Gibson v. State

38 Ga. 571

• Court: Supreme Court of Georgia
• Decided: June 15, 1869
• Status: Published

Opinion

Brows, C. J.

1. The verdict of the jury was accompanied by no recommendation to mercy, and the penalty in this case, if there be any, is death. It is a well known rule of law, that penal statutes are to receive a strict construction in favor of life.

2. Section 4250 of the Revised Code declares, that “ Any attempt, by persuasion or otherwise, to induce others to join in any combined resistance to the lawful authority of the State, shall constitute an attempt to incite insurrection/’

This does not contemplate an attempt by the defendant at insurrection, or to commit insurrection by himself, but an attempt to incite others to join in insurrection. A person may commit the offence of an attempt to incite others to join in, or to commit insurrection who neither promises nor attempts to join in it, or commit it himself. He may stand aloof entirely when it is committed, and still he may, by his influence, have incited it, and may be responsible for it.

Section 4251 of the Code, prescribes a penalty for attempt at insurrection, but none for an attempt to incite insurrection. The penalty is directed against him who makes an attempt at insurrection, as for instance, against any one of a party incited by another, who makes an attempt to commit insurrection and fails, but not against him who attempts to incite or induce others to join in insurrection, or in a combined resistance to the lawful authority of the State with intent to the denial thereof. Applying the strict rule of construction, which it is our duty to apply in this case, we have no difficulty in coming to the conclusion, that the penalty applies only to a person guilty of an attempt to commit insurrection, and not to one guilty of an attempt to incite others to commit that offence.

We respectfully invite the attention of the legislature to this defect in the Penal Code.

Judgment reversed.