182 Ga. 67 | Ga. | 1936
Lead Opinion
On December 18, 1935, White filed in the city court of Columbus, Muscogee County, a petition for habeas corpus, alleging in substance as follows: The petitioner is illegally restrained of his liberty by Owen, jailor of the common jail of said county, and the cause of said restraint is a certain sentence imposed upon him by the superior court of Muscogee County, said senten.ce being predicated upon a verdict of a jury of said court, returned on December 10, 1935, upon a prosecution for the offense of arson as alleged in two counts of a bill of indictment returned by the grand jury of said county at the August term of said court. The defendant with three others was accused, in count one of the indictment, with the offense of arson, in that they did unlawfully and with force of arms wilfully and maliciously set fire to, burn, and cause to be burned, and did then and there aid, counsel, and procure the burning of a certain building situate at 3223 Eiver Eoad in Muscogee County, together with certain described personalty therein. In count two of the indictment petitioner and the same others were accused of the offense of arson, in that they did unlawfully and with force of arms wilfully and. maliciously set fire to, burn, and caused to be burned, and did then and there aid, counsel and procure the burning of said building and the personalty described therein, with the intent to defraud certain named insurance companies, insurers of the building and its contents. The jury found the petitioner not guilty on the first count, and guilty on the second count. Said verdict is inconsistent, and the finding of the jury on the second count is repugnant to the finding on the first count, the same evidence being relied on by' the State for conviction on both counts of the indictment; and therefore the verdict, judgment and sentence are void.
The writ was granted and served upon Owen, the jailor, who answered and admitted the facts as pleaded in the petition in regard to the indictment, verdict, judgment, and sentence of the court, but denied that the same evidence was relied upon by the State for conviction on both counts of the indictment, or that the
Only headnote 3 will be discussed, as the rulings in headnotes 1 and 2 are sufficient within themselves. The Code of 1933 § 26-2209, defines the offense of arson as the wilful and malicious burning, etc., of a building, and as the wilful and malicious burning, etc., of a building with the intent to defraud. The first count of the indictment charges the petitioner with the wilful and malicious burning, etc., of the building. No allegation of burning, etc., with the intent to defraud, appears in the first count. While the burning, etc., of described personalty, located in the building, is included in the.first count, it is surplusage. The wilful and malicious burning of personal, property may be an offense under the Code, § 26-8116, which declares: "All other acts of wilful and malicious mischief, in the injuring or destroying any other public or private property not herein enumerated, shall be misdemeanors.” But an indictment for arson does not include the offense of malicious mischief. Crockett v. State, 80 Ga. 104 (4 S. E. 254). The first count of the indictment then merely charges the petitioner with the burning, etc., of the building as defined in § 26-2209, srrpra. The second count of the indictment charges the petitioner with the wilful and malicious burning, etc., of the building with the intent to defraud the insurer, under § 26-2209, supra, and with the wilful and malicious burning, etc., of certain described personalty located in said building, under § 26-2210, which defines the offense of arson as the wilful and malicious burning, etc., of personalty with the intent to defraud the insurer thereof. No attack was made in the court below on the form of the second count. Under count one the petitioner could have been found guilty only of the burning, etc., of the building. He was found not guilty on this count by the jury. Under count two he could have been found guilty of either (1) the burning, etc., of the
Under the rulings set out above, .it is the duty of this court to construe the verdict of the jury and the judgment and sentence of the court as valid and binding. Code of 1933, § 27-2301. The verdict not being void for any of the reasons assigned, the judgment and sentence of the court based thereon is valid, and the writ of habeas corpus does not lie to release one being detained thereunder. The court erred in sustaining the writ and in discharging the prisoner.
Judgment reversed.-
Dissenting Opinion
dissenting. In the opinion of the majority it is declared that it is our duty Kto construe the verdict of the jury and the judgment and sentence of the trial court as valid and binding.” As only one member of the Supreme Court I do not so construe my duty. Furthermore, I should never under any circumstances dictate to any of my associates, individually or collectively, what was or was not his duty under his oath. I say most respectfully that I can not concur in the opinion that the judgment of the superior court of Muscogee County was or is a valid judgment. This for the reason that in my opinion it is based upon a verdict so repugnant as to be unenforceable. It is to be borne in mind, as conceded by the opinion of the majority, that in the
It is stated in the opinion of the majority that “While the burning, etc., of described personalty, located in the building, is in-
There was no demurrer to the indictment. In Kuck v. State, 149 Ga. 191 (supra), it was held: “Where a person is accused in one count on a charge of misdemeanor, alleging that on May 18, 1918, the defendant did sell spirituous liquors, etc., and in another count of the same accusation it is alleged that the defendant on the same day did have, control, and possess spirituous liquors, etc., and the same evidence is relied on to convict under both counts, a verdict finding the defendant guilty on the first count and not guilty on the second is void for repugnancy.” The only difference between that case and the case at bar is that the defendant in the present case was found not guilty on the first count and guilty on the second; but the same evidence as to both charges was necessarily before the jury, because he had only one trial. In the Euch case Mr. Justice Atkinson went fully into the subject of
Dissenting Opinion
dissenting. By the verdict on the first count the jury found that the defendant did not burn the house or its contents. By the verdict on the second count they found that he did burn them in order to defraud the insurance companies which had insured the goods contained in the building. These verdicts are irreconcilably repugnant, which rendered the verdict finding him guilty void, and the judgment based thereon is void.