92 Ga. App. 661 | Ga. Ct. App. | 1955
It will be noted from the record that there are various rulings of the trial court to which exceptions were assigned as error in the bill of exceptions. It is not necessary to rule on all of these exceptions separately, and we do not do so. The case turned on whether or not the court committed reversible
Let us now look to the record and the law to determine whether or not the court committed reversible error in directing a verdict against the defendant on the plea of autrefois convict, and at the same time conclude whether or not the evidence and the law regarding that issue demanded a finding in favor of the defendant on his plea of autrefois convict. In determining that issue, we must determine: (a) was the accusation in the Superior Court of Liberty County based on the same transaction as charged in the indictment im Fulton County; and (b) was the defendant placed in jeopardy in the Superior Court of Fulton County on the same transaction? Code § 26-2602 defines larceny as follows: “Simple theft or larceny is the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same. The thief may be indicted in any county in which he may carry the goods stolen.” This court held in Lanier v. State, 25 Ga. App. 489 (2) (103 S. E. 730), as follows: “The rule as to simple larceny, that the thief may be indicted in any county into which he has carried the stolen goods . . . includes larceny of an automobile.” In Sanders v. State, 67 Ga. App. 706 (3) (21 S. E. 2d 276), this court said: “Where an automobile is stolen in one county and carried into another county, the offender may be indicted and tried in the latter county. The indictment is sufficient if it alleges that the asportation occurred in the latter county, without any reference to any other county.” See Tippins v. State, 14 Ga. 422, to the same effect. There are numerous cases which hold likewise. See Young v. Young, 188 Ga. 29 (2 S. E. 2d 622), and Wiley v. Kelsey, 9 Ga. 117.
We would like to call attention t.o the principle of law set out in Doyal v. State, 70 Ga. 134 (3), where it is held: “But there is
“2. Where several indictments for the same offense are pending against the same person,- it is immaterial upon which he is first tried. Whenever he has been acquitted or convicted on any one of them, he can plead such acquittal or conviction in bar of other prosecutions on the indictments. Gray v. State, 6 Ga. App. 428 (65 S. E. 191).
“3. There is no such plea to an indictment as pendency of a former indictment, or autrefois arraign. Doyal v. State, 70 Ga. 134.
“4. An indictment can be legally returned in the superior court against a person, charging him with the same offense covered by an accusation pending in the city court, and vice versa. A trial and conviction or acquittal on the indictment would bar a subsequent trial on the accusation, and vice versa; and in either case the State would have the right to nol. pros, or abandon either the indictment or the accusation. Hudson v. State, 91 Ga. 553 (18 S. E. 432).”
The Supreme Court in Maher v. State, 53 Ga. 448 (21 Am. R. 269), stated: “I can find no authority for the position that because an indictment has been instituted in one court which had jurisdiction over the offense, therefore, any judgment of another court with like jurisdiction, rendered in a prosecution commenced afterwards for the same offense, was void.” Code (Ann.) § 27-704 reads: “Trial on Accusation; waiver of indictment.—In all misdemeanor cases and in felony eases other than capital felonies in which the defendants have been bound over to the superior court, or are confined in jail pending commitment trial, or are in jail, having waived commitment trial, the prosecuting officers of such court shall have authority to prefer accusations, and such parties shall be tried on such accusation: Provided, that parties going to trial under such accusations shall in writing waive in
There is nothing in this record to show that the provisions of the Code section immediately hereinbefore quoted were not fully complied with regarding the accusations lodged against the defendant in the Superior Court of Liberty County. All essential officers were present, including counsel representing the defendant.
In view of this record, the evidence demanded a finding in favor of the plea of autrefois convict filed by the defendant, and the trial judge of the Superior Court of Fulton County erred in not so finding.
Judgment reversed.