. 60 | Ga. | 1847
By the Court
delivering the opinion.
The plaintiff in error was indicted in the Court below; ho was arraigned and plead not guilty, and a jury was impaneled and sworn to try- him. The Solicitor General read the indictment to the jury and opened the case to them, and then tendered the warrant by which the accused was arrested, which being upon demurrer rejected, the State having no other testimony, the defendant moved the Court that a verdict of not guilty be entered, which was refused, and the Solicitor General was permitted by the Court to enter a nolle proseguí, and the Jury was discharged.
The plaintiff in error now comes hither, and says the Court erred in refusing the motion for a verdict of acquittal, and also in permitting the bill of indictment to be nol-prosed without the consent of the defendant.
This question is to be determined upon a construction of our own statute. In the 326th section of the 14th Division of the Penal Code, it is enacted, that “no nolle proseguí shall be entered on any bill of indictment after the case has been submitted to a jury, except by the consent of the defendant.” Prince. 661.
The idea of counsel for the defendant in eror, seems to be this: submission of a case to the jury, is an entire abandonment of it to them, which occurs only when the evidence has been concluded and the court has summed it up and given its charge and sent them out to find the issue. This construction would leave the defendant in a worse condition as to the right of the State to enter the nolle prosequi, than he was in before the statute, for according to this construction, the bill may be nol-prosed at. any -time before the jury is sent out. If left to a mere verbal criticism, we should say, that submitting is the act of presenting a case to the jury through the pleadings and evidence, and that the submission is as perfect when that process begins as when it concludes. The proceeding in England, upon trials for misdemeanors as well as for higher offences, seems to be as follows — The sheriff having returned into Court the panel of the jury, and the time for trial having arrived, the clerk calls the jury on their panel, enjoining them to answer to their names “ upon pain and peril that shall fall thereon.” 2 Hale, 293; Bac. Abr. Juries F; 1 Chitty Crim. Lem, 432. When
This is the proper time to exercise the right of challenge, and accordingly now follow the different forms of challenge. When this is gone through with, the jury in the box and sworn—the defendant having previously been arraigned and plead not guilty— the clerk calls to the prisoner and bids him hold up his hand ; he then addresses the jury in these words : “ Look upon the prisoner you that are sworn, and hearken to his cause. ” (He then roads the indictment and proceeds as follows:) “ Upon this indictment he hath been arraigned, upon this arraignment he pleaded not guilty, and for his trial hath put himself upon God and the country, which country you are; so that your charge is to inquire whether he be guilty of the offence whereof he stands indicted, or not guilty,” &c.
Now, this is what we understand by charging the jury with the case, or submitting the case in charge to the jury. They are thus charged to make inquiry into the truth of a fact alleged on one side, and denied on the other, and all things being ready for the trial, the clerk concludes • his charge to the jury with the words “hear your evidence.” 1 Chitty Crim. Law, 452. The crown officer then opens the case with an address to the jury, and the evidence is given. Now, in the judgment of this Court, when a case is given in charge to a jury in England, it is submitted to a jury in Georgia. Some of the mere formalities of submitting a case in England, are not observed with us ; yet the essential steps in the progress to the submission are the same, tq wit: the arraignment, plea of not guilty entered, the impaneling and swearing a jury. The formal charge of the clerk to die jury in our practice is omitted. And when these things are done here, to wit: the arraignment, the entering of the plea, the impaneling and swearing — when the jury and the Court are ready to hear the argument of counsel and the evidence, we think the case is submitted. In the case beforb us, more than this was done, the Solicitor General had opened the case, the indictment had been read and evidence tendered. The case being in our opinion submitted, the Court could not order the bill to be nol-prosed without
Let the judgment of the Court below be reversed.