1. An acquittal upon an indictment charging the defendant with murder in the killing of "Mrs. Emma Todd Hadden" will not bar a subsequent prosecution upon an indictment charging the accused with murder in the killing of "Mrs. Carrie Todd Hadden," where it appears that the person last named had a sister whose given name was Emma, and that she herself was never known by that name or by any other given name except Carrie.
2. Under the evidence, the judge, to whom the plea of former acquittal was submitted for trial without a jury, did not err in finding against the plea.
No. 14641. NOVEMBER 11, 1943. Willard Hadden was indicted for murder alleged to have been committed in Stephens County on February 2, 1943; for that he did then and there kill and murder "one Mrs. Carrie Todd Hadden, also known as Mrs. Willard Hadden," by shooting her with a pistol. To this indictment the defendant filed a special plea of former acquittal, alleging that he had been previously tried and acquitted upon an indictment charging him with the same offense of murder, but designating the person killed as "one Mrs. Emma Todd Hadden;" to which plea the solicitor-general filed a traverse. The issue as thus made was by agreement tried by the judge without a jury. After hearing evidence he found against the plea and entered judgment accordingly. To that ruling the defendant excepted pendente lite. After trial on the plea of not guilty, the jury returned a verdict finding the defendant guilty of murder, with recommendation of life imprisonment. A motion for new trial was overruled, and the defendant excepted, assigning error on that judgment and on the ruling against the special plea. In the brief for the plaintiff in error all assignments of error were expressly abandoned, except those relating to the plea of former acquittal; and therefore the remainder of this statement will be confined to facts touching that plea.
The two indictments were substantially the same in all respects, except that in the first indictment the person killed was designated as "Mrs. Emma Todd Hadden," and in the second indictment the name was stated as "Mrs. Carrie Todd Hadden, also known as Mrs. Willard Hadden." It was alleged by the defendant that the first indictment was founded upon the same facts and the same transaction *Page 851 as the second, and that the evidence adduced upon the first trial showed that it was in fact Carrie Todd Hadden whom the defendant was charged with killing. The following facts appeared: Upon the trial under the first indictment in which the defendant was charged with the killing of Mrs. Emma Todd Hadden, the State introduced a witness named Gaston Smith, whose testimony tended to show that the defendant had shot and killed his wife at their home in Stephens County, on or about the time alleged in the indictment, but that the name of his wife was Carrie, and not Emma. On discovering this discrepancy between the allegation and the proof as to the name of the person killed, the solicitor-general next called as a witness Mrs. R. T. Todd, who testified that she was the mother of the defendant's wife, whose name was Carrie, and who had never been called by the name of Emma, but that the witness had another daughter whose name was Emma. The solicitor-general then stated to the court, that "on account of this mistake and error in the name" as it was given to him, a verdict of not guilty might be taken, and he would present the matter again to the grand jury. The court then directed a verdict of not guilty, in these words: "We, the jury, find the defendant Willard Hadden, not guilty of the homicide of Emma Todd Hadden."
The foregoing evidence was attached as an exhibit to the special plea, and was admitted in the traverse to have been given as alleged. The solicitor-general introduced the following evidence in support of the traverse:
Mrs. R. T. Todd testified: "I am the mother of Mrs. Carrie Todd Hadden, who was the person that was killed. I do not know any such person as Emma Todd Hadden. I know Emma Todd. She is my oldest daughter, but she is not a Hadden. I know how the error came, putting the name of Emma in the first indictment; her father made a mistake. My husband just made a mistake, his mind and health is bad, and he just made a mistake, and you all will have to overlook that because his mind is bad."
F. A. Stowe, sheriff, testified: "I was present when Mr. R. T. Todd, the father of the deceased woman, gave the name to Mr. Kelley, the solicitor-general, and he gave the name of Emma as the one who was killed. I do not know whether Mr. Todd had a daughter named Emma or not. I was present when Mr. Todd gave the name at the time when Mr. Kelley, the solicitor-general, was drawing the indictment." *Page 852
Mr. Kelley, the solicitor-general, made the following statement in his place, "which was accepted as testimony:" "I would like to state in my place, or I will testify. I want to state that I wanted to get the name of the individual who was killed, and that I asked Mr. Todd, and he told me her name was Emma Todd Hadden; and at the time I was drawing the indictment, and as it occurred in the case, I didn't know until we went to trying the case and found out that the party that was killed was not Emma Todd Hadden, but Carrie Todd Hadden. The Mr. Todd to whom I refer is the father of the girl alleged to have been killed. I received this information at the time I was preparing the indictment for the grand jury." It is contended that the evidence demanded a finding in favor of the special plea alleging former acquittal, because it showed that both indictments were based upon the same transaction, in which, as the State insisted, the defendant killed his wife. All assignments of error except those relating to the finding of the judge against the special plea were expressly abandoned in the brief filed for the plaintiff in error, and so the only question for determination is whether such finding was authorized.
In Gully v. State, 116 Ga. 527 (42 S.E. 790), this court discussed rather fully the different rules for determining a plea of former jeopardy, and stated that as between the rules known respectively as "the same-evidence test" and "the same-transaction test," the latter rule has been the one adopted and generally followed in this State. It was there recalled that as early as Roberts v. State, 14 Ga. 8 (58 Am. D. 528), this court said that such a plea is sufficient when the proof shows the second case to be the same transaction as the first.
While in Harris v. State, 193 Ga. 109, 114 (17 S.E.2d 573), it was stated that some confusion exists in our decisions in reference to the rules for determining former jeopardy, there was no departure from the same-transaction test, that decision having turned on the principle of res judicata or estoppel by judgment, which is entirely consistent with if not actually included within the same-transaction *Page 853 rule. Accordingly, we agree with counsel for the plaintiff in error, that this is the rule that should be applied in the instant case, and will proceed to determine it upon this principle.
"Under this rule it becomes necessary in each case to determine whether both indictments and the investigations that may be had thereunder relate to the same offense; that is, in order to successfully defeat a prosecution under the last indictment it is incumbent upon the accused to identify the offense charged in the second indictment with that which was, or could have been, made the subject of investigation under the first indictment." The general principle here quoted is taken from the decision in Gully v. State, supra, where it was held that an acquittal under an indictment charging that the accused committed the offense of bigamy by contracting an unlawful marriage with "Gussie Shingler" would not bar a subsequent prosecution under an indictment charging him with contracting an unlawful marriage with "Bessie Shingler," especially when it appeared that at the time of the alleged offense there were in life persons answering to the names of both Gussie and Bessie Shingler. In reference to the particular facts there involved, the court reasoned as follows: "The first indictment charged an unlawful marriage with Gussie Shingler. The proof showed that there was such a person as Gussie Shingler. But whether this was so or not, under the first indictment there could not have been a legal investigation in reference to an unlawful marriage by the accused to any other person than the one named in the indictment. Evidence of a marriage by the accused with Bessie Shingler would not have been admissible under the first indictment. While the offense charged in each indictment is the same in general terms, that is, bigamy, an unlawful marriage to a particular person is an essential element in this offense, and the allegation and proof in reference to this person must correspond. The offenses charged in the two indictments are not, therefore, identical. In the absence of any evidence at all, the indictments on their face show that they could not involve the same transaction. In the light of the evidence that Gussie Shingler and Bessie Shingler were separate and distinct persons, the view is strengthened that it was impossible under the first indictment to investigate the subject of a marriage by the accused with any other person than the one therein named. It is immaterial whether we apply *Page 854 the same-transaction test or the same-evidence test; the finding against the special plea was proper. . . It is immaterial what the pleader intended when the indictment was drawn. It is also immaterial what the grand jury intended when they found the first indictment. It is immaterial that both the pleader and the grand jury had in mind but one marriage, and that the indictment intended to charge that this marriage was contracted. Under the indictment as it was framed, no other transaction could have been properly the subject of a legal investigation than an unlawful marriage between the accused and Gussie Shingler. An unlawful marriage with Bessie Shingler was a separate and distinct transaction from the alleged marriage between him and Gussie Shingler. The finding against the plea of former acquittal was demanded by the evidence offered to support the same."
In the instant case it appeared that the first indictment charged the defendant with killing "Mrs. Emma Todd Hadden," while in the second indictment he was charged with killing "Mrs. Carrie Todd Hadden." The evidence showed that the only person whom it was claimed had been killed was the defendant's wife, who before her marriage was named Carrie Todd, and that she had never been known by the name Emma, or by any other name except Carrie. She had a sister named Emma, who was still in life, and this name was erroneously given to the solicitor-general.
Thus, not only did the indictments purportedly charge the killing of different persons, but the evidence as to persons and names was such as to show that the killing charged in the second indictment could not have been the subject of investigation under the first. There was such a variance between the indictment and proof as to prevent such investigation and to bar the possibility of conviction. In these circumstances there could be no former jeopardy; and the judge properly so found. See Lewis v.State, 90 Ga. 95 (3) (15 S.E. 697); Irwin v. State,117 Ga. 722 (2) (45 S.E. 59); Lock v. State, 122 Ga. 730 (2) (50 S.E. 932); Moody v. State, 1 Ga. App. 772 (58 S.E. 262); Appling v. State, 26 Ga. App. 418 (106 S.E. 311);Thomas v. State, 33 Ga. App. 677 (127 S.E. 617); Gardner v. State, 34 Ga. App. 512 (130 S.E. 215); 2 Warren on Homicide, 142, § 182; 1 Wharton's Criminal Law (12th ed.), 535, § 394.
While, as was pointed out in Burch v. State, 4 Ga. App. 384 *Page 855
(61 S.E. 503), the opinion in the Gully case may have contained an inapt or unsound illustration in reference to cases of larceny, the principles actually applied in the case are considered sound, and require an affirmance in the instant case.
Judgment affirmed. All the Justices concur.