12 Ga. App. 1 | Ga. Ct. App. | 1912
At the April term, 1911, of Colquitt superior court the accused were placed on trial under an indictment charging them with the offense of murder. The trial Judge instructed the Jury upon the law relating to murder,' voluntary manslaughter, and ■Justifiable homicide, but declined to give them instructions upon the law of involuntary manslaughter. The Jury, however, returned a verdict finding the'.accused guilty of involuntary manslaughter. This verdict was read in open court by the foreman of the Jury, but the trial Judge declined to receive the verdict or to permit it to be recorded upon the minutes. He directed the Jury to return to their room for further consideration, stating td them that he could not receive the verdict which they had attempted to return, and that he had given them no instructions upon the law of involuntary manslaughter. Subsequently the Jury brought in» a verdict finding the accused guilty of voluntary manslaughter, and Judgment of conviction was duly entered upon this verdict. Counsel for the accused took no direct exception to the action of the court in failing'to receive the first verdict, but filed a motion for a new trial for the purpose of having the second verdict set aside. In this motion one of the reasons alleged why the second verdict should be set aside was that the accused had the right to have the first verdict filed, it being the intention of the Jury to give the defendants the benefit of the lower grade of punishment provided for the crime of involuntary manslaughter, and the legal effect of the first verdict being that the defendants stood guilty of involuntary manslaughter in the commission of an unlawful act, which verdict operated as ah acquittal of all higher grades of unlawful homicide. The motion for a new trial was overruled, and the case was brought to this court for review. Register v. State, 10 Ga. App. 623 (74 S. E. 429). It was there held that, while the accused should have excepted directly to the action of the court in refusing to- receive the verdict of involuntary manslaughter, nevertheless the court would deal with the question which the accused sought to present by the motion for a new trial, and it was thereupon ruled that the trial Judge erred in refusing to receive the verdict of involuntary manslaughter; that the verdict was a finality and operated as an acquittal of murder and voluntary manslaughter. It was therefore adjudged that the Judgment of the trial court, overruling the motion for a new trial, be reversed,
At the April term, 1913, of the superior court of Colquitt county, the accused were again arraigned under the indictment, and they thereupon filed two special pleas, one setting up that the action of the court in refusing to receive the first verdict had the legal effect of declaring a mistrial without the consent of the accused, and operated absolutely to discharge and acquit them. The other special plea set up that the verdict finding the accused guilty of involuntary manslaughter was a valid verdict, and a final termination of the case, and operated to acquit the accused of all of the grades of unlawful homicide, except the one named in the verdict, and that for this reason the accused could not again be tried for any offense under the indictment upon which they were arraigned. Both of the legal questions which the accused sought to raise by these special pleas having been decided adversely to them, they sued out a writ of error to the Supreme Court. That court passed an order transferring the record to this court, upon the ground that under the constitution of this State, the Court of Appeals, and not the Supreme Court, has exclusive jurisdiction to determine the questions raised in the record. It is pointed out in this order of the Supreme Court that the constitution (Civil Code, § 6503) provides that the Supreme Court shall be a court for the correction of errors “in all cases of conviction of a capital felony,” and that the Court of Appeals “shall have jurisdiction for the trial and correction of errors in law and equity from the superior courts in all cases in which such jurisdiction is not conferred by this constitution on the Supreme Court.” Civil Code, § 6506. In pursuance of this order of the Supreme Court, it becomes the duty of the Court of Appeals to determine the questions presented in the present record.
The decision of the Court of Appeals when the case was here before is the law of the case, binding alike upon the State and the accused. The effect of that decision is to forever foreclose three propositions: (1) that the accused were lawfully convicted of involuntary manslaughter in the commission of an unlawful act,
Under the constitution of this State, where one convicted of crime has a verdict set aside on his own motion, he can be put on trial again under the same indictment; and this is true although he may have been convicted of a lower grade of crime than the highest offense charged in the indictment. For instance, where, under indictment for murder, one has been convicted of voluntary manslaughter and has that verdict set aside on his own motion for a new trial, he can be tried again for murder or manslaughter. Brantley v. State, 132 Ga. 573 (64 S. E. 676, 22 L. R. A. (N. S.) 959, 131 Am. St. R. 218, 16 Ann. Cas. 1203); Perdue v. State, 134 Ga. 300 (67 S. E. 810). If, however, the legal effect of a verdict, in whatever language expressed, is to acquit, the accused can not again be tried under the indictment upon which the verdict was found, even though a judgment of conviction is entered up on the verdict, and,
Generally, a new trial is granted only for matters dehors the record, such as misbehavior of a party or a juror, or because the verdict is contrary to the evidence, or for misdirection to the jury by the judge, and' matters of like character. Such was the rule at common law. 3 Blackstone’s Commentaries, 387. And the common law rule prevails substantially in this State. Hence it is that an error in a judgment or decree, or an error in a ruling of the court upon the' sufficiency of pleadings and matters of like nature, can not be cured by a motion for a new trial. It is undoubtedly true that as a general rule the effect of granting a new trial in a criminal case is to award a de novo investigation under the indictment upon which the accused was convicted, and to set aside and declare null and void all proceedings in the case between arraignment and the end of the trial; and the purpose of granting a new trial is to have a re-examination of the facts in issue. The specific office of a motion for a new trial is to procure the setting aside of the verdict which has been returned against the complaining party. In this ease the accused prayed that a new trial be awarded to them upon, several grounds, incorporating in their motion the usual statutory ground that the verdict was contrary to law and the evidence. It plainly appears from the motion itself that the verdict which the accused thus sought to have set aside was a verdict finding the accused guilty of voluntary manslaughter. That the motion for a new trial was treated in this way by the Court of Appeals when the case was here before can not admit of question. The court dealt with that motion as being one to set aside and have declared null and void the verdict of voluntary manslaughter, and this decision was put upon the sole ground that a previous valid verdict of involuntary manslaughter had been returned in the case. Having thus dealt with the motion, and having expressly ruled that by the return of the first verdict the accused stood acquitted of both voluntary manslaughter and murder, the court, in effect, treated the motion for a new trial as a motion to set aside the verdict of voluntary manslaughter. The accused had the right to file such a
It is earnestly argued by counsel for the accused -that their • clients stand discharged, and that the verdict of involuntary manslaughter was a nullity, because the accused were not permitted to poll the jury; since this was one of their absolute rights which could not be taken away from them by the court. Hopkins v. State, 6 Ga. App. 403 (65 S. E. 57); McCullough v. State, 10 Ga. App. 403 (73 S. E. 546). Generally, the right to poll is waived, if it is not demanded, the only exception being that the accused must be given the opportunity to make the demand. In the present case, when the verdict of involuntary manslaughter was returned, the record shows that the accused had ample time to ask permission to poll the jury before they were sent back.by the court for further deliberation. Even if this were not true, it would simply be ground for a new trial, and would certainly not be a question which could be raised by a special, plea, asserting that the defendants were absolutely discharged by the failure of the court to allow time within which to make a demand th.at the jury be polled, when no exception was taken to the verdict for this reason. But besides all this, the 'accused are clearly estopped from raising any such question now. They acquiesced in the verdict of involuntary manslaughter. They solemnly asserted that it was a legal verdict, and that the court ought to have allowed it to be recorded upon its minutes. They procured a decision from the Court of Appeals that the verdict was a legal verdict, and that for this reason, and this reason alone, the verdict finding the accused guilty of voluntary manslaughter was absolutely null and void. They are estopped now to assert that their former position was untenable, and that a verdict which they then asserted to be legal and valid is now void on account of something which existed, and of which they had knowledge, when the contention was made. What has been said likewise disposes of the contention of counsel for the accused that they have never had an opportunity to file a motion
The suggestion was made in the argument that the verdict nad been erased from the indictment, and was no longer a’part of the record of the court. If this be true, the court can establish a copy of the verdict in the same manner that any other lost or destroyed record can be established. Direction will therefore be given that the judgment of the trial court, in adjudging that the accused were not entitled to be absolutely discharged and acquitted, be affirmed, and that the judgment overruling the plea of former conviction of involuntary manslaughter, and former acquittal of the offense of murder and voluntary manslaughter, be reversed, and that the verdict of involuntary manslaughter be recorded upon the minutes of the court, and that sentence under that verdict be imposed in the manner prescribed by law.
Judgment affirmed in part, and in part reversed, with direction.