3 Ga. App. 13 | Ga. Ct. App. | 1907
Will Sessions was indicted by the grand jury of Terrell county. The indictment contains two counts. The first charges forgerjr, and the second charges the offense of obtaining goods on a false writing. The State elected to proceed on the second count in the indictment. That count is as follows: “And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse the said Will Sessions with having committed the offense of felony, for that the sai<l Will Sessions, in the county aforesaid, on the 17th day of January, 1906, did then and there designedly, by color of a false and counterfeit writing in words as follows, to wit: ‘Mr. Brown, let Will Sessions have what he wants in plow tools and I will see to him paying you when he gets through with me, Jeter/ obtain from D. W. Brown plow tools of the value of $2.05, with intent to defraud the said D. W. Brown, contrary to the laws of said State, the good order, peace and dignity thereof.” Section 247 of the Penal Code, under which this count is brought, is as follows: “If any person shall designedly, by color of any counterfeit letter or writing, made in any other person’s name, or fictitious name, obtain from any person money, or other valuable thing, with intent to defraud any person, mercantile house, body corporate, or company of the
1. We think the court ruled correctly in overruling the motion in arrest of judgment. There are two counts in the indictment, one good on its face and one defective. The defendant, by .a timely demurrer, could have reached the defect in the second count of the indictment and have availed himself of it. He preferred to waive this right. He went to trial upon the indictment (which, while it contained a defective count upon which he was tried, also contained one good count), and was convicted. The motion in arrest of judgment deals solely with the record. The court can not look to the evidence to determine the merits of this motion. Nothing can be considered except the record and the verdict. In passing upon the motion in arrest of judgment, therefore, the court had before it an indictment in which there was one perfect count, and a verdict finding the defendant guilty. The court had to presume that the evidence adduced was sufficient to support the first count of the indictment; and this being true, .there was no merit in the motion. That one count in an indictment containing more than one count is bad is no ground for .arresting the judgment; the verdict is presumed to have been found upon the good count. Bulloch v. State, 10, Ga. 48; Frain v. State, 40 Ga. 529; United States v. The Pirates, 5 Wheaton, 209.
The second exception in the bill of exceptions assigns error on dhe overruling of the motion for new trial. It is insisted that the
2. It is further insisted that the court erred in charging the jury as follows: “If you believe from the evidence, and beyond a reasonable doubt, that the defendant, Will Sessions, in Terrell county, on or about the day alleged in the bill of indictment, delivered to D. W. Brown the order or instrument set out and described in this count of the indictment, and if you further believe beyond a reasonable doubt that said order was a counterfeit, and that the defendant delivered the same to Brown for the purpose of obtaining from him the articles alleged in the bill of indictment, and that he obtained the same from Brown, and it was with the intent to defraud D. W. Brown, — if you believe that beyond a reasonable doubt, then you will be authorized to convict him under this bill of indictment;” the error, as insisted, consisting in omitting to charge the jury that the counterfeit must have been made in some other person’s name or a fictitious name. The defendant was on trial, at the election of the State, for obtaining goods on a false writing. The defendant, as was his privilege, waived his right to be tried on a good indictment, by declining to demur. Any defendant can do this at his peril. It amounts to saying, “I will consider the indictment as setting forth the offense in form and substance; prove me guilty if you can.” But the waiver of proper pleadings does not include a .waiver of proper and sufficient proof to authorize conviction of the offense with which the defendant stands charged in the accusation whose defects of form or substance he is content to waive. Nor does it dispense with any of the essentials of a legal trial, except the matter waived. Suppose I am arraigned on an indictment purporting to be for carrying a concealed weapon, in which it is alleged that at a stated time and within the jurisdiction of the court I unlawfully carried a pistol. This would charge no offense. I have the right to demur or to move to quash the indictment. I can waive this at my option. Suppose that the indictment also contains a count for carrying the pistol to a public gathering, which count is perhaps good in form and substance. If I waive my right to demur, and should be convicted on the indictment, I can not move in arrest of judgment; because I will be presumed to have been convicted of carrying the pistol to a
We think, therefore, that the fact that the defendant waived his right to demur (for both counts of the present indictment are demurrable) extended no further than to waive his right to be tried upon a perfect indictment. The law applicable to the offense of which he stood accused (even if the charge in the accusation was fatally defective) should have been as correctly submitted to the jury, and the evidence should have shown his guilt as satisfactorily and fully, as if all counts in the indictment were perfect. Otherwise, if one requisite could be dispensed with, so could another and another, until the defendant’s mere waiver of a defect in the pleadings would amount to a plea of guilty. The charge delivered was, therefore, error, in that the jury were not instructed more fully what kind of counterfeit the defendant must have been shown to have used with intent to defraud, and especially in that the jury were not charged that the evidence must show that the counterfeit order was made in some other person’s name, definitely pointed out in the evidence, or in a fictitious name likewise disclosed. It is as essential to the completeness of the offense defined in section 247 that the writing used to obtain money or other thing of value should be shown to be in the name of another person, —either a real person, or, if the name signed be fictitious, that that fact be made to appear, — as that the instrumentality employed to defraud should be in writing at all; and that the jury should be so instructed. The offense is obtaining goods, etc., on a false writing. The defendant, by not demurring to the omission in the indictment, waived his right to be informed in whose name the writing he was charged with using was made, and whether the per
3. .We think, too, that the court erred in not granting a new trial because the verdict is without evidence to support it, and, therefore, contrary to law. As we have already ruled, the court can not, in passing upon the motion in arrest of judgment, refer to or consider the evidence. But upon the judge’s consideration of the motion for new trial, the case is different. If the question of the sufficiency of the evidence is presented by the motion, it is his duty to compare the evidence adduced with the allegations of the indictment, and determine whether the guilt of the accused has been established to his satisfaction. But this is by no means all of his duty. The trial judge is charged with a responsibility of completely reviewing the whole case, which is lodged with no other power in this State. He is empowered to exercise a discretion which is not within the jurisdiction of the Supreme Court or of the Court of Appeals. He can review the verdict of the jury, and considering every phase of the testimony, testing its reasonableness or unreasonableness, and even applying his own opinion and knowledge of the credibility of the witnesses to their testimony, see whether justice has in fact been done by the rendition of the proper verdict upon the evidence submitted. And if he is satisfied that injustice has been done, he has the power to order a new trial. Courts for the correction of errors have no such power, and hence, if a verdict has any evidence to support it, the approval of the trial judge is an indorsement of the truth of the testimony in support of the verdict, which places the credibility of such testimony beyond question. But, as we stated above, this is not the whole duty of the trial judge upon review of the case on motion for new trial. He has the whole trial under review and knows everything which has transpired in the presence of the court during the investigation. In this case the State elected to try the defendant on a defective count in the indictment, after the close of the evidence. This was tantamount to an admission in judicio by the State that the defendant was not guilty of forgery as charged in the first count. After conviction, under numerous decisions, the presumption arose that the defendant had
Judgment reversed.