1850 Penal Code State of Georgia Gb0439

A
COMPILATION
OF THE
PENAL CODE
OP THE
STATE OF GEORGIA,
WITH THE
FORMS OF BILLS OF INDICTMENT
NECESSARY IN PROSECUTIONS UNDER IT, X
AND THE
RULES OF PRACTICE.
OF HOUSTON COUNTY, GEORGIA.
MAC ON:
JOSEPH M. BOARDMAN.
1850.
i 1935
471
Entered according to the Act of Congress, in the year 1850, by
HOWELL COBB, OF HOUSTON COUNTY,
in the Cl erk s Office of the District Court of Georgia.
PRINTED BY EDWARD O. JENKINS,
114 Nassau Street, New York .
PREFACE,
THIS vol ume compl etes the pl an of the Compil er, in his
arrangement of the l aws ; one object of that pl an was to sepa
rate the civil and criminal l aw. Another object was, so to
arrange the l aws as to present suitable Forms which are re
quired in practice. The Anal ysis accompl ishes this, by pre
senting the l aw in subjects, and interspersing the Forms
through the chapter. The present work presents the PENAL
CODE as now amended; and, for the purpose of avoiding the
difficul ty of interspersing the Forms through the chapters, the
corresponding number in the Forms, at the end of the chapter,
designates the Form required.
With respect to the Penal Code, the Compil er does not
hesitate to say, that it is correctl y transcribed, and that if any
error in this regard shoul d be discovered, it is entirel y the
error of the Compil er, and no one el se is bl amabl e. In rel a
tion to the Forms, al though the Compil er bel ieves them to be
sufficient, yet, as every pl eader wil l examine the l aw before he
uses them, it is hardl y possibl e for a material error to occur.
It has been thought most proper to arrange some of the
penal statutes in the chapters of the Penal Code; this part of
the arrangement wil l be obvious from the fact, that the Penal
Code proper is inserted in l arger type than the addition made,
and the addition is inserted in such manner as to l eave the
Code unbrok en.
iv PREFACE.
The Compil er woul d be doing viol ence to his own feel ings,
were he to permit this opportunity to pass, without returning
his warmest ack nowl edgments to the gentl emen composing
the Committee, (to wit: Judge COLE, WASHINGTON POE, Esq.,
and EDWIN R. BROWN, Esq., appointed by his Excel l ency,
Governor TOWNS, under the Resol ution of the General Assem
bl y,) for the purpose of examining the manuscript of this
work . Those gentl emen, al ik e distinguished for their urban
ity in social intercourse, courtesy in the practice, and emi
nence in their profession, have displ ayed, in their examination,
not onl y a famil iarity with the l aw, but an untiring patience
and forbearance towards the Compil er, in their review of his
work . The Compil er rel ies much upon the correctness of the
work from the fact, that it has received the approbation and
sanction of the gentl emen al l uded to.
And now, in presenting the work to the publ ic, the Com
pil er throws himsel f upon the k nown l iberal ity of his profes
sional brethren, and of the peopl e at l arge. He hopes for this
work , (as he has for the Anal ysis,) that he shal l real ize that
indul gence and favor which is al ways extended to those who
exert themsel ves to produce something of general benefit,
however humbl e and unpretending that something, or the au
thor of it, may be.
PEKRT, August, 1850.
CHAPTER I
JUSTICES OP THE PEACE WARRANTS, ETC.
2. THE power, office, and duty of a justice of the peace depend on his com
mission, and on the several statutes which have created objects of his jurisdic
tion. His commission, first, empowers him singl y to conserve the peace, and
thereby gives him al l the power of the ancient conservators at the common l aw,
in suppressing riots and affrays, in tak ing securities for the peace, and in appre
hending and committing fel ons and other inferior criminal s. It al so empowers
any two or more to hear and determine al l fel onies and other offences, which is
the ground of their jurisdiction at sessions, of which more wil l be said in its
proper pl ace. And as to the power given to one, two, or more justices by the
several statutes, which from time to time have heaped upon them such an infi
nite variety of business that few care to undertak e, and fewer understand the
office, they are such and of so great importance to the publ ic, that the country
is greatl y obl iged to any worthy magistrate,, that without sinister views of
his own wil l engage in this troubl esome service. And therefore, if a wel l -
meaning justice mak es any undesigned sl ip in his practice, great l enity and in
dul gence are shown to him in the courts of l aw, and there are many statutes
made to protect him in the upright discharge of his office, which, among other
privil eges, prohibit such justices from being sued for any oversights without
notice beforehand, and stop al l suits begun, on tender made of sufficient amends.
But, on the other hand, any mal icious or tyrannical abuse of their office is usu
al l y severel y punished, and al l persons who recover a verdict against a justice,
for any wil l ful or mal icious injury, are entitl ed to doubl e costs. 1 Blac. Com.
353.
15. The justices of the peace of the respective counties shal l be, and they
are hereby decl ared to be l iabl e to prosecution and trial , by indictment, for
mal practice in office ; and it shal l be the duty of the attorney or sol icitor-gen
eral , on compl aint made to them, or either of them, on oath, by any person or
persons, to frame and prefer a bil l of indictment to the grand jury of the county
in which the justice or justices compl ained of may reside, containing the merits
of the compl aint special l y set forth; which indictment, if set forth by the grand
jury, after hearing the evidence and the parties, shal l be tried by a petit jury;
and if convicted on such indictment, the judgment of the court may extend to
fine and removal from office, or either, at discretion. Act of 1811.
Any justice of the peace, charged with mal practice in office, by using oppres
sion, tyrannical partial ity, or any other conduct unbecoming his character as
saa upright magistrate, in the administration, and under col or of his office, may
be indicted, which indictment, shal l special l y set forth, the merits of the com
pl aint, and a copy thereof be served on the defendant before the same is l aid
before the grand jury; and the prosecutor and the justice, and their witnesses,
2
6 JUSTICES OF THE PEACE.
shal l al l have the right of appearing and being heard before the grand jury,
which indictment, if found true by the grand jury, shal l , as in other cases, be
tried by a petit jury and if the defendant be convicted, he shal l be punished
by fine, or imprisonment in the common jail of the county, or both, at the dis
cretion of the court; and shal l moreover be removed from office, if stil l in
office.
Item, for the better k eeping and maintaining of the peace, the k ing wil l ,
that in every county good men and l awful , which be no maintainers of evil ,
or barrators in the county, shal l be assigned to k eep the peace. 1st Ewd. III.
Sch. Dig. 118.
NOTE. To the above statute Judge Schl ey mak es this note: " The preservation of the
publ ic peace has al ways been a favorite object of the common l aw ; for peace is the very
end and foundation of civil society. And, therefore, before the present constitution of
justices was invented, there were pecul iar officers appointed by the common l aw for the
maintenance of the publ ic peace. Of these, some had, and stil l have, this power annexed
to other offices which they hol d ; others had it merel y by itsel f, and were thence named
mstodes or conservaiores pacts, conservators of the peace. Those that were so mrtute
officii, by virtue of their office, stil l continue; but the l atter sort are superseded by the
modern justices. 1 Bl ac. Com. 349."
Justices of the peace are appointed within certain l imits for the conserva
tion of the peace, and for the execution of divers things comprehended within
their commission, and within divers statutes committed to their charge.
Dalt. c. 2; Clay. Jus. 231.
And a record or memorial made by a justice of the peace of things done
before him judicial l y, in the execution of his office, shal l be of such credit
that it shal l not be gainsaid ; one man may affirm a thing, and another man
may deny it, but if a record once say the word, no man shal l be received to
aver or speak against it; for if men shoul d be admitted to deny the same,
there woul d never be an end of controversies. And, therefore, to avoid al l
contentions, whil e one saith one thing and another saith another thing, the l aw
reposeth itsel f whol l y and sol el y in the report of the judge: and hereof it
corneth that he cannot mak e a substitute or deputy in his office, seeing that
l ie may not put over the confidence that is put in him ; great cause, therefore,
have the justices to tak e heed that they abuse not this credit. Lamb. 63, 66 ;
Clay. Jus. 231.
The judges of the superior and justices of the inferior courts have, as in
cident to their offices, a general authority to k eep the peace throughout the
State, and to award process for the security of the peace, and to tak e recog
nizance for it. Clay. Jus. 231.
The general duty of the conservators of the peace by the common l aw is, to
empl oy their own, and to command the hel p of others, to arrest and pacify al l
such, who, in their presence, and within their jurisdiction and l imits, by word
or deed, shal l go about to break the peace. Dalt. c. 1 ; Clay. Jus. 232.
If a conservator of the peace, being required to see the peace k ept, shal l be
negl igent therein, he may be indicted and fined. Clay. Jus. 232.
Q O J 7
And if the conservators of the peace have committed or bound over any
offenders, they are then to send to, or be present at the next jail -del ivery, or
superior court, there to object against them. Clay. Jus. 232.
Justices of the peace have a doubl e power in rel ation to the arrest of wrong
doers, the first branch of which authority may be personal l y exercised on the
commission of a fel ony or breach of the peace in their presence; the second
by issuing a warrant on the evidence and compl aint of another. And if a
justice of the peace see a fel ony or breach of the peace committed, he may
either himsel f arrest the parties offending, or verbal l y command any person to
tak e them into custody. And it seems, that in order to prevent the riotous con-
WARRANTS, COMMITMENTS, ETC. 7
sequences of a tumul tuous assembl y, l ie may command his servants or others
to arrest the affrayers, though, in general , if an offence be committed in his
absence, he must grant his warrant in writing to apprehend the offender. It is
l aid down, that any justice or the sheriff may tak e out of the county any num
ber that he shal l think meet, to pursue, arrest, and imprison traitors and fel ons,
or such as break , or go about to break , or disturb the k ing s peace, and
that every man being required, ought to assist and aid them, on pain of fine
and imprisonment.
Where the magistrate is not present when a crime has been committed, he
ought not, upon mere discretion, to send the party accused to prison, but upon
due consideration of the evidence adduced before him. It was wel l observed
by Ch, J. Pratt, that in case a magistrate has notice, or a particul ar k nowl edge,
that a person has been guil ty of an offence, yet it is not a sufficient ground for
him to commit the criminal , but in that case he is rather a witness than a
magistrate, and ought to mak e oath of the fact before some other magistrate,
who shoul d thereupon act the official part, by granting a warrant to apprehend
the offender, it being more fit that the accuser shoul d appear as a witness than
act as a magistrate. 1 Chit. Crim. Law, 25.
NOTE. Judge Sehl ey l ias the fol l owing note to the XV. ch. of the statute of 3d Edw. I.
(statute of Westminster the first), containing very important duties of justices of the peace,
in a condensed form; therefore, the compil er avail s himsel f of it unhesitatingl y: "By the an
cient common l aw al l fel onies were bail ahl e, so that persons might be admitted to bail
before conviction, al most in every case: and this statute is the first that decl ares who shal l
be bail abl e, and who not, 4 Bl ac. Com. 298. Sheriffs, bail iffs, &c., are named as having
authority to l et to bail ; since, however, the institution of the office of justice of the peace,
which was by 1 Edw. III. sta. 2, ch. 16, post. No. 30; and since by divers statutes, 3 Hen. VII,,
ch.3, post. No. 47. 1 & 2 Phil . & Mary, ch. 13, post. No. 64. 2 & 3 Phil . & Mary, ch. 10,
post. No. 65, justices of the peace are empowered to bail persons who by l aw are bail abl e;
the sheriff never exercises this power: and indeed by the 1 Edw. IV., ch. 2, 2 Ruff. 5, this
power is tak en away from sheriffs and other inferior officers, and now resides onl y in jus
tices of the peace and the superior judicial |officers. I Jacob s Law Die. 217.
" The sheriff coul d in no case exercise this authority in Georgia, because he is onl y a
ministerial , and not a judicial , officer, as in Engl and. The k ing s bench in Engl and (or
any judge thereof in time of vacation) is not bound by this statute, but may bail for any
crime whatsoever, be it treason, murder, or any other offence, according to the circum
stances of the case. 4 Bl ac. Com. 299. The superior courts of this State (or any judge
thereof) being the highest judicial tribunal k nown to the l aws, have l ik e powers as the
k ing s bench, and are not bound by this statute, but may in al l cases l et to bail . Each jus
tice of the inferior court is ex officio a conservator of the peace, and has the same power to
commit or bail prisoners, under this statute, that justices of the peace have. And any judge
of the superior court or (in his absence) the justices of the inferior court (a majority con
curring in opinion) may on habeas corpus, in al l cases, discharge, l et to bail , or remand,
any prisoner brought before them. Act of 1823,
" For the information of justices of the peace, it may be proper to point out, first, for
what crimes they cannot bail , but must commit the prisoner to jail , if there be sufficient
cause of commitment; secondl y, what crimes are bail abl e, or not, according to their discre
tion ; thirdl y, for what crimes they must l et to bail , if sufficient surety is offered ; fourthl y,
in what cases two justices at the l east must sit together, and concur in opinion, in order to
l et to bail ; and fifthl y, when one justice al one has power to bail .
" And first, no justice of the peace can bail 1, upon an accusation of treason; nor 2, of
murder ; nor 3, of mansl aughter, if the prisoner be cl earl y the sl ayer, and not barel y sus
pected to be so or if any indictment be found against him ; nor 4, such as being committed
for fel ony have brok en prison; nor 5, approvers, and persons by them accused; nor 6, per
sons tak en with the manor, or in the fact of fel ony; nor 7, persons charged with arson;
nor 8,. such as are charged with counterfeiting; nor 9, thieves openl y defamed and k nown.
Al l these are cl earl y not admissibl e to bail by justices of the peace. 4 Bl ac. Com. 298 ; 1
Com. Dig. 469.
" Secondl y. Justices of the peace may or may not, at theirJdiscretion, l et to bail in the
fol l owing cases, to wit : burgl ary, l arceny, forgery, perjury, rape, pol ygamy, bestial ity, rob
bery, persons charged with other fel onies, or manifest and enormous offences, not bemg^-of
good fame. And accessories to fel ony, that l abor under the sjame want of reputation. i."
Bl ac. Com. 299. -/ or-, ... , , ., ..
8 JUSTICES OP THE PEACE.
" Thirdl y. The l ast cl ass are such as must be bail ed if sufficient surety is offered, viz.:
persons of good fame charged with a bare suspicion of mansl aughter, or other inferior homi
cide ; such persons being charged with petit l arceny, or any fel ony not before specified or
with being accessory to any fel ony; and al l other persons charged with minor offences as
assaul t, battery, fal se imprisonment, adul tery, fornication, riot, rescue, mayhem, affrays,
fraudul ent mischief, cheating, swindl ing, and general l y misdemeanors of al l k inds.
" Fourthl y. In cases of mansl aughter, or fel ony, bail abl e by l aw, two justices at the l east
must sit together and concur in opinion; for one justice al one has no power to bail . 3 Hen.
VII. ch. 3, post. No. 47; 1 & 2 Phil . & Mary, ch. 13, post. No. 64. And some of the of
fences comprehended in the term fel ony here used are burgl ary, l arceny, forgery, perjury;
rape, pol ygamy, bestial ity, robbery, mansl aughter, &e. < fec. And in ail such cases the jus
tices are bound to tak e the examination of the prisoner, and information of those that bring
him, of the facts and circumstances of the fel ony, and put the same in writing before any
bail ment or commitment made. And the said examinations and bail bond they must certify
and send up to the next superior court for the county in which the crime was committed ;
1 Phil . & Mary, ch. 13, post. No. 64; 2 & 3 Phil . & Mary, ch. 10, post. No. 65. The
justices have al so power, under these statutes, to bind over al l witnesses by recognizance who
k now anything material to prove the fel ony, to appear at the next superior court to give
evidence on the trial ; and such recognizances they must al so certify and return to the
court, with the other proceedings. If the witnesses refuse to give bail , or be bound over,
the justices / nay commit them to jail until they compl y. Ibid.
" Fifthl y. In al l minor offences bel ow the degree of fel ony one justice of the peace
al one may l et to bail , such for instance as assaul t, battery, adul tery, fornication, riot, may
hem, rescue, affrays, swindl ing, cheating, fal se imprisonment, petit l arceny, and misdemean
ors general l y.
" And in al l cases brought before justices of the peace, they have power to inquire into the
facts and circumstances of the transaction; and, if they are satisfied from the evidence
either that no crime has been committed, or that the prisoner is cl earl y innocent of the
charge, or that there is, not sufficient cause of commitment, they may discharge him from
confinement. 4 Bl ac. Com. 296; 2 John. Hep. 203; 1 Bac. Abr. 610. And in such case
it is in their discretion to mak e the prisoner or the prosecutor pay the costs; Prin. Dig.
248, (New Prin. 505.) It is not to be understood, however, that the justice or justices are
to exercise the province or functions of a jury by weighing the evidence, and deciding on
the guil t or innocence of the prisoner. For if the justices have any doubt, or think from
the evidence that there is probabil ity of guiit, then he ought to be bail ed or committed ac
cording to the offence.
" Justices of the peace have power al so to bail persons who by l aw are bail abl e, notwith
standing that they have been committed, and are actual l y in jail . 1 Comyn s Dig. 472.
" To refuse bail when any one is bailable, on the one hand, or on the other to admit any to
bail who ought not by l aw to be admitted, or to tak e sl ender bail, is an offence both at the
common l aw and under this statute (3 Edw. I. ch. 15,) punishabl e by fine, < fcc., < fec. 1 Jacobs,
Law Die. 219. But justices must tak e care, that under pretence of demanding sufficient
surety, they do not mak e so excessive a demand as in effect amounts to a denial of bail :
for this is expressl y forbidden by 1 "Wm. & Ma. sta. 2, ch. 2, Ap. No. 2 ; and al so by the
Constitution of the United States, Sth Art of Amendments, Prin. Dig. 546 (New Prin. 900).
Sch. Dig. 85."
The term "felony," when used in this act, shal l be construed to mean an
offence for which the offender, on conviction, shal l be l iabl e by l aw to be
punished by death or imprisonment in the penitentiary, and not otherwise.
Prin. Dig. 621. <
Arrest.
First, then, of an arrest: which is the apprehending or restraining of one s
person, in order to be forthcoming to answer an al l eged or suspected crime.
To this arrest al l persons whatsoever are, without distinction, equal l y l iabl e in
al l criminal cases ; but no man is to be arrested, unl ess charged with such crime
as wil l at l east justify hol ding him to bail when tak en. And, in general , an
arrest may be made four ways : 1, By warrant; 2, By an officer without war
rant ; 3, By a private person, al so without a warrant; 4, By a hue and cry.
4 Black. Com. 289.
1. A WARRANT may be granted in extraordinary cases by the privy council ,
or secretaries of state; but ordinaril y by justices of the peace. This they may
I
do in any case where they have a jurisdiction over the offence, in order to com
pel the person accused to appear before them: for it woul d be absurd to give
them power to examine an offender, unl ess they had al so a power to compel
him to attend, and submit to such examination. And this extends undoubtedl y
to al l treasons, fel onies, and breaches of the peace ; and al so to al l such offences
as they have power to punish by statute. Sir Edward Cok e, indeed, hath l aid
it down that a justice of the peace cannot issue a warrant to apprehend a fel on
upon bare suspicion ; no, not even til l an indictment be actual l y found ; and the
contrary practice is by others hel d to be grounded rather upon connivance, than
the express- rul e of l aw ; though now by l ong custom establ ished. A doctrine
which woul d, in most cases, give a l oose to fel ons to escape without punish
ment ; and, therefore, Sir Matthew Hal e hath combated it with invincibl e au
thority and strength of reason : maintaining, 1, That a justice of the peace hath
power to issue a warrant to apprehend a person accused of fel ony, though not yet
indicted; and 2, That he may al so issue a warrant to apprehend a person sus
pected of fel ony, though the original suspicion be not in himsel f, but in the
party that prays his warrant; because he is a competent judge of the proba
bil ity offered to him of such suspicion. But in both cases it is fitting to examine
upon oath the party requiring a warrant, as wel l to ascertain that there is a
fel ony or other crime actual l y committed, without which no warrant shoul d be
granted ; as al so to prove the cause and probabil ity of suspecting the party
against whom the warrant is prayed. This warrant ought to be under the
hand and seal of the justice, shoul d set forth the lime and place of making, and
the cause for which it is made, and shoul d be directed to the constable, or other
peace officer, (or, it may be, to any private person by name,) requiring him to
bring the party either general l y before any justice of the peace for the county,
or onl y before the justice who granted it: the warrant in the l atter case being
cal l ed a special warrant. A general warrant to apprehend al l persons sus
pected, without naming or particul arl y describing any person in special , is
il l egal and void for its uncertainty; for it is the duty of the magistrate, and
ought not to be l eft to the officer, to judge of the ground of suspicion. And a
warrant to apprehend al l persons, guil ty of a crime therein specified, is no l egal
warrant: for the point upon which its authority rests, is a fact to be decided
on a subsequent trial ; namel y, whether the person apprehended thereupon be
real l y guil ty or not. It is therefore, in fact, 720 warrant at al l ; for it wil l not
justify the officer who acts under it: whereas a warrant, properl y, penned, (even
though the magistrate who issues it shoul d exceed his jurisdiction,) wil l , by
statute 24, Geo. II. c. 44, at al l events indemnify the officer who executes the
same ministerial l y. And when a warrant is received by the officer, he is bound
to execute it, so far as the jurisdiction of the magistrate and himsel f extends.
A warrant from the chief, or other justice of the court of k ing s bench, extends
al l over the k ingdom ; and is tested or dated, England; not Oxfordshire, Berks,
or other particul ar county. But.the warrant of a justice of the peace in one
county, as York shire, must be back ed, that is, signed, by a justice of the peace
in another, as Middl esex, before it can be executed there. Formerl y, regul arl y
speak ing, there ought to have been a fresh warrant in every fresh county; but
the practice of back ing warrants had l ong prevail ed without l aw,.and was at
l ast authorized by statutes 23, Geo. II. c. 26,.and 24, Geo. II. c. 55. And
now, by statute 13, Geo. III. c. 31, any warrant for apprehending an Engl ish
offender, who may have escaped into Scotl and, and vice versa, may be endorsed
sind executed by the l ocal magistrates, and the offender conveyed back to that
part of the united k ingdoms in which such offence was committed. 4 Black.
Com. 292. 1 Chit. Grim. Law, 2 5. 2 Swifts Dig. 387.
But in case of an act, if the act directed that a justice shal l grant a warrant,
and doth not say to whom it shal l be directed, by consequence of l aw it must
10 JUSTICES OF THE PEA.CE.

be directed to the constabl e, and it cannot be directed to the sheriff unl ess such
power is given in the act. L. Raym. 1192 ; 2 Sal k . 881.
The warrant may be styl ed in divers manners : as, 1st. In the name of the
State, and yet the teste must be under the name of the justice that grants it:
or, 2d. It may be styl ed or made onl y in the name of the justice ; or, 3d1y. It
may be made without any styl e, and onl y under the teste of the justice, or onl y
subscribed by him.
Regul arl y the warrant, especial l y if it be for the peace or good behavior, or
the l ik e, where sureties are to be found or required, ought to contain the special
cause and matter whereupon it is granted, to the intent that the party upon
whom it is to be served may provide his sureties ready, and tak e them with
him to the justice to be bound for him; but if the warrant be for treason, mur
der, or fel ony, or other capital offence, or for great conspiracies, rebel l ious
assembl ies, or the l ik e, it hath been said that it needeth not contain any special
cause, but the warrant of the justice may be to bring the party before him, to
mak e answer to such things or matters general l y as shal l be objected against
him on the State s behal f. Dal t. c. 169 ; 2 Haw. 85; 2 H. H. 111.
Every warrant made by a justice of the peace, ought to comprehend the
special matter upon which itproceedeth ; and as for the form, that is commonl y
used to answer to such things as shal l be objected, and such l ik e; they were
not fetched out of the ol d l earned precedents, but l atel y brought in by such as
either k new not or cared not what they writ. Lamb. 8* 7.
The warrant ought regul arl y to mention the name of the party to be attached,
and must not be l eft in general , or with bl ank s to be fil l ed up by the party
afterward. 2 H. 114; Dal t. c. 169. Clay. Jus. 859.
10. Where any person or persons charged with any offence, and brought
before a justice or justices of the peace, shal l be discharged for want of sufficient
cause of commitment, the justice or justices may, in his or their discretion,
discharge .the party with cost, or direct the cost to be paid by the prosecutor.
Act 0/ 1811.
Assault and Battery.
Assaul t, assulhis, from the French assayler, is an attempt or offer, with force
or viol ence, to do a corporal hurt to another, as by strik ing at him with or
without a weapon, or presenting a gun at him, at such a distance to which the.
f
un wil l carry ; or pointing a pitchfork at him, standing within reach of it; or
y hol ding up one s fist at him; or by any other such l ik e act, done in an angry,
threatening manner. 1 Hawk . 133.
An assaul t is an attempt to commit a viol ent injury on the person of
another.
And from hence it cl earl y fol l ows that one charged with an assaul t and
battery, may be found guil ty of the assaul t and yet acquitted of the battery;
but every battery incl udes an assaul t, therefore on an indictment of assaul t and
battery, in which the assaul t is il l -l aid, if the defendant be found guil ty of the
battery it is sufficient. 1 Hawk . 134, 263.
It seems agreed at this day, that no words whatever can amount to an assaul t,
"notwithstanding the many ancient opinions to the contrary. 1 Hawk . 134, 263.
Clay. Jus. 27.
Battery, (from the Saxon batte, a cl ub, or beaten, to beat, from whence
cometh al so the word battl e,) is, when any injury whatsoever, be it ever so
smal l , is actual l y done to the person of another, in any angry, or revengeful , or
rude, or insol ent manner, as by spitting in his face, or any way touching him
in anger, or viol entl y jostl ing him out of the way, and the l ik e. 1 Hawk . 134.
Battery is the unl awful beating of another. On the trial of any indicl menj;
WARRANTS, COMMITMENTS, ETC. H
for an assaul t, or an assaul t and battery, the defendant may give in evidence to
the jury any opprobrious words or abusive l anguage : used by the prosecutor,
or person assaul ted or beaten ; and such words and l anguage may or may not
amount to a justification, according to the nature and extent of the battery ; al l
which shal l be determined by the jury.
Form of. the Warrant.
STATE OF GEORGIA, i Before me, a Justice of the Peace for said county,
H ouston County. personal l y came John Doe, who. .being dul y sworn,
deposeth and saith, that Richard Roe, of said county, on the tenth day
of April, in the year eighteen hundred and fifty, at Perry, in the county
aforesaid, made a viol ent assaul t upon deponent, and then and there
beat him.
Sworn to and subscribed, )
before me, this May 1, 1850. [ . JOHN DOE.
James Mack, J. P. )
STATE OF GEORGIA, 5 To any constabl e of said county, and to al l l aw-
H ouston County. fuj officers, to execute and return.
Whereas, compl aint hath been made before me, James Mack, one
of the justices of the peace in and for the said county, on the oath of
John Doe, that Richard Roe did, on the tenth day of April, eighteen
hundred and fifty, viol entl y assaul t and beat him, the said John Doe, at
Perry, in the county aforesaid : These are, therefore, to command you.
forthwith, to apprehend the said Richard Roe, and to bring him before
me, or some other justice of the peace, for the said county, to answer the
said compl aint, and to be further deait with according to l aw.
Given under my hand and seal, this May 1, 1850.
JAMES MACK, J. P. [ L. S.]
. The affidavit is not a part of the warrant, but it is always best that it shoul d
accompany the warrant, that its l egal ity may appear to the officers required to act under it.
When the executing officer returns the warrant to a justice of the peace, he must enter
his proceedings upon the warrant ; if the person, named in the warrant is apprehended, the
officer must endorse on the wirrant, thus :
Constables Return.
Executed the within warrant, by tak ing the body of Richard Roe,
who is in my custody, this May 1, 1850.
JOHN JACOBS, Constable.
Defence.
A man may justify an assaul t in defence of his person, or his wife, or master,
or parent, or chil d within age, and may even wound in defence of his person,
though not of his possessions. 3 SalJc. 46.
If an officer authorized by warrant l ay hands on another to arrest him, or if
a parent, in a reasonabl e manner, chastise his chil d, a master his servant, a
school master his schol ar, or a jail or his prisoner ; or if one confine a friend bjt
force, who is mad, or if one wrest a sword from another who offers viol ence
therewith, in al l these cases, and many others of a simil ar nature, it is justifi>
abl e. 1 H awk. 130.
Al so, if a person cornes into my house, and wil l not go out, I may justify
l aying hol d of him and turning him out. 3 Black. Com. 120.
So, al so, one may justify assaul ting another who attempts to force him from
his water-course, or highway, or any other l egal possession. Pult. 42.
And whenever a man in his own defence beats another who first assaul ts
him, he may tak e advantage thereof, both upon an indictment, and an action;
but with this distinction, that on the indictment he may give it in evidence upon
the pl ea of but in an action he must pl ead it special l y. 1 134.
If the justice bel ieves the compl aint to be wel l founded and properl y sup
ported, of which, to be the better abl e to judge, he ought to hear the evidence
on both sides, and if necessary to give reasonabl e time to produce the evidence,
he must bind over the offending party, to appear at the next superior court
thereafter.
STATE OF GEORGIA, Know al l men by these presents, that we,
County. and security, of the
county aforesaid, do ack nowl edge oursel ves hel d and firml y bound
unto his excel l ency governor, for the time being,
of the State of Georgia, and his successors in office, in the just and ful l
sum dol l ars, for the payment of which we bind our
sel ves, our heirs, executors and administrators, jointl y and several l y,
firml y by these presents : seal ed with our seal s, and dated
day eighteen hundred
The condition of this recognizance is such, that if the above-bound
shal l , personal l y, appear at the next Superior Court, to
be hel d in and for the county of on the Monday in
next, to answer such matters as shal l be, then and there,
charged against him by concerning an Assaul t and Battery
committed by him, the said on the said and
do not thence depart without l eave of said court, then this recogni
zance to be void ; or el se, to remain in ful l force and virtue.
Signed, seal ed, and 1 Rl CHAED ROE. [ L. S.I
ack nowl edged, in presence of a * FT o n
J CHARLES SMITH, [ L. S.]
1. From and after the passing of this act, when any person or persons shal l
enter into any recognizance, or obl igation, for the appearance of another, to
answer any indictment, information, or presentment of a grand jury for any of
fence committed against the l aws of this State, or who shal l be bound in any.
recognizance, bond, or obl igation, to prosecute or to answer to any criminal
charge, or to give evidence in any criminal case whatever, and shal l fail to pro
duce the body of his, her, or their principal or principal s, at the court, accord
ing to the tenor and effect of said recognizance, bond, or obl igation, when
required so to do, then, and in that case, it shal l be the duty of the sol icitor-
general or prosecuting officer to the several courts of this State, to which said
recognizance, bond, or obl igation shal l be returned, to forfeit said recognizance,
bond, or obl igation in the manner heretofore practiced in this State.
In the case of Park the State of Georgia, 4 Kel . 333, the court made this de
cision, rel ative to the forfeiture of recognizance : " It is the opinion of this court, that before
bail can be made l iabl e, the must show that the principal cal l ed, and did not
appear. There must appear upon the a of forfeiture, and the omission in
this case is essential and fatal . An entry of the judge on the criminal dock et wil l not suf
fice. Burney, appel l ant, Boyett, 1 39. Keither wil l the indorsement of the so
l icitor-general upon the bond or bil l of indictment. The judgment is matter of sub
stance ; it invol ves serious consequences to the parties; it is of such absol ute verity, that
nothing can be averred against it. The fact of forfeiture can onl y be denied by pl eading
The regul ar mode of proceeding, to prevent a forfeiture from accruing,
from the ignorance or inattention of the accused, is to cal l such person, and to warn him
and his securities of the consequence of his non-appearance; and then, upon fail ure, the entry
of the judgment shoul d be in the fol l owing terms : " This day came sol i
citor of the circuit, who prosecutes for the State of Georgia, and shows, that hereto
fore, to wit, on the day of 1844. and
entered iuto an obl igation before county, by which they
ack nowl edge themsel ves to owe and be justl y indebted to governor of
said state, and his successors in office, in the sum of to be void on con
dition that the said mak e his personal appearance before the next
court to be hel d for said county, to answer for the offence of Now, on this day, the
said being sol emnl y cal l ed to come into court, to answer said charge, and
the said his bail , having been warned to present the body of his
principal whom he engaged to be present this day, to answer said charge ; and the said
parties respectivel y, having "whol l y made defaul t; it is therefore considered by the court, ,
that the said and forfeit their obl igation, and that
the said (or, his successor,) recover against the said
and the sum the amount of
their obl igation, so forfeited as aforesaid, unl ess, at the next term of this court, they show
sufficient cause why this order shoul d not be made final , and a is ordered to
issue."
2. It shal l be the duty of the cl erk s of the several superior courts aforesaid
to issue a scire facias on al l forfeited recognizances, bonds, or obl igations,
against the principal and security, which shal l be served by the sheriff or his
deputy under the same rul es which govern service of writs in civil cases, re
turnabl e to the next court from whence the scire facias issued, and if no
sufficient cause shal l be shown to the contrary, judgment shal l be entered up
by motion against the principal and security for the penal ty mentioned in said
recognizance, bond, or obl igation. If good cause be shown at that term, but
not such cause as amounts to an entire discharge of the principal or his se
curity, the scire facias shal l stand to be answered to in l ik e manner at the next
term, and if sufficient cause be not then shown, judgment shal l be entered up
against principal and security, after which the parties to said recognizance,
bond, or obl igation, shal l become absol ute debtors to the State, for the sum or
penal ty mentioned in said recognizance, bond, or obl igation; nothing
herein contained shal l affect the rights of academies.
3. Security shal l be at l iberty to surrender their principal in vacation to the
sheriff, or in open court, in discharge of themsel ves from their l iabil ity.
1831.
NOTE. The writ of must be issued by the cl erk of the court of the county
where the recognizance is forfeited, and be directed to the sheriff of that county. The suit
by is not an original suit within the meaning of the constitution, so as to require it
to be brought in the county where the defendant resides. Garvin Gal l aher, 1
When the defendant resides out of the county and cannot be served personal l y, the sheriff
shoul d return and a second writ is then issued, and if that be returned and the
defendant fail s to pl ead, judgment may be entered against him without the intervention of
a jury. If the defendant appears and tenders an issuabl e pl ea, it shoul d be submitted to
a jury. Reed Sul l ivan, 1 292.
That from and after the passage of this act, it shal l not be l awful for any
person or persons whomsoever, to give bail more than twice for the same
offence, before trial therefor. 1832.
NOTE. If the offender refuses to enter into a recognizance, or be unabl e to give sufficient
security, he must be forthwith committed to jail .
Upon the whol e, if the offence be not bail abl e, or the party cannot find bail ,
he is to be committed to the county jail by the of the justice, or war
rant under his hand and seal containing the cause of his commitment: there
to abide til l del ivered by due course of l aw. But this imprisonment, as has
been said, is onl y for safe custody, and not for punishment; therefore, in this
dubious interval between the commitment and trial , a prisoner ought to be
used with the utmost humanity; and neither be l oaded with needl ess fetters,
nor subjected to other hardships than such as are absol utel y requisite for the
purpose of confinement onl y; though what are so requisite, must too often be
l eft to the discretion of the jail ors, who are frequentl y a mercil ess race of men,
and by being conversant in scenes of misery, steel ed against any tender sen
sation. Yet the l aw (as commonl y hel d) woul d not justify them in fettering
a prisoner, unl ess where he was unrul y, or had attempted to escape : this being
the humane l anguage of our ancient l awgivers, "
4 300.
Though it has been said that a commitment need not be drawn with the
same precision as an indictment, yet it is very important that it shoul d be
framed with accuracy, or the party may, though prosecuted for a fel ony, be
discharged out of custody, or, if he escape, the officer may not be punishabl e.
The formal requisites of the commitment may be considered under the fol l owing
heads:
Every final commitment MUST BE IN WRITING- UNDER HAND AND SEAL, AND
SHOW THE AUTHORITY OT THE MAGISTRATE, AND THE TIME AND PLACE OF MAK
ING- IT. A magistrate, however, may, by order a party to be detained
a reasonabl e time, until he can draw out a formal commitment. And it is said
that though advisabl e, it is not absol utel y necessary to state that the commit
ment was made by the justice in that character, for though his authority do
not appear at the beginning of the mittimus, it may be suppl ied by averment.
In order, however, to show the jurisdiction of the magistrate, to tak e cogni
zance of, and commit for an offence perpetrated out of his county, on the
ground of the party having been apprehended there, as in case of a person
arrested in one county for bigamy committed in another, it is usual to state the
fact in the commitment.
The mittimus may be made either in the k ing s name, or that of the justice
. awarding it, but the l atter is the most usual .
The mittimus shoul d be directed to the gaol er or k eeper of the prison, and
not be general l y to carry the party to prison. But a commitment to the Tower
of London, is said to be a good commitment to the l ieutenant of the Tower.
The magistrates commitment to the pol ice offices for the metropol is, is merel y
directed to the gaol er. But in other counties and pl aces the justice s warrant
and commitment is usual l y directed to a constabl e, and to the k eeper of the
proper gaol , commanding the former to convey the prisoner into the custody of
the l atter, and the l atter to receive and k eep him.
The prisoner shoul d be described by his name and surname if k nown, and
if not k nown, then it may suffice to describe the person by his age, stature,
compl exion, col or of hair, and the l ik e, and to add, that he refuses to tel l his
name.
It is said that it is safe to state that the party has been charged upon oath ;
but this is not necessary, for it has been resol ved, that a commitment for trea
son, or for suspicion of it, without setting forth any particul ar accusation or
ground of suspicion, is val id. And it was recentl y decided not to be necessary,
because a commitment may be and then an oath is not requisite,
and for the same reason it is no.t necessary to state any part of the evidence
adduced before the magistrate, or to show the grounds on which he has thought,
fit to commit the defendant.
But it is necessary to set forth the particul ar species of crime al l eged against
the party, with convenient certainty, whether the commitment be by a justice
of the peace, a secretary of state, the privy council , or any other authority.
There appear to be several reasons for requiring that the cause of the commit
ment shoul d be distinctl y stated, for if no cause be shown, and the prisoner
escape, it is said that the officer is not punishabl e, -nor wil l it be an offence
under the statute 16 Geo. II. c. 31, to enabl e the prisoner to escape from the
prison. And the sheriff is to mak e a cal endar of the prisoners in his gaol , and
del iver it to the justices of gaol -del ivery, stating the prisoners, and the crime
for which they are detained in custody. And l astl y, because the court before
whom the prisoner is removed by ought to discharge or bail
him. And this rul e appl ies not onl y where no cause at al l is expressed in the
commitment, but al so when it is so l oosel y set forth, that the court cannot
judge whether it were a reasonabl e ground of imprisonment. And, therefore,
if the commitment be for fel ony, it ought not to be general l y but it
must contain the special nature of the fel ony briefl y, as for fel ony of the death
of J S, or for burgl ary in break ing the house of IT S, & c.
It is not necessary, however, to al l ege in the mittimus that the offence was
fel oniousl y committed, and it is sufficient, if enough appear upon the face of it,
that the charge was for a fel ony, and the court of k ing s bench wil l , upon a
accordingl y bail or remand the prisoner. And though the com
mitment itsel f be informal , yet, if the appear in the deposition
returned to the court, the defendant wil l not be bail ed, but remanded. And
in a l ate case, it was stated to be a general rul e, that upon appl ication to bail ,
upon a the court requires to see the depositions, and from thence,
if they see just cause, without regarding the regul arity or irregul arity of the
commitment, discharge or bail the prisoner, and the court, in such a case, never
form any judgment whether the facts amount to fel ony or not, but merel y
whether enough is charged to justify a detainer of the prisoner, and put him
upon his trial .
The commitment shoul d point out the of imprisonment, and not merel y
direct that the party shoul d be tak en to prison. We have al ready considered
the proper prison to which he ought to be conveyed.
With respect to the and of imprisonment, it is observed that the
commitment shoul d have an apt concl usion, namel y, to detain the party " until
he shal l be discharged by due course of l aw:" these words al one are proper
where the party is committed for an offence not bail abl e, but where he is com
mitted for want of sureties for a bail abl e offence, it is usual to direct the gaol er
to k eep the prisoner in his said custody for want of sureties, or until he shal l
be discharged by due course of l aw." When the offence is not bail abl e, the
party may be committed until the time of trial , as " until the next general
gaol -del ivery of the said county," or " the next general quarter sessions of the
peace, to be hel d in and for the said county." But the most usual and com
prehensive words are, "until he shal l be discharged by due course of l aw."
1 89.
STATE OF GEORGIA, J By James one of the justices assigned to
County. | jj eep tjje peac6j in ancl for said county.
To one of the constabl es for the county aforesaid, and
to the k eeper of the common jail of said county.
These are to command you, in the name of the State, forthwith to
convey and del iver into the custody of the k eeper of the said jail , the
body of charged before me, on the oath of
with having, on the day of eighteen hundred at
in the county aforesaid, made a viol ent Assaul t upon him, the
said and, then and there, beat him. And you, the said
k eeper, are hereby required to receive the said (he hav
ing fail ed and refused to give bail , as required,) into your custody, in
the said jail , and him there safel y k eep, until he be thence del ivered
by due course of l aw.
1850.
That from and after the passage of this act, it shal l not be l awful for any
magistrate to commit a criminal to jail , for any offence against the State, with
out first compel l ing the prosecutor to give bond and security to prosecute,
according to l aw. 1803.
STATE OF GEORGIA, i Know al l men by these presents, that we,
County. | and security, of said
county, are hel d and firml y bound unto his excel l ency,
Governor of said State, for the time being, and his successors
in office, in the just and ful l sum dol l ars, for the true
payment of which, we bind oursel ves, our heirs, executors and admin
istrators, jointl y and several l y, firml y by these presents; seal ed with
our seal s, and dated this 1, 1850.
The condition of the above obl igation is such, that whereas the
above-bound did, appear before a
justice of the in and for said county, and prayed the issuing of
a warrant against of said county, for an
committed at in said county, on the person of him,
the said by him, the said on the day of
which warrant having been issued, and said
having been arrested thereupon, and brought before me, and
said having been required to give bond and security, for
his personal appearance, at the next Superior Court, to be hel d in and
for said county, on the Monday in next, and
said having fail ed and negl ected to give security as afore
said, is about to be committed to jail , to answer said charge : Now,
shoul d said wel l and trul y be and appear at said Superior
Court, at the time and pl ace aforesaid, and then and there prefer a
bil l of indictment against the said for the offence afore
said, and wel l and trul y prosecute said bil l of indictment to its final
issue, then this bond to be void; el se, to remain in ful l force and
virtue.
Tested and approved, by JOHN DOE. [ L. S.]
ROGER SMALL, [ L. S.]
WOTE. By mak ing suitabl e al terations, the above form wil l answer in al l cases where a
bond to prosecute is required.
A recognizance is a bond or obl igation of record, testifying the cognizor to
owe a certain sum of money to the State, and the ack nowl edging the same is
to remain of record; and none can tak e it but a judge, or justice, or officer of
record.
If a justice compounds recognizances, and does not return them to the court,
he may be indicted.
As soon as it is tak en or ack nowl edged, and reduced to writing by a judge
or justice, or other proper officer, it is a record.
"Whenever any statute or act of Assembl y gives power to a justice or justices
to tak e a recognizance, or to bind over any man to appear at the county or
superior court, or tak e securities for any matter or cause, or where they have
this l atter power as incidental to their office, (as in requiring securities for the
peace, or good behavior,) or wherever they have authority given them to cause
a man to do a thing, they may bind the party by recognizance, or send him to
jail if he refuses to be bound, or wil l not find sufficient securities. In cases to
be tried, or where the party is to appear in the superior court, the recognizances
must be sent to that court. In other cases to the county courts.
The parties bound need not set their names to the recognizance.
A married woman, or an infant under the age of twenty-one years, may not
be personal l y bound. They must find sureties, or be committed.
If the sureties die, the recognizance is good against their executors ; but
though forfeited, the judges can award no process upon it : because these rec
ords must be certified into a court.
Whatever is a breach of the peace, is a forfeiture of recognizance, if it be
tak en for the peace, or good behavior ; but opprobrious or affronting words and
gestures are not a breach, so as to mak e a man forfeit his recognizance ; foe
though such words or gestures may be provocations to break the peace, yet
they do not immediatel y tend to it. as assaul ting and threatening do. 4
ISO, 181.
If the recognizance is not forfeited, it is discharged by the death of the
cognizor. 286.
STATE OF GEORGIA, ) Know al l men by these presents, that we,
County. and security, of said coun
ty, do ack nowl edge oursel ves hel d and firml y bound unto his excel l ency,
Governor of said State, for the time being, and his
successors in office, in the just and ful l sum dol l ars, for
the true payment of which, we bind oursel ves, our heirs, executors
and administrators, jointl y and several l y, firml y by these presents :
seal ed with our seal s, and dated this 1, 1850.
shal l personal l y appear at the next Superior Court, to be
hel d in and for said county, on Monday in next, to
answer such matters as shal l be, then and there, charged against him,
by concerning an and committed by him,
the said on the said at in said county,
on the day of and do not thence depart, without
l eave of said court, then this recognizance to be void ; or el se, to re
main in ful l force and virtue.
Signed, seal ed, and ) Rl CHARD ROE. [ L. S.]
of
AFFRAYS (from to terrify, ) are the fighting of two or more persons in
some publ ic pl ace, to the terror of his majesty s subjects ; for, if the fighting
be in private, it is no but an Affrays may be suppressed by
any private person present, who is justifiabl e in endeavoring to part the com-
batants; whatever consequences may ensue. But more especial l y the constabl e,
or other simil ar officer, however denominated, is bound to k eep the peace ; and
to that purpose, may break open doors to suppress an affray, or apprehend the
affrayers ; and may either carry them before a justice, or imprison them by his
own authority for a convenient space, til l the heat is over ; and may then, per
haps, al so mak e them find surety for the peace. 4 145.
Affrays are the fighting of two or more persons in some publ ic pl ace, to the
terror of the citizens, and disturbance of the publ ic tranquil l ity.
Upon compl aint made to a justice of the peace, he may issue his warrant
to apprehend the offender ; but if it be upon the appl ication of any particul ar
person, the party appl ying shoul d first mak e the fol l owing affidavit.
12.
STATE OF GEORGIA, 1 Personal l y, came before me, one
County. ôf the justices of the for said county,
who, being dul y sworn, deposeth and saith, that on the day
of and of said county,
in the county aforesaid, in a tumul tuous manner,
made an Affray, by fighting together, to the terror of the citizens, and
disturbance of the publ ic tranquil l ity.
Before me, this 1,1850. j. JOHN DOE.
)
STATE OF GEORGIA,}
County. To anY l awful officer> to execute and return.
Whereas, of the county aforesaid, hath, made
oath before me, that on the day of
and of said county, in the county
aforesaid, in a tumul tuous manner, made an Affray, by fighting to
gether, to the terror of the citizens, and disturbance of the publ ic tran
quil l ity. These are, therefore, to command you, forthwith, to appre
hend the said and and bring them before me,
for said county, to be deal t with as
the l aw directs. Hereof fail not, and have you, then and there, this
warrant.
1, 1850.
NOTE. When the offender is apprehended by this warrant, and brought before the justice,
he may admit him to bail , on due consideration of the nature and circumstances of the case.
The sum in which the offender and his securities shoul d be bound is l eft to the discre
tion of the magistrate ; bnt it shoul d be recol l ected, that shoul d in no instance
be required, from the express l etter of the constitution.
NOTE. If the offenders be bound over to court, the fol l owing is the form of the recogni
zance, to wit:
County. as principal s,
and as securities, of the county aforesaid, do
ack nowl edge oursel ves hel d and firml y bound unto his excel l ency,
of said State, for the time being, and his suc
cessors in office, in the just and ful l sum dol l ars, for the
payment of which, we bind oursel ves, our heirs, executors and admin
istrators, jointl y and several l y, firml y by these presents: seal ed with
our seal s, and dated this 1850.
and shal l personal l y appear at the next
Superior Court, to be hel d in and for the county of on the
Monday in next, to answer such matters as shal l , then
and there, be charged against them, by of said county, con
cerning the
by them, the said and and concerning
other misdemeanors, tending to a breach of the peace; and if they do
not depart, without l eave of the court, then this recognizance to be
void ; el se, to remain in ful l force and virtue.
Signed, seal ed, and ) Rl CHAED ROE. [ L. S.I
ack nowl edged, in presence of J- QU^T- 1~ T 1
CHAELES SMITH. [ L. S ]
JOHN STILES, [ L. S.J
JACOB SAUNDEES, S.]
NOTE. If the offenders, when brought before the justice, refuse to enter into recognizance,
or are unabl e to give security, they must be forthwith committed to jail , by such justice.
STATE OF GEORGIA, i To the sheriff of county, or k eeper of the
County. $ jail .of said county.
. These are, in the name of the State, to command you to receive into
the jail of said county, the bodies of and
tak en by warrant, and brought before me, being charged upon
oath, by of said county, with
him, the said in an affray, by the said and
l atel y made, on the day of
in the county aforesaid; (they having fail ed and refused
to give bail as required.) And that you safel y k eep in your
said jail and custody, until they be thence discharged, by due course
of l aw.
1850.
STATE OF GEORGIA,) Know al l men by these presents, that we,
County. $ and security, are hel d and
firml y bound, unto his excel l ency, governor of said
State, for the time being, and his successors in office, in the just and
ful l sum of dol l ars; for the true payment of which, we
bind oursel ves, our heirs, executors and administrators, jointl y and
several l y, firml y by these presents : seal ed with our seal s, and dated
this 1, 1850.
The condition of the above obl igation is such, that if the above-
bound shal l personal l y appear at the Superior Court, to be
hel d in and for said county, on the Monday in next,
as the case may be,)
then and there, to answer the State aforesaid, for and concerning
or whatever the charge may
be,] the property of with which the said stands
charged, before me, ano\. shal l not depart thence without the l eave of
said court, then the above obl igation to be void ; el se, to remain in ful l
force.
Ack nowl edged before me, ? JOHN DOE. [ L. S.]
RicHAED ROE, [ L. S.]
STATE OF GEORGIA, | Know al l men by these presents, that we,
County. $ an(j security, are hel d and
firml y bound unto his excel l ency, governor of said
State, for the time being, and his successors in office, in the just and ful l
sum of dol l ars, for the true payment of which, we bind
oursel ves, our heirs, executors and administrators, jointl y and several l y,
firml y by these presents: seal ed with our seal s, and dated this
1, 1850.
The condition of the above obl igation is such, that if the above-
bound shal l personal l y appear at the Superior Court, to be
hel d for said county, on the Monday in next, then and
there, to give evidence in behal f of the State, on a bil l of indictment
to be preferred, as the case may be,) against
and not depart thence, without l eave of the
court, then this obl igation to be void ; el se, to remain in ful l force.
Ack nowl edged before me, ) JOHN DOE. [ L. S.]
$ Rl CHARD ROE, [ L. S.]
Security for the peace or good behavior consists in being bound, with one
or more sureties, in a recognizance or obl igation to the State, entered on record,
and tak en in some court, or by some judicial officer, such as a justice of the
peace, judge, < fec., whereby the parties ack nowl edge themsel ves to be indebted
to the State in the sum required, with condition to be void and of non-effect if
the party shal l appear in court such a day, and in the mean time k eep the
peace, either general l y towards al l the citizens of the State, or particul arl y
al so with regard to the person who craves the security; or if it be for the good
behavior, then, on condition that he shal l demean and behave himsel f wel l , (or
be of good behavior,) either general l y or special l y for the time therein l imited,
as for one or more years, or for l ife. This recognizance, if tak en by a justice of
the peace, must be certified to the next superior court, and if the condition of
such recognizance be brok en by any breach of the peace, in the one case, or
any misbehavior in the other, the recognizance becomes forfeited or absol ute ;
and thereupon a issues against the party and his sureties, to which
they pl ead and join issue ; or mak e defaul t, and the court proceeds to give
judgment and award execution as in other cases.
Any justices of the peace, by virtue of their commission, or those who are
conservators of the peace, as the judges of the superior and justices of
the inferior courts, may demand such security; or according to their discretion
they may commit al l break ers of the peace, or bind them in recognizance to k eep
it. Al so constabl es may apprehend al l break ers of the peace, and commit
them til l they find sureties for the k eeping of it. Security of the peace may be
granted by justices of the peace and judges, at the request of any citizen, upon
due cause shown; or if the justice of the peace is averse to act, it may be
granted by a mandatory writ, cal l ed a issuing out of the superior
court, which wil l compel the justice to act as a ministerial , and not as a judicial
officer; and he must mak e a return to such writ, specifying his compl iance
under his hand and seal : or the superior court may tak e such recognizance
themsel ves. A justice of the peace may require sureties of any person being
whether a fel l ow justice or other magistrate, or whether he be
merel y a private man. Wives may demand it against their husbands, or hus
bands, if necessary, against their wives ; but married women, and infants under
age, ought to find security by their friends onl y, and not to be bound them
sel ves, for they are incapabl e to engage themsel ves to answer any debt, which
is the nature of those recognizances or ack nowl edgments.
A recognizance may be discharged by the death of the principal party bound
thereby, if not before forfeited ; or by order of the court to which such recog
nizance is certified by the justice, if they see sufficient cause; or if he, at whose
request it was granted upon a private account, wil l rel ease it, or does not mak e
his appearance to pray that it may be continued.
Thus far what has been said is appl icabl e to both species of recognizances
for the and for the but as these two species of securities
are in some respects different, especial l y as to the cause of granting, or the
means of forfeiting them, they are now to be considered separatel y.
Justices of the peace may bind over to the good behavior al l those that be
. ot of good fame, wherever they may be found. Under which general words,
a man may be bound to his good behavior for causes of scandal againsj; moral ity,
as wel l as against the peace ; as for haunting bawdy houses with women of
bad fame, or for k eeping such women in his own house, or for words in abuse
of the officers of justice in the execution of their office; al l night-wal k ers ;
eaves-droppers; such as k eep suspicious company, or are reputed to be pil fer
ers or robbers ; such as sl eep in the day and wak e in the night; common drunk
ards, whoremasters ; the putative fathers of bastards; cheats; idl e vagabonds,
and other persons whose misbehavior may reasonabl y bring them within the
general words, " an expression that l eaves much
to be determined by the discretion of the magistrate himsel f: but if he com
mits a man for want of sureties, he must express the cause thereof with con
venient .certainty; and tak e care that such cause be a good one.
58.
Anv person wandering or strol l ing about, or l eading an idl e, immoral , or
profl igate course of l ife, who has no property to support himsel f or hersel f,
and who is abl e to work or otherwise to support himsel f or hersel f in a re
spectabl e way, shal l be deemed and considered a vagrant, and shal l be indicted
as such, as in other cases, and on conviction, shal l be punished by confinement
and hard l abor in the penitentiary for any time not l ess than two years, nor
l onger than four years : That after such indictment has
been found against any person, such person shal l be discharged and rel eased
from prosecution, if he or she, after the indictment has been found, and before
the trial , shal l tender in open court a bond, with sufficient security, for his or
her good behavior and future industry for one year : That the
said bond shal l be for any amount not more than four hundred dol l ars.
1847.
A recognizance for the good behavior may be forfeited by al l the same
means as one for the security of the peace may be ; and al so by some others*
as by-going armed with unusual attendance, to the terror of the peopl e-; : By-
speak ing words tending to sedition; or by committing any of those acts of mis
behavior the recognizance was intended to prevent; but not barel y gwmg fresb
cause of suspicion of that which perhaps may never actual l y bap-pea ; for
al though it is just to compel suspected persons to give security to-, the publ ic
against misbehavior that is apprehended, yet it woul d be hard, upon such sus
picion, without the proof of any actual crime, to punish them by a forfeiture ofT
their recognizance. 61,
STATE, OP GEORGIA, ) To the Sheriff of said comity, and to^l l l awftu
County. ^ officers.
Forasmuch as I, one of the justices of the in and
for the said county, am given to understand, by the information, testi
mony, and compl aintof many credibl e persons, on oath, (or upon the,-
oath of that of the county aforesaid, and!
of the county aforesaid, are not of good name and fame,
nor of honest conversation, but evil -doers, rioters, barrators, and. dis-
3
turbers of the peace of this State ; so that murders, homicide, strife,
and other grievances and damages against the citizens of this State,
(and particul arl y concerning their bodies, are l ik el y to
arise thereby : These are, therefore, to command you, and every of
you, that you do apprehend the aforesaid and
and have them before me,
as soon as they can be tak en,
to find before me
sufficient sureties for their good behavior towards this State,
and al l the citizens thereof, (and particul arl y towards said
And this you shal l in no wise omit, on the peril that shal l
ensue thereon ; and have you before me this precept.
1850.
Any justice of the peace, by virtue of his office, may bind al l those to k eep the
peace who in his presence mak e any affray, or threaten to k il l or beat another,
or contend together with hot, angry words, or go about with unusual weapons
or attendance, to the terror of the peopl e, and al l such as he k nows to be com
mon barrators, and such as are brought before him by the constabl e for the
breach of the peace in his presence, and al l such persons as having been before
bound to the peace have brok en it and forfeited their recognizance. Al so when
any private man hath just cause to fear that another wil l burn his house, or do
him a corporal injury by k il l ing, imprisoning, or beating him, or that he wil l
procure others to do so, he may demand surety of the peace against such per
son ; and every justice of the peace is bound to grant it, if he who demands it
wil l mak e oath that he is actual l y under fear of death or bodil y harm, and wil l
show that he has just cause to be so, by reason of the other s menaces, attempts,
or having l ain in wait for him, and wil l al so further swear that he does not re
quire such surety out of mal ice, or for mere vexation.
This is cal l ed swearing the peace against another,
i
WHEREAS, it is the practice of justices of the peace, to grant Peace War-
raftts, upon an affidavit being made according to l aw, and of binding or com
mitting the accused party without a hearing, which is contrary to justice for
remedy whereof:
That hereafter, when Peace Warrants are granted upon such principl es as
the l aw now prescribes, that after the party is arrested and brought before the
magistrate, or committing officer, the party in arrest shal l be permitted to in
troduce testimony, in order to show there is no just ground for the warrant.
Such a recognizance for k eeping the peace, when given, may be forfeited by
any actual viol ence, or even an assaul t and menace to the person of him who
demanded it, if it be a special recognizance ; or if the recognizance be general ,
by any unl awful action whatsoever that either is or tends to a breach of the
peace, as by joining in any riot, rout, or unl awful assembl y, or by hunting, or
appearing by day or night disguised or with painted faces, for any unl awful
purpose, or k nowingl y sending a l etter without a name, or with a fictitious
WARRANTS, COMMITMENTS, ETC.
name, demanding money or other val uabl e things, or threatening to k il l , or
burn the house of any person, or committing any affray, or any forcibl e entry
or detainer, .or riding or going armed with dangerous or unusual weapons, under
such circumstances as are apt to terrify the peopl e, or spreading fal se news to
terrify the peopl e, or mak ing fal se and pretended prophecies with intent to dis
turb the peace, or chal l enging to fight by word or l etter, or by being the bearer
of such chal l enge, or mak ing, publ ishing, or communicating any l ibel , or by
mansl aughter, rape, robbery, unl awful imprisonment, or the l ik e, or by l ying in
wait for any person to k il l or beat him, or the l ik e, or by any private viol ence
committed against any of the citizens.
But a bare trespass upon the l ands or goods of another, which is a ground for
a civil action, unl ess accompanied by a wil l ful breach of the peace, is no forfeit
ure of the recognizance, neither are mere reproachful words, as cal l ing a man a
k nave, rogue, or l iar, any breach of the peace, so as to forfeit one s recognizance,
(being merel y the effect of heat and passion,) unl ess they amount to a chal l enge
to fight. 60.
STATE OF GEORGIA j You shal l swear, that you are in fear of
County. j (or some bodil y hurt to be done, or to be procured
to be done to you,) by the county aforesaid,
and that you do not require surety of the peace
against him out of mal ice, or for mere vexation, but for the cause
aforesaid : so hel p you God.
before me, this 1, 1850. RICHARD ROE..
STATE OF GEORGIA, ^ To the Sheriff of said county, and the constabl es
County. V thereof, and to al l other l awful officers, in and
) for the said county.
Forasmuch as of the county aforesaid, hath personal l y
come before me, one of the justices of. the in and
for the said county, and hath tak en a corporal oath^hafheTt he said
is afraid that of the saidjIBmtv. wil l
as the case may be,) mmj and hath, mere-
fore, prayed surety of the peace against him, the said and
that he, the said does not require surety of the peace
against him, the said out of mal ice, or for mere vexation,
but for the cause aforesaid. These are, therefore, to command you,
jointl y and several l y, that immediatel y upon the receipt hereof, you
bring the said before me, to find surety as wel l for his per
sonal appearance, at the next Superior Court to be hel d in and for
said county, as al so for his k eeping the peace, in the mean time,
towards the State and al l the citizens thereof, and chiefl y towards the
said
1, 1850.
JAMES MACK, J. [ L. S.]
County. and are hel d and
firml y bound unto his excel l ency, governor of
said State for the time being, and his successors in office, in the just
and ful l sum of dol l ars, for the true payment of which
we bind oursel ves, our heirs, executors and administrators, jointl y and
several l y, firml y by these presents : seal ed with our seal s, and dated
this 1850.
shal l , personal l y, appear at the Superior Court, to be hel d
for the said county, on the Monday in next, to do and
receive what shal l , then and there, be enjoined him by the court,
and in the mean time shal l k eep the peace towards this State and al l
the citizens thereof, and especial l y towards of the said
county, then the said recognizance shal l be void ; or otherwise, remain
in ful l force.
Ack nowl edged before me, ) JOHN DOE. [ L. S.]
CHARLES SMITH, [ L. S.]
STATE OF GEORGIA, To one of the constabl es of said
County. [ county, and to the k eeper of the common jail
) of and for the said county.
Whereas, of the said county, is now brought before me,
one of the justices of the in and for the said county,
charged with requiring him to find sufficient sure
ties, to be bound with him in a recognizance for his personal appear
ance, at the next Superior Court, to be hol den in and for the said
county, and in the mean time to k eep the peace towards the State
and al l the citizens thereof, and especial l y towards of
the said county. And whereas he, the said hath refused,
and doth now refuse, before me, to find such sureties: These are,
therefore, to command you, the said constabl e, forthwith, to convey
S aid to the common jail of the said county, and to de-
rhim to the k eeper thereof, together with this precept. And I
al soTl * ngbY.cornmand you, the said k eeper, to receive the said
intoyl W cu^^h^ in said jail , and him there safel y k eep, until he
shal l Jind sureti^HK aforesaid, or be otherwise discharged by due
course of l aw.
1850.
In al l cases where any judge of the inferior court or justice of the peace
shal l tak e a bond or bonds for the security of the peace, or where any such
judge or justice shal l commit any person or persons charged with an intent to
viol ate the peace, to the common jail of the county, or any other pl ace of
confinement, on account of the unwil l ingness or inabil ity of such person or
persons to give such bonds, that then and in such case, it shal l be the duty of
such judge or justice forthwith to mak e a return of such bond, together with
the .affidavit or affidavits, and other evidence on which the said bond was re
quired, or in case of no bond, to mak e a return of the affidavits and evidence
on which the person or persons were committed to jail , to the next term of
the superior, inferior, or city court, which may first thereafter hol d their
sittings ; and it shal l be the duty of the officer prosecuting for the State in the
said court, on the first day of the said term, or as soon thereafter as he can
i>e heard, to move the judge or judges presiding in the said court to tak e the
same into consideration; and it shal l be the duty of the said judge or judges,
when the case is so presented to him or them, to examine the evidence so re
turned and presented, and if thereupon he shal l be of opinion that there was
no sufficient ground for requiring such bond, or for the imprisonment of such
person or persons, then and in such case, the said judge or judges are hereby
required to cause the bond or bonds, so tak en, to be cancel ed, or to discharge
the said person or persons from confinement, as the case may be ; and if he
shal l be of opinion that there was no reasonabl e ground for requiring such
bond or bonds; to order and direct that the prosecutor shal l pay al l the costs
and expenses of the said proceedings, which cost shal l be col l ected and re-
covered in the same manner as fees of witnesses are; provided, that if the
said judge or judges shal l have any doubt upon the evidence presented, he,
or they, may receive additional affidavits from either of the parties touching
the conduct of the parties in rel ation to the causes from which such proceedings
originated. 1827. ,
NOTE. If afterwards, or whil st the warrant is out against him, he finds sureties before a
justice of the then the justice issues a supersedeas.
An apprehension under a warrant may, in many cases, be prevented by a
party s going before a justice of the and finding sufficient sureties for
his appearance to answer any indictment, and obtaining the supersedeas of the
magistrate. Thus it is said, that where an assaul t has been committed, and
the offender has not entered into a recognizance before a justice to answer the
compl aint, but has reason to bel ieve that a bil l of indictment wil l be preferred
against him at the next sessions, he may search the office of the cl erk of the
peace to see whether any indictment has been found, and if he shoul d find that
to be the case, may pl ead not guil ty, and enter into a recognizance with suffi
cient sureties to appear and try at the ensuing sessions. Or he may appl y to
the cl erk of the peace immediatel y after the termination of the sessions, for a
certificate of the finding of the bil l ; and after obtaining it, may procurexar
by producing the certificate before, a judge or justice, findinajiSum-
cient sureties, and entering into proper recognizances to appear a^KfBucceed-
ing sessions. By this means he may avoid an arrest >fl l fc judge s warrant
cannot operate after the granting of a supersedeas bywBpTstice of the peace,
nor can a justice s warrant be executed after the supersedeas of a judge. This
protection the defendant shoul d k eep in his possession, to produce it to any
officer who may attempt to apprehend him. The supersedeas recites that the
party has found sufficient sureties to answer the indictment, and commands al l
officers to forbear from arresting him. The l egal ity of this practice of granting
a supersedeas has been questioned, and, at al l events, it is confined to cases
where the offence is cl earl y bail abl e. 1 38.
STATE OF GEORGIA,) Esq., one of the justices of the
County. in and for the said county, to the sheriff,
constabl es, and other the ministers and citizens, of the said State.
Forasmuch as of the said county, hath personal l y been
before me, at in said county, and hath found sufficient surety,
that is to say, of said "county, and of said
county, each of whom hath undertak en for the said under
the pain dol l ars, and he, the said hath under
tak en for himsel f, under the pain of dol l ars, that he, the
said shal l personal l y appear at the next Superior Court, to
be hel d for the said county, then and there to do and receive what
shal l be enjoined him by the said court, and in the mean time shal l
wel l and trul y k eep the peace towards the said State and al l the citizens
thereof, and especial l y towards of the said county : These
are, therefore, to command you, and every of you, that you utterl y
forbear and surcease to arrest, tak e, imprison, or otherwise, by any
means, for the said cause, to mol est the said and if you
have, for the said occasion, and none other, tak en and imprisoned him,
the said that then him you del iver, or cause to be del ivered,
and set at l iberty, without further del ay.
1, 1850.
JAMES MACK, J. P. [ L. S.j

BURGLARY, or nocturnal house-break ing, which by our
ancient l aw was cal l ed as it is in Scotl and to this day, has al ways
been l ook ed upon as a very heinous offence ; not onl y because of the abundant
terror that it natural l y carries with it, but al so as it is a forcibl e invasion and
disturbance of that right of habitation which every individual might acquire even
in a state of nature ; an invasion which, in such a state, woul d be sure to be
punished with death, unl ess the assail ant were the stronger. But in civil society,
the l aws al so come in to the assistance of the weak er party : and, besides that
they l eave him this natural right of k il l ing the aggressor, if he can, (as was
shown in a former chapter,) they al so protect and avenge him, in case the
might of the assail ant is too powerful . And the l aw of Engl and has so par
ticul ar and tender a regard to the immunity of a man s house, that it styl es it
his castl e, and wil l never suffer it to be viol ated with impunity : agreeing herein
with the sentiments of ancient Borne, as expressed in the words of Tul l y : "
For this reason no outward doors can in general be brok en open to execute any
civil process; though in criminal causes, tl ê publ ic safety supersedes the pri
vate. Hence al so in part arises the animadversion of the l aw upon eaves-drop
pers, nuisancers, ajQjticendiaries : and to this principl e it must be assigned,
that a man may assrofbl e peopl e together l awful l y (at l east if they do not ex
ceed el even) without danger of raising a riot, rout, or unl awful assembl y, in
order to protect and defend his house ; which he is not permitted to do in any
other case. 4 223.
The word burgl ary is thought to have been brought into Engl and by the
Saxons from Germany, in whose l anguage signifies a house, and a
thief, probabl y from the Latin 63. ;
Burgl ary is the break ing and entering into the dwel l ing or mansion-house of
another, with intent to commit a fel ony. Al l out-houses contiguous to, and
within the curtil age or protection of the mansion-house, shal l be considered as
parts of the mansion or dwel l ing-house a hired room or apartments in a publ ic
tavern, inn, or boarding-house, shal l be considered as the dwel l ing-house of the
person or persons occupying and hiring the same. Burgl ary may be committed
in the day or night.
Burgl ary in the day-time, shal l be punished by imprisonment and l abor in
the penitentiary for any time not l ess than three years, nor l onger than five
years.
Burgl ary in the night, shal l be punished by imprisonment and l abor in
the penitentiary for any time not l ess than four years, nor l onger than seven
years.
STATE OF GEORGIA, ) In person appeared before me,
County. $ one of the Justices of the in and for said
county, of said county, who being dul y sworn, deposeth and
saith, that on the day of in the the dwel l
ing-house of him, the said at in the county aforesaid,
was fel oniousl y and burgl ariousl y brok en open, and of the
val ue of dol l ars, of the goods and chattel s of .him, he said
fel oniousl y and burgl ariousl y stol en and carried away from thence ;
and fhat he hath just cause to suspect that l ate of
in the county of the same fel ony and burgl ary did commit.
before me, this 1, 1850. [ . DOE.
; .
STATE OF GEORGIA, To the Sheriff of said county, to the Constabl es
-, , f of said county, and to al l other l awful offi-
County.
cers.
Forasmuch as of said county, hath this day made oath
before me, one of the justices in and for
said county, that on the day of in the the
dwel l ing-house of him, the said at in the county of
was fel oniousl y and burgl ariousl y brok en open and of
the val ue of dol l ars, of the goods and chattel s of him, the said
fel oniousl y and burgl ariousl y stol en and carried away from
thence; and that he hath just cause to suspect that l ate
in the county of the said fel ony and burgl ary did
commit. These are, therefore, to command you, that immediatel y
upon sight hereof, you do apprehend the said and bring
him before me, or to answer the prem
ises, and. be further deal t with according to l aw ; herein fail not,
1, 1850.
STATE OF GEORGIA, ) By and justices of
County. j the in and for said county,
one of the constabl es of said county, and to the k eeper of the common
jail of said county.
Whereas, l ate of in the county of has
been arrested, on a suspicion of burgl ary, committed by him, the said
in fel oniousl y and burgl ariousl y break ing and entering
the dwel l ing-house of at in the county of
on ,t|he day of and steal ing and carrying away
from said dwel l ing-house dol l ars, of the goods and chattel s of
him, the said fel oniousl y and burgl ariousl y stol en and car
ried away from thence ; whereupon, the said hath been
dul y examined before us concerning the same, and the examination
before us tak en doth induce a strong presumption that said
is guil ty of the charge made against him : These are, therefore,
to command you, the constabl e, safel y and securel y,
to convey the said to the jail or of said county, and you,
the said jail or, to receive the said into your custody, in
said jail , there to remain til l he be del ivered from your custody by due
course of l aw.
1850.
THOMAS ROSE, J. P. [ L. S.]
CHEATING is another offence, more immediatel y against publ ic trade : as
that cannot be carried on without a punctil ious regard to common honesty,
and faith between man and man. Hither, therefore, may be referred that pro
digious mul titude of statutes, which are made to restrain and punish deceits
in particul ar trades, and which are enumerated in Hawk ins and Burn, but are
chiefl y of use among the traders themsel ves. The offence al so of
of bread, or the rul es l aid down by l aw, and particul arl y by the
statute 31 Geo. II. c. 29, 3 Geo. III. c. 11, and 13 Geo. III. c. 62, for ascer
taining its price in every given quantity, is reduceabl e to this head of cheat
ing : as is l ik ewise in a pecul iar manner the offence of sel l ing by
the standard of which fel l under our consideration in a former
vol ume. The punishment of bak ers break ing the assize, was ancientl y to
stand in the pil l ory, by statute 51 Hen. III. c. 6, and for brewers (by the
.same act) to stand in the tumbrel or dung-cart: which, as we l earn from
doomsday book , was the punishment for k navish brewers in the city of Ches
ter so earl y as the reign of Edward the Confessor. "
But now the general punishment for
al l frauds of this k ind, if indicted (as they may be) at common l aw, is by fine
and imprisonment: though the easier and more usual way is by l evying on a
summary conviction, by distress and sal e, the forfeitures imposed by the sev
eral acts of parl iament. Lastl y, any deceitful practice, in cozening another
by artful means, whether in matters of trade, or otherwise, or by pl aying with
fal se dice, or the l ik e, is punishabl e with fine, imprisonment, and pil l ory. And
by the statutes 33 Hen. VIII. c. 1, and 30 Geo.. II. c. 24, if any man defrauds
another of any val uabl e chattel s by .col or of any fal se tok en, counterfeit l etter,
or fal se pretence, or pawns or disposes of another s goods without the consent
of the owner, he shal l suffer such punishment, by imprisonment, fine, pil l ory,
transportation, whipping, or other corporal pain, as the court shal l direct. 4
J57.
Cheats, which are punishabl e by the common l aw, may in general be de
scribed to be deceitful practices, in defrauding or endeavoring to defraud an
other of his k nown right, by means of some artful device, contrary to the pl ain
rul es of common honesty: as by pl aying with fal se dice, or by causing an
il l iterate person to execute a deed to his prejudice, by reading it over to him
in words different from those in which it was written; or by persuading a
woman to execute writings to another, as her trustee, upon an intended mar
riage, which in truth contained no such thing, but onl y a warrant of attorney
to confess a judgment, or by suppressing a wil l , and such l ik e 1
188.
It seemeth to be the better opinion, that the deceitful receiving of money
from one man to another s use, upon a fal se pretence of having a message and
order to that purpose, is not punishabl e by a criminal prosecution, because it
is accompanied with no manner of artful contrivance, but whol l y depends on
a bare nak ed l ie; and it is said to be needl ess to provide severe l aws for such
mischiefs, against which common prudence and caution may be a sufficient
security. 1 188.
A person, for a counterfeit pass, was adjudged to the pil l ory and fined,
32.
On an indictment against the defendant, a mil l er, for changing corn del ivered
him to be ground, and giving bad corn instead of it, it was moved to quash the
same, becaiise it was onl y a private cheat, and not of a pxibl ic nature. It was
answered, that being a cheat in the way of trade, it concerned the publ ic, and
therefore was indictabl e. And the court was unanimousl y agreed not to quash
it. 16. 2. and Sess. c. v. 1.
A person fal sel y pretending that he had power to discharge sol diers, took
money of a sol dier to discharge him : and being indicted for the same, the
court hel d the indictment to be good. T. 3. c. 1. Latch.
202.
As there are frauds which may be rel ieved civil l y, and not punished crim
inal l y (with the compl aints whereof the courts of equity do general l y abound,)
so there are other frauds which in a special case may not be hel ped civil l y,
and yet shal l be punished criminal l y. Thus, if a minor goes about the town,
and pretending to be of age, defrauds many persons by tak ing credit for con
siderabl e quantities of goods, and then insists on his non-age; the persons in
jured cannot recover the val ue of their goods, but they may indict and punish
him for a common cheat. Barl . 100.
If any person, by fal se representation of his own respectabil ity, weal th, or
mercantil e correspondence and connections, shal l obtain a credit, and thereby
defraud any person or persons of any money, goods, chattel s, or any other
val uabl e thing : or if any person shal l cause or procure others to report fal sel y
of his honesty, respectabil ity, weal th, or mercantil e character, and by thus
imposing on the credul ity of any person or persons, shal l obtain a credit, and
thereby fraudul entl y get into possession of goods, wares, or merchandise, or
any other val uabl e thing or things, such person so offending shal l be deemed
a and and on conviction, shal l be punished by fine, or impris
onment in the common jail of the county, or both, at the discretion of the
court; and such person shal l moreover be compel l ed, by the order and sentence
of the court, to restore to the party injured the property so fraudul entl y ob
tained, if it can be done.
If any person or persons shal l , by any fraud or shift, circumvention, deceit,
or unl awful trick or device, or il l -practice whatever, in pl aying at cards, dice,
or any game or games, or in or by bearing a share or part in the stak es, wages,
or adventures, or in or by betting on the sides or hands of such as do or shal l
pl ay, obtain or acquire to him or themsel ves, or to any other or others, any
money, or other val uabl e thing or things whatever, such person or persons so
offending shal l be indicted, and on conviction, shal l be deemed and shal l
be sentenced to pay a fine of
as aforesaid, and shal l al so be imprisoned in the common jail of the
count} , at the discretion of the court.
Any bak er or other person sel l ing bread under the assize establ ished by the
corporation of any city, town, or vil l age, or the rul es l aid down by any l aw,
shal l be deemed a and on conviction, shal l be punished by fine, or im
prisonment in the common jail of the county, or both, at the discretion of the
court.
If any person shal l sel l by fal se weights or measures, he or she shal l be
deemed and on conviction, shal l be punished by fine, or impris
onment in the common jail of the county, or both, at the discretion of the
court.
STATE OF GEORGIA,! Personal l y appeared before me,
County. one of ^ just i ces of the in and for said
county, Doe, of said county, who, being dul y sworn, deposeth
and saith, that on- the day of one
of county, in said State, in the county aforesaid, by
as the case
may be,) fal sel y and deceitful l y, obtained and got into his hands and
possession, of the price dol l ars, the prop
erty of him, the said from him, the said
before me, this !_ , 1850. > JOHN DOE.
To constabl e, and to al l l awful offi
cers, within the said county.
STATE OP GEORGIA,
County.
Whereas, compl aint hath been made before me, one
of the justices of the in and for said county, on the oath of
that on the day of one
of county, in said State, in the county aforesaid, by
as the case
may be,) fal sel y and deceitful l y, obtained and got into his hands and
possession, price dol l ars, the prop
erty of him, the said from him, the said These
are, therefore, to command you, forthwith, to bring the said
before me, for said county,
to answer the said compl aint, and further to be deal t with according
to l aw.
1, 1850.
JAMES MACK, J. P. [ L. S.j
STATE OF GEORGIA, | one of the justices of the
County. | for sai(j COUnty, to the k eeper of the common
jail of the county aforesaid.
Whereas, l ate of the county of has been ar
rested, on a suspicion of a committed by him, the said
in the county of on the day of
as the case may be,) fal sel y and deceitful l y obtained, and got into
his hands and possession, a of the price of
dol l ars, the property of the county aforesaid: where
upon, the said hath been dul y examined by me, con
cerning the same ; and the examination before me tak en doth induce
a strong presumption that said is guil ty thereof. And
upon such examination before me, he, the said hath
been, by me, required to give security, in the sum of dol
l ars, and securities, each in the sum of dol l ars, for his
ersonal appearance, before the next Superior Court of l aw, to be hel d
or the county of at the court-house, at on the
Monday in next, to answer the said charge; and the said
having fail ed to give such security as aforesaid, these
are, therefore, to command you to receive the said
your custody, in the said jail , there to remain til l he be del ivered
from your custody by due course of l aw.
1, 1850.
i
Be it remembered, that on day of
in the year of our Lard eighteen hundred and
STATE OF GEORGIA,
County.
of in the said county, came before me,
one of the justices of the of and in the said county, and
did ack nowl edge himsel f to owe to his excel l ency,
governor of this State, for the time being, and his successors in office,
the sum dol l ars, current money of this State, under
condition, that if he shal l personal l y appear before the judge of the
Superior Court, at the next Superior Court, to be hol den in and for the
county of the court-house, at on the Monday
in next, in the year of our Lord eighteen hundred and
then and there to give evidence in behal f of the State against
l ate of county, who, being arrested and suspected of
is now committed to the common jail of and for said county,
then this recognizance to be void : otherwise, of force.
Tak en before me, the day i
and year aforesaid. [
) JOHN DoE. | L. S.]
STATE OF GEORGIA, ) Be it remem bered, that on day of
County. ^ in the year of our Lord eighteen hundred and
of in said county, personal l y came before me,
one of the justices of the of and in the said county,
and ack nowl edged himsel f to owe to his excel l ency,
governor of said State, for the time being, and his successors in office,
the sum dol l ars, current money of said State, to be
l evied of his goods and chattel s, l ands and tenements, to the use of the
said State, if he, the said shal l fail in the condition under
written. JAMES MACK, J. P. [ L. S.]
The condition of the above-written recognizance is such, whereas,
one l ate of county, was, this present day, brought
before the justice within mentioned, at the instance of the above-bound
and was by him charged with the offence of
in said county of and thereupon was committed
by the said justice, as the case
may be,) to the common jail for the county of If, therefore,
the said shal l and do, at the next Superior Court, to be hel d
for the said county, on the Monday in in the year of
our Lord eighteen hundred prefer, or cause to be preferred,
a bil l of indictment, of the said charge, against the said
and shal l then al so give evidence there concerning the same, as wel l
to the jurors that shal l then inquire of the said charge, as al so to them
that shal l pass upon the trial of the said that then this
recognizance.to be void ; or el se, to stand in ful l force for the State.
STATE OF GEORGIA, ) Personal l y appeared before me,
County. one of the justices of the in and for said
county, who being dul y sworn, deposeth and saith, that on
the day of in the year of our Lord eighteen hundred and
he, the said at in said county, was of a
of the price o/ dol l ars, and that he hath good cause to
bel ieve that of said county, is a material witness, to prove
by whom the said was committed.
Sworn to and subscribed, 1
before me, this 1, 1S50. J- T
J OHN
STATE OP GEORGIA, ) To one of the constabl es of and in
County. j said county, and to al l l awful officers.
Whereas, oath has been made before me, one of- the
justices of the of and in the said county, by that he,
the said was l atel y of a of the price of
dol l ars, and that he hath good cause to bel ieve that
of said county, is a material witness to prove by whom the said
was committed : These are, therefore, to require you to cause the
said forthwith to come before me, to give such informa
tion and evidence as he k noweth, concerning the said offence; and
that such further proceedings may be had thereon, as to the l aw doth
appertain.
1, 1850.
JAMES MACK, J. P. [ L. S.J
STATE OF GEORGIA, ) o Before me, one of the justices of
County. j the in and for said county, personal l y
came of said county, who being dul y sworn, deposeth and
saith, that on the day of in the year of our Lord eighteen
hundred was in custody, in the common jail of
this county, charged in
and that, on the said day and year, the said
escaped from said jail , and went at l arge, being
unpaid.
before me, this 1, 1850. j TV
JOHN -UOE
< 5TATT7 nw mrr.pr.TA ) Esq., one of the justices of the
tr ÊORGIA> for the said county, to al l sheriffs, bail iffs and
a* ,* * county. j constabl es, within this State.
Whei-eas, hath made oath before me, that on the day
of was in custody, in the common jail of
this county, charged in
and that, on the day and year aforesaid, the said
escaped from said jail , and went at l arge, being
unpaid: You are, therefore, hereby commanded, that every of you,
in your respective counties, mak e dil igent search for the said
and him having found, that you seize and arrest, and forthwith con
vey to the common jail of your county, and him del iver to the sheriff
thereof, to be by him therein detained, in safe and secure custody, until
he shal l thence be discharged by due course of l aw. And in case the
said be arrested, then do you, the said sheriff, who shal l
receive him into your custody, mak e k nown to the superior court, of this
county of at the court thereof, to be hel d next after the said
arrest, how this warrant shal l have been executed. Herein fail not.
1, 1850.
BToTR If the person was in jail , on charge of any criminal offence, and escape, state
whatever offence it be.
STATE OF GEORGIA,) Personal l y appeared before me,
County. one of the justices of the for said county,
Doe, who being dul y sworn, deposeth and saith, that
divers goods of him, the said to wit,
& c., of the price dol l ars, have fel oniousl y been stol en, tak en, and
carried away, from of him, the said at in
said county, and that he hath just cause to suspect, and doth suspect,
that l ate of said county, fel oniousl y did steal ^ tak e, and
carry away, the same.
before me, this 1, 1S50. [ JOHN DOE.
)
STATE o.P GEORGIA,,) To Constabl e, or to any l awful officer
County. o f county.
Whereas, of in said county, hath made
compl aint upon oath, before me, of the justices of the
for the county aforesaid, that divers goods, of
him, the said to wit, & c., of the price of
dol l ars, have fel oniousl y been stol en, tak en, and carried away from
the house of him, the said at in said county, and that
he hath just cause to suspect, and doth suspect, that l ate
of the said county, fel oniousl y did steal , tak e, and carry away the
same: These are, therefore, to command you to tak e the body of the
said and bring him before me,
to answer the compl aint in the premises, as the
l aw directs. Herein fail not.
1, 1850.
Simpl e theft or l a C By is the wrongful and fraudul ent tak ing and carrying
away by any persor||l l * * the personal goods of smother, with intent to steal the
same.
Theft or l arceny from the person, as distinguished from robbery, before de
scribed, is the wrongful and fraudul ent tak ing of money, goods, chattel s, or ef
fects, or any articl e of val ue, from the person of another, privatel y, without his
k nowl edge, in any pl ace whatever, with intent to steal the same.
Larceny from the house, is the break ing or entering any house with an intent
to steal , or, after break ing or entering said house, steal ing therefrom any money,
goods, chattel s, wares, merchandise, or any thing or things of yal ue whatever.
Any officer, servant, or other person empl oyed in any publ ic department,
station, or office of government of this State, or any county, town, or city of
this State, or in any bank or other corporate body in this State, or any presi
dent, director, or stock hol der of any bank , or other corporate body in this State,
who shal l embezzl e, steal , secrete, or fraudul entl y tak e and carry away any
money, gol d or sil ver bul l ion, note or notes, bank bil l or bil l s, bil l or bil l s of ex-
change, warrant or warrants, bond or bonds, deed or deeds, draft or drafts,
check or check s, security or securities for the payment of money, or del ivery of
goods, or other things, l ease, wil l , l etter of attorney, or other seal ed instrument,
or any certificate or other publ ic security of the State for the payment of money,
or any receipt, acquittance, rel ease or discharge of any debt, suit, or other de
mand, or airy transfer or assurance of money, stock , goods, chattel s, or other
property, or any day-book or other book of accounts, or any agreement or con
tract whatever, such person so offending shal l , on conviction, be punished by
imprisonment and l abor in the penitentiary, for any time not l ess than two years,
nor l onger than seven years.
If any factor, commission-merchant, warehouse-k eeper, wharfinger, wagoner,
stage-driver, or other common carrier on l and or water, or any other bail ee with
whom any money, bank bil l or bil l s, note or notes, bil l or bil l s of exchange,
draft or drafts, check or check s, bond or bonds, or other security or order for
the payment of money, or other val uabl e thing, or any cotton, corn, or other
produce, goods, wares, or merchandise, or any other thing or things of val ue,
are or may be intrusted or deposited by any person, shal l fraudul entl y convert
the same, or any part thereof, or the proceeds of any part thereof, to his or her
own use, or otherwise dispose of the same, or any part thereof, without the con
sent of the owner or bail or, and to his or her injury, and with out paying to such
owner or bail or, on demand, the ful l val ue or mark et price thereof; or if, after
a sal e of any of the said articl es, with the consent of the owner or bail or, such
person shal l fraudul entl y, and without the consent of the said owner or bail or,
convert the proceeds thereof, or any part of the proceeds, to his or her own use,
and fail or refuse to pay the same over to such owner or bail or, on demand,
every such person so offending shal l , on conviction, be punished by imprison
ment and l abor in the penitentiary, for any time not l ess than two years, nor
l onger than seven years.
If any person empl oyed as a cl erk , agent or servant, or in any other charac
ter or capacity, in any store, warehouse, counting-room, exchange-office, shop,
or other pl ace of trade, traffic or exchange, where, from the nature of the busi
ness or empl oyment, it is necessary or usual to intrust to such person any
goods, wares or merchandise, cotton, corn, or other produce, money, notes, bil l s
of exchange, bank notes, check s, drafts, orders for payment of money, or other
val uabl e thing, or any other thing or articl e of val ue, shal l fraudul entl y tak e
and carry away, or convert to his own use, or otherwise dispose of any of the
said goods, wares or merchandise, cotton, corn, or other produce, money, notes,
bil l s of exchange, bank notes, check s, drafts, orders, or other thing or things of
val ue thus intrusted to him, or committed to his charge, to the injury, and with
out the consent of the owner thereof, or person thus intrusting him, such per
son so offending shal l , on conviction, be punished by imprisonment and l abor in
the penitentiary, for any time not l ess than one year, nor l onger than five years.
If any person who has been intrusted by another with any money, note or
notes, bil l or bil l s of exchange, bond or bonds, check or check s, draft or drafts,
bank note or notes, order or orders for the payment of money, or other val ua
bl e articl e or thing, or any cotton, corn, or other produce, goods, wares or mer
chandise, horse or horses, mul e or mul es, cattl e, sheep, goats, hogs, or other
articl e or articl es of val ue, for the purpose of appl ying the same for the use or
benefit of the person to whom they bel ong, or the person del ivering them, or
any of them, or for the purpose of col l ecting the money or other thing due on
any such note or notes, bil l or bil l s of exchange, bond or bonds, check or
check s, draft or drafts, bank note or notes, or order or orders, and paying the
proceeds thereof over to the owner or other person so intrusting or del ivering
the same ; or for the purpose of sel l ing such cotton, corn, or other produce,
goods, wares or merchandise, horse or horses, mul e or mul es, cattl e, sheep,
goats, hogs, or other val uabl e articl e, and paying over the proceeds of such
sal e to the owner, or other person so intrusting or del ivering the said articl e or
articl es, shal l - fraudul entl y convert the said articl e or articl es, or any of them,
or the money or other thing arising from the sal e or col l ection of any of them
to Lis or her own use, or shal l otherwise dispose of them, or any of them, to
the injury, and without the consent of the owner, or other person so intrusting
or del ivering them, and without paying to such owner, or person intrusting or
del ivering the same, the ful l val ue or mark et price thereof, such person so offend
ing shal l , on conviction, be punished by imprisonment and l abor in the peni
tentiary, for any time not l ess than one year, nor l onger than five years.
RAPE is the carnal k nowl edge of a femal e, forcibl y and against her wil l .
Rape shal l be punished by an imprisonment at l abor in the penitentiary, for
a term not l ess than two years, nor l onger than twenty years.
An assaul t with intent to commit a rape shal l be punished by an imprison
ment at l abor in the penitentiary, for a term not l ess than one year, nor l onger
than five years.
STATE OF GEORGIA, Personal l y appeared before me,
County. one of the justices of the in and for said
county, of the said county, who being dul y
sworn, saith that l ate of said county, on the day of
in the year of our Lord eighteen hundred and at
in the county aforesaid, on and upon the said viol entl y
and fel oniousl y did mak e an assaul t, and her, the said
against the wil l of her, the said then and there,
fel oniousl y ravished and carnal l y k new.
Sworn to and subscribed, ) her
before me, this 1850. [ BETSEY (xj CLAYBANK.
) mark .
STATE OF GEORGIA, ) To Constabl e, or to some other
County. . j l awful officer, to execute and return.
Forasmuch as of said county, hath com
pl ained on oath before me, one of the justices of the
of the said county, that l ate of the on the
day of in the year of our Lord eighteen hundred at
in the county aforesaid, on and upon the said
viol entl y and fel oniousl y did mak e an assaul t, and her, the said
against the wil l of her, the said then and
there, fel oniousl y ravished and carnal l y k new. These are, there
fore, to command you to mak e dil igent search for the said
and he being found, that you bring him before me,
for the said county, to be examined touching the premises,
and to be otherwise deal t with according to l aw..
1, 1850.
STATE OF GEORGIA,) Be it remembered, that on day of
County. j jn the year of our Lord eighteen hundred and
principal , of said county, of said
county, and securities, of,said county, personal l y
came before me, one of the justices of the for the
county aforesaid, and ack nowl edged themsel ves to owe_ to his excel
l ency, governor of said State for the time being,
and his successors in office, that is to say, the said the sum
of dol l ars, and the said and
each the sum dol l ars, separatel y, of good and l awful money of
said State, to be made and l evied of their goods and chattel s, l ands and
tenements, respectivel y, to the use of the said State, if the said
shal l mak e defaul t in the condition hereon endorsed,
STATE OF GEORGIA, ) Be it remembered, that on the day of
County. ^ j n the year of our Lord eighteen hundred and
of said county, personal l y came before me,
one of the justices of the for said county, and ack nowl
edged himsel f to owe to his excel l ency, governor of
said State for the time being, and his successors in office, the sum of
dol l ars, of good and l awful money of said State, to be made
and l evied of his goods and chattel s, l ands and tenements, to the use of
the said State, if he, the shal l fail in the condition under
written
The right of the peopl e to be secure in their persons, houses, papers, and
effects, against unreasonabl e searches and seizures, shal l not be viol ated, and
no warrant shal l issue but upon probabl e cause, supported by oath or affirma
tion, and particul arl y describing the pl ace to be searched, and the persons or
things to be seized. Amend. Con. U. S.
Upon regul arl y granted, and special l y directed, it seems to
be settl ed, that after the proper precautions, the house to be searched may be
brok en open, and whether the property is found there or not, the officer wil l
be excused, A distinction seems to have been made, though never distinctl y
recognized, as far as respects proceedings, that the officer woul d be
justified, or not, according to the event of his search, but as al l persons who
act under a warrant are now protected from any l iabil ities resul ting
from its having been improperl y framed, this idea coul d not now be supported.
It appears, however, that the party mal iciousl y procuring a search-warrant
is answerabl e to the person aggrieved in an action on the case. As warrants
to search " al l suspected pl aces" are il l egal , unl ess when they are issued
under the provision of the particul ar statutes hereafter considered, it seems
that a constabl e break ing open doors under the col or of their authority cannot
be justified. The general doctrine, therefore, to be adduced from al l the book s
rel ative to search-warrants is, that if they are al together il l egal , the officer
cannot be justified, but that if they are l egal in form, though improperl y
granted, he may safel y break open the doors to execute them, whether his
search succeeded, or the charge be mal icious or mistak en. 1
57.
A justice cannot upon a bare surmise mak e a warrant to break a man s
house to search, for a fel on or for stol en goods, for it woul d be very incon
venient that it shoul d be in the power of any justice of the peace, or any other
whosoever, upon a bare suggestion to break the house of any person he
pl eased, either by night or by day, upon such surmise.
But if compl aint be made on oath of goods stol en, and that the deponent
suspects the goods are in such a house, and wil l show good cause of his sus
picion, the justice may grant a warrant to search in such suspected pl aces PS
are particul arl y mentioned in his warrant, and to attach the goods and the
party in whose custody they are found, and bring them before him or some
other justice to be examined, and to abide such order thereupon as shal l be
agreeabl e to l aw.
And it is most proper that even such a warrant shoul d be executed in the
. day-time, though not absol utel y necessary that it shoul d.
If the door be shut, and if the stol en goods be in the house, the officer may
break open the door if, after demand, it be refused to be opened.-
If the goods be not in the house, yet the officer is justifiabl e, but he that
made the suggestion is punishabl e, for as to him the break ing open the door is
l awful or unl awful , according to the event, to wit, l awful if the goods are there,
unl awful if not there.
As to the goods brought before the- justice, if it appear they were not
stol en, they are to be restored to the possessors. If it appear they were
stol en,-they shal l be deposited in the hands of the sheriff or constabl e, to the
end the party robbed may proceed, by indicting and convicting the offender, to
have restitution.
A s to the party having the goods, if not stol en, he is to be discharged. If
stol en not by him, but by another that sol d or del ivered them to him, if it ap
pears he was ignorant they were stol en, he may be bound over as a witness
against him that sol d them. If it appears he k new they were stol en, he
must be committed or bound over, to answer the fel ony to the proper court.
302. . -
So al so he may issue search-warrants upon proper cause shown upon oath,
to search for stol en goods, but the particul ar pl ace must be special l y set forth,
for a general warrant to search al l pl aces is il l egal . 4Bl ac. Com. 291, 2 H.
H. 113, 150. And the goods must be particul arl y described in the warrant.
Such warrant wil l authorize the constabl e to bring the goods, if he find them ;
and al so the person on whose premises, or in whose possession they are
found, before the justice, to be deal t with as the l aw directs. See 4 Bur.
Jus. 131, 132; see 4 Art. Amen. Con. U. 900.
121
STATE OF GEORGIA, ) Before me, one of the justices of
County. j the in and for said county, in person came
who being dul y sworn, deposeth and saith, that the fol l ow
ing goods, to .wit, of the price dol l ars,
have within days, l ast past, by some person or persons unk nown,
been fel oniousl y stol en, tak en, and carried away, out of the of
the said at in the county aforesaid ; and that the said
hath probabl e cause to suspect, and doth suspect, that the
said goods, or part thereof, are conceal ed in the of
in the said county.
before me, this 1850. } JOHN" DOE.
"
STATE OP GEORGIA, ) To constabl e, or any other l awful
County. | officer of said county.
Whereas it appears to me, one of the justices of the
of and for the said county, by the information on oath of
of in the said county, that the fol l owing goods, to wit,
of the price dol l ars, have, within
days, l ast past, by some person or persons unk nown, been fel oniousl y
stol en, tak en, and carried away, out of the of the said
at in the county aforesaid, and that said hath probabl e
cause to suspect, and doth suspect, that the said goods, or part thereof,
are conceal ed in the of at in the
said county: these are, therefore, in the name of the State, to au
thorize and require you, with proper and necessary assistants, to enter
in the into the said of the said at
in the^county. aforesaid, and there dil igentl y to search for the
said goods ; and if the same, or any part thereof, shal l be found upon
such search, that you bring the goods, so found, and al so the body of
the said before me, of
the said county, to be disposed of and deal t with according to l aw.
IDLENESS in any person whatsoever is al so a high offence against the publ ic
economy. In China it is a maxim, that if there be a man who does not work ,
or a woman that is idl e, in the empire, somebody must suffer col d or hunger ;
the produce of the l ands not being more than sufficient, with cul ture, to
maintain the inhabitants; and therefore, though the idl e person may shift off
the want from himsel f, yet it must in the end fal l somewhere. The court al so
of Areopagus, at Athens, punished idl eness, and exerted a right of examining
every citizen in what manner he spent his time ; the intention of which was,
that the Athenians k nowing they were to give an account of their occupations,
shoul d fol l ow onl y such as were l audabl e, and that there might be no room
l eft for such as l ived by unl awful arts. The civil l aw expel l ed al l sturdy
vagrants from the city: and, in our own l aw, al l idl e persons or vagabonds,
whom our ancient statutes describe to be " such as wak e on the night and
sl eep on the day, and haunt customabl e taverns, and al e-houses, and routs about;
and no man wot from whence they came, ne wither they go; " or such as are
more particul arl y described by statute 17 Geo. II. c. 5, and divided into three
cl asses, and persons, and and
al l these are offenders against the good order, and bl emishes in the
government of any k ingdom. They are, therefore, al l punished by the statute
l ast mentioned; that is to say, idl e and disorderl y persons with one month s
imprisonment in the house of correction; rogues and vagabonds with whipping
and imprisonment not exceeding six months; and incorrigibl e rogues with the
l ik e discipl ine and confinement, not exceeding two years; the breach and escape
from which confinement, in one of an inferior cl ass, rank s him among incorrigi
bl e rogues; and in a rogue (before incorrigibl e) mak es him a fel on, and l iabl e
to be transported for seven years. 4 169.
If any person shal l be apprehended, having upon him or her, any pick -l ock ,
k ey, crow, bit, or other instrument, with intent to break and enter into any
dwel l ing-house, ware-house, store, shop, coach-house, stabl e, or cut-house, in
order to steal or commit any other crime; or shal l have upon him any pistol ,
hanger, cutl ass, bl udgeon, or other offensive weapon, with intent to commit a
crime on any person, which, if committed, woul d be punished by death, or
confinement in the penitentiary; or shal l be found in or upon any dwel l ing-
house, ware-house, store, shop, coach-house, stabl e, or out-house, with intent
to steal any goods or chattel s, every such person shal l be deemed a and
and on conviction, shal l be punished by confinement and l abor in the
penitentiary, for any time not l ess than one year, nor l onger than five years, or
by imprisonment in the common jail of the county, at the discretion of the
court.
3. That any person now within the l imits of this State, or that may here
after come within the same, who may have been found guil ty of any fel onious
crime prior to his coming within this State, so far as to have been committed
to jail for the same, or to have been bound in a recognizance to appear before
any court of record for further trial , and has since brok e jail , or from the custody
of the officer, or have forfeited their recognizance, and .fl ed from the l aws of
the State where the crime was committed and done, in any such case the said
person or persons shal l be deemed and adjudged and subject to al l
the pains and penal ties expressed in this l aw, and shal l be confined in jail until
appl ied for by the executive authority of the State where the crime was com
mitted, or until the executive of this State shal l find it convenient to send such
offender or offenders under a safe guard to the State where the crime was
committed and done. 788.
STATE OP GEORGIA, 3 Before me, one of the justices of
Connty. ^ the in and for said county, in person ap
peared who being sworn, saith that is a person
who has no apparent means of subsistence, and negl ects appl ying him
sel f .to any honest cal l ing, but is now seen wandering about, within the
l imits of this county, though abl e to work and support himsel f in a rep
utabl e way, endeavoring to maintain himsel f by and other
undue means, l eading an idl e, immoral , profl igate course of l ife.
before me, this 1850. [ JOHN DOE.
)
STATE OF GEORGIA, > To Constabl e, or any other l aw-
County. j ful officer, to execute.
Forasmuch as of this county, hath made oath before me,
one of the justices of the of and for the said coun
ty, that is a person who has no apparent means of sub
sistence, and negl ects appl ying himsel f to any honest cal l ing, but is
now seen wandering about within the l imits of this county, though
abl e to work and support himsel f in a reputabl e way, endeavoring to
maintain himsel f by and other undue means, l eading an idl e,
immoral , profl igate course of l ife : These are, therefore, to command
you to bring the said before me,
for the said county, to be examined touching the premises,
and to be otherwise deal t with as the l aw directs.
STATE OF GEORGIA, By one of the Justices of the
County. j Peace of and for the said county.
To the k eeper of the common jail of the said county greeting :
Whereas, hath been compl ained against, by
as a vagrant, and as a person who hath no apparent means of subsist
ence, and who negl ects appl ying himsel f to any honest cal l ing, but
wanders about, though abl e to work and support himsel f in a reputa
bl e way, and endeavors to maintain himsel f by or other un
due means ; l eading an idl e, immoral , and profl igate course of l ife ;
and thereupon, the said hath been brought before me and
hath been examined, and proofs heard, by and before me, concerning
the premises; and upon such proofs, I, the said justice, have been con
vinced of the truth of the said charge, and have required the said
to provide and produce sureties for his good behavior and
future industry, in the sum of dol l ars, and he, the said
hath refused and negl ected to produce the same. These
are, therefore, to command you to receive into your jail the said
for the crime aforesaid, there to remain until he gives
security for his good behavior and future industry, and upon fail ure so
to do, until the next superior court for said county, then and there to
answer the aforesaid charge, according to l aw.
1850.
It is unquestionabl y proper, that " if the offence be not bail abl e, or the
party cannot find bail , he is to be committed to tl je jail , by the
of the justice, or warrant under his hand and seal , containing the cause of
his commitment: to abide til l del ivered by due course of l aw." 4
300. It is the of the accused person thus to be committed. A
criminal cannot be committed to a jail the county in which the crime
has been committed, without cause for such commitment, which cause
must appear in the proceedings of such commitment.
The act of 1796 provides, " that the justices of the inferior courts of every
county within this-State, in their respective counties, shal l cause to be erected
and k ept in good repair, (or where the same shal l be al ready buil t,) shal l
maintain and k eep in good repair, at the charge of such county, one good and
convenient court-house, of stone, brick , or timber, and one jail , with
the necessary apartments for the and debtors, wel l
secured with iron bars, bol ts, and l ock s." 489.
More than one statute may be found which directl y authorizes the imprison
ment of in the jail s of counties other than those of their residence, and
some have supposed, therefore, that the l aw was insufficient to authorize the
commitment of to such jail s. But the compil er cannot see any diffi
cul ty arising from the statutes al l uded to, or the necessity of any further
statutory provision in order to render such imprisonment l awful . " The jail
itsel f is the State s 208 ; " and al l crimes committed are committed
against the State, and are prosecuted in the name of the State, the confine
ment of a therefore, in jail of the State, wil l be a l egal confine-
WARRANTS, COMMITMENTS, ETC- 41
ment, if there be no jail in the county where the crime was committed,
for the of criminal s.
It is necessary that where such commitment occurs, for the committing
magistrate to pass an order, thus :
having been brought before by virtue of a warrant
issued against him upon the oath of charging said
with the crime of committed in the county
aforesaid. And the witnesses having been examined before me, touch
ing said crime, so charged against said and having ascer
tained that said is guil ty of said crime, and there
being no sufficient jail in said county of for the safe-k eeping
of said criminal : it is, therefore, ordered that said
be committed to the jail of the county
This order must accompany the papers of the whol e proceeding, and when
the prisoner is del ivered over by the of county to the jail er of
county, be al so del ivered to said jail er. It may be remark ed here, that
the fact of the of the jail in county is to be ascertained
onl y from the proceedings of the examination before the committing magis
trate, who is the judge of that fact. And, it may be further remark ed, that
the prisoner, during the time of his confinement in the jail of the county of
is subject to the authorities of, the county of he is a prisoner of
the county of
m? nroTmTA B^ one of the assigned
OF GEORGIA,
TmA
RGIA, I ^f c the ^ in an(} f or thg c ounty af ore.
Houston County. \ n A
To the of the county of and to the jail er of the
county of
These are to command you, in the name of the State, forthwith to
convey and del iver into the custody of the k eeper of said jail , the
body of charged before on the oath of
with having, on day in the year of our Lord eighteen
hundred and at in the county aforesaid, committed the
crime of And you, the said k eeper, are hereby
required to receive the said (there being no sufficient jail in
said county of the safe- k eeping of said into
your custody, in said jail , and him safel y k eep, until he be thence de
l ivered by due course of l aw.
1, 1850.
STATE OF GEORGIA, ) To al l and singul ar the sheriffs, constabl es, and
County. | coroners of this State greeting :
Whereas, at the term, eighteen hundred and of the
Superior Court of said county, the grand jurors did find a
against of said county, for the offence of
these are, therefore, to command you, and each of you,
in the name of the State, to apprehend the said and bring
him before me, or some other justice of the to be deal t with as
the l aw directs : herein fail not.
1, 1850.
HUGH BUKNS, J. S. C. [ L. S.]
JOHN CAEBOT,
NOTE. When the accused person is arrested, with the above k ind of warrant, the
before whom he is brought (if the offence be bail abl e,) must bind him for
hig appearance at the fol l owing term of the Superior Court. (See recognizance, with se
curity.) If the offence be not bail abl e, or the accused fail s to give security when required,
for his appearance, the Justice must commit him to jail .
STATE OF GEORGIA, i In person, appeared, in open court,
County. ^ an(j security, who, jointl y and
several l y, ack nowl edge themsel ves hel d and bound unto his excel l ency,
governor of said State, for the time being, and his
successors in office, in the sum of dol l ars, good and l aw
ful money of this State, to be l evied of their goods and chattel s, l ands
and tenements; for the payment of which sum they bind themsel ves,
their heirs, executors, and administrators, firml y by these presents;
seal ed and dated this 1, 1850.
The condition of the above obl igation is such, that whereas there is
an pending in the Superior Court of said county, now in
session, against one for the offence of
in which said is a material witness on the
part of the now, shoul d said wel l and trul y, person
al l y, be and appear in said court, from day to day, during the term of
said court, and from term to term, and testify on the trial of said
and not depart from said court but by l eave of said court,
then this recognizance to be void ; otherwise, to remain in ful l force
and virtue. JOHN DOE. [ L. S.]
Tested and approved, by RICHARD ROE, [ L. S.]
STATE OF GEORGIA, ) l n person, appeared in open court,
County. | and security, who, jointl y and
several l y, ack nowl edge themsel ves hel d and bound unto his excel l ency,
governor of said State, for the time being, and his
successors in office, in the sum dol l ars, good and l aw
ful money of this State, to be l evied of their goods and chattel s, l ands
and tenements ; for the payment of which sum they bind themsel ves,
their heirs, executors and administrators, jointl y and several l y, firml y
by these presents: seal ed and dated, this 1,1850.
The condition of the above obl igation is such, that whereas there is
an pending in the Superior Court of said county, now in
session, against said for the offence of
now, shoul d said wel l and trul y, personal l y, be and appear,
and abide his trial , for said offence of from day to
day, during the term of said court, and from term to term, and not
depart from said court, but by l eave of said court, then this recog
nizance to be void ; el se, to remain in ful l force for the State.
Tested and approved, by JOHN DOE. [ L. S.]
RICHARD ROE, S.]
STATE OF GEORGIA, l The examination of of in the
County. | county of tak en before me, as
the case may be,) one of the justices of the of and
in the said county, the day of in the year of our Lord
eighteen hundred and the said being charged before
me, by of with
upon his examination, now tak en, before me,
confesseth that, & c., or denieth that, & c. JOHN DOE.
JAMES MACK, J. P.
STATE OF GEORGIA,.) The evidence in the
County. | sai(j co unty, tak en upon oath, before me,
the justices of the and in the said county,
day of in the year of our Lord eighteen hundred and
fifty-
The said being sworn by me, (or on the
to speak the truth, the whol e truth, and nothing but
the truth, of and concerning the accusation made before me,
against who stands charged by said of
with saith that, & c.
RICHARD ROB.
JAMES MACK, J. P.
NOTE. A. gentl eman of the profession, who examined this titl e, k indl y furnished the
Compil er with the fol l owing note: " You remark ed that you wished me to put in writing
a suggestion of mine, that Justices of the Peace are frequentl y at a l oss what to do when
appl ied to for a warrant against an
" At common l aw, if A committed a fel ony in the county of B, and then went into the
county of C, upon information given to a Justice of the Peace of the county of C, he might
issue his warrant to apprehend him, and tak e his examination, and commit him to jail , in
the county of C, from whence he might be removed, by Habeas Corpus, to the county of
B, for trial . A Justice of the Peace coul d al so, at common l aw, grant his warrant to arrest
a person, who had committed an offence on the high seas,
or in a foreign country, ifec. 1 Chit. Grim, l aw, 35, side page.
" The of back ing warrants obtained before the passing of the statutes 23d Geo.
II, and 24th Geo. II.; but, it is said, in strictness, there ought to have been
1 Chit. Crim. l aw, 45. The statute of 24th Geo. II., under which we
derive the l aw of back ing Warrants, does not tak e away the right of issuing fresh Warrants,
as at common l aw; it sanctions the new, but does not tak e away the ol d mode; hence,!
think , there is no doubt but a Justice may issue his "Warrant to arrest a fel on, being within
Ha jurisdiction, al though the offence was committed in another county."
44 REQUISITES OF BILL OF INDICTMENT.
STATE OF GEORGIA, > To any l awful officer, of said county, to exe-
County. $ cute and return,
1850.
ROBEET ROUSE, J. P. [ L. S.]
STATE OF GEORGIA, } , , ,. _ . _ , .,
County. To the honorabl e Superior Court, of said county.
The undersigned, of the justices of the in and for said
county, hereby certifies, that the foregoing are the proceedings in the
case of the against who was charged before me (or
with the crime of
1,1850.
JAMES MACK, J. P.
NOTE. For the information of the justices of the peace, it is here mentioned, once for al l ,
11 >.at the Examination of the accused, the Information of the witnesses, and the Certificate
of the justice, must appear in each particul ar case.. If these requirements, or either of them,
be omitted, the prisoner wil l be discharged upon habeas corpus.
The justices of the peace shal l return al l examinations and recognizances by
them tak en, or other papers that may be necessary to be acted upon by the
superior courts of their respective counties, on or before the first day of the
term of each court, except in the counties of and where
they shal l mak e said return ten days before said courts, if tak en that l ength of
time before the sitting of the court.
NOTE. If the party be committed, the shoul d del iver the papers in the case
to the jail er, at the time he del ivers the prisoner to him, that they may be produced, if re
quired, upon habeas corpus.
For affidavit to obtain a warrant, 31| cents; for mak ing out a warrant, 31i
cents; for mak ing out a commitment, 31| cents ; for mak ing out recognizance
and returning the same to court, 31| cents ; for each subpoena for witnesses)
15 cents. 1811.
CHAPTER II.
REQUISITES OF BILL OF INDICTMENT AND RULES OF PLEADING.
An Indictment is a written accusation, of one or more persons, of
a crime or misdemeanor, preferred to, and presented upon oath, by a grand
jury. 4 302. 1 Chit. Grim. Law, 162.
An Indictment consists t)f three parts: the commencement; the
statement, and the concl usion. 18.
REQUISITES OF BILL OF INDICTMENT. 45
The Commencement of every Indictment, is thus:
:]
so proceeding to state the offence for which the defendant is to be prosecuted.
19.
The Venue in the margin is the onl y part of the Commencement of
an Indictment that requires attention. The general rul e upon this subject
is, that the venue in the margin shoul d be the county in -which the offence was
committed, the. venue in the margin shoul d be coextensive with the jurisdic
tion of the court; that is, it shoul d be descriptive of the l imit to which the
jurisdiction of the court is confined, and the offence must have been committed
within the l imit so described. 19. The Venue was al
ways regarded as matter of substance. 1 177.
In this part of the Indictment, al l the ingredients of the
offence with which the defendant is charged, the facts, circumstances, and in
tent constituting it, must be set forth with certainty and precision, without any
repugnance or inconsistency, and the defendant must be charged directl y and
positivel y, with having committed it. 28.
It is in general requisite to state, that the defendant committed the
offence for which he is indicted on a specific year and day. 1
217.
The precise time, however, is not material , even in criminal cases. 1
258.
The time shoul d be the day of the month and year upon which the act is
supposed to have been committed. 38.
[ Al l Indictments must be in words at l ength, and therefore no abbreviations
can be admitted. Nor can any figures be al l owed in Indictments, but al l num
bers must be expressed in words, at l ength ; but to this rul e there is an excep
tion, in case of forgery, and threatening l etters, when of the instru
ment forged must be given in the Indictment. 1 176.]
Time as wel l as pl ace must, in general , not merel y be mentioned at the
beginning of the Indictment, but be repeated to every issuabl e and triabl e
fact, for wherever a venue is necessary, time shoul d be united with it: but
after the time has been once named with certainty, it is afterwards sufficient to
refer to it by the words, " which have the same effect as if
the day and year were actual l y repeated, but the meie conjunction with
out adding " wil l in many cases be insufficient. 1
220.
Time and pl ace are usual l y al l eged [ thus: day of in the
year of our Lord, one thousand, eight hundred and in the county afore
said.] 39.
It seems, however, that the nicety which requires these words to be cautious
l y inserted to every material al l egation, is not so strictl y observed in indictments
for inferior offences, as in cases where the l ife of the prisoner is in danger.
1 221.
Though the al l egation of a specific time is thus important, it is in no case
necessary to prove the precise day, or even year, l aid in the indictment, except
where the time enters into the nature of the offence. 1 224.
NOTE. It may be stated as a general rul e, that the when an offence is al l eged to
have been committed, wil l not be considered as material , so it be previous to the finding of
the indictment: but when a for preferring an indictment, the shoul d
appear to be within the McLane The State of Georgia, 4
341.
The name of the party indicted ought regul arl y to be trul y insert-
ed in every indictment; but whatever mistak e may be made in these respects,
if the defendant appears and pl eads not guil ty, he cannot afterwards tak e ad
vantage of the error. 1 202.
There are, indeed, some oases in which the name of third persons cannot be
ascertained, in which it is sufficient to state, " a certain person or persons to the
Jurors aforesaid unk nown." 1 212.
It is a general rul e in indictments, that the spe
cial manner of the whol e fact ought to be set forth with such certainty, that it
may judicial l y appear to the court, that the indictors have gone upon suffi
cient premises : on the other hand, as observed by Mr. Justice Bul l er, it is the
duty of a good pl eader not to cl og the record with unnecessary matter, and
thereby throw a greater burden of proof on his cl ient than the l aw requires ;
and it is stil l more his duty not to state things which, on the face of the indict
ment, are repugnant, inconsistent, or absurd. 1 228.
And it is a general rul e, that where the act is not in itsel f necessaril y un
l awful , but becomes so by its pecul iar circumstances and rel ations, al l the mat
ters must be set forth in which its il l egal ity consists. 1 229.
It is al so a general rul e, that al l indictments ought to charge a man with a
particul ar specified offence, and not with being an offender in general . 1
229.
The facts of the charge must, except in the two instances above mentioned,
be set forth on the record, that the defendant
may cl earl y understand the charge he is cal l ed upon to answer, that the court
may k now what judgment is to be pronounced upon conviction, and that pos
terity may k now what l aw is to be derived from the record ; biit it is not ne
cessary to state al l the matter of mere aggravation which the prosecutor pro
poses to adduce, unl ess it al ters the offence ; for if so, it woul d mak e his indict
ment as l ong as his evidence. 1 231.
If any unnecessary averments, not intimatel y con
nected with the circumstances which constitute the crime, be introduced, they
need not be proved on the trial , but wil l be rejected as surpl usage. The dis
tinction between material and immaterial averments is settl ed to be, that if the
averment be connected with the charge, it must be proved ; but if it be whol l y
immaterial , as if the averment be total l y unconnected, it need not be proved.
1 232.
Where an evil intent accompanying an act is necessary to con
stitute such act a crime, the intent must be al l eged in the indictment and
proved; but where the act is in itsel f unl awful , an evil intent wil l be presumed,
and if averred, is a mere formal al l egation, which need. not be proved by ex
trinsic evidence.-^l 233.
It is al so frequentl y necessary, in the description of an offence,
to state the quantity, number and val ue of goods, which are essential to the
constitution of the offence, or necessary to the right understanding of the in
dictment. But certainl y, to a common intent, as it is technical l y termed, is
general l y sufficient, which seems to mean, such certainty as wil l enabl e the
jury to decide, in case of theft, whether the chattel proved to have been stol en,
is the very same with that upon which the indictment is founded, and show
judicial l y to the court, that it coul d have been the subject-matter of the offence,
charged, and thus secure the defendant from any subsequent proceedings, for
the same cause, after a conviction or acquittal .* 1 236.
It is al so usual , though not absol utel y necessary, in an indictment
for murder, to set forth the val ue of the instrument, by which the death was
effected, because it is regul arl y forfeited as a deodand. 1
236.
Another general rul e, rel ative to the mode of stating the
offence, is, that it must not be stated in the so as to l eave it uncer
tain what is real l y intended to be rel ied upon as the accusation. 1
236.
It is al so a general rul e, that the charge shoul d be
expressed positivel y, and not with a " or by way of recital . 1
236.
it is l aid down, that where a matter is capabl e of
different meanings, that wil l be tak en by the court which wil l support the
proceedings, and not that which woul d defeat them ; but it must be cl earl y
capabl e of two significations, for the court cannot, to support the indictment,
arbitraril y give it a meaning with which the use, habits, or understanding of
mank ind woul d pl ainl y disagree ; where, however, it is evidentl y ambiguous,
it does not seem to cl ash with any rul e of construction, appl ied even to criminal
proceedings, to construe it in that sense, in which the party framing the charge
must be understood to have used it, if he intended his accusation to be consist
ent. 1 238.
Mere wil l not, in general , vitiate. 1
238.
It seems, al so, that mere cl erical and grammatical errors wil l not
vitiate, unl ess they change the word, or render the meaning obscure. 1
239.
At the present day, certainty to a com
mon intent, is al l that is requisite; but this is so rigidl y demanded, that the
ends of justice have been too often frustrated by nice and technical objections.
1 239.
There are some terms, which are so appro
priated by the l aw, to express the precise idea which it entertains of the of
fence, that no other terms, however synonymous they may seem, are capabl e
of doing it; whil e there are other expressions which, though usual , are not
necessary to be inserted. 1 239.
And where the common l aw, or a statute, forbids the doing of a thing, the
doing it wil l ful l y is indictabl e, though without any corrupt motive, and conse
quentl y, it need not, in such case, be averred. 1 240.
The words, " ancientl y " were, by the common
l aw, necessary in indictments for offences which amount to an actual disturbance
of the peace, or consist, in any way, of acts of viol ence ; but it seems to be the
better opinion, that they were never necessary, where the offence consisted of
a cheat, or non-feasance, or a mere consequential injury. 1
240.
Many indictments for trespasses and other wrongs have been deemed insuffi
cient, for want of the words, "with force and arms; " but on the other hand,
the court has frequentl y refused to quash the proceedings, where they have
been omitted; and the l ast seems to be the better opinion, for otherwise the
terms of the statute appear to be destitute of meaning. It seems to be gen
eral l y agreed, that where there are any other words impl ying force, as in an
indictment for a rescue, the word the omission of is suffi
cientl y suppl ied. But it is at al l times safe and proper to insert them, when
ever the offence is attended with an actual or constructive force, or affects the
interests of the publ ic. 1 241.
The term " which is frequentl y used in the description of: the
offence, is unnecessary, wherever the crime existed at common l aw, and is man
ifestl y il l egal . So it has been adjudged, that it need not be used in an indict-
48 REQUISITES OP BILL OF INDICTMENT.
ment for a riot, because the il l egal ity is sufficientl y apparent, without being
expressl y averred. But if a statute, in describing an offence which it creates,
uses the word, the indictment, founded on the act, wil l be bad if it be omitted.
1 241.
The word " or " wil l suppl y the pl ace of a
positive averment, that the defendant k new the facts, subsequentl y stated. It
is absol utel y necessary to constitute guil t, as in indictments for uttering forged
tok ens, or other attempts to defraud, or for receiving stol en goods, and offences
of a simil ar description; but if notice or k nowl edge be unnecessaril y stated,
the al l egation may be rejected as surpl usage. 242.
There are certain terms which are \isual l y inserted in the part of the indict
ment we are now examining, which mark out the col or of the offence with
precision, and which are absol utel y necessary to determine the judgment.
Thus, every indictment for must contain the word "
every indictment for and must be
introduced in every indictment for fel ony. And these words are so essential ,
that if the word be omitted in an indictment for steal ing a horse, it
wil l be onl y a trespass. In the case of treason against the k ing s person, the
offence must al so be l aid against the duty of the defendant s al l egiance;
and the word " is general l y added, if he is born within the real m,
and omitted if he is an al ien, and onl y resident in Engl and ; but it does not
seem, in any case, necessary to state more than the term al l egiance, in general .
The word " having been wel l l aid to the statement of the treason
itsel f, it is not necessary to state every overt act to have been com
mitted. In indictments for inferior treasons, as those which rel ate to the coin,
it is usual to l ay the offence to have been as wel l as
committed ; but there is no authority which renders this essential . It is, how
ever, al ways proper to l ay petit treason in this way, as wel l as to state in con
cl usion, that the defendant did k il l and
because then, though he be acquitted of the petit treason, he maybe convicted
as for a common murder. 1 242.
The crime of which is next in point of degree, has, as wel l as trea
son, terms pecul iarl y appropriated to its own description. Lik e other fel onies,
the word must be inserted. As a concl usion from the facts averred,
it must be stated, that so the defendant
the deceased; for without the terms "
and the artificial phrase the indictment wil l be tak en
to charge mansl aughter onl y. Where the death arises from any wounding,
beating, or bruising, it is said that the word is essential , and the
wound or bruise must be al l eged to have been nor is the l atter
word suppl ied by the al l egation, which is at al l times necessary, that the de
ceased died in consequence of the viol ence infl icted upon him. 1
243.
NOTE. The Supreme Court have hel d, that the first section of the fourteenth division of
the penal code, which decl ares that " every indictment, or accusation of the grand jury,
shal l be deemed sufficientl y technical and correct, which states the offence in the terms and
l anguage of this code, or so pl ainl y that the nature of the offence charged may be easil y
understood by the jury," has rendered the use of the term in an indictment for
murder, unnecessary. They al so intimate that a l iberal construction wil l be given to the
above section of the penal code. Studstil l The State of Georgia, 7 Ga. Rep., 2.
So, in indictments for the words
are necessary ; nor is the want of the former suppl ied by the insertion
of the l atter. And though some have incl ined to think that the words "
are not absol utel y necessary, it woul d certainl y be very unsafe to
omit them. And in an indictment for an the words of the
statutes tak ing away cl ergy, must be fol l owed. So al so in al l indictments for
the words must, of necessity, be inserted.
1 244.
The essential words in an indictment for burgl ary are,
about a named
hour. And besides these requisites, the fel ony committed or intended must be
set forth in technical l anguage; so in an indictment for the
words the goods, or "
the cattl e, are necessary; and, in case of from the person, the words
must be introduced; and it is usual to aver
though this does not seern to be requisite. And the word
" was formerl y regarded as essential , but has been hol den not to be
necessary. And are both necessary in an indict
ment for piracy. 1 244.
. There are some which require to be described with particul ar
l anguage : thus, " and " must be indicted as such.
The word must be inserted in al l indictments for and
in al l indictments for and " in al l in
dictments for 1 244.
The words "
are, in general , mere matter of aggravation, and not
material . But where an act must be done with a particul ar in order to
.render it criminal , an evil intention must be averred upon record; and in such
case the intent must be proved as l aid, or the variance wil l be fatal : thus, in
burgl ary, if the entry be al l eged to have been made with intent to commit a
specific fel ony, the indictment wil l not be supported by evidence of an entry
with intent to commit another k ind of fel ony. It is usual , therefore, in these
cases, in different counts, to l ay the same fact with different intents; as one
count for a burgl arious entry, -with intent to steal the goods of P D, and
another count for the same entry, with intent to k il l and murder him. 1
245.
In the concl usion of the indictment, or each
count, there are several sentences in common use, which do not seem to be at
al l material : of this description are, " par
ticul arl y injured by the offence ;
and " and though it is
usual to concl ude an indictment for treason "
yet it wil l suffice if that al l egation be in the body of the indictment. But the
words, "
seem, according to the better opinions, to be necessary in al l indictments for
common nuisances; and against scol ds and barrators. The words, "
are frequentl y used in indictments
in superior courts, in informations of obtrusion, and in actions upon statutes,
but they have been frequentl y omitted, and the proceedings hel d val id. 1
246.
is frequentl y advisabl e, when the crime is of a compl icated nature, or it is
uncertain whether the evidence wil l support the higher and more criminal part
of the charge, or the charge precisel y as l aid, to insert two or more counts in
the indictment. This practice, indeed, is the more necessary, because, though
the petit jury may find the prisoner guil ty of a part, and acquit him of the res
idue, the grand jury cannot separate the parts of a count, but must either find
a true bil l , or throw out the whol e; whil e they may find some whol e count,
and reject others from the indictment. 1 249.
50 REQUISITES. OF BILL OF INDICTMENT.
It is, however, proper to observe, that -without the addition of several counts,
the jury may frequentl y find the prisoner guil ty onl y of a minor offence in
cl uded in the charge, or. a part of the offences there stated. 1
251.
The principal reason, therefore, in these cases, for the introduction of second
counts, appl icabl e to the inferior charge, is, as before observed, that the grand
jury cannot, l ik e the petit jury, sel ect parts of a count as true, but must either
find or reject the whol e of every distinct count in the indictment. 1
251.
In eases of no more than one distinct offence, or criminal transaction,
at one time, shoul d regul arl y be charged upon the prisoner, in one indictment,
because, if that shoul d be shown to the court before pl ea, they wil l quash the
indictment, l est it shoul d confound the prisoner in his defence, or prejudice him
in his chal l enge to the jury ; for he might object to a juryman s trying one of
the charges, though he might have no reasons so to do in the other; and if
they do not discover it until afterwards, they may compel the prosecutor to
el ect on which charge he wil l proceed ; but this is onl y matter of prudence and
discretion, which it rests with the judges to exercise ; for, in point of l aw, there
is no objection to the insertion of several distinct fel onies of the same degree,
though committed at different times, in the same indictment, against the same
offender; and it is no ground either of demurrer or arrest of judgment.
1 253.
In the case of the joinder of several offences wil l not, in general ,
vitiate, in any stage of the prosecution: for, in offences inferior to fel ony,
the practice of quashing the indictment, or cal l ing upon the prosecutor to
el ect on which charge he wil l proceed, does not exist; but on the contrary, it
is the constant practice to receive evidence of several l ibel s and assaul ts, upon
the same indictment. It was, indeed, formerl y hel d, that assaul ts, oil more than
one individual coul d not be joined in the same proceeding, but this is now ex
pl oded ; for though two persons cannot join in a civil action, the reason is, that
the damages are several , which cannot appl y to criminal proceedings when no
compensation is given to the prosecutor, and publ ic security is the object to be
obtained. 1 254.
For the same reason, an indictment for a l ibel on a body of trustees wil l be
good, though it profess to be for a l ibel on three of them onl y. And it has been
hel d that it is no objection on demurrer, that several defendants are charged in
different counts of the same indictment with several offences of the same na
ture, though it may be a ground for appl ying to the court, in its discretion, to
quash the indictment. But care must be tak en that the offences are not to be
charged in such a manner as wil l confound the evidence ; and that no counts
be joined, upon which the judgments must necessaril y be different, as a charge
of fel ony with another of mere misdemeanor; for it may operate l ik e a mis-
joinder in civil actions, and if so, the indictment wil l be bad on demurrer, or on
motion in arrest of judgment. Stil l , however, it is no objection to an indictment,
that the punishment for one of the offences is positive, and for the other dis
cretionary ; and after a general verdict, the objection of misjoinder may be
avoided, by entering up j udgment upon a particul ar count: and, therefore,
when a defendant was indicted on 9 Ann. c. 14, for an assaul t, on account of
money won at gaming, the punishment of which is prescribed by the statute;
and for an assaul t at common l aw; after a general verdict, a motion in arrest of
judgment was abandoned by the counsel for the prisoner. And if two distinct
offences are charged, and one of them is not indictabl e, or l aid with sufficient
precision, judgment wil l be given for the crown if the other be sufficient upon
general demurrer; for we have al ready seen, that part of an indictment may be
good, though the other part be defective. 1
When the act is such as several may join in, al l the offenders may be incl uded
in the same indictment. 1 268.
But where the criminal ity arises in consequence of some personal disqual i
fication to do an act, in itsel f l awful , as for exercising a trade under the statute
of El izabeth, not having served an apprenticeship, each individual must be pros
ecuted al one. 1 268.
And the same persons being concerned as principal s in the same offence, may
al l be joined in the same indictment, though the degrees of guil t may differ. 1
269.
And there seems to be no reason why, on the trial , if two be indicted for
murder, the jury may not find it murder as to one, and mansl aughter as to the
other. But if this distinction appear to the grand inquest, upon the evidence
to support the bil l , a new bil l for the inferior offence shoul d be presented, against
the l ess guil ty individual . 1 2* 70.
Several offenders may al so, for different offences of the same k ind, be in some
cases incl uded in the same indictment, the word being inserted,
which mak es it several , as to each of them, though the court wil l , in its dis
cretion, quash the indictment if any material inconvenience appear to arise from
the mode in which it is preferred. 270.
But it seems that to warrant such joinder, the offences must be of the same
nature, and such as wil l admit of the same pl ea and sentence, or it may operate
l ik e a misjoinder in civil proceedings, and be bad upon demurrer, or after a
general verdict, in arrest of judgment. In al l these cases, however, the charge
is several against each individual , and the jury may acquit some, whil e others
are found guil ty. But there are some exceptions to this rul e, as in cases of
and where one cannot be indicted for an offence committed by him
sel f al one; and the acquittal of so many as shal l render it impossibl e for the
rest to have committed the offence, must of course extend to him. And if sev
eral be concerned in executing a treasonabl e or seditious design, it is best to in
cl ude them in one proceeding, that the evidence for the crown may not be dis
jointed. On the other hand, an indictment may be defective for incl uding too
many; as for indicting a woman for the murder of her il l egitimate chil d, and
another person being present, aiding and abetting; if the onl y evidence of guil t
be the conceal ment, both the prisoners might be acquitted. As each individual
is, in al l cases, responsibl e onl y for his own criminal actions or omissions, the
resul t, whether the defendant be indicted al one, or with others, wil l be simil ar;
and no inconvenience can arise to the defendants from being jointl y indicted ;
for if, on the trial , the evidence affects them differentl y, the judge, in his discre
tion, wil l sel ect such parts of it as are appl icabl e to each, and l eave their cases
separatel y to the jury, in order that each individual may have an impartial trial ,
unprejudiced by the case of his associates. 1 271.
As, at common l aw, the accessory cannot be convicted before the principal ,
without his own consent, and as the crime of the former depends upon the guil t
of the l atter, it is both usual and proper to incl ude them in the same indict
ment : in this case, if the principal pl ead the general issue, the accessory wil l
be required to pl ead al so ; and if he pl ead the same pl ea, both may be tried by
the same inquest, but the principal must be first convicted; and the jury wil l
52 REQUISITES OF BILL OP INDICTMENT.
be charged, if they find the former not guil ty, that the l atter must al so be
acquitted. Where the parties are thus joined in the same proceeding, the pro
per course is first to state the guil t of the principal , as if he al one had been
concerned, and then, in case of accessories the fact, to aver that C D,
l ate of, & c., (the procurer) before the committing of the said fel ony and mur
der, (or burgl ary, as the case is,) in form aforesaid, to wit, on, & c., with force
and arms, & c,, did mal iciousl y and fel oniousl y incite, move, procure, aid and
abet, (or " counsel , hire and command,") the said A B (the principal fel on,)
to do and commit the said fel ony, and in manner aforesaid, against the peace,
& c. And where a man is indicted as accessory the fact, together with
his principal , the original fel ony is to be stated in the same way, and the con
cl usion must aver that the accessory " the
principal fel on, " that he had committed the fel ony. The aver
ment of k nowl edge is indispensabl y requisite, because without it the guil t does
not manifestl y appear: but it is in no case necessary to use the word "accessory"
in the indictment, or to set forth the means by which the accessory before the
fact incited the principal to commit the fel ony, or the accessory after received,
conceal ed, or comforted him ; for it is perfectl y immaterial in what way the pur
pose of the one was effected, or the harboring of the other secured ; and as the
means are frequentl y of a compl icated nature, it woul d l ead to great inconve
nience and perpl exity, if they were al ways to be described upon the record. 1
273.
In an indictment against the after the conviction of the prin
cipal , it is not necessary to aver that the l atter committed the fel ony ; or, on
the trial , to enter into a detail of the evidence adduced against him ; but it is
sufficient to recite, with certainty, the record of the conviction, because the court
wil l presume everything on the former occasion to have been rightl y and prop
erl y transacted : but this presumption must give way to positive evidence of
the innocence of the principal , which it is ful l y competent to the supposed ac
cessory to produce ; and, therefore, if it appear on the trial that the principal
was erroneousl y convicted, the defendant indicted as accessory is entitl ed to an
acquittal . 1 273.
It is in no case necessary, in a separate indictment against the accessory, to
aver the judgment pronounced on the principal . Formerl y, indeed, it was
thought that the l atter must be attainted before the former coul d be prose
cuted ; and, therefore, when the principal stood mute, obtained his pardon, or
was al l owed the benefit of cl ergy, the accessory escaped unpunished. 1
274.
So, even though the principal fel on be unk nown, a receiver of stol en goods
may be indicted for the misdemeanor. But if the original offender be k nown,
an averment that he is unk nown wil l be fatal . It is not necessary to al l ege in
such indictment, that the principal cannot be tak en, or has not been convicted.
1 275.
Having thus considered the forms of indictments, and the principal rul es by
which they are governed, we have now onl y to tak e notice of some circum
stances which may arise after their presentment, from their l ength, or the defi
ciency of any of their requisites :
Where the indictment is of a vexatious l ength, the court wil l refer it to the
master to see what part of the record was unnecessary, and mak e an order that
the cl erk of the peace shal l pay the expense of the unnecessary matter ; ^s
where an indictment, removed by certiorari from the quarter sessions for Mid
dl esex, appeared to be of an improper l ength, stating al l the continuances in the
former prosecution, & c., which is rendered unnecessary by the express words
of the statute 23, Geo. II, c. 11, s. 1, it was ordered, that it shoul d be referred
to the master, to see what part of the record was unnecessary, and that the
cl erk of the peace shoul d pay the expense incurred by the insertion of the extra
matter. 1 293.
It wil l be proper here al so to inquire what variance wil l be fatal . We have
al ready seen with what seeming accuracy time, pl ace, sums, magnitude, quan
tity and val ue, must be described ; but a variance in the evidence from these
points wil l never be material , unl ess the essence, or degree of the offence, con
sists in their correctness. But where time is l aid as part of the substance of
the charge, as in case of burgl ary, we have seen, that such a mistak e, as wil l
vary the nature of the crime, wil l be fatal . And it is a general rul e, that when
ever an al l egation may be whol l y struck out of an indictment, without injury
to the charge, it may be rejected as surpl usage. 1 294.
We have al ready seen the degree of accuracy with which a statute must be
recited. With respect to pl eading other documents, much must depend upon
the mode in which the indictment professes to describe the instrument, and the
importance of the instrument, to the essence of the crime : thus, where it is
mere matter of inducement, a substantial description wil l suffice, and a techni
cal and formal variance wil l not be fatal , as in an indictment for perjury, com
mitted upon the trial of an indictment for an assaul t, if the l atter proceeding is
set forth, and the word used for the mistak e wil l not be
material . But then no phrase must be used, which by l egal intendment, pro
fesses an exact recital , as "to the tenor and effect," or "aforesaid," or "in
the words and figures fol l owing," but " in manner and form fol l owing, that is to
say," which do not compel a l iteral precision. And even under the word
" tenor," in an assignment of perjury, the term instead of
is not a fatal mistak e, because it does not al ter the sense, by changing one word
for another. For the same reason, " instead of " in setting
forth a forged bil l of exchange ; and on a pl ea
have been hol den immaterial . So, in the introduction of the word
into the statement of a writ to the sheriff, in case of bribery at an el ection, wil l
not prejudice, but may be rejected as surpl usage. And in an indictment for
perjury, in a bil l in chancery, the misstatement of the titl e of the party to whom
it was directed, wil l not vitiate. 1 295.
But wherever it is necessary to set forth an instrument with precision, as that
on which the charge is founded, any variance between the recital and the in
strument produced in evidence, which varies the sense, wil l be fatal : thus,
where a judgment is the ground of proceeding, and it is stated to have tak en
pl ace in. the wrong term; where, in an indictment for perjury, in setting forth
the Nisi Prius rol l , the name of the associate is mistak en; where a word is sup
pl ied in an assignment of perjury, committed in an information before a justice,
though in order to compl ete the sense; and where, in an action for mal icious
prosecution, the acquittal is al l eged to have tak en pl ace " on Wednesday next
after 15 days, & c., in the court of our l ord the King, before the King himsel f,
at Westminster, before the Lord Chief Justice," when it appears from the record,
that the trial was at Nisi Prius, the proceedings have been regarded as al together
erroneous. And thus, not to mul tipl y instances, in al l prosecutions for forgery,
perjury, bl asphemy, seditious words, l ibel s, & c., where the indictment is founded
upon the very terms and expressions empl oyed by the defendant, and which
must be set out on the record, any error by which the sense is affected, wil l be
material . And the scrupul ous nicety, in these respects, has been carried to so
5
great a l ength, that if the pronoun " 7" be inserted in the description of a
wil l , forged by the defendant, he wil l be entitl ed to an acquittal . So, though
an indictment be not founded on any written document, yet if the evidence vary
material l y from the facts charged, the indictment cannot be supported; and
therefore, where an indictment for obtaining money by fal se pretences, stated
that the defendant pretended " that had paid a sum of money into the Bank
of Engl and," and the evidence was, that the defendant said general l y, " that
. the money had been paid into the Bank of Engl and," this was hel d a fatal
variance. 1 296.
If an indictment charge the defendant with two separate and distinct acts, as
composing and publ ishing a l ibel , it is not necessary to prove both facts ; but
he may be found guil ty of that onl y which is shown in evidence against him.
But this does not extend to indictments for perjury, where the whol e matter of
the defendant s fal se testimony must beset forth, and where, if the l east partoof
one entire assignment be unproved, he cannot be convicted. An indictment for
perjury at the assizes may, however, al l ege the oath to have been tak en before
judges in the commission, though the names of both are inserted in the cap
tion. 1 296.
If the prosecutor state the crime to have been committed in the dwel l ing-
house of a third person, and mistak e the name, the error wil l be material . So
if, in an indictment for house-break ing, the name of the owner be wrongl y stated,
the error wil l vitiate. We have al ready seen in what cases unnecessary al l e
gations wil l be fatal , unl ess dul y proved, and when they may be rejected as
surpl usage. And the operation of defects in particul ar parts of the indict
ment have al so been examined, in considering the particul ar rul es by which
each cl ause and al l egation is affected. 1 297.
It seems to be settl ed, both by the express exceptions of the statutes of
amendments, and the current of authorities, that indictments are not within
their operation; and they therefore stand upon the same principl es, with
respect to amendment, as those to which al l pl eadings were subject at
common l aw. And as the indictment is the finding of a jury upon oath,
it cannot be amended by the court, without the concurrence of the grand
inquest, by whom it is presented. And it is the common practice for
the grand jury to consent, at the time they are sworn, that the court shal l
amend matters of form, al tering no matter of substance ; and mere informal ities
may, therefore, be amended by the court, before the commencement of the
trial ; though it was formerl y the practice to award process to the grand jury
to come into court and amend -them. 1 298.
When the indictment, or the caption, is defective, the court have a discre
tionary power to quash it immediatel y, or to obl ige the defendant to pl ead or
demur, which rests entirel y with themsel ves. But though this is a matter for
their discretion, they are guided by certain rul es, in its exercise, which we shal l
proceed to examine. The appl ication may be made to the court, either by the
prosecutor, or the defendant, or any one, as may suggest the error
to the court, in order that they may exercise their discretion. 1
299.
When the appl ication is made by the the court wil l not quash the
indictment, as a matter of course, unl ess it appear to be cl earl y insufficient
unl ess another good indictment has
been, found against Mm; nor where he has been put to extra expense, unl ess
RULES OF PLEADING. 55
the costs are first paid him. But where the indictment is insufficient, and the
defendant the court wil l quash it upon the motion of
the prosecutor, without the consent of the defendant, though it is for a crime;
in which they never show the same indul gence upon the appl ication of the
prisoner. 1 299.
When the motion is made on the part of the the rul es by which the
court are guided are more strict, and their objections are more numerous ; be
cause, if the indictment be quashed, the recognizances wil l become ineffectual ;
and the courts usual l y refuse to quash on the appl ication of the defendant when
the indictment is for a serious offence, unl ess upon the cl earest and pl ainest
ground, but wil l drive the party to a demurrer, or motion in arrest of judgment,
or writ of error. It is, therefore, a general rul e, that no indictments which
charge the higher offences, as treason, or fel ony, or those crimes which imme
diatel y affect the publ ic at l arge, as perjury, forgery, extortion, conspiracies,
subordination, k eeping disorderl y houses, or offences affecting the highways, nor
executing l egal process, wil l be thus summaril y set aside. 1 300.
But the court wil l not quash an indictment on a statute, merel y because it
does not concl ude " & c.; but l eave the defendant to demur.
And the defect, in general , must be very gross and apparent, to induce the
court to dismiss the indictment in this summary way, instead of l eaving the
party to the more usual remedies, of demurring, or moving in arrest of judg
ment ; where, however, a defect is shown, which induces the court thus to
interfere, they must quash the whol e indictment, for they cannot strik e out some
counts, and l eave others to be determined on the trial . If the defendant did
not dul y appear, or has forfeited his recognizance, his appl ication to quash the
indictment wil l be ineffectual ; and al though the court may, in their discretion,
quash the indictment, at any time, before the jury are charged to try the pris
oner, they commonl y, in order to avoid col l usion,
at l east unl ess another good indictment has been found : if, therefore,
the prosecutor desire to quash, he must appl y
1 302 303.
After the indictment against the defendant has been quashed, a new and more
regul ar one may be preferred against him : he can gain, therefore, in general ,
very l ittl e advantage, except del ay, by such an appl ication; and, therefore,
usual l y reserves his objections til l after the-verdict, when, if the indictment be
found to be insufficient, the court are bound, to arrest the
judgment. 1 304.
RULES OF PLEADING.
We come now to consider the various modes by which a defendant may
pl ead on the record, his objection, or answer, to the charge al l eged against
him. The fol l owing is a general outl ine of these matters, in the order in which
they natural l y arise,
Demurrer.
Dil atory pl eas.
In abatement.
Auterfois acquit.
Auterfois convict.
Matter of record, pardons, & c.
Not guil ty.
Special pl eas.
56 RULES OF PLEADING.
Before we proceed to consider each of these descriptions of answers, or ob
jections, to the indictment, with the proceedings subsequent .to them, it wil l be
proper to notice some of those general qual ities which appl y to criminal pl ead
ing ; such as the number of pl eas admitted ; the time of putting them in ; the
amendments al l owed ; of the withdrawing one pl ea, in order to put in another,
and of the entries to be made on the record.
At common l aw, there was but one rul e, which
appl ied al ik e to civil and criminal proceedings: that the defendant must rel y
upon ground of defence, and that pl eading was never to be ad
mitted. 1 354.
Criminal proceedings, therefore, remain under the same restriction which
existed as to matters at common l aw, and no more than one pl ea can be
put in, to answer any indictment or criminal information. In case of fel ony,
however, if the prisoner pl ead in bar or abatement, and it be adjudged against
him, be wil l have l iberty at the same time, or even afterwards, to pl ead over to
the matter of the indictment, as if he had never rel ied upon any other ground
of defence; for though a man may l ose his property by mispl eading, he cannot
forfeit his l ife by any technical nicety or l egal error. 1
354.
But it does not incl ude misdemeanors of any description, as matter of
and therefore, in these cases, if the defendant pl ead in abatement or bar, and
an issue in fact thereon be determined against him, he wil l have total l y l ost
the benefit of a trial on the offence itsel f, and sentence may be pronounced, as
though be had been regul arl y convicted. It seems, however, to be in the dis
cretion of the court to al l ow him stil l to pl ead not guil ty, and this they wil l
probabl y exercise, when the penal ty incurred on conviction is very severe. 1
354.
When the defendant has any special matter to pl ead in abatement or in bar,
as misnomer, a former acquittal or conviction, a pardon, & c., he shoul d pl ead
it at the time of .arraignment, before the pl ea of not guil ty. 1
355.
Though indictments and appeal s are excepted from the
statutes of amendments, yet it seems that pl eas to them are amendabl e at com
mon l aw, before they are fil ed upon the record. The reason of this distinction
is, that the pl eading is not perfected whil e it is onl y on paper, and during the
time in which the proceedings are onl y in agitation-, the court have a power
over them ; but when once they are entered on the rol l , they can onl y be
al tered by virtue of some l egisl ative provision. 1 355.
When once the defendant has pl eaded, he is bound to abide by the defence
which he has chosen, and cannot, as matter of right, withdraw it in order to
rel y on another. But a pl ea of not guil ty may be withdrawn, in order to con
fess the indictment, and as we have seen al ready, the entry wil l be
And the court may al l ow the defendant,
as a matter of favor, with the consent of the attorney-general , to withdraw a
pl ea of the general issue, and object to the jurisdiction before which the trial
is to proceed. In this case, if the jury be sworn, a juror wil l be withdrawn
before evidence given, the inquest discharged, and an entry made upon the rec
ord of the permission to al ter the pl ea, and the formal proceedings by which
it was effected. So l eave wil l , in some cases, be granted to the defendant to
withdraw a pl ea, and enter a demurrer in its room; and by l eave, a demurrer
may be withdrawn. 1 355.
In considering the nature of the several
pl eas on which the defendant is abl e to rel y, we come first to examine those
which he may offer of the court before which the indictment
is preferred, because these are prel iminary to any objection to the proceedings
themsel ves, and aim at inval idating the whol e, and at showing that there is no
necessity for any defence on the part of the persons indicted. They may be
successful l y rel ied on, when the court has no cognizance of the crime al l eged
on the record, as where a party was accused of a rape at the sheriff s tourn, or
of treason at the quarter sessions. In general , any objection to the jurisdic
tion must be pl eaded, and cannot be tak en advantage of under the general
issue. But where a statute directs that particul ar matter shal l be determined
onl y within a certain boundary, or by certain magistrates, this may be shown
under the pl ea of not guil ty. So, al so, where the objection proves that no
court in Engl and can try the indictment, it may be given in evidence without
being special l y pl eaded. And it has been hol den, that objections to the
jurisdiction, apparent on the face of the indictment, by the caption, when
returned on a certiorari or otherwise, may be wel l tak en on demurrer;
but if a party be indicted before justices at sessions, it shoul d seem that he
may pl ead special l y, that the offence did not arise within their jurisdiction,
though the matter might be given in evidence under the general issue. From
the nature of this pl ea, it must evidentl y be pl eaded before the general issue,
because, .by pl eading not guil ty, the defendant admits the power of the court
to try him, and refers his cause to their decision. But we have seen that, by
permission, the l atter may be withdrawn, and the former substituted in its
pl ace. 1 356.
pl ea must not onl y object that the court, before
which the proceedings are tak en has no jurisdiction over them, but must show
what court has authority to proceed to try them; for, if there be no other
mode of trial , that circumstance wil l , of itsel f, give the King s Court jurisdic
tion. It is not necessary that it shoul d concl ude by answering over to the
fel ony, or put in issue the facts of guil t or innocence, though it may do so.
As this is a dil atory pl ea, it seems necessary to add an affidavit of its
truth, according to the principl e we have al ready stated. 1
35* 7.
To this pl ea the crown may demur or repl y instanter; and if the court de
termine against the pl ea, the defendant wil l have judgment to answer over to
the fel ony. But in case of misdemeanors, no judgment of is
of right demandabl e, where an issue in fact is found against the defendant, for
the decision operates as a conviction, though, as a matter of favor, the defend
ant may stil l be admitted to pl ead not guil ty. 357.
And the said in his own proper person, having heard the
said indictment read, saith, that the superior court of the county of
here, ought not to tak e cognizance of the
in said indictment above specified, because protesting that he is not
guil ty of the same, and that if he was guil ty of said crime, the supe
rior court of the county in said State, is the onl y court having
jurisdiction thereof. And this he, the said is ready to
verify ; wherefore, he prays judgment, if the said superior court of
the county of here, wil l or ought to tak e cognizance of the
indictment aforesaid ; and that by the court here, he may be dismiss
ed and discharged, & c.
In person appeared before me, the defendant in this
prosecution, who being dul y sworn, saith, that the above pl ea is true
in substance and matter of fact.
The next mode by which the defendant may object to the indictment, is by
a term derived from o and signifies that the party
wil l go no further, because the indictment or proceeding is defective in sub
stance, or in formal statement: thus, if a man be indicted for fel oniousl y steal ing
a greyhound, which is an animal in respect whereof no theft can be committed,
the defendant may demur; for whil e he admits the tak ing, he may deny the
fel ony. But it seems to be unsettl ed, whether he can demur on account of the
omission or bad statement of the defendant s name or addition, or must pl ead
it in abatement. The demurrer puts the l egal ity of the whol e proceedings in
issue, and compel s the court to examine the val idity of the whol e record; and
therefore, in an indictment removed from h inferior court, if it appear from the
caption that the court before which it was tak en had no jurisdiction over it, it
wil l be adjudged to be inval id. When once a demurrer is fil ed, the defendant
cannot withdraw it without the consent of the parties on whose prosecution he
is indicted, or at l east without the permission of the court. But it is certain
that he may demur at any time before Jrial , in cases of misdemeanors, even
after pl eading, on his sol icitor s obtaining a common side-bar rul e, from the
cl erk of the rul es, for l eave to enter a retraxit. On the trial of a capital
offence, as treason, though in strictness, j^the defendant has on his arraignment
pl eaded not guil ty, he ought not to object to the indictment til l after his trial ,
yet it is not unusual to hear his exceptions before the witnesses are cal l ed, and
where the parts of an indictment are severabl e, as the overt acts of treason, if
one or more be imperfectl y stated, evidence under the statement may be resisted.
1 358. _ v
As to the form of the demurrer, it seems that, in capital cases, it may be
on whichever side the objection arises. It seems that the defendant,
when indicted for fel ony, may either deniiy, and at the same time pl ead over to
the fel ony, or that he may tak e the l atter course after the demurrer is found
against him. 1 358.
And the said in his own proper person, cometh into court
here, and having heard the said indictment read, saith that the said
indictment, and the matters therein contained, in manner and form as
the same are above stated and set forth, are not sufficient in l aw, and
that the said is not bound by the l aw of the l and to answer
the same; and this he is ready to verify: wherefore, for want of a
sufficient indictment in this behal f, the said prays judgment,
and that by the court he may be dismissed and discharged from the
said premises in the said indictment specified.
Al l the pl eas which were formerl y used as decl inatory of trial , have either
been al together abol ished, or have fal l en in b disuse. 1 361,
Of
Pl eas in abatement are founded either on some defect apparent on the face
of the indictment, without reference to any extrinsic fact, or are founded upon
some matter of fact, extrinsic of the record, which renders the indictment
insufficient. 1 362.
Any defect, apparent on the face of the indict
ment, may be made the ground of a pl ea in abatement, and if found for the
RULES OP PLEADING. 59
defendant, wil l abate the indictment. So, if the defendant be misnamed, he may
pl ead this al so in abatement; but for objections apparent on the face of the
indictment itsel f, without reference to any extrinsic fact, it is more usual to move
to quash it or to demur. 1 362.
Formerl y, there was a distinction tak en between the Christian and the sur
name, that the former but the l atter be pl eaded in abatement;
But this is now settl ed to be groundl ess, and an error in the l atter is equal l y
fatal , with a mistak e in the former. 363.
We have al ready considered the various instances which have arisen under
these general rul es, when we examined the accuracy with which the name
shoul d be stated, that it wil l be unnecessary here to repeat them. 1
363.
It has been hol den to be no good pl ea in abatement of an indictment, that
another prosecution for the same offence is depending, though it wil l be a
ground for the court to quash one of them, on motion, if it shoul d appear to be
defective. But al l mistak es in the name must be thus pl eaded, if any advan
tage is to be tak en of them, for they wil l not form any ground of error, or in
arrest of judgment. 1 364.
This pl ea, l ik e the other proceedings in mis
demeanor, may, in the King s Bench, be put in by attorney, as wel l as if the
party indicted had appeared in person; for if he be not the person intended,
the attorney-general may reject it and sign judgment against the real defendant,
on defaul t of an answer. But if he accepts the pl ea, he thereby admits the
party by whom it is made to be the person intended, and cannot afterwards
object that it is made by a stranger. It is al ways necessary to pl ead it before
any pl ea in bar, as the defendant wil l be estopped by an issue. And the proper
time to tak e advantage of it, is upon the arraignment, when the prisoner is
cal l ed upon to answer. In prosecutions for treason, the pl ea is in writing,
signed by counsel , and if demurred to, the defendant must immediatel y join in
demur. 1 364.
In case of fel ony
or treason, a pl ea in abatement may be admitted and the issue
may be joined without del ay. But the regul ar practice is to engross
it upon parchment, procure it to be signed by counsel , and for the de
fendant to del iver it in open court, upon being charged with the
indictment. It is al ways necessary to discl ose the real name, and by
that statement the defendant is concl uded. 364.
In al l cases of fel ony, the defendant shoul d answer over to the mat
ter of the charge, and if this be omitted, the court wil l order it to be
done, and insert it at the bottom of the parchment; but if this be omit
ted, the pl ea wil l not be demurrabl e on that account, because he might
pl ead over to the fel ony, after the pl ea has been determined against
Mm. But in prosecution for misdemeanor, the defendant, as we have
seen, cannot pl ead over to the offence, together with a pl ea in abate
ment. The pl ea ought to have a proper concl usion, " praying judg
ment of (or "on") the indictment, and that it may be quashed," for
the court wil l not give such judgment as appears proper on the whol e
record, as they wil l on a pl ea in bar, unl ess it be regul arl y demanded.
< 364.
And who is indicted by the name of in his
60 4 RULES OF PLEADING.
own proper person, cometh into court here, and having heaid the said
indictment read, saith, that he was baptized
by the name of to wit, in the county aforesaid ; and by the
name of hath hitherto been
cal l ed, or k nown ; without this, that he, the said now is, or
at any time hitherto, hath been cal l ed or k nown by the
name of as by the said indictment is supposed ; and this he,
the said is ready to verify ; wherefore, he prayeth judgment
of the said indictment, and that the same may be quashed, & c.
In person appeared before me the defendant in this pros
ecution, who being dul y sworn, saith, that the above pl ea is true in
substance and matter of fact.
If a pl ea of misnomer be put in, it is the best course to al l ow it, as the
defendant is concl uded by the name he discl oses in his pl ea, and he may be imme
diatel y re-indicted. The prosecutor may, however, if he think s fit, deny the pl ea,
or repl y that the defendant is k nown as wel l by one Christian name or surname
as-another, and if he succeeds, judgment wil l be given for the crown; or the
prosecutor may demur to the pl ea, and in cases of fel ony, the demurrer and
joinder may be 1 365.
When a pl ea in abatement
is found in favor of the defendant, the judgment, in case of misdemeanor, is, that
he be not compel l ed to answer the indictment, but depart the court without
del ay. But, on an accusation for a capital crime, after the indictment has been
abated for misnomer, the court wil l not dismiss the prisoner, but cause him to
be indicted by the name discl osed in his pl ea; to which, we have seen,
he can mak e no second objection. And if the grand jury be not discharged,
another bil l may be immediatel y preferred, whatever may be the description of
the offence. If it be pl eaded by one of several defendants and al l owed, it wil l
onl y quash the indictment as to him, without affecting it as to those who are
correctl y indicted. 1 367.
If a pl ea in abatement be found against a defendant, in case of fel ony, he
shal l have judgment of If, however, judgment be given
against the defendant, either on demurrer to his pl ea in abatement, or on demur
rer to the prosecutor s repl ication to such pl ea, the judgment is
and not final . 1 367.
We come now to the consideration of special pl eas in bar, which, without en
tering into the facts of the offence, show that the defendant ought not at al l to
be cal l ed upon to answer the indictment. The principal of these are, a pre
vious acquittal , conviction and pardon, which we shal l now proceed to examine.
1 368.
:The pl ea of is founded upon the prin
cipl e that no man shal l be pl aced in peril of l egal penal ties more than once,
upon the same accusation. It has, therefore, been general l y agreed that where
a man has once been pronounced "not guil ty," on a val id indictment or appeal ,
he cannot afterwards be indicted again upon a charge of having committed the
same supposed offence. 1 368.
In order, however, to entitl e the defendant
to this pl ea, it is necessary that the crime charged be precisel y the same, and
that the former indictment, as wel l as the acquittal , was sufficient. As to the
first of these requisites, the identity of the offence, if the crimes charged in the
former and present prosecution are so distinct, that evidence of the one wil l not
support the other, it is inconsistent with reason, as it is repugnant to the rul es
of l aw, to say, that the offences are so far the same, that an acquittal of the one
wil l be a bar to the prosecution of the other. But, on the other hand, it is
dear, that if the charge be in truth the same, though the indictments differ in
immaterial circumstances, the defendant may pl ead his previous acquittal , with
proper averments; for it woul d be absurd to suppose that by varying the day,
parish, or any other al l egation, the precise accuracy of which is not material ,
the prosecutor coul d change the rights of the defendant, and subject him to a
second trial : thus, as to the point of time, if he be indicted for a murder, as
committed on a certain day, and acquitted, and afterwards be charged with
k il l ing the same person, on a different day, he may pl ead the former acquittal in
bar, notwithstanding this difference, for the day is not material ; and this is a
fact which coul d not be twice committed. And the same rul e appl ies to accu
sations of other fel onies, for though it is possibl e for several acts of the same
k ind to be committed at different times by the same person, it l ies in averment,
and the party indicted may show that the same charge is intended. And if he
be indicted for the murder or assaul t of a certain person unk nown, and after
wards charged on an indictment for the same offence, he may rel y upon the
previous acquittal . So, if the person k il l ed be differentl y, though sufficientl y
described, in two distinct indictments, the defendant may show that the same
individual is intended.
But then, it is necessary to aver, that the party sl ain was k nown by both
names, so as to maintain the sufficiency of the first proceedings, for if they
were merel y nugatory, they wil l form no ground of defence to any subsequent
prosecution. And hence we may observe, that the great general rul e upon
this part of the subject is, that the previous indictment must have been one
upon which the defendant coul d l egal l y have been convicted upon which his
l ife or l iberty was not merel y in imaginary, but in actual danger, and conse
quentl y, in which there was no material error. So that al l variations not in
consistent with the val idity of both proceedings, such as differences in the day,
the vil l , or the quantit)r , may be shown to be merel y technical . But if the
variances are in those things which are material , must not be
pl eaded ; for either the first indictment was ineffectual , and, therefore, the ac
quittal is of no avail , or the second wil l prove not appl icabl e to the evidence,
and, therefore, the objection is needl ess : thus, if a person be indicted of a
crime l aid to be done at a certain parish, in a particul ar county, and found not
guil ty, and accused of the same fact, at another pl ace, within the
same county, he may pl ead his former acquittal , for the vil l is al together imma
terial , and either indictment might be supported ; but if the difference be in the
county, he cannot do this, because one indictment must he bad, since the of
fence wil l be- proved to be beyond the jurisdiction of the grand jury. And
where the reason fail s, the rul e fail s with it, for an indictment removed from
the proper county, though tried in another, is thus pl eadabl e, because the same
offence may stil l be intended. Upon the same principl e, where the defendant
was acquitted merel y on some error of the indictment, or variance in the reci
tal s, he may be indicted again upon the same charge, for the first proceedings
were merel y nugatory: thus, if an indictment for l arceny l ay the property in
the goods in the wrong person, the party may be acquitted, and afterwards
tried on another, stating it to be the property of the l egal owner. But where,
in the first indictment, the prosecutor misstated a mere superfl uous averment, he
cannot afterwards rectify that error in a second, to pl ace the l ife and l iberty of
the defendant again in jeopardy. And in such cases, the point in discussion
al ways is, whether, in fact, the defendant coul d have tak en a fatal exception to
the former indictment; for, if he coul d, no acquittal wil l avail him, but if he coul d
not, it is al ways competent for him to show the offences to be real l y the same,
though they are variousl y stated in the proceedings. 368.
It is not, in al l cases, necessary that the two charges shoul d be precisel y the
same, in point of degree, for it is sufficient if an acquittal of the one wil l show
that the defendant coul d not have been guil ty of the other. Thus, a general
acquittal of murder, is a discharge, upon an indictment of mansl aughter, upon
the same person, because the l atter charge was incl uded in the former; and, if
it had so appeared on the trial , the defendant might have been convicted of the
inferior offence; and, on the other hand, an acquittal of mansl aughter wil l pre
cl ude a future prosecution for murder, for if he were innocent of this modified
crime, he coul d not be guil ty of the same fact, with the addition of mal ice and
design. So an acquittal of petit treason wil l bar an indictment for the murder
of the same person, and an acquittal of murder an indictment for petit treason.
But if the former charge were such a one as the defendant coul d not have been
convicted of the l atter upon it, the acquittal cannot be pl eaded. Thus, if the
first charge were for a fel ony or steal ing, and the second for a mere misde
meanor, the previous acquittal wil l be no bar, for a fel ony or l arceny cannot be
modified, on the trial , into a trespass or misdemeanor. And it often happens,
that after an acquittal of the fel ony, the defendant is indicted and tried for the
misdemeanor, upon the same evidence, and it woul d be no objection, though
the judge might stil l think that there was evidence of the fel ony, to have gone
to the jury. Thus, al so, if a defendant be indicted for a burgl arious entry,
with intent to steal ; for al though the burgl ary be the same, it is evident the
prisoner coul d not have been found guil ty on the first, upon proof of a mere
intention, and, therefore, may wel l be indicted for that offence, in the second.
It is, indeed, general l y l aid down, that an acquittal of burgl ary wil l not preju
dice an indictment for l arceny, or but this must be understood of
those cases in which, l ik e that we have just stated, the former charge did not,
necessaril y, incl ude the l atter. On the same ground, if a robbery be committed
in one county, and the goods be carried into another, so as to mak e it l arceny
there, an acquittal of the l arceny in the l ast county wil l not prejudice an in
dictment for robbery in the first, because the verdict of not guil ty can proceed
on the ground onl y, that the goods were not brought within the jurisdiction of
the grand jury, and wil l not affect the original tak ing, into which they had no
authority to inquire. And thus al so, it is cl ear; that if a man be indicted as
accessory after the fact, and acquitted, he may afterwards be tried as a princi
pal , for proof of one wil l not at al l support the other. But it was formerl y
hol den, that the offences of principal and accessory before the fact, were in
substance the same, and, therefore, that after an acquittal , as to the former, no
one coul d be indicted, as to the l atter, though it was admitted, that an acquittal
as procurer woul d not hinder him from being indicted as a principal . But as it
seems now to be the better opinion, that the charges, however nearl y al l ied in
moral guil t, are specifical l y different, in their l egal aspect, and that evidence of
procuring wil l not suffice to show an actual commission, it fol l ows that a previ
ous verdict in his favor; when charged with being principal , cannot be pl eaded
on a subsequent prosecution, for inciting others to the fel ony. And, if two
offences are supposed to have been committed at the same time, as, if a horse
and a saddl e are stol en together, an acquittal of one wil l be no bar to an indict
ment for another, for the crimes are essential l y different. 1
371.
As to the sufficiency of the discharge, which msty be thus pl eaded, it
must be a l egal acquittal , by judgment upon trial of a petit jury. And,
therefore, if a man be committed for a crime, and no bil l be preferred
against him, or, if it be thrown out by the grand jury, so that he is discharged
by procl amation, he is stil l l iabl e to be indicted. So, if the facts be found
special l y by the coroner s inquest or grand jury, and he be thereupon dischar^
ged, he cannot pl ead it in bar to any subsequent prosecution: but if the special
RULES OE PLEADING. 63
verdict be found by the petit jury, and judgment be given by the court, " that
he go thereof without day," this -wil l amount to a sufficient acquittal . 1
372.
Al though it was formerl y thought, that no acquittal in any other court coul d
be effectual l y pl eaded in bar to a prosecution in the court of k ing s bench, it is
now settl ed that a. l egal acquittal , in any court whatsoever, having competent
jurisdiction to try the charge, wil l be sufficient to precl ude any subsequent pro
ceedings before every other tribunal . And even an erroneous acquittal is con
cl usive, until the judgment be reversed, so that if a judge direct a jury to acquit,
the prisoner on any ground, however fal l acious, he is entitl ed to the benefit of
the verdict: but, in this case, the indictment itsel f must not be material l y de
fective, for if it be so, the former prosecution is no bar, because the l ife of the
defendant was never l egal l y in jeopardy. And it shoul d seem that a substan
tial defect in the former indictment woul d prevent an acquittal thereon from
being effectual l y pl eaded, al though the jury found a special verdict, and the
judgment of acquittal was founded on facts not amounting to a crime; and, if
a judgment in favor of a prisoner be reversed, he may be arraigned and tried
A mere error in the former process, however, wil l not render that
prosecution nugatory, because the reason which rel ates to errors in the indict
ment wil l not appl y, and the defendant might l egal l y have been convicted. 1
373.
The pl ea of is of a
mixed nature, and consists partl y of matter of record, and partl y of matter of
fact. The matter of record is the former indictment and acquittal ; the matter
of fact is the averment of the identity of the offence, and of the person, as
^formerl y indicted. As to the matter of record, it is now settl ed to be abso
l utel y requisite to set forth, in the pl ea, the record of the former acquittal ;
but it is not necessary to produce the record immediatel y, because it is pl eaded
in bar, as he who pl eads it hath neither the custody nor property in the record.
And the defendant is bound to produce and vouch, or refer to the record, on
which he rel ies; because, al though, in civil actions, it is not brought forward
until after a repl ication of it is otherwise in criminal proceed
ings, where the danger of del ay is greater, and the temptation to temporize
more powerful . The pl ea concl udes with a verification and prayer, that the
defendant may be dismissed the court, without further day. 1
374.
After the record of acquittal is accuratel y set forth, the matter of fact of the
pl ea must be stated, viz.: that the charges and persons are the same, which
were incl uded in the former prosecution. We have al ready seen that where
the variance between the indictments is not material , the identity may be
maintained by averments ; and the same observation appl ies to an immaterial
difference, in the addition of the party indicted. It is certainl y proper, and
seems absol utel y necessary, to pl ead over to the fel ony " not guil ty ; " though
the jury cannot be charged, at the sa,me time, with both issues, but must first
determine the pl ea of previous acquittal . 1 374.
And the said in his own proper person, cometh into
court here, and having heard the said indictment read, saith, that the
State of Georgia ought not further to prosecute the said indictment
against the said because he saith; that heretofore, to wit:
[ at the superior court, hol den in and for said county, on
Monday in in the year of our Lord one thousand eight hundred
at in said county,] so continuing the caption of the
former indictment " it was presented, that the said (then
and there, and thereby described, as of said county, in the
county aforesaid,) on the day of & c., (continuing the
indictment to the end ; reciting it, however, in the past, and not in the
present tense. Recite al so the remainder of the record, to the end of
the judgment, in the past tense, in l ik e manner : then proceed thus,)
as by the record thereof more ful l y and at l arge appears; which judg
ment stil l remains in ful l force and effect, and not in the l east reversed
or made void. And the said in fact saith, that he, the
said and the said so indicted and acquitted,
as l ast aforesaid, are one and the same person, and not other and dif
ferent persons; and that the of which he, the
said was so indicted and acquitted, as aforesaid, and the
of which he is now indicted, are one and the
same, and not other and different
And this he, the said is ready to verify;
wherefore, he prays judgment, and that by the court here, he may be
dismissed and discharged from the said premises, in the present in
dictment specified. And as to the of which
the said now stands indicted, he, the said saith.
that he is not guil ty thereof; and of this, he puts himsel f upon the
country.
Of
The pl ea of depends, l ik e that we have just considered, on
the principl e that no man shal l be more than once in peril for the same offence.
In order to pl ead this pl ea with effect, the crime must be the same for which
the defendant was before convicted, and the conviction must have been l awful ,
on a sufficient indictment; for a conviction of one fel ony is no bar to a trial of
another. And if he has not received sentence, this pl ea is said not to be pl ead-
abl e, if the former indictment were inval id ; so, the pl ea of a former arraign
ment is of no avail . 376.
pl ea must al ways be pl eaded after a convic
tion, and cannot be tak en advantage of as a pl ea in abatement, that there is another
indictment for the same cause depending. Its form, requisites, and consequences
are very nearl y the same as in a pl ea of former acquittal . Thus, l ik e that pl ea, it
wil l be of no avail , when the first indictment was inval id, and when, on that
account, no judgment coul d be given, because the l ife of the defendant was never
before in jeopardy. So al so, l ik e that pl ea, it must set forth the former record,
and pl ead over to the fel ony. As in that, the identity must be shown by aver
ments, both of the offence and the person, so the same forms are here requisite.
The judgment, if in favor of the prisoner, is, " that he go thereof without day; "
and if the issue be found against the defendant, the consequence is, as in the for
mer pl eas, that he answers over. 1 377.
And the said in his own proper person, cometh into
court here, and having heard the said indictment read, saith, that the
State of Georgia ought not further to prosecute the said indictment
against him, the said in respect of the in said indict-
merit mentioned, because he saith, that heretofore, to wit: in the Supe
rior Court, on day of in the year of our one thou
sand eight hundred at in the county of he,
the said was, upon the compl aint of con
victed for said offence, & c.,
and being so thereof convicted," said court, then and
there, adjudged that said be punished by
as by the record of said con
viction more ful l y and at l arge appears; which said judgment and
conviction stil l remain in ful l force and effect, and not in the l east
reversed, or made void. And the said further saith, that
the
of which he, the said was so convicted, as aforesaid, and
the ase
one and the same and not other and different And
the said further saith, that he has been as ad
judged by the court, as aforesaid, in the said indictment. And this
the said is ready to verify ; wherefore, he pra^sjudgment
if the said State of G-eorgia ought further to prosecute the^s aid in
dictment against him, the said in respect of the said
in the said indictment mentioned ; and that the said may
be dismissed and discharged from the same. And as to the fel ony
aforesaid, in the said indictment mentioned, the said saith,
.that he is not guil ty thereof, and therefore, he puts himsel f upon the
country, & c.
A pardon may al ways be pl eaded when the offender is evidentl y incl uded
within its intention ; as where al l fel onies and l ower offences, committed before
a certain day, are remitted, a murderer is pardoned who has given the fatal
strok e, before the time specified, though the death, which compl etes the crime,
does not happen til l a subsequent period. But if murders be expressl y except-
ed, or the act extends onl y to misdemeanors, he wil l notbe entitl ed to the benefit
of the act, because though, at the time passed, his crime was onl y a misde
meanor, it subsequentl y became a higher crime than those incl uded in the par
don. 1 379.
It must be pl eaded before the general
issue, if at al l previous to verdict, unl ess its date be subsequent to the pl ead
ings, because the former estops the l atter. 1 380.
A pardon, whether general or particul ar, must
be special l y pl eaded, and cannot be given in evidence under the general issue,
unl ess where the statute pardoning enabl es (as is now usual ) the party to
pl ead the general issue. In pl eading a general act of pardon, if the act con
tain exceptions of particul ar persons by name, or of a general description of
individual s, it is, in general , necessary for the defendant to show special l y,
that he is not one of the parties named in the statute, as without its benefit, in
the first case, or incl uded ia the proscribed description, in the second. But
where the pardon is in its body general as to al l , and some are afterwards ex-
cepted, in a distinct proviso, it seems that such averments are not absol utel y
requisite, and that if the defendant be thus excepted, it must be shown by the
66 RULES OP PLEADING.
in its repl y. And where particul ar offence onl y is excepted, he wil l
not be compel l ed to negative its commission, for the court wil l judicial l y tak e
notice of the col or of the charge against him, and compare it with that excepted
in the pardon. So where a singl e individual is excl uded from the operation of
the cl emency, it has been hol den not to be necessary to aver that the
defendant is not the person referred to, for that is a circumstance of which the
judges are bound to tak e cognizance. 1 380.
The pl ea of pardon recites the proceedings and pardon, and con
cl udes thus : " By reason of which said pardon, the said
prays that by the court here, he may be dismissed and discharged from
the said premises, in the said indictment specified."
Pl eas to the matter of the indictment, are either the issue, or
to the of the transaction. The first of these is the onl y pl ea on
which the defendant can receive sentence of death, for we have seen that he
may resort to it on al l capital charges, when other modes of defence have fail ed
him. Upon al l capital accusations, the pl ea of not guil ty puts in issue the
whol e of the charge, not merel y whether the defendant actual l y did the fact
stated on the record, but the criminal intention with which it is al l eged he was
actuated, and the l egal qual ity of the guil t to be deduced from the whol e. In
this respect there is a very important distinction between civil and criminal
proceedings : in the former, if the facts are admitted, and the defence is, that
they were rendered l egal by circumstances, a special -justification must be
pl eaded ; but in the l atter, no justification can be admitted to l imit the defend
ant s means of defence : nor is it at al l necessary, for if it appear that the
facts, though true, were l egal , the defendant wil l , of course, be acquitted. Thus,
on an indictment for murder, a man cannot pl ead that he k il l ed the deceased in
the fury of passion, and therefore, it is onl y mansl aughter; nor that he sl ew
him in sel f-defence, and so is al together guil tl ess; but he must pl ead general l y
" not guil ty," and give the special matter in evidence. So al so, in indictments
for fel ony and treason, if the facts stated amount to neither of them, the pris
oners wil l be discharged under the general issue ; for the " fel oniousl y " and
" traitorousl y," by which those crimes are designated, are the gist of the charge;
and unl ess they are shown to be properl y appl ied, the indictment cannot be
supported. On pl eading this pl ea, the prisoner, is entitl ed to have
them removed, in order that he may suffer no unnecessary pain or restraint, on
his trial . 1 383.
In cases of indictments or informations for the rul e we have
just considered does not appl y with the same degree of strictness, for there
are some cases where a special pl ea is not onl y al l owabl e, but even requisite :
thus, if the defendant fal l within any exception or proviso, which is not contained
in the purview of the statute creating the offence, he may, by pl eading, show
that he is entitl ed to the benefit of that exception or proviso, and there are
many pl eas of this description in the ancient entries. can
not, it is said, be pl eaded to an indictment for an assaul t, but must be given in
evidence under the general issue; to which a special pl ea woul d amount. 1
384.
Formerl y, it was the practice to pl ead particul ar exemptions special l y, to any
indictment for misdemeanors, as for not going to church, or exercising a trade; but
now it is the usual practice to pl ead onl y the general issue, and give the special
matter of exemption in evidence under it. The principal , and, indeed, al most
the onl y cases, in which special pl eas to the merits are necessary, are in the
case of indictments for negl ecting to repair highways and bridges. With respect
to these, it is a general rul e, that where the defendants are charged with the
repair of the road or bridge, in question of common right, and are
l iabl e to amend it, as in an indictment against a parish for not repairing a
highway, they must, in order to show that the burden is thrown upon some
other, quarter, set forth that ground of discharge in a special pl ea. So the in
habitants of a county, if indicted for the non-repair of a bridge, or of the high
way, within three hundred feet of the extremity of the bridge, must, to exoner
ate themsel ves, pl ead special l y that some other is bound, by prescription or
tenure, to repair the same. But this does not seem to appl y where the obl iga
tion is al tered by a publ ic act of parl iament, of which al l are supposed to tak e
cognizance. And under a pl ea of not guil ty, the inhabitants of a parish or
county may dispute the fact of .a highway or bridge being publ ic, and may
give in evidence, that private individual s have been accustomed to repair, or
any other facts, in order to show that the way or bridge was not publ ic. On
the other hand, it is settl ed, that where defendants are not or of
common right, l iabl e to repair, as a particul ar division of a parish, or an indi
vidual , are charged by prescription, or they may exonerate
themsel ves, and throw the burden upon others, either the parish at l arge, or an
individual , under the general issue. In general , al l parishes come under the
first of these rul es, and must pl ead special l y that others are bound to repair the
roads and bridges, within their boundaries. But when an act of parl iament has
authorized a publ ic company to mak e al terations, and they cut or widen trenches
across the roads, and then buil d bridges over them, or otherwise first create
the necessity, and then remedy it by buil ding bridges, they wil l be al ways
l iabl e to k eep them in repair, when necessary. And, as where a particul ar body
or individual is bound, by some charter, or other means, to repair, that fact may
be special l y pl eaded by a parish or county; so if the parties on whom the duty
l ies have been convicted for the same offence, the defendants may pl ead the
conviction, setting out the record, and averring the identity of the pl ace in ques
tion. 1 385.
It is a good general rul e, that whatever the prosecutor is bound to prove,
upon the general issue, the defendant may contradict under the same pl ea,
without special l y setting forth the ground of his defence upon the record.
And this is the reason why a man is not bound to pl ead that he is not by tenure
or prescription compel l ed to repair, for the affirmative of those points must be
shown by the prosecutor, or they can mak e out no ground of conviction. And
therefore, a parish may, under the pl ea of not guil ty, show that the pl ace in
question is in sufficient repair, or that it is not a publ ic way, or that it does not
l ie within the district, for al l these must be al l eged in the indictment and given
in evidence on the trial . 1 386.
6 8 PENAL STATUTES OF GEORGIA.
CHAPTER III.
FIRE HUNTING.
1. SEC. I. From and immediatel y after the passing of this Act, any person
or persons who shal l hunt with a gun by fire-l ight, or k il l any deer so hunting
by fire-l ight, in the night-time, without his or their own encl osures,. any such
person or persons being convicted, upon the oath of one or more credibl e wit
nesses, before any justice of the peace for the county [ as
III. 1.] where such offence shal l be committed, shal l , for every
such offence, forfeit and pay not exceeding the sum of five pounds ; one-hal f
thereof shal l be paid to the informer or informers, and the other hal f into the
cl erk s office of the inferior court, and to he appl ied to the use of the poor of the
county where such offence shal l be committed. 1.
2. SEC. II. The forfeitures incurred by this Act, as aforesaid, shal l be l evied
by distress and sal e of the offenders goods and chattel s, l ands and tenements,
by warrant under the hand and seal of the justice before whom the person or
persons so incurring shal l be convicted, returning the overpl us, if any, to the
owner or owners thereof, after deducting the said penal ty or forfeiture and
l awful charges;
] and in case the person or persons so offending
and convicted shal l not have goods and chattel s, l ands or tenements, sufficient
to answer such forfeiture and charges,
1790.
TRANSPORTATION OF GUNPOWDER.
3. SEC. I. From and after the passage of this Act, it shal l be the duty of
al l owners, agents and others, "who mayor shal l have any Gunpowder, exceeding
in quantity five pounds, transported upon the waters or within the l imits of this
State, to have the word GUNPOWDER mark ed in l arge l etters upon each and
every pack age which may or shal l be so transported.
PENAL STATUTES OF GEORGIA. 6 9
4. SEC. II. Al l Gunpowder exceeding five pounds in quantity, which shal l
hereafter be transported or engaged for transportation, upon any of the waters,
or within the l imits of this State, without being mark ed as directed in the first
section of this Act, shal l be l iabl e to seizure and forfeiture one-hal f to the
informer, the other for the use of the vol unteer companies most convenient or
contiguous to the pl ace of seizure or forfeiture.
SBC. III. Al l l aws or parts of l aws mil itating against this l aw, are hereby
repeal ed. 1831.
SEC. I. That from and after the passing of this Act, if any person or
persons shal l board any ship or vessel , in any port or harbor, or on any of the
waters of this State, with intent to inveigl e, entice, convey away, abduct, with
or without viol ence, or secretl y carry off any articl ed seaman or mariner, or
apprentice, from such ship or vessel , or shal l afford any conveyance or facil ity
to such seaman, or mariner, or apprentice, to desert or l eave such ship or vessel ,
then, and in each of such cases, such person or persons so offending shal l be
l iabl e, on conviction, to fine or imprisonment, at the discretion of the court.
2.
6. SEC. II. That if any person or persons shal l aid or assist in any way or
manner, any articl ed seaman, or mariner, or apprentice, to desert from his ship
or vessel , whil e within the waters of this State, or shal l inveigl e, entice, convey
away, abduct, or carry, with or without viol ence, or secretl y carry off any articl ed
seaman, or mariner, or apprentice from any such ship or vessel , such person or-
persons so offending, shal l , on conviction, be l iabl e to fine or imprisonment, at
the .discretion of the court. JVb. 3.
7. SEC. III. That if any person or persons shal l harbor, secrete, entertain,
l odge, or k eep, or shal l directl y or indirectl y suffer to be harbored, secreted,
entertained, l odged, or k ept, in or about his house or premises, any articl ed
seaman, or mariner, or apprentice, k nowing the said seaman, or mariner, or
apprentice to have deserted from his ship or vessel , such person ot persons
shal l , on conviction, be fined in a sum of not more than five hundred dol l ars, or
imprisoned, at the discretion of the court. 4.
3. SEC. IV. That the fourth section of an Act to punish seamen or mariners,
negl ecting or deserting their duty on board their respective ships or vessel s,
and for preventing seamen or mariners from being harbored or running in debt,
approved March the sixth, in the year of our Lord one thousand seven hundred
and sixty-six, be and the same is hereby repeal ed. .1843.
9. SEC. I. That from and after the passing of this act, no person or persons
shp.l l be al l owed to practice physic and surgery, or any of the branches thereof,
or in any case to prescribe for the cure of diseases, for fee or reward, unl ess he
or they shal l have been first l icensed to do so in the manner hereinafter pre
scribed.
10. SEC. II. That if any person or persons shal l hereafter presume, without such
l icense, to practice physic, surgery, or in any manner prescribe for the cure of dis
eases, for fee or reward, he or they shal l be l iabl e to be indicted, and on convic
tion shal l be fined, not exceeding the sum of five hundred dol l ars, for the first
6
70 PENAL STATUTES OF GEORGIA.
offence, and for the second, be imprisoned not exceeding the term of two
months ; one hal f of the fine to enure to him who shal l inform, and the other
hal f to the use of the State.
11. SEC. III. That on the trial of al l indictments for any of the offences
enumerated in this act, it shal l be encumbent on the defendant to show that he
has been l icensed to practice physic and surgery, and to prescribe for the cure
of diseases, in the manner hereinafter mentioned, to exempt himsel f from the
penal ties enumerated in this act.
12. SEC. IV. That al l bonds, notes, promises and assumptions, made to any
person or persons, not l icensed in manner hereinafter mentioned, the considera
tion of which shal l be services rendered as a physician or surgeon, in pre
scribing for the cure of diseases, shal l , and they are hereby decl ared, utterl y
void, and of no effect.
13. SEC. V. That in order to the proper regul ation of the practice of physic
and surgery, there shal l be establ ished a board of physicians, to be assembl ed
annual l y at who shal l , at their annual meeting, examine
al l appl icants, and if, on such examination, they are found competent, shal l
grant to such appl icants a l icense to practice physic and surgery :
that seven members of said board shal l constitute a quorum to mak e such ex
amination, and grant such l icense: that if any appl icant
shal l have studied and received a dipl oma from any medical col l ege, the said
board, or a quorum thereof, shal l l icense the said appl icant to practice, without
examination. 25.
14. SEC. VI. [ As to who shal l constitute the board superseded by the act
of 1850. 24.]
15. SEC. VII. That the annual meeting of the board of physicians of Geor
gia, shal l be hel d at the seat of government, on the first Monday in December,
in each and every year, and that the said board shal l be entitl ed to receive and
demand of every appl icant, when l icensed, the sum of five dol l ars, for each and
every examination, and the sum of five for every l icense.
16. SEC. VIII. That no part or cl ause of this act shal l have any operation
or effect upon any person now practicing medicine or surgery within this State,
and who has heretofore been a practicing physician within the same.
17. SEC. IX. That no apothecary within this State, unl ess he be a l icensed phy
sician, shal l be hereafter permitted to vend or expose to sal e any drugs or medi
cines, without previousl y obtaining a l icense to do so from the board of physicians
created by this act; and every apothecary so vending or sel l ing drugs or medi
cines contrary to the provisions of this act, shal l be l iabl e to al l the penal ties
imposed by this act on physicians and surgeons practicing without a l icense :
that nothing herein contained be construed to prevent merchants or
shop-k eepers from vending or exposing to sal e medicines al ready prepared:
that nothing herein contained shal l be so construed as to operate
against or upon any person or persons, who now are, and heretofore have been,
engaged .in the sal e of drugs and medicines as apothecaries, or who may be, and
heretofore have been, engaged in the vending of drugs and medicines, as an ex
cl usive branch of merchandise.
18. SEC. X. That the board of physicians created by this act shal l have the
power to examine any apothecary who may appl y to it for a l icense, touching
their k nowl edge of drugs and pharmacy, and on finding such persons qual ified,
shal l grant such l icense, and shal l receive therefor the same fees as provided in
this act for l icense to practice medicine and surgery.
19. SEC. XI. That to prevent del ay and inconvenience, a singl e member of
the board of physicians may grant temporary l icense to appl icants therefor,
and mak e report thereof to the board at their next meeting for confirmation,
PENAL STATUTES OF GEORGIA. 7 1
or further evidence of qual ification to be given by the appl icant:
that a temporary l icense shal l not continue in force l onger than the next meet
ing of the board, and that a temporary l icense shal l in no case be granted by
one of the board after the appl icant has been refused a l icense by the board of
physicians.
20. SEC. XII. That the board of physicians be, and they are hereby author
ized and empowered to el ect al l such officers, and frame al l such by-l aws as
may be necessary to carry this act into effect, and in case of the death, re-
moval j or refusal to act, of any member of said board, the said board, or a
quorum of them, be, and they are hereby impowered to fil l up any such vacan
cies.
2L SEC. XIII. That said board shal l enter in a book , to be k ept by them for
that purpose, the names of each and every person they shal l l icense to practice
physic and surgery, and the time of granting the same, together with the
names of the members of the board present, and shal l publ ish the same in some
newspaper printed at the seat of government, within thirty days after granting
the same.
22. SEC. XIV. That said board of physicians shal l be considered a body
corporate, so far as to hol d property, both real and personal ; k eep a common
seal ; sue and be sued; and that the book so k ept by the board as aforesaid
shal l be considered a book of record, and a transcript from the sa^ne, certified
by the proper officer, under the common seal , shal l be tak en and received as
evidence in any court of l aw in this State. 1825.
AN ACT to revive and k eep in force an act entitl ed, " An Act to regul ate the
l icensing of physicians to practice in this State, assented to the twenty-
fourth day of December, eighteen hundred and twenty-five."
23. SEC. I. That from and after the passage of this act, the above and be
fore recited act be, and the same is hereby revived, and decl ared to be in ful l
force and operation.
.24. SEC. II. That the fol l owing named gentl emen shal l constitute the board
of physicians of this State, to wit: L. D. Ford, J. P. Garvin, G. M. Newton,
E. M. Moore, J. Branham, B. F. Keene, E. A. Broddus, H. T. Shaw, Bank s,
Phil l ips, J. Persons, W. J. Johnson, M. A. Frank l in, J. M. Greene, T.
Fort, B. A. White, C. J. Paine, T. F. Greene, Geo. D. Case, H. K. Burroughs:
That the graduates of the Botanico-Medical Col l ege and the l icen
tiates of a l egal l y establ ished Medical Board of Botanic Physicians, shal l be
ful l y exempted from the operation of the said act so revived.
SEC. III. That al l l aws, and parts of l aws, mil itating against the said recited
act be, and the same are hereby repeal ed. 1847.
AN ACT to al ter and amend an act entitl ed " An Act to regul ate the l icens
ing physicians in this State ; to prevent apothecaries vending and exposing to
sal e within this State, drugs and medicines, without a l icense from the board
of physicians; and to prevent merchants, shop-k eepers, and al l other persons,
from compounding and preparing drugs and medicines, or either; " approved
Dec. 24, 1825.
25. SEC. I. That from and after the passage of this act, the board of phy
sicians establ ished and provided for in the above recited act, for the purpose of
examining al l appl icants for l icense to practice medicine, and for other purposes,
shal l hol d their annual meetings in the-CiiT OF MACON, in this State.
SEC. II. That al l l aws, and parts of l aws, mil itating against this act be, and
the same are hereby repeal ed. 1850.
72 PENAL STATUTES OF GEORGIA.
1.
STATE OF GEORGIA) The Grand Jurors, sworn, chosen,and sel ected
County. for the county of to wit : Samuel Fel -
der, Robert W. Bask in, Sil as Rawl s, Cal vin W. Fel der, Hugh Lawson,
Hugh L. Dennard, Joseph M. Cooper, Wil l iam H. Tal ton, John J. For-
syth, Warren B. Sanders, John Harrington, James H. Dunham, Cal vin
Leary, Thomas Wil l iams, John S. Jobson, Francis W. Jobson, John
Kil l en, Robert B. Engram, John M. Chastain, Benjamin Rutherford,
Creed T. Woodson, Matthew H. Means, and Wil l iam H. Mil l er, in the
name and behal f of the citizens of Georgia, charge and accuse
of the count}- and State aforesaid, with the offence of
with a gun by fire-l ight, in the night-time, without his own encl osure:
for that the said in the county aforesaid, on the day of
in the year of our Lord one thousand eight hundred and
with force and arms, did with a gun by fire-l ight, in the night-time,
without his own encl osure, contrary to the l aws of said State, the good
order, peace, and dignity thereof.
term, 1850. JAMES WILLIAMS,
EIOHABD ROE. CHARLES SMITH,
In the name and behal f of the citizens of Georgia, charge and ac
cuse of the county and State aforesaid, with the offence of
with intent to from said an
for that the said in said county, on day of
did the then l ying in the of in the
waters of this State, with intent to viol ence,
from said ship an named con
trary, & c.
$ r.
from his for that the said
in said county, on the day of in the year of our Lord
one thousand eight hundred and did, viol ence, one
to from the whil e
said was l ying within the waters of this State ; contrary, & c.
cuse of the county and State aforesaid, with, the offence of
for that the said in the county
aforesaid, on day of in the year of our Lord one thou
sand, eight hundred did k nowingl y
k nowing the said to have de
serted from the then l ying and being in the port of
contrary, & c.
PENAL CODE OF GEORGIA. 73
CHAPTER IV.
PENAL CODE OF GEORGIA.
SEC. 1. The existing Code of the Penal Laws of this State
shal l continue and remain in ful l force until the first day of June next
(1834); at which time, the fol l owing Code of Penal Laws shal l be in
ful l force and operation in this State.
FIRST DIVISION.
1. SEC. I. A crime or misdemeanor shal l consist in a viol ation of
a publ ic l aw, in the commission of which there shal l be an union, or
joint operation of act and intention; or criminal negl igence.
SEC. II. Intention wil l be manifested by the circumstances con
nected with the perpetration of the offence, and the sound mind and
discretion of the person accused.
3. SEC. III. A person shal l be considered of sound mind, who is
neither an idiot, a l unatic, or affl icted by insanity ; or who hath ar
rived at the age of fourteen years, or before that age, if such person
k now the distinction between good and evil .
4. SEC. IV. An infant under the age of ten years, whose tender age
renders it improbabl e that he or she shoul d be impressed with a proper
sense of moral obl igation, or be possessed of sufficient capacity del ib
eratel y to have committed the offence, shal l not be considered or
found guil ty of any crime or misdemeanor.
SEC. Y. A l unatic or person insane, without l ucid interval s,
shal l not be found guil ty of any crime or misdemeanor, with which
he or she may be charged : the act so charged as criminal
was committed in the condition of such l unacy or insanity ; but if a
l unatic hath l ucid interval s of understanding, he shal l answer for what
l ie does in those interval s, as if he had no deficiency.
74 PENAL CODES OF GEORGIA.
6. SEC. VI. An idiot shal l not be found guil ty or punished for any
crime or misdemeanor with which he or she may be charged.
SEC. VII. Any person counsel l ing, advising, or encouraging an
infant under the age of ten years, a l unatic, or an idiot, to commit an
offence, shal l be prosecuted for such offence when committed, as
principal , and if found guil ty, shal l suffer the same punishment as
woul d have been infl icted on said infant, l unatic, or idiot, if he or she
had possessed discretion and been fou nd guil ty.
SEC. VIII. A feme covert, or married woman, acting under
the threats, command, or coercion of her husband, shal l not be found
guil ty of any crime or misdemeanor, not punishabl e by death or per
petual imprisonment; and with this exception, the husband shal l be
prosecuted as principal , and if convicted, shal l receive the punishment
which otherwise woul d have been infl icted on the wife, if she had
been found guil ty : it appears from al l the facts and cir
cumstances of the case, that viol ent threats, command and coercion,
were used.
9. SEC. IX. Drunk enness shal l not be an excuse for any crime or
misdemeanor, unl ess such drunk enness was occasioned by the fraud,
artifice, or contrivance of other person or persons, for the purpose of
having a crime perpetrated, and then the person or persons, so caus
ing said drunk enness, for such mal ignant purpose, shal l be considered
a principal , and suffer the same punishment as woul d have been in
fl icted on the person or persons committing the offence, if he, she, or
they, had been possessed of sound reason and discretion.
10. SEC. X. A person shal l not be found guil ty of any crime or
misdemeanor, committed by misfortune or accident, and where it sat
isfactoril y appears there was no evil design or intention, or cul pabl e
negl ect.
11. SEC. XI. A sl ave committing a crime or misdemeanor, which,
if committed by a free white person, woul d not be punishabl e by this
Act with death, by the threats, command, or coercion of his or her
owner, or any person exercising or assuming authority over such,
sl ave, shal l not be found guil ty; and it appearing from al l the facts
and circumstances of the case, that the offence was committed by
the threats, command, and coercion of the owner, or the person exer
cising or assuming authority over such sl ave, the said owner or other
person, exercising or assuming authority over such sl ave, shal l be
prosecuted for the said crime or misdemeanor; and if found guil ty,
shal l suffer the same punishment as he or she woul d have incurred,
if he or she had actual l y committed the offence with which the sl ave
is charged.
SEC. XII. A person committing a crime or misdemeanor, un
der threats or menaces, which sufficientl y show that his or her l ife,
or member, was in danger, or that he or she had reasonabl e cause to
bel ieve, and did actual l y bel ieve, that his or her l ife, or member, was
in danger, shal l not be found guil ty ; and such threats and menaces
being proved and establ ished, the person or persons compel l ing, by said
threats and menaces, the commission of the offence, shal l be consider
ed a principal or principal s, and suffer the same punishment, as if he,
she, or they, had perpetrated the offence.
13. SBC. XIII. The term when used in this Act, shal l be
construed to mean an offence, for which the offender, on conviction,
shal l be l iabl e by l aw to be punished by death or imprisonment in the
penitentiary, and not otherwise.
CHAPTER V,
SECOND DIVISION.
14. SEC. I. A person may be principal in an offence, in two de
grees a principal in the first degree, is he or she that is the actor, or
absol ute perpetrator of the crime a principal in the second degree,
is he or she who is present, aiding and abetting the fact to be done ;
which presence need not al ways be an actual immediate standing by,
within sight or hearing of the fact; but there may be al so a con
structive presence, as when one commits a robbery, murder, or other
crime, and another k eeps watch or guard, at some convenient
distance.
15. SEC. II. An Accessory is one who is not the chief actor in the
offence, nor present at its performance, but is some way concerned
therein, either or the fact committed.
16. SEC. III. An Accessory before the fact is one who, being ab
sent at the time of the crime committed, doth yet procure, counsel ,
OT command, another to commit a crime. 1.
76 PENAL CODE GEORGIA.
17. SEC. IV. An Accessory after the fact is a person who, after
ful l k nowl edge that a crime has been committed, conceal s it from the
magistrate, and harbors, assists, or protects the person charged with
or convicted of the crime.
18. SEC. V. A principal in the second degree, and an accessory
before the fact, except where it is otherwise provided for in this Code,
shal l receive the same punishment as is directed to be infl icted on the
principal in the first degree, or perpetrator of the crime.
19. SEC. VI. Accessories after the fact, except where it is other
wise ordered in this Code, shal l be punished by fine, or imprisonment
in the common jail of the county, or both, at the discretion of the
court.
1.
[ Charge the assaul t as made jointl y by the principal in the first and
in the second degree.]
And that the said a certain cal l ed a of the
val ue of dol l ars, then and there, charged with gunpowder and a
l eaden bul l et, which said he, the said in both his hands
then and there, had and hel d, at and against the said
then and there, unl awful l y, fel oniousl y, wil l ful l y, and of his mal ice
aforethought, did shoot and discharge,^_ and that the said
with the l eaden bul l et aforesaid, by means of shooting off and
discharging the said so l oaded, to, at, and against the said
as aforesaid, did then and there, unl awful l y, fel oni
ousl y, wil l ful l y, and of his mal ice aforethought, strik e, penetrate, and
wound, the said in and upon,the right side of the
head of him, the said near his right templ e, giving to
him, the said then and there, with the l eaden bul l et
aforesaid, by means of shooting off and discharging the said so
l oaded, to, at, and against the said and by strik ing,
penetrating, and wounding the said as aforesaid, one
mortal wound, in and through thejgead, of the said
of which said mortal wound the" said did then and
there die. And that the said then and there
fel oniousl y, wil l ful l y, and of his mal ice aforethought, was present, aid
ing and abetting the said in the fel ony and murder afore
said, in manner and form aforesaid, to do and commit; and so, the
said and the aforesaid in
manner and form aforesaid, unl awful l y, fel oniousl y, wil l ful l y, and of
mal ice aforethought, k il l ed, and murdered. And that
of the County and State aforesaid, before the fel ony and murder afore
said, by the said and in manner and form
aforesaid, done and committed, that is to say, day of
in the year of our .Lord one thousand eight hundred and with
force and arms, in the county aforesaid, [ the said being
absent at the time of committing the aforesaid,] the aforesaid
to do and commit the fel ony and murder aforesaid, in
manner and form aforesaid, mal iciousl y, fel oniousl y, vol untaril y,
PEEAL CODE OF GEORGIA. 77
and of his aforethought mal ice, did stir up, move, abet, and
contrary, & c.
"
In the name and behal f of the citizens of Georgia, charge and accuse
of the County and State aforesaid, with the offence of ac
cessory before the fact, : for that heretofore, to
wit, at the Superior Court, hel d in and for the county of on
the Monday in in the year of our Lord one thousand
eight hundred and
it was presented upon the oath of
that one l ate of said county,
upon which said indictment, the said
at the term of the said superior court aforesaid, was dul y convicted
of the afore
said, as by the record thereof now in court produced and shown, more
ful l y and at l arge appears. And the jurors aforesaid, upon their oath
aforesaid, do say, that said in the county aforesaid, be
fore the said as the case may
be,] was committed, in form aforesaid, (and not being present at
the time of committing said by said to wit,
on the day of in the year of our Lord one thousand
eight hundred and in the county aforesaid, with force and
arms, did fel oniousl y and mal iciousl y procure and counsel ,
the said the said in manner and form
aforesaid, to do and commit; contrary, & c.
NOTE. If there be doubt whether the proof wil l be that the accessory counsel l ed, pro
cured, or commanded, < fcc., insert separate counts, charging each. And general l y, when
there are several means or modes of committing an offence, separate counts shoul d be in
serted appl icabl e to each; if there be doubt as to the proof, as to the particul ar mode.
cuse of the County and State aforesaid, with the offence of
Accessory after the fact, for that said
in the county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and wel l k nowing the said
to have done and committed the aforesaid, after
the; same was committed as aforesaid, to wit: on the day and year
aforesaid, in the county aforesaid, he, the said did conceal
said from the magistrate, and said
contrary, & c.
NOTE. The formal parts of the bil l of indictment, in the present case, are the same
as those in an indictment against an accessory before the .fact.
78 PENAL CODE OP GEORGIA.
CHAPTER VI.
THIRD DIVISION.
20. SEC. I. Crimes against the State and the Peopl e shal l consist
in in the first degree and second degree; exciting, or at
tempting to excite, an
21. SEC. II. Treason in the first degree shal l consist in l evying war
against the State, in the same ; or being adherent to the enemies of
the State, within the same ; giving to them aid and comfort, in
this State or el sewhere, and thereof being l egal l y convicted of open
deed, by two or more witnesses, or other competent and credibl e tes
timony, or vol untary confession ; these cases shal l be adjudged Treason
against the State and Peopl e ; and when the overt act of Treason shal l
be committed without the l imits of this State, the person charged
therewith may be arrested and tried, in any county of this State, with
in the l imits of which he may be found, and being thereof convicted,
shal l be punished in l ik e manner as if the said Treason had been com
mitted and done within the l imits of said county Treason in the first
degree shal l be punished with death. 1.
22. SEC. III. Treason in the second degree shal l consist in the k nowl
edge and conceal ment of Treason, without otherwise assenting to, or
participating in, the same. The punishment of Treason in the second
degree, shal l be confinement and hard l abor in the penitentiary for
the term of four years.
23. SEC. IV. Exciting an insurrection or revol t of sl aves, or any at
tempt by writing, speak ing, or otherwise, to excite an insurrection
or revol t of sl aves, shal l be punished with death.
24. SEC. V. If any person shal l bring, introduce, or circul ate, or
cause to be brought, introduced, or circul ated ; or aid or assist, or be in
any manner, instrumental in bringing, introducing, or circul ating,
within this State, any printed or written paper, pamphl et, or circul ar,
for the purpose of exciting insurrection, revol t, conspiracy, or resist
ance, on the part of the sl aves, negroes, or free persons of col or, in this
State, against the citizens of this State, or any part of them, such
person so offending shal l be guil ty of a high misdemeanor, and on
conviction shal l be punished with death.
1.
STATE OF GEORGIA, J The Grand Jurors, sworn; chosen, and sel ect-
County. j ed for the county of Houston, to wit : Donal d
B. Jones, James Rozier, Peter V. G-avy, Samuel Fel der, Robert "W.
Bask in, Sil as Rawl s, Thomas B. Al ien, Hugh Lawson, Hugh L. Den-
nard, Joseph M. Cooper, Wil l iam H. Tal ton, John J. Forsyth, Samp
son B. King, Francis W. Jobson, Warren B. Sanders, James H. Dun-
ham, John M. Chastain, Cal vin W. Fel der, Thomas Wil l iams, John
S. Jobson, Wil l iam P. Mount, John Kil l en and Robert B. Engram, in
the name and behal f of the citizens of Georgia, charge and accuse
of the county and State aforesaid, with the offence of
Treason, in the degree : for that the said being a citizen
of the said State of Georgia, on the day of in the year of our
Lord one thousand eight hundred and not regarding the duty of
his al l egiance and fidel ity to said State, nor having the fear of God in
his heart, but being moved and seduced by the instigation of the devil ,
as a fal se traitor against said State and the peopl e thereof; and whol l y
withdrawing the al l egiance, fidel ity, and obedience which every true
andifaithful citizen of said State shoul d and of right ought to bear
towards said State and the peopl e thereof, on the day and year afore
said, and on divers other days, as wel l before as after, with force and
arms, in the State aforesaid, in the county aforesaid, mal iciousl y,
traitorousl y, and fel oniousl y, together with divers other fal se traitors,
to the jurors aforesaid unk nown, armed and arrayed in a warl ik e
manner, that is to say, with guns, musk ets, bl underbusses, pistol s,
swords, bayonets, pik es and other weapons, being then and there, un
l awful l y, mal iciousl y, traitorousl y, and fel oniousl y assembl ed and
gathered together, against said State and peopl e ; most wick edl y, ma
l iciousl y and traitorousl y, did l evy and mak e war against said State
and peopl e, the same, and did then and there, mal iciousl y,
traitorousl y and fel oniousl y attempt and endeavor, by force and arms,
to subvert and destroy the constitution and government of said State,
as by the citizens thereof establ ished ; contrary to the duty of the al
l egiance of him, the said and contrary to the l aws of said
State, the good order, peace and dignity thereof.
term, 1850.
"Witnesses, l JAMES WILLIAMS,
RoE
NOTE. As to what constitutes against the United States, the fol l owing points
have been decided :
1. To constitute there must be an assembl age of persons for the pur
pose of effecting by force a treasonabl e purpose. Enl istment of men to serve against gov
ernment is not sufficient. 4 75.
2. Any assembl age of men, for the purpose of revol utionizing, by force, the government
establ ished by the United States, in any of its territories, al though as a step to some greater
projects, amounts to
3; The marching of individual s to a pl ace of rendezvous is not sufficient, but the meeting
80 PENAL CODE OF GEORGIA.
of particul ar bodies of men, and their marching from pl aces of partial , to a pl ace of general
rendezvous, is such an assembl age as constitutes
,4. To -war, is to raise, create, mak e, or carry on war. The U. S. Burr, App. to 4
Crane-Mil .
B. The term "l evying war," is used in the Constitution of the United States, in the same
sense in which it was understood in Engl and and this country, to have been used in the stat
ute 25 Edward III., from which it is borrowed.
6. Al l those who perform the various and essential mil itary parts of prosecuting the war,
which must be assigned to different persons, may be said .to l evy war.
1. Those who perform a part in the prosecution of the war, may correctl y be said to l evy
war.
8. If the war be actual l y l evied, if the accused has performed a part, but is not l eagued
in the conspiracy, and has not appeared in arms against his country, l ie is not a traitor.
9. The assembl age of men, which wil l amount to the l evying of war, must be a warl ik e
assembl age, carrying the appearance of such, and in a situation to practice hostil ity.
480.
10. An assembl age of men, with a treasonabl e design, but not in force, nor in a condition
to attempt the design, nor attended with warl ik e appearances, does not constitute the fact of
l evying war.
11. The travel l ing of several individual s to the pl ace of rendezvous, either separatel y or
together, but not in mil itary form, woul d not constitute l evyingwar. The act must be une
quivocal , and have a warl ik e appearance. 485.
12. "War can onl y be l evied by the empl oyment of actual force. Troops must be em
bodied, men must be openl y assembl ed. 487.
13. Arms are not an indispensabl e requisite to l evying war, nor the actual appl ication of
force to the object. 488.
14. Levying war is an act compounded of l aw and fact, of which the jury, aided by the
court, must judge. 606. ~ ti>
15. Appearing at the head of an army, woul d be an overt act of l evying war. So al so
detaching a mil itary corps from it for mil itary purposes. 506.
NOTE. Constructive treason, is when the direct and avowed object is not
the destruction of the sovereign power. TJ. S. Burr, App. 4 Cranch Rep., 476, 477, 478,
479. 2 38.
/ High Misdemeanor : for that the said on the day of
in the year of our Lord one thousand eight hundred
with force and arms, in said county, did within said State,
a (which newspaper is print
ed without the State) for the purpose of exciting on the
part of the in said State, against the citizens of said State;
contrary, & c.
CHAPTER VII,
FOURTH DIVISION.
SEC. I. Homicide is the k il l ing of a human being of any age or
sex, and is of three k inds : Murder, Mansl aughter, and Justifiabl e
Homicide.
26. SEC. II. Murder is the unl awful k il l ing of a human being, in
the peace of the State, by a person of sound memory and discretion,
with mal ice aforethought, either express or impl ied. JVo. 1.
27. SEC. III. Express Mal ice is that del iberate intention, unl awful
l y to tak e away the l ife of a fel l ow-creature, which is manifested by
external circumstances capabl e of proof.
SEC. IV. Mal ice shal l be impl ied, where no considerabl e provo
cation appears, and where al l the circumstances of the k il l ing show .
an abandoned and mal ignant heart.
29. SEC. V. The punishment of Murder shail be death.
30. SEC. VI. Mansl aughter is the unl awful k il l ing of a human
creature, without mal ice, either express or impl ied, and without any
mixture of del iberation whatever; which may be vol untary, upon a
sudden heat of passion, or invol untary, in the commission of an un
l awful act, or a l awful act, without due caution and circumspection.

31. SEC. VII. In al l cases of Vol untary Mansl aughter, there must
be some actual assaul t upon the person k il l ing, or an attempt by the
person k il l ed, to commit a serious personal injury, on the person k il l
ing. Provocation by words, threats, menaces, or contemptuous ges
tures, shal l in no case be sufficient to free the person k il l ing from the
guil t and crime of Murder. The k il l ing must be the resul t of that
sudden, viol ent impul se of passion, supposed to be irresistibl e: for if
there shoul d appear to have been an interval between the assaul t or
provocation given, and the homicide, sufficient for the voice of reason
and humanity to be heard, the k il l ing shal l be attributed to del iberate
revenge, and be punished as murder.
32. SEC. VIII. Vol untary mansl aughter shal l be punished by con
finement and l abor in the penitentiary, for a term not l ess than two
years, nor l onger than four years.
33. SEC. IX. Invol untary mansl aughter shal l consist in the k il l ing
of a human being, without any intention to do so ; but in the commis
sion of an unl awful act, or a l awful act, which probabl y might pro
duce such a consequence, in an unl awful manner : al ways,
that where such invol untary k il l ing shal l happen in the commission
of an unl awful act, which in its consequences natural l y tends to
destroy the l ife of a human being, or is committed in the prosecution
of a riotous intent, or of a crime punishabl e by death or confinement
in the penitentiary, the offence shal l be deemed and adjudged to be
murder.
34. SEC. X. Invol untary mansl aughter, in the commission of an
unl awful act, shal l be punished by confinement and l abor in the peni
tentiary, for a term not l ess than one year, nor l onger than three
years.
35. SEC. XI. Invol untary mansl aughter, in the commission or per
formance of a l awful act, where there has not been observed neces
sary discretion and caution, shal l be punished by fine, or imprisonment-
in the common jail of the county, or both, at the discretion of the
court.
36. SEC. XII. There being no rational distinction between excusa
bl e and justifiabl e homicide, it shal l no l onger exist. Justifiabl e
homicide is the k il l ing of a human being, by commandment of the
l aw, in execution of publ ic justice; by permission of the l aw, in
advancement of publ ic justice ; in sel f-defence; or in defence of habi
tation, property, or person, against one who manifestl y intends or
endeavors, by viol ence or surprise, to commit a fel ony on either; or
against any persons who manifestl y intend and endeavor, in a riotous
and tumul tuous manner, to enter the habitation of another, for the
purpose of assaul ting or offering personal viol ence to any person dwel l
ing or being therein.
37. SEC. XIII. A bare fear of any of those offences, to prevent
which the homicide is al l eged to have been committed, shal l not be
sufficient to justify the k il l ing ; it must appear that the circumstan
ces were sufficient to excite the fears of a reasonabl e man, and that
the.party k il l ing real l y acted under the infl uence of those fears, and
not in the spirit of revenge.
38. SEC. XIV. If, after persuasion, remonstrance, or other gentl e
measures used, a forcibl e attack and invasion, on the property or
habitation of another, cannot be prevented, it shal l be justifiabl e
homicide to k il l the person so forcibl y attack ing and invading on the
property or habitation of another ; but it must appear that such k il l
ing was absol utel y necessary to prevent such attack and invasion, and
that a serious injury was intended, or might accrue to the person,
property, or famil y, of the person k il l ing.
39. SEC. XV. If a person k il l another in his defence, it must appear
that the danger was so urgent and pressing, at the time of the k il l ing,
that in order to save his own l ife, the k il l ing of the other was abso
l utel y necessary ; and it must appear al so, that the person k il l ed was
the assail ant, or that the sl ayer had real l y and in good faith endeavored
to decl ine any farther struggl e, before the mortal bl ow was given.
40. SEC. XVI. Al l other instances which stand upon the same foot
ing of reason and justice, as those enumerated, shal l be Justifiabl e
Homicide.
41. SEC. XVII. The homicide appearing to be justifiabl e, the per
son indicted shal l , upon the trial , be ful l y acquitted and discharged.
42. SEC. XVIII. Kil l ing a sl ave in the act of revol t, or when the
said sl ave forcibl y resists a l egal arrest, shal l be Justifiabl e Homicide.
43. SEC. XIX. In al l cases, the k il l ing or maiming of a sl ave, or
person of col or, or Indian, in amity with the United States, shal l
be put upon the same footing of criminal ity as the k il l ing or maim
ing of a white person.
.44. SEC. XX. If any person shal l counsel , advise, or direct, a
woman to k il l the chil d she is pregnant, or goes with; and after she
is del ivered of such chil d, she k il l it, every such person, so advising or
directing, shal l be deemed an accessory before the fact to such mur
der, and shal l have the same punishment as the principal .
45. SEC. XXI. The constrained presumption arising from the con
ceal ment of the death of any chil d, that the chil d, whose death is con
ceal ed, was therefore murdered by the mother, shal l not be sufficient
or concl usive evidence to convict the person indicted of the murder of
her chil d, unl ess probabl e proof be given that the chil d was born al ive;
nor unl ess the circumstances attending it shal l be such as shal l
satisfy the minds of the jury that the mother did wil l ful l y and
mal iciousl y destroy and tak e away the l ife of such chil d.
46. SEC. XXII. If any woman shal l conceal or attempt to conceal
the death of any issue of her body, mal e or femal e, which, if it were
born al ive, woul d by l aw be a bastard, so that it may not come to
l ight, whether it was murdered or not, every such mother being con
victed thereof, shal l be punished by fine or imprisonment in the com
mon jail of the county, or both, at the discretion of the court. 3.
47. SEC. XXIII. Mayhem shal l consist in unl awful l y depriving a
person, free or sl ave, of a member, or disfiguring, or rendering it use
l ess. 4.
48. SEC. XXIV. If any person shal l unl awful l y cut out or disa
bl e the tongue ; put out an eye ; sl it or bite the nose, ear, or l ip,
or out or bite off the nose, ear, or l ip ; or castrate ; or cut, or bite off,
or disabl e any other l imb or member of another, with an intention, in
so doing, to maim or disfigure such person; or shal l vol untaril y, mal i
ciousl y, and of purpose, whil e fighting or otherwise, do any of these
acts, every such person shal l be guil ty of Mayhem.
49. SEC. XXV. A person convicted of cutting out the tongue, with
the intention, or vol untaril y or mal iciousl y, as expressed in the pre
ceding section, shal l be punished by confinement and l abor in the
penitentiary for l ife. A person convicted of disabl ing the tongue,
with the intention, or vol untaril y or mal iciousl y, as expressed in the
preceding section, shal l be punished by confinement and l abor in the
penitentiary, for a term not l ess than five years, nor more than fifteen
years.
50. SEC. XXVI. A person convicted of putting out an eye, with the
intention, or vol untaril y or mal iciousl y, as before expressed, in fight
or otherwise, shal l be punished by confinement and l abor in the peni
tentiary, for a term not l ess than two years, nor l onger than five years.
51. SEC. XXVII. A person convicted of putting out the eyes of
another, or the eye of another having but one eye, with a simil ar
intention, or vol untaril y or mal iciousl y, whil e fighting or otherwise,
shal l be punished by confinement and l abor in the penitentiary, for
and during the term of his or her natural l ife.
SEC. XXVIII. A person convicted of sl itting or biting the nose,
ear, or l ip, of another, with the intention, or vol untaril y or mal icious
l y, as before expressed, whil e fighting or otherwise, shal l be punished
by confinement and l abor in the penitentiary, for the term of not l ess
than one year, nor more than three years, or by fine and imprison
ment in the common jail of the county, at the discretion of the court.
53. SEC. XXIX. A person convicted of cutting or biting off the nose,
ear, or l ip of another, with the intention, or vol untaril y or mal iciousl y,
as before expressed, whil e fighting or otherwise, shal l be punished by
confinement and l abor in the penitentiary, for a term not l ess than
two years, nor more than five years.
54. SEC. XXX. A person convicted of the crime of castrating anoth
er, with the intention, or vol untaril y, or mal iciousl y, as before expressed,
whil e fighting or otherwise, shal l be punished with death.
55. SEC. XXXI. A person convicted of wil l ful l y and mal iciousl y in
juring, wounding, or disfiguring the private parts of another, with
the intention aforesaid, whil st fighting or otherwise, which injuring,
wounding, or disfiguring, do not amount to castration, shal l be pun
ished by confinement and l abor in the penitentiary, for a term not l ess
than five years, nor l onger than fifteen years.
56. SEC. XXXII. A person convicted of cutting or biting off, or
disabl ing any l imb or member of another, not hereinbefore designated,
with the intention, or vol untaril y or mal iciousl y, as before expressed,
whil e fighting or otherwise, shal l be punished by confinement and l a
bor in the penitentiary, for a term not l ess than one year, nor l onger
than five years ; or in sl ight and trivial cases, by fine and imprison-
ment.in the common jail of the county, at the discretion of the court.
SEC. XXXIII. Rape is the carnal k nowl edge of a femal e, for
cibl y and against her wil l .
58. SEC. XXXIV. Rape shal l be punished by an imprisonment at
l abor in the penitentiary, for a term not l ess than two years, nor
l onger than twenty years.
59. SEC. XXXV. An Assaul t, with intent to commit a Rape, shal l
be punished by an imprisonment at l abor in the penitentiary, for a
term not l ess than one year, nor l onger than five years.
60. SEC. XXXVI. Sodomy is the carnal k nowl edge and connection,
against the order of nature, by man with man, or in the same unnat
ural manner, with woman. jVb. 6.
61. SEC. XXXVII. The punishment of Sodomy shal l be imprison
ment at l abor in the penitentiary, for and during the natural l ife of
the person convicted of this detestabl e crime.
62. SEC. XXXVIII. Bestial ity is the carnal k nowl edge and con
nection, against the order of nature, by man or woman, in any man
ner, with a beast.
63. SEC. XXXIX. < The punishment of Bestial ity shal l be imprison
ment at l abor in the penitentiary, for and during the natural l ife of
the person convicted of this detestabl e crime. 7.
64. SEC. XL. An attempt to commit Sodomy or Bestial ity shal l
be punished by imprisonment and l abor in the penitentiary, for a term
not l ess than two years, nor more than four years.
65. SEC. XLI. An Assaul t is an attempt to commit a viol ent injury
on the person of another.
66. SEC. XLII. A bare Assaul t shal l be punished by fine or impris
onment in the common jail of the county, at the discretion of the
court.
67. SEC. XLIIL An Assaul t with intent to Murder, by using any
. weapon l ik el y to produce death, shal l be punished by imprisonment
and l abor in the penitentiary, for a term not l ess than two years, nor
l onger than ten years.
68. SEC. XLIV. An Assaul t with intent to Rob, is where any per-
7
son or persons shal l , with any offensive or dangerous weapon or instru
ment, unl awful l y and mal iciousl y assaul t another, or shal l by men
aces, or in and by any forcibl e or viol ent manner, demand any
money, goods, or chattel s of or from any other person or persons, with
intent to rob or commit robbery upon such person or persons. 9.
69. SEC. XLV. A person convicted of an Assaul t with intent to
Rob, shal l be punished by confinement and l abor in the penitentiary,
for a term not l ess than two years, nor more than four years.
70. SEC. XLVI. An Assaul t with an intent to spoil or injure cl othes
or garments, is where any person or persons shal l at any time wil l
ful l y and mal iciousl y assaul t any person or persons, with an intent
to tear, spoil , cut, burn, or deface, and shal l tear, spoil , cut, burn, or
deface, the garments or cl othes of such person or persons ; and every
such offender, being thereof convicted, shal l be punished by a fine not
exceeding two hundred dol l ars, and imprisonment in the common jail
of the county, for a term not l ess than three months, nor more than
one year. 10.
71. SEC. XLVII. Battery is the unl awful beating of another, and
shal l be punished by fine or imprisonment in the common jail of the
county, or both, at the discretion of the court! 11.
SEC. XLVIII. Fal se imprisonment is a viol ation of the personal
l iberty of a free white person or citizen, and consists in confinement
or detention of such person, without sufficient l egal authority. 12.
73. SEC. XLIX. Any person who shal l arrest, confine, or detain a
free white person or citizen, without process, warrant, or l egal author
ity to justify it, shal l be punished by fine and imprisonment in the
common jail of the county, or either, at the discretion of the court.
74. SEC. L. The arrest, confinement, or detention of a free white
person or citizen, by the Warrant, mandate, or process of a magistrate,
being manifestl y il l egal , and showing mal ice and oppression, the said
magistrate shal l be removed from office, and such magistrate, and
al l and every person and persons, k nowingl y and mal iciousl y con
cerned therein, shal l be punished by fine and imprisonment in the
.common jail of the county, or imprisonment and l abor in the peniten
tiary, for any time not l ess than one, nor more than two years, at the
discretion of the court.
SEC. LI. Kidnapping is the forcibl e abduction or steal ing away
of any free white person, or free person of col or, without l awful au
thority, or warrant from this State, or any county thereof, and send
ing or conveying such person beyond the l imits of said State or
county, against his or her wil l . Each and every person who shal l be
, guil ty of this crime, and be thereof l awful l y convicted, shal l be pun-
ished by imprisonment and l abor in the penitentiary, for any time
not l ess than four years, nor l onger than seven years. 13.
76. SEC. LII. If any person shal l forcibl y; mal iciousl y, or fraudu
l entl y, l ead, tak e, or carry away ; or decoy, or entice away, out of the
l imits of this State, .or any county thereof, any free white chil d, under
the age of twel ve years, from its parent or guardian, or against his,
her, or their wil l or wil l s, and without his, her, or their consent or
consents, such person so offending, shal l be indicted for k idnapping,
and on conviction, shal l be punished by imprisonment and l abor in
the penitentiary, for any time not l ess than four, nor more-than seven
years.
* f
77. SEC. LIIL Any person who shal l be guil ty of the act of stab
bing another, except in his own defence, with a sword, dirk , k nife,
or other instrument of l ik e k ind, shal l , on conviction thereof, be pun
ished by fine not exceeding one thousand dol l ars, or imprisonment in
the common jail of the county where such offence may be committed,
not to exceed six months; or fine and imprisonment both, in the dis
cretion of the court; or confinement and l abor in the penitentiary,
not l ess than one year, or more than two years :
That if such stabbing shal l produce death, the offender shal l be guil ty
of murder or mansl aughter, according to the facts and circumstances
of the case ; or if said stabbing shal l not produce death, and the facts
and circumstances show that it was the intention of the person stab
bing to commit the crime of murder, then, and in such case, the of
fender shal l be guil ty of the offence of an assaul t with intent to com
mit murder. / -,
- <- f - <f - .
STATE OP GEORGIA, } . The Grand Jurors, sworn,, chosen, and se-
County. | l ected for the county of wit: Hugh
Lawson, Samuel Fel der, Hugh L. Dennard, Henry Cunyus, Al exan
der Smith, Jesse Smith, Creed T. Woodson, Benjamin Bryan, John S.
Jobson, Cal vin .Leary, Wil l iam H. Mil l er, Joseph M. Cooper, Francis
W. Jobson, Til man Downs, Thomas Grurr, Joel Loftin, Al fred Nel son,
James Crawford, David Cl ark , James Turrentine, Wil l iam H. Tal ton,
Wil l iam P. Mount, .and Warren E. Sanders, in the name and behal f
of the citizens of G-eorgia, charge and accuse of the county
and State aforesaid, with the offence of Murder a for that the said
in the county aforesaid, on the day of in the
year of our Lord one thousand eight hundred and with force
and arms, then and there, in and upon one in the peace
of G-od and said State, then and there being, unl awful l y, fel oniousl y,
wil l ful l y, and of his mal ice aforethought, did mak e an assaul t: and
the said with a certain of the val ue
which he, the said in his hand, then and there, had
and hel d ; the said in and upon the
of him, the said then and
"there, unl awful l y, fel oniousl y, wil l ful l y, and of his mal ice aforethought,
did strik e and thrust, giving to the said then and there,
with the aforesaid, in and upon the
of him, the said mortal wound of the
breadth of and of the depth of of which said
mortal wound, the said on the day of in
the year of our Lord one thousand eight hundred and in the
county aforesaid, died. And so the Jurors aforesaid, upon their oath
aforesaid, do say, that the said him, the said
in manner and form aforesaid, unl awful l y, fel oniousl y, wil l ful l y, and
of his mal ice aforethought, did k il l and murder, contrary to the l aws
of said State, the good order, peace, and dignity thereof.
CHA^Sml JAMES WILLIAMS,
JAMES ) THOMAS EaSH, PrOSCCUtor.
term, 1850.
2.
Mansl aughter: for that the said in the county aforesaid,
on the day of in the year of our Lord one thousand eight
hundred with force and arms, then and there, in and upon
one in the peace of God and said State, then and there
being, unl awful l y, fel oniousl y, and wil l ful l y, did mak e an assaul t;
and that the said with a certain of the val ue of
which he, the said in his hand, then and there,
had and hel d, the said in and upon the
of him, the said then and
there, unl awful l y, fel oniousl y, and wil l ful l y, did strik e and thrust, giv
ing-to the said then and there, with the aforesaid,
in and upon the of him, the
said mortal wound of the breadth of and
of the depth of of which said mortal wound the said
on the said day of in the year of our Lord
one thousand eight hundred and in the county aforesaid, died.
And so the jurors aforesaid, upon their oath aforesaid, do say, that
the said him, the said in manner and form
aforesaid, unl awful l y, fel oniousl y, and wil l ful l y, did k il l ; contrary, & o.
3,
In the name and bshal f of the citizens of Georgia, charge and ac
cuse of the county and State aforesaid, with the
offence of conceal ing the death of her bastard chil d: for that said
in said county, on the day of in the
year of our Lord one thousand eight hundred and being then
and there big with a [ or femal e] chil d, (which chil d was a bas
tard,) was then and there del ivered of said chil d al ive, which said
chil d, then and there, died ; and that the said
being so del ivered of said chil d as aforesaid, did then and there,
unl awful l y attempt to conceal the death of said chil d, by secretl y"
PENAL CODE OP GEORGIA. 89
the dead body of said chil d, so that it might not come to
l ight whether said chil d was murdered or not; contrary, & c.
JVo. 4.
Mayhem : for that the said in said county, on the day
of in the year of our Lord one thousand eight hundred and
with force and arms, in and upon one in the peace of
(rod and said State, then and there being, did mak e an assaul t, and
him, the said did, then and there, beat, wound, and" il l -
treat; and the of him, the said then and there,
unl awful l y, fel oniousl y, vol untaril y, mal iciousl y, and of purpose^did,
then and there, thereby unl awful l y said
of his said with intent in so doing, thereby then and/ ""* *
there the said to Maim contrary, & c.
c
5.
JRape : for that the said in the county aforesaid, on the
day of in the year of our Lord one thousand eight hundred
and with force and arms, in and upon one in
the peace of God and said State, then and there being, viol entl y and
fel oniousl y, did mak e an assaul t, and her, the said
then and there, forcibl y and against her wil l , fel oniousl y did ravish
and carnal l y k now; contrary, & c.
JVo. 6.
of the county and State aforesaid, with the offence of Sod
omy : for that the said in the county aforesaid, on
day of in the year of our Lord one thousand eight hundred and
in and upon one then and there being, fel oniousl y
did mak e an assaul t, and then and there, fel oniousl y, wick edl y, and
against the order of nature, had a venereal affair, and carnal k nowl edge
and connection, with the said and then and there, fe
l oniousl y, wick edl y, and against the order of nature, with the said
did commit, and perpetrate that detestabl e and abomi
nabl e crime of buggery, (not to be named among Christians ; ) contra-
ry, & o. .
* . >t
of the county and State .aforesaid, with the offence of
Bestial ity: for that the said in. the county aforesaid, on
the day of in the .year of our Lord one thousand eight hun-
dred and fifty, with a certain blacJi cow, then and there being, feloni
ously, wickedly, and against the order of nature, had a venereal affair ;
and then and there, feloniously, wickedly, and against the order of
"nature, carnally knew the said black cow ; and then and there, feloni-
ously, wickedly, and against the order of nature, with the said black
cow, did commit and perpetrate that detestable and abominable crime
of buggery, (not to be named among Christians; ) contrary, &c.
No. 8. Assault with Intent to Murder.
In the name and behalf of the citizens of Georgia, charge and ac
cuse John Doe, of the county and State aforesaid, with the offence of
Assault with intent to Murder: for that the said John Doe, in the
county aforesaid, on the first day of May, in the year of our Lord one
thousand eight hundred and fifty, with force and arms, and with a
certain pistol, of the value of one dollar, loaded with gunpowder and
one leaden ball; said pistol being a weapon likely to produce death,
and which he, the said John Doe, in his right hand, then and there,
had and held, in, at, and upon one Richard Roe, in the peace of God
and said State, then and there being, did then and there, willfully, fe
loniously, and of his malice aforethought, make an assault; and the
said pistol, loaded as aforesaid, did then and there, willfully, feloni
ously, and of his malice aforethought, direct, aim, discharge and shoot
off, at, against, towards and upon, the said Richard Roe, then and
there being, with the intent him, the said Richard Roe, then and^
there, willfully, feloniously, and of his malice aforethought, to kill
and murder, to the damage of him, the said Richard Roe ; contra
ry, &c.
J V b. 9. Assault with Intent to Rob.
In the name and behalf of the citizens of Georgia, charge and ac-.
cuse John Doe, of the county and State aforesaid, with the offence of
Assault with intent to Rob : for that the said John Doe, in the county
aforesaid, on the first day of May, in the year of our Lord one thou
sand eight hundred and fifty, with force and arms, in and upon one
Richard Roe, in the peace of G-od and said State, then and there be
ing, with a certain knife, (the same being an offensive weapon,) which
- the said John Doe, in his right hand, then and there, had and held,.
unlawfully and maliciously, did make an assault, and demand from
said Richard Roe, money, with intent to rob said Richard Roe ; con
trary, &c.
J V a 10. Assault with Intent to Injure Clothes.
In the name and behalf of the -citizens of Georgia, charge and ac-
cuse John Doe, of said county and State, with the offence of Assault
with intent to spoil clothes : for that the said John Doe, in the county
aforesaid, on the first day of May, in the year of our Lord one thou
sand eight hundred and fifty, with force and arms, in and upon one
Richard Roe, in the peace of God and said State, then and there
being, did willfully and maliciously make an assault, with intent to
PENAL CODE OF GEORGIA. gi
tgar, spoil ) and deface the of him, the said and
did then and there tear, spoil , and deface
the goods and chattel s of him, the said
contrary, & c. /
11.
In the name and behal f of the citizens Georgia, charge and ac
Assaul t and Battery: for that the said in the county
aforesaid, on day of in the year of our Lord one thou
sand eight hundred and with force and arms, in and upon one
in the peace of God and said State, then and there be-
ing, did mak e an assaul t, and him, the said did then
and there, unl awful l y beat, wound and il l -treat, and other wrongs to
the said then and there did; contrary, & c.
NOTE. -The present is an indictment both for an Assaul t and a Battery, actual l y commit -
ted; and if the prosecutor prove the defendant must be convicted: therefore, the
Compil er deems it unnecessary to present a separate form for an Assaul t onl y.
12.
Fal se Imprisonment: for that the said on the day of
with force and arms, in the county aforesaid, in and upon one
a free white person, in the peace of God and said State, then
and there being, did mak e an assaul t, and him, the stiid
then and there, did beat, wound and il l -treat; him, the said
then and there, unl awful l y and injuriousl y, and against the wil l
of the said and al so against the l aws of said State ; and
without sufficient l egal authority, did imprison and detain in confine
ment there, for a l ong space of time, to wit: for the space of
then next fol l owing, and other wrongs to the said
then and there did, to the great damage of the said
contrary, & c.
13.
In the name and beherl f of the citizens of Georgia, charge and ac
cuse of the county and State aforesaid, with the offence o f
Kidnapping: for that the said in the county a& resaid, on
the day of in the year of our Lord one thousand eight
hundred and with force and arms, in and upon one
a in the peace of God and said State, then and there
being, did mak e an assaul t, and him, the said then and
there, did beat, wound and il l -treat; him, the said did
then and there unl awful l y Abduct and steal away, from said State
and county, and viol entl y and forcibl y, and against the wil l of him,
the said did carry him, the said into the
State of beyond the l imits of the State of Georgia, without
l awful warrant from the State of Georgia, or any
county thereof; contrary, & c.
Stabbing : for that the said in the county aforesaid, on the
and with force and arms, in and upon one in the
peace of God and said State, then, and there being, unl awful l y, wil l
ful l y, mal iciousl y, and fel oniousl y, did mak e an assaul t, and with a
certain which he, the said in his hand, then
and there, had and hel d, in and upon the and in and upon
the of him, the said then and there, unl aw
ful l y, wil l ful l y, mal iciousl y, and fel oniousl y, did stab and cut; said
stabbing and cutting, then and there, not having been done in his, the
said own defence, to the damage of the said
contrary, & c. , A ,.
-. / .-/ ? . ,....-./ ,-. .,.,. ". .-.- t.:. c- -i/ - i- f 1-
CHAPTER VIIL
FIFTH DIVISION.
78. SEC. L Crimes against the habitations of individual s shal l con
sist, of 1st. Arson, and 2d. Burgl ary.
79. SEC. II. Arson is the mal icious and wil l ful burning of the house
or out-house of another. JVo. 1.
80. SEC. III. The wil l ful or mal icious burning, or setting fire to, or
attempting to burn, a house in a city, town, ror vil l age, shal l be pun
ished with death.
81. SEC. IV. The wil l ful and mal icious burning of the dwel l ing-
house of another, on a farm or pl antation, or el sewhere, (not in a city,
town, or vil l age,) shal l be punished by imprisonment and l abor in the
penitentiary, for any term not l ess than five years, nor more than twenty
years. JVb. 2.
82. SEC. V. Setting fire to the dwel l ing-house of another, with in
tent to burn the same, on a farm or pl antation, or el sewhere, (not in a
city, town, or vil l age,) shal l be punished by imprisonment and l abor in
the penitentiary, for a term not l ess than three years, nor l onger than
seven years. j
83. SEC. VI. The wil l ful and mal icious burning of an out-house of
another, such as a barn, stabl e, or any other house, (except the dwel l
ing-house,) on a farm or pl antation, or el sewhere, (not in a city, town,
or vil l age,) shal l be punished by imprisonment and l abor in the pen
itentiary, for any term not l ess than two years, nor more than seven
years.
SEC. VII. Setting fire to an out-house of another, as described
in the preceding section, shal l be punished by imprisonment and l abor
in the penitentiary; for any term not l ess than one year, nor more, than
three years.
85. SEC. VIII. The crime of burning shal l be compl ete where the
house is consumed, or general l y injured.
86. SEC. IX. The offence of setting fire to a house shal l be com
pl ete, when any attempt is made to burn it, though no material injury
is the consequence.
87. SEC. X. Arson in the day-time, (except in a city, town, or vil
l age,) shal l be punished by a shorter period of imprisonment and l abor,
than Arson committed in the night.
88. SEC. XL Arson, which produces the death of any person, shal l
be punished by the death of the person or persons committing the Ar
son. .
89. SEC. XII. Burgl ary is the break ing and entering into the dwel l ing
or mansion-house of another, with intent to commit a fel ony. Al l out
houses contiguous to, and within the curtil age or protection of the man-
^sion-house, shal l he considered as parts of the mansion or dwel l ing-house
y a hired room or apartments, in a publ ic tavern, inn, or boarding-house,
shal l be considered as the dwel l ing-house of the person or persons
occupying and hiring the same. Burgl ary may te committed in the
day or night. JVb. 4.
90. SEC. XIII. Burgl ary in the day-time shal l be punished by impris
onment and l abor in the penitentiary, for any time not l ess than three
years, wor l onger than five years.
91. SEC. XIV. Burgl ary in the night shal l be punished by impris
onment and l abor in the penitentiary, for any time not l ess than four
years, nor l onger than seven years.
1.
STATE OF GEORGIA,) T.he Grand Jurors, sworn, chosen, and sel ected
County. for the County of Houston, to wit: Daniel Adams,
Hugh L. Dennard, Edwin Mounger, Hugh Lawson, Wil l iam H. Mil
l er, John S. Jobson, Til man Downs, Wil l iam H. Tal ton, Francis W.
Jobson, Joseph M. Cooper, John J. Forsyth, Joel Loftin, Cal vin
Leary, Edward O. Jink ins, Thomas B. Al dridge, Sampson B. King,
James Wal l is, John J. Fioyd. Robert Martin, Martin Jink ins, Sil as
Rawl s, Stephen Meadows, and Al fred Nel son, in the name and behal f
ofthe citizens of Georgia, charge and accuse of the county
and State aforesaid, with the offence of Arson: for that the said
an the day of in the year of our Lord one thousand
eight hundred and with force and arms, in the county aforesaid,
mal iciousl y and wil l ful l y did a certain [ or
of in the of in the connty aforesaid,
by setting fire to the same; contrary to the l aws of said State, to the
good order, p.eace and dignity thereof.
term, 1850.
) JAMES WILLIAMS,
EIOHAED ROE,
, [
iTH. )
CHAKLES SMITH. ) - Rl CHAED ROE,
of the county and State aforesaid, with the offence of Arson:
for that the said on the day of in the year of our
Lord one thousand eight hundred and with force and arms, in
the county aforesaid, mal iciousl y and wil l ful l y, did
burn the of in said county, on the pl antation
of said the said not being in a city, town,
or vil l age,
by then and there, setting fire to said con
trary, & c.
3.
of the county and State aforesaid, with the offence of Arson:
for that the said day of in .the year of our
Lord one thousand eight hundred and with force and.arms, in
the county aforesaid, wil l ful l y and mal iciousl y did burn an out
house of the same being a on the pl antation of said
the said not being in a city, town, or vil l age, by set
ting fire to the same ; contrary, & c.
4.
cuse the county and State aforesaid, with the offence of
Burgl ary: for that-the said on day in the
year of our Lord one thousand eight hundred and about the hour
of el even, with force and arms, in the
county aforesaid, the dwel l ing-house of one situate,
fel oniousl y and burgl ariousl y, did break a.nd enter, with intent, the
goods and chattel s of said in the said dwel l ing-house,
then and there being, then and there, fel oniousl y and burgl ariousl y to
steal , tak e, and carry away; contrary, & c.
CHAPTER IX.
SIXTH DIVISION.
92. SEC. I. Robbery is the wrongful , fraudul ent, and viol ent, tak ing
of money, goods, or chattel s, from the person of another, by force or
intimidation, without the consent of the owner. 1.
93. SEC. II. Robbery, by open force and viol ence, shal l be punished
by imprisonment and l abor in the penitentiary, for any time not l ess
than four years, nor l onger than seven years.
"94. SEC. III. Robbery, by intimidation, or without using force and
viol ence, shal l be punished by imprisonment and l abor in the peni
tentiary, for any time not l ess than two years, nor l onger than five
years.
95. SEC. IV. Larceny, or theft, as contradistinguished from robbery
by viol ence, force, or intimidation, shal l consist of 1st. Simpl e Theft
or Larceny 2d. Theft or Larceny from the person 3d. Theft or
Larceny from the house 4th. Theft or Larceny after a trust or con
fidence has been del egated or reposed.
96. SEC. V. Simpl e Theft or Larceny is the wrongful and fraudul ent
tak ing, and carrying away, by- any person, of the personal goods of
another, with intent to steal the same.
97. SEC. VI. Horse-steal ing shal l be denominated simpl e l arceny:
and the term " Horse" shal l incl ude Mul e and Ass, and each animal
of both sexes, and without regard to the al terations which may be
made by artificial means.
. 98. SEC. VII. The offence shal l , in al l cases, be charged as simpl e
l arceny, but fhe indictment shal l designate the nature, character, and
sex of the animal , and give some other description by which its iden
tity may be ascertained.
99. SEC. VIII. The steal ing of a horse, mul e, or ass, shal l be punished
by confinement and l abor in the penitentiary, for any time not l ess than
two years, nor l onger than five years and the steal ing of more than
one of these animal s, at the same time, shal l be punished by confine
ment and l abor in the penitentiary, for any time not l ess than six years,
nor l onger than fourteen years. JVo.
100. SEC. IX. Cattl e-steal ing shal l be denominated simpl e l arceny, and
be so charged in the indictment, and shal l incl ude the theft or l arceny
of any horned animal or animal s, and al l animal s having the hoof
cl oven, except hogs. 3. ;
101. SEC. X. The indictment shal l sufficientl y describe the animal or
animal s fal l ing under the description of cattl e in the preceding section,
so that it, or they, may be ascertained and identified by the owner or
owners thereof.
102. SEC. XI. The steal ing of one or more animal s, fal l ing under the
above description of cattl e, if the val ue does not exceed the sum of
twenty dol l ars, shal l be punished by fine and imprisonment in the com
mon jail of the county, for any time not l onger than six months, at the dis
cretion of the court but, if the val ue of the animal or animal s stol en,
exceeds the sum of twenty dol l ars, the person convicted shal l be
punished by imprisonment and l abor in the penitentiary, for any time
not l ess than one year, nor l onger than four years.
103. SEC. XII. The steal ing of a hog or hogs is simpl e l arceny, and
shal l be so charged in the indictment, and the hog or hogs so
described, that it, or they, may be identified by the oij/ ner.
104. SEC. XIII. The punishment of hog-steal ing, if the hog or hogs
stol en do not exceed the val ue of twenty dol l ars, shal l be fine and im
prisonment, in the common jail of the county, for any time not exceed
ing six months, at the discretion of the court but, if the val ue of the
hog or hogs stol en exceeds the sum of twenty dol l ars, the person con
victed shal l be punished by imprisonment and l abor in the peni
tentiary, for any time not l ess than one year, nor l onger than three
years.
105. SEC. XIV. Al l other domestic animal s which are fit for food, may
be subjects of simpl e l arceny and any person or persons, who shal l
steal any such animal or animal s, shal l be punished by fine and im
prisonment, or fine or imprisonment in the common jail of the county,
at the discretion of the court.
106. SEC. XV. If any person or persons shal l mark and brand, or mark
or brand, any animal or animal s, before mentioned ; or al ter, or change
the mark or mark s, or brand or brands, of any such animal , being the
property of another, with an intention to cl aim or appropriate the same
to his or her own use, or to prevent identification by the true owner or
owners thereof, the person or persons so offending shal l be guil ty of a
misdemeanor, and, on conviction, shal l suffer the same punishment
as is infl icted for the theft or l arceny of the said animal or animal s.
PENAL CODE OF GEORGIA, 97
107. SBC. XVI. It any person shal l tak e and carry away any paper,
document, deed, wil l , or other writing, rel ating to real or personal estate,
with an intention to impair, prevent, or render difficul t the establ ishment
of a titl e to real or personal estate ; or mutil ate, cancel , burn, or other
wise destroy said paper, document, deed, wil l , or other writing, with the
intention aforesaid, such person shal l be guil ty of simpl e l arceny,, and
be> punished by imprisonment and l abor in the penitentiary, for any time
not l ess than one year, nor l onger than three years.
108. SEC. XVII. If any person shal l tak e and carry away any bond,
note, bank -bil l , or due-bil l , or paper or papers, securing the payment of
money, or other val uabl e thing ; or any receipt, acquittance, or paper or
papers, operating as a discharge for the payment of money, or other
thing bel onging to another, with intent to steal the same, such person
shal l be guil ty of simpl e l arceny, and be punished by imprisonment and
l abor in the penitentiary, for any time not l ess than one year, nor l onger
than four years. ^
109. SEC. XVIII. Theft or Larceny may be committed of any thing
or things, which, in the l anguage of the l aw, savors of the real ty, or
of any fixture or fixtures ; and the punishment shal l be fine or im
prisonment in the common jail of the county, or both, at the discretion
of the court.
110. SEC. XIX. Pl undering or steal ing any articl e of val ue from a
vessel in distress, or from a wreck , or any other vessel , boat, or water-
craft, within the. jurisdictional l imits of this State, is simpl e l arceny,
and shal l be punished by imprisonment and l abor in the peniten
tiary, for any time not l ess than one year, nor l onger than five
years.
111. SEC. XX. The steal ing of a sl ave is simpl e l arceny, and shal l
be punished by imprisonment and l abor in the penitentiary, for any time
not l ess than four years, nor l onger than ten years.
12. SEC. XXI. Any person who shal l , by any enticement, or by giving
a pass, or by any other means, induce a sl ave to run away from his or her
owner, with the intention to sel l said sl ave, or otherwise to appropriate
the said sl ave to his (the offender s) own use", or the use of any other
person, and thereby to deprive the owner of the use and services of
said sl ave, shal l be guil ty of simpl e l arceny, and, on conviction, shal l
be punished by imprisonment and l abor in the penitentiary, for any time
11.3. SEC. XXII. Al l simpl e l arcenies or thefts, of the personal
goods of, another, not mentioned, or particul arl y designated in this
Code, shal l be punished by imprisonment in the common jail of the
county, for any time not l onger than one year: the thing or
things stol en do not exceed the val ue of twenty dol l ars ; but if they
do exceed in val ue the sum of twenty dol l ars, then the person con
victed of such l arceny shal l be punished by confinement and l abor in
the penitentiary, for any time not l ess than one year, nor l onger than
five years.
114. SEC. XXIII. Theft or l arceny from the person, as distinguish
ed from robbery, before described, is the wrongful and fraudul ent
tak ing of money, goods, chattel s, or effects, or any articl e of val ue,
from the person of another, privatel y, without his k nowl edge, in any
pl ace whatever, with intent to steal the same. 5.
115. SEC, XXIV. A person convicted of this cl ass of l arceny,
shal l be punished by imprisonment and l abor in the penitentiary, for
any time not l ess than two years, nor l onger than five years ; and if
the offence was committed in a publ ic pl ace, or where many persons
are assembl ed, it shal l be considered as greatl y adding to the crimi
nal ity of the act, and the punishment shal l be increased in consequence
thereof, but in no case to exceed years.
116. SBC. XXV. Any sort of secret, sudden, or wrongful tak ing
from the. person, with the intent described in the twenty-third section.
of this division, without using intimidation, or open force or viol ence,
shal l be within this cl ass of l arceny, though some smal l force be used
by the thief to possess himsel f of the property: there be no
resistance by the owner, or injury to his person, and al l the circum
stances of the case show that the thing was tak en, not so much
against, as without the consent of the owner.
117. SEC. XXVI. Larceny from the House, is the break ing, or enter
ing any house, with an intent to steal ; or after break ing, or entering
said house, steal ing therefrom any money, goods, chattel s, wares,
merchandise, or any thing or things of val ue, whatever. JVb." 6.
118. SEC. XXVII. Any person who, by day or night, shal l , in any
dwel l ing-house, store, shop, or warehouse, or any other house or
buil ding, privatel y steal any goods, money, chattel s, wares, or mer
chandise, or any other articl e or thing of val ue, shal l be punished by
imprisonment and l abor in the penitentiary, for any time not l ess than
two years, nor l onger than five years.
119. SEC. XXVIII. Any person entering a dwel l ing-house, store,
shop, or warehouse, or any other house or buil ding, with intent to steal ,
but who is detected and prevented from so doing, shal l be punished
than one year, nor l onger than three years.
120. SEC. XXIX. Any person break ing any dwel l ing-house, store,
shop, or warehouse, or any other house or buil ding, with intent to steal ,
but who is detected and prevented from effecting such intention, shal l
be punished by imprisonment and l abor in the penitentiary, for any
time not l ess than one year, nor l onger than three years; but if the
owner of said buil ding, or any other person, be in the house at the
time of such break ing, and be put in fear, then the said offender shal l
time not l ess than two years, nor l onger than five years.
121. SEC. XXX. Any person break ing and entering any house or
buil ding, (other than a dwel l ing-house or its appurtenances,) with in
tent to steal , but who is detected and prevented from carrying such
intention into effect, shal l be punished by imprisonment and l abor in
the penitentiary, for any time not l ess than two years, nor l onger than
four years. And. any person break ing and entering any such house
or buil ding, and steal ing therefrom any money, goo.ds, chattel s, wares,
or merchandise, or any other thing pr articl e of val ue, shal l be pun
ished by imprisonment and l abor in the penitentiary, for any time not
l ess than three years, nor l onger than five years. But if such break
ing, entering, and steal ing be accompanied by any viol ence, menace,
or threat, or by al arming and putting in fear any person in said house,
then the imprisonment and l abor shal l not be l ess than four years.
122. SEC. XXXI. Any house, buil ding, or edifice, bel onging to the
Sl ate, or a corporate body, or appropriated to publ ic worship, .or any
other publ ic purpose, shal l be tak en and considered as a house or
buil ding within which this cl asj? of l arceny may be committed.
123. SEC. XXXII. Any person entering and steal ing from any hut,
tent, booth, or temporary buil ding, shal l be punished bv imprisonment
and l abor in the penitentiary, for any time not Jess than one year, nor
l onger than four years.
124. SEC. XXXIII. Any officer, servant, or other person, empl oyed
in any publ ic department, station, or office of government of this State,
or any county, town, or city of this State; or in any bank or other
corporate body in this State ; or any president, director, or stock
hol der, of any bank or other corporate body in this State, who shal l
embezzl e, steal , secrete, or fraudul entl y tak e and carry away any
money, gol d or sil ver bul l ion; note or notes; bank -bil l or bil l s; bil l
or bil l s of exchange ; warrant or warrants; bond or bonds ; deed or
deeds ; draft or drafts ; check or check s ; security or securities, for the
payment of money or del ivery of goods, or other things ; l ease,
wil l , l etter of attorney, or other seal ed instrument; or any certificate,
or other publ ic security of the State, for the payment of money ; or
.any receipt, acquittance, rel ease, or discharge of any debt, suit, or
other demand, or any transfer or assurance of money, stock , goods,
chattel s, or other property; or any day-book or other book of accounts;
or any agreement or contract whatever; such person, so offending,
shal l , on conviction, be punished by imprisonment and l abor in the
penitentiary, for any time not l ess than two years, nor l onger than
seven years. JVb. 7.
SEC. XXXIV. If any factor, commission merchant, warehouse
.k eeper, wharfinger, wagoner, stage-driver, or other common carrier,
on l and or water; or any other bail ee, with whom any money, bank -
bil l or bil l s ; note or notes ; bil l or bil l s of exchange ; draft or drafts ;
check or check s ; bond or bonds ; or other security or order, for the
payment of money, or other val uabl e thing ; or any cotton, corn, or
other produce, goods, wares, or merchandise; or any other thing or
things of val ue, are or may be intrusted, or deposited, by any person,
shal l fraudul entl y convert the same, or any part thereof, or the pro
ceeds of any part thereof, to his or her own use; or otherwise dis
pose of the same, or any part thereof, without the consent of the
owner, or bail or, and to his or her injury, and without paying to such
owner or bail or, on demand, the ful l val ue or mark et price thereof;
or if, after a sal e of any of the said articl es, with the consent of the
owner or bail or, such person shal l fraudul entl y, and without the con
sent of the said owner or bail or, convert the proceeds thereof, or any
part of the said proceeds, to his or her own use, and fail or refuse to
pay the same over to such owner or bail or, on demand; every such
person so offending shal l , on conviction, be punished by imprisonment
and l abor in the penitentiary, for any time not l ess than two years,
nor l onger than seven years. JVo. 8.
126. SEC. XXXV. If any person empl oyed as a cl erk , agent, or
servant, pr in any other character or capacity, in any store, ware
house, counting-room, exchange office, shop, or other pl ace of trade,
traffic, or exchange, where, from the nature of the business or empl oy
ment, it is necessary or usual to intrust to such person any goods,
wares, or merchandise, cotton, corn, or other produce, money, notes,
bil l s of exchange, bank notes, check s, drafts, orders for payment of
money, or other val uabl e thing, or any other thing or articl e of val ue,
shal l fraudul entl y tak e and carry away, or convert to his own use, or
otherwise dispose of any of the said goods, wares, or merchandise,
cotton, corn, or other produce, money, notes, bil l s of exchange, bank
notes, check s, drafts, orders, or other thing or things of val ue, thus in
trusted to him, or committed to his charge, to the injury, and without
the consent of the owner thereof, or person thus intrusting him ; such
and l abor in the penitentiary, for any time not l ess than one .year,
nor l onger than five years. JVb. 9.
127. SEC. XXXVI. If any person who has been intrusted by
another with any money, note or notes, bil l or bil l s of exchange, bond
or bonds, check or check s, draft or drafts, bank note or notes, order or
orders for the payment of money, or other val uabl e articl e or thing.
or any cotton, corn, or other produce, goods, wares, or merchandise,
horse or horses, mul e or mul es, cattl e, sheep, goats, hogs, or other
articl e or articl es of val ue, for the purpose of appl ying the same for
the use or benefit of the person to whom they bel ong, or the person
del ivering them, or any of them, or for the purpose of col l ecting the
money, or other thing due on any such note or notes, bil l or bil l s of
exchange, bond or bonds, check or check s, draft or drafts, bank note
or notes, or order or orders, and paying the proceeds thereof oyer to
the owner or other person, so intrusting or del ivering the same, or for
the purpose of sel l ing such cotton, corn, or other produce, goods, wares,
or merchandise, horse or horses, mul e or mul es, cattl e, sheep, goats,
hogs, or other val uabl e articl e, and paying over the proceeds of such,
sal e to the owner, or other person, so intrusting or del ivering the said
articl e or articl es, shal l fraudul entl y convert the said articl e or arti
cl es, or any of them, or the money, or other thing, arising from the
sal e or col l ection of any of them, to his or her own use, or shal l other
wise dispose of them, or any of them, to the injury, and without the
consent of the owner, or other person so intrusting or del ivering them,
and without paying to such owner or person intrusting or del ivering
the same, the ful l val ue or mark et price thereof; such person so oifendr-
ing shal l , on conviction, be punished by imprisonment and l abor in the
penitentiary, for any.time not l ess than one year, nor l onger than five
years. JVo. 10.
128. SEC. XXXVII. Any president, director, or other officer of
any chartered bank in this State, who shal l viol ate, or be concerned in
viol ating any provision of the charter of such bank , shal l be guil ty of
a high misdemeanor, and on indictment and conviction thereof, shal l
term not l ess than one year, nor l onger than ten years. JVo. 11.
129. SEC. XXXVIII. Every president, director, or other officer of
any chartered bank in this State, shal l be deemed to possess such a
k nowl edge of the affairs of the corporation, as to enabl e him to deter
mine whether any act, proceeding, or omission, is a viol ation of the
charter. And every president and director who shal l be present at a
meeting when such viol ation shal l happen, shal l be deemed to have
concurred therein, unl ess he shal l , at the time cause, or in writing, re
quire his dissent therefrom, to be entered at l arge on the minutes of
the board. And every president and director not present at any meet
ing when such a viol ation shal l tak e pl ace, shal l neverthel ess be deemed
to have concurred therein, if the facts constituting such viol ation ap
pear on the book s of the corporation, and he remain a director for three-
months thereafter, and do not within that time cause, or in writing, re
quire his dissent from such il l egal proceeding, to be entered at l arge
on the minutes of the board.
SEC. XXXIX. Every insol vency of a chartered bank , or re
fusal , or fail ure to redeem its bil l s, on demand, either with specie, or
current bank bil l s, passing at par val ue, shal l be deemed fraudul ent,
and the president and directors may be several l y indicted for a misde
meanor, and on conviction, shal l be punished by imprisonment and
l abor in the penitentiary, for any time not l ess than one year, nor,
l onger than ten years : that the defendant may
repel the presumption of fraud, by showing that the affairs of the bank
"have been fairl y and l egal l y administered, and general l y with the same
care and dil igence, that agents receiving a commission for their ser
vices, are required and bound by l aw to observe; and upon such
showing, the jury shal l acquit the prisoner. 135.
8
102 PENAL CODE OF . GEORGIA.
131. SEC. XL. Al l conveyances, assignments, transfers of stock ,
effects, or other contracts, made by any bank in contempl ation of in
sol vency, or after insol vency, except for the benefit of al l the creditors
and stock hol ders of said bank , shal l , unl ess made to an innocent pur
chaser for a val uabl e consideration, and without k nowl edge or notice
of the condition of said bank , be fraudul ent and void. And the presi
dent, directors, and other officers of said bank , or any of them, mak
ing, or consenting to the mak ing, of such conveyance, assignment,
transfer or contract, whether the same be made to an innocent pur
chaser, or any other, shal l several l y be guil ty of a misdemeanor.; and
on indictment and conviction thereof, shal l be punished by imprison
ment and l abor in the penitentiary, for any time not l ess than four
years, nor l onger than ten years.
132. SEC. XLI. If any president, director, officer, or agent of any
bank , shal l , by himsel f or agent, or in any other manner, either for him"
sel f, or for the bank , directl y or indirectl y, purchase, or be Interested
in the purchase, of any bil l or check , or other evidence of debt, issued
by the said bank , for a l ess sum than shal l appear then due on the face
thereof, such person so offending shal l be guil ty of,a misdemeanor,
and on indictment and conviction thereof, shal l be punished by im
prisonment and l abor in the penitentiary, for any time not l ess than
four years, nor l onger than ten years.
1.33. SEC. XLII. No dividends shal l be made by any bank , except
from the net profits arising from the business of the corporation ; and
if any president and directors shal l decl are, or pay over any dividend
from the capital stock , or any other funds of the bank , except the net
profits thereof, such president and directors shal l several l y be guil ty
of a .misdemeanor, and on indictment and conviction thereof, shal l be
punished by confinement and l abor in the penitentiary, for any time
not l ess than one year, nor l onger than ten years.
134. SEC. XLIII. If the president and directors of any bank , or
any of them, shal l use and appl y any part of the capital stock of such
bank to the purchase of shares of its own stock , such president and
directors shal l be guil ty of a misdemeanor, and on indictment and
conviction thereof, shal l be punished by imprisonment and l abor in the
penitentiary, for any time not l ess than one year, nor more than ten
years.
135. .SEC, XLIV. The Thirty-ninth Section of the Sixth Division oV
this Code, in rel ation to the insol vency of any bank , or the fail ure 01
refusal of any bank to pay its bil l s in specie or current bank notes,
shal l not operate on any bank which has heretofore become insol vent
or unabl e to pay its bil l s. And no future fail ure or refusal to pay its
bil l s, shal l be deemed a viol ation of said section :
that said bank shal l not have resumed specie payment between the
PENAL CODE, OF GEORGIA. 1 03
time of its becoming insol vent, and of its future fail ure or refusal to
redeem its bil l s with specie or current bank notes. 129.
136. SEC, XLV. If any person shal l dig, or tak e and carry away,
from the l and of another, any gol d, bul l ion, sil ver, or other metal l ic
substance, with intent to appropriate the same to his or her own use,
without having previousl y obtained permission of the owner of such
l and so to do, he or she shal l be guil ty of a misdemeanor ; and upon
conviction, shal l be punished with fine or imprisonment in the common
jail , or both, at the discretion of the court. 12.
137. SEC. XLVI. If any person shal l erect or use any machinery,
for the purpose of procuring gol d, sil ver, or other metal s, upon the
l and of any other, with intent to appropriate the same to his or her
own use, or for any other person whatsoever, without the permission
of the owner of the l and, or his agent, he or she shal l be guil ty of a
high misdemeanor; and upon conviction, shal l be punished with fine
or imprisonment in the common jail , or both, at the discretion of the
court. 13.
SEC. XLVII. Any cl erk of the inferior court or county treasu
rer, of any county in this State, who shal l divert, misappl y, embezzl e, or
conceal any money bel onging to the county of which he is such cl erk
or county treasurer as aforesaid, with intent to appropriate the same
to his own use, shal l be guil ty of a misdemeanor, and upon conviction,
shal l be punished with fine or imprisonment in the common jail of the
county, or both, at the discretion of the court the l atter not to ex
ceed six months, and shal l moreover be removed from office; and on
the trial of such defendant, proof of his having fail ed or refused to
mak e an exhibit to the grand jury of the county of which he is such
cl erk or county treasurer, at the Superior Court first hel d in each
year, in said county, unl ess prevented by providential cause, a ful l
and compl ete statement of the county funds, as is now required by
l aw, received by him during the preceding year, containing a detail ed
account of al l sums of money paid out by him, the time when paid,
and the person to whom paid, shal l be deemed prima facie evidence
of.guil t, and throw the burden of proof on the defendant; and that
any bil l of indictment which may be preferred under this section, shal l
be hel d sufficientl y technical , that shal l describe the offence in the
words thereof; and that the prosecutor, on the trial of said bil l of in
dictment, shal l not be required to identify the money, coin, bank bil l or
bil l s set forth in said indictment, as the money, coin, bank bil l , or
bil l s diverted, misappl ied, embezzl ed, or conceal ed, by said defendant;
but, in al l cases, an al l egation in the indictment, that any sum of cur
rent money has been received by said defendant, bel onging to said
county, and that the defendant fail s or refuses to account for the same,
and proof of such al l egation on the trial , shal l be sufficient to author
ize a conviction, unl ess the defendant shal l be abl e to show a l egal
.expenditure or disposition of said county funds. 14.
104 * PENAL CODE OP GEORGIA.
. jVb. 1.-
STATE OF GEORGIA, J. The grand jurors sworn, chosfen, and sel ected
County. for the county of to wit: Hugh Law-
son,.Nathan G. Lewis, Samuel Fel der, Joseph M. Cooper, Jesse Smith,
Henry Cunyus, Al exander Smith, Creed T. Woodson, Daniel Adams,
Benjamin Bryan, Jacob Fudge,^ James A. Pririgl e, Joel Loftin, Cal vin
Leary, Al fred Nel son, Wil l iam H. Mil l er, John S. Jobson, Til man
Downs, Sampson B. King, Thomas B. Al ien, Cal vin W. Fel der, Edwin
Mounger, and Edward O. Jenk ins, in the name and behal f of the citi
zens of Georgia, charge and accuse of the county and State
aforesaid, with the offence of Robbery : for that the said in
the county aforesaid, on day of in the year of our Lord
one thousand eight hundred and with force and arms, in and
upon one in the peace of God and said State, then and
there being, wrongful l y, fraudul entl y, and viol entl y, did mak e an as
saul t, and him, the said
then and there, fel oniousl y did put; and then and there pieces of
the current coin of said State, cal l ed of the val ue of
dol l ars, of the goods and chattel s of said from the person
of the said by force, wrongful l y, fraudul entl y, and viol ent
l y, did, without the consent of said tak e and carry away,
with intent then and there to steal the same ; contrary to the l aws of
said State, the good order, peace, and dignity thereof.
term, 1850.
Witness, JAMES WILLIAMS,
f RICHARD ROE,
JVb. 2.
cuse of the county and Stfiite aforesaid, with the offence of
Simpl e Larceny : for that the said in the county aforesaid,
on the day of in the year of our Lord, one thousand eight
hundred and with force and arms,
of the val ue of hun
dred dol l ars, of the goods and chattel s of one then and.
there, being found, then and there, wrongful l y and fraudul entl y, did
tak e andcarry away, with intent then and there to steal said
contrary, & c.
3.
In the name and behal f of the .citizens of Georgia, charge and
accuse of the county and State aforesaid, with the offence
of Simpl e Larceny : for that, the said in the county afore
said, on the day of the year of our Lord one thousand
eight hundred and v with force and arms, owe
mark ed with a and in
of. the val ue of dol l ars ; of the per
sonal goods-and private property of one then and there*
being found, then and there did wrongful l y, and fraudul entl y, tak e
and carry away, with intent to steal the same ; contrary, & c.
.._ ... PENAL CODE OF GEORGIA. , 10&
4.
In the name and behal f of the citizens of Geo rgia, charge and ac
cuse of said county and State, with the offence of Simpl e
Larceny: for that the said in the county aforesaid, on the
and with force and arms, Hog, to wit, a mark ed with
a of the val ue dol l ars ; of the
goods and chattel s of one then and there being found,
then and there, did wrongful l y and fraudul entl y tak e ancl carry away,
with intent to steal the same ; contrary, & c.
5.
In the name-and behal f of the citizens of Georgia, charge and ac
Larceny from the Person: for that the said in the county
aforesaid, on day of in the year of our Lord one thou-
sand eight hundred with force and arms, of
the val ue of dol l ars, l awful currency of said State; of the goods
and chattel s of said then and there being found, did then
and there, tak e from the person of said privatel y and
without his k nowl edge, with intent to steal the same; the said
being then and there, #c.,
as
contrary, & c.
6.
Larceny from the House: for that the said in the county
aforesaid, s on the day of in the year of our Lord, one thou
sand eight hundred with force and arms, two pairs of pan
tal oons, of the val ue dol l ars, being the goods and chattel s of
one the him, the said in
the county aforesaid, being found; him, the said then and
there, from said fel oniousl y, wrongful l y, fraudul entl y,:
privatel y, and with intent to steal .the said then
and there, did tak e and carry away ; him, the said Doe, then and
there having said with intent to steal ; con
trary, & c.
V^; " .
;
Larceny after a Trust had been Del egated : for that the said
in the .county aforesaid, on the day in the year of our
Lord one thousand eight hundred being then and there em
pl oyed as of the " did, by virtue of his said
office of as aforesaid, then and there, and whil st he was so
empl oyed as aforesaid, on the day and year aforesaid, with force and
1 06 PENAL CODE OF GEORGIA:
arms, fraudul entl y a l arge amount of money bel onging to said
" to wit: the sum of dol l ars; and so the
jurors aforesaid, upon their oath aforesaid, do say, that said
then and there, in manner and form aforesaid, the said the prop
erty of the said " from the said "
.fraudul entl y, did steal , tak e, and carry away; contrary, & c.
8.
Larceny after a Trust had been Del egated : for that the said
hundred and in the county aforesaid, was to
having been intrusted with of the val ue of
hundred dol l ars, of the goods and chattel s of said af
terwards, to wit, on the day and year aforesaid, whil st he was such
to the said in the county aforesaid, with force and
arms, said of the val ue aforesaid, then and there
being found, in the possession and power of said as
aforesaid, then and there, did fraudul entl y convei-t the same to his own
use, without the consent of the said to the injury of the
said and without paying to said on demand
made by said on said on the day and year
aforesaid, in the county aforesaid, the ful l val ue of said
contrary, & c.
9.
Larceny after a Trust had been Del egated: for that the said
on the day of in the year of our Lord, one thousand eight
hundred and in the county aforesaid, was Cl erk in the store of
and that the said afterwards, and
whil st he was such to the said as aforesaid; on the
day and year aforesaid ; in the county aforesaid ; with force and arms,
of the current coin of said State, cal l ed of the val ue
of dol l ars, to him intrusted by the said his
then and there being found, then and there, fraudul entl y, to the injury
of said and without the consent of the said
did tak e and carry away; contrary, & c.
10.
In the name and behal f the citizens of Georgia, charge and accuse
of the county and State aforesaid, with the offence of Lar
ceny after a Trust had been Del egated: for that the said on
day of in the year of our Lord one thousand eight hun
dred in the county aforesaid, was intrusted by
with of the current coin of said State, cal l ed
the val ue of dol l ars, for the purpose of appl ying
the said for the use and. benefit of said
did, on the day and year aforesaid, in the county aforesaid, with
PENAL CODE OF GEORGIA. 1 07
. force and arms, fraudul entl y convert the said
to his own use, to the injury, and without the consent of the said
and without paying to the said the ful l
[ or mark et] price thereof; contrary, & c.
11
In the name-and behal f of the citizens of Georgia, charge and accuse
the county and State aforesaid, with the offence of High
Misdemeanor : for that the said on the day of in
the year of our Lord eighteen hundred and in the county afore
said, being as the case may be,)
of the " said being then and there
one of the chartered Bank s of said State, which charter is in the words
and figures fol l owing, to wit:
with, force and arms, did then and there, by virtue of his said office of
of said " k nowingl y and fraudul entl y vio
l ate the provision of the section of said charter of said
," in this, to wit:
contrary to the provision of said section of said
charter of said " and contrary, & c.
NOTE. A. number of other indictments might be formed under the very stringent enact
ments of this Division, against bank officers, stock hol ders, < fec., but they are deemed unne
cessary: the preceding form, with suitabl e al terations, wil l answer in each case. The
principal inducement the Compil er has for decl ining to submit other forms of indictments
here is, that it is probabl e they wil l never be required; at l east, at present the probabil ity
of such requirement is very remote.
12.
the county and State aforesaid, with the offence of Mis
demeanor: for that tho said on day of in the
year of our Lord eighteen hundred in the county aforesaid,
with force and arms, did enter upon a certain wit: num
ber in district of the county of in the
State aforesaid, (said being then and there the property of
said having previousl y obtained permission
from said and did, then and there, dig, tak e, and carry
away from said as
the case may be,) with intent to appropriate the same to his own use ;
contrary, & c.
13.
of the county and State aforesaid, with the offence of High
Misdemeanor : for that the said in the county aforesaid, on
day in the year of our Lord one thousand eight hundred
and with force and arms, did enter upon number
in district of the county of in the
State aforesaid, (said being then and there the property of
and erect machinery upon said for
the purpose of procuring with intent, then
and there, to appropriate said to his own use, without the permis
sion of the said or his agent; contrary, & c.
14.
of the county aforesaid, with the offence of
Misdemeanor: for that the said as afore
said, on the day of in the year of our Lord one thousand
eight hundred and in the county aforesaid, being then and there
of said county of l awful l y appointed, and
having then and there, in his power and possession, the moneys be
l onging to said county, to wit, dol l ars, current money of
said State, with force and arms, did then and there (or em
bezzl e or conceal , as the case may be,) dol l ars of the
money of the county aforesaid, with intent then and there to appropriate
the same to his own use; he,the said ,/ oAn Doe, as
aforesaid, having then and there fail ed and refused to account for said
money, when l awful l y cnl l ed upon so to do; contrary, & c.
CHAPTER X.
SEVENTH DIVISION.
139. SEC. I. If any person or persons shal l fal sel y and fraudul entl y
mak e, forge, al ter, or counterfeit, or cause or procure to be fal sel y and
fraudul entl y made, forged, al tered, or counterfeited, or wil l ingl y aid or
assist in fal sel y and fraudul entl y mak ing, forging, al tering, or counter
feiting any audited certificate, or other certificate issued, or purporting
to have been issued by the Auditor-General , or other officer authorized
to issue the same, or any order or warrant issued, or purporting to have
been issued by the Governor, or the President of the Senate, or Speak er
of the House of Representatives of the General Assembl y of this
State ; or by any officer of the government, or authorized person, on
the treasury of said State, for any money or other thing, or any warrant
for l and issued, or purporting to have been issued, by the justices of
any l and court, or by any other tribunal , officer, or person authorized
to do -so, within this State; or any certificate, draft, warrant, or order,
from any of the publ ic officers of this State, issued, or purporting to
have been issued under, or by virtue of an act or resol ution of the
General Assembl y of this State ; or any certificate, draft, order, or
warrant, issued, or purporting to have been issued by any court officer,
or person authorized to draw on the treasury of this State, * >r for pub
l ic money, wherever the same may be deposited; or any deed, wil l ,
testament, bond, writing obl igatory, bil l of exchange, promissory note,
or order for money, or goods, or other things of val ue; or any acquit
tance or receipt; or any endorsement or assignment of any bond,
writing obl igatory, bil l of exchange, promissory note, or order for
money or goods, or other thing or things of val ue; with intent to de
fraud the said State, publ ic officer or officers, courts, or any persons
authorized, or any person or persons whatever; or shal l utter or pub
l ish as true, any fal se, fraudul ent, forged, al tered, or counterfeited
audited certificate, Governor s, President s, Speak er s, publ ic officer s,
court s, or dul y authorized person s certificate, draft, warrant or order,
so as aforesaid issued, or purporting to have been issued, or any deed,
wil l , testament, bond, writing obl igatory, bil l of exchange, promissory
note, or order for money, or goods, or other thing or things of val ue,.
or any acquittance or receipt for money or goods, or other thing or
things of val ue; or any endorsement or assignment of any bond,
writing obl igatory, bil l of exchange, promissory note, or order for
money or goods, or other thing or things of val ue, with intent to defraud
the said State, publ ic officers, courts, or persons authorized, as aforesaid,
or any other person or persons whatsoever, k nowing the same to be
so Fal sel y and fraudul entl y made, forged, al tered, or counterfeited ;
every such person so offending, and being thereof l awful l y convicted,
shal l be punished by imprisonment and l abor in the penitentiary, for any
time not l ess than four years, nor l onger than ten years.
140. SEC. II. If any person shal l fal sel y and fraudul entl y mak e,
forge, or counterfeit, or be concerned in the fal se and fraudul ent
mak ing, forging, and counterfeiting of any gol d, sil ver, or copper coin,
which now is, or shal l be passing, or in circul ation within this State;
or shal l fal sel y and fraudul entl y mak e, or be concerned in the fal se and
fraudul ent mak ing of any base coin of the l ik eness or simil itude of
any gol d, sil ver, or copper coin, which now is, or shal l be passing, or
in circul ation within this State; or shal l fal sel y and fraudul entl y utter,
publ ish, pay, or tender in payment, any such counterfeit and forged
coin of gol d, sil ver, or copper, or any base coin, k nowing the same to
be forged, or counterfeited, or base ; or shal l aid or abet, counsel , or
command the perpetration of either of the said crimes, such person
penitentiary, for any time not l ess than four years, nor l onger than ten
years.
141. SEC. III. If any person shal l fal sel y and fraudul entl y mak e
sign, or print, or be concerned in the fal se and fraudul ent mak ing,
signing, or printing any counterfeit note or bil l of any bank of this State,
or the note or bil l of any incorporated bank , whose notes or bil l s are in
circul ation in this State, or fal sel y and fraudul entl y cause or procure the
same to be done, such person so offending shal l , on conviction, be
142. SEC. IV. If any person shal l fal sel y and fraudul entl y mak e,
sign, or print, or be concerned in the fal se and fraudul ent mak ing,
signing, or printing, of any check or draft upon any bank of this State,
or bank as aforesaid ; or fal sel y or fraudul entl y cause or procure the
same to be done, such person so offending shal l , on conviction, be
not l ess than three years, nor l onger than seven years.
1 1 0 PENAL CODE OF GEORGIA.
143. SEC. V. If any person, shal l fal sel y and fraudul entl y al ter, or
be concerned in the fal se and fraudul ent al teration of any genuine note,
bil l , check , or draft, of or on any bank , as aforesaid ; or fal sel y and
fraudul entl y cause or procure the same to be done, such person so
offending _ shal l , on conviction, be punished by imprisonment and l abor
in the penitentiary, for any time not l ess than three years, nor l onger
than ten years.
144. SEC. VI. If any person shal l fal sel y and fraudul entl y pass,
pay, or tender in payment, utter or publ ish, any fal se, forged, counter
feit, or al tered note; bil l , check , or draft, as aforesaid, k nowing the same
to have been fal sel y and fraudul entl y forged, counterfeited, or al tered,
such person so offending shal l , on conviction, be punished by imprison
ment and l abor in the penitentiary, for any time not l ess than two years,
nor l onger than ten years.
145. SEC. VII. If any person shal l have in his or her possession any
such fal se, forged, counterfeit, or al tered note or notes, bil l or bil l s,
draft or drafts, check or check s, with intention fraudul entl y to pass the
same: such person so offending shal l ; on conviction, be punished by im
prisonment and l abor in the penitentiary, for any time not l ess than
two years, nor l onger than ten years.
146. SEC. VIII. If any person shal l have in his or her possession any
bank paper, types, pl ates, or machinery, for the purpose of fal sel y or
fraudul entl y forging and counterfeiting any notes, bil l s, check s, or
drafts, as aforesaid, such person so offending shal l , on conviction, be
147. SEC. IX. If any person shal l fal sel y and fraudul entl y mak e,
forge, counterfeit, or al ter any note, bil l , draft, x>r check , of or on any
person, body corporate, company, or mercantil e house or firm, or pur
porting so to be ; or fraudul entl y and fal sel y utter, publ ish, pass, pay, or
tender the same in payment, or demand payment of the same, k nowing
the said bil l , note, draft, or check to be forged and counterfeited, or
fal sel y arid fraudul entl y al tered, such person so offending shal l , on con
viction, be punished by confinement and l abor in the penitentiary, for any
time not l ess than two, nor l onger than ten years.
148. SEC. X. -If any person shal l fraudul entl y mak e; sign, forge,
eounterfeit, or al ter, or be concerned in the fraudul ent mak ing, signing,
forging, counterfeiting, or al tering any other -writing, not herein pro
vided for, with intent to defraud any person or persons, bank , or other
corporate body, or shal l fraudul entl y cause or procure the same to be
done, such person so offending shal l , on conviction, be punished by im
prisonment and l abor in the penitentiary, for any time not l ess than two
years, nor l onger than five years.
PENAL CODE OF GEORGIA. HJ
149. SEC. XI. If any person shal l fal sel y and fraudul entl y forge or
counterfeit, or be concerned in forging and counterfeiting, the great
seal of this State, or any seal used for government purposes; the
publ ic and common seal of any court, office, county or corporation, or
any other seal authorized by l aw; or shal l fal sel y and fraudul entl y
cause or procure the same to be forged and counterfeited ; or shal l
fal sel y,-fraudul entl y and k nowingl y impress, or cause to be impressed,
any instrument whatever, whether the same be written or printed ; or
partl y written and partl y printed, with .such forged and counterfeit
seal ; or shal l fal sel y, fraudul entl y and k nowingl y annex or affix, or
cause to be annexed or affixed, to any such instrument, such forged
and counterfeit seal ; or shal l fal sel y and fraudul entl y utter or pub
l ish any instrument or writing whatever, impressed with such forged
and counterfeit seal , k nowing the same to be forged and counterfeit,
such person so offending shal l be punished by imprisonment and l a
bor in the penitentiary, for any time not l ess than two years, nor
150. SEC. XII. Any person who shal l draw or mak e a bil l of ex
change, due bil l , or promissory note, or endorse or accept the same
in a fictitious name, shal l be guil ty of forgery, and on conviction, be
punished by confinement and l abor in the penitentiary, for any time
not l ess than two years, nor l onger than seven years.
151. SEC.- XIII. If any person shal l put his own name to any instru
ment, representing himsel f to be a different person of that name, such
person, shal l be guil ty of forgery, and on conviction, shal l be punished
than two years, nor l onger than seven years.
152. SEC. XIV. If any person shal l designedl y, by col or of any
counterfeit l etter or writing, made in any other person s name, or fic
titious name, obtain from any person, money, goods, chattel s, or other
val uabl e thing, with intent to defraud any person, mercantil e house,
or body corporate, or company, of the same, such person so offending
penitentiary, for any time not l ess than two years, nor l onger than
seven years.
1.
STATE OF GEORGIA,) The Grand Jurors, sworn, chosen, and setected
County. $ for the county of to wit : Joseph M.
Cooper, Francis W. Jobson, Til man Downs, John I. Forsyth, John S.
Jobson, Thomas B. Al ien, Sampson B. King, James Wil k es, Wil l iam
H. ^Cal ton, George F. Cooper, James H. Dunham, Augustus H. Pol -
hil l , Edward O. Jink ins, Sil as Rawl s, John J. Fl oyd, .Creed T. Wood-
son, Benjamin Bryan, Carl ton Wel l born, Thomas,, Speight, Wil l iam -P.
Gil bert, John Hennington, Wil l iam P. Mount, / r4 John Powefs ; .jn
Forgery: for that the said in the county aforesaid, on the
fal sel y and fraudul entl y, with force and arms, did Forge a
certain [ here name the instrument], which said forged [ here name
the instrument] is as fol l ows, to wit: that is to say, [ here set out the in
strument verbatim], with intent to defraud the said [ or one
as the case may be] ; contrary to the l aws of safd State,
the good order, peace and dignity thereof.
3d And the jurors aforesaid, in the name and behal f
of the citizens of Georgia, further charge and accuse the said
with having committed the offence of Forgery: for that
the said on the day and year aforesaid, in the county
aforesaid, with force and arms, fal sel y and fraudul entl y, did forge
a certain other [ here state the instrument forged, as before
directed],-with intent to defraud the said contrary to
the l aws of said State, the good order, peace and dignity thereof.
And the jurors aforesaid, in the name and behal f of the
citizens of Georgia, further charge and accuse the said with
having committed the offence of Forgery :,for that-the said on
the day and year aforesa"M, in the county aforesaid, with force and arms,
fal sel y a^jd^fraudul entl y, did utter as true, [ nere set out the instrument,
as before divested], which" said l ast mentioned forged [ here name the
instrument] is as fol l ows, that is to say: [ here set out the instrument
verbatim,] with intent to defraud the said he, the said
at the time he so uttered and- pabl ishSS^he said l ast men
tioned forged [ hei"e name the instrumentâfg aforesaid, then and there,
wel l k nowing the same to be fal sel y and fraudul entl y forged ; contrary
to the l aws of said State, the good order, peace and dignity thereof.
And the jurors aforesaid, in the name and behal f of
the citizens of Georgia, further charge and accuse the said
with having committed the offence of Forgery : for that the-said
the day and year aforesaid, in the county aforesaid, with
force and arms; fal sel y and fraudul entl y did have in his possession a
certain forged [ here name the instrument], k nowing the same to be
fal sel y and fraudul entl y forged ; which [ here name the instrument] is
as fol l ows,that is to say: [ here set out the instrument verbatim],with
intention fraudul entl y to pass the same ; contrary to the l aws of said
Witness, ) JAMES WILLIAMS,
) CHARLES SMITH,
term, 1850.
NOTE. This indictment is not intended as a general precedent to serve in cases
of forgery; because the form in each particul ar case must depend upon the statute on
which the indictment is founded: but with the assistance of this form, and upon an at
tentive consideration of the operative words of the statute creating the offence, the
pl eader can find no difficul ty in framing an indictment in any case required by the
statute. Jt
PENAL CODE OF GEORGIA. 1 1 3
CHAPTER XI.
EIGHTH DIVISION.
153. SEC. I. Perjury shal l consist in wil l ful l y, k nowingl y, ab
sol utel y and fal sel y swearing, either with or without l aying the hand
on the Hol y Evangel ist of Al mighty God, or affirming in a matter
material to the issue,* * * point in question, irk some judicial proceeding
by a person to whom a l awful oath or affirmation is administered.
154. SEC. II. Any person who shal l commit the crime of Perjury,
any time not l ess than four years, nor l onger than ten years.
155. SEC. III. Fal se Swearing shal l consist in wil l ful l y,k nowingl y,
absol utel y and fal sel y swearing, either with or without l aying his
hand on the Hol y Evangel ist of Al mighty God, or affirming in any
matter or thing, (other than a judicial proceeding,) by a person to whom
a l awful oajjifcji/ anirmation is administered.
156. SEC! v. Any person who shal l commit the crime of Fal se
Swearing, shal l be punished by imprisonment and l abor in the peni
tentiary, for any time not l ess than three years", nor l onger than ten
years.
157. SEC. V. Subornation of Perjury and Fal se Swearing, shal l con
sist in procuring another person to commit the crime of Perjury, or
Fal se Swearing. 3.
158. SEC. VI. Any person who shal l commit the crime of Suborna
tion of Perjury, or Fal se Swearing, shal l be punished by confinement
and l abor in the penitentiary, for any time not l ess tha. three years,
nor l onger than ten years.
.159. SEC. VII. Any person who shal l be l awful l y convicted of
either of the crimes mentioned and denned in the first, third, and
fifth sections of this Division, shal l , in addition to the punishment pre
scribed in the second, fourth, and sixth sections of this Division,.be
forever the eafter disqual ified from being a witness in any matter in
controversy.
160. SEC. YIII. Any Yerdictor Judgment, Rul e or Order of Court)
which may have been obtained or entered up, shal l be set aside, and
be of no effe t, if it shal l appear that the same was obtained or en
tered up in consequence of wil l ful and corrupt perjury ; and it shal l
be the duty of the court in which such verdict, judgment, rul e, or
order, may have been obtained or entered up, to cause the same to be
set aside upon motion and notice to the adverse party, but it shal l not
be l awful for the said court to do so, unl ess the person charged with
said perjury shal l have been thereof dul y convicted, and unl ess it
shal l appear to the said court that the said verdict, judgment, rul e, or
order, coul d not have been obtained or entered up without the evi
dence of such perjured person saving al ways to third persons, inno
cent of such perjury, the right which they may have l awful l y
acquired imder such verdict, judgment, rul e, or order, before the same
shal l have been actual l y vacated and set aside.
161. SEC. IX. If any person, by wil l ful and corrupt perjury, shal l
tak e away the l ife of another, or by such wil l ful and corrupt perjury
convict another of any offence which by this Code is punishabl e with
death or perpetual imprisonment, such person shal l be punished with
death or perpetual imprisonment.
162. SEC. X. Bribery is the giving or receiving any undue reward to
infl uence the behavior of the person receiving such reward, in the dis
charge of his duty in any office of government or of justice. 4.
163. SEC. XL If any person shal l , directl y or indirectl y, give, or
offer to give, any money, goods, or other bribe, present, or reward ; or
give or mak e any promise, contract, or agreement, for the payment,
del ivery, or al ienation of any money, goods, l ands, or other bribe ; or
use any promises, threats, persuasions, or other l ik e sinister, unfair, or
fraudul ent practices, in order to obtain or infl uence the opinion, judg
ment, decree, or behavior of any member of the General Assembl y, or
any officer of this State, judge, justice, referee, or arbitrator, in any
discussion, debate, action, suit, compl aint, indictment, controversy,
matter, or cause depending, or which shal l depend before him or
them, such person shal l , on conviction, be punished by imprisonment
and l abor in the penitentiary, for any time not l ess than one year, nor
l onger than five years. And the member of the General Assembl y, or
officer, judge, justice, referee, or arbitrator, who shal l accept or receive
such bribe, shal l , on conviction, be punished by imprisonment and l abor
in the penitentiary, for any time not l ess than two years, nor l onger than
ten years, and shal l , moreover, be removed from his office.
164. SEC. XII. If any judge, justice, mayor, al derman, cl erk , sheriff,
coroner, or other publ ic officer, or any other person whatsoever, shal l
steal , embezzl e, al ter, corrupt, withdraw^ fal sify, or avoid any record,
process, charter, gift, grant, conveyance, or contract, or shal l k now
ingl y and wil l ingl y tak e off, discharge, or conceal any issue, forfeited
recognizance, or other forfeiture ; or shal l forge, deface, or fal sify any
document or instrument recorded, or any registry, ack nowl edgment,
or certificate, or shal l al ter, deface, or fal sify, any minute, document,
book , or any proceeding whatever, of, or bel onging to any publ ic office
within this State ; or if any person shal l cause or procure any of the
offences aforesaid to be committed, or be in any wise concerned
therein, the person so offending shal l be punished by imprisonment
and l abor in the penitentiary, for any time not l ess -than two years, nor
165. SBC. XIII. If any jail or, by too great; a duress of impris-
onmpnt, or other cruel treatment, mak e or induce a prisoner to
come an approver, or accuse and give evidence against some other
person.; or be guil ty of wil l ful inhumanity or oppression to any pris
oner under his care and custody, such jail or shal l be punished by re
moval from office, and imprisonment and l abor in the penitentiary, for
any time not l ess than one year, nor l onger than three years. 6.
166. SEC. XIV. If any officer, after the expiration of the time for
which he may have been el ected or appointed, shal l wil l ful l y and unl aw
ful l y withhol d or detain from his successor the records, papers, docu
ments, book s, or other writings, appertaining and bel onging to his
office ; or mutil ate, destroy, tak e away, or otherwise prevent the com
pl ete possession, by his said successor, of said records, documents, pa
pers, book s, or other writings, such person so offending shal l , on con
viction, be punished by fine, or imprisonment in the common jail of
the county, or both, at the discretion of the court.
-c.
167. SEC. XV. If any person, except the attorney of record, shal l
ack nowl edge, or procure to be ack nowl edged, in any of the courts of
this State, or before any authorized officer, any recognizance, bail , or
judgment, in the name of any other person not privy or consenting
thereto, such person so offending shal l , on conviction, be punished by
imprisonment and l abor in the penitentiary, for any period of time not
l ess than one year, nor l onger than four years. 8.
168. SEC. XVI. If any person shal l k nowingl y and wil l ful l y ob
struct, resist, or oppose,.any sheriff, coroner, or other officer of this
State, or other person dul y authorized, in serving, or attempting to
serve, or execute, any l awful process, or order of any court, judge,
justice, or arbitrators, or any other l egal process whatever ; or shal l
assaul t or beat any sheriff, coroner, constabl e, or other officer, or per
son dul y authorized, in serving or executing - any process, or order
aforesaid, or for having served or executed the same; every person so
i
116 PENAL COD| ,OP GEORGIA.
offending shal l , on conviction, be punished by fine and imprisonment
in the common jail of the county, for any time not exceeding one
year. 9.
$ .,
169. SEC. XVII. If-any officer of this State, whatever, shal l assaul t
or beat any individual , under col or of his office or commission, with
out .a l awful necessity so to do, such officer so offending shal l , on con
viction, be punished by fine and imprisonment in the common jail , for
any time not exceeding one year. 10.
i Y
170. SEC. -XVIII.., Rescue is the forcibl y and k nowingl y freeing
another from ari arr% s>fe or imprisonment.
171. SEC. XIX. If any person shal l rescue another, in l egal custo
dy on criminal process, such person so offending shal l , on conviction,
receive the same punishment as the person rescued woul d, on convic
tion, be sentenced to receive ; but if the person rescued shal l have
been acquitted of the crime charged against him, then, and in such
case, the person rescuing shal l be punished by imprisonment in the
common jail of the county, for any time not exceeding one year.
11.
172. SEC. XX. If any person shal l rescue another in l egal custody
on civil process, such person so offending shal l , on conviction, be pun
ished by a fine equal in amount to the amount of the debt or demand
for which such process was issued, and imprisonment in the common
jail of the county, not exceeding six months.
173. SEC. XXI. If any person shal l attempt to rescue another in
l egal custody on criminal process, such person so offending shal l , on
conviction, be punished by imprisonment in the common jail , for any
time not exceeding six months; or by confinement and l abor in the
penitentiary, for any time not l ess than one year, nor l onger than two
years, at the discretion of the court.
174. SEC. XXII. If any person shal l aid or assist a prisoner, l awful
l y committed or detained in any jail , for any offence against this
State, or under any civil process, to mak e his or her escape from jail ,
whether such escape be actual l y effected or not; or if any person
shal l convey, or cause to be del ivered to such prisoner, any disguise,
instrument, or arms, proper to facil itate the escape of such prisoner ;
such person so offending shal l , on conviction, be punished by confine
ment and l abor in the penitentiary, for any time not l ess than one
year, nor l onger than four years. 12.
175. SEC. XXIII. If any person shal l aid or assist any prisoner to
escape, or to attempt to escape from the custody of any sheriff, coro
ner, constabl e, officer, or other person who shal l have the l awful
charge of such prisoner, such person so offending shal l , on conviction,
be punished by confinement and l abor in the penitentiary, for any
time not l ess than one year, nor l onger than five years.
> PENAL CODE OF GEORGIA. 1 1 7
176. SEC. XXIV. If any person confined in the penitentiary shal l
escape therefrom, and be thereafter re-tak en, such person shal l be in
dicted for an escape, and on conviction, shal l be punished by impris
onment and l abor in the penitentiary, for the term of four years. And
any person who shal l aid or assist a prisoner confined in the peniten
tiary to escape, or in an attempt to escape therefrom, shal l , on convic
tion, receive the l ik e punishment.
177. SEC. XXV. If any sheriff, coroner, constabl e, k eeper of a jail ,
k eeper, other officer or person, empl oyed in the penitentiary, having
any offender, guil ty, or accused of, or confined for, any crime, in his
custody, shal l vol untaril y permit or suffer such offender to escape and
go at l arge, every such sheriff, coroner, k eeper of a jail , k eeper, offi
cer, OT other person empl oyed in the penitentiary, constabl e, or other
officer, or person so offending, shal l , on conviction, be punished by
confinement and l abor in the penitentiary, for any time not l ess than
two years, nor l onger than seven years; and shal l , moreover, if a pub
l ic officer, be dismissed from office. 13.
.
178. SEC. XXVI. If any sheriff, coroner, constabl e, k eeper of a
jail , or other offeer, whose duty it is to receive persons charged with,.
or guil ty of an indictabl e offence, shal l refuse to receive and tak e
charge of such person or persons, every such sheriff, coroner, consta
bl e, k eeper of a jail , or other officer so offending, shal l , on conviction,
be punished by confinement and l abor in the penitentiary, for any time
not l ess than twos years, nor l onger than seven years; and such officer
shal l , moreover, be dismissed from office.
179. SEC. XXVII. If the k eeper of the penitentiary, or other offi
cer, or person empl oyed there, whose duty it is to receive convicts,
shal l fail or refuse to do so, such k eeper, officer, or other person so
offending, shal |,; gn conviction, be punished by confinement and l abor
in the penitentiary, for any time not exceeding ten years, and shal l ,
moreover, be dismissed from office.
180. SEC. XXVIII. If any person shal l buy or receive any goods,
chattel s, money, or other effects, that shal l have been stol en or fel oni
ousl y tak en from another, k nowing the same to be stol en or fel onious
l y tak en, such person shal l be tak en and deemed to be an Accessory
after the fact, and shal l receive and suffer the same punishment as woul d
be infl icted on the person convicted of having stol en or fel oniousl y
tak en the said goods, chattel s, money, or effects, so bought or received.
181. SEC. XXIX. If the principal thief or thieves cannot be tak en,
so as to be prosecuted and convicted, it shal l be l awful to prosecute
any person buying or receiving any goods, chattel s, money, or effects,
stol en or fel oniousl y tak en, by such principal thief or thieves, k now-
ing the same to be stol en or fel oniousl y tak en, as for a misdemeanor;
and on conviction, such person shal l be punished as prescribed in the
preceding section ; and a conviction under this section shal l be a bar
to any prosecution under the twenty-eighth section.
182. SEC. XXX. If any person shal l receive, harbor, or conceal any
person guil ty of a crime, punishabl e by death, or imprisonment and
l abor in the penitentiary, k nowing such person to be guil ty, such per
son so receiving, harboring, or conceal ing, shal l be tak en and deemed
to be an Accessory after the fact; and, on conviction, shal l be punish
ed by imprisonment and l abor in the penitentiary, for any time not
l ess than one year, nor l onger than three years.
183. SEC. XXXI. If any person shal l tak e or receive any money,
goods, chattel s, l ands, or other reward, on promise to compound, or
shal l , for any cause, compound any crime or offence punishabl e with
death, or imprisonment and l abor in the penitentiary, such person so
offending shal l , on conviction, be punished by imprisonment and l abor
in the penitentiary, for any time not l ess than one year, nor l onger than
five years. 14.
184. SEC. XXXII. If any person informing or prosecuting under
pretence of any penal l aw, shal l compound with the offender, or di
rect the suit or information to be discontinued, unl ess it be by l eave of
the court where the same is pending, such person so offending shal l ,
on conviction, pay a fine equal to so much of the penal ty as he or she
woul d be entitl ed to, if the defendant or party prosecuted had been
found guil ty or convicted.
185. SEC. XXXIII. If any two or more persons shal l conspire or
agree, fal sel y and mal iciousl y, to charge and indict any innocent per
son of a crime, who is accordingl y indicted and acquitted, such per
son so conspiring, and each and every of them, shal l , on conviction,
be punished by imprisonment and l abor in the penitentiary, for
any time not l ess than twel ve months, nor l onger than five years.
15.
186. SEC. XXXIV. Common barratry is the offence of frequentl y
exciting and stirring up suits and quarrel s between individual s, either
at l aw or otherwise. 16.
187. SEC. XXXY. Any person who shal l be found and adjudged a
common barrator, vexing others with unjust and vexatious suits, shal l ,
on conviction, be punished by a fine not exceeding five hundred dol
l ars ; and if the offender bel ongs to the profession of the l aw, he shal l
al so be disqual ified from practicing for the future.
PENAL. CODE OP GEORGIA. 119
.
188. SEC. XXXVI. Embracery is an attempt to infl uence a jury
corruptl y to one side, by promises, persuasions, entreaties, money,
entertainments, and the l ik e. Every embracer who shal l procure a
juror to tak e money, gain, or profit; or shal l corruptl y infl uence a
juror, by persuasions, promises, entreaties, or by any other means,
penitentiary, for any time not l ess than one year, nor l onger than four
years. And the juror convicted of tak ing money, gain, or profit, or
of being corruptl y infl uenced as aforesaid, shal l be punished by con
finement and l abor in the penitentiary, for any time not l ess 1 than two
years, nor l onger than five years, and shal l , moreover, be forever dis
qual ified to act as a juror.
189. SEC. XXXVII. Any Justice of the Peace, charged with mal
practice in office, by using oppression, tyrannical partial ity, or any
other conduct unbecoming his character as an upright magistrate, in
the administration, and under col or of his office, may be indicted,
which indictment shal l special l y set forth the merits of the compl aint,
and a copy thereof be served on the defendant before the same is l aid
before the grand jury; and the prosecutor and the justice, and their
witnesses, shal l al l have the right of appearing and being heard before
the grand jury ; which indictment, if found true by the grand jury,
shal l , as in other cases, be tried by a petit jury and if the defendant
be convicted, he shal l be punished by fine, or imprisonment in the
common jail of the county, or both, at the discretion of the court; and
shal l , moreover, be removed from office, if stil l in office 18.
190. SEC. XXXVIII. If any person shal l k nowingl y send or de
l iver any l etter or writing, threatening to accuse another person
of a crime, with intent to extort money, goods, chattel s, or other
val uabl e thing; or threatening to maim, wound,, k il l , or mur
der such person, or any of his famil y ; or to burn or otherwise destroy
or injure his or her house, or other property, real or personal , though
no money, goods, chattel s, or other val uabl e thing be demanded, such
and l abor in the penitentiary, for any time not l ess than two years, nor
l onger than four years. 19.
191. SEC. XXXIX. Extortion shal l consist in any publ ic officer s
unl awful l y tak ing, by col or of his office, from any person, any money
or thing of val ue, that is not due to him, or more than is due.
^0.20.
192. SEC. XL. Any publ ic officer who shal l by himsel f, his deputy,
agent, or other person empl oyed by him, be guil ty of Extortion, in d -
manding and receiving other and greater fees th; to. by l aw are al l owed
him, or shal l , by col or of his office, tak e from any person any money,
or other thing of val ue* , that is not due to him, or more than is due,
1 20 PENAL CODE OF GEORGIA.
such officer shal l be subject to indictment, and on conviction, shal l be
punished by fine at the discretion of the court, and shal l moreover be
dismissed from office.
193. SBC. XLI. Any other offence against publ ic justice not herein
before provided for, -shal l be punished by fine, or imprisonment in the
common jail , or both, at the discretion of the court.
*
194. SEC. XLII. If any prisoner in the penitentiary shal l assail ,
oppose, or resist any officer of the penitentiary, or any member of the
guard, with any weapon or impl ement, cal cul ated to cause death or
serious bodil y injury, such prisoner so offending shal l be deemed
guil ty of Mutiny, and on conviction thereof, shal l be punished by an
additional term of imprisonment and l abor in the penitentiary, not
l ess than two years, nor l onger than five years, at the discretion of the
court, to be computed from the expiration of the term of imprison
ment and l abor to. which such prisoner shal l have been previousl y
sentenced. 21.
195. SEC. XLIII. If any person shal l persuade, entice, or instigate
any prisoner to mutiny, such person so offending, shal l be guil ty of a
Misdemeanor, and on conviction, shal l be punished by confinement
and l abor in the penitentiary/ for any time no!; l ess than two years,
nor l onger than five years, at the discretion of the court, to be compu
ted, if a prisoner in the penitentiary, from the expiration of the term
of imprisonment and l abor for which he shal l have been previousl y
sentenced.
196. SEC. XLIY. That from and after the passage of this Act, if any
free white person or persons shal l buy or receive any money, goods, chat
tel s, or other effects, from any negro or free person of col or, that has or
have been stol en or fel oniousl y tak en k nowing the same to have been
so stol en or fel oniousl y tak en such person or persons so offending shal l
be tak en and deemed to be accessory or accessories after the fact, and
being convicted thereof, shal l receive and suffer the same punishment
as woul d have been infl icted on such person or persons, had he or they
been convicted of steal ing, or fel oniousl y tak ing the same.
1.
STATE OF GEOEGIA, > The Grand Jurors, sworn, chosen, and sel ected
County. $ for the county to wit: James Wil k es,
j& eorge M. Dal l as, James Knox, Edward F. Jink ins, Martin Jink ins,
il as Rawl s, Robert "W. Bask in, James H. Dunham, John S. Jobson,
Thomas "Wil l iams, Wil l iam H. Mil l er, John J. Fl oyd, Til man Downs,
Warren B. Sanders, Francis W. Jobson, John J. Forsyth, Christopher
B. Strong, Creed T. Woodson, Benjamin Bryan, Samuel Fel der, Cal
vin W. Fel der, James Turrentine, and John C. Cl ark , in the name
and behal f of the citizens of Georgia, charge and accuse
of the county and State aforesaid, with the offence" of Perjury : for
.PENAL CODE OF GEORGIA. 121
"that the said wick edl y and mal iciousl y intending to ag
grieve one and to put him, the said to
great expense; and al so unjustl y and mal iciousl y, to cause him, the
said to be
and prosecuted at the
instance of him, the said against him, the said
(which, is returnabl e to the Court of said
county,) on day of in the year of our Lord one thou
sand eight hundred and in the county aforesaid, came in pro
per person before Esquire, one of the Justices of
the in and for the county aforesaid, and then and there, pro
duced a certain in writing, -of him, the said and
then and there, before the said Esquire, in due
form of, l aw was sworn, and took his corporal oath upon the
concerning the truth of the matters
contained in said (he, the said Esquire,
then and there, having l awful and competent power arid authority to
administer the said oath to the said in that behal f:) and
that the said beingso sworn, as aforesaid, then and there,
upon his oath aforesaid, before the said Esquire,
(the said Esquire, then and there, having l awful
and competent power and authority to administer the said oath to the
said in that bel jâ-l f; ) wil l ful l y, k nowingl y, absol utel y, and
fal sel y, in his said did then.and there, depose and
swear, amongst other things, in substance and to the effect fol l owing,
that is to say: that the said (meaning the said
above mentioned,) was then justl y indebted unto him, the said
in the sum -of dol l ars,
more* ful l y and at l arge
appears : whereas, in truth and in -fact, the said at the
time the said took said oath and made said afore
said, was not indebted to him, the said in the sum of
dol l ars,
JRoe; , -_ and whereas, in truth and in fact, the said
was not then and there, indebted to the said in the
sum of dol l ars, on any account whatsoever; and whereas, in,
truth and in- fact, the said was not then and there,
debted to the said in any sum whatsoever, on any account
whatsoever. And so the Jurors aforesaid, upon their oath aforesaid,
do say, that the said on the day of in the year
of our Lord one thousand eight hundred and in the county
aforesaid, before the said Esquire, justice of the
as aforesaid, (he, the said Esquire, then and
there, having such power and authority as aforesaid,) by his own act
and consent, and of his own most wick ed and corrupt mind, in man
ner and form aforesaid, wil l ful l y, k nowingl y, absol utel y, and fal sel y,
did commit wil l ful and corrupt Perjury ; to the great displ easure of
Al mighty God; to the evil exampl e of al l others in l ik e case offend-
ing, and contrary to the l aws of said State, the good order, peace and
dignity thereof.
terra, 1850.
Witnesses. > JAMES WILLIAMS,

)
) E.ICHARD B.OE,
Fal se Swearing : for that the said on the day of
in the year of our Lord one thousand eight hundred and in the
county aforesaid, vol untaril y appeared before
Esquire, (said Esquire, being one of
the in and for said county ; ) said Esquire,
did then and there, administer to and receive from said a
certain as the case may be,)
and, then and there, the said (before the said
Esquire, of as aforesaid,) was sworn, and
took his corporal oath, upon
concerning the truth of the matters contained in the said
(he, the said Esquire, of the as
aforesaid, then and there, having ful l power- and authority to admin
ister said oath to the said in that behal f) ; and that the said
being so sworn as aforesaid, then and there, wil l ful l y,
k nowingl y, absol utel y, and fal sel y, did depose and swear, amongst
other things, in substance and to the effect fol l owing, that is to say :
whereas, in truth and in fact, & c.
And so the Jurors aforesaid, & c.
contrary, & c.
In the name and behal f of the citizens v of Georgia, charge and ac
cuse of the county and State aforesaid, with the offence
of Subornation of Perjury: as the case may be,)
for that heretofore, to wit: at the term of the Court
of said County, in .the year of our Lord one thousand eight hundred
and a certain issue was joined in said court, (the said
court being hol den at in the county aforesaid,) between
and said on a certain
al l eged to be committed on the person of
in which was
and the said was defendant. And the jurors aforesaid,
upon their oath aforesaid, do say, that afterwards, and before the trial
of the said issue as hereinafter mentioned, and whil st the same was
depending, to wit on the day of in the year of our
Lord one thousand eight hundred and said in said
county, wick edl y -contriving and intending to pervert the due course
of l aw and justice; and wick edl y and mal iciousl y contriving and in
tending unjustl y to aggrieve the said the
in the said issue ; and to deprive of the
benefit of said indictment then and there in question, and to subject
said to the payment of sundry heavy costs, charges, and
expenses, then and there, to wit: on the day and year l ast aforesaid,
in the county aforesaid, did sol icit, suborn, ijfetigate, procure and
persuade one Dee, to be and appear as a witness at the trial of
the said issue, for and on behal f of the said the defend
ant in the said issue ; and upon the said trial wil l ful l y, k nowingl y,
absol utel y and fal sel y, to swear and give in evidence, to and before the
jurors which shoul d be sworn to try the issue aforesaid, certain mat
ters, material and rel evant to the said issue; and to the matters
therein and thereby put in issue, in substance and to the effect fol l ow
ing, thai is to say: that meaning the
in the issue aforesaid,) did on a certain day then past, to wit:
on the day of in the year first aforesaid, beat, wound,
bruise, and il l -treat the said (meaning the defendant in
the issue aforesaid,) and did k nock him, the said down ;
and with a did then and there, beat, wound, and bruise,
and il l -treat and greatl y disfigure the said whil st he
was so down. And the jurors aforesaid, upon their oath aforesaid,
do further say, that afterwards, to wit: at the term of the
Court, in and for the county aforesaid, before the honorabl e
one of the of the Courts of said
State, to wit: on the day of in the year of our Lord
one thousand eight hundred and at aforesaid, in the
county aforesaid, the issue aforesaid came on to be tried, and was
then and there tried by a jury of the country in that behal f, dul y-
sworn and tak en between the parties aforesaid; upon which said trial
the said in consequence, and by the means, encouragement
and effect of the said wiek e d and corrupt subornation and procure
ment of the said did then and there appear as a witness
for and on behal f of the said the defendant, in the
above mentioned, and was then and there dul y sworn and
took his corporal oath
before the said Judge as aforesaid, that the evidence
which he, the said shoul d give to the court there, and to the
jury, so sworn as aforesaid, touching the matter then in question be
tween the said parties, shoul d be the truth, the whol e truth, and no
thing but the truth, (he, the said as aforesaid,
then and there having sufficient and competent authority to adminis
ter the said oath to the said in that behal f); and that at
and upon the trial of the said so joined, between the said
partiej||^ aforesaid, it then and there became and was a material
quest^PjfFhether the said assaul ted and beat the said
and the said being so sworn as aforesaid,
then and there, at the trial of the sa? d upon his oath afore
said, wil l ful l y, k nowingl y, absol utel y and fal sel y, before the said
jurors, so sworn and tak en between the said parties, as aforesaid, and
before the said as aforesaid, djd depose and
swear, amongst other things, in substanep and to the effect fol l owing,
that is to say : that [ he re set out evidence, in substance
the same as is above stated, where the subornation is charged] :
whereas, in truth and in fact, the said did not, & c.
[ as in No. !.] [ proceeding to assign the perjury as in No. 1]. And
whereas, in truth anîn fact, the said at the time he so
sol icited, suborned, instigated and persuaded the said wil l
ful l y, k nowingl y, absol utel y, and fal sel y, to swear as aforesaid, wel l
k new that, & c. [ pursuingthe words in the assignment of perjury]:
And so the jurors aforesaid, upon their oath aforesaid, do say, that
the said on the day of in the year l ast
aforesaid, in the county aforesaid, did wil l ful l y, k nowingl y, absol ute
l y, and fal sel y, suborn and procure the said to commit wil l
ful and corrupt perjury, in and by his oath aforesaid, before the said
jurors, so sworn and tak en, between the said parties as aforesaid, and
before the said as aforesaid, (the said
as aforesaid, then and there having sufficient and
competent power and authority to administer the said oath to the
said to the great displ easure of Al mighty God, & c.
[ Concl ude as in No. 1.]
4.
Bribery : for that the said in the county aforesaid, on the
one Esquire, then and yet being one of the
of the in and for said county ; and al so to hear and de
termine divers fel onies, trespasses and other misdeeds committed in
said county ; did then and there mak e a certain under his
hand and seal , in due form of l aw, bearing date the day and year
aforesaid ; directed to al l and singul ar the and other l aw
ful officers of said county, thereby
commanding them, upon sight thereof, to tak e and bring before
(the said Esquire, so being such as aforesaid,
the body of
of the county aforesaid, to answer, & c., & c.
and which said afterwards, to wit: on the
day and year aforesaid, in the county aforesaid, was del ivered to the
said then and there, being one of the of
said county, to be executed in due form of l aw. And the Jurors
aforesaid, upon their oath aforesaid, do say, that said in
the county aforesaid, wel l k nowing the premises, but contriving and
unl awful l y intending to pervert the due course of l aw and justice,
and to prevent the said from being arrested and tak en,
under and by virtue of said afterwards, to wit: on the day
and year aforesaid, in the county aforesaid, unl awful l y, wick edl y,
and corruptl y, did give to the said so being
as aforesaid, and having in his custody and possession the said
so del ivered to him to be executed as aforesaid, the sum of
dol l ars, if the said woul d refrain from executing the
said and from tak ing and arresting the said
under and by virtue of the same, for and during from
that time ; that is to say, from the time he, the -said so gave
the said dol l ars to the said as afore
said. And the Jurors aforesaid, on their oath aforesaid, do say, that
said as aforesaid, on the day and year afore
said, in the county aforesaid, as a bribe and undue reward, did ac
cept, and then and there receive the dol l ars aforesaid, for the pur
poses aforesaid, from the said And so the Jurors aforesaid,
upon their oath aforesaid, do say, that the said on the said
day of in the year aforesaid, in the county aforesaid, in
mariner and form aforesaid, did bribe the said
as aforesaid, to negl ect and omit to do his duty.as such
and to refrain from tak ing and arresting the said un
der and by virtue of the aforesaid :- to the evil and pernicious
exampl e of al l others in l ik e case offending; contrary, & c.
5.
of for that the said on day of in the
year of our Lord one thousand eight hundred and in said
county, being of said county, and as
as aforesaid, having in his possession and control the
the said bel onging to the office of cl erk
of the Superior Court of said county; a certain record book , to wit,
record book l etter A, did k nowingl y and wil l ful l y steal , tak e, and
carry away ; contrary, & c.
6.
cuse jail or, of the county and State aforesaid, with wil l ful in
humanity to a prisoner : for that the said
in said county, (being then and there, jail or of said county, and by
virtue of said appointment, having under his care and in his custody
the common jail of said county,) on day of in the year
of our Lord one thousand eight hundred and
was confined a prisoner in said jail , in the care and custody of said
jail or as aforesaid. And the jurors aforesaid, upon their
oath aforesaid, do say, that the said Doe,-jail or as aforesaid,
inhumanl y and unl awful l y did, then and there, refuse and negl ect,
to furnish said
contrary to the principl es of humanity, and contrary, & c.
126 Pl SAL , CODE OF GEORGIA.
7.
In the name aij|ib,e^& ,l f of the citizens of Georgia, charge and accuse
of the Gpun y a nd State aforesaid, l ate
with the dênfce wil l ful l y and unl awful l y withhol ding from
hif successor.? the records
theâse may fee,) appertaining and bel onging to his
office : fof that"the safd in the county aforesaid, on the
in the year of ou< r Lt>rd one. thousand eight hundred and
of said county, and as as
aforesaid < w,as l awful l y possessed of the records, papers, documents,
book s andjjtheT jtfrifetfgs, appertaining and bel onging to the said office
of And Jha jurors aforesaid, upon their
oath aforesk idj/ tl o say, that, the term of office of said
W aforesajd, haying then and there expired, and an of
a successor,of sara as aforesaid, having been dul y and
l awful l jwJfel d ; tjaat at saKd el ec& on having been el ected
as successor to ! said.< l ? Q/ m HI l yj.s office of as aforesaid ; and
said thm an^T there, h aving been dul y commissioned and
qual ified, as of, tifeS of said county, did, then and
there-, appl y tp said as aforesaid, and demand from
said" .as his successor, the records, papers, documents, bosk s,
aj|Q other/ writings appertaining and bel onging to his office. And
Uforâforesaid, j,upon,.their oath aforesaid, do say, that said
aforesaid, d_ fd, then and there, wil l ful l y and unl awful l y,
,^bl d, detafn and re ffe.s& to del iver up to said his
..accessor .as as.aforesaid, the said records, papers, documents,
book sy arid othet writingsjappertaining and bel onging to said office of
of - t6e to the manifest hindrance of justice ;
contrary,; i& c. ./ >
7 .:/ " /
, ^
8.
.pajne- and behal f < jf. the, -citizens of Georgia^fcharge and ac
cuse of the county and State aforesaid./ wjth the offence of
Personating ^Bajl for that the in the
county afM/ esajd, on in the year of our Lord one
thousand ieight hundred and before the honorabl e
one of the of the courts cffiâid State, in and
for said county (the said judge as aforesaid, then
and there^ having l a.wful : authority to tak e any recognizance of bail ,
in any siit thto depending in said/ court), then and there, did ac-
k nowk dge a (jertain in the name of
in a-certaiil cause then depending in said courtVwherein
wjas pl aintiff, and said defendant; he, the said
hot being then and ihere, privy or .consenting to the
said so ack nowl edging such recognizance in his name, as
aforesaidâid nq.t being then and there, attorney of record
in said cause; to the gre/ t damag? of said contra
ry, & c. " -
PENAL CODE OF GEORGFA. 1 27
9.
k nowingl y and wil l ful l y -Obstructing Legal Process : for that the said
year of our Lord one thousand eight hundred and k nowingl y
and wil l ful l y did obstruct, resist, and oppose one
of said county, then and there being, in a l awful
process, to wit: a writ of issued from the court
of said county, on the day of in the year of our Lord
one thousand eight hundred and witnessed by the- honorabl e
one of the of the courts of said State,
and signed by of said court; which
writ of was in favor of against said
then and there being in the hands of the said
as aforesaid, and for him to execnte and to cause to be
made the sum of money in said writ mentioned ; which
said writ of was in terms and effect as fol l ows ; to wit:
[ here set out the writ And the said
as aforesaid, by virtue of said writ did, on
hundred and l evy on and tak e possession qf the .fol l owing sl aves,
to wit: about of the vaûe
of hundred dol l ars, the property of the said foi- the
purpose of sel l ing said property and satisfying said writ
the same being for the sum of dol l ars, principal ;
dol l ars interest, and dol l ars costs,; with accruing in
terest on the principal sum, as mentioned- and set out in said * writ of
And the said as aforesaid,
having dul y and l awful l y advertised said property for sal e in the
to be sol d oh the day of (said
day being the first Tuesday in the month) in the year of our Ldrd one
thousand eight hrnicl red and at the court-house door, in the
town of Perry, in said county, for the purpose of satisfying the writ
aforesaid. And the Jurors aforesaid, upon their oath
aforesaid, do 4say, that the said on the said day of
in the year aforesaid, in the county aforesaid, with force and
arms, the said property, so l evied on and advertised as aforesaid and
brought to the pl ace of sal e, by said
as aforesaid, (on the day and year aforesaid, and for the purpose afore
said,) did k nowingl y and wil l ful l y tak e and carry off, without the
l eave, k nowl edge, or approbation of said
as aforesaid, or the l eave or k nowl edge of any other person having
authority to permit said to tak e and carry away said prop
erty, by reason whereof said as afore
said, was obstructed, resisted, a.nd opposed in bringing said property
to sal e; said amount in said writ qf being yet due and
unpaid, whereby said did then and there, k nowingl y and
wil l ful l y obstruct the execution1 of said l awful process; * to the mani
fest hindrance of justice; contrary, & c.
10. & c.,
cuse of the county aforesaid, with the offence of
Assaul t, under col or of his office, without a l awful necessity so to do :
for that the said (being of the said county of
on day of in the year of our Lord one thousand
eight hundred and in the county aforesaid, having in his hands
then and there, a writ of issued from the
court of said county, in favor of against
did, then and there, under col or of executing said writ "of
assaul t said without a l aw
ful necessity so to do ; contrary, & c.
11.
Rescue : for that on day of in the year of our Lord one
thousand eight hundred and in the county aforesaid,
then being one of the of said county, brought one
before then and yet being one
of of in and for the county aforesaid, and al so to
hear and determine divers fel onies, trespasses and other misdeeds,
committed in said county; and the said was, then and
there, charged before the said by one
spinster, upon the oath of .said that he, the said
had then l atel y before, viol entl y and against her wil l ,
fel oniousl y ravished and carnal l y k nown her. the said and
the said was, then and there, examined before the said
aforesaid, touching said offence, so
to him charged, as aforesaid ; upon which the said
as aforesaid, (said then and there, refusing
and fail ing to give bail as required) did, then and there, mak e a cer
tain under his hand and seal , in due form of
l aw, bearing date the day of in the year aforesaid, di
rected to said and k eeper
of the common jail of said county, commanding him, the said
as aforesaid, to convey him, the said
and del iver him into the custody of him, the said
jail or as aforesaid : and him, the said jail or- as
aforesaid, that he shoul d receive into his custody the said
and safel y k eep him in said jail , until he, by due course of
l aw, shoul d be discharged; which said to wit: on the
day and year aforesaid, in the county aforesaid, was del ivered to said
as aforesaid, (said
as aforesaid, then and there, having said in his cus
tody, for the cause aforesaid, and for the purpose of del ivering said
to said jail or as aforesaid, for the
purpose aforesaid, together with the aforesaid.) And the
Jurors aforesaid, upon their oath aforesaid, do say, that the said
PENAL CODE OP GEORGIA. 1 29
whil st the said was in the custody of the said
as aforesaid, under the said as
aforesaid, and whil st .the said as aforesaid,
was conveying the said under and by virtue of said
to the said jail or as aforesaid, to wit:
on the day and year aforesaid, in the county aforesaid, in and upon
the said (then and there being a as aforesaid,
and then and there, l awful l y having the said in his
custody, by virtue of said for the cause aforesaid,) in the
due execution of his said office, then and there, being, did mak e an
assaul t, and him, the said as aforesaid, then
and there, did beat, wound, and il l treat, and that the said
the said out of the custody of the said
as aforesaid, and against the wil l of him, the said
as aforesaid, then and there, forcibl y and k nowingl y,
did free and rescue and put at l arge, to go whithersoever he woul d ;
and that the said himsel f out of the custody of the said
as aforesaid, and against the wil l of him, the
said as aforesaid, then and there, forcibl y and
k nowingl y, did free and rescue and put at l arge, to go whithersoever
he woul d ; to the great hindrance of justice ; to the evil exampl e of
al l others in l ik e case offending, and contrary, & c.
Aiding a Prisoner, l awful l y for an offence against
the State, to mak e escape: for that at term, of the Supe
rior Court, hel d in and for the county aforesaid, in the year of our
Lord eighteen hundred and one bil l of indictment was pre
ferred before the Grand Jury, then and there sworn, chosen, and se
l ected, (by of the circuit,)
to wit:
charging one
with the offence of committed on the body of
one on the day of in the year of our Lord
one thbusand eight hundred and in said county. And the
said l ast mentioned Grand Jurors, at said term, in the year
aforesaid, to wit: eighteen hundred did then and there
return a true bil l of indictment against said for the of
fence of And at said term, eighteen
hundred and of the Superior Court aforesaid, the said
was arraigned on said bil l of indictment, so found and
"returned as aforesaid, and pl eaded "not guil ty" to the
therein charged against him. And said was then and
there, in due form of l aw, tried by ajury of the country,, on said issue
so formed as aforesaid; which jury were sworn, wel l and trul y to try
the issue formed on said bil l of indictment, between the State of
Georgia and said then and there charged with the
1 3 Q PENAL CODE OF GEORGIA.
of and a true verdict to give, according
to evidence. And the jury so as aforesaid sworn, to try said issue,
returned a verdict of "guil ty" against said And the
honorabl e one of the judges of the superior courts of
said State, then and there presiding, considered and adjudged, that
the said shoul d pay a fine of dol l ars, be confined in
the common jail of said county, for the space and term of days,
and the costs of said indictment. And the said being
so convicted and sentenced as aforesaid, was l awful l y committed to
the custody of of said county ; and in obedience
to said sentence, so del ivered by the court as aforesaid, said
was dul y committed to the jail aforesaid, on the day of
eighteen hundred and And afterwards, to wit:
on the day of in the year of our Lord one thousand
eight hundred and in the county aforesaid, (whil st the said
was such prisoner, confined in the common jail , as afore
said,) the said with force and arms, did, then and there, aid
and assist the said to escape from said jail , (he, the said
being then and there l awful l y committed and in custo
dy, as aforesaid,.) without the consent or privity of the k eeper of said
jail , by conveying and del ivering to said then and there,
(being an instrument proper to facil itate the escape of pris
oners,) with the intent to aid and assist the said so be
ing such prisoner and in custody, as aforesaid, to escape, and to at
tempt to escape from and out of said jail ; the term of imprisonment
of said ordered by said court, as aforesaid, not being,
then and there, ended and compl eted ; contrary, & c.
13.
cuse of the county aforesaid, with the offence of
Vol untary Escape : for that the jurors aforesaid, upon their oath
aforesaid, do say, that heretofore, to wit: at the Court,
hol den at to wit: in the county aforesaid, [ so continuing the
record of the conviction of the party who escaped, stating it, however,
in the past and not in the present tense ; then proceed thus]: as by
the record thereof more ful l y and at l arge appears ; which said judg
ment stil l remains in ful l force and effect, and not in the l east re
versed or made void. And the jurors first aforesaid, upon their oath
aforesaid, do say, that afterwards, to wit: at the said term of the
Court above mentioned, he, the said was then
and there committed to the care and custody of said the
said then being in and
for the said county of there to be k ept and imprisoned in the
aforesaid, according to and in pursuance of the judgment and
sentence aforesaid ; and the said as aforesaid, him,
the said then and there had, in the custody of him, the
said as aforesaid, for the cause aforesaid, in
aforesaid. And the jurors first aforesaid, upon their oath aforesaid,
PNEAL CODE OP GEORGIA. 1 3 1
do say, that the said as aforesaid, in the said county
of afterwards, and -before the expiration of the
for which the said was so ordered to be imprisoned as
aforesaid, and whil st the said was so in the custody of
the said as aforesaid, to wit: on the day of
in the year of our Lord,, one thousand eight hundred and in the
county aforesaid, fel oniousl y, [ if the offence for which
was convicted were a fel ony], vol untaril y, did permit and suffer the
said to escape and go at l arge whithersoever he woul d ;
contrary to the duty of the said as aforesaid; in
manifest hindrance of justice ; to the evil exampl e of al l others in l ik e
case offending ; and contrary, & c.
14.
Compounding Fel ony : for that the Jurors aforesaid, upon their oath
aforesaid, do say, that heretofore, to wit: on the day of in
county aforesaid, one fel oniousl y stol e,
took , and carried away, of the val ue of
dol l ars, of the goods and chattel s of said contrary to
the l aws of said State. And the said in the county afore
said, wel l k nowing the said fel ony to have been, by the said so
as aforesaid, done and committed, but contriving and intending, un
l awful l y and unjustl y, to pervert the due course of l aw and justice in
that behal f, and to cause and procure the said for the fel ony
aforesaid, to escape with impunity, afterwards, to wit: on the day
and year aforesaid, in the county aforesaid, unl awful l y, and for
wick ed gain s sak e, did compound the said fel ony, with the said
and then and there, did
exact, tak e, receive-and have, of the said the sum of
dol l ars, for and as a reward for compounding the said fel ony, and
desisting from al l further prosecution against the said for the
fel ony aforesaid ; and that the said on the day and year
aforesaid, in the county aforesaid, did thereupon desist, and from that
time hitherto, hath desisted, from al l further prosecution of the said
for the fel ony aforesaid, to the great hindrance of justice ; con
trary, & c.
15.
In the name and behal f of the citizens of G-eorgia, charge and ac
cuse of the county
and State aforesaid, with the offence of Conspiracy: for that the
Jurors aforesaid, upon their oath aforesaid, do say, that said
are evil -disposed person,
and wick edl y devising and intending, not onl y to deprive one
of Ms good name, fame, credit, and reputation, but al so to
subject him, as far as in them l ay, to the pains and penal ties by the
l aws of this State made and provided against and infl icted upon per
sons guil ty of on the day of in the year of our Lord
one thousand eight hundred and with force and arms, in the
county aforesaid, did, amongst themsel ves, conspire, combine, confed
erate and agree together, fal sel y and mal iciousl y, to charge and ac
cuse the said that he, the said had
then l atel y
And the Jurors
aforesaid, upon their oath aforesaid, do further say, that the said
afterwards, on
the day and year aforesaid, in the county aforesaid, in pursuance of,
and according to the said conspiracy, combination, confederacy and
agreement amongst themsel ves, had as aforesaid,*
And the Jurors aforesaid, upon their
oath aforesaid, do further say, that in further pursuance of, and
according to, the said conspiracy, combination, confederacy and agree
ment, amongst them, the said
had as aforesaid, they, the said, & c. on, & c. at, & c. & c.,
fal sel y and
mal iciousl y, in the presence and hearing of divers persons, did charge
and accuse the said with and of the aforesaid.
And the Jurors aforesaid, upon their oath aforesaid, do further say,
that, in further pursuance of, and according to the said conspiracy,
combination, confederacy and agreement, amongst them, the said
had as aforesaid, she,
the said afterwards, to wit: [ on the day and year aforesaid, in
the county aforesaid ; did, upon her oath, fal sel y and mal iciousl y,
charge and accuse the said before
then and yet being one of the of the
in and for the county aforesaid ; and al so to hear and determine di
vers fel onies, trespasses and other misdeeds, committed in the said
county ; that he, the said had then l atel y before,
the said forcibl y
and against her wil l and consent.] And the Jurors aforesaid, upon
their oath aforesaid, do further say, that in further pursuance of, and
according to, the said conspiracy, combination, confederacy and agree
ment, amongst them, the said
had as aforesaid; she, the said by the name of
afterwards, to wit: at the Superior
Court, hol den in and for said county, on the day
before the honorabl e one of the judges of the
Superior Courts of said State, then and there presiding, and al so to
hear and determine divers fel onies, trespasses, and other misdeeds
committed in said county, did fal sel y and mal iciousl y exhibit a cer
tain bil l , commonl y cal l ed a bil l of indictment, against the said
before the grand jurors, then and there, sworn, chosen,
PENAL CODE OP GEORGIA. . 1 3 3
and sel ected, in and for said county, at said term, to wit:
good and l awful men of the said county, then
and there sworn and charged to inquire for the body of the said
county ; which said bil l was, by the said jurors, then and there, re
turned into the, said court, before the said judge, as
aforesaid, thus; indorsed: "No Bil l ; " which said bil l is in these
words, that is to say : ; and then
add, with intent to obtain and acquire to them, the said
of and from the said
divers sums of money for compounding the said pre
tended fel ony and so fal sel y charged upon the said
as aforesaid ;
to the great damage, scandal , infamy and disgrace of
the said to the evil exampl e of al l others in l ik e case
offending ; contrary, & c.
16.
Common Barratry : for that the said in the county aforesaid,
on day of in the year of our Lord one thousand eight
hundred and on divers other days and times, as wel l before
as afterwards, was, and yet is, a common barrator ; and that he, the
said on the day and year aforesaid, and on divers other days
and times, in the county aforesaid, did frequentl y excite and stir up
suits and quarrel s between individual s, to the evil exampl e of al l
others in l ik e case offending; contrary, & c.
NOTE. Barratry "signifies the habitual moving, exciting, or maintaining, suits and
quarrel s, either at l aw or otherwise. Al l k inds of disturbances of the peace, spreading
fal se rumors and cal umnies, (fee., come under this denomination."
" But a man cannot be thus guil ty in respect of a singl e act."
" Nor can an attorney be indicted for this crime, merel y from maintaining another in a
groundl ess action.
" It has been said, that feme coverts cannot be thus indicted, but the better opinion seems
to be otherwise, for as they are abl e to excite quarrel s, they ought to answer for them.
" The case of barratry is one of those excepted instances, where it is not necessary to
charge any specific act, but the al l egation that the defendant is a wil l suf
fice ; the reason of which is, that the offence charged consists in habitual conduct, and not
in a singl e mal -feasance.
" But the prosecutor must, before the trial , inform the defendant by a notice, of the par
ticul ar acts on which he intends to rel y, or the court wil l not suffer him to proceed; and no
other acts can be given in evidence, than tbose thus specified.
" No pl ace need be specified in the indictment, because the accusation, invol ving
several acts, may fairl y be supposed to have occurred at several pl aces, and therefore the
trial must be from the body of the county."
17.
Embracery: for the jurors aforesaid, upon their oath aforesaid, do
say, that at the term of the court, hol den in and for
10
the county aforesaid, in the year of our Lord one thousand eight
hundred and (the honorabl e one of
of the courts of the State of Georgia, then and there presi
ding,) one was then and there, being tried for the offence
of by a jury of the country, then and there em-
pannel l ed to try said And the jurors aforesaid, upon
their oath aforesaid, do say, that the said (the trial of the
said then and there, pending and undetermined,) wick
edl y and corruptl y, did procure a juror, (to wit: then
and there empannel l ed to try said for the offence of
as aforesaid,) to tak e money, to wit: the sum
of dol l ars, to infl uence said to return a verdict of
not guil ty in favor of said on his trial aforesaid : to the
great and manifest hindrance of justice ; contrary, & c.
18.
cuse of the County and State
aforesaid, with the offence of Mal practice in office : for that the jurors
aforesaid, upon their oath aforesaid, do say, that on the day of
in the county aforesaid, one then being one of the
of said county, brought one before said
then and yet being one of the in
and for said county, and al so to hear and determine divers fel o
nies, trespasses, and other misdeeds committed in the said county,
and the said then and there, was charged before the
said ofthej>eace as aforesaid, with having
committed a certain supposed and the said
was then and there examined before the said
of as aforesaid, touching the said supposed
offence, so to him charged as aforesaid. And the jurors aforesaid,
upon their oath aforesaid, do further say, that the said
of as aforesaid, oppressivel y, and in a manner
unbecoming his character as an upright magistrate, -.in the adminis
tration and under col or of his office, and in a manner tending to op
press the said in this behal f, and to put him to great
charge and expense, and to cause him to undergo and suffer great pain,
torture and anguish, of body and mind, afterwards, to wit: on the day
and year aforesaid, in the county aforesaid, did order and direct that the
said shoul d find sureties for his personal appearance
at the then next term of the court, to be hol deii in and for the
county aforesaid, on the Monday in in the year afore
said, to answer said charge. And the jurors aforesaid, upon their oath
aforesaid, do further say, that said accordingl y, then
and there, did offer to give ampl e and good bond and security for his
personal appearance at said court, so to be hol den as afore
said, but he, the said of the as afore
said, then and there oppressivel y, and in a manner unbecoming his
character as an upright magistrate in the administration and under
col or of his office, did refuse to tak e bond and security for the personal
appearance of said at said court, so to be
hol den as aforesaid ; the said of the
as aforesaid, wick edl y,, mal iciousl y, and oppressivel y, contriving and
intending as aforesaid, wrongful l y, unjustl y, mal iciousl y, and oppres
sivel y, and contrary to the l aws of said State, then and there, (by vir
tue of and under col or of a certain under his hand and seal ,
the as aforesaid) did commit the said
a prisoner to the of said county, in said county ;
to be there safel y k ept until he shoul d be ful l y examined con
cerning the premises ; and then and there, in a tyrannical and op
pressive manner, ordered, directed, and commanded, the then k eeper
of said to k eep the said under cl ose confine
ment in said prison,
And the jurors aforesaid, upon their oath aforesaid,
do further say, that the said of the
as aforesaid, by virtue and under col or of the aforesaid, after*
wards, to wit: on. the day and year aforesaid, and from thence
for a l ong space of time, to wit, for the space of then-next
fol l owing, in the county aforesaid, wrongful l y, unjustl y, oppressivel y,
and mal iciousl y, and contrary to the l aws of said State, did cause and
procure the said to be cl osel y confined and imprisoned
in the said prison ; .
to wit, in said county; whereby the said during al l
that time, underwent and suffered great pain, torture, oppression, and
anguish, of body and mind ; and was deprived of his l iberty; and
was put to great charge and expense, in and about obtaining his dis
charge and rel ease from the said commitment and imprisonment, to
the great scandal of the administration of justice in said State; to the
evil exampl e of al l others in l ik e case offending ; and contrary, & c.
19.
sending Threatening Letter : for that the said in the coun
ty aforesaid, on the day of in the year of our Lord one
thousand eight hundred and k nowingl y did send to
one a certain Letter, directed to said
by the name and description threat
ening to accuse said with the crime of with in
tent to extort money from
the said with menaces, and without any reasonabl e or
probabl e cause ; and which l etter is as fol l ows, that is
to say: contrary, & c.
20.
In the name and behal f of the citizens of G-eorgia, charge and accuse
of the County and State aforesaid, with the offence
of Extortion : for that on the day of in the year of our Lord
one thousand eight hundred and said then being one of
the of said county, in the county aforesaid, did tak e and arrest
one by col or of a certain commonl y cal l ed a
which he, the said as aforesaid, then
and there, al l eged to be in his possession; and that the said
as aforesaid, afterwards, and whil st the said
so remained in his custody, as aforesaid, to wit, on the day and year
aforesaid, in the county aforesaid, by col or of his said office, did extort
and tak e of and from the said the sum of dol l ars,
as and for a fee due to him, the said as afore
said, as such as aforesaid, for the obtaining and discharging
of the said as he, the said as aforesaid,
then and there al l eged ; whereas, in truth and in fact, no fee what
ever was then due from the said to the said
as aforesaid, in that behal f; in contempt of the l aws of
said State ; to the evil exampl e of al l others in l ik e case offending ;
contrary, & c.
21.
cuse a prisoner in the penitentiary, with .the offence of Mu-
. tiny: for that the said being a prisoner in the penitentiary,
and being a wick ed and evil -disposed person, on day of
in the year of our Lord one thousand eight hundred and with
force and arms, in the penitentiary aforesaid, in the county aforesaid,
to wit: with a certain which the said a prisoner in
the penitentiary, as aforesaid, then and there, had and hel d in his
in and upon one an in said peniten
tiary, then and there did assail , (said being a weapon cal cu
l ated to cause death or serious bodil y injury ; ) contrary* & o.
CHAPTER XII.
NINTH DIVISION.
197. SEC. I. If any two or more persons assembl e for the purpose
of disturbing the publ ic peace, or committing any unl awful act, and
do not disperse upon being desired or commanded to do so by a judge,
justice, sheriff, constabl e, coroner, or other peace officer, such persons
so offending shal l be guil ty of a Misdemeanor, and, on conviction, shal l
be punished by fine or imprisonment in the common jail , or both, at
the discretion of the^court.
198. SEC. II. If any two or more persons, either with or without a
common cause of quarrel , do an unl awful act of viol ence, or any other
act in a viol ent and tumul tuous manner, such persons so offending
shal l be guil ty of a Riot, and, on conviction, shal l be punished by fine
or imprisonment in the common jail , or both, at the discretion of the
court; but if the circumstances attending the riot shal l be of an
atrocious or aggravated nature, the offenders may be imprisoned at
l abor in the penitentiary, for any time not l ess than one year, nor
l onger than three years.
199. SEC. III. Affrays are the fighting of two or more persons in
some publ ic pl ace, to the terror of the citizens and disturbance of the
publ ic tranquil l ity. Persons so offending shal l be indicted, and on
conviction, shal l be punished by fine, or imprisonment in the common
jail , or both, at the discretion of the court; and it shal l be considered
a great aggravation of this offence, if any contempt or disobedience of
the magistrate or other peace officer commanding the peace, shal l be
proved. 3.
200. SEC. IV. If any person shal l del iberatel y chal l enge, by word
or writing, the person of another, to fight with sword, pistol , or other
deadl y weapon; or if any person so chal l enged shal l accept the said
chal l enge, in either case, such person, so giving or sending, or accept
ing any such chal l enge, shal l , on conviction, be punished by a fine not
l ess than five hundred dojl ars, and be imprisoned in the common jail
of the county for any time not exceeding six months. Or, if the jury
shoul d so recommend, such person shal l , in addition to the fine herein
imposed, be punished by imprisonment and l abor in the penitentiary,
for any time not l ess than one year, nor l onger than two years.
4.
201. SEC. Y. If any person shal l k nowingl y and wil l ful l y carry and
del iver any written or printed chal l enge, or verbal l y del iver any mes
sage or chal l enge to another, to fight with sword, pistol , or other dead
l y weapon; or shal l consent to be a second in any such intended duel
or combat, such person so offending shal l , on conviction, be punished
in the same manner as is prescribed in the preceding section.
[ It shal l be sufficient to form an indictment, general l y, against
either of the principal s for chal l enging another to fight at deadl y
weapons; and, notwithstanding it may appear on the trial , that the
defendant onl y accepted the chal l enge, it shal l be sufficient to convict
and render him l iabl e to the penal ties aforesaid, and in l ik e manner an
indictment against, the second may be framed general l y, for carrying
and del ivering a chal l enge ; and the proof of the mere act of fighting,
and the defendant being present thereat, shal l be sufficient to convict
the defendant upon an indictment so framed ; and if the duel shal l
tak e pl ace within this State, the mere act of fighting shal l be ful l and
compl ete evidence of the charges respectivel y, of giving or receiving,
or of carrying and del ivering a chal l enge, without other proof thereof.]
202. SEC. VI. If any person shal l be engaged in the act of fighting
a duel with sword, pistol , or other deadl y weapon, either as principal
or second, such person shal l be guil ty of a High Misdemeanor, and on
conviction, shal l be punished by imprisonment and l abor in the peniten
tiary, for any time not l ess than four years, nor l onger than eight
years. that if death shoul d ensue -from such
duel , then al l the parties, both principal s and seconds, shal l be guil ty
of Murder, and suffer the punishment of death. 6.
203. SEC. VII. If any justice or other publ ic officer, bound to pre
serve the publ ic peace, shal l have k nowl edge of an intention in any
person or persons to fight with any deadl y weapon, and shal l not use
and exert his official authority to arrest the parties, and prevent the
duel , by binding over the parties concerned to k eep the peace towards
each other, such judge, justice, or other peace officer, so offending
shal l , on conviction, be dismissed from office.
204. SBC. VIII. If any person or persons shal l , in any newspaper
or hand-bil l , written or printed, publ ish or procl aim any other person
PENAL CODE OP GEORGIA. 1 3 9
or persons as a coward or cowards ; or use any other opprobrious and
abusive l anguage for not a.ceepting a chal l enge or fighting a duel , such
person or persons so offending "shal l , on conviction, be punished by a
fine not exceeding five hundred dol l ars, and imprisonment in the com
mon jail of the county, not exceeding sixty days, at the discretion of
the court. 8.
: .
205. SEC. IX.-; !A Libel is a mal icious defamation, expressed either
by printing, or-.writing, or signs, pictures, and the l ik e, tending to
bl ack en the memory of one who is dead, or the honesty, virtue, in
tegrity, or reputation of one who is al ive, and thereby expose him or
her to publ ic hatred,, contempt, or ridicul e : every person convicted of
this offence shal l be punished by a fine not exceeding one thousand
dol l ars, and by imprisonment in the common jail of the county, fox
any time not exceeding one year, at the discretion of the court.
9.
206. SEC. X. In al l prosecutions tinder the two preceding sections
of this Division, the printer or publ isher of the newspaper, hand-bil l , or
other publ ication containing the offensive or criminal matter, shal l be
a competent witness; and if such printer or publ isher shal l refuse to
testify in the cause, or to give up the real name of the author, or per
son authorizing and causing the publ ication, so that he may be indict
ed ; then such printer or publ isher shal l be deemed and considered
the author himsel f, and be indicted, and punished as such ; and may,
moreover, be punished for a contempt of the court, as any other wit
ness refusing to testify.
-
207. SEC. XI. In al l cases of indictment for a Libel or for Sl ander,
the person prosecuted shal l be al l owed to give the truth in evidence.
208. SEC. XII. Forcibl e Entry is the viol entl y tak ing possession of
l ands and tenements, with menaces, force and arms, and without au
thority-, of l aw. 10.
209. SEC. XIII. Forcibl e Detainer is the viol entl y k eeping posses
sion of l ands and tenements with menaces, force and arms, and with
out authority of l aw. 11.
210. SEC. XIV. Any person who shal l be guil ty of a Forcibl e En
try or a Forcibl e Detainer, or both, may be indicted, and, on convic
tion, shal l be punished by fine, or imprisonment in tire common jail of
the county, or both, at the discretion of the court: and the court be
fore whom the Conviction tak es pl ace, shal l cause restitution of pos
session of the premises, to be made to the party aggrieved :
that if the party forcibl y detaining l ands and tenements, or
those under whom he cl aims, shal l have been in peaceabl e possession
of the same for the space of three years or more, immediatel y preced-
ing the fil ing of the compl aint, such person or party shal l not be sub
ject to the penal ties of this section, nor shal l restitution of possession
be made. that the onl y questions to be submitted
to, and determined by the jury, in trial s for Forcibl e Entry or Forcibl e
Detainer, shal l be the possession and the force, without regard to the
merits of the titl e on either side.
211. SEC. XV. Any one or more justice or justices of the peace,
upon compl aint, made on oath, of any Forcibl e Entry into l ands or
tenements, or of any Forcibl e Detainer of the same, shal l have power
to draw a jury of twel ve men from the jury box of the district in
which the l ands and tenements so al l eged to be forcibl y entered or
detained are situated, and cause the sheriff of the county, or the con
stabl e of the district, to summon them to be and appear at the usual
pl ace of hol ding court, of the said district, on a certain day to be
appointed by the said justice or justices, for the purpose of trying the
fact of such forcibl e entry or detainer : And the said justice or jus
tices shal l al so issue a summons, to be directed to the person or persons
charged with such forcibl e entry or detainer, and cause the same to
be served on him or them, by the sheriff, or by the constabl e, at l east
five days before the time appointed for trial , requiring him or them to
appear and defend the charge al l eged against him or them. And if
al l the jurors shoul d not attend, or if there shoul d be any l egal objec
tion to any of them, then the justice or justices may cause the jury to
be compl eted by jurors : And upon the trial , the onl y facts which
the jury shal l inquire into, shal l be the possession and the force ; but
they shal l have no power to inquire into the merits of the titl e, on
either side. The fol l owing oath shal l be administered to the jurors,
viz: "You shal l wel l and trul y inquire whether A B has made
any forcibl e entry into the l ands or tenements of C D, and him ejected
therefrom, or forcibl y detains the l ands or tenements of the said C D ;
and a true verdict give, according to the facts as they may appear to
you in evidence so hel p you God." And if, upon the trial of such
case, the jury shal l find such forcibl e entry or forcibl e detainer, or both,
then the said justice or justices shal l give judgment accordingl y, and
cause the sheriff to mak e restitution of possession of the premises to
the party aggrieved : that if the person or per
sons charged with such forcibl e entry or detainer, or those under
whom he or they cl aim, shal l have been in peaceabl e possession of the
premises, for the space of three years-ôr more.âspiforesaid, then no
-restitution of possession-shal l be made. , that no
,4i& P& esdings under this section shal l exempt any person guil ty of a
forcibl e entry or detainer, from indictment and punishment, under
and by virtue of the preceding section of this Division.
212. SEC. XVI. Al l other offences against the publ ic peace, not
provided for in this Code, shal l be prosecuted and indicted as hereto
fore, and the punishment in every case shal l be by fine, or imprison-
ment in the common jail of the county, or both, at the discretion of
the court. ,.
- - - _ _
.
1. Al l deeds ef conveyance heretofore made, and which may hereafter be
made by any person or persons, for any l ots of l and within this State, to any
church or rel igious society, or to trustees for the use of any church or rel igious
.society, for the purpose of erecting churches or meeting-houses, are and shal l
be deemed and tak en to be good and val id, and avail abl e in l aw for the in
tents, uses, and purposes contained in such deeds of conveyance; and al l l ots of
l and so conveyed shal l be ful l y and absol utel y vested in such church or rel ig
ious society, or in their respective trustees, for the uses and purposes in the said
deed expressed, to be hol den to them, or their trustees, for their use, by suc
cession, according to the mode of church government or rul es of. discipl ine
exercised by such churches or rel igious societies, respectivel y.
2. Al l trustees to whom conveyances are or shal l be made for the purposes
hereinbefore .expressed, shal l be subject to the authority of the church or rel ig
ious society for which they hol d the same in "trust, and may be expel l ed from
the said trust by such church or society, according to the form of government
or rul es of discipl ine by which they may be governed. And every church or
rel igious society shal l be and they are hereby authorized and empowered to fil l
up al l vacancies which may happen, in the said trusts by death, removal , expul
sion, or otherwise; and when any vacancy shal l be fil l ed up, the same shal l be
certified under the hand or hands of the person or persons presiding in the
said society, and according to the form of government or discipl ine practiced by
the said church or society; which certificate shal l express the name of the person,
appointed to fil l the vacancy, and the name of the person in whose pl ace he
shal l be appointed; and the said certificate being recorded in the office of the
cl erk o :the Superior Court of the county in which the l and l ies, the person so
appointed to fil l such vacancy shal l be as ful l y vested with such trjist as if a
party to and named in the original deed. 1805.
If any person or persons whomsoever shal l interrupt or disturb any con
gregation of white persons assembl ed at any church, chapel , or meeting-house,,
or any other pl ace for publ ic worship, during the time of divine service, it shal l
be the duty of any justice of the peace, sheriff, constabl e, or any civil officer of
the county, being present where the offence shal l be committed, to tak e the
person or persons so offending into custody, or on compl aint made by any per
son on oath, to issue a warrant against him or them so off ending; and the said
justice is hereby empowered to impose a fine on such offender not exceeding
or on defaul t of payment of the same-, to commit him or them to
the common jail of the county, or to the nearest jail thereto, for a space of
time not exceeding and if such offender be a sl ave, to order him or
her to be punished by whipping on the bare back , not exceeding THIRTY-NINE
LASHES..
2. It shal l be the duty of the sheriff, and other officers, who may col l ect the
fines and forfeitures imposed by this act, to mak e a return of the amount so
col l ected, to the cl erk of the inferior court, and to pay the same into the hands
of the overseers of the poor, for the sol e purpose of supporting the poor of the
county wherein such offence shal l have been committed. And no congregation
or company of negroes shal l , under pretence of divine worship, assembl e them
sel ves contrary to the act for regul ating patrol s.
1. It shal l not be l awful for any person to sel l , or cause to be sol d, any
wine, cifl er, beer, whisk ey, gin, rum, or brandy, or any other intoxicating l iquors,
within one mil e of any meeting-house, or other pl ace set apart or publ icl y
resorted to for divine worship, during the time appropriated to such worship.
2. For every offence committed in viol ation of this act, the offender or offend
ers shal l be subject to the penal ty of dol l ars, which shal l be recoverabl e
after the manner pointed out in the first cl ause of the above-recited act,
of 1792,) which fine shal l be put into the hands of the justices of the inferior
court, and become a part of the county funds where such offence shal l have
been committed : that the penal ties of this act shal l not
extend to l icensed retail ers of l iquors actual l y residing within the l imits herein
pointed out. 1808.
AN ACT to amend an act entitl ed An. Act to protect rel igious societies in the
exercise of their rel igious duties, approved December thirteenth, seventeen
hundred and ninety-two, and an Act to amend the foregoing Act, approved
December twenty-second, eighteen hundred and eight:
1. That if any free white person shal l viol ate the provisions of the before-
recited Acts, it shal l be deemed and hel d in l aw a MISDEMEANOR, and shal l
be indictabl e in the superior courts of this State, as in other criminal cases; and
it shal l be the duty of the justices of the peace TO BIND THE OFFENDERS to be
and appear at the superior courts of this State, as in pther criminal cases.
2. That if any free w.hite person shal l be convicted for a viol ation of the afore
said Acts, he shal l be fined in a sum not exceeding FIFTY dol l ars, nor l ess than
TEN dol l ars. 1841.
STATE OF GEORGIA, | jn person appeared before me,
County. j a j ustice of the in and for said county,
who being dul y sworn, saith, that on the day of
in the
county aforesaid, during the time of divine service at said
of said county, committed a Misdemeanor, by
interrupting and greatl y disturbing the service, then and there, by
and using other means of disturbance,
to the annoyance of the congregation of white^persons, then and there
worshiping.
before me, this 1,1850. [ JOHN DOE.
)
STATE OP GEORGIA, ) m , , , , , , i .
County. ] T l awfal fficer> t0 execute and retum-
Whereas, I have received information, on the oath of
that on the day of
in the county aforesaid, during the time of
divine service at said of said county,
committed a Misdemeanor, by interrupting and greatl y disturbing the
service, then and there, by and using
other means of disturbance, to the annoyance of the congregation of
white persons then and there worshiping: These are, therefore, to
authorize and command you, in the name of the State, immediatel y,
on sight hereof, to arrest the said and bring him be
fore me, for said county, that he
may be deal t with as .the l aw directs. Herein fail not.
1, 1850.
NOTE. "When he accused is arrested, and brought before the Justice, he must proceed
in the usual way. to ascertain the fact; if the charge be sustained, the offender is to be bound
over to appear at .the next Superior Court, and in defaul t of bail , the accused is to be com
mitted ; if the offender be a sl ave, the procedure is different, for which see the act of 1792.
If the offender be committed, the fol l owing is the form of the commitment:
STATE OF GEORGIA, ) By a Justice of the in and
County. | for sai,J county.
To one of the constabl es in and for said county, and to
the k eeper of the common jail of said county.
Whereas, on the day of information, on oath,
was made before me, that of said county, did, on the
day of at the
in said county, commit a Misdemeanor, by interrupting and
greatl y disturbing the service, then and there, by
and using other means of disturbance, to the annoyance of
the congregation then and there worshiping ; upon which information,
a warrant was issued for the apprehension of the said
upon the return of which warrant, and the examination of witnesses,
it appeared that the said charge was ful l y sustained, whereupon the
said was required to find bail in the sum of
dol l ars, which said fail ed and refused to do ;
whereupon, I proceeded, according to the statute in such case made
and provided, to order, and do hereby order, that said be
and he hereby is committed to the common jail of said county, there
to be k ept, in cl ose custody : Therefore, you, the said constabl e, are
hereby commanded to del iver the body of him, the said
to him, the said jail or ; and you, the said jail or, into the said jail , are
hereby required and commanded him, the said to re-
ceive and k eep, in cl ose and safe custody, until he shal l be del ivered
by due course of l aw. Herein fail not.
1850.
there is nothing more acceptabl e to God than the true and sin
cere worship and service of him, according to his hol y wil l ; and that the
k eeping hol y the Lord s Day is a principal part of the true service of God,
which in this province is too much negl ected by many :
1. [ Compel s al l persons to attend worship repugnant to the present con
stitution.]
2. No tradesman, artificer, work man, l aborer, or other person whatsoever,
shal l do or exercise any worl dl y l abor, business or work of their ordinary cal l
ings, upon the Lord s day, or any part thereof, (work s of necessity or charity
onl y excepted,) and that every person being of the age of fifteen years or up
wards, offending in the premises, shal l for every such offence forfeit the sum of
ten shil l ings. And that no person or persons whatsoever shal l publ icl y cry,
show forth, or expose to sal e, any wares, merchandises, fruit, herbs, goods or
chattel s whatsoever, upon the Lord s day, or any part thereof, upon pain that
every person so offending shal l forfeit the same goods so cried, or showed forth
or exposed to sal e, or pay ten shil l ings.
3. [ Restrains travel l ing ou Sunday obsol ete.]
4. No publ ic sports, or pastimes, as bear-baiting, bul l -baiting, foot-bal l
pl aying, horse-racing, shooting, hunting, or fishing, interl udes, or common
pl ays, or other games, exercises, sports, or pastimes whatsoever, shal l be used
on the Lord s day, by any person or persons whatsoever; and that al l and
every person and .persons so offending in any of the premises shal l forfeit, for
every such offence, the sum of five shil l ings sterl ing.
5. No vintner, innhol der, or other person k eeping any publ ic-house of
entertainment, shal l entertain, or suffer any person or persons, (except stran
gers or l odgers,) in such houses, or out-houses, to abide or remain; nor
shal l they suffer any person or persons whatsoever, in their said houses, or
out-houses, yards, orchards, or fiel ds, to abide, or remain, drink ing, or in any
manner idl y spending their time on the Lord s day, upon the pains and pen
al ties of five shil l ings, for every person offending, payabl e by themsel ves
respectivel y, that shal l be found so drink ing or abiding in any such publ ic-
Louse, or dependencies thereof, as aforesaid; and the l ik e sum of five shil l ings
to be paid by the k eeper of such house for every person entertained by them.
6. And. for the better k eeping of good order on the Lord s day,
That the church-wardens and constabl es of each parish respectivel y, or any
one or more of them, shal l once in the forenoon and once in the afternoon, in
the time of divine service, wal k through the town of Sarannah, and the respect-
ive towns of this province, to observe, suppress, and apprehend al l offenders
whatsoever contrary to the true intent and meaning of this act; and they
shal l have power, and are hereby authorized and empowered, to enter into
any publ ic-house or tippl ing house, to search for any such offenders ; and in
case they are denied entrance, shal l have power, and are hereby authorized
and empowered, to break open, or cause to be brok e open, any of the doors of
the said house, and enter therein; and al l persons whatsoever are strictl y
commanded and required to be aiding and assisting, to any constabl es, or other
officers, in their execution of this act, under the penal ty of ten shil l ings sterl ing
for every refusal .
7. For better execution of al l and every the foregoing orders, every justice
of the peace within his county, or parish, shal l have power and authority to
convene before him, any person or persons whatsoever, who shal l offend in
any of the particul ars before mentioned, and upon his own view, or confession
of the party, or proof of any one or more witnesses upon oath, which the said
justices are, by this Act, authorized to administer, the said justice or justices,
shal l give a warrant under his, or their, hand and seal , to the constabl es, or
church-wardens, or either, or any of them, of the parish, or parishes, where
such offence shal l be committed, to seize the said goods, cried, showed forth,
or put to sal e, as aforesaid, and to sel l the same ; and as to other penal ties and
forfeitures, to impose the fine and penal ty for the same, and to l evy the said
forfeitures and penal ties, by way of distress, and sal e of goods, of every such
PENAL CODE OP GEORGIA. 1 45
offender, returning the overpl us, (if any there be,) after reasonabl e charges al -
.l owed, for the distress and sal es. And in case of defaul t of such distress, or in
case of insufficiency or inabil ity of the said offender to pay the said forfeiture or
penal ties, that then the party offending
and al l and singul ar the forfeitures and penal ties aforesaid, shal l
be empl oyed and converted to the use of the poor of the parish where the said
offences shal l be committed, and be del ivered into the hands of the church
wardens or over.seB.rs of the poor for that end; saving onl y, that it shal l and
may be l awful to and for any such justice or justices, out of the said penal ties
or forfeitures, to reward, any person or persons that shal l inform of any offence,
against this. Act, according to his or their discretion, so as such reward ex
ceed not the third part of the forfeitures or penal ties. that nothing
in this act contained shal l extend to the prohibiting of dressing of meat in fami
l ies, or dressing^ or sel l ing of meat in inns, victual l ing-houses, or other publ ic
houses, for-such as cannot be otherwise provided ; nor to the buying or sel l ing
of mil k and fish before nine of the cl ock in the morning, and mil k after
four of the cl ock in the afternoon : that no person or persons
shal l be impeached, prosecuted, or mol ested, for any offence before mentioned
in this act, unl ess he or they be prosecuted for the same within ten days after
the offence committed.
8. No .person or persons, upon the Lord s day, shal l serve, or execute, or
cause to be served or executed, any writ, process, warrant, order, judgment,
or decree, except in cases of treason, fel ony, or breach of the peace ; but that
the service of every such writ, process, warrant, order, judgment, or decree,
shal l be void to al l intents and purposes whatsoever. And the person or per
sons so serving or executing the same, shal l be l iabl e to the suit of the party
grieved, and to answer damages to him for the doing thereof, as if he or they
had done the same without any writ, process, warrant, order, judgment or de
cree, at al l . And in case any person or persons shal l be imprisoned or de
tained in custody by any writ, process, warrant, order, judgment, or decree, so
served or executed upon the Lord s day, upon motion or petition made to the
chief justice, or any one of the assistant justices, for the time being, it shal l be
l awful for the chief justice, or assistant justice, or justices, and he or they, are
hereby authorized and required immediatel y to order such person or persons
to be discharged out of prison and custody, and to be cl ear, not onl y from such
writ, process, warrant, order, judgment, or decree, so served on the Lord s day,
but al so from al l and every other writ, process, warrant, order, judgment, or
decree, served or executed upon any person during the time of the said person s
being imprisoned or detained upon the account of any such writ, process, war
rant, order, judgment, or decree, so served or executed on the Lord s day, and
such p erson shal l be al l owed by the said chief justice, or assistant justices, such
reasonabl e time as he or they shal l think fitting, to return to his home or hab
itation, free from any arrest or hindrance whatsoever, in civil matters.
9. If any action, suit, or information, shal l be commenced against any per
son or persons, for what he or they shal l do, in pursuance or execution of this
act, such person or persons so sued, may pl ead the general issue,
and upon issue joined, give this act and the special matter in evidence. And
if the pl aintiff or prosecutor shal l become nonsuit, or suffer discontinuance, or
if a verdict pass against him, the defendant or defendants shal l recover his or
their trebl e costs, for which he or they shal l have the l ik e remedy as in any
case where costs, by l aw, are given to tne defendant. 1762.
1 46 PENAL CODE OP GEORGIA.
1.
STATE OF GEORGIA,) The Grand Jurors, sworn, chosen, and sel ected
County. j for the county of to wit : Joel W.
Mann, John S. Jobson, Til raan Downs, Sampson B. King, Ephraim
S. Mann, Robert Wal k er, Martin Jink ins, Sil as Rawl s, Al fred Nel son,
James Bane, Wil l iam H. Tal ton, Edward 0. Jink ins, Warren E.
Sanders, James Wil l is, John J. Forsyth, Matthew Wil l son, Matthew
H. Means, Creed T. Woodson, Christopher B. Strong, Wil l iam .H.
Mil l er, James H. Dunham, Thomas B. Al ien, and Samuel Fel der, in
of the county and State -aforesaid, with
the offence of Misdemeanor: for that the said
on the day of in the year of our Lord, one thousand
eight hundred and with force and arms, in the town of
in the county aforesaid, (together with divers other evil -disposed per
sons, to the Jurors aforesaid unk nown; ) having assembl ed and gath
ered together, then and there, for the purpose of disturbing the publ ic
peace, and then
and there being commanded by one of the
of the in and for said county, to disperse, did not and
woul d not disperse ; but then and there, remained assembl ed together
as aforesaid, for the purpose aforesaid ; contrary to the l aws of said
term, 1850.
JOHN WBBB,
Charl es Smith, Esq. j CHARLES SMITH,
cuse of the county and State aforesaid, .
with the offence of Kiot: for that the said
(together, with divers other evil -disposed persons, to the Jurors afore
said unk nown ; ) o,n day of in the year of our Lord
one thousand eight hundred with forê an< d tens, at
to wit: inTSje county aforesaid, in a viol ent and tumul tuous manner.
did assembl e and gather together, to disturb the peace 0f said State ;
and being so then and there assembl ed and gathered together, did, in
a viol ent and tumul tuous manner, then and there, do an unl awful act
of viol ence, by cutting down the
contrary, & c.
%
^
In the name and behal f of the citizens of Georgia, charge and
accuse and of the county and State afore
said, with the offence of Affray: for that the said and
year of our Lord one thousand eight hundred and with force
PENAL CODE OP GEORGIA. 1 4t
and arms, in a publ ic in said county, the
same being a publ ic pl ace,- did then and there unl awful l y fight to
gether and contend, to the terror of the citizens, and disturbance of
the publ ic tranquil l ity ; contrary,- & c.
,-, . 4.
cuse of the county and State aforesai d, with the offence of
Chal l enging to fight a Duel : for that the said unl awful l y,
wick edl y, and del iberatel y designing and intending great bodil y harm
to one on the day of in the year of our Lord
one thousand eight hundred and in the county aforesaid, in
pursuance of, .and for the compl eting his said mal icious, wick ed, and
del iberate intent and design, with force and arms, did then and
there,.del iberatel y ,,-m chal l enge the said un
l awful l y, to fight a duel with and against him, the said
which chal l enge to fight as aforesaid, is as fol l ows, to wit:
[ here set out the chal l enge verbatim :] to the great damage of him,
the said contrary, & c.
5.
of Carrying and Del ivering a Chal l enge to fight a Duel with pistol s:
for that the said intending to procure great ISadil y harm
and mischief to be done to one and to incite and provok e
the said unl awful l y to fight a Duel , with and against
one on the in the year of our Lord
one th/ ras& nd eight hundred and with force and j,rms, in the
county aforesaid, did k nowingl y and wil l ful l y, carry and del iver a
certain written chal l enge, of and from the said to the
said unl awful l y to fight a Duel , with pist ol s, with and
against the said which said written chal l enge is as
fol l ows, that is to..say : to the
great damage of him, the said contrary, & c.
6.
in the name and behal f of the citizens of Georgia, charge and
accuse and with the offence of High Misde
meanor: for "that the said and being evil -
disposed persons and disturbers of the peace, and intending to do
great harm and bodil y injury to each other, on the day of
county aforesaid, with force and arms, did fight a duel , with and
against each other, contrary, & c..
148 PENAL; CODE OF GEORGIA.
/
.
accuse one of the in and for
said county, with the offence of Not Preventing a Duel : for that the
said being one of the in and
for said county ; on the day of in the year of our Lord, one
thousand eight hundred in the county aforesaid, had k nowl edge
of the intention of and then and there, to
fight a Duel with pistol s. And the jurors aforesaid, upon their oath
aforesaid, do say, that said
as aforesaid, having k nowl edge of the said and
intention to fight, as Aforesaid, did not, then and there, exert his
official authority to arrest the parties, and prevent the said Duel , by
binding over the said and to k eep the
peace towards each other ; contrary, & c.
8.
In. the name and behal f of the citizens of G-eorgia, charge and
of Publ ishing as Coward : for that the said being of a tur-
bul ejat, wick ed, and mal icious disposition, and designing and intend
ing to do great bodil y harm and mischief to one on the
of in the year of our Lord one thousand eight hundred
and with force and arms, in the county aforesaid, did unl awful l y
and, mal iciousl y^.end a certain chal l enge to the said
and did thereby provok e, excite, and chal l enge the said
-Roe, unl awful l y to fight a Duel , with and against him, the said
which said chal l enge is as fol l ows, to wit:
And the jurors aforesaid, upon their oath
aforesaid, do say, that the said having then and there re
fused to fight with and against him, the said in pursuance
of such unl awful , wick ed, and mal icious chal l enge, as aforesaid ; he,
the said for the purpose of compl eting his said evil -dis
posed purpose and design, and further to provok e and incite the said
to fight a Duel ,* with and against him, the said
afterwards, to wit: on the day and year aforesaid, in the county
aforesaid, with force and arms, unl awful l y, wick edl y, and mal iciousl y,
did stick up, pl ace, and expose to publ ic view ; and procure and cause
to be stuck up, pl aced, and exposed to publ ic view, to wit: upon and
against a certain of and bel onging to a certain
then and there k nown by the name of a
certain with the name of him, the said there
unto subscribed, containing opprobrious and abusive l anguage against
said for not accepting the said chal l enge, and fighting
him, the said which hand-bil l is as fol l ows, that is to say:
" In consequence of an anonymous l etter, received by me, (meaning
himsel f, the said which I (again meaning himsel f, the
said have reason to bel ieve, was written by
(meaning the said (meaning himsel f, the
have sent him, (meaning the said a chal l enge,
hoping for satisfaction suitabl e to a gentl eman; which, he. (meaning
the said has refused ; therefore, (meaning himsel f,
the said now post him (meaning the
as a coward. 1850."
To the great damage, scandal and disgrace of the said
contrary, & c.
.. ." 9.
cuse of the State and county aforesaid, with the offence of Li
bel : for that said mal iciousl y intending to injure, vil ify, and
prejudice the honesty, virtue, integrity, and reputation of one
and. to bring him into great contempt, scandal , infamy, and dis
grace, on the day of in the year of our Lord one thousand eight
hundred and with force and arms, in the county aforesaid,
mal iciousl y did and publ ish, and cause and procure to be
and publ ished, a fal se, scandal ous, mal icious and defamatory Li
bel , in the form of a directed to
containing divers fal se,
scandal ous, mal icious, and defamatory matters and things, of and con
cerning the said and of and concerning,t & c.
according to the tenor and
effect fol l owing, that is to say :
he, the
said then and there wel l k nowing the said defamatory Li
bel to be fal se ; to the great damage, scandal , and disgrace of the
said to the evil exampl e of al l others in l ik e case offend
ing; and thereby to expose said to publ ic hatred, con
tempt, and ridicul e ; contrary, & c.
10.
Forcibl e Entry : for that one on day of
county aforesaid, was of a certain with the ap
purtenances there situate and being : to wit: [ l ot of l and number for
ty-nine, in the tenth district of said county, containing two hundred,
two and a hal f acres ; ] and being so thereof, as aforesaid, said
afterwards, to wit: on the day and year aforesaid, into
said and appurtenances aforesaid, with strong^hand, vio
l entl y did enter and tak e possession ; with menaces, force and arms,
and without authority of l aw ; and the said from the
peaceabl e possession of said and appurtenances, then and
there, with strong hand, and with menaces, force and arms, viol entl y
and unl awful l y did expel and put out; the said from the
aforesaid day in the year aforesaid, until the
11
from the possession of said and
appurtenances, with strong hand, and viol entl y and injuriousl y then
and there, did k eep out, to the great damage of
11.
of the county and State aforesaid, with the offence of Forci
bl e Detainer : for that one on the day of
in the county aforesaid, was of a certain ap
purtenances, there situate and being, to wit: [ l ot of l and number for
ty-nine, in the tenth district of said county, containing two hundred,
two and a hal f acres ; and being so possessed thereof, as aforesaid, on
the day and year aforesaid, l eased and to farm l et, the said
appurtenances, to the said for and during the
said year of our Lord one thousand eight hundred and
and which said l ease was to and did expire on the
day of in the said year of our Lord one thousand eight
hundred and And the jurors aforesaid, upon their oath
aforesaid, do say, that notwithstanding the expiration of the said l ease,
the said on the day of in the year of our
Lord one thousand eight hundred and and until the day of
preferring this indictment, the said from the peaceabl e
possession of said and appurtenances, then and there un
l awful l y, viol entl y, and with menaces, force and arms, without au
thority of l aw, and with strong hand, did k eep ; and did then and
there k eep, and stil l doth continue to k eep possession of said l ot of
l and from the said to the great damage of the said
contrary, & c.
12.
cuse John of the county and State aforesaid, with the offence
of Forcibl e Entry and Detainer : for that the said on the
in the county aforesaid, with divers other persons, to
the jurors aforesaid unk nown ; with menaces, force and arms, and
without authority of l aw, and with strong hand, into a certain l ot of
l and and appurtenances, to wit: [ l ot of l and number forty-nine, in
the tenth district of said county, containing two hundred, two and a
hal f acres,] there situate and being ; and then and there in the pos
session of one viol entl y, with menaces, force and arms,
without authority of l aw, and with strong hand, did enter ; and the
said together with the said other evil -disposed persons, to
the jurors aforesaid unk nown as aforesaid, then and there, with men
aces, force and arms, and without authority of l aw, viol entl y, with
menaces, force and arms, injuriousl y, and with strong hand, the said
PENAL CODE OF GEORGIA. 15!
from the possession of the said l ot of l and, did expel ,
amove, and put out: and the said so as aforesaid, ex
pel l ed, amoved, and put out, from the possession of the said l ot of l and
then and there, with menaces, force and arms, and without authority
of l aw, viol entl y,, with menaces, force and arms, injuriousl y, and
with strong hand, did k eep out, and stil l do k eep out; and other wrongs
and injuries to. the said then and there did ; to the great
damage of the said contrary, & o.
CHAPTER XIII.
TENTH DIVISION.
213. SEC. I. Pol ygamy, or Bigamy, shal l consist in k nowingl y hav
ing a pl ural ity of husbands or wives, at the same time. 1.
214. SEC. II. If any person or persons within this State, being mar
ried, do or shal l at any time hereafter many any person or persons, the
l awful husband or wife being al ive, and k nowing that such l awful hus
band or wife is l iving, such person or persons so offending shal l , on
conviction, be punished by confinement at l abor in the penitentiary,
for any time not l ess than two years, nor l onger than four years, and
the second marriage shal l be void ; but five years absence of the hus
band, or wife, and no information of the fate of such husband or wife,
shal l be sufficient cause of acquittal of the person indicted; and in
every case the issue of such second marriage, born before the com
mencement of any prosecution for Pol ygamy, or within the ordinary
time of gestation thereafter, shal l , notwithstanding the inval idity of such
marriage, be considered as l egitimate.
215. SEC. III. If any man or woman, being unmarried, shal l k now
ingl y marry the wife or husband of another person, such man or
woman shal l , on conviction, be punished by imprisonment and l abor
in the penitentiary, for any time not l ess than one year, nor l onger
than three years.
152 PE^NAL CODE OF GEORGIA..
216. SEC. IV. If any person shal l commit incestuous fornication or
adul tery ; or intermarry within the Levitical degrees of consanguinity
or affinity, such person so offending shal l , on conviction, be punished
than one, nor l onger than three years, ; and such marriage shal l be
void. 3.
217. SEC. V. Any man and woman who shal l l ive together in a
state of Adul tery, or Fornication, or of Adul tery and Fornication ; or
who shal l otherwise commit Adul tery or Fornication, or Adul tery and
Fornication, shal l be several l yVdicted, and on conviction, such of
fenders shal l be several l y fined or imprisoned in the common jail of the
county, or both, at the discretion of the court : that the fine
shal l not exceed the sum of five hundred dol l ars, and the imprisonment
shal l not extend beyond the term of sixty days. But it shal l at any
time be in the power of the parties to prevent or suspend the prosecu
tion, and the punishment, by marriage, if such marriage can be l egal l y
sol emnized. 5, 6.
218. SEC. VI. Ajry person who shal l be guil ty of open or
any notorious act ofl BiMic wfii|j pcy> tending to debauch the moral s ;
or of k eeping open 8BP% o ^l f|BSffiL . ^l e Sabbath day or Sabbath .
night, shal l , on fi^BHJjfe^risoned in the common jail ,
or both, at the discjj|H9p| / the court. 7 8.
219. SEC. VII. If any person shal l maintain and
or pl ace for the practice of fornication or adul tery, either by himsel f
or hersel f, or others, he or she so offending shal l , on conviction, be
punished by fine, or imprisonment in the common jail , or both, at the
discretion of the court. JVb. 9.
220. SEC. VIII. Any person who shal l k eep and maintain, either by
hfmsel f or hersel f, or others, a common, il l -governed and disorderl y
house, to the encouragement of idl eness, gaming, drink ing, or other
misbehavior, or to the common disturbance of the neighborhood or
orderl y citizens, such persons so offending shal l , on conviction, be pun
ished, by fine or imprisonment in the common jail , or both, at the dis
cretion of the court. 10.
221. SEC. IX. If any person shal l , by himsel f, servant, or agent,
k eep, have, use, or maintain, a gaming house or room ; or shal l in any
house, pl ace, or room, occupied by him, permit persons, with his
k nowl edge, to come together and pl ay for money, or any other val ua
bl e thing, at any game of faro, l oo, brag, bl uff, or any other game
pl ayed with cards, such person so offending shal l , on conviction, be
fined in a sum not exceeding five hundred dol l ars, and imprisoned
in the common jail of the county, for any time not exceeding three
months. JVb. 11.
PENAL CODE OP GEORGI A. 153
SEC. X. If any person shal l , by himsel f, or servant, or any
other- agent, k eep, or empl oy any faro tabl e; E O tabl e, or ABC
tabl e; or other tabl e of l ik e character ; and shal l , either by himsel f
or agent, preside or deal at any faro tabl e; or use any E O or ABC
tabl e ; or other tabl e of l ik e character, for the purpose o* i jl aying and
betting at tl iVsame, such person so offending shal l , on con Jction, be
fined in a.sum not exceeding five hundred dol l ars, or be imprisoned, in
the common jail of the county, for any time not exceeding six months,
or both,: at the discretion of the court. JVb. 12.
223. SEC. XI. If any person shal l pl ay and bet for money, or other
things of val ue, at any game of faro, l oo, brag, bl uff, three-up, pok er,
vingtun, euchre, or any other game or games pl ayed with cards; or
shal l pl ay and bet for money, or other things of val ue, at any E O or
ABC tabl e, or other tabl e of l ik e character, or shal l bet at any game
of nine -pins or ten-pins, or of any other number of pins, such person
so offending shal l , on conviction, be fined in a sum not l ess than twenty
dol l ars, nor more than one hundred dol l ars. 13.
224. SEC. XII. On the trial of any person for offending against the
three preceding sections of this Division, any other person who may
have pl ayed and betted at the same time or tabl e, shal l be a com
petent witness; and be compel l ed to give evidence; and nothing then
said by such witness shal l at any time be received or given in evidence
against him, in any prosecution against the said witness, except on
an indictment for perjury, in any matter to which he may have testi
fied.
225. SEC. XIII. It shal l be the duty of the judges of the superior
courts of this State, at the opening or commencement of every court,
to give in charge to the grand juries, respectivel y, the substance of the
sections contained in this Code rel ative to gambl ing.
226. SEC. XIV. It shal l be l awful for any l awful officer, with l egal
authority, to break open suspected rooms or houses, where it is com
monl y k nown that gaming is carried on; and to tak e any persons found
gaming, and bind or cause them to be bound over to the next superior
court to be hel d in and for the county where such offences may be
committed, and if such person or persons, so found gaming, shal l fail
or .refuse to give security for his or their appearance at court to
answer for such offences, then it shal l be l awful to commit such per
son or persons to jail .
227. SEC. XV. Any butcher, or other person, sel l ing the fl esh of a
diseased animal , or other unwhol esome provisions, shal l be indicted, and,
on conviction, shal l be punished by fine, or imprisonment in the common
jail j or both, at the discretion of the court. 14.
154 PENAL CODE OF GEORGI A.
228, SEC. XVI. Any bak er, brewer, distil l er, merchant, grocer, or
other person, sel l ing unwhol esome bread, drink , or pernicious and
adul terated l iquors, k nowing them to be so, shal l be indicted, and, on
conviction ^hal l be fined or imprisoned in the common jail , or both, at
the discr< jj 0 M of the court. 15.
SEC. _ "fo/ II. and XVIII. repeal ed [ Rel ative to Physicians.]
S29. SEC. XIX. On the trial of any indictment for either of the
- offences mentioned in the two preceding sections, it shal l be incum
bent on the defendant to show that he has been acting under a l icense
from the Board of Physicians of the State of Georgia, to exempt
himsel f from the penal ties of the section under which he may be in
dicted.
230. SEC. XX. Any physician, surgeon, or other person, wil l ful l y
endeavoring to spread the smal l -pox, without inocul ation, or by inocul a
tion with matter of the smal l -pox, or using any other inocul ation than
that cal l ed vaccination, unl ess by special commission or authority from
the inferior court of the county, where the smal l -pox shal l mak e its
appearance, shal l be indicted, and, .on conviction, fined in a sum not
exceeding one thousand dol l ars, and be imprisoned in the common
jail , at the discretion of the court. JVo. 16.
231. SEC. XXI. Any person who shal l come into this State, by l and
or water, from any pl ace infected with a contagious disease, and in
viol ation of quarantine regul ations, shal l be indicted in any county in
this State in which he may be found, and, on conviction, sentenced to
pay a fine not exceeding five hundred dol l ars, and al so be imprisoned in
the common jail , at the discretion of the court. 17.
SEC. XXII. Any person wandering or strol l ing about, or l ead
ing an idl e, immoral , or profl igate course of l ife, who has no property
to support himsel f or hersel f, and who is abl e to work or otherwise to
support himsel f or hersel f, in a respectabl e way, shal l be deemed and
considered a vagrant, and shal l be indicted as such, as in other cases,
and, on conviction, shal l be punished by confinement and hard l abor
in the penitentiary, for any time not l ess than two years, nor l onger
than four years: that after such indictment
has been found against any person, such person shal l be discharged
and rel eased from prosecution, if he or she, after the indictment has
been found, and, before the trial , shal l tender in open court, a bond,
with sufficient security, for his or her good behavior and future in
dustry, for one year: that the said bond shal l be for any
amount not more than four hundred dol l ars. 2Vb. 18.
233. SEC. XXIII. If any person shal l be apprehended, having upon
him or her, any pick -l ock , k ey, crow, bit, or other instrument, with
intent to break and enter into any dwel l ing-house, warehouse, store,
shop, coach-house, stabl e, or put-house, in order to steal or commit any
other crime; or shal l have upon him any pistol , hanger, cutl ass, bl ud
geon, or other offensive weapon, with intent to commit a crime on
any person, which if committed woul d be punishabl e by death, or
confinement in the penitentiary; or stal l be found in or upon any
dwel l ing-hou.se,,warehouse, store, shop, coach-house, stabl e, or out
house, with intent to steal any goods or chattel s, every such person .
shal l be deemed a rogue and vagabond, and on conviction, shal l be
. punished by confinement and l abor in the penitentiary, for any time
not l ess than one year, nor l onger than five years, or by imprison
ment in the common jail of the county, at the discretion of the court.
19.
234. SEC. XXIV. Al l nuisances not here mentioned, which
tend to annoy the community, or injure the heal th of the citizens
in general , or to corrupt the publ ic moral s, shal l be indictabl e and
punishabl e by fine or imprisonment, in the common jail of the county,
or both, at the discretion of the court. And any nuisance which
tends to the immediate annoyance of the citizens in general , is manifest
l y injurious to the publ ic heal th and safety, or tends greatl y to corrupt
the manners and moral s of the peopl e, may be abated and suppressed
by the order of any two or more justices of the peace of the county,
founded upon the opinion and verdict of twel ve freehol ders of the
same county, who shal l be summoned, sworn and empannel l ed for that
purpose; which order shal l be directed to, and executed by the
sheriff of the county, or his deputy. And if the nuisance exist in a
town or city, under the government of a mayor, intendant, al dermen,
wardens, or a common council , or commissioners, such nuisance, by
and with the advice of said al dermen, wardens, or council , or com
missioners, may be abated and removed, by order of said mayor
or intendant, or commissioners, which order shal l be directed to and
executed by the sheriff or marshal of said town or city, or his deputy;
and reasonabl e notice shal l in every case" be given to the parties in
terested, of the time and pl ace of meeting of such justices and free
hol ders, or of such mayor, intendant and al dermen, wardens, or
council , or commissioners : that when the nuisance
compl ained of, is a grist or saw-mil l , or other water machinery, of
val uabl e consideration, the same shal l not be destroyed or abated, ex
cept upon the affidavits of two or more freehol ders, before one or
more of the justices of the inferior court of the county, in which the
nuisance compl ained of may exist, testifying that the heal th of the
neighborhood, according to their opinion and bel ief, is material l y in
jured by such mil l -dam, or other obstruction to a water-course, by
other machinery, as may be compl ained of; whereupon it shal l be1 the
duty of such inferior court, as soon as practicabl e, to cause a jury of
twel ve men to be drawn from the jury-box, and summoned for the
.trial of the cause, who, together with the said court, shal l attend at the
court-house of said county, to adjudge the case of nuisance compl ain
ed of; and both parties shal l have a reasonabl e time al l owed them to
summon their witnesses and procure their attendance. 20.
235. That when it may become necessary for the justices of the
inferior court of the State to cause a jury to be drawn, summoned,
and empannel l ed, to try a cause of nuisance, arising from water
machinery, mil l -dam, or otherwise, that the cl erk , sheriff, witnesses
and jurors, be al l owed such fees, in said cases, as are al l owed by l aw
in the inferior courts of this State.
236. That when any sheriff or other officer, acting under the order
of said court, shal l remove any nuisance, machinery, or mil l -dam, he
shal l be al l owed such fees as the court may deem reasonabl e and just.
237. SEC. XXV. If any person or persons shal l remove the dead
body of any human being from the grave, or other pl ace of inter
ment ; or from any vaul t, tomb, or sepul chre, or from any other
pl ace, without the consent of the friends of said deceased, except
mal efactors, executed under sentence of the l aw, for the purpose of
sel l ing or dissecting the same, or from mere vvantonness, such person
or persons so offending, shal l be punished by fine or imprisonment in
the common jail of the county, or both, at the discretion of the court;
and any person who shal l receive or purchase such dead body, k now
ing it to have been disinterred or removed from any tomb, vaul t or
sepul chre, or such other pl ace, for the purposes aforesaid, shal l , on
conviction, receive the same punishment. 21 22.
238. SEC. XXVI. If any putative father of a bastard chil d or chil
dren, shal l refuse or fail to give security for the maintenance and edu
cation of such chil d or chil dren, when required to do so in terms of
the l aw, such putative father shal l be indicted for a misdemeanor, and
on conviction of the fact of being the father of such bastard chil d or
chil dren, and of his refusal or fail ure to give such security, he shal l
be punished by a fine of seven hundred dol l ars for each chil d, which
said fine shal l be paid over to the inferior court of the county, to be
by them improved and appl ied, from time to time, as occasion may re
quire, for the maintenance and education of such chil d or chil dren ;
and if .the offender is unabl e to pay the said fine or fines, he shal l be
punished by imprisonment in the common jail for the space of three
months.
239. SEC. XXVII. If any person shal l k eep a tippl ing-shop, or retail
l iquors; or sel l by retail , in quantities l ess than one quart, any wine,
brandy, rum, gin, whisk ey, or other spirituous l iquors ; or any mix
ture of such l iquors, in any house, booth, arbor, stal l , or other pl ace
whatever, without l icense from the inferior court of the county,
in corporate towns or. cities, where by l awJ^Mthority to grant
l icenses, is vested in the corporate authorities of s^^feowns or cities,
such-person so offending, shal l be guil ty of a -iS^^rerne^nor, and on
conviction, shal l be fined in the sum of fifty dol j-jajjfesfid on fail ure to
pay such fine, shal l be imprisoned in the commgg^puf, for the space of
thirty days. 24. *
1 PENAL CODE OF GEORGIA. 157
240. SEC. XXVIII. .If any minister of the gospel , judge, justice of
the inferior court, or justice of the peace, shal l join together in matri
mony, any man and woman, without a l icense, or publ ication of banns,
as provided by Taw; or where either of the parties within his own
k nowl edge, shal l be an idiot or l unatic, or subject to any other dis
abil ity whl efj.woul d render such contract or marriage improper and
void; such minister, judge, justice of the inferior court, or justice of
the peace, shal l be guil ty of a misdemeanor, and on conviction, shal l
be fined in a sum not l ess than one hundred dol l ars, nor more than five
hundred dol l ars, which said fine, when col l ected, shal l be paid over to
the justices of the inferior court of the county where the offence was
committed, for the use of the poor school fund of said county. JVb.
24.1. SEC. XXIX. If any person shal l hereafter vote more than once
at .any el ection which may be hel d in any county of this State, or
vote out of the county in which he may usual l y reside; for members
of the Legisl ature, or for county officers, such person shal l be indicted
for a Misdemeanor, and on conviction, shal l be punished by imprison
ment and l abor in the penitentiary, for any time not l ess than one
year, nor more than two years. JVb. 26.
242. SEC. XXX. If any person shal l hereafter buy or sel l , or-offer
to buy or sel l , a vote ; or be concerned in buying or sel l ing a vote ; or
shal l unl awful l y vote at any el ection which may be hel d in any county
in this State, such person shal l be indicted for a Misdemeanor, and, on
conviction, shal l be punished by imprisonment and l abor in the peni
tentiary, for a term not l ess than one year, nor more than four years.
JVb. 27. .
243. That, if any person under the age of twenty-one years, and
above the age of fourteen, shal l vote il l egal l y at any el ection, he shal l
be fined in a sum not exceeding one hundred dol l ars, or imprisoned in
the common jail of the county, at the discretion of the court.
STATE OF GEORGIA, ) The grand jurors sworn, chosen and sel ected
Coupty. $ for the county of to wit: George F.
Cooper, George W. Ross, John S. Jobson, Mathew Wil son, Til man
Downs, John J. Forsyth, Thomas B. Al ien, Sampson B. King, James
Wil l is, James H. Dunham, Wil l iam H. Mil l er, John J. Fl oyd, Robert
Wal k er, James Knox, Thomas Gurr, Francis W. Jobson, Sil as Rawl s,
Martin Jink ins, Al fred Nel son, Edward 0. Jink ins, Creed T. Wood-
son, Christopher B. Strong and Cal vin W. Fel der, in the name and
behal f of the citizens of Georgia, charge and accuse of the
comity and State .aforesaid, with the offence of Bigamy: for that the
said in the county aforesaid, on the day of in the
year ofour Lord one thousand eight hundred and did marry
one and her, the said then and there,-had to
his wife; .and the said afterwards and whil st he was so mar-
158 ^. PENAL CODE OP GEORGIA.
ried to the said as aforesaid, to wit: on the day of in
k nowingl y, did marry and tak e to wife, one
and to her, the said was then and there married; the
said his former wife, being then al ive ; of which fact, the said
had then and there, ful l k nowl edge ; contrary to the l aws of
said State, the good order, peace and dignity thereof.
term, 1850.
Witnesses, JOHN H. POWERS,
> RANSOM ROUSE,
J. P. 3
2.
Marrying the of another man : for that the said being
an unmarried in the county aforesaid, on the day of the
year of our Lord one thousand eight hundred and did then and
there, k nowingl y, marry then and there, the wife of
the said being, then and there, in l ife; contra
ry, & c.
Intermarrying within the Levitical degrees of consanguinity : for that
the said on the day of in the year of our Lord
one thousand eight hundred in the county aforesaid, did then
and there, k nowingl y and wil l ful l y, intermarry with one
the daughter of the brother of the bl ood of him, the
said said Doe being then and there the of. him,
Fornication : for that the said in the county aforesaid, on
hundred and and on divers days and times before and after that
day, and previous to the finding of this bil l of indictment, said
being an man, as aforesaid, had carnal k nowl edge of
the body of one and did, then and there, commit the
crime of fornication with the said she, then and there, being a
singl e woman; contrary, & c.
5.
Adul tery: for that the said being a married man, in the
county aforesaid, on the day of in the year of our Lord, one
thousand eight hundred and on divers other days and times
before and after that day, and previous to the finding of this bil l of
indictment, did then and there, (and on said other days and times,)
commit divers acts of Adul tery, by cohabiting and having sexual in
tercourse with woman, then and there,
the wife of contrary, & c.
6.
cuse and of the county and State afore
said, with the offence of Adul tery and Fornication: for that the said
being a man, and said being an
Woman, in the county aforesaid, on the day of in
the year of our Lord, one thousand eight hundred com-
mit-Adul tery and Fornication, by then and there cohabiting and hav
ing sexual intercourse together and with each other ; contrary, & c.
7. *
Notorious acts of Publ ic Indecency, tending to debauch the moral s:
being a person of a wick ed, depraved, and abandoned mind, and
whol l y l ost to a due sense of moral ity and decency, and intending as
much as in him l ay, to vitiate, corrupt and debauch the moral s of the
good citizens of the State aforesaid, on the day and year aforesaid, in
the of in the county aforesaid, unl awful l y, wick edl y,
del iberatel y and wil l ful l y, did expose a nd exhibit
and then and there, in a condition, passed
near to and in front of divers houses of the good citizens of said
State, situate in said of in the county âforesaid ; and al so,
in the presence of divers persons, mal e and femal e, in a manner tend
ing to debauch the moral s, to the great scandal and subversion of de
cency, rel igion and good order, and to the evil exampl e of al l others;
contrary, & c.
8.
Keeping open a Tippl ing House on the Sabbath for that the said
yar of our Lord one thousand eight hundred and said
day. of being the Sabbath and on divers other Sabbath
before and since said first mentioned Sabbath or day of
in the year aforesaid, and previous to the finding of this bil l of
indictment, did unl awful l y, k eep open a Tippl ing House ; said offence,
then and there, tending to debauch the publ ic moral s; contrary, & c.
And the jurors aforesaid, in the name and behal f
with having committed the offence of k eeping open a Tippl ing
House on the Sabbath for that the said in the county
aforesaid, on the day of in the year of our Lord one thou
sand eight hundred and the said l ast mentioned being the
Sabbath and on divers other Sabbath before and since said
l ast mentioned Sabbath or day of in the year aforesaid,
and previous to. the finding of this bil l of indictment, unl awful l y did
k eep open a Tippl ing House, and did then and there, retail and sel l by
retail , to divers persons,jwine, brandy, rum, gin, whisk ey, and other
spirituous l iquors and mixtures of such l iquors ; said offence then and
there, tending to debauch the publ ic moral s; contrary, & c.
9.-
Maintaining and Keeping a Lewd House : for that the said
being a scandal ous and evil -disposed person, and devising, contriving,
and intending, the moral s of divers persons, citizens of said
State, to debauch and corrupt, on the day in the year of
our Lord one thousand eight hundred in the county afore
said, did maintain and k eep for the. practice of fornica
tion and adul tery; contrary, & c. N^
10.
cuse of the county and State aforesaid,, with the offence of
Keeping and Maintaining a common il l -govern & d and Disorderl y
House : for. that the said in the county aforesaid, on the
and on ? divers days and times before that day, and previous to
the finding of,, this bil l of indictment, did k eep and maintain a common
il l -governed and disorderl y house, to the encouragement of idl eness,
to the common disturbance
of the neighborhood and good and orderl y citizens ; contrary, & c.
.
Keeping a Gaming for that the said by on the
day of in the y.ear of our Lord, one thousand eight hun
dred in the county aforesaid, unl awful l y did have and main
tain, a gaming on the day and year aforesaid, aiJfl on divers
other days and times, there k nowingl y did permit persons to come
together; to pl ay together at a certain game of cards cal l ed
PENAL CODE OF GEORGI A. 161
and in the said gaming on the day and year aforesaid, in the
county aforesaid, and on divers other days and times, there k nowing
l y, unl awful l y and wil l ful l y, did permit and suffer the said persons to
be and remain, pl aying and gaming, at the said unl awful game cal l ed
for divers ..l arge and excessive to the great
damage and co.rrimqn nuisance of the citizens of said State, in said
neighborhood..; to the evil exampl e of al l others in l ik e case offending;
contraryi & .c..
12.
of-Keeping a Gaming Tabl e: for that the said
in th.6 ; county aforesaid, on day of in the year of our
Lord one thousand eight hundred and did k eep and have a cer
tain and did, then and there, preside and deal at said
And -theijurors aforesaid, upon their oath aforesaid, do say, that
said so k ept and had by the said was then and
there k ept and used for the purpose of pl aying and betting at the same ;
contrary, & c.
In the name and behal f of the citizens of Georgia, charge and ac-
Pl aying and Betting : for that the said being a person of il l -
fame and dishonest conversation, on the day of in the year
of our Lord one thousand eight hundred and in the county afore
said, at a certain k ept by one then and there,
did pl ay and bet for contrary, & c.
14.
Sel l ing Unwhol esome" Provisions: for that the said on the
and in the town of in the county aforesaid, did sel l the
fl esh of a diseased k nowing the said to be, then and there,
diseased and unfit for use; contrary, & c.
>
15.
Sel l ing Unwhol esome for that the said in the county
aforesaid, on the day of in the year of our Lord one thou
sand eight hundred and did sel l Unwhol esome then and
there, k nowing said to be unwhol esome and unfit for use ; con
trary, & c.
TVo. 16.
cuse .Doe, a of the county and State aforesaid, with the
offence of wil l ful l y endeavoring to spread the Smal l -pox: for that the
said as aforesaid, in the county aforesaid, on the
and did wil l ful l y endeavor to spread the Smal l -pox, amongst the
citizens of said county, by then and there, several persons
with matter of the Smal l -pox ; without special commission or author
ity from the inferior court of said county; contrary, & c.
JVo. 17.
of the county and State aforesaid, with the offence of Vio
l ating Quarantine Regul ations: for that the said in the
county aforesaid, being an evil -disposed person, and having no regard
to the l aws of this State, rel ating to Quarantine Regul ations, on the
and , as a did come by water into the waters of this
State, (in the from the city of JVew in the
which city of was then and there infected
with the And the Jurors aforesaid, upon their oath afore
said, do say, that said then and there, went into Quaran
tine Regul ations, agreeabl y to the Quarantine l aws aforesaid ; and the
said as such as aforesaid, (al though required by
said Quarantine Regul ations so to do,) did not, then and there, as such
as aforesaid, observe and k eep said Quarantine Regul ations,
and remain on board said but did, then and there, unl awful l y
quit said and go on shore in said State
and county, and before the said had ful l y performed and
been discharged from such Quarantine, and in viol ation of said Quar
antine Regul ations ; he, the .said not being in any manner,
or in any case, permitted so to do; to the evil exampl e of al l others
in l ik e case offending; contrary, & c.
18.
cuse of the State and county aforesaid, with the offence of
Vagrancy: for that the said in the county aforesaid, on the
and on divers days and times, before and after that day, and
previous to the finding of this bil l of indictment; did wander and strol l
about, then and there, l eading an idl e, immoral , profl igate course of
l ife; said then and there, having no property to support
and who is abl e to work , or otherwise support in a
respectabl e way; contrary, & c.
19.
being a Rogue and Vagabond : for that the said being a per
son of il l -fame and wick ed"and dishonest conversation, on day
in the county aforesaid, was apprehended, having upon his person and
in his possession, unl awful l y, a certain instrument cal l ed a
with the intention," then and there, with said unl awful l y to
break and, en tei into a certain then and there situate, the
property with intent to from said
goods then and there deposited and being ; contrary, & c.
20.
Nuisance: for that the said in the county aforesaid, with
force and arms, near the in said county, on theirs* day
of in the year of our Lord one thousand eight hundred
unl awful l y and injuriousl y, did mak e, erect and set up, and did cause
and procure to be made, erected and set up, a certain
for the purpose of [ sl aughtering hogs and cattl e ; ] and the said
Doe,,on the day and year aforesaid, and on divers other days and times,
between that day and the day of preferring this bil l of indictment, at
aforesaid, in the county aforesaid, unl awful l y and in
juriousl y did and cause to be divers l arge num
bers, of by reason of which said pi-emises, divers
noisome, offensive and unwhol esome smel l s and stenches, during the
time aforesaid, were from thence emitted and issued ; so that the air,
then and there, was and yet is; greatl y fil l ed and impregnated with the
said smel l s and stenches ; and was and is rendered and become, and
was arid is corrupted, offensive, uncomfortabl e and unwhol esome ; to
the great damage and common nuisance of al l the citizens of said
there inhabiting, being and residing, and going, returning,
and passing through the [ streets of the said town of Perry ; ] contrary,
21.
of the county and State aforesaid, with the offence of Re
moving a dead body of a human being from the pl ace of interment:
for-that the said in the county aforesaid, on the day of
in the year of our Lord one thousand eight hundred with
force and arms, at the in the county aforesaid, the
of and bel onging to the said there situate, un
l awful l y and wil l ful l y, did break and enter; and the there, in
which the body of one deceased, had l atel y before then,
been and there was; with force and arms, without the k nowl
edge and consent of the friends of the said deceased, un
l awful l y, wil l ful l y and indecentl y, did then and there dig open; and
then and there, the body of him, the said deceased, out
.of the aforesaid, without the k nowl edge and consent of the friends
of the said deceased, unl awful l y, wil l ful l y and indecentl y,
164 PENAL CODE OF GEORGI A:
did tak e and carry away, the said
deceased, not being a mal efactor, executed under sentence
of the l aw ; contrary, & c.
__ *
22.
Purchasing a dead body of a human being: for that on the day
one at the town of in the county aforesaid, the
of, and bel onging to the said there situate,
unl awful l y and wil l ful l y did break and enter ; and the there, in
which the body of one deceased, had l atel y before then
been and there was, without the k nowl edge or consent of the
friends of the said deceased, unl awful l y, wil l ful l y, and in
decentl y did, then and there, dig open; and, then and there, the body
of him, the said deceased, out of the aforesaid, un
l awful l y and indecentl y did tak e and carry away,
And the Jurors aforesaid, upon their oath aforesaid,
do say, that on the day and year aforesaid, in the county aforesaid,
said k nowing the body of the said to have been
as aforesaid, for the purpse aforesaid, did purchase and re
ceive the body of the said deceased; . said
deceased, not having been a mal efactor executed under sentence of
the l aw ; contrary, & c.
23.
Misdemeanor : for that, on the day of in the year of our
Lord one thousand eight hundred and in the county aforesaid,
said was the putative father of a bastard chil d, with which
a free white woman, was, then and there,
And the Jurors aforesaid further say, that, on the day and year afore
said, in the county aforesaid, Esquire, (then and
there being one of the justices of the peace in and for the county
aforesaid,) issued his warrant, under his hand and seal , directed to any/
l awful officer, to execute and return, commanding them, or either of
them, to arrest the body of theâid who was accused by said
a free white woman, upon her oath, then and there,
with being the father of a bastard chil d^with which the said
was then which bastard chil d, it was probabl e, when born,
woul d become chargeabl e to said county. And the Jurors aforesaid,
do further say, that, on the day and year aforesaid, in the county afore
said, with the warrant aforesaid, the said was arrested and
carried before said Esquire, and said
Esquire, was required to give bond and security to the Inferior
Court of said county, for the support and educationôf the bastard
chil d with which the said was, then and there, agree
abl y to the statute in such case made and provided. And the Jurors
aforesaid, further say, that the said having been, then and
there, required, by the said Esquire, to give the bond
and security, as aforesaid, for the support and education of jthe said
bastard chil d, with which the said was as aforesaid,
then and there, refused-to give bond and^security for the maintenance
and education of said bastard chil d, when required so to do, (by said
in terms of the l aw in such case made and
provided^)" contrary, & c.
24.
In the name and behal f of tip citizens of Georgia, charge and ac
Misdemeanor: for that the said on day of in
county aforesaid, without first obtaining l icense from the inferior court
of said county, to retail spirituous l iquors, in quantities l ess than one
quart, did, then and there, sel l by retail , in a
certain then and there situate ; contrary, & c.
25.
In the name and behal f of the citizens of Georgia, charge ad ac
cuse of the county and State
aforesaid, with the offence of Misdemeanor: for that the said
being in and for said
county, with and on day of in the year of
our Lord one thousand eight hundred in the county afore
said, unl awful l y and k nowingl y, without a l icense or publ ication of
banns, as provided by l aw ; did, then and there, join together in mat
rimony a singl e man, and a singl e woman;
contrary, & c.
26.
.In the name and behal f of the citizens of Georgia, charge and ac
cuse of the county and State aforesaid, with the offence-of
Misdemeanor: for that the said on the day of in
the year of our Lord one thousand eight hundred in the
county of at an el ection hel d in and for said county of
on the day and year aforesaid, for
to repre
sent the county of in said General Assembl y, did vote in said
el ection, the same voting, then and there, being out of the county in
which the said usual l y resided; contrary, & c.
27.
Misdemeanor: for that the said being twenty-one years of
age, in said county, at an el ection for
for said county," hel d on day of in the year of our
12
Lord one thousand eight hundred did, then and there, buy
the vote of one said being, then and there,
l awful l y entitl ed to vote in said el ection, then and there being hel d,
for the purpose aforesaid; contrary, & c.
CHAPTER XIV,
ELEVENTH DIVISION.
244. SEC. I. If any person, by fal se representation of his own re
spectabil ity, weal th, or mercantil e correspondence and connections,
shal l obtain a credit, and thereby defraud any person or persons of any
money, goods, chattel s, or any other val uabl e thing; or if any person
shal l cause or procure others to report fal sel y of his honesty, respect
abil ity, weal th, or mercantil e character, and by thus imposing on the
credul ity of any person or persons, shal l obtain a credit, and thereby
fraudul entl y get into possession of goods, wares, or merchandise, or
any other val uabl e thing or things, such person so offending, shal l be
deemed a cheat and swindl er, and on conviction, shal l be punished by
fine, or imprisonment in the common jail of the county, or both, at the
discretion of the court; and such person shal l moreover be compel l ed
by the order and sentence of the court, to restore to the party injured,
the property so fraudul entl y obtained, if it can be done. 1.
245. SEC. II. If any person or persons shal l , by any fraud or shift,
circumvention, deceit, or unl awful trick , or device, or il l practice what
ever, in pl aying at cards, dice, or any game, or games; or in or by
bearing a share or part in the stak es, wagers, or adventures; or in
or by betting on the sides or hands of such as do or shal l pl ay, obtain
or acquire to him or themsel ves, or to any other or others, any money,
or other val uabl e thing or things whatever; such person .or persons
so offending, shal l be indicted, and on conviction, shal l be deemed a
cheat, and shal l be sentenced to pay a fine of five times the val ue of
the money, or other thing, so won as aforesaid, and shal l al so be im
prisoned in the common jail of the county, at the discretion of the
court. JVb. 2.
246. SEC. III. Any bak er or other person, sel l ing bread under the
assize establ ished by the corporation of any city, town, or vil l age ; or
the rul es l aid down by. any l aw, shal l be deemed a cheat, and on con
viction, shal l be punished by fine, or imprisonment in the common jail
of the county* prboih, at the discretion of the court. 3.
- : " :
247; SEC. IV. If any person shal l sel l by Fal se Weights or Mea
sures, he or she shal l be deemed a common cheat, and on conviction,
shal l be punished by fine, or imprisonment in the common jail of the
county, or both, at the discretion of the court.^-JVb. 4.
24 8.. SEC. V. The offences of forestal l ing, regrating and engrossing,
are ; hereb.y abol ished.

249. SEC. VI. If any person shal l fraudul entl y counterfeit, or be
concerned in fraudul entl y counterfeiting, any Brand or Mark , directed
by.l aw; or shal l fraudul entl y cause or procure the same to be done;
or shal l use, export, sel l , exchange, barter, or expose to sal e, any bal e,
cask , barrel , hogshead, or vessel of any k ind ; or any other thing, upon
which a brand or mark is directed by l aw to be made, with such coun
terfeit brand or mark , k nowing the same to be fal se and counterfeit,
such person so offending, shal l , on conviction, be deemed a cheat, and
be punished by a fine not exceeding two hundred dol l ars, and impris
onment in the common jail of the county, for a term not exceeding six
months.
250. SEC. VII. Any person who shal l put or cause to be put into
any bal e or bal es of cotton: hogshead or hogsheads ; barrel or bar
rel s cask or cask s of sugar, or rice, pork , beef, or other provisions,
any dirt, rubbish, or other thing, for the purpose of adding to and in
creasing the weight or bul k of said cotton, sugar, rice, beef, pork , or
other provisions or things, shal l be deemed a common cheat, and on
conviction, shal l be punished by a fine equal to the val ue of the thing
thus fraudul entl y paouted or put up, and imprisonment and l abor in the
penitentiary, for any time not l ess than one year, nor l onger than five
years. The bare possession or ownership of such commodities, so
fraudul entl y pack ed or put up, shal l not of itsel f authorize a convic
tion, where sufficient evidence of k nowl edge or privity, on the part of
the owner, or the person in possession, may not be produced before,
the court and jury. JVb. 6.
251. SEC. VIII. If any person shal l fal sel y personate another, and
thereby fraudul entl y obtain any money, goods, chattel s, or other thing
or things of val ue ; or with the intention of thereby fraudul entl y ob-
. taining any money, goods, chattel s, or other val uabl e thing, such per-.
son so offending, shal l be deemed a cheat and swindl er, and on con-.
viction, shal l be punished by imprisonment and l abor in the peniten
tiary, for any time not l ess than one year, nor l onger than five years ;
or in trivial cases, by fine and imprisonment in the common jail , at the
252. SEC. IX. Any person using any deceitful means, or artful
practice, (other than those which are mentioned and provided against in
this Code,) by which individual s or an individual , or the publ ic, are or is
defrauded and cheated, such person so offending, shal l be deemed a
common cheat and swindl er, and on conviction, shal l be punished by
fine or imprisonment in the common jail , or both, at the discretion of
the court.
253. SBC. X. If any person shal l fal sel y represent or personate
another, and in such assumed character, shal l answer as a witness
to interrogatories, or do any other act in the course of any suit, pro
ceeding or prosecution ; or in any other way, matter or thing, where
by the person so personated or represented, or any other person, might
suffer damage, l oss or injury, such person so offending, shal l , on con
viction, be punished by confinement and l abor in the penitentiaij^. for *
o/ Sr any time not l ess than one year, nor more than five years.
254. SEC. XI. If any person, by fal se representation of his or her
sol vency, shal l induce another to become his or her bail , indorser, or
security, upon any recognizance, bond, note, bil l of exchange, or other
instrument for the payment of money, or performance of any personal
duty, k nowing at the time that he or she is insol vent ; and such bail ,
indorser, or security, shal l suffer l oss or damage, in consequence of
such undertak ing and l iabil ity on his part, such person so offending,
shal l be guil ty of a misdemeanor, and on conviction, shal l be punished
by fine and imprisonment in the common jail , at the discretion of the
court. JVb. 9.
255. PEC. XII. If any pedl er or itinerant trader shal l sel l or vend
any goods, wares, or merchandise, except such as are excepted by
l aw, within this State, without a l icense from the proper authority for
that purpose, such pedl er or itinerant trader shal l be guil ty of a Mis
demeanor, and on indictment and conviction thereof, shal l be fined in
a sum not l ess than one thousand dol l ars, nor more than three thou
sand dol l ars, to be appl ied as pointed out by l aw ; and the defendant
shal l stand committed until the said fine be paid. 10.
L
-STATE OF GEORGIA, ) The Grand Jurors, sworn, chosen, and se-
Coanty. J l ected for the county of to wit : War
ren E. Sanders, Samuel Fel der, John S. Jobson, Joseph M. Cooper,
Cal vin W. Fel der, Francis W. Jobson, James H. Dunham, George F.
Cooper, James Wil l is, John J. Forsyth, Thomas B. Al ien, Sampson
B. King, Til man Downs, -Revert W. Bask in, Mathew Wil son, Wil l iam
H. fil l er, John J. Fl oyd, Edward O. Jenk ins, Daniel Adams, Al fred
Nel son, Martin Jink ins, Benjamin Bryan and John A. Hunter, in the
name and behal f of the citizens of Georgia, charge and accuse
of the county and State aforesaid, with the offence of being a
Cheat and.Swindl er: for that the said in the county afore
said.,.on ..the; day of in the year of our Lord one thousand
eight -hundred and with intent to cheat and swindl e one
did then and there, by fal se representations of his own respecta
bil ity, weal th, mercantil e correspondence and connections, obtain a
credit and get possession of property to the amount
dol l ars,, from said (of the personal goods and private prop
erty of said ; ).,whereby said did then and there,
defraud, cheat, and swindl e, the said he, the said
being then and there, of no respectabil ity, weal th, or mercantil e
correspondence,, and connections; to the great damage and deception
of. the said contrary to the l aws of said State, the gpod
order, peace, and dignity thei eof.
term, 1850.
Witness, ) JAMES THOMAS,
RICHARD ROE. j RICHARD ROE,
of the county and State aforesaid, with the offence of Cheat
ing at Pl ay: for that the said in the county aforesaid, on
hundred and by fraud and il l -practice, in pl aying at to
wit: at a certain game of cal l ed with one
then and there, did win, obtain and acquire to himsel f, a l arge sum of
money, to wit: the sum dol l ars; of the moneys of the said
to the great damage and deception of the said
contrary, & c. :
3.
of said county and State, with the offence of Sel l ing Bread
under the Assize: for that the said being a Sel l er of Bread,
in the county aforesaid, on the day of in the year of our
Lord one thousand eight hundred and and on divers other days
and times, from thence until the preferring this bil l of indictment, did
then and there, unl awful l y, k nowingl y, deceitful l y, and fraudul entl y,
sel l to the citizens of the in the county aforesaid, Bread
under the assize establ ished by the corporation of said
to wit: at the weight of short of the weight required by the
assize establ ished by the corporation of said in said
county; contrary, & c. s
4.
of the county and State aforesaid, with the offence of Sel l ing
J 70 PENAL CODE OP GEORGI A.
by fal se for that the said in the county aforesaid,
hundred and and from thence to did use and
exercise the trade and business of a and during that time
did deal in the buying and sel l ing by of divers goods, wares,
and merchandise ; and that the said being a person of wick ed
and depraved mind, and contriving, and fraudul entl y intending to
cheat and defraud the citizens of the State, whil st he used and exer
cised his said and business, to wit: on the day and year aforesaid,
in the county aforesaid, and on divers other days and times, between
that day and the day of preferring this bil l of indictment at to
wit, in the county aforesaid, did ^k nowingl y, wil l ful l y and publ icl y,
k eep in a certain there, wherein the said did so as afore
said, carry on his said certain fal se for the
of goods, wares, and merchandise, by him sol d in the way of his
said which said were then and there, by artful and deceit
ful ways and means, so made and constructed, as to cause the goods,
wares, and merchandise therein, and sol d thereby, to appear
of greater than the real and true by of
such apparent and that the said on the day and year
aforesaid, at aforesaid, in the county aforesaid, (he, the said
then and there k nowing the said to be fal se as aforesaid,)
did k nowingl y, wittingl y, and fraudul entl y, sel l and utter to
certain goods in the way of his said to wit: a l arge quantity
in and by the said fal se as and
whereas in truth and in fact, the of the said so
sol d as aforesaid, was short and deficient of the said
at the rate of to the great dam
age of the said contrary, & c.
5.
of the county and State aforesaid, with the offence of Coun
terfeiting Brands: for that the said in the county aforesaid,
hundred and being an evil -disposed person, and devising and in
tending to deceive and defraud the good citizens of said State, did
then and there, k nowingl y, unl awful l y and fraudul entl y, counterfeit
the Brand directed by l aw, (to wit, an X,) to be pl aced upon al l
contrary, & c.
of the county and State aforesaid, with the offence of put
ting for that the said being an evil -disposed
and vicious person, and for the purpose of deceiving and cheating the
good citizens of said State, in the county aforesaid, with force and arms,
hundred and did put into a certain (for the pur
pose of adding to and increasing the weight or bul k of said
a certain quantity of to wit: pounds. And the jurors
aforesaid, upon their oath, .âforesaid, further say, that said
on : .the day and year aforesaid,- in the county aforesaid, did sel l to
said so fraudul entl y pack ed, as aforesaid,
for a fair and ful l consideration, without informing said
the aforesaid, contained in said contrary, & c.
...-. ; JVb ,7V
Fal sel y Personating Another: for that the said in the county-
aforesaid, on the day of in the year of our Lord one
thousand eight hundred with intent thereby fraudul entl y to ob
tain to wit: dol l ars, the property of did
then and there, fal sel y personate said to one
in order to receive said then and there due and payabl e to the
.said from said with intent then and there,
to defraud said and did, then and there, thereby fraud
ul entl y obtain said sum of money ; contrary, & e.
8.
Personating Another as a Witness: for that, heretofore,a commission
to tak e the interrogatories of issued in due form of l aw to
was directed, from the honorabl e
Court of the county of in said State ; (which interro
gatories were to be used as evidence in a suit pending in said court; )
and on the day of in the year of our Lord one thousand eight
hundred and in the county first aforesaid, said did fal sel y
assume the name and character of said And the jurors
aforesaid, upon their oath aforesaid, do say. that said on the
day and year aforesaid, in the county aforesaid, went and appeared be
fore said commissioners as aforesaid,
and did then and there, fal sel y personate said witness
in said commission named, and in such assumed character did, then and
there, answer said interrogatories as the witness in said commission
named was required by said commission to do; to the great damage
of the said contrary, & c.
9.
Misdemeanor: for that the said being insol vent in his cir
cumstances, on the [ day of in -the year of our Lord one
thousand eight hundred and in the county aforesaid, by fal se
representation of his sol vency, did fal sel y and deceitful l y induce
to become his on a for the sum of
k nowing at the same time that he, the said
was insol vent and unabl e to pay the said whereby
said sustained damage to the amount of said
to wit: the sum of dol l ars; contrary, & c.
10.
Misdemeanor: for that the said in the county aforesaid, on
hundred and without a l icense from the proper authority for that
purpose, unl awful l y did vend and sel l merchandise as a pedl er,
within this State, to wit: (the same not being an
articl e excepted by l aw,) the said not being, then and there,
a person exempt from the l aws made against peddl ing without l icense;
contrary, & c.
CHAPTER XV.
TWELFTH DIVISION.
256. SEC. I. If any person shal l fraudul entl y or mal iciousl y tear,
burn, or in any other way destroy any deed, l ease, wil l , bond, or other
writing seal ed ; or any bank bil l or note, check , draft, or other securi
ty, for the payment of money or the del ivery of goods; or any certif
icate, or other publ ic security of this State, or of the United States?
or any of them, for the payment of money; or any receipt, acquit
tance, rel ease, discharge of any debt, suit, or other demand ; or any
transfer or assurance of money, stock , goods, chattel s, or other prop
erty ; or any l etter of attorney or other power; or any day-book , or
other book of accounts ; or any agreement or contract whatever, with
"gtent to defraud, prejudice, or injure any person or body pol itic or.
corporate ; such person so offending shal l , on conviction, be punished
by imprisonment and l abor in the. penitentiary, for any time not l ess
than one year, nor l onger than four years ; or in trivial cases, by im-.
prisonment in the common jail , or by fine, or both, at the discretion
of the court.
257. SEC. II. If any person shal l k nowingl y, mal iciousl y, or fraudu
l entl y, cut, fel l , al ter, or remove any certain boundary tree, or other
al l owed l and-mark , to the wrong or injury of his neighbor or any other
person ; such person so offending shal l , on conviction, be punished by
a fine not exceeding five hundred dol l ars, and imprisonment ia the
cornmptt jail of the county ^ for. any time not exceeding one year.
JVo/aC ;- - ''
258. SEC. III! If any person or persons shal l mal iciousl y or without
authority, cut down", remove, or destroy any Beacon pr Beacons, Buoy
or.. Buoys, erected by any commissioners of pil otage, or other person
or persons dul y authorized for that purpose, such person or persons so
offending shal l , on conviction, be punished by confinement and l abor
in the penitentiary, for any time not l ess than two years, nor l onger
than five years. 3.
259. SEC. IV. Any person or persons who shal l wil l ful l y and mal i
ciousl y set fire to, or burn any stack or stack s of corn, fodder, grain,
straw, or hay, shal l ; on conviction, be punished by imprisonment and
l abor in the penitentiary, for any time not l ess than one year, nor
l onger than three years. 4.
260. SEC. V. If any person shal l wil l ful l y and mal iciousl y set on
fire, or cause to be set on fire, any woods, l ands, or marshes, within
this State, so as thereby to occasion l oss, damage, or injury to any
other person, such person so offending shal l , on conviction, be punish
ed by imprisonment in the common jail , for any time not exceeding six
months, at the discretion of the court. 5.
261. SEC. VI. If any person shal l wil l ful l y and mal iciousl y set fire
to any fence or fences, or other encl osures, or cause or procure the
same to be done, or shal l tak e from such fence or encl osure, any rail
or rail s, or other material of which the same is made or composed,
for the purpose of using the same as fuel ; such person so offending
shal l , on conviction, be punished by fine and imprisonment in the com
mon jail , of the county, at the discretion of the court. JVb. 6.
262. SEC. VII. If any person shal l unl awful l y, wil l ful l y,1 and mal i
ciousl y, break down, open, cut through, injure or destroy any bridge,
river .er meadow bank , rice dam, mil l dam, or any other dam or bank ;
such person so offending shal l , on conviction, be punished by confine
ment and l abor in the penitentiary, not l ess than one year, nor more
than three years, or by fine and imprisonment in the common jail , at
the discretion of the court. JVb. 7.
263. SEC. VIII. If any person shal l mal iciousl y maim or k il l any
horse, mul e, bul l , steer, ox, cow, cal f, heifer, or other animal , fal l ing
under the description herein before given of horses or cattl e; or shal l
mal iciousl y k il l a hog or hogs, such person, so offending, shal l , on con-
. yiction, be punished by fine or imprisonment in the common jail , at the
264. SEC. IX. If any person shal l mal iciousl y injure or destroy any
turnpik e gate or gates; or any post or posts; rail or rail s ; wal l or
wal l s; or any chain, bar, or other fence, bel onging to any turnpik e
gate ; or any house or houses erected, or to be erected, for the use of
any such turnpik e gate or gates; or shal l wil l ful l y and mal iciousl y in
jure or destroy any l ock or l ock s, or other work s, erected to protect
and secure the navigation of any river or canal in this State, every
such person, so offending, shal l , on conviction, be punished by impris
onment and l abor in the penitentiary, for any time not l ess than one
year, nor l onger than four years. JVo. 10.
265. SEC. X. If any person shal l wil l ful l y and mal iciousl y burn, or
set fire to any ship, boat, or other vessel , above the val ue of two hun
dred dol l ars, al ongside of any wharf, or at anchor in any river, or in
any waters in this State ; or if any person shal l wil l ful l y and mal icious
l y mak e, or assist in mak ing, any hol e in the bottom, side, or any
other part of any ship, boat, or other vessel , above the val ue aforesaid ;
or do any other act. tending to the l oss or destruction of such ship,
boat, or other vessel , within the waters of this State, as aforesaid, such
person, so offending, shal l , on conviction, be punished by imprisonment
and l abor in the penitentiary, for any time not l ess than three years,
nor l onger than seven years. And, if the ship, boat, or other vessel ,
thus injured or destroyed, as aforesaid, be of the val ue of two hundred
dol l ars, or under that val ue, then the person convicted of injuring or
destroying such ship, boat, or other vessel , as aforesaid, shal l be pun
ished by fine, or imprisonment in the common jail of the county, or
both, at the discretion of the court. JVb. 11.
. .
266. SEC. XL If any person shal l wil l ful l y and mal iciousl y cut down,
injure, or destroy any tree or trees, pl anted or growing in any town,
vil l age, or city ; or in any avenue, yard, garden, orchard, or pl anta
tion, for ornament, shel ter, shade, or profit, such person, so offending,
shal l , on conviction, be punished by fine, or imprisonment- in the com
mon jail of the county, or both, at the discretion of the court.
267. SEC. XII. If any person shal l wil l ful l y or mal iciousl y break ,
deface, destroy, or remove any mil e-stone or post, or any guide-board,
erected upon any publ ic road or highway ; or al ter any mark or in
scription upon any such mil e-stone or post, or guide-board, such per
son, so offending, shal l be indicted for a Misdemeanor, and, on convic
tion, shal l be punished by a fine not exceeding fifty dol l ars, or impris
onment in the common jail , not exceeding thirty days.
268. SEC. XIII. If any person shal l commit any trespass, by wil l
ful l y and mal iciousl y severing from the l and of another, any produce
thereof, such person, so offending, shal l be indicted fora Misdemeanor,
. . PENAL CODE OF GEORGIA. 175
and,. Qfl -conviction, shal l , be-punished by a fine not exceeding one hun
dred dol l ars, or by imprisonment in the common jail , not exceeding
thirty days.- JVa. 14.
269. SEC. XIV. Al l other acts of wil l ful and mal icious mischief, in
the .injuring or destroying any other publ ic or private property, not
therein enumerated^ shal l be punished by fine, or imprisonment in
the common jail , or both, at the discretion of the court before whom the
same shal l be tried.
Whereas, the safety of passengers travel l ing on Rail roads requires the
strictest penal prohibitions to unauthorized persons in any manner interfering
w.ith such roads, or their appurtenances, or pl acing obstructions upon, or moving,
touching or al tering the gates, rail s, switches, or other appendages of said Roads :
270. That if any person or persons shal l intrude upon any Rail road
in this State, constructed by any chartered company, or any part thereof, con
trary to the wil l of the company owning said Road, the person or persons
so intruding, shal l , and may be indicted as for a Misdemeanor, and upon con
viction, fined or imprisoned, or both, at the discretion of the court. 15.
271. II. That if any person shal l wil l ful l y and mal iciousl y destroy, or
in any manner hurt, damage, injure or obstruct, or shal l wil l ful l y and mal i
ciousl y cause, or aid and assist, or counsel or advise, any other person or persons
to destroy, or in any manner to hurt, damage or injure, or obstruct, any such Rail
road, or any branch thereof, or any bridge connected therewith, or any vehicl e,
or edifice, right or privil ege, granted by charter, and constructed for use, under
authority thereof; or if any unauthorized person or persons, shal l turn, move,
or. in any manner interfere or meddl e with, any gate, switch, sidel ing, or other
appurtenance, to any such Rail road, such person or persons so offending, shal l
and may be indicted, and on conviction, shal l be imprisoned at hard l abor in
the penitentiary, for a term of years, not l ess than four, nor l onger than eight,
and shal l further be l iabl e for al l civil damages occasioned by any such act:
and if death to any passenger, or other person on said Rail road, shal l ensue
from any such act, such act or offence shal l be deemed and hel d to be murder,
and shal l be punished accordingl y. of 1837.
272. Sec. I. That if any person or persons shal l wil l ful l y and mal iciousl y
destroy, or in any manner damage, injure or obstruct; or shal l wil l ful l y and
mal iciousl y cause, or aid and assist, counsel or advise, any person or persons,
. to. destroy, or in any other manner to damage, or injure, or obstruct, the West
ern and Atl antic Rail road, or any bridge, edifice, right or privil ege, con
structed for the use of said Road, or if any person or persons shal l , without
authority, turn, move, or in any manner interfere or meddl e with any gate,
switch, sidel ing or other appurtenance to said Road, such person so offending,
shal l be guil ty of a Misdemeanor, and on conviction thereof, shal l be imprisoned
at hard l abor in the penitentiary, for a term of years, not l ess than seven, nor
more than ten. And if death to any passenger, or other person, on said Road,
1 7 6 PENAL CODE OF GEORGI A.
shal l ensue from such act, such act or offence shal l be hel d and deemed to
be murder, and shal l be punished accordingl y. 17. q/ 1845. -
273. Sec. That from and after the passage of this Act, the treasurer of
the Western and Atl antic Rail road, shal l give a bond with good and sufficient
security, payabl e to the governor of this State, and his successors in office, in a
sum of not l ess than twenty, or more than fifty thousand dol l ars, for al l moneys
which may come to his hands, to be approved by the governor.
274. That each and every person connected with the Western and
Atl antic Rail road, whose business and empl oyment require the col l ection and
disbursement of money, or into whose hands money may come, shal l give bond
with good and sufficient security, payabl e to the governor and his successors in
office, in such sum as he and the chief engineer may by order, from time to time,
specify and direct.
275. Sec. That any officer or other agent of the said Road, into whose
hands may come any money bel onging to the State, derived from the business
or operations of said Road, who shal l fail or refuse, on the written demand of
the chief engineer, to pay over or otherwise faithful l y account for the same,
shal l be hel d and deemed as guil ty of embezzl ement, and l iabl e to indictment
in the superior court, and on conviction thereof shal l be sentenced to hard
l abor in the penitentiary, for a term of not l ess than two, or more than seven
years.
276. That al l moneys paid out by the treasurer of the Western and
Atl antic Rail road, shal l be upon the warrant of the chief engineer.
277. That i^ shal l be the duty of each and every l ocomotive engi
neer, empl oyed on said road, before entering upon his duty, to tak e and subscribe
the fol l owing oath : I, A B, do sol emnl y swear, (or affirm, as the case may be,)
that I wil l mak e and return to the office of chief engineer, a true appraisement
of the val ue of every horse, cow, hog or other domestic animal , k il l ed by engine or
train, so far as I may k now: so hel p me God. Which oath or affirmations-hal l
be fil ed in the office of the chief engineer, who shal l cause payment thereof to
be made to the owner upon his appl ication; and in case the owner is dissatisfied
with the said appraised val ue, it shal l be his duty to appoint one appraiser, and
the chief engineer another, who together with the said l ocomotive engineer,
shal l final l y settl e the sum to be paid for the stock so k il l ed.
278. That the governor shal l not sel l at any time, any part of the
right of way heretofore acquired by the State, nor any property or l and, that
may bo necessary now or at any other time, for the erection of dep6ts, wood-
yards, or water stations, or for any other improvement necessary or convenient
to said road.
279. That the governor and chief engineer be, and they are here
by authorized and empowered, to adopt such rul es and regul ations, for the
government and management of said road, as they may deem conducive to the
publ ic interest, not inconsistent with the constitution and l aws of this State, which
shal l be recorded, from time to time, as they are adopted in one or more order
book s, to be k ept for that purpose.
280. That the ninth section of an act, assented to the 29th
December, 1838, entitl ed "An Act to authorize the sal e of scrip, or certificates
. ; ' PENAL CODE OF GEORGI A. 177
of State "debt, and to enl arge-the. duties of the commissioners of the Western
and.jAtl anti c Rail R oad of "Georgia^1 be and the same is hereby repeal ed.
That al l l aws and parts of l aws, mil itating against this act, be and
the- same are hereby repeal ed. 1850.
1.
STATE OF GEO-RGIA, ) The Grand Jurors sworn, chosen, and sel ected
County. for the county of to wit: Samuel Fel -
der, Joseph M. Cooper, James Wil l is, John J. Forsyth, George M. Dal
l as, Edward O. Jenk ins, John Wright, Benjamin Bryan, Creed .T,
Woodson, Al fred Nel son, Martin Jink ins, Daniel Adams, Daniel Web
ster, Zachary Tayl or, John S. Jobson, Til man Downs, Warren E. San
ders, James H. Dunham, Thomas B. Al ien, George F. Cooper. Samp
son B. King, John Gordan, and James K. Ash, in the name and be
hal f of the citizens of Georgia, charge and accuse of the
county and State aforesaid, with the offence of Mal icious Mischief:
with force and arms, did, fraudul entl y and mal iciousl y, the
of one with intent, then and there, to defraud,
prejudice, and injure said contrary to the l aws of said
State; the good order, peace, and dignity thereof.
term, 1850.
Witness, ) " JAMES SMITH,
RICHARD ROB,
2.
In the nanre and behal f of the citizens of GeoSgia, charge and ac
cuse of the counTy and State aforesaid, with the offence of
Mal icious Mischief: for that the said in the county aforesaid,
on. the day of in the year of our Lord one thousand eight
..hundred and with fctoe and arms, did, mal iciousl y, k nowingl y,
andrraudul entl y, an al l owed l and-mark , be-
tween l ots numbers and in the district of
the county aforesaid, to the wrong and injury of his
contrary, & c.
3.
accuse of the county and State aforesaid, with the offence of
Mal icious Mischief: for that the said in the county afore
said, on day of in the year of our Lord one thousand
eight hundred with force and arms, did mal iciousl y destroy
river, in said State and county, erected
by of the .city and port of in
said State and county, to the great injury and danger of the naviga
tion of the said river ; contrary, & c.
4.
said, day of in the year of our Lord, one thousand
eight hundred and with force and arms, did wil l ful l y and mal i
ciousl y, set fire to of the personal goods of
one then and there being, to the damage of the said
contrary, & c.
5.
of the county and State aforesaid, with the offence of Mal i
cious Mischief: for that the said in the county aforesaid,
on day of in the year of our Lord one thousand eight
hundred and with force and arms, did wil l ful l y and mal iciousl y,
set on fire in said county avid State, so as then and there to
occasion l oss, damage and injury to to wit: by
then and there burning twenty panel s of bel onging to said
contrary, & c.

of Mal icious Mischief: for that the said in the county afore
eight hundred and with force and arms, did wil l ful l y and mal i
ciousl y, around the encl osure of one
to the damage of the said contrary, & c.
eight hundred with force and arms, did unl awful l y, wil l ful l y,
and mal iciousl y, in
said, county ; contrary, & c.
of Mal icious Mischief: for that the said in the county afore
eight hundred and with force and arms, a certain col ored
mark ed with a
of the val ue of dol l ars, the property of one
then and there being; then and there, mal iciousl y, did to
the damage of the said contrary, & c.
. PENAL CODE OP GEORGI A. 179
..-V. ; ; -ft.
.in the name and behal f of the citizens of Georgia, charge and ac
eight hundred .arid with force and arms, did mal iciousl y k il l
of the val ue dol l ars, of the goods and
chattel s of one to the damage of said con
trary,. & c.
10.
eight hundred and with force and arms, did mal iciousl y
in said county,
contrary, & c.
11.
the county and State aforesaid, with the offence of Mal i
cious Mischief: for that the said in the county aforesaid, on
dred and with force and arms did wil l ful l y and mal iciousl y
dol l ars, (said
being of the goods and chattel s of one as said
l ay in the port of in said
county and State; contrary, & c.
% 12.
In, the name and behal f of the citizens of Georgia, charge and ac
eight hundre^ and with force and arms, did wil l ful l y and mal i
ciousl y cut down to wit: five Trees, pl anted and
growing in said county, to the great
injury of the inhabitants of said contrary, & c.
^ 13.
In the name andrbehal f of the citizens of Georgia, charge and accuse
of the county and State aforesaid, with the offence of Mis
demeanor: for that the said Doe, in the county aforesaid, on the
with force and arms, did wil l ful l y and mal iciousl y
on the publ ic road from the in said county,
to the contrary. & c.
]80 PENAL CODE OF GEORGIA.
14.
demeanor : for that the said Doe, in the county aforesaid, on the
with force and ai ms, did commit a trespass upon the premises
of there situate, and did, then and there, wil l ful l y and
mal iciousl y sever from the l and of said situate as afore
said, produce of said l and, then
and there growing on said l and ; to the damage of the said
contrary, & c.
15.
demeanor : for that the said in the county aforesaid, on the
and with force and arms, did, contrary to the wil l of the com
pany owning said road, intrude upon the in
this, to wit: said Rail
road having been constructed in this State by a chartered company ;
contrary, & c.
16.
of the county and State aforesaid, with the offence of wil l
ful l y and mal iciousl y connected with the
for that the said in the county aforesaid,
on day of in the year of our Lord, one thousand eight
hundred and with force and arms, did wil l ful l y and mal iciousl y
destroy a connected with
the Rail road, for the use of, and under,the authority of
said Rail road. Said not then and there being ift any man
ner connected with said Rail road, but being an unauthorized person
interfering with said Said Rail road being in
this State, and being constructed by a chartered company. Contrary
to the wil l of the company owning said Road, and contrary, & c.
17.
demeanor : for that the said in the said county; on the
with force and arms, did wil l ful l y and mal iciousl y
constructed for the use of the Western and Atl antic Rail road ; (said
being, then and there, an appurtenance of said Western and
Atl antic Rail road,) without authority for so doing; contrary, & c.
PENAL CODE OF GEORGIA.
CHAPTER XVI.
THIRTEENTH DIVISION,
SEC, I, II, III, IV, V, VI, VII, and VIII, repeal ed by the Act of
849. 303.
.281, SBC. IX. Any person who shal l conceal , harbor, hide, or em
pl oy, in their own, or in the service of any other person or persons,
any sl ave, to the injury of the owner thereof, shal l be guil ty of a High
Misdemeanor ; and on conviction thereof, shal l be punished by imprison
ment and l abor in the penitentiary of this State, for a time not exceed
ing three years, nor l ess than one year, at the discretion of the court;
that on the trial of this offence, the person
charged with it shal l be acquitted, if he or she had an apparent wel l -
founded cl aim to the sl ave so harbored or conceal ed, and had been,
peaceabl y possessed of him twel ve moaths next preceding the com
mencement of such harboring or conceal ing; and on. every conviction
for conceal ing or harboring a sl ave, the owner of such sl ave may re
cover damages in a civil suit for the l oss of the l abor and -services of
such sl ave, notwithstanding such conviction. JVb. 1.

282. SEC. X. Any person who shal l remove or carry, or cause to
be removed or carried away out of this State, or any county thereof,
any sl ave, being the property of another pel -son, without the consent
of the owner, or other,person having authority to give such consent,
and without any intention or design, on the part of the offender, to
sel l or otherwise appropriate the said sl ave to his own use, or to de
prive the owner of his property ia said sl ave, shal l be guil ty of a
. misdemeanor, and be punished by fine or imprisonment in the common
jail of the county, or both, at the discretion of the court. JVb. 2.
283. SEC. XL Any person except the owner, overseer, or em
pl oyer of a sl ave, who shal l beat, whip, or wound such sl ave ; or any
person who shal l beat, whip, or wound a free person of col or, without
sufficient cause or provocation being first given by such sl ave or fre
-182 PENAL CODE OF GEORGIA.
person of col or; such person so offending, may be indicted for a Mis
demeanor, and on conviction, shal l be punished by fine or imprison
ment in the comnion jail of the county, or both, at the discretion of the
court; and the owner of such sl ave, or guardian of such free person
of col or, may, notwithstanding such conviction, recover in a civil suit,
damages for the injury done to such sl ave or free person of col or.
284. SEC. XII. Any owner or empl oyer of a sl ave or sl aves, who
shal l cruel l y treat such sl ave or sl aves, by unnecessary and excessive
whipping ; by withhol ding proper food and sustenance; by requiring
greater l abor from such sl ave or sl aves, than he, she, or they, are abl e
to perform ; or by not affording proper cl othing, whereby the heal th
of such sl ave or sl aves may be injured and impaired; or cause or
permit the same to be done; every such owner or empl oyer shal l be
guil ty of a Misdemeanor, and on conviction, shal l be punished by fine
or imprisonment in the common jail of the county, or both, at the dis
cretion of the court. 4.
-c.
285. SEC. XIII. If any person shal l buy or receive from any sl ave,
any amount of money exceeding one dol l ar; or any cotton, tobacco,
wheat, rye, oats, corn, rice, or poul try of any description whatever;
or any other articl e, commodity, or thing, (except brooms-, bask ets,
foot and bed mats, shuck col l ars, and such other thing or things, arti
cl e or articl es, as are usual l y manufactured or vended by sl aves, for
their own use onl y) without written permission from the owner, over
seer, or empl oyer of such sl ave, or some other person authorized to
give such permission, authorizing such sl ave to sel l and dispose of said
money or other articl e or articl es; such person so offending, shal l be
guil ty of a misdemeanor, and on conviction, be punished by fine or
imprisonment in the common jail of the county, or both, at the discre
tion of the court. If any owner, overseer, empl oyer, shop-k eeper,
store-k eeper, or any other person whatsoever, shal l sel l to or furnish
any sl ave or sl aves, or free person of col or, with spirituous l iquor,
wines, cider, or any intoxicating l iquors, for his own use, or for the
purpose of sal e; such person so offending shal l , upon conviction thereof,
pay a fine of not l ess than ten dol l ars, nor more than fifty dol l ars, for
the first offence, and upon a second conviction, to be subject to fine
and imprisonment in the common jail of the county, at the discretion
of the court, not to exceed sixty days imprisonment and five hundred
dol l ars fine: nothing herein contained shal l prevent the
.owner, overseer or empl oyer, from furnishing their sl aves, or those
under their care, with such quantity of spirits, & c., as they may be
l ieve is for the benefit of such sl ave or sl aves, but in no case to per
mit them, in any way, to furnish others therewith. 5 6.
286. SEC. XIV. If any sl ave or sl aves shal l be found in any store-
hp.use or tippl ing-shop, Unl ess sent by his, her, or their owner, over-
.iseer or empl oyei-, after the hour of nine o cl ock at night, or before
day-break in the morning, or on the Sabbath day, it shal l be tak en
and received as presumptive evidence against the person or persons
owning, or person k eeping the store or tippl ing-shop, of a viol ation of
the Thirteenth Section of this Division, which presumption may be
- rebutted by any "other circumstance in favor of the accused.
.:
,-.; " 287. SEC. XV. If any person shal l sel l or del iver to any sl ave or
sl aves, any goods, wares, or merchandise, or any other thing or things,
unl ess it be in exchange for some articl e or articl es, which the owner,
overseer , or empl oyer, of such sl ave or sl aves, may have authorized
such sl ave or sl aves to trade or deal in, according to the provisions
of the thirteenth section of this Division, such person so offending shal l
be guil ty of a Misdemeanor, and, on conviction, shal l be punished by
fine or imprisonment in the common jail of the county, or both, at the
discretion of the court. JVb. 7.
SEC. XVI. It shal l be the duty of the judges of the superior
courts, at the commencement of every term, to give in charge to the
grand jury, the substance and intention of the sections of this Division,
in regard to trading with sl aves.
289. SEC. XVII. If any person shal l give a tick et, pass, or l icense,
to any sl ave who is the property, or under the care and control of
.another, without the consent of the owner, or other person having the
care or control of such sl ave, such person so offending shal l be guil ty
of a Misdemeanor, and, on conviction, shal l be fined in a sum not ex
ceeding fifty dol l ars. JVo. 8.
290. SEC. XVIII. If any person shal l teach any sl ave, negro, or free
person of col or, to read or write, either written or printed characters ;
or shal l procure, suffer, -or permit a sl ave, negro, or person of col or, to
transact business for him in writing, such person so offending shal l be
guil ty of a Misdemeanor, and, on conviction, shal l be punished by fine
or imprisonment in the common jail of the county, or both, at the dis
cretion of .the court.
291. SEC. XIX. If any person, owning or having in -his possession
and under his control any printing press or types in this State, shal l
use or empl oy, or permit to be used or empl oyed, any sl ave or free
person of col or, in the setting up of types, or other l abor about the
office, requiring in said sl ave or free person of col or a k nowl edge of
reading or writing, such person so offending shal l be guil ty of a
demeanor, and, on conviction, shal l be punished by a fine not exceed
ing one hundred dol l ars. JVb. 10.
292. SEC. XX. If any pedl er or itinerant trader, whether carrying
his goods, wares, and merchandise in a wagon or otherwise, shal l , at
any time, either buy from or sel l to, or otherwise trade with any sl ave or
sl aves, unl ess it be with the permission and in the presence of the
owner, overseer, or other person having charge of such sl ave or sl aves;
such pedl er or itinerant trader shal l be guil ty of a Misdemeanor, and,
on indictment and conviction thereof, shal l be fined in a sum not ex
ceeding one thousand dol l ars, one hal f to the use of the prosecutor, and
the other hal f to the use of the county where the crime was com
mitted, and the defendant shal l stand committed until the fine is paid ;
and a copy of this section shal l be annexed to al l l icenses granted ped-
l ers. 11.
293. SEC. XXL In al l cases where imprisonment in the common
jail of the county, by the sentence of the court, is a part, or the whol e
of the punishment, and the offence is such a one where; by this Code;
no l imitation is fixed for the discretion of the court, such imprisonment
shal l , in no case, exceed six months.
294. That from and after the passing of this act, if any shop-k eeper,
store-k eeper, or any other person or persons whatsoever, shal l sel l to, give,
barter, or in any wise furnish or al l ow to be furnished, by any person in his, her
or their empl oyment, any sl ave, negro, or free person of col or, any printed or
written book , pamphl et, or other printed or written publ ication, writing-paper,
ink , or other articl es of stationery, for his, her or their use, or for the purpose
of sal e, without written or verbal permission from the owner, guardian or other
person authorized: such person or persons, so offending, shal l upon conviction
thereof, pay a fine of not l ess than ten dol l ars, nor more than fifty dol l ars, for the
first offence, and upon conviction for a second offence, be subject to fine and
imprisonment in the common jail of the county, at the discretion of the pourt,
not to exceed sixty days imprisonment and five hundred dol l ars fine.
12.
-
are hereby repeal ed. 1841.
295. That from and after the first day of March next, if any person shal l
iire from any sl ave or sl aves, his time, without a verbal or written authority
: PENAL CODE OF GEORGIA. 185
frimr-the owner or persons haVing the right to control such, sl ave or sl aves,
such person so- hiring shal l be guil ty of a misdemeanor, and upon conviction
thereof, shal l be fined in a sum not exceeding five hundred dol l ars, any l aw or
usage to the contrary notwithstanding. 1S37.
296. That from and after the passage of this act, if any white per
son or persons are found pl acing and betting, or pl aying or betting with a ne
gro or n-egroes, or free person of col or, or free persons of col or, at any game
with cards, dice, or any other game or games of chance or hazard, for the pur
pose of betting upon, or winning or l osing money, or any other thing or things,
articl e or articl es of val ue, or otherwiH ; or any property or any other articl e
or articl es, thing or things ,of val ue ; may be indicted, and on conviction thereof,
for the first oSence shal l be fined in a sum not to exceed one thousand dol l ars,
or imprisonment in the common jail of the county where the offence may be
committed, not to exceed six months; or fine and imprisonment, both, at the
discretion of the court; and upon the second conviction, to be subject to im
prisonment at hard l abor in the penitentiary, not l ess than one year, nor more
than four years. -ZVo. 14.
297. Sec. 17. That on the trial of al l indictments for said offence, the prose
cution shal l not be required to prove the game or games pl ayed, but shal l be
required to prove the pl aying or betting onl y.
Sec. / / / . That al l l aws and parts of l aws mil itating against this act, be and
v
298. That if a sl ave shal l commit a crime or misdemeanor, by the counsel ,
persuasion, or procurement, or other means, of a free white person, and it ap
pearing that the offence was committed by the counsel , or procurement or
other means of a free white person or persons, he, she, or they, shal l be prose
cuted for the offence, and if found guil ty, shal l incur the same punishment, as if
he, she, or they, had actual l y committed the crime or misdemeanor with which
the .sl ave is charged : That this act shal l not be construed to extend
to any crime or offence, which if committed by a sl ave, woul d, under existing
l aws of the State, subject him or her to the punishment of death. 1838.
. 1838,
299. That if any free white person or persons shal l attempt to pro
cure a sl ave or sl aves, to commit a crime or misdemeanor, by counsel , persua
sion, bribery or force, or other means, such free white person or persons
shal l be prosecuted for such attempt, and if found guil ty, shal l incur the same
punishment as if such free white person or persons had attempted to commit
186 PENAL CODE OP GEORGI A.
the said crime or misdemeanor, which he, she or they, attempted to procure the
said sl ave or sl aves to commit.
the same are hereby repeal ed. 1850,
300. That from and after the passage of this act, whenever it shal l
appear after investigation, to the justices of the peace, before whom any sl ave
or free persons of col or, shal l be put upon trial for any offence against the l aws
of this State, that the said sl ave or free person of col or has committed a
capital offence, such sl ave or free person of col or shal l be immediatel y
committed to the jail of the county wherein such offence was committed, if
sufficientl y secure, and if otherwise, tcxtthe nearest secure county jail . And
the justices before whom such examination shal l have tak en pl ace, shal l reduce
their opinion to writing and transmit the same, together with the report in
writing of the evidence tak en before them on such examination, and al l other
papers appertaining to said charge, to the attorney or sol icitor general , being
the prosecuting officer in the superior court of said county, on the first day of
the next term of said court,
301. That upon receiving the papers in any such case, as provided
in the preceding section, it shal l be the duty of such attorney or sol icitor-general ,
to frame and send before the grand jury, a bil l of indictment against the per
son or persons so charged, as in cases of free white persons. And it shal jând
may be l awful for the grand jury in any county of this State, to present to the
superior court of such county, any capital offence committed by any sl ave or
free person of col or within said county, after the passage of this act. And in
any case wherein a sl ave or free person of col or shal l have been committed and
a return made of the papers to the attorney or sol icitor-genera], as provided in
the first section of this act, if there shal l be no prosecutor bound, or appearing
to prosecute the case, it shal l be the duty of the attorney or. sol icitor-general ,
to pl ace before the grand jury, such charge made by such justices of the peace,
together with al l l egal testimony sustaining it, which may be accessibl e to him,
and said grand, jury may, upon such evidence, in their discretion, present such
offence to the court. And al l persons who may now be competent witnesses
by l aw, upon the trial of sl aves and free persons of col or, shal l be competent
witnesses before the grand jury; and upon the trial in the superior court.
302. That after a bil l of indictment found true on presentment
made, as herein before provided, the trial shal l proceed to rendition of verdict,
in conformity with the provisions of the Penal Oodôf this State. And in
.case of conviction, the judge of the superior court before whom such trial
shal l have been had, shal l pass sentence in conformity with the l aws now
in force, imposing penal ties and providing for the passing of sentence in
such cases. And al l l aws now of force, regul ating the subject matter of
this act, and not inconsistent with its provisions, nor with the said fourteenth,
section of the Penal Code, shal l continue of ful l force ; and that al l l aws
and parts of l aws, confl icting therewith., be and the same are hereby repeal ed.
1850. -
to be entitl ed " An Act to repeal al l l aws respecting the Importation
.of "Sl aves into this State, and to give certain powers to Municipal Corporations
: in rel ation to Sl aves."
.303. SBC. I. That from and after the passage of this act, al l l aws or parts
of. l aws, civil and criminal , forbidding or in any manner restricting, the importa
tion of sl aves into this State, from any other sl ave-hol ding State of this Union,
.be and the same are hereby repeal ed.
304. SEC. TI., That it shal l be l awful for the corporate authorities of any city
or town in this" State, by ordinance to regul ate the sal e of sl aves by traders,
^within their l imits, (except sal es at publ ic outcry, at the pl ace of publ ic sal es
.feed by l aw,) and to prescribe the pl aces within their jurisdiction in which marts
for the sal e of sl aves and sl aves for sal e by traders, shal l be k ept, with author
ity to enforce such ordinances. 1849.
1.
of the county and State aforesaid, with the offence of High
dred with force and arms, did a certain negro
sl ave, named of the val ue dol l ars, to the injury of
the owner of said sl ave; he, the said having,
then,and there, no apparentl y wel l founded cl aim to said sl ave
having been in the peaceabl e possession of said sl ave twel ve
months next preceding the commencement of such con
trary, & c.
2.
of the county and State aforesaid, with the offence o-f Mis
day of in the year of our Lord eighteen hundred
with force and arms, did from said a certain
named the property of (without the consent of the
said and without any intention or design, on the part of
the said to sel l or otherwise appropriate the said sl ave
to his own use, or to deprive the said his property in
said sl ave to the great damage of the said con
trary, & c.
3.
and with force and arms in and upon a eertan negro
named then and there, the property of one did
mak e an assaul t, and Mm, the said did then and there
without sufficient cause or provocation being first given by
said to the said the said then and
there, not being the owner, overseer, or empl oyer of said
contrary, & o.
And the jurors aforesaid, in the name and behal f
of the county and State aforesaid, with the offence of Misde
meanor : for that the said in the county aforesaid, on the
day of in the-year of our Lord one thousand eight hundred
and with force and arms in and upon a certain negro
n/ imed (the said then and there being the property of one
did mak e an assaul t; and that the said with
a certain the val ue of dol l ars, then and there being
l oaded and charged with and l eaden shot, which
S aid he, the said in both his hands then and there
had and hel d ; to, at, against, and upon said then and there
did fire, shoot off, and discharge ; and that the with the
shot aforesaid, out of the aforesaid, then and
there, by force of the aforesaid, shot and sent forth as
aforesaid, the said in and upon the and in and upon
the and in upon the and of the said
JVe^,.then and there did strik e, penetrate, and wound ; giving to
the said then and there, with the l eaden shot afore^
said, so as aforesaid fired, shot off, discharged, and sent forth, out of
the aforesaid ; so as aforesaid, had and hel d by the said
wounds, to wit: wounds in and upon the of the
said wound in and upon the of said
wound in and upon the of the said
wound in and upon the of said each of said
wounds being of the depth of and of the breadth of
without sufficient cause or provocation being first
given by said to said said not then
and there being the owner, overseer, or empl oyer of said
contrary, & .c.
4. & c.,
day. of in the year of our Lord one thousand eight hun
dred and _ / i/ ? y, .and on divers days and times, before and since that day^
and previous to the finding of this bil l of indictmejat, was the
and having in his possession and under his control , the fol l owing
named sl aves, to wit: did then and there, during the
period and at the time aforesaid, cruel l y treat the afore-named sl aves,,
by withhol ding whereby the heal th of said
sl aves became injured and impaired ; contrary, & c.
NOTE. When the cruel treatment, for which the accused is indicted, occurs under ai>,
overseer, add another count, and say, " said then and there, causing and permit
ting the same to be done," contrary, < fec.
, PENAL CODE OF GEORGIA. ,189
; .
In the name and behjal f of the citizens of Georgia, charge and ac-
.cuse of the county and State aforesaid, with the offence of
the year of our Lord one thousand eight hun
dred and did buy from a certain negro sl ave, named
then and there, the property of one of said county, a
certain quantity, to wit: of the val ue of
dol l ar,--without written permission from the owner, overseer, or em-
pl oyer of said sl ave, or from any other person authorized to give such
permission, authorizing said sl ave to sel l and dispose of said
said not, then and there, being either a broom, bask et, foot-
mat, .bed-mat, shuck col l ar, or such other thing or things, articl e or
articl es, as is usual l y manufactured and vended by sl aves, for their
own use onl y; to the damage of said contrary, & c.
6.
Furnishing a with for that the said
in the county aforesaid, on the day of in the year of
our Lord one thousand eight hundred and being then and there
a did a negro named (said
being then and there the property of one with a
certain quantity of to wit: for his, the said
own use, (without the k nowl edge or consent of the owner, overseer or
empl oyer of said ; he, the said not then and there,
being the owner, overseer, or empl oyer, of said and not
then and there having the said under his. care ; to the
damage of him, the said contrary, & o.
7.
Misdemeanor: for that the said in the county aforesaid,
hundred and certain negro sl ave named
the property of without the k nowl edge and consent of
the said the same not being
in exchange for any articl e or articl es which the said
{or any other person authorized to give such consent,) authorized said
sl ave to deal or trade in, nor such articl e or articl es as by l aw
sl aves are al l owed to manufacture and vend for their own use; con-
/ trary, & c. .
8.
Misdemeanor: for that the said in the county aforesaid,
hundred and (without the consent of the owner or any other
person having the care or control of said sl ave,) did give to a
certain negro sl ave, named the property of
contrary, & c.
9.
In the name and behal f of the citizens of Greorgia, charge and ac
of Misdemeanor: for that the said in the county afore
eight hundred and and on divers other days and times, between
that time and the day of preferring this bil l of indictment, a
negro named the property of him, the said
to characters ; contrary, & c.
10.
Misdemeanor : for that the said in the county aforesaid,
hundred and did and have in his possession and under his
control , a in said county and State ; and did then and
there empl oy, and permit to be used and empl oyed, a certain negro
named the property of him, the said in
setting up the said empl oyment requiring in said sl ave a k now
l edge of reading; contrary, & c.
11.
Misdemeanor : for that the said in the county aforesaid,
hundred and was a carrying his goods, wares and mer
chandise and the said being such pedl er as
aforesaid, then and there, (without the permission or in the presence of
the owner, overseer or other person having charge of a certain negro
the property of did to said
negro certain articl es, to wit: yards of
contrary, & c.
12. < SfC.,
In the name [ and behal f of the citizens of Greorgia, charge and ac
Furnishing a with stationery: for that the said in
the county aforesaid, on the day of in the year of our Lord
one/ thousand eight hundred and did then and there, sel l to a
certain named the property of
of for his, the said
without written or .verbal permission from the of said or
other person authorized to give said sl ave permission to said
contrary, & c. " ,
. .., :; 13.
Irr the name and behal f of the citizens of Georgia, charge and ac
the day of in the year of our Lord oip thousand eight
hundred without verbal or written authority from the own
er, or person having the right to control a certain sl ave named
.the property of did then and there, hire from said sl ave
his time, to the great injury of said contrary, & o.
14.
In. the name and behal f of the citizens of Georgia, charge and ac
Pl aying with a for the purpose of
for that the said on the day of in the year of
our Lord one thousand eight hundred and in the county afore
said, did a game cal l ed with a certain
named the property of one for the purpose of
then and there from said contrary, & c.
CHAPTER XVII.
FOUETEENTH DIVISION.
305. SEC. I, Every Indictment or Accusation of the Grand Jury,
shal l be deemed sufficientl y technical and correct, which states the
offence in the terms and l anguage of this Code, or so pl ainl y, that the
nature of the offence charged may be easil y understood by the jury.
The form of every Indictment or Accusation, shal l be as fol l ows :
STATE OF GEORGIA, | The Grand Jurors,sworn, chosen, and sel ect-
County. j ed, for the County of , to wit: ,
in the name and behal f of the citizens of Georgia, charge and accuse
A. B., of the County and State aforesaid, with the offence of :
for that the said A. B., (here state the offence, and the time and
pl ace of committing the same, with sufficient certainty,) contrary to
the l aws of said State, the good order, peace, and dignity thereof."
If there shoul d be more than one count, each additional count shal l
commence with the fol l owing form : "And the Jurors aforesaid, in the
name and behal f of the citizens of Georgia, further charge and accuse
the said A. B. with having committed the offence of , (here
state the offence, as before directed ; ) for that," & c.
306. SEC. II. Al l exceptions which go merel y to the form of an in
dictment, shal l be made before trial ; and no motion in arrest of judg
ment shal l be sustained, for any matter not affecting the real merits
of the offence charged in such indictment.
307. SEC. III. Upon every indictment the prosecutor s name shal l
be endorsed, who, upon the acquittal or discharge of the person ac
cused, shal l be compel l ed to pay al l costs which have accrued, if the
Grand Jury by their foreman, upon returning " no bil l ," express it
as their opinion that the prosecution was unfounded, or mal icious ;
or, if the petit jury, upon returning a verdict of "not guil ty," shal l "
express a simil ar opinion.
308. SEC. IV. A person against whom a bil l of indictment shal l be
preferred, and not found true by the grand jury ; or who shal l be ac
quitted by the petit jury of the offence charged against him or her,
shal l not be l iabl e to the payment of the costs; and in al l such cases,
as al so where persons l iabl e by l aw for the payment of costs, shal l be
unabl e to pay the same, it shal l and may be l awful for the officers,
several l y, entitl ed to such costs, to present an account therefor to the
judge of the court in which the said prosecutions were depending,
which account being examined and al l owed him, it shal l and may be
l awful for said judge, by an order of said court, to authorize and direct
the sheriff or cl erk to retain for his own use, and to pay to the attor
ney or sol icitor general , and other officers of the court, the amount of
their respective accounts, out of any moneys by him received for fines
infl icted by the said court, or col l ected on forfeited recognizances.
309. SEC. V. It shal l be the duty of the attorney or sol icitor gene
ral , to prosecute on al l presentments of grand juries, where such pre
sentment or presentments is, or are for offences indictabl e by l aw ; and
the endorsement on the indictment by the attorney or sol icitor gene
ral , that the same is founded on the presentment of a grand jury, shal l
' : PENAL CODE OP GEORGI A. 1 93
be sufficient, without any prosecutor s name appearing on the indict-
menf. . >
.310. SEC. VI. No person indicted, unl ess it be for an offence which,
may, rn conviction, subject him or her to death or imprisonment in the
penitentiary for.,the term of three years or more, shal l be put for his
or her arraignment, in the bar-dock , or other pl ace set apart in the
court-room for the arraignment of prisoners.
:
311. SEC. VII. Every person charged with a crime or offence which
may subject him or her, on conviction, to death, or imprisonment in
the penitentiary, for the term of three years, or more, shal l be furnish
ed, previous..to his or her arraignment, with a copy of the indictment,
: and a l ist of the witnesses who gave testimony before the grand jury.
312. SEC. VIII. Every person charged with an offence, shal l , at his
or her request, or the request of his or her counsel , be furnished
with a copy of the indictment, and a l ist of the witnesses who gave
" evidence before the grand jury.
313. SEC. IX. Upon the arraignment of a prisoner, the indictment
shal l be read to him or her, and such prisoner shal l be required to an-
. swer, whether he or she is guil ty or not guil ty of the offence charged
in the said indictment; which answer or pl ea shal l be made oral l y by
the prisoner, or his or. her counsel , and if he or she shal l pl ead
. guil ty, such pl ea shal l be immediatel y recorded on the minutes of the
court, by the cl erk , together with the arraignment; and the court
shal l pronounce upon such prisoner the judgment of the l aw, in the
same manner as if such prisoner had been convicted of the offence by
the verdict of a jury ; but at any time before judgment is pronounced,
such prisoner may withdraw the pl ea of "guil ty," and pl ead "not
guil ty," and such former pl ea shal l not be given in evidence against
him or her, on ius or her trial .
314. SEC. X. If the prisoner, upon -being arraigned, shal l pl ead
"not guil ty," or shal l stand mute, the cl erk shal l immediatel y record
upon the minutes of the court, the pl ea of "not guil ty," together
with the arraignment, and such arraignment and pl ea shal l constitute
the issue, between the prisoner and the peopl e of this State.
315. SEC. XI. If the prisoner upon being arraigned shal l demur to
the indictment, or pl ead to the jurisdiction of the court; or in abate
ment ; or any special pl ea in bar, such demurrer or pl ea shal l be made
in writing; and if such demurrer or pl ea shal l be decided against such
prisoner, then such prisoner may neverthel ess pl ead and rel y on the
general issue of "not guil ty."
316. SEC. XII. If the cl erk shal l fail or negl ect to record the ar
raignment, and pl ea of the prisoner, at the time the same is made, it
may and shal l be done at any time afterwards, by order of the court,
and.this shal l cure the error or omission of the cl erk .
317. SEC. XIII. The arraignment and pl ea or answer of the pris
oner, shal l be entered on the indictment, by the Attorney or Sol icitor-
General , or other person acting as prosecuting officer on the part of
the peopl e of this State.
318. SEC. XIV. No prisoner shal l be brought into court for araign-
ment or trial , tied, bound, or fettered, unl ess the court shal l deem it
necessary, during his or her arraignment, or trial : and if the heal th of
the prisoner, or other circumstances, shoul d render it more convenient
to the prisoner and his counsel , that he or she shoul d not be pl aced,
for his or her arraignment, or during his or her trial , within the bar-
dock , or other pl ace assigned in the court-room for prisoners, the court
may grant the indul gence of removing the prisoner to any other pl ace
in the court-room, or contiguous toil , requested by the prisoner, or his
or her counsel .
319. SEC. XV. Every person indicted for a crime or offence which
may subject him or her, on conviction, to death or four years impris
onment, or l onger, in the penitentiary, may peremptoril y chal l enge
twenty of the jurors empannel l ed to try him or her and every person
indicted for an offence which may subject him or her, on conviction,
to imprisonment in the penitentiary, for any time l ess than four years,
may peremptoril y chal l enge twel ve of the jurors empannel l ed to try
him or her. And the State shal l be al l owed one hal f the number of
peremptory chal l enges al l owed the prisoner.
320. SEC. XVI. On every trial of a crime or offence contained in
this Code ; or for any crime or offence, the jury shal l be judges of the
l aw and the fact; and shal l in every case give a general verdict
of "guil ty" or not guil ty ; " and on the acquittal of any defendant
or prisoner, no new trial shal l , on any account, be granted by the
court.
321. SEC. XVII. Every person against whom a bil l of indictment
is found, shal l be tried at the term of the court the indictment is found,
unl ess the absence of a material witness or witnesses, or the principl es
of justice, shoul d require a postponement of the trial , and then the
court shal l al l ow a postponement of the trial until the next term of the
court and the court shal l have power to al l ow the continuance of
criminal causes, from term to term, as often as the principl es of justice
may require, upon sufficient cause shown, on oath.
/ PENAL CODE OF GEORGIA. 195
. : ; ":
,r"322. SEC. XVIII. Ariy pergon against whom a true bil l of indict
ment is found, for an. offence not affecting his or her l ife, may demand
a trial at the-term -when the indictment is found, or at the next succeed-
. ing term thereafter; which demand shal l be pl aced upon the minutes of
the court; and: if such person shal l not be tried at the term when the
demand is. made,. or at the next succeeding term thereafter :
that at; bqth--terms there were juries empannel l ed and qual ified to try
. , such prisoner; then he or she shal l be absol utel y discharged and ac-
.quitted of the offence charged in the indictment.
323. SEC. XIX. No shal l be entered on any bil l of
indictment, after the case has been submitted to the jury, except by
the consent of the defendant.
324. SEC. XX. In al l criminal cases, the fol l owing oath shal l be ad
ministered to the petit jury, to wit: " You shal l wel l and trul y try the
issue, formed upon this bil l of indictment, between the State of Georgia
and A B,who is charged, (here state the crime or offence; ) and a true
verdict give, according to evidence so hel p you God."
325. SEC. XXI. The fol l owing oath shal l be administered to wit
nesses in criminal cases, viz.: " The evidence you shal l give to the
court and jury, upon the trial of this issue, between the State of
Georgia and A B, who is charged with , (here state the crime or
. offence; ) shal l be the truth, the whol e truth, and nothing but the truth
so hel p you God."
-c.
326. SEC. XXII. And the fol l owing oath shal l be administered to
witnesses intended to be sent before the Grand Jury: " The evidence
you shal l give the Grand Jury, on this bil l of indictment, (or present
ment,) as the case may be, (here state the case ; ) shal l be the truth,
the whol e truth, and nothing but the truth so hel p you God." In
every case in this Code, the person whose property has been stol en,
injured, destroyed, tak en away, or fraudul entl y converted or conveyed ;
.or whose name hath been forged to any instrument; or who hath re
ceived a personal injury, shal l be a competent witness, qn the trial of
the offender or offenders.
327. SEC. XXIII. Where a person shal l be prosecuted and convict
ed, on more than one indictment, and the sentences are imprison-
. ment in the penitentiary, such sentences shal l be several l y executed,
the one after the expiration of the other ; and the judge shal l specify
in each, the time when the imprisonment shal l commence, and the
l ength of its duration.
196 PENALv CODE OF GEORGIA.
328. SEC XXIV. Al l fines imposed by this act, not otherwise appro
priated by this Code, shal l be paid over by the cl erk s of the Superior
Court, to the County Treasurer ; .or in counties where there are no
treasurers, to Cl erk s of the Inferior Courts, forcounty purposes ; except
the county of Chatham, where the said fines shal l be paid over to the
corporation of the city of Savannah; and the cl erk s of the Inferior
Courts shal l k eep a fair account of the fines so received, and the time
when received, and the names of the persons from whom the said fines
were col l ected.
..
329. SEC. XXV. Every fine imposed by the court under the author
ity, and by virtue of this act, shal l be immediatel y paid, or within
such reasonabl e time as the court may grant.
330. SEC. XXVI. In al l cases where the term of punishment in the
penitentiary is discretionary, the court shal l determine that punish
ment, paying due respect to any recommendation which the jury may
think proper to mak e, in that regard.
331. SEC. XXVII. Every person convicted in any county of this
State, of any crime or offence, punishabl e with confinement in the
penitentiary, shal l , as soon as possibl e after conviction, together with
a copy of the record of his or her conviction and sentence, be safel y
removed and conveyed to the said penitentiary, by a guard to be sent
therefrom for that purpose, and therein be safel y k ept during the
term specified in the judgment and sentence of the court. [ That when
any person shal l be convicted in any court in this State, of a crime or
misdemeanor hereafter to be committed, which shal l subject him, her
or them, to imprisonment and l abor in the penitentiary of this State,
the judge before whom such trial and conviction may be had, shal l
sentence the person so convicted, to hard l abor, for such period of time
as he is authorized by the Penal Code of this State, in the penitentiary
of this State, or at such other pl ace or pl aces as the Governor of the
State may thereafter direct.]
332. SEC. XXVIII. In al l cases where persons are convicted and
sentenced to imprisonment in the penitentiary, it shal l be the duty of
the cl erk s of the superior courts, of the respective counties, where
such persons may be convicted and sentenced, to inform the principal
k eeper of the penitentiary immediatel y thereafter by mail , or by pri
vate conveyance, where there is no post-office in the county, of the
conviction and sentence of said convict, and that he or she is detained
in the county jail , or under guard, as the case may be, subject to the
order of the k eeper aforesaid.
' . / . ' PENAL CODE OF GEORGI A. 1 97
..V-
333 SEC. XXIX. The trial of-prisoners escaping from the peniten
tiary, shal l be had for such escape, before the superior court of Bal d
win county ; and prisoners so escaping shal l remain in the peniten
tiary, and be treated as other convicts, after their apprehension,
until such trial shal l tak e pl ace ; and upon such trial , the copies of
the records, .transmitted to the k eeper of the penitentiary, rel ative to
the former trial s of such prisoners, shal l be produced and fil ed of
re cord,, in the superior court of Bal dwin county.
.334. SEC. XXX. When any person may be convicted of any offence
which may subject him or her to confinement in the penitentiary, it
shal l be the duty of the presiding judge, by his sentence, to order the
convict into custody, to be safel y k ept in jail , or if there be no jail in
the county, then in the nearest jail , or under a suitabl e guard, until
he or she shal l be demanded, by a guard to be sent from the peniten
tiary for the purpose of conveying such convict to the said peniten
tiary .
335. That when any person shal l be convicted in any court in this
State, of a crime or misdemeanor hereafter to be committed, which
shal l subject him, her, or them, to imprisonment and l abor in the peni
tentiary of this State, the judge before whom such trial and conviction
may be had, shal l sentence the person so convicted to hard l abor, for
such period of time as he is authorized by the Penal Code of this
State, in the penitentiary of this State, OR AT SUCH OTHER PLACE OR
PLACES AS THE GOVERNOR OF THE STATE MAY THEREAFTER DIRECT.
336. SEC. XXXI. No person convicted of a crime in this State,
shal l be al l owed the benefit of cl ergy ; and in al l cases where the
penal ty of death is annexed to a crime, the convict shal l suffer that
punishment.
337. SEC. XXXII. The sentence of death shal l be executed by pub-
l iel y hanging the offender by the neck , until he or she is dead.
338. SEC. XXXIII. It shal l be the duty of the judges of the Supe-
.rior courts, to mak e a special report annual l y, to the Governor of this
State, previous to the meeting of the General Assembl y, and by him
to be submitted to the l egisl ature, of al l such defects, omissions, or
. imperfections in this Code, as experience on their several circuits may
suggest. .
339. SEC. XXXIV. Al l crimes and offences committed shal l be
prosecuted and punished under the l aws in force at the time of the
commission of such crime or offence, notwithstanding the repeal of
such l aws before such trial tak es pl ace.
14
i? ENAr, CODE OF GEORGIA.
;
340. SEC. XXXV. Indictments for murder may be found and pros
ecuted at any time after the death of the person k il l ed. In al l other
cases, (except murder,) where the punishment is death, or perpetual
imprisonment, indictments shal l be fil ed and found in the proper court
within seven years next after the commission of the offence, and at no
time thereafter. In al l other fel onies, the indictments shal l be found
and fil ed in the proper court, within four years next after the commis
sion of the offence, and at no time thereafter. And in al l other cases,
where the punishment by l aw is fine or imprisonment, or fine and im
prisonment in the common jail of the county, indictments shal l be found
and fil ed in the proper court, within two years after the. commission
of the offence, and at no time thereafter : that
if the offender shal l abscond from this State, or so conceal himsel f
that he cannot be arrested, such time during which such offender has
been absent from the State, or conceal ed, shal l not be computed or
constitute any part of the said several l imitations: that
al l crimes heretofore committed, shal l be governed by the l ik e l imita
tions, to be computed from the first day of June next. .
341. That the time prescribed in the thirty-fifth section arid four
teenth Division of the Penal Code of this State, within which indict
ments shal l be fil ed and found, shal l not extend to those cases in which
the offender, or offenders, is, or are, unk nown ; and al l l aws mil itating
against this Act, be, and the same are hereby repeal ed.
342. SEC. XXXVI. When a person shal l be convicted on circum
stantial evidence al one, of a crime, the punishment of which is death,
the judge before whom the conviction tak es pl ace, or who passes the
sentence of the l aw on the convict, shal l have the power to commute
the punishment of death, for that of imprisonment, and l abor in the
penitentiary, during the natural l ife of the said convict.
343. SEC. XXXVII. If, after any convict shal l have been sentenced
to the punishment of death, he shal l become insane, the sheriff of the
county, with the concurrence and assistance of the inferior court
thereof, shal l summon a jury of twel ve men, to inquire into such in
sanity ; and if it be found by the inquisition of such jury, that such
convict is insane, the sheriff shal l suspend the execution of the sen
tence directing the death of such convict, and mak e report of the said
inquisition and suspension of execution, to the presiding judge of the
district, who shal l cause the same to be entered on the minutes of the
superior court of the county where the conviction was had. And at
any time thereafter, when it shal l appear to the said presiding judge,
either by inquisition or otherwise, that the said convict is of sound
mind, the said judge shal l issue a new warrant, directing the sheriff to
do execution of the said sentence, on the said convict, .at such time
and pl ace as the said judge may appoint and direct, in the said war
rant, which the sheriff shal l be bound to do accordingl y. And the
said judge shal l cause the said new warrant and other proceedings in
the case, to be entered on the minutes of the said superior court.
. ; TENAL CODE OF GEORGIA. 199
'-' . * >
. x
V344: SEC. XXXVIII. If a_ femal e convict, sentenced to the punish-
: ment of death, shal l be found pregnant with chil d, the sheriff, with the
. concurrence and assistance of the inferior court, shal l sel ect one or
. more physician pf physicians, who shal l mak e inquisition, and if upon
such inquisition, it appear that such femal e convict is quick with chil d,
, the sheriff shal l suspend the execution of the sentence, directing the
death Of . such femal e, and mak e report of the said inquisition and sus
pension of execution, to the presiding judge of the district, who shal l
cause the same to be entered on the minutes of the superior court of
the county where the.conviction was had and at any time thereafter,
when it shal l appear to the said presiding judge, that the said femal e
convict is no l onger quick with chil d, he shal l issue a new warrant,
directing the sheriff to do execution of the said sentence, at such time
and pl ace as the said judge may appoint and direct, in the said war
rant, which the sheriff shal l be bound to do accordingl y. And the
said judge shal l cause the said new warrant and other proceedings in
the case to be entered on the minutes of said superior court.
345. SEC. XXXIX. Whenever, for any reason, any convict sentenced
: to the punishment of death, shal l not have been executed pursuant to
such, sentence, and the same shal l stand in ful l force, the presiding judge
of the Superior Court, where the conviction was had, on the appl ication
of the attorney or sol icitor general of the district, or other person
prosecuting for the State, shal l issue a to bring such
convict before him ; or if such convict be at l arge, said judge, or any
judicial officer of this State, may issue a warrant for his apprehension,
and upon the said convict being brought before the said judge, either
by or under such warrant, he shal l proceed to inquire
into the facts and circumstances of the case, and if no l egal reason ex
ist against the execution of such sentence, such judge shal l sign and
issue a warrant to the sheriff of the proper county, commanding him
to do execution of such sentence, at such time and pl ace as shal l be
appointed therein, which the said sheriff shal l do accordingl y. And
the judge shal l cause the proceedings, in such case, to be entered on
the minutes of the Superior Court of the county.
346. SEC. XL. Whenever any convict shal l be sentenced to the
punishment of death, the court shal l specify the time and pl ace of ex
ecution in such sentence, which time shal l not be l ess than twenty
days, nor more than sixty days from the time of the sentence, except
in the case of a femal e convict, who is quick with chil d at the time,
in which case the court may and shal l appoint some day that wil l ar
rive after she shal l have been del ivered of such chil d.
347. SEC. XLI. When an offence shal l be committed on the bound
ary l ine of two counties, it shal l be considered and adjudged to have
been committed in either county, and an indictment for such offence
may be found and tried in, and conviction thereon may be had, in
either of said counties.
348. SEC. XLII. When any mortal wound shal l be given ; or any
poison shal l be administered ; or any other means shal l be empl oyed
in one county, by which a human being shal l be k il l ed, who shal l die
thereof in another county, the indictment shal l be found, and the- of
fender shal l be tried, in the county where the act was performed or
done, from which the death ensued.
349. SEC. XLIII. No l unatic or person affl icted with insanity, shal l
be tried, or put upon his trial for any offence during the time he is
affl icted with such l unacy or insanity. 4
350. SEC. XLIV. No person shal l be convicted of an assaul t with
intent to commit a crime, or of any other attempt to commit any of
fence, when it shal l appear that the crime intended, or the offence
attempted, was actual l y perpetrated by such person at the time of
such assaul t, or in pursuance of such attempt. 366.
351. SEC. XLV. Upon the trial of an indictment for any offence, the
jury may find the accused not guil ty of the offence charged in the in
dictment, but guil ty of an attempt to commit such offence, without
any special count in said indictment for such attempt the
evidence before them wil l warrant such finding.
352. SEC. XLVL If any person who has been convicted of an of
fence, and sentenced to confinement and l abor in the penitentiary, shal l
afterwards commit a crime, punishabl e by confinement and l abor in
the penitentiary, and be thereof l awful l y convicted, such convict shal l
be sentenced to undergo and suffer the l ongest period of time and
l abor prescribed for the punishment of such offence, of which he stands
convicted.
353. SEC. XLVII. On the trial of any convict in the penitentiary,
for the crimes of escape and mutiny, or either of them, any other
prisoner or convict, not incl uded in the same indictment, shal l be a
competent witness; and the infamy of his character and of the crime
of which he has been convicted, shal l be exceptions to his credit onl y.
.354. SEC. XLVIII. On al l trial s for crimes or offences, where the
punishment is death, or imprisonment and l abor in the penitentiary,
any juror may be put on his and the fol l owing questions shal l
be .propounded to him, viz: "Have you, from having seen the crime
.committed, or having heard; any part of the evidence del ivered on
oath, formed and expressed any opinion, in regard to the guil t or in
nocence of the prisoner .at the bar ? " If the juror shal l answer in the
negative, the fol l owing question shal l be propounded to him : "Have
you any prejudice or bias, resting on your mind, for or against the
prisoner at the bar? " And if the juror shal l so answer these questions
as to -irifck e him a competent juror, the State or the prisoner may,
neverthel ess, have the right to put such juror upon his trial in the
manner pointed out by l aw, and to prove such juror incompetent.
355. SEC. XLIX. Any person sentenced to confinement and l abor
in the penitentiary, is and shal l be thereby rendered incapabl e of hol d
ing or exercising any publ ic or private office, trust, power or authori
ty, and any such hel d by him shal l become and be vacant, by virtue of
such sentence.
356. SEC. -L. When two or more defendants shal l be jointl y indicted
for any offence, any one defendant may be tried separatel y, except
such offences as require the action and concurrence of two or more to
constitute the crime ; and in such cases the defendants shal l be tried
jointl y. 368 369.
. 357. SEC. LI. On the trial of any indictment for an or an
the defendant may give in evidence to the jury,
any opprobrious words, or abusive l anguage, used by the prosecutor,
or person assaul ted or beaten; and such words and l anguage may, or
may not, amount to a justification, according to the nature and extent
of the battery; al l which shal l be determined by the jury.
358. SEC. LII. On the trial of the question of insanity, arising after
the person shal l have been condemned to die, provided for by the
Thirty-seventh Section of this Code, the fol l owing oath
shal l be administered to the jury, to wit: "You, and each of you, do
sol emnl y (swear or affirm,) that you wil l wel l and trul y try this issue
of insanity, between the State and (A. B.) now condemned to die, and
a true verdict give according to evidence so hel p you God."
359. SEC. LIII. That on the trial of al l cases, where the party, if
found guil ty, woul d be subjected to confinement in the penitentiary, or
to any greater punishment, it shal l be the duty of the presiding judge
to have the testimony, given in said cases, tak en down; and in the
event of the jury returning a verdict of guil ty, the testimony shal l be
entered on the minutes of the court, or a book to be k ept for that
purpose.
CHAPTER XVIII
FIFTEENTH DIVISION.
360. SEC. I. The power of the several courts of l aw and equity
in this State, to issue attachments and infl ict summary punishments, for
contempts of court, shal l not extend to any cases, except the misbe
havior of any person or persons, in the presence of the said courts, or
so near thereto as to obstruct the administration of justice; the misbe
havior of any of the officers of said courts, in their official transactions,
and the disobedience or resistance, by any officer of said courts, party,
juror, witness, or any other person or persons, to any l awful writ,
process, order, rul e, decree or command, of the said courts.
361. SEC. II. If any person shal l attempt to commit an offence pro
hibited by l aw, and in such attempt shal l do any act towards the com
mission of such offence, but shal l fail in the perpetration thereof, or
shal l be prevented or intercepted from executing the same; such per
son so offending, shal l be indicted for a misdemeanor, and on conviction
thereof shal l , in cases where no provision is otherwise made in this
Code, or by l aw for the punishment of such attempt, be punished as
fol l ows:
362. If the offence attempted to be committed be such as is
punishabl e by l aw with death, the person convicted of such attempt,
any time not l ess than two years, nor more than seven years.
363. If the offence attempted to be committed, be punisha
bl e by l aw, by imprisonment and l abor in the penitentiary, for a time
not l ess than four years, the person convicted of such attempt, shal l
time not l ess than one year, nor more than four years.
364. If the offence attempted to be committed be such as
is punishabl e by l aw, by imprisonment and l abor in the penitentiary
for a time not l ess than two years, the person convicted of such, at
tempt shal l be imprisoned in the penitentiary at l abor for the term
of one year.
36.5. Tf the offence attempted to be committed be punish
abl e by l aw, by imprisonment and l abor in the penitentiary, for a time
not exceeding one year, the person convicted of such attempt shal l be
punished by fine not exceeding five hundred dol l ars, or imprisonment
in the comm6n jail , or both, at the discretion of the court.
366. the offence attempted to be committed be punisha
bl e by l aw; bjr fine not exceeding five hundred dol l ars, or imprison
ment iii the common jail , or both, the person convicted of such at-
tempt shal l be punished by fine, or imprisonment in the common jail ,
at the discretion of the court. 350.
36.7. SEC. III. The fol l owing acts and parts of acts, that is to say
an Act entitl ed " An Act decl aring that to murder any free Indian in
amity with this province, is equal l y penal with the murder of any
white person, and that to rescue a prisoner committed for such of
fence, is fel ony," passed on the 20th day of June, 1774. An Act
entitl ed "An Act more effectual l y to prevent the evil practice of
Stabbing," passed on the 26th day of November, 1802. The 4th, 5th,
20th and 22d sections of an Act entitl ed " An Act to carry into effect
the Penal - Code of this State, and the penitentiary system founded
thereon," passed the 19th day of December, 1816. An Act entitl ed
"An Act to amend the Penal Code of this State," passed the 20th
day of December, 1817. An Act entitl ed " An Act to repeal the Act
passed on the 16th December, 1811; and the Act passed on the 19th
December, 1816, on the subject of the Penal Code of this State; and
to amend the Act passed on the 20th December, 1817, entitl ed An
Act to amend the Penal Code of this State," passed on the 19th De
cember, 1818, except the 7th section thereof. An Act entitl ed "An
Act to amend an Act, entitl ed an Act to amend the Penal Code of
this State, passed on the 20th day of December, 1817," passed on
the 18th December, 1819. The first section of an Act entitl ed "An
Act to al ter and amend the Penal Code of this State, passed on the
20th day of December, 1817," passed on the 20th day of December,
1820. An Act entitl ed " An Act to al ter and amend an Act passed
on the 20th day of December, 1820, entitl ed an Act to al ter and
amend the Penal Code of this State, passed on the 20th day of De
cember, 1817," passed on the 23d December, 1822. An Act enti
tl ed An Act to amend the 12th secti6* h of the Ninth Division of the
Penal Code of this State," passed on the 22d December, 1828. An
Act entitl ed " An Act to al ter and amend the 8th and 9th sections of
the Ninth Division of the Penal Code, passed the 20th December,
1817," passed on the 22d day of December, 1829. -An Act entitl ed
An Act to amend the Penal Code , passed in the year 1817," passed
the 21st day of December, 1829. The 10th and l l th sections of an
Act entitl ed " An Act to amend the several l aws now in force in this
State, regul ating Quarantine in the several seaports of this State,
and to prevent the circul atin of written or printed papers within this
State, cal cul ated to excite disaffection among the col ored peopl e of
this State, and prevent said peopl e from being taught to read or write,
& c., & c.," passed the December, 1829. An Act entitl ed "An
Act to prohibit the empl oyment of sl aves and free persons of col or, in
the.setting of types in printing offices in this State," passed the 22d
December, 1829. The 1st, 4th, 6th, and 7th sections of an Act en
titl ed "An Act to al ter and amend an Act to prohibit sl aves from
sel l ing certain commodities therein mentioned," passed the 19th De
cember, 1818. The 3d section of an Act entitl ed " An Act for regu
l ating Taverns and reducing the rates of Tavern Licenses," passed
the 24th December, 1791. The 1st section of an Act entitl ed "An
Act suppl ementary to an Act, entitl ed an Act respecting Bastardy
and other immoral ities," passed the 26th November, 1802. The 5th
section of an Act entitl ed "An Act to regul ate Taverns, and to sup
press Yice and Immoral ity," passed the 14th August, 1786. And al l
other Acts and parts of Acts mil itating against this Act, be, and the
same are hereby repeal ed, from and after the 31st day of May next.
AN ACT to amend the Penal Code now of force in this State, so far
as rel ates to the trial of persons committing offences, where it re
quires the joint action and concurrence of two or more persons to
commit the same.
368. by the now existing Penal Code of force in this
State, it is imperative on the several superior courts in this State, to
try persons jointl y committing offences, which require the joint action
and a concurrence of two or more to commit the same, in consequence
of which, offenders are permitted to escape unpunished, for remedy
whereof:
369. That from and immediatel y after the passage of this act, that,
it shal l be l awful for the several superior courts in this State, that
when any persons shal l be arraigned before any of the aforesaid courts,
charged with any offence which requires the joint action and concur
rence of two or more persons to commit the same, it shal l be l awful
for said superior courts to try any two or more of such persons so of
fending, and that al l l aws and parts of l aws mil itating against this
act, be and the same are hereby repeal ed. 356. 0/ 1836.
AN ACT to regul ate the trial of any person or persons for an offence
which subjects the offender Jo fine or imprisonment in the common
jail , or both, at the discretion of the court, rel ative to the mode of
empannel l ing and chal l enging jurors for the trial of the same.
" 370. From and after the passing of this act, that upon the trial of
any person or persons, for an offence which subjects the offender to
fine or imprisonment in the common jail , or both, at the discretion of
the court, it shal l be the duty of the court before whom he or she is
tried, to have a pannel of twenty-four jurors, made up from the -petit
jurors in attendance, or by summoning tal ismen, of which pannel the
defendant shal l have the right to chal l engg seven, and the State five
jurors, and the remaining twel ve jurors shal l try the defendants.
1836.
GRAND JURY. 205
CHAPTER XIX.
. . . GRAND JURY.
THE grand jury are sworn to inquire onl y for the body of the county,
and, therefore, they cannot regul arl y inquire of a fact done
out of that county for which they are sworn, unl ess particul arl y enabl ed by act
.of parl iament. And to so high a nicety was this matter ancientl y carried, that
where a man was wounded and died in the offender was
at common l aw indictabl e in neither, because no compl ete act of fel ony was
done in any one of them: but by statute 2 & 3 Edw. VI., c. 24, he is now in
dictabl e in the county where the partyadied. 4 303.
When any mortal wound shal l be given, or any poison shal l be administered,
Or any other means shal l be empl oyed IN ONE COUNTY by which a human being
shal l be k il l ed, who shal l die thereof in ANOTHER county, the indictment shal l
be found, and the offender shal l be tried in the county where the act was per
formed or done, from which the death ensued. 664.
This grand jury are previousl y instructed in the articl es of their inquiry, by
a charge from the judge who presides upon the bench. They then withdraw,
to si t and receive indictments, which are preferred to them in the name of the
k ing, but at the suit of any private prosecutor; and they are onl y to hear evi
dence on behal f of the prosecution: for the finding of an indictment is onl y in
the nature of an inquiry or accusation, which is afterwards to be tried and de
termined ; and the grand jury are onl y to inquire upon their oaths, whether
there be sufficient cause to cal l upon the party to answer it. A grand jury,
however, ought to be thoroughl y persuaded of the truth of an indictment, so
far as their evidence goes ; and not to rest satisfied merel y with remote proba
bil ities : a doctrine that might be appl ied to very oppressive purposes. 4
303.
The grand jury ought never to be assisted by the depositions tak en before
the magistrate, except where these depositions coul d be read in evidence to the
petit jury. 580 ; 4 303.
When the grand jury have heard the evidence, if they think it a groundl ess
accusation, they used, formerl y to endorse on the back of the bil l ,
or, we k now nothing of it; intimating, that though the facts might possibl y be
true, that truth did not appear to them : but now, they assert in Engl ish, more
absol utel y, " not a true bil l ; " or, (which is the better way,) " not found," and
then the party is discharged without further answer. But a fresh bil l may af
terwards be preferred to a subsequent grand jury. If they are satisfied of the
truth of the accusation, they then endorse upon it, " a true bil l ," ancientl y,
" The indictment is then said to be found, and the party stands
indicted. But to find a bil l there must, at l east, twel ve of the jury agree : for
so tender is the l aw of Engl and of the l ives of the subjects, that no man can
be convicted at the suit of the k ing of any capital offence, unl ess by the unan-
206 GRAND JURY.
imous voice of twenty-four of his equal s and neighbors : that is, by twel ve, at
l east, of the grand jury, in the first pl ace, assenting to the accusation ; and,
afterwards, by the whol e petit jury, of twel ve more, finding him guil ty upon
his trial . But if twel ve of the grand jury assent, it is a good presentment,
though some of the rest disagree. And the indictment, when so found, is pub
l icl y del ivered ifl to court. 4 306; 1 267.
41. No grand jury shal l consist of l ess than eighteen or more than twenty-
three, but twel ve may find a bil l or mak e a presentment. 1799.
Any one who may be present on the occasion, is bound not to discl ose what
may transpire ; and the jurors themsel ves are, by the terms of their oath, l aid
under the same obl igation ; and if they transgress it they are fineabl e. For
merl y, indeed, they became accessories to the offence, if fel ony, and if treason,
principal s. And, at this day, it is, in general , a high misprision. But where a
witness, examined on the trial , swears directl y the reverse of the evidence
given before the grand jury, they are at l iberty to state this ciicumstance to
the judge, who may direct him to be prosecuted for perjury on the testimony
of the grand inquest. And it has been hel d that the true object of the secrecy
required, is to prevent the evidence produced before the grand jury from being
counteracted by subornation of perjury on the part of the defendant.
The grand jury, in general , hear evidence onl y in support of the charge, and
not in excul pation of the defendant, and it has been said that they ought never
to hear any other than that which is prodfuced for the crown. But it may be
doubted whether, as they are sworn to present the truth which necessaril y re
quires investigation, in case they may not be abl e to el icit truth from the wit-
nessess for the prosecution, and are actual l y convinced of that circumstance,
they may not require other testimony to assist them in forming their decision.
1 260.
After the grand jury have heard the evidence, they are to decide -whether
the bil l shal l be found or rejected. In the finding, twel ve of the jurymen, at
l east, must concur, but if the rest of the jury dissent, the finding wil l stil l be
val id. 1 264.
The names of the jurors are,
it seems to be settl ed, that the
returned to the writ of certiorari with thejindictment, WILL BE BAD
WITHOUT THEM. 1 272.
In future the oath to be administered to the foreman of al l grand juries shal l
be as fol l ows, viz: " You, as foreman of the grand jury of the county of
, shal l dil igentl y inquire, and true presentments mak e of al l such matters
and things as shal l be given you in charge, or shal l come to your k nowl edge,
touching the present service ; the state s counsel , your fel l ows and your own,
you shal l k eep secret (unl ess cal l ed on to give evidence thereof in some court
of l aw in this State :) You shal l present no one for envy, hatred, or mal ice,
nor shal l you l eave any one unpresented from fear, favor,.affection, or reward,
or the hope thereof; but you shal l present al l things trul y and as they come
to your k nowl edge, so hel p you God." And the same oath which is tak en by
the foreman, shal l be tak en by each and every member of any and al l the
grand juries in this State. 1812.
NOTE. In addition to the above oath, the at the same time, swears the
foreman as a special juror, thus: " You shal l , wel l and trul y, try eaeh cause submitted to
you during the present term, and a true verdict give, according, to equity and the opinion
you entertain of the evidence produced to you, to the best of your sk il l and k nowl edge,
without favor or affection to either party : you are not discharged from the con
sideration of the case or cases submitted; so hel p you God."
And as a juror, to try cl aim appeal cases, thus: " In addition to the oaths you have al -
, .. GRAND JURY. 207
ready .tak en, you do further swear to give such damages, not l ess than ten per cent, as may
eeerti reasonabl e and to the pl aintiff,1 against the cl aimant, in case it shal l be sufficientl y
shown that (he cl aim was made, for del ay onl y ; so hel p you God."
The cl erk then cal l s up, four at a time, the members of the grand jury, who heard the
oaths as they were administered to the foreman, and the swears them thus :
" The same oaths which ypuf foreman has tak en on his part, you. and each of you, do tak e,
and shal l , wel l and trul y, observe and k eep, on your part; so hel p you G-od."
. If any of the members of the grand jury join the body the foreman has been sworn,
the oaths "a.diBinistered to him, must be administered to them this is cal l ed swearing
them in chief.- /
Grand jurors shal l be bound onl y to notice or mak e presentment of such of
fences as may or shal l come to their k nowl edge or observation after they shal l
have been sworn, but nothing in this act shal l be considered as impairing1 their
right as jurors to mak e presentments of any viol ations of the l aws which they
may k now to have been committed at any previous time. 1829.
6. It shal l be the duty of the grand juries in the several counties in this
State, from term to term of the Superior Court, to inspect and examine, the
offices, papers and records in the Superior and Inferior courts of their counties,
. and if the said proceedings shal l not have been copied into a book or book s of
record according to the true intent and meaning of this act, they shal l cause the
cl erk or cl erk s who shal l have fail ed or negl ected to do his duty as required by
this act, to be presented for non-performance of official duty, and the said Su
perior Court shal l order the bond of such cl erk to be prose.cuted, and recovery
shal l be had thereon as directed in the aforesaid third section of this act, and if
there be no bond, said court shal l proceed against such cl erk as in such case is
therein directed. 1829.
NOTE. In addition to the-duty required .in-the above statute, the grand jury must exam
ine the book s and accounts of al l the fiscal officers of the county, such as the sheriff and
county treasurer, treasurer of the poor school fund, and any other person who may have
been intrusted with publ ic money ; the cl erk s book s and papers of the court of ordinary ;
the cl erk s book s of the inferior court, particul arl y the estray book ; the condition of the pub
l ic roads, bridges and ferries in the county; the condition of the publ ic buil dings, particu
l arl y the jail : and present any defal cation or deficiency which may appear therein.
A PRESENTMENT tak en, is a very comprehensive term, incl uding not:
onl y presentments properl y so cal l ed, but al so inquisitions of office, and indict
ments by a grand jury. A presentment, speak ing, is the notice tak en
by a grand jury of any offence from their own k nowl edge or observation, with
out any bil l of indictment l aid before them at the suit of the k ing. As the
presentment of a nuisance, a l ibel , and the l ik e, upon which the officer of the
court must afterwards frame an indictment before the party presented can be
put to answer it. 4 301.
STATE OF GEORGIA,) The Grand Jurors, sworn, chosen, and sel ected
County. j for the county of to wit: the under
signed, by presentment, in the name and behal f of the citizens of
Georgia, charge and accuse of the county and State afore
said, with the offence of for that the said
in said county, on day of in the year of our Lord
eighteen hundred and with force and arms, in the town of
in said county, did, unl awful l y, in and upon one
in the peace of God and said State, then and there being, mak e an
and the said did, then and there, beat, bruise
and il l -treat, to the great damage of him, the said con-
208 GRAND JURY.
trary to the l aws of said State, the good order, peace and dignity
thereof.
term, 1850.
1. James Towl s, foreman. 13. Asa Bl ack .
George M. Sk inner. 14. John Thompson.
3. Hobert W. Fl int. 15. Greene Brown. <
4. Sil as R. Grinder. 16. James W. Webb.
5. Gil es M. Swal l ow. 17. Jonah Daniel s.
6. Perry Wil l iamson. 18. Charl es H. Land.
7. Wil l is F. Hal l . 19. Samuel Wright.
8. Harvey Bal l . 20. Roger Wal l .
9. John Spencer. 21. Richard West.
10. Robert Rouse. 22. Sol omon Kent.
11. Wil l iam H. Mil l er. 23. Charl es Thomas.
12. Joshua Round.
Charl es Smith.
NOTE. The compil er here remark s, that the names of the jurors be written out in
ful l , as in the form, not abbreviated, as Jas. for James, Jos. for Joseph, or J. for John, S.
for Samuel , for if that be done it wil l vitiate the presentment.
The jury cannot find one part of the- same charge to be true, and another
fal se, but they must either maintain or reject the whol e, and, therefore, if they
endorse a bil l of indictment for murder, or bil l a vera
for mansl aughter and not for murder, the whol e wil l be inval id, and may be
quashed on motion. It has indeed been said, that if a grand jury find a bil l
for mansl aughter on an indictment for murder, the words " of mal ice afore
thought," and " did murder," may be struck out, and the indictment amended
by reducing it to a mere accusation of the inferior offence in the presence of
the jury. This, however, seems questionabl e, and it is agreed, that it is the
safer course to prefer a fresh indictment for mansl aughter, and so, where the
bil l is original l y for burgl ary, to prefer an indictment for theft, which is, in sub
stance, incl uded. This rul e, however, does not extend to the finding of differ
ent counts, for, as each count contains a distinct charge, the jury may return a
true bil l upon one of them onl y, and the finding wil l be as val id as if no other
had ever been inserted. And an indictment against several may be found,
against one or more, and rejected as to the rest. 1 264.
When the jury have made these endorsements on the bil l s, they bring them
publ icl y into court: and the cl erk of the peace at sessions, or cl erk of assize on
the circuit, cal l s al l the jurymen by name, who several l y answer to signify that
they are present; and then the cl erk of the peace, or assize, ask s the jury
whether they have agreed upon any bil l s, and bids them present them to the
court, and then the foreman of the jury hands the indictments to the cl erk of
the peace, or cl erk of assize, who ask s them if they agree, the court shal l amend
matter of form, al tering no matter of substance, to which they signify their
assent. This form is necessary, in order to enabl e the court to al ter any cl eri
cal mistak e, because they have no authority to change the form of the accusa
tion, without the consent of the accusers. 1 266.
If any person shal l buy or receive from any sl ave, any amount of money ex
ceeding one dol l ar, or any cotton, tobacco, wheat, rye, oats, corn, rice, or
poul try of any description whatever, or any other articl e, commodity or thing
(except brooms, bask ets, foot and bed mats, shuck col l ars, and such other thing
GRAND JURY. 209
or things; articl e or articl es, as are- usual l y manufactured or vended by sl aves,
for thejr own use onl y) without written permission from the owner, overseer,
or empl oyer of such sl ave,.-or ..some other person authorized to give such per
mission, authorizing such "sl ave to sel l and dispose of said money or other arti
cl e or articl es ; such person so offending shal l be guil ty of a misdemeanor, and
on .conviction, be punished by fine, or imprisonment in the common jail of the
county, or both, at.the discretion of the court. If any owner, overseer, em
pl oyer, shopk eeper, storek eeper, or any other person whatsoever, shal l sel l to
or furnish.anj? : sl ave or sl aves, or free person of col or, with spirituous l iquor,
wanes, cider, or any intoxicating l iquors for his own use or for the purpose of
sal e, such person so offending shal l , upon conviction thereof, pay a tine of not
l ess, than ten dol l ars, nor move than fifty dol l ars, for the first offence, and upon
a second conviction, to be subject to fine and imprisonment in the common jail
"of the county, at the discretion of the court, not to exceed sixty days imprison
ment.and five hundred dol l ars fine: nothing herein contained shal l
preve ntthe owner, overseer or empl oyer, from furnishing their sl aves or those
under their care, with such quantity of spirits, & c., as they may bel ieve is for
the; benefit of such sl ave or sl aves, but in no case to permit them in any way to
. furnish others therewith.
If any sl ave or sl aves shal l be found in any store-house or tippl ing shop,
unl ess sent by his, her, or their owner, overseer or empl oyer, after the hour of
nine o cl ock at night, or before day-break in the morning or on the Sabbath day,
.it shal l be tak en and received as presumptive evidence against the person or
.persons owning, or person k eeping the store or tippl ing shop, of a viol ation of
the thirteenth section of this Division, which presumption may be rebutted by
any other circumstance in favor of the accused. ,
If any person shal l sel l or del iver to any sl ave or sl aves, any goods, wares,
or merchandise, or any other thing or things, unl ess it be in exchange for some
articl e or articl es, which the owner, overseer, or empl oyer of such sl ave or
sl aves, may have authorized such sl ave or sl aves to trade or deal in, according
to the provisions of the thirteenth section of this Division, such person so offend
ing shal l be gail ty of a misdemeanor, and on conviction shal l be punished by
fine, or imprisonment in the common jail of the county, or both, at the discre
tion of the court.
If any person shal l , by himsel f, servant or agent, k eep, have, use, or main
tain a gaming-house or room, or shal l in any house, pl ace, or room, occupied
by him, permit persons with his k nowl edge to come together and pl ay for
money, or any other val uabl e thing, at any game of Faro, Loo, Brag, Bl uff, or
any other game pl ayed with cards, such person so offending shal l , on con
viction, be fined in a sum not exceeding $ 500, and imprisoned in the common
jail of the county for any time not exceeding three months.
If any person shal l , by himsel f, or servant, or any other agent, k eep or em
pl oy any Faro tabl e, E 0 tabl e, or A B C tabl e, or other tabl e of l ik e charac
ter, and shal l , either by himsel f or agent, preside or deal at any Faro tabl e, or
use any E 0, or A B 0 tabl e, or other tabl e of l ik e character, for the purpose
of pl aying and betting at the same, such person so offending shal l , on convic
tion, be fined in a sum not exceeding $ 500, or be imprisoned in the common jail
. of the county, for any time not exceeding six months, or both, at the discretion
of the court.
If any person shal l pl ay and bet for money, or other things of val ue, at any
game of i aro, l oo, brag, bl uff, three-up, pok er, vingtun, euchre, or any other
game or games pl ayed with cards, or shal l pl ay and bet for money or other
things of val ue, at any E 0 or A B 0 tabl e, or other tabl e of l ik e character, or
210 GRAND JURY.
shal l bet at any game of nine-pins or ten-pins, or of any other number of pins,
such person so offending shal l , on conviction, be fined in a sum not l ess than
..twenty dol l ars, nor more than one hundred dol l ars.
..Oil the trial of any person for offending against the three preceding sections
of., this,.-Division, any other person who may have pl ayed and betted, at the
same/ time or tabl e, shal l be a competent witness, and be compel l ed to give
evidence, and nothing then said by such witness shal l at any time be received
or given in evidence against him in any prosecution against the said witness,
except on an indictment for perjury, in any matter to which he may have testi
fied.
That from and after the passage of this act, if any white person or persons
are found pl aying and betting, or pl aying or betting, with a negro or negroes,
or free person of col or, or free persons of col or, at any game with cards, dice,
or any other game or games of chance or hazard, for the purpose of betting
upon, or winning or l osing money, or any other thing or things, articl e or arti
cl es of val ue, or otherwise ; or any property, or any other articl e or articl es,
thing or things of val ue, may be indicted, and, on conviction thereof, for the
first offence, shal l be fined in a sum not to exceed one thousand dol l ars, or im
prisonment in the common jail of the county -where the offence may be com
mitted, not to exceed six months, or fine and imprisonment both, at the discre
tion of the court; and, upon the second conviction, to be subject to imprison
ment at hard l abor in the penitentiary, not l ess than one year, nor more than
four years.
AN ACT to guard and protect the citizens of this State against the unwar
rantabl e and too preval ent use of deadl y weapons.
1. That from and after the passage of this act, it shal l not be l awful for
any merchant, or vender of wares or merchandise in this State, or any other
person or persons whatsoever, to sel l , or offer to sel l , or to k eep, or have
about their person, or el sewhere, any of the hereinafter described weapons, to
wit: bowie, or any other k ind of k nives, manufactured and sol d for the pur
pose of wearing or carrying the same as arms of offence or defence, pistol s,
dirk s, sword-canes, spears, & c., shal l al so be contempl ated in this act, save such
pistol s as are k nown and used as horseman s pistol s, & c.
2. That any person or persons within the l imits of this State, viol ating the
provisions of this act, except as hereafter excepted, shal l , for each and every
such offence, be deemed guil ty of a high misdemeanor, and, upon trial and con
viction thereof, shal l be fined in a sum not exceeding five hundred dol l ars for
the first offence, nor l ess than one hundred dol l ars, at the discretion of the
court; and, upon a second conviction, and every after conviction of a l ik e
offence, in a sum not to exceed one thousand dol l ars, nor l ess than five hundred
dol l ars, at the discretion of the court.
3. That it shal l be the duty of al l civil officers to be vigil ant in carrying the
provisions of this act into ful l effect, as wel l al so as grand jurors, to mak e pre
sentments of each and every offence under this act, which shal l come under
their k nowl edge.
4. That al l fines and forfeitures arising under this act, shal l be paid into the
county treasury, to be appropriated to county purposes :
that the provisions of this act shal l not extend to sheriffs, deputy sheriffs, mar
shal s, constabl es, overseers, or patrol s, in. actual discharge of their respective
..." . GRAND JURY. 211
duties, but not otherwise that no person or persons shal l be
found guil ty of viol ating the before-recited -act, who shal l openl y wear, exter
nal l y, bowie-k nives, dirk s,, tooth-pick s, spears, and which shal l be exposed
pl ainl y to view that the provisions of this act shal l
not extend to prevent venders, or any other persons who now own and have
for sal e any of the. .aforesaid weapons, before the first day of March next.
, Sec. 5. Repeal s; confl icting l aws.
: : :
TO al ter and amend an act to guard and protect the citizens of this State
; . against the unwarrantabl e and too preval ent use of deadl y weapons ; passed
on the twenty-fifth day of December, eighteen hundred and thirty-seven.
That from and after the passage of this act, instead of the penal ties against
the offences mentioned in said act, (Act of 1837,) and which are prescribed in
the second section, the court may, in its discretion, substitute that of imprison
ment in the common jail of the county where the offence was committed; on.
conviction for the first offence, the imprisonment to consist of a term of not l ess
.than one month, nor more than two months ; and upon a second conviction and
every after conviction for a l ik e offence, the imprisonment to consist of a term
not l ess than two months, nor more than four months.
.SEC. 2. That al l l aws and parts of l aws, mil itating against this act, be and
the same are hereby repeal ed.
AN ACT to repeal the second and third sections of an act, entitl ed an act to
repeal an act entitl ed an act to al ter and amend.an act entitl ed an act more
effectual l y to secure the sol vency of al l the bank ing institutions in this State,
as passed on the twenty-fourth day of December, eighteen hundred and thirty-
two, assented to twenty-first December, eighteen hundred and thirty-
three, assented to twenty-third of December, eighteen hundred and forty,
and to prescribe the pains and penal ties against private bank ing and the issu
ing change bil l s, and for other purposes therein mentioned.
1. That the second and third sections of the above-recited act be, and the
same are hereby repeal ed ; and that al l persons or corporations who may have
incurred the pains and penal ties of the second and third sections of said act, be
rel ieved from the same.
2. That any person or persons, body corporate or pol itic, who may hereafter
mak e, issue, any check , order, draft, or
bil l for the payment of money, or other thing having the form or simil itude of
a bank note, or having the form or simil itude and intended to be used and cir
cul ated as money or circul ating medium, except such bank ing institutions and
corporations as by l aw are authorized to issue notes or bil l s for circul ation,
shal l be l iabl e to indictment as for a misdemeanor, and, on conviction, shal l
be punished by fine or imprisonment in the common jail of said county,or both,
at the discretion of the court.
3. That the mak ing or issuing each check , order, draft, or bil l , for the pay
ment of money or other thing having the form or simil itude of money, to be
used and circul ated as money or circul ating medium, shal l be considered and
hel d as a separate and new offence ; and that in case of the issuing or circu
l ating of said check s, orders, drafts, or other thing having the form or simil i
tude of money, by any corporation or body pol itic, the officer or member of
said incorporation or body pol itic, or the person signing said check s, orders, or
other things having the form or simil itude of money, or intended to be used as
money, shal l be l iabl e to the provisions and penal ties of this act.
212 , GRAND JURY.
4. That it shal l be the duty of the grand juries of the several counties of
this State, to notice and present both individual s and incorporations for every
viol ation of the provisions of this act, and the sol icitors-general to prosecute
upon such presentments ; and to insure the execution and enforcement of the
provisions of this act, it shal l be the duty of the judges of the superior courts
of this State, at the opening of each court, to give the provisions of this act
special l y in charge to grand juries; and that al l l aws and parts of l aws mil i
tating against the provisions of this act be, and the same are hereby repeal ed.
That i rom and after the passage of this act, al l l aws of this State, mak ing it
penal or criminal for innocent HOLDERS of change bil l s to pass or circul ate the
same, be, and the same are hereby repeal ed: that no part of
this act shal l be so construed as to rel ieve the mak ers of change bil l s from the
penal ties of the l aw.
AN ACT to prohibit col ored mechanics and masons, being sl aves or free per
sons of col or, being mechanics or masons, from mak ing contracts for the
erection of buil dings or for the repairs of buil dings, and decl aring the white
person or persons directl y or indirectl y contracting with or empl oying them,
as wel l as the master, empl oyer, manager, or agent for said sl ave, or guardian
of said free person of col or, authorizing or permitting the same, guil ty of a
misdemeanor, and prescribing punishment for viol ating of this act.
1. That from and after the first, day of February next, each and every white
person who shal l thereafter .contract or bargain with any sl ave mechanic or
mfeon, or free person of col or, being a mechanic or mason, for the erection of
any buil ding, or for the repair of any buil ding, whether the same be done,
directl y or indirectl y, with said sl ave mechanic or mason, or free person of col or,
being a mechanic or mason, shal l be l iabl e to be indicted for a misdemeanor;
and, on conviction, to be iined at the discretion of the court, not exceeding two
hundred dol l ars, which fine, when col l ected, shal l be paid over to the in
ferior court of the county in which the case was tried, for the uses of the
county.
2. That the master of said sl ave mechanic or mason, or the empl oyer,
manager or agent for, or guardian of, said free person of col or, being a me
chanic or mason, who shal l k nowingl y authorize or permit, directl y or indi
rectl y, in contravention of the spirit and intention of this act, such sl ave me
chanic or mason, or such free person of col or, being a mechanic or mason, to
mak e such contracts as are contempl ated in the first section of this act, shal l
be l iabl e to indictment for a misdemeanor, and on conviction shal l be punished
by a fine, at the discretion of the court, not exceeding two hundred dol l ars,
to be appl ied, when col l ected, to county purposes, as provided in the first sec
tion of this act.
3. That the judges of the superior courts do give this act in charge to the
grand juries.
NOTE. In addition to the above statutes, the sixth section of the act of 1843,
522, "523, 524,) requires " that it shal l be the duty of the judges of the superior
courts of this State, at the first term of the superior court of each county, ia each year, to
give this act, in charge to the grand juries." And by the
act of 1845, 481,) the judges of the superior courts are required, " at the first
sitting of the superior court in any county in this State, after a sheriff shal l have been
el ected and qual ified for such county, to examine the official bond of such sheriff," < fcc.
ARRAIGNMENT AND TRIAL. 213
v
And til e fol l owing path shal l .ibe administered to witnesses intended to be
sent before the grand jury: " The evidence you shal l give the grand jury on
this bil l of indictment ".(or presentment, as the case may be,) (here state the
case) shal l be the truth; -, tie whol e truth, and nothing but the truth so hel p
you God." In every.-case in this Code, the person whose property has been
stol en, injured, destroyed, tak en away, or fraudul entl y converted or conveyed,
or whose name -hath been forged to any instrument, or who hath received a
personal injury-; shal l be a competent witness on the trial of the offender or
offenders,,
You. shal l swear that you wil l dil igentl y attend the Grand Inquest, during
,the pr.esent term, and careful l y del iver to them al l such bil l s of indictment,
or other things, as shal l be sent to them by the court, without al teration, and
as careful l y return al l such as shal l be sent by that body to the court so hel p
you God.
That the fol l owing shal l be the oath to be administered to al l bail iffs,
sworn to tak e charge of special and petit juries in the superior and inferior
courts of this State, to wit: You shal l tak e this jury and al l others committed
to your charge, during the present term, to the jury-room or some other pri
vate and convenient pl ace, where you shal l k eep them without meat, drink or
fire, candl e-l ight and water onl y excepted, (unl ess otherwise directed by the
court.) You shal l not speak to them yoursel f, nor suffer others to speak to
them, unl ess it be by l eave of the court, to ask them if they have agreed, upon
a verdict, or are l ik el y to agree. Al l this you shal l do to the best of your sk il l
and power so hel p you God,
CHAPTER XX
ARRAIGNMENT AND TRIAJL
WHEST the offender either appears vol untaril y to an indictment, or was-before
in custody, or is brought in upon criminal process to answer it in the proper
court, he is immediatel y to be arraigned thereon; which is the fifth stage of
criminal prosecution.
To arraign, is nothing el se but to cal l the prisoner to the bar of the court, to
answer the matter charged upon him in the indictment. The prisoner is to be
cal l ed to the bar by his name. t 323.
. Jfo person indicted, unl ess it be for an offence which may on conviction sub
ject him or her to death, or imprisonment in the penitentiary, for the term of
15
214 ARRAIGNMENT AND TRIAL.
three years or more, shal l be put for his or her arraignment in the bar-dock , or
other pl ace set apart in the court-room for the arraignment of prisoners.
Every persoa charged with a crime or offence which may subject him or her
on conviction to death, or imprisonment in the penitentiary for the term of
three years or more, shal l be furnished previous to his or her arraignment with
a copy of the indictment, and a l ist of the witnesses who gave testimony before
the grand jrfry.
No prisoner shal l be brought into court for arraignment or trial , tied, bound,
or fettered, unl ess the court shal l deem it necessary during his or her arraign
ment or trial : And if the heal th of the prisoner, or other circumstances shoul d
render it more convenient to the prisoner and his counsel that he or she shoul d
not be pl aced for his or her arraignment, or during his or her trial , within the
bar-dock , or other pl ace al igned in the court-room for prisoners, the court
may grant the indul gence of removing the prisoner to any other pl ace in
the court-room, or contigaous to it, requested by the prisoner or his or her
counsel .
When he is brought to the bar, he is cal l ed upon by name to hol d up
his hand : which though it may seem a trifl ing circumstance, yet is of this im
portance, that by the hol ding up of his hand he owns him
sel f to be of that name by which he is cal l ed. However, it is not an indispen
sabl e ceremony ; for being cal cul ated merel y for the purpose of identifying the
person, any other ack nowl edgment wil l answer the purpose as wel l : therefore,
if the prisoner obstinatel y and contemptuousl y refuses to hol d up his hand, but
confesses he is the person named, it is ful l y sufficient. 4 323.
The intention of reading the indictment to the prisoner, is that he may ful l y
understand the charge to be produced against him. This is to be done in Eng
l ish by a very ancient statute, l ong before the proceedings in general were in
our own l anguage, and when al l the written parts of the accusation were scru
pul ousl y framed in Latin. And it seems that the indictment is to be read, al
though the defendant has had a copy del ivered to him. The mode in which it
is read is, after saying " A B, hol d up your hand," to proceed, " you stand
l indicted by the name of A B, l ate of, & c., for that you, on," & c. 1
338.
STATE OF GEORGIA, J The grand jurors sworn, chosen, and sel ected
County. for the county of to wit: Hugh Law-
son, foreman; Nathan G. Lewis, Samuel Fel der, Joseph M. Cooper,
Jesse Smith, Henry Cunyus, Al exander Smith, Creed T. Woodson,
Daniel Adams, Benjamin Bryan, Jacob Fudge, James A. Pringl e, Joel
Loftin, Cal vin Leary, Al fred Nel son, Wil l iam H. Mil l er, John S. Job-
; son, Til man Downs, Sampson B. King, Thomas B. Al ien, Cal vin W.
Fel der, Edwin Mounger, and Edward O. Jenk ins, in the name and be
hal f of the citizens of Georgia, charge and accuse of the
county and State aforesaid, with the offence of Murder : for that the
said on day of in the year of our Lord, eighteen
hundred and with force and arms, in the town of in the
county aforesaid, in and upon one in the peace of God
and said State, then and there being, fel oniousl y, wil l ful l y, unl awful l y,
and of his mal ice aforethought, did mak e an assaul t. And he, the said
a of the val ue then and there
being charged with gunpowder and which said
he, the said in his hand, then and there, had and hel d,
. . . ARRAIGNMENT AND TRIAL. 215
atv a gainst, and upon him, the said then and there, fel oni
ousl y, wil l ful l y, unl awful l y, and of his mal ice aforethought, did dis
charge and shoot off; and that he, the said with the
aforesaid, by force of the gunpowder aforesaid, out of the said
by him, the said so as aforesaid discharged and shot
off, him, the s,aid in and upon the l eft side of the said
a of the said then
and there fel oniousl y, wil l ful l y, unl awful l y, and of his mal ice afore-
. thought, did strik e, penetrate, and wound, giving to the said
. then and there, with the out of the said
so as aforesaid, discharged< and shot off, in and upon said
of the said mortal
wound, of the breadth of and depth of which
said mortal wound, the said on and from the said
!day of in the year of our Lord eighteen hundred and afore-
, said, until the day of in the year of our Lord eighteen
hundred aforesaid, in the county aforesaid, did l anguish,
on which said day of the year of
our Lord, eighteen hundred and at o cl ock in the morning,
at aforesaid, in the county aforesaid, of the mortal wound afore
said, died ; And so, the jurors afore
said, upon their oath aforesaid, do say, that the said him, the
said in the (or,
aforesaid, fel oniousl y, wil l ful l y, unl awful l y, and of his mal ice
aforethought, did k il l and murder, contrary to the l aws of said State,
the good order, peace, and dignity thereof.
term, 1850.
) JAMES Wl LLIAMS,
REUBEN TIMS, sworn. )- _
JAMES Scon. ) CHARLES KoB,
NOTE. The Bil l of Indictment, or Presentment, is usual l y made out by the
-with bl ank s l eft for the names cf the jurors; these bl ank s are fil l ed up by the
Cl erk of the Jury, before the Bil l , & c., is returned to the Court. This duty shoul d not be
omitted.
Upon every indictment the prosecutor s name shal l be endorsed, who, upon
the acquittal or discharge of the person accused, shal l be compel l ed to pay al l
costs which have accrued, if the grand jury, by their foreman, upon returning
" no bil l ," express it as their opinion that the prosecution was unfounded or
mal icious ; or if the petit jury, upon returning a verdict of " not guil ty," shal l
express a simil ar opinion.
After this is concl ued, the cl erk of the arraigns proceeds to the third part of
this branch of the proceedings, by adding, "how say you, A B, are you guil ty
or not guil ty ? " Upon this, if the prisoner confesses the charge, the confes
sion is recorded, and nothing is done til l judgment. But if he denies it, he
answers which was abbreviated upon the minutes "non cul ." or
" for or upon which the cl erk of assize,
or cl erk of arraigns, on behal f of the crown, repl ies that the prisoner is guil ty,
and that he is ready to prove the accusation. 1 339.
The proper mode of arraignment on the record is in this form, " and being
brought to the bar here in his own proper person, he is committed to the mar
shal ," & c. And being ask ed how he wil l acquit himsel f of the premises, (in
case of fel ony, and "of the high treasons," in case of treason,) above l aid to
his charge, saith, & c. If this statement be omitted, it seems the record wil l he
1 341.
Upon the arraignment of a prisoner, the indictment shal l be read to him or
her, and such prisoner shal l he required to answer whether he or she is" guil ty,
or not guil ty, of the offence charged in the said indictment, which answer or
pl ea shal l be made oral l y by the prisoner, or his or her counsel . And if he or
she shal l pl ead guil ty, such pl ea shal l be immediatel y recorded on the minutes
of the.court by the cl erk , together with the arraignment, and the court shal l
pronounce upon such prisoner the judgment of the l aw, in the same manner as
if such prisoner had been convicted of the offence by the verdict of a jury ;
but at any time before judgment is pronounced, such prisoner may withdraw
the pl ea of "guil ty," and pl ead not guil ty, and such former pl ea shal l not be
given- in evidence against him or her, on his or her trial .
If the prisoner, upon being arraigned, shal l pl ead " notguil ty," or shal l stand
mute, the cl erk shal l immediatel y record upon the minutes of the court the
pl ea of not guil ty, together with the arraignment, and such arraignment and
pl ea shal l constitute the issue between the prisoner and the peopl e of this
State.
If the prisoner, upon being arraigned, shal l demur to the indictment, or pl ead
to the jurisdiction of the court, or in abatement, or any special pl ea in bar, such
demurrer or pl ea shal l be made in writing; and if such demurrer or pl ea shal l
be decided against such prisoner, then such prisoner may, neverthel ess, pl ead
and rel y on the general issue of not guil ty.
If the cl erk shal l fail or negl ect to record the arraignment and pl ea of the
prisoner at the time the same is made, it may and shal l be done at any time
afterwards by order of the court, and this shal l cure the error or omission of
the cl erk .
The arraignment and pl ea-or answer of the prisoner shal l be entered on the
indictment by the attorney or sol icitor-general , or other person acting as prose
cuting officer on the part of the peopl e of this State.
After issue is thus joined, the cl erk proceeds to ask the prisoner, "
? " which ancientl y referred to the al ternative of trial by battl e or
by jury. But, at the present day, as since the abol ition of ordeal , there can
be no mode of trial but by the country, the prisoner repl ies, " by God and my
country," to which the cl erk , in the humane presumption of the party s in
nocence, rejoins, " God send you a good del iverance." This being done, he
writes on the indictment, " po. se," for ponit se, meaning that the defendant
puts himsel f upon the country, and thus the form of the arraignment con
cl udes. 1 339.
The sheriff having returned into court the pannel of the jury, and the time
for the trial having arrived, the cl erk cal l s the petit jury on their pannel by
saying, " you good men that are empannel l ed to try the issue joined between
our sovereign l ord the k ing, and the prisoner (or " prisoners") at the bar, an
swer to your names upon pain and peril that shal l fal l thereon." When this is
done, and a ful l jury appears, the cl erk of arraigns cal l s to the prisoner at the
bar and says to him, " These good men that you shal l now hear cal l ed, are those
which are to pass between our sovereign l ord the k ing and you, ("upon your
several l ives and deaths," if it be a capital offence,) if, therefore, you (or any
of you,) wil l chal l enge them, or any of them, you must chal l enge them as they
come to the book to be sworn, before they are sworn, and you shal l he
heard." 1 433.
Every person indicted for a crime or offence which may subject him or her,
on conviction, to death, or four years imprisonment, or l onger, in the peniten-
; may peremptoril y, chal l enge twenty of the jurors empannel l ed to try him
or her. And every person indicted for an offence which may subject him or
her, on-conviction, to imprisonment in the penitentiary for anytime l ess than
four years, may peremptoril y chal l enge twel ve of the jurors empannel l ed to try
him or her. And the State shal l be al l owed one hal f the number of peremptory
chal l enges al l owed the prisoner.
, That from .and after the passage of this act, on al l trial s for crimes or of-
fenc es where "the~ punishment is death or imprisonment and l abor in the peni
tentiary,-any juror may be put on his and the fol l owing questions
"shal l -.."be propounded to him, viz: "Have you, from having seen the crime
: committed, or having heard any part of the evidence del ivered on oath, formed
and expressed any opinion in regard to the guil t or innocence of the prisoner
,at the bar? " If the juror shal l answer in the negative, the fol l owing questions
shal l be propounded to him: " Have you any prejudice or bias resting on
your mind, for or against the prisoner at the bar? " And if the juror shal l so
.answer these questions as to mak e him a competent juror, the Sl ate or the
prisoner may neverthel ess, have the right to put such juror upon his trial in
the manner pointed out by l aw, and to prove such juror incompetent.
When the trial is cal l ed on, the jurors are to be sworn, as they appear to
the number of twel ve, unl ess they are chal l enged by the party. i
352.
From the words of the cl erk s address to the prisoner, it is evident, that
this is the proper time to exercise the right of chal l enging, and therefore, be
fore we proceed to the swearing of the jury, and the subsequent proceedings,
we wil l consider the l aw rel ative to chal l enges, and the mode in which the
right is to be cl aimed.
The term chal l enge is used in l aw for an exception to jurors who are re
turned to pass on a trial , and it is either to the array, or to the pol l s. 1
434.
NOTE. "The practice in Engl and upon the construction of the act of 33d Edward I, of
jurymen in criminal cases until a whol e pannel is exhausted and a jury not made,
before the crown can be cal l ed upon to show cause, is not authorized in this State, since the
adoption of the penal code. As the jurors are cal l ed, the State put them upon the
prisoner, or otherwise chal l enge them, either peremptoril y, to the number al l owed by l aw,
or for cause." Seal y The State of Georgia, 1 and Reynol ds * * . The State of
Georgia, 1 228.
" After a juror has answered in the negative, the questions propounded under the act of
1843," (4Sth section of the 14th division of the penal code,) "it is competent for the prison
er," " to put him upon triors, for the purpose of showing that he is not indif
ferent ; and the formation and expression of a opinion, as to the guil t or innocence
of the prisoner, is a disqual ification, notwithstanding it be founded on rumor or hearsay; and
it is not necessary to prove personal prejudice or il l -wil l to the accused, it wil l be inferred
from a del iberate opinion of guil t, once decl ared." Boon The State of Georgia, 1
619.
" The triors, in case the first man cal l ed is chal l enged, are two indifferent persons, named
by the court," (who shoul d be citizens of the county,) " and when they try one man and find
him indifferent, he shal l be sworn, and then he and the two triors shal l try the next; and
, when another is found indifferent and sworn, the two triors shal l be superseded, and the two
first sworn on the jury, shal l try the next." t 621.
The fol l owing is the form of the oath to be administered io the triors:
" You shal l wel l and trul y try whether (the juror chal l enged,) stands indifferent
to try the prisoner at the bar, and a true verdict give, according to the evidence, so hel p
you God."
In al l criminal cases, the fol l owing oatl i shal l be administered to the petit
jury, to wit: " You shal l wel l and trul y try the issue formed upon this bil l of
indictment, between the State of. Georgia and A B, who is charged (here state
the crime or offence) and a true verdict give according to evidence so hel p
you God."
As soon as each juror is sworn, he is set apart on the jury box ; and when
a ful l jury of twel ve are thus sworn, the cl erk of the arraigns, or cl erk of the
peace at the sessions, directs the crier, (" or count these,") to count the
jury, who does so, and then says to the jury, "Twel ve good men and true,
stand together and hear your evidence ; " and then the judge decl ares that the
rest of the jury who have appeared are discharged ; and the cl erk of the ar
raigns directs the crier to mak e procl amation, which is made accordingl y in the
fol l owing form : " If any one can inform our l ord the k ing s justices, the k ing s
sergeant, or the k ing s attorney, or this inquest to be tak en between our sover
eign l ord the k ing and the prisoners at the bar, of any treason, murder, fel ony,
or other misdemeanor committed or done by them, or any of them, l et them
come forth and they shal l be heard ; the prisoners stand at the bar upon their
del iverance, and al l others that are bound by recognizance to give evidence
against the prisoners at the bar, l et them come forth and give evidence, or el se
they forfeit their recognizance." 1 450.
When the jury have thus been assembl ed in the jury box, and sworn, the
cl erk , irucase of fel ony, cal l s to the prisoner at the bar, and bids him hol d up
his hand, by saying, " C D, hol d up thy hand," and then addresses the jury
in these words: "Look upon the prisoner, you that are sworn, and heark en
to his cause. A B, stands indicted by the name of A B, & c.
upon this
indictment he hath been arraigned; upon this arraignment he pl eaded not
guil ty, and for his trial hath put himsel f upon God and the country, which
country you are, so that your charge is to inquire whether he be guil ty of the
high treason (or "fel ony") whereof he stands indicted, or, not guil ty, and no
more. Hear your evidence." 1 555.
The fol l owing oath shal l be administered to witnesses in criminal cases, viz:
" The evidence you shal l give to the court and jury upon the trial of this issue,
between the State of Georgia and A B, who is charged with , (here
state the crime or offence,) shal l be the truth, the whol e truth, and nothing
but the truth so hel p you God."
On every trial of a crinre or offence contained in this code, or for any crime
or offence, the jury shal l be judges of the l aw and the fact, and shal l in every
case give a general verdict of " guil ty," or " not guil ty," and on the acquittal
of any defendant or prisoner, no new trial shal l on any account be granted by
the court.
When the jury have come to a unanimous determination with respect to
their verdict, they return to the box to del iver it. The cl erk then cal l s them
over by their names, and ask s them whether they are agreed on their verdict,
to which they repl y in the affirmative. He then demands who shal l say for
them, to which they answer, their foreman. This being done, he, desires the
prisoner to hol d up his hand, and addresses them, "l ook upon the prisoner you
that are sworn, how say you, is he guil ty of the fel ony (or treason, & c.)
whereof he stands indicted, or not guil ty ? " The officer then writes the word,
"guil ty," or "not guil ty," as the verdict is, after the words " po. se." on
the record, and again addresses the jury, " Heark en to your verdict as the
court hath recorded it, you say that A B, is guil ty (or "not guil ty") of the
fel ony whereof he stands indicted, and so sayyoual l ." 1 518.
The verdict, whatever may be its effect, must, in al l cases of fel ony and
treason, be del ivered in the presence of the defendant, in open court, and can
not be either privity; given, or promul gated whil e he is absent. 1
519,-v- & iw& . 377.
When-the prisoner is convicted by the jury, he is put aside from the bar to
the del ivery of his sentence. If there is then reason to apprehend that
the* indictment is defective, and that a motion to arrest the judgment may
succeed, another indictment may be preferred to the grand jury, for the crime
of. which he has been convicted. 1 259.
. If the jury, therefore, find the prisoner not guil ty, he is then forever quit
and discharged of the accusation, except he be appeal ed of fel ony within the
time l imited byl aw.. And upon such his acquittal or discharge forwant of
prosecution, l ie shal l be immediatel y set at l arge, without payment of any fee
to the jail or. But if the jury find him guil ty, he is then said to be
of the crime whereof he stands indicted; which conviction may accrue two
ways, .either by his confessing the offence and pl eading guil ty, or by his being
found so by the verdict of his country. 4 361.
If they find the prisoner judgment may be given against
him, provided any one count in the indictment be sufficient to support tha
charge, though the rest of the indictment be faul ty for being guil ty gen
eral l y, he is several l y guil ty of each offence separatel y charged, and therefore
is found guil ty upon that charge which is sufficient to warrant the judgment.
378.
The prisoner cannot be convicted -of treason or fel ony unl ess he be present
in court, but he may be found guil ty of a misdemeanor in l iis absence.
397.
If the defendant be in custody, or the crime be capital , he wil l of course be
remanded to prison in the interval between the conviction and sentence, if any
be al l owed to transpire. 1 542.
Before judgment is pronounced upon the defendant, the crier mak es procl a
mation, commanding " al l manner of persons to k eep sil ence whil st sentence of
death is passed upon the prisoner at the bar, (or other judgment is given against
him,) upon pain of imprisonment." But it is not necessary that this form
shoul d appear on the record, and its omission wil l not be material . It is now
indispensabl y necessary, even in cl ergyabl e fel onies, that the defendant shoul d
be ask ed by the cl erk if he has anything to say why judgment of death shoul d
not be pronounced on him ; and it is material that this appear upon the record
to have been done ; and its omission after judgment in high treason wil l be a
sufficient ground for the reversal of the attainder. On this occasion, he may
al l ege any ground in arrest of judgment, or may pl ead a pardon, if he has ob
tained one, for it wil l stil l have the same consequences which it woul d have
produced before conviction, the stopping of the attainder. If he has nothing
to urge in bar, he frequentl y addresses the court in mitigation of his conduct,
and desires their intercession with the k ing, or casts himsel f upon their mercy.
After this nothing more is done, but the proper judge pronounces the sentence.
1 570.
The judge usual l y precedes the judgment by an address to the prisoner, espe
cial l y if his crime be capital , in which he states that he has been convicted on.
I P
satisfactory evidence, and informs him when there is l ittl e hope that mercy wil l
be extended to him. Sometimes, al so, he tak es an opportunity of impressing
the circumstances of the prisoner s guil t on the minds of the spectators, and
traces out the remote but important causes which have l ed him to this unhappy
condition. Even in case of an acquittal , he may often useful l y warn the de
fendant against the circumstances which might again pl ace him in an equivocal
situation, especial l y if there seems reasonabl e ground to suppose him guil ty.
1 5 "71.
The sentence of death shal l be executed by publ icl y hanging the offender by
the neck , until he or she is dead.
When a pers9n shal l be convicted on circumstantial evidence al one of a crime
the punishment of which is death, the judge before whom the conviction tak es
pl ace, or who passes the sentence of the l aw on the convict, shal l have the
power to commute the punishment of death for that of imprisonment and l abor
in the penitentiary during the natural l ife of the said convict.
Whe/ iever, for any reason, any convict sentenced to the punishment of death
shal l not have been executed pursuant to such sentence, and the same shal l
stand in ful l force, the presiding judge of the Superior Court where the con
viction was had, on the appl ication of the attorney or sol icitor-general of the
district, or other person prosecuting for the State, shal l issue a
to bring such convict before him; or if such convict be at l arge, said judge, or
any judicial officer of this State, may issue a warrant for his apprehension ;
and upon the said convict being brought before the said judge, either by
or under such warrant, he shal l proceed to inquire into the facts and
circumstances of the case, and if no l egal reason exist against the execution of
such sentence, such judge shal l sign and issue a warrant to the sheriff of the
proper county, commanding him to do execution of such sentence at such time
and pl ace as shal l be appointed therein, which the said sheriff shal l do accord
ingl y. And the judge shal l cause the proceedings in such case to be entered
on the minutes of the Superior Court of the county.
Whenever any convict shal l be sentenced to the punishment of death, the
court shal l specify the time and pl ace of execution in such sentence, which
time shal l not be l ess than twenty days, nor more than sixty days from the time
of the sentence, except in the case of a femal e convict who is quick with chil d
at the time, in which case the court may and shal l appoint some day that wil l
arrive after she shal l have been del ivered of such chil d.
When the judgment is pronounced, it ought, with al l the preceding matter,
to be entered on the record. This record, in case of fel ony, states that the
session of Oyer and Terminer the commission of the judges the presentment
by the oath of the grand jurymen by name the indictment the award of the
capias or process to bring in the offender the del ivery of the indictment into
court the arraignment the pl ea the issue the award of the jury process
the verdict the ask ing the prisoner why sentence shoul d not be passed on him
and the judgment of death passed by the judges. In this record al l the
acts of the court ought to be stated in the present tense, as not
prseceptum fuit; but the acts of the parties themsel ves may be properl y stated
as past. And therefore, if it state that the sheriff commanded, instead of
commanded, the error wil l be fatal . It is not necessary, however, to set
forth at l arge the commission on which the judges proceeded to the trial , and if
done, minute accuracy wil l not be requisite. Nor is it essential that any issue
shoul d be stated as having been joined between the crown and the defendant.
So the judges need not be shown expressl y to have been " assigned by the
k ing," if it sufficientl y appears that they are the k ing s justices ; for their au
thority coul d be derived from no other source than his pl easure.
587.
And now the usage-is for the judge to sign the cal endar, or l ist of al l the
priso.fl ers names, with their separate judgments in the margin, which is l eft
with the sheriff. As for a capital -fel ony, it is written opposite to the prisoner s
name, " l et him be hanged by the neck ; " formerl y, in the days of Latin and
abbreviation, for "suspendatur per col l um." And this is the
onl y warrant that.the sheriff has for so material an act as the tak ing away the
-l ife of anbther.î JS/ ac. 403. "
From anjd) after the passing of this act, that upon the trial of any person or
persons :.for- an offence which subjects the offender to fine or imprisonment in
the. common jail , or both, at the discretion of the court, it shal l be the -duty of
the court before whom he or she is tried, to have a panne.l of twenty-four
jurors "made up from the petit jurors in attendance, or by summoning tal ismen,
of which pannel the defendant shal l have the right to chal l enge seven, and the
State five jurors, and the remaining twel ve jurors shal l try the defendants.
222 PENITENTIARY.
CHAPTER XXI.
PENITENTIARY.
An Act to carry into effect the Penal Code of this State, and the penitentiary
system- founded thereon.
SEC. 8. Any person, convicted in this State, and sentenced to the peniten
tiary, under the authority of the United States, shal l be received in the afore
said penitentiary, in such manner and under such conditions, as may be directed
by the
SEC. 21st of the Eul es. Where any convict confined in the penitentiary, is
a witness in any civil cause, depending in any court of this State, and his tes
timony required, the same shal l be tak en by commission, and read at the trial
of such civil cause ; and in no civil case shal l such convict be removed from
the penitentiary to give personal attendance at court. But before such com
mission issues, the party, or his or her attorney, requiring such commission,
shal l fil e an affidavit, with the record of the proceedings, that the convict to
be examined, is a material witness in the cause. 1816.
An Act to carry into effect the Penal Code of this State, and the penitentiary
system founded thereon.
SEC. 10. If the work to be performed is of such a nature as may require
previous instruction, proper persons for that purpose, to whom a suitabl e al
l owance shal l be made, shal l be provided by order of any
RULE 11. The k eeper shal l cause the yard of the penitentiary house to be
k ept free from horses, cows, goats, hogs and fowl s, and the necessary to be
k ept inoffensive. 1816.
An Act to provide for the payment of expenses on trial s for escape from the
penitentiary.
From and after the passing of this act, al l escapes from the penitentiary
shal l be tried at the expense of the State, and his excel l ency the governor, on
the reception of a certified statement from the cl erk of the Superior Court of
the amount of the expense chargeabl e to the county of Bal dwin, on any such
trial or trial s, (which ha\ e heretofore happened, and may hereafter tak e pl ace,)
shal l issue his warrant for the amount, to be paid out of the penitentiary fund.
Al l l aws and parts of l aws, mil itating against this act, are hereby repeal ed.
1823.
An Act to change the manner of appointing officers and agents for the
penitentiary.
SEC. 4. It shal l be the duty of his excel l ency the governor to recommend.
N. PENITENTIARY. 223
front .time to time, to the of the penitentiary, such changes in the re-
gimeii and pol ice of the penitentiary, as may seem to him expedient.
SEC. 5. His exeel l ency the governor, in the examination of said
reports, or in the discharge of any other, function assigned to him by this act,
shal l have power to command the assistance and services of the Secretary of
State, or of any other of the state-house officers, at his discretion. o/ "1828.
An Act - tosfiniprove the penitentiary edifice, and to regul ate the manner of its
. concern s, and for the erecting of cel l s, & c., and to appropriate money for its
< support, and to provide a road and river fund, and for the compensation of
persons appointed to survey and mark out certain roads, and for other pur-
.poses.
. SBC. 4. The shal l have power to direct the manner in which ma
terial s to be used in this institution, shal l be purchased ; but it shal l in no case
he l awful for any inspector, or other officer of the institution, to furnish sup
pl ies of any k ind themsel ves, or in any manner to be interested therein.
SEC. 6. The principal k eeper be authorized to mak e out an account against
the State, for al l work hereafter to be done by the convicts for the State, and
other improvements done in the penitentiary.
SEC. 12. The ration of the guard of the penitentiary shal l consist of twenty
Ounces of sifted corn meal ; and eight ounces of bacon, twel ve ounces of pork ,
or twenty ounces of beef; and one gil l of mol asses, each per day.
SEC. 13. The said guard shal l receive for every one hundred rations, as spe
cified in the 12th section of this act, four quarts of vinegar; four pounds of
.hard soap ; two pounds of tal l ow candl es, and four quarts of sal t.
SEC. 19. Prom and immediatel y after the passage of this act, the
of the penitentiary be, and are hereby required to l et the contract for sup-
pl ying rations for the guard and convicts for each year, to the l owest bidder,
and that .give twenty days notice of the time and pl ace of receiving seal ed
proposal s from persons who may wish to bid for said contract, in al l the publ ic
gazettes of Mil l edgevil l e.
SEC. 22. It shal l be the duty of said to tak e a bond with good
and sufficient security, in the sum of three thousand dol l ars, payabl e to his ex
cel l ency the governor, and his successors in office, conditioned for the faithful
performance of the contract, from the person who may become the l owest bid
der, for suppl ying the rations of the guard and convicts, as pointed out in the
preceding sections of this act. 1833.
An Act to revise, amend and consol idate the rul es for the Pol ice of the Peni-
ten,tiary.
RULE 26. The shal l not al l ow a commission to the principal k eep
er on purchases made by him. 1833.
RULE 8. Prisoners of different sexes shal l at al l times be k ept separate and
apart.
RULE 25. The shal l have authority to mak e contracts for suppl y
ing the penitentiary with stock and material s, work ing tool s and impl ements,
and cl othing and food for the prisoners and guard ; and for the sal e of articl es
.fabricated in the penitentiary; and this power may del egate to the princi
pal k eeper ; but no inspector or other officer of the institution shal l tak e a con
tract for furnishing any of the foregoing articl es, or be security for any person
contracting to furnish the same.
224 PENITENTIARY.
RULE 28. In any suit instituted for the recovery of money due to the peni
tentiary, a correct transcript from the first book of entries k ept in the office of
the book -k eeper, containing a copy of the account, and certified by him to be a
correct transcript from said book , shal l be sufficient evidence to establ ish such
account; but the defendant shal l , neverthel ess, be al l owed to controvert the
same.
RULE 29. Whenever the publ ic service shal l require articl es ready manufac
tured, or to be manufactured in the penitentiary, such articl es shal l be furnished
on the requisition of the governor in writing, communicated to the principal
k eeper.
RULE 35. The principal and assistant k eepers, before they enter on the dis
charge of their respective duties, shal l each give bond, with security, in such
sum as the may require, conditioned for the faithful discharge of
their several duties.
RULE 39. It shal l be the duty of the physician to visit the prisoners and
guards, once every day, at or before nine o cl ock , A.M., and oftener, when he
shal l bel ieve that the condition of any of the foregoing persons shal l mak e it
proper, or the principal k eeper shal l request the same, to inspect the institution
general l y in rel ation t& whatever may affect its heal thful ness, once in every
week ; and to mak e a succinct week l y report to the showing the
number and names of the sick , and their diseases, and embracing such other
matters, in rel ation to his department, as he shal l think it useful to communi
cate, or may require.
RULE 41. Any cl ergyman, under the direction of the k eeper, may preach to
the prisoners on the Sabbath, and pray with them dail y, at the cl ose of the
hours of l abor, and visit them in his discretion, at other times, under such reg
ul ations as the may establ ish.
RULE 42. The principal k eeper shal l have power to permit the wives of con
victs to visit their husbands, at such times, and on such occasions, during their
confinement, as he shal l deem safe and proper; except those convicts who are
sentenced to sol itary confinement.
RULE 45. The shal l examine every thing appertaining to the po
l ice, government, good order, and safety of the penitentiary.
RULE 46. No prisoner shal l l eave the pl ace assigned to him for l abor, during
the hours of l abor, without a tok en, to be given to him by the assistant k eeper,
under whose special charge he may be pl aced, unl ess special l y directed by
some officer of the institution.
RULE 49. Every prisoner, at the time of his discharge, shal l be furnished
with a suit of cl othes, not exceeding ten dol l ars in val ue, and with a sum of
money not exceeding that amount: and the principal k eeper shal l be author
ized to mak e a discrimination in the val ue of the cl othing, and the amount of
the money then furnished, according to the conduct of the prisoner during his
confinement.
RULE 51. The sal ary of the principal k eeper shal l be two thousand dol l ars
per annum. 1841.] 1833.
An Act to be entitl ed an Act to al ter and amend the 47th and 51st Rul es
Establ ished for the Government of the Penitentiary.
From and after the passage of this act, the fol l owing shal l be tak en in l ieu of
the said rul es:
In l ieu of the 47th rul e, the fol l owing, viz.: Those prisoners that conduct
themsel ves, so as to merit favor, shal l be permitted to work for themsel ves
during the time al l otted to their meal s and rest, provided the principal k eeper
and deem the same expedient, on such articl es as the principal k eeper
PENITENTIARY. 225
shal l degm it expedient; but they shal l hot be permitted to perform any work
in their cel l s that may occasion the smal l est noise. The principal k eeper may
furnish them with material s) from the-stock bel onging to the penitentiary, to
be paid .for out of the priee ; of the articl es wrought by them. And the assist
ant k eepers shal l tak e-an ^ccount of al l articl es wrought by them for their own
benefit; These articl es shal l be sol d onl y by the principal k eeper, or by a
guard designated by/ him for that purpose ; no prisoner shal l receive the money
thus earned by^biirii but it shal l remain in the hands of the principal k eeper
or guard aforesaid.
Purchases "jor prisoners shal l be made onl y by the principal k eeper, or by a
guard ..d-egigriated by him for that purpose, and of such articl es onl y as he may
approve.
Aa Act to authorize the Governor to empl oy a Chapl ain for the Penitentiary,
. and to appropriate Money to purchase Bibl es and Hymn-book s.
Wh.ereas, there are in the penitentiary of this State a l arge number of convicts,
and many of them confined for a considerabl e number of years, and some con
fined for l ife; and by their confinement within the wal l s of the penitentiary,
necessaril y precl uded the privil ege of attending rel igious instructions, (a privil ege
inval uabl e to every moral being.) And whereas, the convicts of the State
prison are equal l y dependant upon the State for moral and rel igious instruction,
as for the common comforts of l ife, received from the State; therefore,
SEC. 1. That from and after the passage of this Act, his excel l ency the Gov
ernor be, and he is hereby authorized, to procure the services of a preacher of
the Gospel , as Chapl ain for the penitentiary, whose duty it shal l be to preach
to the convicts, at l east once every Sabbath, and afford them such other in
struction as said Chapl ain, and the other officers of the penitentiary, shal l deem
consistent with the best interests of the State.
SBC. 2. That said Chapl ain shal l have free access to the penitentiary, the
same as other officers thereof; and for his services shal l receive the sum of one
hundred and fifty dol l ars per annum, as Chapl ain s sal ary; and,the Governor
is hereby authorized to pay the same quarterl y out of any funds in the treas
ury, not otherwise appropriated.
SBC. 3. That his excel l ency the Governor be, and he is hereby authorized
to purchase, for the use of the convicts in the penitentiary, a Bibl e and Hymn-
book for each convict, and to be paid for out of any monies in the treasury,
not otherwise appropriated.
Sac. 4. That al l l aws, and parts of l aws mil itating against this Act, be, and
An Act to mak e it the duty of the Treasury Committee to investigate and
report the condition of the penitentiary, during those years when there
shal l be no Session of the Legisl ature; and to require his excel l ency the
Governor to appoint three persons to examine the raw material s and the
assets of the Book -k eeper, and report upon the same to his excel l ency.
SEC. 1. That it shal l be the duty of the Committee, which may be sel ected
to examine into the condition of the treasury, in those years when there shal l
be no Session of the Legisl ature, to investigate ful l y the affairs of the peniten
tiary, and report the condition of said institution to his excel l ency the Governor,
on or before the first day of November, and that he cause the same to be pub-
l isjjed and distributed, in l ik e manner with the report on the treasury, as now
provided for by l aw.
SEC. 2. That his excel l ency the Governor be, and he is hereby required, to
appoint three fit and proper persons to examine the raw material s in the hands
of the principal k eeper of the penitentiary, and affix to them several l y their
226 PENITENTIARY.
value, and also the assets of the book-keeper, and report their value; and that
his excellency cause the same to be done annually in time for said reports to
be laid before the Treasury Committee, in those years when ther,e shall be no
Session of the Legislature, and before the Joint Standing Committee during
the Session of the Legislature, to the end, that perfect reports of the condition
of the institution may be made. Acl of 1847.
Ân Act for the Setter Government of the Penitentiary.
SEC. 1. Be it enacted by the Senate and House of Representatives of the
State of Georgia in General Assembly met, and it is hereby enacted by the
authority of the same, That it shall be the duty of the assistant keeper of the
penitentiary, in addition to his other duties, to open a set of books on the system
of double entry, in which shall be kept a full and correct account of all pur
chases made, a proper record of all the raw material consumed in the various
workshops, as well as of all the manufactured articles, cash and job work
turned over to the salesman. It shall also be his duty to take charge of the
store-house containing the materials, and issue the same to the different over
seers of the workshops, taking care to charge the shop, for which the issue is
made, with every item so issued.
SEC. 2. And be it further enacted, that the book-keeper shall be the collect
ing officer of the penitentiary, and shall from time to time, and within one year
after any debt shall be contracted, place the same in suit, and press the collec
tion thereof, and shall receive for all the duties required of him, the sum of one
thousand dollars annually, to be paid as the other salaries of the officers of the
institution are.
SEC. 3. And be it further enacted, that the principal keeper shall be allowed
to use his discretion in relation to the time the convicts shall be confined in their
cells on the Sabbath day.
SEC. 4. And be it further enacted, that the principal keeper and inspector shall
make their returns to the Governor once a year only.
SEC. 5. And be it further enacted, that the Governor shall appoint bienni
ally, instead of annually, three commissioners, to take an inventory of the stock
of the penitentiary ; the first appointment to be made in the year one thousand
eight hundred and fifty.
SEC. 6. And be it further enacted, that the principal keeper be, and he is
hereby authorized to sell and dispose of all old and useless materials on hand,
and that he be allowed a proper credit for the same in his accounts. Act of
1849.
The following Rules shall be Established for the Government of
the Penitentiary.
An Act to revise, amend, and consolidate the rules for the Government and
Police of the Penitentiary of the State of Georgia.
SBC. 1. Be it enacted by the Senate and House of Representatives of the
State of Georgia, in General Assembly met, and it is hereby enacted by the
authority of the same, That from and after the passing of this act, the following
rules shall be established for the government of the Penitentiary of the State
of Georgia.
EULE 1. The officers for the management of the Penitentiary, shall be one
Inspector, one Principal Keeper, one Book-keeper, and a Physician.
EULE 2. The Inspector, Principal Keeper, Book-keeper, and Physician,
shall be appointed by the Governor, and their term of office shall be one year.
S PENITENTIARY. 227
The Governor shal l . have the power of removing al l or either of said officers,
and fil l ing their vacancies .
RULE 3. There shal l be o ne Assistant Keeper and as many Overseers, not to
exceed four," as the" Principal Keeper may think necessary, who shal l be
appointed by the. Principal Keeper, and their term of office shal l be one year ;
and the Principal Keeper is hereby empowered to remove either the Assistant
Keeper and-jany or al l of the Overseers, and to fil l the vacancy or vacancies by
appointment. The sal ary of the Assistant Keeper shal l be eight hundred dol
l ars , per annum, and that of the Overseers shal l be four hundred dol l ars each
; p/ er!annum. 0/ 1843.
" RULE. 4. It shal l be the duty of the Principal Keeper to cause the cl othes
of each prisoner, when received into the Penitentiary, to be cl eansed and put
away, l abel l ed with his name, to be returned to him on his discharge; or if the
prisoner shoul d desire his cl othes to be sol d, the Principal Keeper shal l sel l
them, and deposit the money arising from such sal e in the Cl erk s office, to be
paid over to the prisoner on his discharge or in case of his death whil e in
prison, then to his l egal representatives.
RULE 5. The description of every prisoner, when he is received into the
Penitentiary, shal l be entered in a book to be k ept for that purpose by the
Principal Keeper, in which shal l be entered the name, age, height, col or of the
eyes and hair, compl exion, pl ace of nativity, time of conviction, county where
convicted, nature of the crime, and period of confinement.
RULE 6. Every prisoner, when he is received into the Penitentiary, shal l be
careful l y searched and deprived of any articl e by which an escape might be
effected, and al so, of al l monies in his possession, to be returned to him on his
discharge; or in ease of his death whil e in prison, then to his l egal repre
sentatives.
RULE 7. On the receipt of every prisoner into the Penitentiary, such parts
of the l aws of the State as impose penal ties for escapes, and such rul es as re
l ate to the conduct of the prisoners, shal l be read to him; and on his discharge,
such parts of l aws as impose additional penal ties for a repetition of l ik e offences
shal l be read to him.
RULE 8. The cl othing annual l y furnished to the prisoners, shal l consist of one
round jack et, one vest and one pair of trowsers of k erseys, two pair of shoes,
two pair of coarse yarn sock s, two shirts, and two pair of trowsers made of
cotton cl oth, and one round jack et of the same. The round jack et and trowsers
to be made, one hal f of each of various col ors; and an additional suit of cl oth
ing to each of the convicts who may l abor at the bl ack smith s work . And for
each femal e, of two frock s and two petticoats, made of grey k erseys ; two petti
coats and two shifts, made of oznaburgs or cotton cl oth; two pair of shoes, two
pair of stock ings, and two bl ue l inen or cotton neck erchiefs. 1833.
And they shal l not be al l owed to wear any other k ind of cl othes in the Peni
tentiary. And each prisoner shal l be furnished with a cheap matrass and such
number of bl ank ets as the Principal Keeper bel ieves shal l be needed.
RULE 9. The prisoners, except on Sundays and when confined in their cel l s,
shal l be k ept at hard l abor, as far as may be consistent with their age, heal th
and abil ity; and they shal l be so arranged at l abor as to be under the constant
inspection of the Assistant Keeper or one of the Overseers, as far as may be
practicabl e, whose duty it shal l be to prevent intercourse between the convicts,
except so far as may be required by any work in which they may be jointl y
empl oyed.
RULE 10. The hoars of l abor shal l be as many as the l ength of the days wil l
! f
228
PENITENTIARY.
permit, with the exception of not move than forty minutes each, for break fast
and dinner. *
RULE 11. It shal l be the duty of the assistant k eeper and overseers to
see that each prisoner, in their several departments, shal l k eep his tool s in safety
and good order; and each prisoner shal l be responsibl e for his own tool s.
RULE 12. A garden shal l be attached to the penitentiary, for the purpose of
raising vegetabl es for the prisoners, to be work ed by them, under such pre
cautions as the principal k eeper shal l bel ieve wil l prevent the danger of escape.
RULE 13. The wal l s of the cel l s, and other apartments of the prison buil d
ing, shal l be whitewashed at l east once a year; the fl oors shal l be k ept neat
and cl ean, and the buil ding fumigated and purified with chl oride of l ime, as
often as the physician or principal k eeper shal l bel ieve conducive to. the
heal th of the prisoners.
RULE 14. An apartment or apartments shal l be prepared as a hospital , in
which the sick shal l remain, unl ess otherwise directed by the physician. And
if any prisoner, at the expiration of his confinement, shal l be dangerousl y il l ,
such prisoner shal l not be discharged whil e sick , unl ess at his request.
RULE 15. If any prisoner shal l be guil ty of any viol ation of any rul e herein
prescribed, or of any order of the principal k eeper, not contrary to the l aws of
this State, he shal l be punished at the discretion of the principal k eeper. In
no case whatever shal l the principal k eeper, or any. other officer of the
institution, be al l owed to infl ict corporal punishment with the l ash on any con
vict, without the express direction of the inspector.
RULE 16. No l etter or other communication in writing shal l be carried in or
out of the penitentiary, without being first examined, and permitted by the prin
cipal k eeper ; nor shal l any articl e be carried into or out of the penitentiary, for
the use or benefit of the prisoners, without his consent.
RULE 17. No person, except those authorized by l aw, shal l go within the
penitentiary, as a visitor, unl ess by the permission of the principal k eeper; and
such visitor, whil e within the penitentiary, shal l , in every instance, be attended
by one of the k eepers, or one of the guard.
RULE 18. The prisoners shal l not be al l owed to use any spirituous or fer
mented l iquors, except it is prescribed by the physician for the sick .
RULE 19. No l ight shal l be permitted in the cel l s of the prisoners after they
are l ock ed up for the night, during any season of the year.
RULE 20. The prisoners shal l be k ept separated in the cel l s, which shal l be
numbered, and divided into as many wards as there are overseers, one ward
being assigned to each, whose duty it shal l be al ways to examine said cel l s be
fore the prisoners are turned into them, and to search each prisoner before he
enters the cel l , and tak e from him whatever might be used in effecting his es
cape, bedding and cl othing excepted.
RULE 21. The Inspector shal l purchase al l material s that may be required by
the principal k eeper for the use of the penitentiary ; and when del ivered, shal l
tak e the principal k eeper s receipt for the same. And in al l instances he shal l
have the authority, and he is hereby required, at stated times, to advertise in
two of the publ ic gazettes in Mil l edgevil l e, for seal ed proposal s to furnish sup
pl ies of such wood, stock , and coal , as may be required for the use of the peni
tentiary ; and to purchase such provision and stores as may be required for the
prisoners and guard ; but in no case is he authorized to purchase any articl e,
except upon the requisition of the principal k eeper in writing.
RULE 22. It shal l be the duty of the principal k eeper to give dupl icate receipts
for al l material s del ivered to him by the inspector, (if in good order and con
dition) for the use of the penitentiary; and to del iver In articl es which are
k PENITENTIARY. 229
manufactured and ready, for sal e, to-the book -k eeper, who shal l give dupl icate
receipts; for the same, in .which shal l be specified the price or val ue of each ar
ticl e, as pl aced by the inspector and principal k eeper.
RULE 23. It shal l be the duty of the book -k eeper to sel l al l articl es manu
factured in the penitentiary, at the several prices designated by the inspector
and principal k eeper...
- RULE 24. It.>hal l be the duty of the principal k eeper, and he is hereby au
thorized, his warrant on the book -k eeper in favor of the inspector, for
al l & um:; p.f: money that may be necessary for the payment of the debts con-
traetedf" by him for material s and provisions purchased and del ivered to the
principal k eeper, for the use of the penitentiary; and the book -k eeper shal l
charge the same to the inspector. The book -k eeper shal l pay quarterl y to the
inspector, the principal k eeper, the physician, the assistant k eeper, the over
seers, and the guard, al l monies which may be due them for their services in
that quarter, upon the pay-rol l s being made out and certified by the principal
k eeper to be correct and just; he shal l al so retain the amount due him in each
quarter as it becomes due.
RULE 25. The Book -k eeper shal l al so pay al l incidental and contingent ex
penses which may be created by and for the use of the penitentiary, upon the
accounts being properl y made out and certified by the principal k eeper (in du
pl icate) to be correct and just; but in al l cases where a payment is made, a
receipt shal l be tak en from the individual to whom the payment was made ;
and if the payee shoul d not be abl e to write his name, the payment must be wit
nessed.
RULE 26. The Principal Keeper is al so authorized and empowered to draw
his warrant on the book -k eeper for any sum or sums of money as he may need,
for the purpose of defraying the expense of bringing convicts from the pl ace of
conviction to the penitentiary.
RULE 2? . It shal l be the duty of the Book -k eeper, on the first Monday in
January, eighteen hundred and forty-one, to give dupl icate receipts to the
principal k eeper for al l monies then on hand, and for al l notes and accounts
then due and owing to the penitentiary, specifying the mak er, date, and amount
of the note, and when due and payabl e ; al so the several accounts by whom
owing, and the amount of each, which several notes and accounts he is
authorized and required to col l ect and account for in the same manner as al l
other sums of money received by him from the sal e of articl es made in the
penitentiary. And he shal l al so pay al l suras of money due and owing by the
.penitentiary, upon the same being properl y authenticated by the certificate of
the principal k eeper. And said book -k eeper is al so authorized and required,
shoul d it be necessary, to institute a suit or suits in his official character for the
recovery of al l monies now due, or which may hereafter become due, to the
penitentiary.
RutE 28. The Inspector, Principal Keeper, and Book -k eeper, shal l each
mak e a consol idated or annual return to the Governor of Georgia, on the first
Monday in October, in each and every year, showing the quantity, k ind, and
cost of al l material s purchased and paid for; al so, the quantity, k ind, and cost
of al l material s purchased and not paid for, in that pol itical year; al so, the _
number, k ind and val ue, of al l articl es manufactured in the penitentiary, in that
pol itical year ; and the quantity, k ind and val ue, of al l material s remaining on
hand ; al so, the quantity, k ind and val ue, of al l articl es sol d for cash ; al so,
the quantity, k ind and val ue, of al l articl es sol d on credit, and to whom sol d,
and the quantity, k ind and mark ed val ue, of al l articl es remaining on hand at
that time.
RULE 29. It shal l be the duty of the Assistant Keeper and the Overseers
16
230 PENITENTIARY.
al ternatel y, to remain within the penitentiary during the night, to superintend
the guard in such manner as the principal k eeper shal l direct; to remain each in
the department assigned to him by the principal k eeper during the hours of l abor,
unl ess absent therefrom on business connected with his department or attending
on visitors; to superintend the l abor of the prisoners, to l ock them up, and
turn them out .of their cel l s at the appointed hours ; to search their cel l s and
the prisoners before they are l ock ed up ; to enforce industry and good conduct
among the prisoners ; to watch over the safe k eeping of the prisoners and the
preservation of the buil dings and other property of the Institution; and at
l east one of them to be at al l times present and superintend the conduct of the
prisoners at break fast and dinner, in the discharge of which duties they shal l
be under the direction of the principal k eeper.
RULE 30. The Principal and Assistant Keeper, Inspector, and Book -k eeper,
before they enter upon the discharge of their respective duties, shal l each give
bond and good security [ in such sum as the may require, conditioned
for the faithful discharge of their several duties. 1833] payabl e to the
Governor for the time being, and his successors in office, which bonds shal l be
fil ed in the Executive Office, where said bonds shal l remain subject to the or
der of the Governor, and to be sued on by the Sol icitor General , to be desig
nated by the Governor, for al l defal cation or negl ect of duty of any of said
officers.
RULE 31. The Inspector, Principal Keeper, Book -k eeper, and Assistant Keep
er, before they enter on the discharge of their respective duties, shal l l ik ewise
tak e and subscribe the fol l owing oath, namel y: I, A. B., do sol emnl y swear
that I wil l faithful l y and dil igentl y execute al l the duties l awful l y required of
me as k eeper of the penitentiary (or whatever his designation may be,) and
wil l carry into execution the l aws and regul ations for the government of the
same, so far as concerns the duties of my said office, to the best of my k nowl
edge and abil ity; (and I wil l on no occasion il l -treat or abuse any prisoner
under my care, beyond the punishment accorded by l aw or the rul es and regu
l ations of the penitentiary :) so hel p me God.
RULE 32. The Principal Keeper shal l enl ist his own guard, and so organize
it as not to have .exceeding three officers, with as many privates as he may
deem necessary, at such pay as may be stipul ated by the parties, not to exceed
the pay now al l owed, [ l ieutenant, thirty-six dol l ars per month; sergeant,
twenty-six dol l ars per month; privates, twenty dol l ars per month.
1840,] and the rations of al l the members of the guard shal l be the same as
that of private sol diers in the army of the United States. 0/ 1843.
RULE 33. Whenever the principal k eeper shal l go out of office, he shal l de
l iver to his successor, al l the material s on hand, al l articl es in progress of mak
ing, though not compl eted, and al l tool s and other articl es bel onging to the
Institution ; and shal l tak e his successor s receipts for the same, in which shal l
be specified such tool s as are worn or used, from those which are not.
RULE 34. The Book -k eeper shal l , at the time he goes out of office, del iver to
his successor al l monies, notes and manufactured articl es on hand, and shal l
tak e receipts for the same, in which shal l be specified whose note, date, amount
and when due ; al so the quantity and mark ed val ue of the different articl es on
hand.
RULE 35. The Principal Keeper shal l careful l y inspect and note the moral
conduct of the prisoners, and furnish them with such moral book s as he may
think proper.
RULE 36. The Inspector, Principal Keeper, Assistant Keeper, the Book
k eeper, Physician, Overseers and Guard, shal l be exempted from mil itia duty in
y PENITENTIARY. S31
time of peace, and from Road and Corporation duty, and from obl igation to
serve .as jurors or patrol s..
RULE 3* 7. The food of the prisoners shal l consist of a ration, if of bacon, of
eight ounces, if "of ..port," of twel ve ounces, if of the hind-quarter of beef, of six
teen ounces, if .of the. fore-quarter of beef, of twenty ounces ; of bread made
of Indian meal , arid pf peas, potatoes, and other vegetabl es, at the discretion of
the principal iêper, who al so may permit them to purchase, in the manner
herein-afterjdescribed, mol asses, and other articl es of simil ar character, as a re
ward fo,ivgood conduct. 1833.
, RuiiE 38. It shal l not be l awful for any officer of the penitentiary to sel l ,
l oan, or otherwise dispose of, any of the material s provided for the use of the
penitentiary in the course of its business, or any of the tool s thereof, or any-
thing raised in the garden for the use of the prisoner-s, and for the viol ation of
this section, the officer or officers guil ty thereof, shal l be forthwith discharged
from the same. 0/ 1841.
; / RULE 39. Thatal l l aws prohibiting job work to be done in said penitentiary,
.be and the same are hereby repeal ed. 1843.
RULE 40. The Principal Kee.per shal l be authorized to mak e such arrange
ments as he shal l deem economical and safe, for conveying convicts to the peni
tentiary ; and for this service he may empl oy a portion of the guard.
1833.
RULE 41. The Principal Keeper shal l have a general superintending power
over the institution, and shal l be responsibl e for the conduct of al l the officers
under his command. 1833.
RULE 42. The Guard, the Assistant Keepers, and al l other persons attached
to the institution, except the inspector and physician, shal l be subject to the
authority of the principal k eeper, who shal l have the power of suspending and
reporting to the governor, any of the persons aforesaid who shal l viol ate the
regul ations of the penitentiary. He shal l have authority to discharge any mem
ber of the guard for disorderl y conduct; he shal l al so have authority to fine
any member of the guard who shal l be guil ty of a viol ation of orders or negl ect
of duty.
RULE 43. A committee of both branches of the Legisl ature shal l , at each
session, be appointed to visit the penitentiary, and strictl y examine the concerns
of the said institution, and investigate the conduct of the officers, and the rul es
and regul ations of the penitentiary, and special l y report thereon. 1816.
That al l l aws, and parts of l aws,
mil itating against this act, be and the same are hereby repeal ed. 1840.
GEORGIA PENITENTIARY,
OFFICE OF PRINCIPAL KEEPEB,
1850.
I certify that the above and foregoing Rul es, as l aid down, is a true and
correct transcript of the l aws now in force, regul ating and governing the affairs
and pol ice of this Institution.
WM. W. WILLIAMSON, P. K. P. G.
APPENDIX.
RULES OF THE SUPREME COURT.
RULE I. Al l attorneys who have been admitted to practice in the Superior
Courts of this State, may be admitted to practice in the Supreme Court, on
appl ication : provided they shal l exhibit to the Court satisfactory proof of good
private and professional character, and pay to the Cl erk of the Supreme Court
the usual fee of five dol l ars, who shal l issue to each appl icant a l icense under
the seal of the Court, upon each appl icant tak ing and subscribing the fol
l owing oath : J, _ _ _ _ _ ,
RULE II. The written recommendation of any one or more respectabl e mem
bers of the bar, certifying to the good private and professional character of an
appl icant for admission, shal l be sufficient evidence of character, and wil l in al l
cases be required.
RULE III. Any attorney from other States or Territories shal l be admitted to
pl ead and practice in this Court, who wil l produce satisfactory proof that he
has been regul arl y l icensed in the highest judicial tribunal of such State or
Territory, and is at the date of his appl ication a practicing attorney of the
same.
RULE IV. A brief of the oral , and a copy of the written evidence adduced in
the Court bel ow, shal l be embodied in the Bil l of Exceptions, and shal l consti
tute a part of the same.
RULE V. Every motion for any rul e, order or judgment, shal l be submitted
to the Court in writing by the counsel who mak es it, and if granted, shal l be
handed to the Cl erk .
RULE VI. No paper bel onging to the Cl erk s office shal l be tak en therefrom
without l eave of the Court ; and when such l eave is granted, the party receiv
ing papers shal l receipt to the Cl erk for the same.
RULE VII. Al l cases returned to this Court shal l be entered on the Bench
dock et and numbered, on or before the Court meets, on the first day of the
term to which they are respectivel y returned, and the cases first received by
the Cl erk shal l be first entered.
RULE VIII. The Cl erk shal l furnish a transcript of the Bench dock et for
the use of the bar; and the bench dock et shal l not be subject to inspection
during the sessions of the Court.
RULE IX. Al l cases entered on the Bench dock et shal l be cal l ed and tried in
the order in which they are there entered. It shal l , however, be competent for
the Court, upon special cause shown, to set down a case for hearing out of its
regul ar order.
APPENDIX. 233
RULE X. The attorney who mak es out and tenders the Bil l of Exceptions, shal l
sig.ri his name to the. same; , and shal l be, with the counsel representing the case
before this Court, bound for costs.
Emus XL -When ca& es are cal l ed for hearing, and there is no appearance by
the. pl aintiff in error, the defendant may have the pl aintiff cal l ed, and move the
Court to dismiss fee writ, or may open the record and pray for affirmance
of the judgment ; and in case the writ is dismissed, or the judgment affirmed,
the pl ainttfFin error shal l pay the cost; and shoul d the defendant fail to appear,
, then Jh e pl aintiff shal l be entitl ed to have him cal l ed, and open the record, and
pray for a reversal of the judgment.
RULE XII. Upon the reversal of any judgment, order or decree of the Supe
rior Courts, the party in whose favor the reversal is- had, shal l be entitl ed to col
l ect in the Court bel ow al l the costs which have accrued in the cause.
: RULE XIII. Upon the Cl erk of this Court producing satisfactory evidence
by affidavit, or the ack nowl edgment of the parties, their sureties or attorneys, of
having served a copy of the bil l of costs due by them in this Court, on such
parties, sureties, or attorneys, an attachment may issue against such parties,
sureties, and attorneys, to compel payment of costs.
, RULE XIV. The counsel for the pl aintiff in error shal l furnish each of the
Judges and the Reporter with a copy of the Bil l of Exceptions and a note of
the points or questions intended to be made, and a statement of the facts in
the cause, which shal l be submitted to each of the Judges and a Reporter, at or
before the first day of the term to which the cause is returned, with a l ist of the
authorities expected to be rel ied on. Ifo agreement or admission between the
parties or their attorneys shal l be binding, unl ess the evidence thereof shal l be
in writing, subscribed by the party or his attorney, against whom the same shal l
be al l eged.
RULE XV. Onl y two counsel shal l be permitted to argue for each party, pl ain
tiff and defendant, in a cause; and the counsel for pl aintiff in error shal l begin
and concl ude, reading al l the authorities upon which he expects to rel y, in his
opening argument ; and in al l special matters springing out of a cause at issue,
or otherwise, the actor or party submitting a point to the Court shal l begin
and concl ude ; and ne cause shal l be argued by brief al one.
RULE XVI. The remitter shal l contain a copy of the judgment of the Court
annexed to the Bil l of Exceptions, and a transcript of the record of the pro
ceedings bel ow as brought into this Court under the seal of this Court, and
signed by the Cl erk , and the same shal l be del ivered to the party in whose
favor the decision shal l be made, on the payment of fees, by whom it shal l ,
together with the bil l of costs, be transmitted to the Court bel ow.
RULE XVII. Whenever, pending a cause in this Court, either party shal l die,
the proper representatives of such party may vol untaril y come in and be admit
ted parties to the suit upon motion ; and thereupon the cause shal l be heard
and determined as in other cases ; and if, on or before the first term succeeding
th decease of a party dying, there shal l be no representation of his estate, or
if represented, parties shal l not be thus vol untaril y made, then, and in either
of said events, the other party may at that term suggest the death on the rec
ord, and thereupon, on motion, obtain an order that unl ess such representation
be had, and parties made thus vol untaril y, as herein before authorized, oa or
before the second day of the term then next succeeding, the party moving such
order, if defendant, shal l be entitl ed to have the writ of error dismissed, and
if the pl aintiff, he shal l be entitl ed to open the record, and proceed to a hear
ing : that a copy of every such order shal l be publ ished in one of
the gazettes at the seat of government, three successive week s, at l east sixty
days before the said l ast named term of the Court, or served on the adverse
party thirty days before the first day of said term.
234 APPENDIX.
RULE XVIII. No cause shal l be heard until a compl ete record shal l be fil ed,
containing in itsel f, without references al l the papers, exhibits, deposi
tions, and other proceedings which are necessary to the hearing in this Court ;
and al l objections to the compl eteness of the record shal l be made in writing,
and verified by affidavit, on or before the third day of the term to which the
cause is returned ; and in al l cases where such exceptions are fil ed, the cause
shal l be considered as returned to the next succeeding term, and the Court
shal l on motion award a writ of Certiorari, directed to the Court bel ow, for the
purpose of causing to be sent up the entire record, which writ shal l be served
by the party or bis attorney moving the same, and shal l be returned to the
next term after it is awarded : that nothing herein contained shal l
prevent this Court from awarding a process of contempt against any officer, in
any case, where l ie may be considered as in defaul t.
RULE XIX. In al l cases where a Bil l of Exceptions has been certified and
signed, a writ of error shal l be made out by the counsel for the pl aintiff in error
to this Court, which shal l be directed to the judge of the Superior Court so
certifying and signing, together with a citation to the defendant in error to ap
pear and answer.
RULE XX. Such writs of error shal l issue in the name of the Governor of the
State, shril l bear test in the name of the Judges of this Court, shal l be signed
by the Cl erk , and seal ed with the seal of this Court, and shal l be returnabl e to
the next succeeding term, and the citation shal l bear test in the name of
the Judges of this Court, shal l be signed by the Cl erk , and seal ed with its
seal .
RULE XXI. The writs of error, with the citations thereto annexed, shal l be
fil ed with the Cl erk of the Superior Court, at the time of tendering the Bil l of
Exceptions, copies of which, made out by counsel of the pl aintiff in error, shal l
be served on the defendant in error, or his counsel , by the Sheriff of the county,
or by counsel for pl aintiff in error, within ten days from the signing and certify
ing of the Bil l of Exceptions ; and an entry of the same shal l be made on the
original writ by the counsel or sheriff, who mak es it, official l y ; and it shal l be the
duty of the Cl erk of the Court wherein such bil l is signed and certified, to send
up to this Court, with the record of the cause, such original writ and citation,
dul y by him certified to be the original s fil ed in his office.
RULE XXII. It shal l be the duty of the Cl erk of this Court to k eep on hand
for the use of the bar, bl ank writs of error and citations, according to the form
adopted by this Court, dul y by him signed and seal ed, to be furnished to the
bar, on appl ication therefor.
RULE XXIII. The pl aintiff in error shal l , on or before the first day of the
term to which the writ of error is returned, or immediatel y upon the fil ing of
the record thereafter, fil e in the Cl erk s office of this Court an assignment of
errors; and the defendant in error shal l , on or before the second day of the
term, or within twenty-four hours after the assignment is fil ed, mak e out and
fil e in office a traverse of such assignment; and upon fail ure of pl aintiff to fil e
his assignment as herein required, the defendant shal l , upon motion, be entitl ed
to have the writ dismissed ; and shoul d the defendant, as herein required, fail
to fil e his traverse, then the pl aintiff shal l be entitl ed to proceed with
his cause : that no error shal l be assigned, except such as is expressed
in the Bil l of Exceptions.
RULE XXIV. The fol l owing shal l be the form of Writs of Error :
To Judge of the Superior Courts of
Circuit, GREETING :
Because in the Records and Proceedings, as al so in the rendition of a Judg
ment in a cause in the Superior Court of County, before you,
between and a manifest error is charged to have
APPENDIX. 235
been committed to the damage of the said as by compl aint and
.Bil l ,of Exceptions by you signed and certified appears, and we being wil l ing
that the Error compl ained of, if any hath been, shoul d be dul y corrected, and
ful l and speedy justice be done to the parties aforesaid in this behal f, do com
mand you, if judgment-in said cause -as compl ained of be given, that then under
your seal distinctl y and openl y you cause to be sent the records and proceed
ings aforesaid, ; With al l things concerning the same, to the Supreme Court of
the State/ of Georgia, together with this writ, so that you have the same at
on the day of next in the said Court, to be
- then-Vand there hel d, that the records and proceedings aforesaid being inspected,
, tii e said Court may cause further to be done therein to correct that Error, what
; 6f right and according to l aw, shoul d be done.
WITNESS, The Honorabl e JOSEPH H. LUMPKIN, HIRAM WARNER, and
rr a -i EUGENIUS A. NISBET, Judges of the Supreme Court of the State
* J of Georgia, this day of 184 .
; ,, R. E. MARTIN,
RULE XXV. The fol l owing shal l be the form of Writs of Citation :
To GREETING :
YOU are hereby cited and admonished to be and appear at a Supreme
Court to be hel d at the day of next,
pursuant to a Writ of Error fil ed in the Cl erk s office of the Superior Court of
the county of in said State, wherein is Pl ain
tiff, and you are Defendant in Error, to show cause, if any there be, why the
Judgment in the said Writ of Error mentioned shoul d not be corrected, and
speedy justice shoul d not be done to the parties in this behal f..
WITNESS, The Honorabl e JOSEPH H. LUMPKIN, HIRAM WARNER, and
rT -, EUGENIUS A. NISBET, Judges of the Supreme Court of the State
1> b-J Of Georgia, this day of 184 .
R. E. MARTIN,
RULE XXVI. Al l opinions del ivered by the Judges of this Court shal l , im
mediatel y upon del ivery thereof, be handed to the Cl erk , whose duty it shal l
be to record the same, and then to del iver the original s, with a transcript of
the judgment or decree of the Court thereon, to the Reporter.
RULE XXVII. The papers bel onging to the causes brought before this Court
shal l be handed to the Cl erk in person, or transmitted to him at Mil l edgevil l e.
RULE XXVIII. It shal l be the duty of the Cl erk to note the time of fil ing
assignments of Error, and of traverses of such assignments, and no cause shal l
be considered as ready for a hearing until entry is made on the Dock et of
" Issue joined," which entry shal l be made onl y in cases where Errors have
been assigned and traversed, as provided in these Rul es.
RULE XXIX. No argument or brief of counsel shal l be received by the
Reporter, after the opinion of the Court has been del ivered.
RULE XXX. The counsel for the defendant in error, at or before the open
ing of the cause, shal l submit to each of the Judges and the Reporter, a state
ment of the points to be made, together with a l ist of the authorities intended to be
rel ied on.
RULE XXXI. After this year (1846), no cause (except such as are provided
for in the sixth section of the Act creating this Court) shal l be considered as
properl y brought up, so as to authorize this Court to hear and determine the
same, unl ess the Cl erk shal l certify and send up a compl ete transcript of the
entire record bel ow, together with the Bil l of Exceptions, within ten days after
the fil ing of the original notice of the signing of the Bil l of Exceptions, with the
return of service thereon.
236 APPENDIX.
ROLE XXXII. Al l appl ications for Writs of Mandamus against defaul ting offi
cers, under the sixth section of the act creating this Court, shal l be made at its first
term, wherever hol den, and on or before the third day of the term, after the
al l eged defaul t occurs, unl ess prevented by providential cause ; and the party
seek ing said writ against the Cl erk , for fail ing or refusing to send up the tran
script of the whol e record, and Bil l of Exceptions, as required by l aw, shal l state
on oath, that he appl ied personal l y, or by attorney, to said officer, for said record
and Bil l of Exceptions, on or before th l ast day of the time al l owed by l aw for
certifying and sending up the same.
BULB XXXIII. In al l cases brought before this Court, the Bil l of Excep
tions must distinctl y specify the points of error in the judgment of the
Court bel ow, upon which the pl aintiff in error expects to rel y upon the
hearing, and that this rul e tak e effect from and after the 1st day of January
next (1847).
COMMON LAW RULES.
1. THE order of Pl eading shal l correspond with that l aid down by Judge
Bl ack stone; and in no case shal l more than one counsel be heard in concl usion.
2. No appeal shal l be entered unl ess good security is given : exceptions to
the security on the appeal must be tak en on or before the l ast day of the first
term of the Appeal ; and if such exceptions are sustained, other and good se
curity shal l be given, or the Appeal wil l be dismissed. If the security, good at
first, becomes insol vent pending the Appeal , the party appeal ing shal l give other
good security, in the discretion of the court, or the Appeal shal l be dismissed.
93.
3. Appeal s must be entered by the appel l ant in person, or by his attorney at
l aw, or by an attorney in fact dul y authorized by warrant for that purpose ;
which warrant shal l be fil ed in the cl erk s office at the time of entering the same.
Upon cause shown, the court wil l al l ow time to fil e such warrant; but such
Appeal shal l be, of course, dismissed, and execution issue without further order,
if such. warrant be not fil ed within the time al l owed. 04.
4. Appeal s shal l be tried at the first term after the Appeal has been entered,
unl ess good cause be shown for a continuance; among which good causes of a
continuance, a motion, on oath to mak e a substantial amendment to either
Decl aration or Answer, shal l be considered sufficient, unl ess the opposite party
shal l permit the amendment to be made instanter. No Appeal case .shal l be
continued more than twice by the same party, but for unavoidabl e providential
cause. 94.
5. When an Appeal is entered, either of the parties l itigant, may mak e any
amendment of the Decl aration or Answer, they may deem necessary. The
party amending shal l give notice thereof in writing, accompanied by a copy of
the amendment, to the adverse party, three months previous to the next term
after the Appeal ; and if the party amending fail to give such notice, and the
adverse party wil l state, on oath, or the attorney at l aw, state in his pl ace, that
APPENDIX. 237
he is tak en by surprise, and -is l ess prepared for trial in consequence of the
amendment, the carfse shal l be continued at the instance of the amending party.
94. .
6. The fol l owing shal l be the form of the recognizance upon an Appeal , to
.be tak en by the several cl erk s of the Superior and Inferior Courts, in al l cases of
Appeal , which-recognizance shal l be entered on the minutes of the court, and
attested by the-cl erk : 94.
: A.; .B.l and verdict for the for
.. v/ * > dol l ars, and cents, and cost.
. v 0. D. ) The being dissatisfied with the
. in the above cause, and having paid al l costs and demanded an
Appeal , brings E. F., and tenders him as his security, and they, the said
and E. F. ack nowl edge themsel ves, jointl y and
several l y, bound to the for
the payment of the eventual condemnation money, in said cause.
In testimony whereof, they have hereunto set their hands and seal s, this
. day of 18 . [ L. S.]
[ L.8.]
7. In al l cases, the Answer of the defendant to a pl aintiff s decl aration
shal l pl ainl y, ful l y, and distinctl y, set forth the causes and points of defence,
and the evidence on trial shal l be confined to the same.
Every person mak ing appl ication for admission to the bar, must appl y to
some Superior Court in this State, and produce satisfactory evidence to the court
of his being twenty-one years of age ; of good moral character, and of his hav
ing read l aw. A certificate of good moral character, and of the appl icant s
being of ful l age, signed by any judge of the Superior Court in this State, or any
reputabl e practicing attorney thereof, wil l be deemed sufficient; but from al l
. other persons a written affidavit wil l be required ; and shal l undergo the whol e
examination touching his qual ifications in open court. Al l appl icants for ad
mission shal l be examined on the principl es of the common and statute l aw of
Engl and, in force in this State ; the principl es of equity; the Constitution of the
United States, and of the State of Georgia; the statute l aws of this State, and
the rul es of court. And in no case shal l any person be admitted who shal l hot
be considered by the court to be qual ified for the practice of the l aw. And the
fol l owing oath shal l be administered to every appl icant, upon his admission,
viz:
" I, A. B., do sol emnl y swear, (or affirm, as the case may be,) that I wil l -
justl y and uprightl y demean mysel f, according to the l aws, as an attorney, coun
sel l or, and sol icitor, and that I wil l support and defend the Constitution of the
United States, and the Constitution of the State of Georgia: so hel p me God."
48.
After which, the fol l owing commission shal l be issued by the cl erk :
STATE OF GEORGIA :
At a Superior Court, hol den in and for the county of at
term, 18
Know al l men by these presents, that at the present sitting of the court, A.
B. made his appl ication, for l eave to pl ead and practice in the several courts of
l aw and equity in this State : Whereupon, the said A. B., having given satis
factory evidence of good moral character, and having been examined in open
court, and being found wel l acquainted and sk il l ed in the l aws, he was admit-
238 APPENDIX.
ted by the court to al l the privil eges of an attorney, sol icitor, and counsel l or, in
the several courts of l aw and equity in this State.
In testimony whereof, the presiding judge has hereunto set
rT , his hand, with the seal of the court annexed, this day of
L^- b< J in the year 18
C. D., Judge Superior Court, District, Ga. E. F., Cl erk .
9. No attorney shal l ever attempt to argue or expl ain a case, after having been
ful l y heard, and the opinion of the court has been ful l y pronounced, on pain
of being considered in contempt.
10. In al l cases, -where payment or satisfaction shal l be made, on any judg
ment or execution, either in whol e or in part, it shal l be the duty of the attorney
receiving the same, forthwith to enter an ack nowl edgment thereof, and affil e
the same of record in the office of the cl erk of the court, where such judgment
was rendered; and such cl erk is required to record such ack nowl edgment,
among the other proceedings in the cause, and al so to mak e a note thereof, on
the dock et of judgment, opposite the pl ace where such judgment is entered.
And any attorney fail ing to compl y with this rul e, on or before the l ast day of
the term, next succeeding the mak ing of such payment or satisfaction, shal l be
considered in contempt, and shal l pay a fine not exceeding twenty-five dol l ars,
which it shal l be the duty of the court to impose, and he shal l thereupon more
over, direct the recording and noting of such payment or satisfaction.
11. Writs and other proceedings, may be signed by professional firms; when
there is no firm, the Christian name of the attorney shal l be added ; but the
usual abbreviations and initial s, of al l Christian names, shal l be sufficient.
12. No attorney or other officer of court, shal l be tak en as bail , in any
suit or action, depending or undetermined therein; or as security on any ap
peal , or other proceeding: and for a viol ation of this rul e, the attorney or offi
cer in court so offending, shal l be punished as for a contempt, and the party
shal l be compel l ed to give other bail or security.
13. If any case where a defendant, who has given bail , and has final judgment
obtained against him, is confined in any jail in this State, other than that of the
county from whence the first process issued, the
against such defendant, shal l be considered as executed so far as to rel ease the
bail , when pl aced in the hands of the sheriff of the county where the said de
fendant is confined ; and when the pl aintiff or his attorney, is notified of such
confinement, and negl ects to charge him with the said
within a reasonabl e time, the same shal l be considered as executed, so far as to
rel ease the bail , and the bail , on motion and proof thereof, shal l be discharged.
111.
14. No certiorari wil l be sanctioned unl ess the al l eged error be distinctl y set
forth in the petition; and no other errors shal l be insisted upon, at the hearing,
than are stated in the petition. 33.
15. Al l writs of certiorari shal l , after having been dock eted by the cl erk , be
del ivered to the magistrate, whose proceedings are the subject of compl aint,
and written notice shal l be given to the opposite party in interest, at l east ten
days before the hearing of the cause; unl ess the certiorari shal l be appl ied for
and sanctioned, within twenty days after the decision compl ained of.
37.
..." APPENDIX,
.. , ..;
"16. In al l cases of cl aims, as the burthen of proof rests with the pl ain
tiff in execution, he is entitl ed to the concl usion ; but if the cl aimant introduces
no evidence, he-. Shal l .have the concl usion ; and the pl aintiff in execution shal l
in every casej pay the jury fee. And in cases of il l egal ity, the pl aintiff in ex
ecution shal l ^"n. l ik e manner, pay the jury fee and concl ude. 121.
17, Incases of cl aims, when either the pl aintiff-in execution, or the cl aimant
.dies, .pending the cl aim, their representatives may be made parties, on motion,
anf pri producing l etters testamentary or of administration. 121.
"18. When a cl aim ease is cal l ed in its order for trial , an issue must be ten-
: dered within five minutes, or the l evy wil l be dismissed, and no exceptions wil l
-.be al l owed to the bond or affidavit,.in cases of cl aims or attachments, after issue
joined, except such as are tak en in writing, at or before the joining such issue.
121.
19. When a criminal or civil process shal l have been del ivered to the sheriff,
. or bis deputy, if no l evy of service has been made in conformity with the exi
gency thereof, Le shal l state, special l y, in his return, the cause why such l evy
or service has not been made. If property which hath been l evied on, remains
unsol d, it shal l be his duty, to state the cause of its so remaining unsol d, and to
give a pvirticul ar description of the same.
20. The sheriff shal l mak e a return to the cl erk of the court, at the opening
thereof, of the names of the coroner and constabl es of the county; four of
which constabl es, the sheriff shal l notify to attend each term, until the whol e
shal l have served in turn; and the sheriff shal l be bound al ways to have at
l east four staves for the constabl es.
21. Every cl erk and sheriff who cannot produce al l the rul es of court when
required, shal l be fined not exceeding ten dol l ars.
22. The cl erk s shal l k eep a separate book in which they shal l register the
names of al l persons who may be fined by the court; the time when ; the of
fence for which they are fined ; the amount received and disbursed.
23. No cl erk shal l suffer any original paper of fil e to be tak en, from his office
in vacation, without an order from the judge, for that purpose.
24. The sheriff of each county shal l k eep a bench warrant dock et, on which
he shal l enter al l bench warrants del ivered to him, and the time when executed,
if executed; the time when they may be del ivered to him; and if not, the
reason why they were not executed.
25. The sheriff shal l in al l cases put the purchaser of real property, at sher
iffs sal es, into possession of the premises, without further order or proceeding,
when the defendant in execution was in possession of the same, at the time of
the l evy or sal e. 484.
26. No appeal shal l be al l owed in col l ateral issues, ordered by the court;
but the court wil l , in its discretion, grant a new trial , upon such terms as shal l
appear just and reasonabl e. But where such col l ateral issue is tried in the inferior
court, and said court is dissatisfied with the verdict, they may permit an appeal
to the superior court, at their discretion.
40 APPENDIX.
The fol l ovYing shal l be the form of a commission, to tak e testimony by
interrogatories : 150.
STATE OF GEORGIA, > By his honor, one of the judges
County. J of the court, for the county and State afore
said : to Esqrs., greeting.
Whereas, there is a certain matter of controversy, now depending in the
court, for said county, between and whereas,
is a material witness in said suit, and cannot attend our
said court in person, without manifest inconvenience :
Now k now ye, that we, reposing special trust and confidence in your prudence
and fidel ity, have appointed you, and you, or any two or more of you, are here
by authorized and required, to cause the said personal l y
to come before you, and after being dul y sworn, to examine concern
ing the said suit, agreeabl y to the interrogatories hereunto annexed; and the
answers to the same being pl ainl y and distinctl y written, you are to send the
same cl osed up, under your hands and seal s, to our said court, to be hel d on
the day of next, together with this writ.
Witness, the honorabl e . one of the judges of said court,
this day of
NOTE. The act of 1850, pamp. p. 115, provides, " that al l commissions which have here
tofore been, or may hereafter be issued in bl ank , for the purpose of tak ing testimony in
any case pending, or arising in the courts of l aw and equity in this State, shal l be val id and
as effectual as if the names of the commissioners had been inserted by the officer issuing
the same." And the act of I860, pamp. p. 276, provides, " that in al l cases in the superior
and inferior courts otthis Sttite,_ where it may become necessary to tak e testimony by inter
rogatories as heretofore practiced, commiipious may issue in bl ank , in so far as rel ates to
the names of the commissioners; but the names of witnesses intended to be examined, shal l
be distinctl y specified in the noticeteerved upon the adverse party, preparatory to issuing
the commission."
28. Commissions may issue in bl ank , in so far as rel ates to the names of the
commissioners, but the names of the witnesses intended to be examined, shal l
be distinctl y specified in the notice served upon the adverse party, preparatory
to issuing the commission. 150 152.
29. The time to be al l owed for the return of commissions from any part of
the United States of North America, if l ess than one hundred mil es distant
from the pl ace of trial , shal l be one month; if a greater distance, and l ess than
five hundred mil es, two months; if at a greater distance, three months ; to any
part of the West Indies, or South America, four months; to any part of Europe,
eight months. 152.
30. When a commission is returned, it shal l remain with the cl erk , for the
benefit of either party, and may be opened by consent of both parties, such
consent being written on the cover of the commission ; or by an order of the
judge, either in term time, or in vacation ; but such order, if appl ied for in the
vacation, must be upon five days notice to the adverse party, or his attorney;
and in cases of commission returned not executed, or directed according to rul e,
either party in the cause shal l , upon five days notice to the adverse party, or
his attorney, be permitted to return the commission and its contents, to the
commissioners, to be properl y executed and directed. 152.
31. Commissions may be sent and returned by mail to entitl e the party to
open the commission, the post-master, his deputy or assistant, must receipt on
the back , "Received from A B, one of the commissioners." The names of the
commissioners must be written across the seal s of the envel ope, and the com
mission have such direction as wil l enabl e the court to k now that it was intended
for that court, and the usual abbreviations or initial s of Christian names of com-
APPENDIX. 241
missioners, witnesses,, attorneys, cl erk s, magistrates and post-masters, shal l be
. sufficient. 153. / :
: 32. When a commission issue s to examine a witness, its not having been re
turned shal l be no cause of continuance, unl ess the party seek ing the continuance
wil l mak e the same.affidavit of the material ity of the testimony, as in the case
of an absent witness. 153. .
.".-. . ,. / ; :"
Sfc -TSo consent between attorneys or parties, wil l be enforced by the court,
iirjiess it be in writing, and signed by the parties to the consent.
/ ." 34. No consent to dispense with pl eading, wil l in any case, be al l owed ; nor
wil l any evidence be received of the contents of any written agreement between
:. .attorneys, al l eged to be l ost, other than a sworn copy of said agreement.
35. In al l appl ications for continuances, upon the ground of the absence of
a witness, it must be shown to the court, that the witness is absent; that he
has beenûbposnaed ; that he resides in the county where the case is pending;
that his or her testimony is material ; that such witness is not absent by the
permission, directl y or indirectl y, of such appl icant; that he or she expects and
bel ieves, that he or she wil l be abl e to procure the testimony of such witness at
the next term of said court; and that such affidavit or appl ication is made, not
for del ay, but to enabl e the party to procure the testimony of such absent wit
ness or witnesses, and must state the facts expected to be proved by such
witness.
36. When, on appl ication for a continuance, the party mak es an affidavit of
the facts which he expects to prove by the absent witness, the opposite party
shal l not be al l owed to force a trial by an admission of the facts stated in such
affidavit.
37. Upon opening ajudgment by defaul t, the defendant shal l pl ead
to the merits of the action ; and no defaul t shal l be opened but upon payment
of al l costs which may have accrued, incl uding two dol l ars of the attorney s fee.
The entry of defaul t, upon the bench dock et, shal l be sufficient evidence of the
judgment. If the pl aintiff al l ege himsel f to be surprised by the pl ea, the cause
shal l be continued at the instance of the defendant. 83.
38. After the court is opened, and until it adjourns, each day, the judge s
dock ets shal l not be subject to the inspection of the bar, or their cl ients.
39. A criminal dock et, a dock et of original writs and processes ; cl aims and
special writs, as al so a dock et of appeal s, shal l be made out by the cl erk for
the use of the court, copies of each of which shal l be furnished the bar, and
shal l be del ivered at the first opening of the term; and al l causes shal l be
cal l ed and tried in the order in which they are dock eted, without any preference
or del ay, unl ess it shal l appear to the court that it shal l be injurious to press a
cause to trial , when regul arl y cal l ed. A different order in cal l ing the dock et
may be pursued by the court, in its discretion, for the purpose of giving facil ity
and expedition to its proceedings. The dock ets shal l be cal l ed but once, but if
parties by consent, under permission of the court, continue their cases from day
to day, said cases shal l not stand for trial , until al l the other business of the
court is finished, and then they may be tried in their order, at the discretion of
the court.
40. The cl erk of each court shal l k eep a motion dock et, on which shal l be
entered al l motions originating in said court, or transferred for argument, from
242 APPENDIX.
other counties. A party appl ying to have a motion dock eted, shal l certify in
writing to-the cl erk , the del ivery of a brief of such motion, to the judge, and
shal l pay to the cl erk one dol l ar, at the time of dock eting the same. Al l mo
tions shal l be cal l ed and heard in the order in which they are dock eted ; nor
shal l any motion be heard until the same shal l have been dock eted, in conform
ity to this rul e.
41. Al l matters appearing on the face of the decl aration, or process, that
woul d not be good in arrest of judgment, shal l be tak en advantage of at the
first term, and wil l be immediatel y determined on by the court, unl ess where the
court may entertain a doubt as to the l aw on the point; if so, the cause wil l be
suspended, giving the defendant l eave to pl ead his exceptions special l y, together
with any other matter which he intends to rel y on in his defence. The excep
tions thus pl eaded shal l be argued at a subsequent term, and if not sustained,
the pl aintiff shal l have his el ection to try or to continue without a showing.
82.
42. An executor or administrator shal l not be permitted in answer, to deny
any deed, bond, bil l , note, or other written instrument of his testator or intes
tate, being the foundation of the pl aintiff s action, without an oath or affirmation
endorsed on such pl ea or answer, that he has reason to bel ieve, and does veril y
bel ieve, that such pl ea or answer is true.
43. When an affidavit of il l egal ity is made, on account of partial payment
made on the execution, the defendant, at the time of mak ing such affidavit,
must pay up the amount he admits to be due, or the sheriff shal l proceed to
raise that amount, and accept the affidavit for the bal ance.
44. No second affidavit of il l egal ity shal l be received, by any sheriff or other
officer. 118.
45. No imparl ance shal l be al l owed on writs of issued to enforce
recognizances, either on the civil or criminal side of the court, to mak e executors
or administrators parties to a cause pending therein ; or for the revival of judg
ments, unl ess upon special cause shown to the court.
46. When a cause is procceeding to a jury, interrogatories may be
served by depositing a copy with the cl erk , and posting a notice to that effect
in his office, addressed to the party in defaul t, ten days before issuing out a
commission. No exception to a written interrogatory, on the ground that it is a
l eading question, shal l prevail , unl ess it be fil ed with the interrogatories, before
the issuing of the commission. 145.
47. Al l objections to the execution and return of interrogatories on appeal
trial s, the form of the commission, or service of notice, must be made by the
party seek ing to avail himsel f of them, before the cause has been submitted to
the jury, or they wil l not be heard by the court; provided that the said inter
rogatories have been twenty-four hours in the cl erk s office ; and if they have
remained in the possession of the party intending to use them, they shal l be
communicated to the adverse party before the cause is cal l ed for trial .
152.
APPENDIX. 243
", .
48. The. justices of .the peace shal l return al l examinations and recognizances
by. them tak en, or other, papers that maybe necessary to be acted upon by
the superior courts -of .their respective counties, on or before the first day of
tbe term of -each-court, except in the counties of Richmond and Chatham,
where theyfehal l mak e said return ten days before said courts, if tak en that
l ength-.of.time before the sitting of the court. 389.
. ; 49. Upon the l oss of any original decl aration, pl ea, bil l of indictment, or
pther office paper, a copy of the same shal l be establ ished
. 50. Whenever a party wishes to introduce the copy of a deed or other instru
ment, between the parties l itigant, in evidence, the oath of the party, stating
his bel ief of the l oss or destruction of the original , and that it is not in his
. possession, power, or custody, shal l be a sufficient foundation for the introduc
tion of such secondary evidence.
51. Whenever a party wishes to introduce the copy of a grant in evidence,
the oath of the party, stating that the original is not in his power or posses
sion, and that he k nows not where it is, shal l be sufficient foundation for the
introduction of such copy.
52. When any person shal l seek to establ ish l ost papers, under the 6th sec
tion of the judiciary act of 1799, he shal l present a petition to the superior
court, together with a copy in substance, of the paper l ost, as nearl y as he can
recol l ect, which copy shal l be sworn to by the party, or proved by other evi
dence : whereupon a rul e may be obtained, cal l ing upon the opposite
party to show cause, (if any he have) why the copy shoul d not be establ ished
in l ieu of the original so l ost; which rul e shal l be personal l y served on the
party, if to be found within the State, and if he cannot be found, then the
said rul e shal l be publ ished in some publ ic gazette in the State, for the
space of three months. 26, 31 32.
53. Al l grounds of motion for non-suit, ,in arrest of judgment, and for
continuance ; al l objections to testimony, and al l exceptions to decl arations,
must be urged and insisted upon at once. And after a decision upon one or
more grounds, no others afterwards urged, wil l be heard by the court.
54. Al l motions for amendment of the decl aration, shal l be made at the
first term, or after the case is continued, at any subsequent term ; and al l mo
tions for amendment of the answer, shal l l ik ewise be made, after the continu
ance of the case ; and a copy of the amendment, in either case, shal l be
served on the opposite party. Exceptions to the decl aration or answer, shal l
be tak en before the case is submitted to the jury, either at common l aw or on
the appeal ; and in no case shal l the decl aration or answer be amended, in
matter s of substance, after the case has gone to the jury, at common l aw ; nor
on the appeal , except at the discretion of the court, and upon payment of costs
and provided, that in al l . cases when an amendment of the decl aration or an
swer is made, after the case has gone to the jury on the appeal , the party so
amending shal l be charged with a continuance, at the pl easure of the court, or
the opposite party. 78.
55. On al l the rul es to show cause, the party cal l ed on shal l begin and end
his cause ; and on al l special matters, springing out of a cause at issue, the
actor or party submitting a point to the court, shal l in l ik e manner begin and
244 APPENDIX.
cl ose ; and in al l cases arising if the defendant pl eads justification,
and tak es upon himsel f the burthen of proof, he shal l have the l ik e privil ege.
56. Every motion, for any rul e or order, shal l be submitted to the court in
writing, by the counsel who mak es it, and if granted by the court, shal l be
del ivered to the cl erk .
57. No notices under the 6th section of the judiciary act of 1799, hereafter
to be served, shal l be avail abl e, unl ess the party for whose benefit they shal l
be served, or his agent, shal l previousl y have made affidavit, (or his attorney
stated in his pl ace,) that the deponent, or attorney, has reason to bel ieve the
book s or papers, required to be produced, are or have been in existence ; that he
bel ieves they are within the possession, power, or control of the person notified ;
and that they are material to the issue, (which affidavit shal l be fil ed in office,
before the notice shal l be avail abl e ; ) nor unl ess the court shal l be of opinion
that the book s or papers, sought to be obtained, are material to the issue. And
it shal l be deemed a sufficient compl iance with the nol jce, (whether served
heretofore, or hereafter,) if the party notified, being a resident of any other
county of the State than that wherein the case is pending, shal l mak e an affi
davit in writing, before some judicial officer of the State, that the book s or
papers required and not produced, are not, nor have been, in his possession,
power or control , since the service of such notice. And if the person notified
be, or reside without the State, at the time of receiving such notice, an affi
davit to the foregoing effect, tak en before some judge of the superior or county
court, of the State or k ingdom, in which he may be, shal l be deemed suffi
cient.
In actions of assumpsit, for the recovery of unl iquidated demands, a bil l
of particul ars shal l be annexed to the copy served on the defendant; and in
every case where the pl ea of set-off shal l be fil ed, a copy of the set-off shal l
be fil ed, at the time of fil ing the answer ; and when the bil l of particul ars is
not annexed to the decl aration, the pl aintiff shal l l ose a term ; and if service of
said bil l of particul ars is not effected upon the defendant, by the succeeding
term, a non-suit shal l be awarded.
59. When a merchant or tradesman, being a party to a suit, in any of the
courts of this State, shal l be notified to produce his book s of accounts, or any
of them, to be used as testimony on the trial , if the party so notified shal l
transmit to the court in which the case is pending, a transcript from his book s,
of al l his accounts and deal ings with the opposite party, together with an affi
davit, (tak en pursuant to the (fifty-seventh) common l aw rul e of
court,) that the same is a fair and perfect transcript as aforesaid; and that he
cannot produce the book or book s required, without suffering a material injury
in his trade, this shal l be deemed a compl iance with the notice : provided, if the
adverse party wil l swear that he veril y bel ieves that the book s contain entries
material to him, which do not appear in the transcript, the court wil l grant him
a commission, to be directed to certain persons, named by the parties and ap
proved by the court, to cause the adverse party to produce the book or book s
required, (he being first sworn that the book or book s produced, is or are al l
that he has, that answer to the description in the notice,) and to examine said
book s, and to transmit to the court, a fair statement of the accounts between
the parties, under their hands, seal ed and transmitted, as on other commissions;
which statement, when received, shal l be deemed a sufficient compl iance with
the notice. 26.
60. Al l notices, required to be given to any officer of the court, must be in
writing.
APPENDIX. 245
< ? L A motion for a-new trial shal l not operate as a supersedeas, unl ess an
order to that .effect be entered on the minutes; and in every appl ication for a
new trial , a brief :of the, testimony in the cause, shal l be fil ed by the party ap
pl ying for such-new trial , under the revision and approval of the court.
>"v. . :!?
. " .(52; -No shal l be permitted to institute any personal action, in
"fee name and behal f of an infant, until such shal l have entered
.into sufficient bond to the governor of the State, for the use of the infant and
his representatives, conditioned wel l and faithful l y to account of and concern
ing his said trust; which bond may be sued by order of the court, in the
name of the governor, and for the use of such infant, and such bond shal l
.be fil ed in the office of the cl erk of the court in which the suit may be com
menced. 280.
63. Al l recognizances tak en by the cl erk , for the appearance of either parties
or witnesses, shal l be written in a book [ k ept] for that purpose, separate and dis
tinct from the minutes, to which he shal l affix an al phabetical index.
64. Writs of issued to revive judgments, shal l be returnabl e
to the next superior court of the county where the defendant or defendants
reside, under the fol l owing regul ations, viz: The party suing out such writs,
shal l procure a ful l exempl ification of the record of the judgment, which shal l
be sent to the cl erk of the superior court of the county where the
is made returnabl e, and fil ed with the same; whereupon, judgment may be
revived, on such exempl ification, in l ik e manner as if the original judgment had
been recovered in the county where the is made returnabl e.-^G oWs
90.
65. A suggestion of the death of either party, for the purpose of enabl ing
the survivor, or the representatives of such deceased party, to issue
to revive, may be made either in term time or in vacation ; in either case the
order for issuing the shal l be of course, and be granted by the
cl erk ; and such suggestion, and the order thereon, shal l be fil ed among the
proceedings in the cause.
66. In al l and every case, when a verdict has been obtained at common l aw,
and an appeal entered without judgment signed upon the said verdict, judg
ment shal l not afterwards be signed further back than the time of disposing,
[ of] said appeal . 89.
67. Subpoenas may issue against third persons without order,
at any time, upon appl ication to the cl erk . 144.
17
- 246 APPENDIX.
County surveyors are required to del iver copies of re-surveys, by them
made, to each of the parties concerned, upon their appl ication, and at their own
proper costs, within ten days after such appl ication is made; and the surveyor,
executing a survey, shal l be bound to attend court, to prove the same, and
shal l be al l owed the pay of a witness, attending upon subpoena.
69. Surveys of l ands, hi any quantity of two hundred acres, or l ess, shal l
be l aid down by a scal e of ten chains to the inch ; and over that quantity, by
a scal e of twenty chains to an inch.
70. No survey made under the rul e of court, shal l be received in evidence,
unl ess it appears that at l east ten days notice of the time of commencing such
survey^ was given to the opposite party, by the one who offers it in evidence.
71. Every surveyor shal l represent on his pl at, as nearl y as he can, the dif
ferent encl osures of the parties, and the extent or boundaries within which
each party may have exercised acts of ownership.
72. After a cause has gone to the jury, and any evidence been heard in it,
neither party shal l be al l owed to mak e any objection to a rul e of survey, made
in the case ; or the manner in which it may have been obtained, or the survey
executed.
73. Either party, in actions of ejectment, shal l be entitl ed, as matter of right,
to a rul e of survey, upon appl ication to the cl erk in vacation.
649.
74. Witnesses shal l first be examined by the party introducing them, then
cross-examined by the adverse party; further examination shal l not be had but
by l eave of the court first obtained, and then onl y upon the decl aration of the
attorney or witness, that a material fact has not been stated, to which al l fur
ther inquiries shal l be directed ; and in al l cases in which more than one attorney
is retained on either side, the examination and cross-examination shal l be con
ducted by one of the counsel onl y ; and at the opening of the case, both parties
shal l state to the court, to which attorney the examination and cross-examina
tion of witnesses is confined. 143.
75. That counsel shal l propound, in writing, the points of l aw
on which they may wish the instructions of the court to the jury, before the
judge shal l commence his charge.
EQUITY RULES.
I. When a Bil l has been sanctioned and fil ed, and the usual process tak en
out and served, or advertised according to the rul es of court, and no an
swer shal l be fil ed within the time al l owed ; if the defendant or defendants stil l
remain in contempt at the next term thereafter, so as to entitl e the compl ainant
to have his bil l tak en the order shal l be made by the court, on
appl ication of the compl ainant; but, such order shal l onl y operate as an inter
l ocutory decree, which shal l entitl e the compl ainant to have his cause submitted
ex to a jury ; provided, al ways, that if the compl ainant or compl ainants,
shal l swear or affirm, that the answer of the defendant or defendants, to the
APPENDIX. 24?
whol e or part of the charges contained in the said bil l , is absol utel y necessary,
ami that without such answer, he, .she or they, cannot support the truth of his,
bjer or their al l egations, the court may permit such compl ainant or compl ainants,
to mak e a.special oath or affirmation, (as the case may be,) of what he, she or
they, k now. Qr bel ieve, the said defendant or defendants, coul d or ought to An
swer, and such oath or affirmation may be given to the jury, together with the
Bil l and other prpof. ;
When a defendant, or defendants, reside out of the county in which a Bil l
originates, and is sanctioned, which fact must be verified by affidavit, the
court, or judge at chambers, shal l pass such order for appearance and
Answer, as the distance of the defendant s residence shal l warrant; service
or publ ication of which order, according to the exigency thereof, shal l be deem
ed a sufficient service to compel an appearance; and subsequent proceedings
shal l be the same as if the defendant or defendants had been served with pro
cess by the sheriff of the county, where the subpoena is made returnabl e. And
if it shal l appear by affidavit, that a defendant is absent from this State, or
cannot be found therein, service may be effected by publ ication in a publ ic
newspaper, upon the order of the court, requiring him to appear and Answer
the compl ainant s Bil l , in such time as the court may direct.
3. A Pl ea or Demurrer, in part or to the whol e of a Bil l , shal l be fil ed at
the return term, and shal l be argued during the term, or upon motion and
cause shown, at such other time as the court may direct. The court wil l ,
however, in its discretion, upon sufficient cause shown, grant further time for
fil ing such Pl ea or Demurrer; and such order shal l express the time within
which the same shal l be fil ed, and the further time thereafter, within which it
shal l be argued, or be considered as dismissed. And notice in writing, of the
fil ing of such Pl ea or Demurrer, shal l be given to the adverse party, or his
counsel , at the time of fil ing thereof. The defendant or defendants, in any Bil l
in Equity, may demur, pl ead and answer, at the same time, at the first term;
the Demurrer, Pl ea and Answer, may be separatel y disposed of, in their order,
but the fil ing of the Pl ea or Answer, shal l , in no case, operate to overrul e the
Demurrer. 135.
4. Al l Answers shal l be fil ed within four months after the adjournment of
the court to which the subpoena is returnabl e, unl ess further time be granted.
Exceptions to Answers, must be fil ed before the hour for jury business, on the
second day of the term thereafter, or said Answers wil l be deemed sufficient;
and if such Exceptions shal l be sustained by the court, the defendant shal l per
fect his Answer, within such further time as the court may order. But if said
amended Answer be defective, the defendant may be punished as for con
tempt, and shal l pay al l costs that have accrued, up to the time of fil ing such
defective Answer. Nothing in this rul e shal l be construed to prevent the re
spondent from fil ing his Answer at any time after the fil ing a bil l , for injunction
against him, and moving the judge at chambers, who granted the bil l , for the
dissol ution of the injunction, if the equity of the bil l shal l be sworn off by the
Answer: but in such cases, a rul e stating the grounds of the appl ication,
and fixing the time and pl ace of hearing the motion, shal l be served upon the
compl ainant, at l east ten days before the hearing of any such motion; and the
248 APPENDIX.
judge shal l have power to order such amendments as are usual l y made in open
court, and to hear and determine Exceptions to Answers.
A general Repl ication to the Answer shal l be fil ed, and what is admitted
in the Answer, shal l remain admitted, notwithstanding such general Eepl ication.
No special Repl ication shal l be received, but the compl ainant may, by his Rep
l ication, controvert any part of the facts stated in the defendant s Answer, if
he wil l admit the rest to be true; and such Repl ication shal l be confined to the
particul ar matter controverted, and the defendant shal l onl y be obl iged to pro
duce proof of such controverted matter. In either case, the cause shal l be at
issue after Repl ication fil ed, without Rejoinder. 136.
6. In trial s in equity, the jury shal l be tak en from the pannel of the grand
inquest, in the manner prescribed by l aw for the sel ection of special jurors.
95.
7. When a bil l praying an injunction is presented to the judge for his sanc
tion, there shal l be annexed to it the cl erk s certificate of payment of costs, and
security being given, as required by l aw ; and on appl ication to the judge, ad
ditional security may be ordered, if circumstances require it. Al l injunctions
shal l be granted until further order had thereon. 127 128.
8. That an injunction shal l not issue to stay proceedings at l aw, in any action
in which a verdict shal l have been given for money, unl ess a sum of money
equal to the amount which the party appl ying for the injunction ack nowl edges
to be due, is deposited with the cl erk of the court, to be paid to the adverse
party; and a certificate of such payment shal l accompany the bil l .
137.
9. When either party in a suit at l aw, shal l be desirous of obtaining the
interposition of the court, in the exercise of its equitabl e jurisdiction, in the
prosecution or defence of said suit, the appl ication therefor shal l be by bil l ,
which may be sanctioned by the judge, upon such terms as shal l seem just and
reasonabl e ; and no bil l to enjoin an action at l aw shal l be sanctioned by the
judge, unl ess the same shal l be presented in time to be made returnabl e to the
regul ar trial term of the case, next after the sanction of the bil l , unl ess good
cause to the contrary, to be judged by the chancel l or, shal l be shown in the
appl ication for -the bil l , and be sworn to by the party.
10. Commissions shal l be issued, returned and publ ished, and notice of in
terrogatories given, in l ik e manner as in cases of common l aw; and the l ik e
irul es shal l be observed, on appl ication for continuance.
,
. ; .. : - APPENDIX. 249
-
. ? '~
11. The oath or affirmation of a defendant,, to his or her answer, shal l be in
e fol l owing form.: " You, A B, do swear, or sol emnl y, sincerel y and trul y,
decl are and affirm, (as the case may be,) that what is contained in your answer,
- as far as concerns your own act and deed, is true of your own k nowl edge; and
,_ that what rel ates to the act or deed of any other persons, you bel ieve to be
. rtrue." 136.
: 12. Bil l s may be revived by petition to the judge at chambers, or at a term
time ; and upon the presentment of a petition for that purpose, an order for the
revival of the bil l on the first day of the term next thereafter, shal l
. be passed ; a copy of the petition and order shal l be served by the sheriff on
the defendant, at l east twenty days before the meeting of the said court. No
bil l or subpoena wil l be required.
13. When a case in equity shal l be tried by a jury, who shal l render a ver
dict for a specific sum, a decree shal l be entered for such sum, and such ex
ecution may be issued thereon, as if the cause had been decided at common
l aw. Where the finding of a jury is special , and requires the payment of
money, and some duty to be performed, the sum so found may be recovered in
the manner hereinbefore provided ; and such duty shal l be enforced by the
court by attachment for contempt or otherwise, according to the course of pro
ceedings in equity.
14. The cl erk shal l k eep a dock et for equity cases, distinct and separate from
the causes at common l aw ; in which shal l be registered the names of the par
ties, and titl es of al l bil l s, and the time of fil ing the same, with notices of the
pl eadings and orders in the cause, up to the final decree.
15. In al l cases where the parties go to trial upon the bil l and answer al one,
the compl ainant s sol icitor shal l have the concl usion.
16. After appearance by the party defendant, to any bil l in equity, by any
sol icitor of this court, the service of any subpoena, to mak e better answer ; or
any rul e or order of the court, on such defendant or sol icitor, shal l be sufficient.
Service upon compl ainant, or his sol icitor, shal l in l ik e manner be deemed suf
ficient service.
17. Copies of al l deeds, writings and other exhibits, shal l be fil ed with the
bil l or answer, and no other exhibits shal l be admitted, unl ess by order of the
court, for some special and good cause shown. The production of the original ,
if not admitted by the answer, may be required on the hearing : and upon ap
pl ication to the court, or to the judge in vacation, and cause shown, the origi
nal of any exhibit wil l be ordered to be deposited in the cl erk s office, for the
inspection of the adverse party.
250 APPENDIX.
18. Appl ications for writs of other than such as are provided for
by the Act of December 6th, 1813, shal l be upon bil l fil ed and sworn to, or
affirmed, by compl ainant, or his attorney in fact; and such oath or affirmation,
shal l particul arl y state the amount of the debt cl aimed, and that the sum men
tioned is due, and that there is reason to apprehend the l oss of the whol e, or a
part of said sum, if the defendant shoul d depart without the jurisdiction of the
court. The sheriff shal l discharge the defendant from custody under such writ,
upon his giving bond, with two good securities, (who shal l be l iabl e to be ex-
cepted to, in l ik e manner as in case of bail at common l aw,) conditioned for the
payment to the compl ainant, his executors and administrators, of such sum as
shal l be decreed, with interest and costs; and further in al l respects to do, con
form to, and perform the decree of the court, in the premises.
129 137.
19. When auditors have made up their report, the same shal l be returned
into the cl erk s office without del ay, and shal l remain open to the inspection of
both parties.
20. A dock et of decrees, and al so a dock et of executions, or other process
for the enforcement of decrees, shal l be k ept by the cl erk , in cases in equity,
in l ik e manner as the dock ets of judgments and executions at l aw: and the
ack nowl edgments of satisfaction on decrees in equity, may be enforced in the
same manner, and under l ik e penal ties, as judgments at l aw.
21. The rul e at common l aw which requires a of an infant to
give bond to account, & c., shal l al so be observed in equity. 280.
INDEX.
seamen, . . . .69
inveigl ing, . . . 69
assisting to escape, . .69
entertaining, . . . 69
indictment, . . . .72
principal in second degree, . 75

what constitutes, . . "75
before .the fact, ... 75
after the faet, ... 76
how punished, . . .76
indictments against, . . 76 77
receiving guil ty person, . 118
how punished, . . 152
indictment, . . . 158-159
what is an, ... 17
how they may be suppressed, 17
form of warrant for, . 18
defined, . . . .137
indictment, . . . 146
for smal l offences, . . 193
form of arraignment, . 193
to be entered, . . .194
prisoner, not in fetters, . 194
l aw rel ative to,
what it is, .
who l iabl e to, .
213-214-215
different modes of mak ing, . 8
who may arrest an offender, 8
defined, .... 92
in town or city, . . 92
on farm or pl antation, . 92
of out-house, . . 93
when compl ete, ... 93
in day-time, & c., . . 93
when death produced, . 93
indictment for, in cjty, & c., 93
indictment for, not il l city, < fec., 94
barn, stabl e, & c.,- , 94
definition, .... 85
with intent to murder, . 85-90
with intent to rob, . . 85-90
with intent to spoil cl othes, 86-90
under col or of process, . 116
under col or of office, . . 128
how assaul t defined, . 10-86
party may be found guil ty of
either, . . . 10-11
words cannot amount to an
assaul t, . . . .10
battery defined, . . 10
opprobrious words may jus
tify, . . . .10-11.
cannot be given but once, . 13
personating in, . . 115
252
INDEX.
officer viol ating charter,
insol vency of,
transferring stock ,
purchasing bil l s, & c.,
decl aring fraudul ent dividends
purchasing its own shares,
proviso,
indictment,
defined, ...
punishment, .
indictment,
putative father,
must give security,
how punished, .
indictment,
defined, ...
punishment,
attempt to commit,
indictment,
defined, . .
punishment, .
indictment,
definition, . . .
burgl ar may be k il l ed,
what considered dwel l ing-house, 26
punishment of, .
form of warrant for,
commitment for,
day or night, .
punishment,
indictment,
how denominated,
what indictment must contain,
punishment,
indictment,
how al l owed,
triors, & c.,
oath of triors,
101
101
102
102
s, 102
102
102
107
I Q
Il o
118
100
J.OO
156
156
156
164
. 85
85
C
89
114
114
124
26-93
ise, 26
26
27
. 27
93
. 93
94
96
i, 96
OR . yo
104
194
217
217
what it is, . . . , 28-29
mil l er changing corn, . 29
fal se representations, . 29
pl aying at cards, & c., . . 29
bak er, . . . .29
fal se weights, & c., . . 29
warrant for, . . . 29
commitment for, . . 30
obtaining credit, . . .166
at pl ay, . . . .166
bak er, & c., . . . 167
fal se weights, & c., . . 167
dirt, < fec., in cotton, . 167
obtaining goods, . . 167
indictments, . 168-169-170
what it is, and when issued, 13
during, party treated with
humanity, ... 14
requisites of, and how directed,
& c., .... 14-15
must contain name of prisoner,
& c., .... 14
must specify pl ace of imprison
ment, ... 15
for assaul t and battery, . 15
for affray, ... 18
k eeping the peace, . .24
for burgl ary, . . . 27
for cheating, . . .30
for want of security, . 40
persons from other counties, 40-41
punishment, . . .118
indictment, . . Sl . 131
may suppress affray, . . 17
how to act with disorderl y
persons, . . . 17
may apprehend break ers of the
peace, .... 20
when may break open doors,
& c., . . . . 37
when justifiabl e, . . .37
must return proceedings, . 44
power of courts, . . . 202
INDEX.
253
when sent to penitentiary, . -196
how to be conveyed,. . 196
cl erk s to notify k eeper, . 196
how sent to penitentiary, . 197
on circumstantial evidence, . 198
becoming insane, . . 198-200
femal e becoming pregnant,, 199
two convictions, how punished, 200
party discharged may pay, 10
in cases of nuisance, . .156
when paid by prosecutor, ] 92
insol vents, .... 192
defaul ting, how punished, 103
indictment, . . .108
what constitutes, . . 73
intention, 73
sound mind, . . . 73
infant, 73
l unatic, .... 73
idiot, . . . . .74
encouraging infant, & c., to
commit, . . . 74
married women coerced, . 74
drunk enness, ... 74
misfortune or accident, . 74
coercing sl ave to commit, . 74
under threats, & c., . . 75
compounding, . . , 118
abol ished, . . . .167
under existing l aws, . . 197
on boundary l ines, . . 199
death, in another county, . 200
attempt, how indicted, . . 200
joint, how tried, . 201-204
attempts, how punished, . 202
smal l , how tried, . . 204
disinterring, . . .156
indictments, . . 163-164
against charge of assaul t and
battery, . . . .11*
who may justify, . . 11
beating another, . . .12
time given to produce witnesses, 12
against peace warrants, . . 22
opprobrious words, . . 201
persons k eeping, . . . 152
how punished, . . . 152
principal s, . . . 137
seconds, . . . . .138
requisites of indictment, . 138
fighting, what, . . . 138
officers not preventing, . 138
procl aiming as coward, . .138
indictments, . 147 148
defined, . > . .119
punishment, . . . 119
indictment, . , . .133
from penitentiary, . . 117
vol untary, . . . .117
indictment, . . 129-130
to be tak en down, . . 201
defined, .... 119
of publ ic officer, . . 119
punishment, .... 120
defined, . . . .86
punishment, . . . 86
by magistrate, & c., . . 86
6fc.,
persons apprehended with, . 154
how punished, . . . 155*
definition and construction, 8-33-75
warrant for, ... 33
in house, . . . .33
publ ic officer, . . .33
factor, merchant, & c., . . 34
254
INDEX.
cl erk , agent, & c., . . 34
person intrusted, . . .34
how punished, ... 34
indictment for compounding, . 131
to whom paid, . . 196
when to be paid, . . .196
hunting deer at night, . 68
punishment, . . .68
form of indictmen* , . . 72
defined, . . . .139
justices may try, . . 140
how tried, .... 140
indictment, . . 149-150
publ ic documents, . .108
counterfeiting coin, & c., . 109
bank notes, . . .109
al tering bank note, . . 110
possessing forged notes, . 110
forging, & c., bil l s, . . 110
forging other writings, . . 110
publ ic seal s, . . . Il l
fictitious name, . . .111
personating another, . Il l
fal se writings, . . .111
indictment, . . . Il l
persons k eeping, . . . 152
k eeping tabl es, . . .153
betting at, . . . 153
pl ayers witnesses, . . 153
judges to charge grand jury, 153
houses may be brok en open, 153
indictments, . . 160-161
persons may be bound for, 20-21
who may tak e recognizance, 20
who may demand, . . 20
wives may demand, . 20
and husbands too, . . 20
how married women give security, 20
how minors give security, . 20
how discharged, . . 21
form of warrant for, . .21
how to be mark ed, . . 68
forfeited, . . . . 69
how denominated, . . 96
punishment, . . . .96
murder, . . . .81
express mal ice, ... 81
impl ied mal ice, . . .81
mansl aughter, . . . ... 81
vol untary mansl aughter, . 81
invol untary mansl aughter, . 82
justifiabl e, . . . .82
k il l ing sl ave or free person, . 83
infanticide, . . . .83
indictment for murder, . 8* 7
indictment for mansl aughter, . 88
indictment against mother, . 88
how denominated, . . .95
offence, how charged,. . 95
horse, mul e, or ass, . . 9?
punishment, ... 96
indictment, . . .158
indictment, .... 159
v
definition, . . . .44
parts, .... 44
commencement, ... 45
venue, . . ... 45
the statement, ... 45
time, . . . 45
description of offence, . . 46
unnecessary averments, . 46
intention, .... 46
certainty, ... 46
deodand, .... 46
disjunctive, . . . 4* 7
charge, how expressed, . 4V
different meanings, . . 47
surpl usage, ... 47
INDEX.
255
. , . . 47
I/ certainty, . . >. " .- 47
technical statements, . 47,
force and arms, . . . 47
term "unl awful l y," . . 47
term "k nowingl y," . . 48
certain terms must be used, 48
term wick edl y," & c., . . 49
:-v concl usion, . . . 49
several counts, ... 49
joinder of offences, . . 50
joinder of principal s, . . 5.1
joinder of accessories, . . 52
unnecessary l ength, . . 53
when variance fatal , . . 53
amendments, ... 54
when quashed, . . 54
when sufficientl y technical , . 191
form of, . . . . 192
if several counts,. . .192
exceptions to, . , . 192
copy furnished accused, 193
when triabl e, . . , 194
demand of trial , . . .195
195
l imitation, . . .198
cruel ty in, . . . 115
assisting to escape from, . .116
refusing to receive prisoner, 117
presentment must be prosecuted, 192
judges of l aw and fact, . 194
oath of petit, . . . 195
recommendation of, . . 196
may find attempt, . . 200
general duties of grand, 205
verdict of, in criminal cases, 218
conservator of the peace, . 5
indul gence shown, . . .5
mal icious abuse of their office, 5
doubl e costs against, . . 5
l iabl e to indictment for mal practice, 5
removal from office, . . 5
must be served with a copy of
the indictment, . . .5
right to appear before the grand
jury, .... 5
extent of punishment, . . 6
record made by, . . .6
not to be gainsaid, . . 6
cannot mak e a substitute in office, 6
J. of the S. and J. I. 0. authori-
ty in k eeping peace, . . 6
may command the hel p of oth
ers, . . ... 6-7
negl ecting to see the peace k ept, 6
break ing peace in presence of, . 6
issuing warrants, . . 6
power in arresting parties, . 6
persons refusing to obey, punished, 7
when best to appear as a witness, 7
authorized to bail offenders, . 7
J. of the S. and J. I. 0. may
commit offenders, . . 7
for what crimes one justice may
commit, . . . . 7
for what crimes two must preside
and concur, . . . 7-8
in what crimes they may exercise
discretion, ... 7
for what crimes they must bail , 8
in what cases they may discharge
the accused,
may commit or bail for crimes.
committed, . . 8
not to exercise the functions of a
. . . .8
may bail committed offenders, 8
must not require excessive bail , 8
discretion as to cost, . . 10
must hear evidence on both sides, 12
time given to produce witnesses, 12
may not compound recognizances, 16
when cannot issue search-war
rant, . . . .37
when may issue search-warrant, 37
restoration of stol en goods, . 37
must bail or commit on bench-
warrant,
must examine prisoner,
must examine witness, .
must back warrants, .
must certify proceedings,
form of certificate,
fees in criminal cases,
mal practice,
indictment, .
8
42
43
43
43
44
44
44
119
134
in what cases justice may bind, 22
in what cases individual s may
crave, . . . . 22
party may defend himsel f, . 22
256
INDEX-
how recognizance to, forfeited,
disturbing the peace, .
offences against the peace,
indictment,
defined, ....
punishment, ....
of chil d, . ..;
indictment, .
defined,
different sorts of, .
simpl e, . .
of documents,
of fixtures,
from vessel s, . . .
of sl ave,
punishment,
from the person,
from the house,
after a trust, & c.,
by merchant, factor, & c.,
22
137
140
146
86
87
87
91
95
95
95
:-97
97
97
97
97
98
98
99
99
cl erk , agent, & c., . 100
by person intrusted, & c., . 100
, ;, indictments, . . . 105-106
obstructing,
indictment,
how punished,
k eeping houses,
indictment,
defined, . .
printer, witness,
truth in evidence,
indictment, . ...
destroying book s and papers,
removing l and-mark s, .
destroying buoy, < fec.,
firing stack s,
firing woods, fences,
k il l ing cattl e and hogs, .
destroying navigation fixtures,
sink ing vessel s, . * .
cutting down trees,
destroying mil e posts,
115
127
J" "
152
153
160
139
139
139
149
172
172
173
173
173
173
174
174
174
174
severing produce from l and, 174
indictments, . 177-178-179
mark ing or branding, . .
al tering, ....
counterfeiting,
marrying persons,
indictment,
what constitutes,
cutting out tongue, < & c., .
putting out eye, & c., . , .
sl itting nose, & c.,
castrating another,
wounding private parts,
disabl ing any member, .
indictment, .
unl awful ,
punishment, . . .
erecting machinery,
indictments,
in the penitentiary,
person exciting,
indictment,
defined, ....
how abated, ....
costs how paid
indictment, ....
of petit juror, .
witness before petit jury,
witness before grand jury,
on inquests of insanity,
of grand jury,
must examine book s, & c.,
special presentment,
bail iff to grand jury, .
of bail iff to special jury, .
of triors, .
detaining book s, & c.,
indictment,
n-
. 96
96
. 167
157
. 165
83
. 84
. 84
. 84
. 84
. 84
. 84
. 89
. 103
. 103
. 103
. 107
. 120
. 120
. 136
. 155
. 155
. 156
163
195
. 195
. 195
. 201
. 206
. 207
. 207
. 213
. 213
. 217
. 115
. 126
INDEX.
S57
Pedlers,
.without l icense, - ,
iadictment,
escapes, how tried,
imprisonment, disqual ification,
l aws rel ative to,
rul es rel ative to,
definition,
subornation,
disqual ification,
verdict obtained by,
witness causing death by,
indictment, perjury,
indictment, fal se swearing,
subornation of perjury,
must be l icensed,
l iabl e to indictment, ,
what defendant must shov
notes, < fcc., made void,
board of, must meet,
l icentiate s fee,
apothecary must have l icense,
singl e member may l icense,
board may el ect officers,-
book s to be k ept,
body corporate,
who constitute the board,
where the board must mec
must show l icense,
spreading smal l -pox,
indictment, .
the jurisdiction, ,
demurrer,
dil atory pl eas,
in abatement, :
in bar,
auterfois acquit,
auterfois convict, .
pardon,
general issue,
special pl eas,
" not guil ty,"
special pl eas,
must be in writing,
to be recorded,
to be entered, . v
168
172
. 197
ation, 201
. 222
227
113
. . 113
. 113
. ; 114
, ; 114
; . 120
g, . 122
. : 122
. 69
. . 09
)W, .
70
, . 70
. 70
cense, 70
se, . 70
. . 71
: . 71
. 71
, . 71
set, , 71
1 îi
* .1 < _ } *
1 fCii
, JL
1 A9
.
55-56-57
; 58
58
. 58-59
60-61-62
63
04
. 65
68
. 60
193
193
, 194
194
defined, . . . 151
_ punishment, . -. .151
iadictmeiit, , . . 157-158
no publ ic sports, . . 144
no work , . . , 144
justices must protect, -. 144
no civil process. . . 14-5
persons viol ating, . .152
indictment, . . ,162
to pi-event interference with, 175
persons destroying, . . 175
Western and Atl antic, . ,175
indictments, . . . 180
what constitutes, . . 35
how punished, ... . 35
assaul t with intent to commit, 35
warrant for, . . . 35
defined, .... 85
punishment, . . 85
attempt to commit, . . 85
indictment, ... 89
form of, for assaijl t and. battery, 12
how forfeited, , . 12-17-21
mode of forfeiting, . . 12
judgment 12-13
form of, to prosecute, . . 16
what a recognizance is, . 16
when reduced to writing, is a
record, . . . .10
need not be signed by a party, 17
how given by married women
and minors, , . 17
securities dying party dying,! 7-20
form of, for appearance, . 17
affray, recognizance to appear, 18
during the term, . . 19
to appear aod give evidence, 19
condition of, for good behavior, 20
must be certified and sent up, 20
to k eep the peace, how forfeited, 22
for security of peace, proceed
ings on, ; . . 24-25
of witness for the State, . 31
"H
F
258
INDEX.
to prosecute and give evidence
with security, .
without security,
for appearance of indicted person
deeds for church l ots, .
trustees subject to church,
worship protected,
things which may not be sol d,
misdemeanor,
warrant against disturber,
defined, ....
punishment,
on civil process,
on criminal process,
indictment, .
how punished,
indictment,
defined, ....
indictment,
defined, ....
by open force, & c., .
by intimidation, .
indictment,
when cl erk must issue,
how directed and returned & c.,
how issued upon rec. for good
behavior, & c.,
peopl e secure against,
house may be brok en open,
officer excused,
officer cul pabl e, .
mal iciousl y procuring,
warrant, when il l egal , .
when to be executed,
form of warrant,
how. pronounced,
how executed,
not executed, .
31
35
35
A42
W
141 /
141
141
142
142
142
116
116
116
116
128
156
165
137
146
95
95
95
104
13
13
20
36
36
36
0
OO
Oft
OD
36
37
37
197
197
199
why not pronounced, .
must be recorded, . .
exciting to insurrection,
indictment,
l arceny of,
inducing to run away, & c.,
receiving stol en goods from,
harboring or conceal ing,
carrying off,
beating, wounding, & c.,
cruel treatment of.
purchasing from,
in tippl ing houses,
del ivering them goods,
judges to give l aws in charge,
giving tick et to, .
teaching to read, & c.,
in printing offices,
pedl ers trading with,
not to have stationery, .
not to hire own time,
gambl ing with,
induced to commit crime,
how to be tried, .
219
200
78
SO
97
97
120
181
181
181
182
182
182
183
183
183
183
183
184
184
184
185
185
186
indictments, 187-188-189-190-191
defined, ....
punishment,
attempt to commit,
indictment,
punishment,
in own defence,
indictment,
publ ic documents,
indictment,
receiving, ....
persons purchasing,
from negro,
when and how issued, .
form of, .
punishment,
85
85
85
. 89
87
7
92
114
125
117
117
120
25
25
119
INDEX,
259
indictment, ..,. . . .. 135
k eeping open on. Sunday, . 152
in the first degree, . . 78
in the second degree, . 78
butcher sel l ing, . . 153
bak er or brewer sel l ing, . 154
indictments, . . 161
what constitutes, . . 21-38
how indicted and punished, . 21
may be discharged upon giv
ing bond, ... 21
person having impl ements, 38
from other States, . . 3 8
form of warrant, . . 39
who decl ared to be, . . 154
how indicted, . . . 154
il l egal voting,
more than once,
buying or sel l ing vote,
indictments,
who may issue, .
157
157
157
165
party appl ying for must mak e
oath, .... 9
requisites of a, . . 9
general , il l egal , . . 9
officer must execute it, . . 9
must be back ed, . . 9
how styl ed arid tested, . . 10
must contain the cause upon
which it issued, . . 10
excepted cases, . . . 10
as to the form of it, .. . 10
must not be l eft in bl ank , 10
form of for assaul t and battery, 11
return of constabl e, . .11
form of for affray, . . 18
for good behavior, . . 21
O
k eeping.the peace, . . 28
for burgl ary, . . . 27.
for cheating, . . . 29
for a witness, . . . 31
for escape, ...
for fel ony, .... 33
for rape, . . 35
form of search, warrant, . 37
form of for vagrancy, . 39
form of bench, . . .41
must be back ed, ... 43
form of back ing, . . .48
against disturber of worship, 142
person personating, . . 168
l ist furnished accused, . . 193
oath in criminal cases, . 195
oath before grand jury, 195-213
convicts competent, . . 200
questions on 200

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