Griffin v. State , 26 Ga. 493 ( 1858 )

By the Court.

McDonald, J.

delivering the opinion.

This was an indictment for misdemeanor, in the Superior Court of Morgan county. There were two counts in the indictment. The first count charged that the plaintiff in error, on the fourteenth day of August, in the year 1855, in the county of Morgan, with force and arms, did unlawfully, wrongfully, feloniously and with intent to steal, attempt to break and enter the storehouse of one Charles W. Richter, which storehouse was then and there situated in the town of Madison, in said county, and did then and there unlawfully, feloniously and wrongfully attempt to privately steal, fake and carry away from said storehouse, divers jewelry, &c., of the value of five thousand dollars, and other things of value; and then and there deposited and being in said storehouse, and then and there the property of the said Charles W. Richter, which said attempt then and' there to commit larceny, from the house, (an offence prohibited by law, and punishable by imprisonment and hard labor in the penitentiary, for any time not less than two years nor longer than five years,) was and is contrary, &c.

The second count in the indictment charged that the said plaintiff in error, in the county of Morgan, on the 14th day of August, intheyear 1855, with force and arrns, feloniously, unlawfully, and with intentto steal, did attempt to break and enter the storehouse of Charles W. Richter, situated in the town of Madison, in said county, and did then and there attempt as aforesaid, to break and enter said storehouse, with intent to steal as aforesaid, by unlawfully, wrongfully and privately taking the impression of the key which unlocked a door of the said store house of the said Charles W. Richter, and from said impression so taken, preparing a false key to fit said lock, for the purpose of unlawfully, feloniously, wrongfully and fraudulently entering, and through the agency of said Hiram T. Jones, to break and enter the said storehouse of the said Charles W. Richter, with intent feloniously, wrongfully, unlawfully and privately to steal as aforesaid, the goods, wares, jewelry, &c., &c., of the value of five thousand dollars, and other things of value, and these the property of the said Charles W. Richter, which said attempt to commit said of-fence of larceny from the house, (an offence prohibited by law, and punishable by confinement and labor in the penitentiary for any time not less than two years, nor longer than five years,) was and is contrary, &c.

The plaintiff in error was arraigned on the bill of indictment, and on his arraignment excepted and demurred thereto, and for cause of exception and demurrer, said :

1st. That there is no offence set forth and charged in said indictment, which is punishable by law, or that will subject him to punishment.

2d. That said indictment contains no statement of facts

i sufficient in law to charge the defendant with the offence of an attempt to commit the crime of larceny from the house.

3d. That the indictment contains no statement of facts suf'ficient in law to charge the defendant with the offence of an attempt to commit the crime of larceny from the house.

4th. That said indictment contains no charge or allegation which, if true, are sufficient in law to constitute the crime of attempt to commit larceny from the house.

[1.] This indictment is on the 2d section of the 15th division of the penal code, (Cobb, 844,/ which is in the follow-lowing words: “If any person shall attempt to commit an offence prohibited by law, and in such an attempt shall do any act toward the commission of such offence, but shall fail in the perpetration thereof, or shall be prevented or intercepted from executing the same, such person, so offending, shall be indicted for a misdemeanor, and on conviction thereof, shall, in cases where no provision is otherwise made in this code, or by law, for the punishment of such attempt, be' punished/’ &c.

The Act does not describe the manner in which an attempt to perpetrate a crime shall be made to constitute the offence.

If the facts charged in the indictment to have been done, amount to an attempt, the offence of attempt to commit the crime is sufficiently charged, and the demurrer ought to be overruled. The indictment charges, that in the county of Morgan, the accused took the impression of the key, and prepared a false key from that impression, to unlock the door of Charles W. Richter’s store, with the intention, through the agency of Hiram T. Jones, to break and enter the store and to steal. So far as the indictment is concerned, the offence, if an offence, is sufficiently charged to have been committed in the county of Morgan. But it is said that no offence is charged, but only an intention to do an act, and a preparation to do it. The intention wrongfully and feloniously to break and enter the storehouse of Richter, with the intent to steal, is very distinctly charged in the indictment. It is also alleged, that this was to be done through the agency of Hiram T. Jones. It is alleged that the accused took the impression of the key to the lock on the door of the storehouse, and that he had a key prepared. Here are two acts towards the accomplishment of a felonious object, and doue. with the intent to accomplish it. The having in possession a key, with the intent to break and enter a house, in order to steal, is a criminal act on the part of a person apprehended with it. Penal Code, Cobb Dig. 817. The case of Rex vs. Sutton, 2 Str. 1074, is a strong authority in support; of this indictment. The defendant was convicted of a misdemeanor, for having in his possession iron stamps, with' the intent to impress the sceptres on sixpences. The Coui;t said, the “ intent was the offence, and the having in his custody is an act that is evidence of that intent.”

The object of the Act under which the plaintiff in error is indicted, is to punish intents to commit crime, if they are demonstrated by an act. The word “ attempt” ordinarily implies an act, an effort, but the General Assembly, in this statute, uses it as synonymous with “ intend,” for it declares that if a person shall attempt to commit a crime, and in such attempt shall do any act towards the commission of such offence, &c. The accused, according to the bill of indictment, conceived the purpose of perpetrating the offence, and he did an act towards the commission of it, for it was an act to take the impression of the key, and that alone is sufficient to subject him to the law; but he prepared the key, and for the object, and so the indictment alleges. It is urged, however, by the learned counsel for the plaintiff in error, that if he intended to commit the crime through the agency of another person, that would only have made him accessory, if the offence had been committed by that other. In the case of The King vs. Higgins, 2 East. 5, the solicitation of another to commit a felony, was held to be an act, and if there was an act done by the accused, that would have made him a principal felon; if the offence had been committed, any act done towards its commission, would make the offence of “attempt” complete.

• Several combined to forge an instrument, and each executed, by himself, a distinct part of the forgery, and they were not together when the instrument was completed, and they were, nevertheless, all held to be guilty as principals. Wharton’s Cr. Law, 65 ; 1 Russ, on Cr. 32; 2 British Crown Cases, 307; Ibid, 304; 1 Ib. 446. (See last case cited.)

Griffin did an act towards the perpetration of the offence, and- if the offence had been committed, he would have been a principal and not accessory. The demurrer to the indictment was, therefore, properly overruled by the Court.

[2.] After the demurrer was overruled in the Court below, the plaintiff in error, moved a continuance of the cause, and in support of the motion deposed that, in consequence of the then recent finding of the indictment, (found at the Term of the Court at which the prisoner was put on his trial,) he had been able to summon no witnesses; that in the former case pending in said Court, he had summoned A. B. Luce, who resides in Savannah; that, at the previous Term, said Luce was in attendance upon the Court, but was then sick at home and confined to his bed; that by the said witness he expected to prove the good character of the defendant and his hand writing, and that letters which it would be attempted to be proved were written by him, were not in his hand writing; that he had no other witness in’Court by whom he expected to prove all the foregoing facts; that he expected to have the witness in attendance at the then next Term of the Court; that said application was not made for delay, but that justice might be done, and he might be enabled to procure the attendance of said witness.

The presiding Judge refused the continuance on the ground, that this indictment is substantially the same as one which had been continued by the defendant for three several Terms of the Court. At another Term of the Court he announced himself ready for trial, and after a jury was empannelled, he absented himself from Court without leave, and forfeited his recognizance. That bill of indictment was nol pros’d by the Solicitor General for a mere formal defect, and the one on which he was now to be put on trial was found by the grand jury for the identical misdemeanor, not at all varying the substance of the same. These are the reasons assigned by the Court for refusing the motion. The 35th common law rule applies to continuances of causes on the civil side of the Court, for the party continuing must depose that the witness resides in the county.

The Act of the. legislature regulates continuances on the criminal side of the Court. 17th section of the 14th division of the Penal Code, Cobh’s Pig. 835. The Act requires that every person against whom a bill of indictment is found, shall be tried at the Term of the Court at which the indictment is found, unless the absence of a material witness or witnesses, or the principles of justice should require a postponement of the trial, and then the Court shall allow the postponement of the trial until the next Term of the Court; but the Court is vested with power to continue criminal causes from Term to Term, as often as the principles of justice may require, upon sufficient cause shown on oath. The defendant in the Court below had been indicted for a misdemeanor, and the Court had postponed the trial for three Terms, and at the fourth Term, when put on his trial, he absented himself without leave, and forfeited his recognizance, which was equivalent, as the presiding Judge remarked, to a fourth continuance. He showed no disposition, whatever, to come to trial. That bill was nol. pros’d, and he was indicted again, as the Judge said, for the identical ■ misdemeanor, not varied in substance. The Court considered the entering of a nolle prosequi as nothing more than a necessary proceeding to amend, in matter of form, the old indictment, and it became his duty, as administrator of justice and the law, to examine well the grounds on which the continuance was asked. It was strongly urged in the argument, that the Court could not notice the former proceeding, though within his knowledge, because it would be like receiving a counter showing, which, it was said, is not allowable. This, I apprehend, is a mistake. It is not arule, with- ■ out exception, that a counter showing will not be heard. In England, a rule founded upon affidavit, is moved for the continuance of a cause, and cause is shown against it, and where there is no suspicion of the bona fides of the application, an affidavit in the common form is sufficient; “but whore a suspicion arises, from the nature of the question, or from contrary affidavits, the Court will examine into the ground upon which the delay is asked; and have, in criminal as well as civil cases, refused to put off a trial, notwithstanding an affidavit in common form.” Imprey’s Prac. K. B. 362; Rex vs. D’Eon, 3 Pur. 1514.

The facilities with which continuances are obtained, is a great obstruction of justice. The delay of causes by the artful contrivances of parties, may involve their antagonists in irretrievable injury, and Courts ought to look closely into all applications for the postponement of the trial of causes, lest injustice be done thereby to parties or the public. The Court, we think, had the right to act upon his knowledge of what passed before him judicially, and to collect from that and other circumstances, the object and motive of the party in moving the continuance. The statute entitles the party to a continuance of the cause, for the absence of a material witness at the Térm of the Court at which the bill is found, if he is not in default. Afterwards, the Court has the power to grant continuances as often as the principles of justice require it. The presiding Judge considered the accused as applying for a fifth continuance of the cause; and conceding it to have been the case, as the witness had been subpenaed,and was prevented from attending Court by sickness* if the showing had been sufficient in other respects, the trial ought to have been put off.

We will examine the affidavit in connection with the facts stated in the decision of the Court, upon the application. That he had not time to subpena witnesses, in consequence of the recent finding of the bill, is not sufficient; for the same issue was tobe tried which had been made on thenoi. pros’d bill, and it does not appear that he had not summoned witnesses to attend on the trial of that issue. On the contrary, it appears that he had summoned the absent witness, Lüce. In that part of the showing it does not appear that there were witnesses material to his defence, absent. The affidavit makes another ground, and it is, that Luce had been subpenaed in the former case; that he was sick at home, (in Savannah,) confined to his bed; that he expected to prove by him his good character, and his hand writing; aud that certain letters, which it was supposed would be offered in evidence against him, were not in his hand writing; that he had no other witnesses in Court by whom he expected to prove all the foregoing facts. The terms of the affidavit imply, that he had witnesses in Court by whom he could prove some of the foregoing facts. All the proof he expected to make by the absent witness, was such as may be usually made by numerous witnesses; viz: character and hand wriwriting. This is not shown to be an exceptional case. It will not do to say, that when the matter to be proved is such as, from the nature of it, may be proven by many witnesses the absence of a single witness whose evidence would merely corroborate the rest, would warrant the continuance of the cause.

It might be important when there is likely to be an equiponderance of evidence, or any thing like it, in the contested question, but that does not appear to be the case here. There is an absence of statement to that effect. To allow a rule, of the kind contended for, would afford a party to look out for a sick or decrepid witness, to subpena him to prove a fact •which, within his knowledge, is susceptible of proof by sound and healthy persons, perfectly at his command. The affidavit does not say that he cannot go safely to trial without the absent witness. To entitle a party to a continuance on the ground of the absence of a witness, it must be shown that his evidence is material in the cause, that he cannot go safely to trial without it, and if there be a suspicion that the application is merely for delay, the Court should look closely into it, and the presiding Judge may rely upon his own knowledge of what has passed before him, judicially, to determine on the merits of the motion.

[3.] The State offered to prove, as introductory to other evidence, a conversation between the witness on the stand, Hiram T. Jones, and Charles W. Richter, in which was rehearsed a conversation between the witness and the defendant on trial, for the purpose of arranging a plan for his detection. This evidence was objected to by the prisoner ; the objection was overruled, and the decision of the Court thereon was excepted to.

The witness gave evidence against the prisoner, of the same conversation, and its rehearsal in the manner stated, could have given it no additional weight or influence with the jury.

The conversation testified to by Richter, was for the same reason admissible.

The extract of the letter from Richter to Jones, contained w no matter implicating the accused, but was admissible only as inducement to explain the conduct of the parties engaged in the detection of the defendant.

[4.] After the evidence was delivered to the jury, the counsel for the prisoner requested the Court in writing, to give the following charge to the jury:

That, admitting the making of the key would constitute the crime, yet if the jury believe from the evidence, the key, if made at all, was made in the city of Savannah, in the county of Chatham, and not in the county of Morgan, the defendant cannot be convicted in the county of Morgan, and they must therefore acquit the defendant.

Without discussing the soundness of this request, as a legal proposition now, it is sufficient to say, that the prisoner did an act in the county of Morgan towards the commission of the offence, and he may be tried, and if guilty, convicted in that county, of the offence of attempt, &c.

The next request is, that if the jury believe from the evidence, that the defendant took the measure of the key of the storehouse, yet if he did it, not with the intent to commit the larceny from the house himself, but to procure another person to commit it, he is not guilty of the offence with which he is charged. This request the Court refused to give, and his refusal so to charge is excepted to. For reasons assigned in this decision on the demurrer to the indictment, our judgment, it will be seen, is, that the Court committed no error in his refusal to give this request in charge to the jury. The defendant did an act which would have made him a principal, if the offence had been consummated.

[5.] The next request made of the Court to charge the jury is, that should the jury even believe from the evidence, that the defendant persuaded the witness, H. T. Jones, and offered bribes to induce him to commit the crime of larceny from the house, yet such persuasion, and such offer of bribes, does not make the defendant guilty of an attempt to -commit larceny from the house. This request the Court refused to give in charge to the jury, and the counsel for defendant excepted.

Our reasons for overruling this assignment of error, are found in what is herein said on the demurrer to the indictment.

[6.] Two other requests were made of the Court to charge the jury, viz:

1st. That if the jury shall even believe that such persuasions and such offers of bribes were made, yet if this was done in the city of Savannah, and county of Chatham, the defendant cannot be convicted in the county of Morgan, but only in the county of Chatham.

2d. That should the jury even believe that the defendant wrote letters from the city of Savannah,and county of Chat-ham, directed to the witness, Jones, in other counties, persuading him to commit the crime of larceny from the house, the writing and sending of such letters do not constitute the offence of an attempt to commit larceny from the house; and especially does it not make the defendant guilty of that of-fence in the county of Morgan. The Court refused both these requests, and his decision is excepted to. These requests are both predicated on the assumption, that the verbal or written persuasions and offers of bribes to Jones, to commit the offence, were tbu only acts done by the defendant towards its perpetration, excluding also the acts done in the county of Morgan, and the sending by railroad the false key from Savannah, to Jones in Madison, which was proven to have been received by him in the county of Morgan. But independent of this, we hold that it makes uo odds where the persuasion is used, or the letters written, whether in or out of the State, the offenee of attempt is complete in the county where the offence, if consummated, must have been committed.

An attempt to commit treason in the State, or to excite a servile insurrection in any county in this State, is complete in the county where the offence must be committed, if committed, and he who does an act towards its commission, is triable in that county, though he may never have been in it. If the attempt be by letter, or such means, the transmission of the letter to the county, and‘its reception there, is an act. in the county.

The Court charged the jury, that if they believed from the evidence, that the defendant took the measure or impression of the key, in the county of Morgan, and afterwards made or procured the key in the county of Chatham, and then sent the key to the witness, Hiram T. Jones, in the county of Morgan, with a solicitation to him to commit the crime of larceny from the house, in the county of Morgan, the defendant is guilty of an attempt to commit the crime of larceny from the house in the county of Morgan. This charge of the Court is excepted to. Without a repetition of the reasons already assigned in support of our judgment, we will say,’that this charge conforms to the law of the case.

Judgment affirmed.