Conley v. State

11 S.E. 659, 85 Ga. 348

• Court: Supreme Court of Georgia
• Decided: April 25, 1890
• Status: Published

Opinion

Blandford, Justice.

1. The first error alleged is that the court upon demurrer overruled the defendant’s plea in bar, which was that he had before been put in jeopardy for the same ofience. The following appears from the record: Hpon the former trial the accusation did not charge the ofience to have been committed in the county of Fulton, and after the defendant had been put on trial under this accusation, the jury sworn, testimony submitted and argument of counsel in part made, the court, over objection of the defendant, allowed the accusation to be amended so as to charge that the ofience was committed in the county of Fulton. The defendant was convicted and brought the case to this court, and it was decided that the court committed error in allowing the amendment to the accusation to be made, and upon that ground reversed the judgment of the coui’t below. Conley v. State, 83 Ga. 496. The constitution of this State (Code, §5000) provides that “no person spall be put in jeopardy of life or liberty more than once for the same ofience, save on his or her own motion for a new -trial after conviction, or in case of mistrial.” There is no jeopardy if the indictment on the former trial is so defective as to be good cause for arresting the judgment. 1 Bishop Criminal Law, §1021; Wharton (2d ed.),213, 205; Cooley Const. Lim. *327; Jones v. State, 55 Ga. 625; Reynolds v. State, 3 Ga. 53; Morrisette v. State, 77 Ala. 71. If for any reason the former proceeding is void, and so declared on motion of the accused for a new trial, it is no bar to a subsequent prosecution for the same act. Such proceeding necessarily involves the conclusion that he was not in jeopardy, and it is no bar to subsequent prosecution. So we think there was no error in the ruling of the court below on this point.

2. The nest ground of error alleged is that the verdict was contrary to law, in that the acts of 1887, under which the defendant was tried, were as to him ex post facto, not being of force at the time of the commission of the offence. The act of 1871 (Code, §§4600, 4601, 4601a) made the fine double the amount of the debt; and for failure to pay immediately, imprisonment not less than six nor more than twelve months in the county jail. The act of 1875 (p. 2) extended these sections to liens for rent, etc. The act of 1876 (p. 114) punished offences against the act of 1875 according to section 4310 of the code. §4600(a). The act of Oct. 8th, 1887 (p. 37), amended section 4601(a) by striking the words “superior court,” which made the section read as follows: “The proper court held for the county in which the party violating section 4600 resides shall have jurisdiction to try the offender.” The act of Oct. 13th, 1887 (pp. 37, 38), amended section 4600 as it originally appeared, so as make it read as it did before the act of 1875 ; and the punishment for not paying the fine immediately was changed to confinement in the chain-gang or the county jail for. a period not more than twelve months. The evidence show's that Conley sold and disposed of the property which is alleged to have been mortgaged, after the passage of the act of October 13th, 1887, above referred to, and that prior to such sale a judgment had been rendered against him and Maher, his surety on the bail-bond, for a sum over $3,000, there being another surety, one Buck. We think that while Maher may have stood Conley’s surety before the passage of the act of October 13th, 1887, yet the offence, if any, committed by Conley in the sale and disposition of the property mortgaged by him to Maher to save Maher harmless as surety on his bond, having been committed by Conley since the passage of the last mentioned act, rendered him amenable to that ach

3. It is insisted that the code, §4600, is unconstitutional, because it imposes an excessive fine (the fine in this case being $6,152.98). No discretion is left by the statute to the judge; it is an invariable law, and fixes the amount of the fine at double the mortgage debt; and it pays no regard to the circumstances of the case, the manner of fault or the ability of the party to-pay. It is said that it is violative of that section of the constitution which says that excessive fines shall not be imposed. Code, §5001. The constitution (Code, §5023) expressly confers on the legislature power to provide for the punishment of fraud, and there is certainly nothing excessive in requiring the perpetrator of fraud to pay two dollars for one — that is, double the amount of the debt sought to be evaded by the fraudulent act. Such a measure of forfeiture or penalty would not be unreasonable for recovery in a civil action, were such an action given by statute.

4. It is further insisted that the act of October 8th, 1887, is unconstitutional, because it gives jurisdiction to the “proper court” held for the county in which the offender resides. It is true that if the offender should not reside in the county where the “proper court” is given jurisdiction, then such court would not by force of the act itself have jurisdiction; but if he should reside in such county and the offence is also committed there, then the “proper court,” though it be the city court, which has jurisdiction, would be a court iu which the offender could be tried.

5. It is alleged as error that the court admitted in evidence an exemplified copy of the mortgage made by Conley to Maher to secure and indemnify him against loss as surety for Conley; because there was no proof of the execution of the original, and because there was a material variance between the paper offered and admitted and the mortgage set out iu the accusation. We do not think this exception is well-founded. There was no need of any proof of the execution of the original mortgage, because the paper offered in evidence was an exemplified copy of a mortgage which had been admitted to record, and upon proper probate. The original mortgage itself, if it had been offered iu evidence, having been recorded, would have been admissible under the laws of this State, because the same had been duly probated and admitted to record; and we think the loss of the original mortgage was sufficiently proved to admit this secondary evidence. We think there was no material variance between the mortgage sot out in the accusation and the paper offered and admitted.

6. It is alleged as error that the court allowed Maher to testify that he had signed a bond, a replevy bond, the bond alleged to have been given in a trover suit. The court, in a note to this ground, certified that he allowed this evidence to go to the jury because the mortgage given by Conley to Maher recited the bond, and if he executed the mortgage he was estopped from denying its recitals. We think there was no error in-allowing this testimony.

7. It is contended that the court erred in admitting a certain exemplification of the execution and claim papers from Fulton superior court, because it was not under the seal of the court; and that the court erred in admitting the original execution and claim papers. The testimony shows that these original claim papers were in the handwriting of Conley, the defendant, and that the claim was put in by his brother, who claimed the property levied on as his, and that it had been the property of a certain newspaper called the “Post-Appeal,” for recovery of the possession of which the action of trover was brought by Thornton, and in which case the bond was given by Conley with Maher as security; that the mortgage made by Conley to Maher to secure and save him harmless as such surety was upon this property, and it was the same property sold and disposed of by Conley. Under these facts, we think the evidence was admissible. See also Code, §3816. No seal required: 80 Ga. 507.

8. We do not think there was a fatal variance between the judgment alleged ($5,714.62 and costs), and that admitted ($5,714.62). The fi. fa. issued in addition to the judgment for so much as costs. The costs followed the judgment, and the clerk could well have taxed the costs and issued execution for the same. It was in effect a part of the judgment.

9. It is alleged that the court ei’red in not ruling out Maher’s testimony relative to the alleged payment by him on the Thornton fi. fa. We think there was no error in allowing this testimony. It was perfectly competent for Maher to testify how much he had paid upon this debt upon which he ka,d become surety for Conley, from whom he had taken the mortgage to secure and sav.e himself harmless.

10. It is complained that the court erred in admitting a certain conversation of Maher with the defendant; that some of Maher’s statements were calculated to injure the defendant, and out of them arose nothing that could be used as a confession. We think this is a conclusion of the plaintiff in error not warranted by the facts, and that there was no error in admitting the evidence.

11. It is alleged as error th%|: the court charged the jury that the State was not bound to show an actual sale, as the statute makes it penal to sell or otherwise dispose of the property, and as the accusation charges that the defendant did sell and dispose of to the Plow-boy Company. We see no material error in this charge. The act of December 13th, 1871, entitled “An act to make penal the selling of personal property which has been mortgaged as a security for the payment of debt, and to provide for the punishment of the same,” provides, in the first section thereof, that “no person, after having executed a mortgage-deed to personal property, shall be permitted to sell or otherwise dispose of the same with intent to defraud the mortgagee.” Acts 1871-2, p. 71. If the words “or otherwise dispose of the same” are matter different from that expressed in the title of the act, in that they have no reference to the “selling” of property, the act is in this respect unconstitutional, and this charge erroneous; but we think these words “or otherwise dispose of” must be construed to mean a disposition of the property in the nature of a sale, and not in any other manner; and that they are included in and in effect the same as the “selling” mentioned in the title of the act. Endlich Interp. Stat. §59; Truss v. State, 13 Lea (Tenn.), 311. We therefore think there was no material error in this part of the charge, the evidence showing that the property was disposed of by the accused to the Plowboy Company, a corporation; that he recognized such disposition; and that the same, as may be inferred from the evideuce, was a selling of mortgaged property within the meaning of the title of the act. Code, §4600.

12. It is alleged as error that the court charged the jury that a mortgage given to indemnify bail in an action ex delicto was a mortgage executed to secure the payment of an indebtedness. It is insisted that a mortgage given to secure the payment of a debt is one thing, and that a mortgage given to indemnify a surety against loss is another and very different thing, and is not such a writing as contemplated by the statute, and not embraced within its terms. Section 2164 of the code provides that “if the principal executes any mortgage or gives other security to the surety or indorser to indemnify him against loss by reason of his suretyship, the surety or indorser may proceed to foreclose such mortgage, or enforce such other lien or security as soon as judgment shall be rendered against him on his contract.” Under this section, we think that when the judgment was rendered against Conley and Maher, his surety, it became a debt within the meaning of the statute which provides for the giving of a mortgage to secure an indebtedness. And where the evidence shows not only that such judgment had been rendered against Conley and his surety, Maher, but that Maher had actually paid the debt or a portion of it for which he had become surety, and where he afterwards foreclosed this mortgage as against Conley, and had execution issued thereon, before any sale or disposition of the property by Conley, we think that when Conley thereafter sold and disposed of the property, he violated section 4600 of the code, under which he was indicted. Such being the case, there was no error in ruling as the court did and refusing to charge as requested.

13. We have examined the charge as a whole, and we find no error therein. We think it was a fair charge as to the law upon the facts of the case.

14. We think the court committed no error in refusing to sustain the demurrer to the accusation and the motion to arrest judgment, which is embraced substantially in che same ground. The laws upon which the prosecution was brought are not only not unconstitutional for the reason specified, but for any other reason.

15. It is insisted that the verdict is contrary to the evidence and without evidence to support it. We have carefully examined the evidence, and are satisfied that there is sufficient evidence to support the verdict.

We think, therefore, that the court committed no error in refusing to grant a new trial.

Judgment affirmed.