Opinion
35844.
DECIDED SEPTEMBER 28, 1955.
Larceny. Before Judge Wood. Fulton Superior Court. May 24, 1955.
Pierre Howard, Charles H. Edwards, Wm. H. Whaley, for plaintiff in error.
Paul Webb, Solicitor-General, C. O. Murphy, contra.
Under the record of this case, the trial court erred in failing to find that the evidence on the issue between the plea of autrefois convict and the traverse thereto demanded a finding in favor of the defendant's plea.
DECIDED SEPTEMBER 28, 1955.
Dotsie C. Pope (hereinafter called the defendant) was apprehended in Fulton County, Georgia, on or about October 7, 1954, at the request of the Sheriff of Liberty County, on a charge of larceny of automobiles. The defendant was released to the Sheriff of Liberty County, and after being transported to Liberty County, was allowed to make a bond in the sum of $25,000. On November 30, 1954, at the November term of Fulton Superior Court, an indictment, number 71420, was returned by the Fulton County grand jury charging the defendant in 8 counts with larceny of automobiles and receiving stolen goods.
The uneven-numbered counts of the indictment charged the defendant with the larceny of certain described automobiles belonging to certain named persons. The even-numbered counts charged the defendant with receiving and having stolen automobiles on the same respective dates, knowing the same to be stolen. The defendant, upon being apprehended on the above charges in the said indictment, made bond to the Superior Court of Fulton County, Georgia, and was then released from custody on said bond in Fulton County. On January 5, 1955, the defendant entered a plea of guilty to four accusations in the Superior Court of Liberty County, Hinesville, Georgia, before Judge M. Price, Judge of the Atlantic Circuit, which includes Liberty County within its jurisdiction. The accusations were numbered 733, 740, 742, and 751. These accusations contained two counts each; the uneven-numbered counts charged the defendant with larceny of the automobiles described therein in Liberty County, and the even-numbered counts charged possession in Liberty County of the same automobiles, knowing the same to have been stolen, and possessing the described automobiles containing false motor numbers. The automobiles described in said accusations included the same automobiles as set out in Fulton County indictment number 71420. The Judge of the Superior Court of Liberty County passed sentence upon the defendant on his plea of guilty to accusations involving the same automobiles as were involved in the indictment in Fulton County. It is inferable from the record that there were automobiles involved in the accusations in Liberty County other than those involved in the Fulton County indictment. After the defendant had entered his plea on the accusations in the Superior Court of Liberty County on January 5, 1955, the defendant was called for trial in the Superior Court of Fulton County on January 31, 1955, on the said indictment pending in the Superior Court of Fulton County, number 71420. Prior to the arraignment and before pleading to the merits of the indictment pending in Fulton County, the defendant filed a special plea of autrefois convict. In this plea the defendant alleged in substance that he had pleaded guilty in the Superior Court of Liberty County on January 5, 1955, for each and every offense charged in the Fulton County indictment. To this plea the defendant attached copies of the transactions in the Superior Court of Liberty County, including his written waiver of the accusations, list of witnesses, formal arraignment, trial by jury, and his plea of guilty, together with the sentence of the court in each case. The defendant prayed that he be discharged. The solicitor-general filed a traverse to the special plea of autrefois convict and further alleged in substance: "That in the event the defendant did plead guilty to an accusation in the Superior Court of Liberty County, admitting the larceny of the same automobiles described in said indictment, the action of Liberty County Superior Court would not affect the indictment now pending in this case."
The solicitor-general further alleged: "(1) Because the indictment was returned in Fulton County on the 30th day of November, 1954, defendant was arrested and made bond for his appearance in Fulton County long before he appeared in Liberty County, and he knew the case was pending in Fulton County Superior Court before his voluntary appearance in Liberty County Superior Court; (2) That any action taken by the Liberty County Superior Court was brought about by fraud, connivance or collusion on the part of the defendant, and for these reasons the disposition of any case with reference to the automobiles described in the indictment by the Superior Court of Liberty County could have no effect on the case pending in Fulton Superior Court."
The defendant demurred to the traverse as follows: "(1) That said traverse does not set out any valid defense or objection to said plea, and further it is not shown where the pendency of an indictment in Fulton Superior Court would deny the Liberty County Superior Court of jurisdiction; (2) That the allegations were vague and indefinite, and set forth no valid objection or defense to the defendant's plea and represented a conclusion of the solicitor-general without sufficient facts alleged to support same, in that it nowhere appears with whom the defendant connived or colluded, or on whom any fraud was perpetrated or in what manner the action of the Superior Court of Liberty County was brought about by fraud, connivance or collusion, or what individuals or persons colluded or connived with defendant in the action taken by the said Superior Court of Liberty County."
The solicitor-general amended the traverse as follows: "Said fraud and collusion was entered into between the defendant and persons to the solicitor-general unknown, but well known to the defendant, and consisted in withholding information from the court, giving false information to the court, to induce the court to accept a plea and impose a sentence without having any of the investigating officers present or complete information as to the number of crimes of larceny and the nature of those crimes involved in these accusations, or without having any of the parties whose property was stolen present. The defendant was a fugitive from justice under an indictment from Fulton County, had not been arrested on the accusations to which he entered a plea, and while a fugitive from justice from Fulton County, he voluntarily appeared at a call session of the Superior Court of Liberty County and entered a plea to the accusations. Defendant failed to inform the court that he was a fugitive from justice. Defendant procured the swearing out of the accusations in Liberty County himself."
The defendant demurred to the traverse as amended, because: "(1) That it did not set forth any ground which could properly vacate the action of the Liberty County Superior Court. (2) That it is vague and indefinite and does not properly put the defendant on notice as to whom such false information was given and misrepresentation made; or what specific statements or information given by the defendant were false, and to whom such statements were made, or whether the court of Liberty County, Georgia, acted upon said statements or information; further, it does not appear how or in what manner defendant induced the court to accept the plea; further, that it does not appear that the defendant had any duty by law to disclose any information to the court of any other charges pending anywhere, or that there was any duty on the defendant to have any investigating officers or any other parties present in the Superior Court of Liberty County; (3) That it nowhere appears that the Superior Court of Liberty County was without jurisdiction to try said matter or that any action of the defendant deprived said Liberty County Superior Court of jurisdiction, further that said amendment is an attempt to collaterally attack a valid judgment of another court of concurrent jurisdiction on the ground of fraud, whereas such an attack should be made directly in the court where the proceedings were had."
The solicitor-general again amended as follows: "All of said acts and conduct of defendant being done to receive a lighter punishment in the Liberty Superior Court for the purpose of avoiding a more severe punishment for said crime in the Fulton Superior Court."
After argument on both sides, the court passed the following order: "The above stated case coming on for trial and the defendant having filed a plea of former jeopardy and autrefois convict thereto, and the Solicitor-General of the Atlanta Judicial Circuit having amended said traverse, and the defendant having further demurred, and the court hearing argument on the same, let all demurrers be and all demurrers are hereby overruled."
The defendant excepted to the order overruling the demurrers, which exceptions have been preserved and certified in the bill of exceptions of the defendant, on the following grounds: "(a) Said order permitted the Solicitor-General of Fulton County to collaterally attack and impeach on the ground of fraud a judgment of a court of general jurisdiction, in a court other than that in which said judgment was rendered; (b) Said order permitted the Solicitor-General of Fulton County to collaterally attack a judgment of Liberty County Superior Court without a direct proceeding to set said judgment aside in Liberty County Superior Court where same was rendered; (c) Said order permitted the solicitor-general to collaterally attack a judgment, which was not void on its face, in a court other than where said judgment was rendered; (d) Said order in effect permitted the Solicitor-General of Fulton County to proceed to collaterally attack on the ground of fraud in the procurement, a judgment of another court of equal jurisdiction, whereas the issue of fraud in the rendition of a judgment would only render said judgment voidable and would make mandatory a direct attack upon said judgment for the purpose of having same set aside; (e) Said order in effect permitted the Solicitor-General of Fulton County to attack a prima facie valid judgment of a court of equal jurisdiction, when any such judgment is presumed to be valid and binding upon any court; (f) Said order denied full faith and credit to a judgment of a court of equal jurisdiction with that of Fulton County Superior Court, said Superior Court of Liberty County being a court of original and general jurisdiction."
The case was thereafter brought to trial before a jury on the ground of autrefois convict. On this issue the defendant offered testimony of Robert P. Stafford of Hinesville, Georgia, to the effect that Stafford was acting as Deputy Clerk of Liberty County Superior Court on January 5, 1955, at which time Judge Price, Judge of the Superior Court, Bruce Duberly, Solicitor-General, Ralph Dawson, retired Solicitor-General, the Sheriff and Deputy Sheriff of Liberty County, were in court. The defendant was represented by his attorneys, in the pleas of guilty to accusations Nos. 751, 742, 740 and 733 of Liberty County Superior Court.
On cross-examination Stafford testified in substance that he did not know who prepared the accusations; that he first heard that the matter was going to be taken up about 10 o'clock that day; that he did not know whether there were any warrants in court; that no jury was summoned there that day and no witnesses testified. The defendant also offered O. B. Higgins, Mrs. J. R. Marshbanks, Warren Tingsley, and Stewart Wight, each of whom testified as to the ownership and theft of each of the four automobiles alleged in the indictment, which are the same four automobiles as described in the accusations Nos. 751, 742, 740, and 733. The defendant offered Bruce Duberly, Solicitor-General of the Atlantic Judicial Circuit, who testified in substance that he handled accusations Nos. 751, 742, 740, and 733, as solicitor-general of the circuit, and he remembered that the cases were disposed of January 5, 1955, in Liberty County Superior Court; that he was present when the pleas were entered, and that Judge Price accepted the pleas in open court; that there were no outside arrangements with any of the lawyers representing the defendant about what would be done if he entered a plea of guilty; that they do not have a printed calendar in the Atlantic Judicial Circuit; and that in that circuit a plea of guilty has been entered without a jury being present, and without an indictment; that he had dictated the waiver on one accusation and signed the other waivers when the plea was entered on all accusations; that he made no recommendation to the court.
On cross-examination, Mr. Duberly testified in substance that in October he heard that a number of automobiles had been stolen and Pope was accused of selling them; that Pope made bond under the warrant charging him with stealing automobiles; that Duberly recommended that the cases be handled in Fulton County, because it would be very expensive for Liberty County to bear the burden of the trial; that he did not prepare these accusations; that he did not know all the pleas were going to be entered until he got to the courtroom.
Mr. Duberly testified with reference to the $25,000 bond of the defendant in Liberty County, that they did not assess that much bond for one larceny of automobile charge, and it was his impression that the bond was a blanket bond covering all charges against the defendant; that he, as solicitor, had told counsel for defendant that he would not commit himself — that there was nothing he could do to keep counsel from pleading defendant guilty if the defendant wanted to come to court and plead guilty.
The defendant also offered Robert Booth, an employee of National Automobile Theft Bureau, who testified that his duties were the identification of automobiles; that he examined the cars in Liberty County, which had been reported stolen in Fulton County, as follows: that he examined the 1954 Chevrolet automobile reported stolen from Mrs. J. R. Marshbanks, and found the confidential serial number and the cut motor number; that he examined the 1954 Chevrolet automobile reported stolen from Mrs. Warren Tingsley, and found the confidential serial number and the cut motor number; that he examined the 1953 Chevrolet automobile reported stolen from Mr. O. B. Higgins, and found the confidential serial number and the cut motor number; that he examined the 1953 Chevrolet automobile reported stolen from Ward Wight Realty Company, and found the confidential serial number and the cut motor number.
The defendant offered in evidence, and same was admitted without objection, certified copies of accusations Nos. 733, 740, 742, and 751 of Liberty County Superior Court, and indictment No. 71420 of Fulton Superior Court, together with documentary evidence identified as plaintiff's exhibits 3, 4, 6, and 7, which said exhibits were correspondence and records made in the regular course of business of the National Automobile Theft Bureau, and which records in substance reflect that the automobiles located in Liberty County, Georgia, and testified about by Robert H. Booth, were the same automobiles as described in the accusations Nos. 733, 740, 742, and 751 of Liberty County Superior Court, and were the same automobiles covered in the eight counts of indictment No. 71420 of Fulton County Superior Court. Before entering upon the trial, the defendant made numerous objections to testimony of certain witnesses and to the admission of certain evidence, which objections the court overruled. The jury returned a verdict of guilty on counts 1, 3, 5, and 7 of the indictment in the Superior Court of Fulton County. The State abandoned the allegations in the even-numbered counts. After sentence by the court, the defendant made his motion for a new trial on the statutory grounds and thereafter added several special grounds. The court denied this motion, and the defendant assigns error on this judgment.
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 error in directing a verdict on the issue formed by the plea of autrefois convict and the traverse thereto, and this is the germane question to which we will direct our attention, because if the court committed reversible error in directing a verdict, all subsequent proceedings are nugatory. In this connection, while we do not think it necessary to deal with the judgment denying the motion for a new trial, it is perhaps better practice to do so. We hold that the court committed reversible error in dismissing the motion for a new trial on the amended motion.
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 in 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 Trippins 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 to the principle of law set out in Doyal v. State, 70 Ga. 134 (3), where it is held: "But there is no such plea to an indictment as pendency of a former indictment or autrefois arraign." See also Hurst v. State, 11 Ga. App. 754 ( 76 S.E. 78), wherein this court said: "This court and the Supreme Court have repeatedly held that the pendency of a former indictment charging the same offense against the accused as that set out in the indictment upon which he is to be tried affords no grounds for plea in abatement. Cabaniss v. State, 8 Ga. App. 129 ( 68 S.E. 849).
"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 cases 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 indictment by a grand jury. Judges of the superior court may open their courts at any time without the presence of either grand jury or traverse jury to receive and act upon pleas of guilty in misdemeanor cases, and in felony cases except those punishable by death or life imprisonment, when the judge and the accused consent thereto, and the judge may try the issues in such cases without a jury upon an accusation filed by the prosecuting officer where the accused has waived indictment, and consented thereto in writing: and Provided further that counsel is present in court representing such defendant either by virtue of his employment or by appointment by the court. (Acts 1915, p. 32; 1935, p. 116.)"
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. Townsend and Carlisle, JJ., concur.