On Motion for Rehearing.
Head, Justice, dissenting. Counsel for the State have filed a motion for rehearing, in which they seek a review of the judgment rendered by this court, and cite in their original motion, as authority for the right of the State to file a motion for rehearing, the case of Thompson v. State, 67 Ga. App. 240 (19 S. *741E. 2d, 777). Counsel for the defendant have filed a motion to strike or disallow the motion for rehearing, and contend that the State is not a “party” within the meaning of Rule 40 (c) of this court (Code, Ann. Supp., § 24-4544).
There are physical precedents where this court has acted on motions for rehearing filed by the State in criminal cases. For example, see Singleton v. State, 196 Ga. 136 (26 S. E. 2d, 736); Bivins v. State, 200 Ga. 729 (38 S. E. 2d, 273). In so far' as the writer is able to ascertain, however, this court has never said, in any criminal case, that the State could, as a matter of right, file a motion for rehearing.
In Thompson v. State, supra, the defendant was convicted, and excepted to the overruling of his demurrers to the indictment and motion for new trial. Originally the Court of Appeals reversed the judgment of the trial court on the theory that the trial judge erred in overruling the demurrers. Upon rehearing, at the instance of the State, the judgment of reversal was vacated and a judgment of affirmance substituted. The decision in the Thompson case was by two Judges, with Judge Gardner dissenting from the ruling that a rehearing will be had in a criminal case upon a proper motion by counsel for the State. The majority opinion cites no authority for holding that a motion for rehearing may be granted in a criminal case on motion of counsel for the State.
The rule announced by the Court of Appeals in the Thompson case is in conflict with the general law in this State, and the general rule in the Federal and State courts of' this country. It appears to conflict also with the general rule in England. The general rule, that there may not be a rehearing on motion of the State, was considered by this court in State v. Jones, 7 Ga. 422. In the Jones case it appears that a motion was made to quash the indictment in the court below. The motion was sustained, and the State brought a writ of error. It was said by the court that three questions were before it, as follows: “1. Whether, upon general principles, the State is entitled to a review iñ any form of alleged errors in criminal cases? 2. Whether the Constitution of the United States has any bearing upon the question? and, 3. Whether the Act of our own Legislature, organizing this Court, has granted to the State the right of being heard upon a writ of error in criminal cases?”
*742In the Jones case it was held in part: “The rule seems to be well settled in England, that in criminal cases a new trial is not grantable to the Crown after verdict of acquittal, even though the acquittal be founded on the misdirection of the Judge. This is the general rule, and obtains in the States of our Union. It excludes a rehearing after acquittal upon errors of law, and therefore, it would seem, denies also a rehearing upon judgments of the Court upon questions of law, even when the Jury have not passed upon the guilt or innocence of the prisoner. If the effect of the judgment is a discharge, there can be no rehearing, either by new trial or writ of error. Indeed it may be stated as a general rule, that in criminal cases, upon general principles, errors are not subject to revision at the instance of the State.” (Italics ours.)
The reason for the rule announced in the Jones case was stated by the court in the following language: “The trial of a citizen for a violation of the Criminal. Law, is a very different thing from the trial of civil rights between two citizens. The forms of procedure, and the principles upon which they proceed, are different. When the prosecution is upon information, the prosecutor is not to be viewed in the light of a party. He has no rights to be violated by denying the writ of error — he has no more interest in the administration of criminal justice than has every other citizen. The offense to be punished is against the people. The violation is of a public law — the object of the trial is not compensation or restitution, or the settlement of conflicting claims to property, but punishment if there is guilt. The punishment inures to the safety and peace of the whole body politic. If there is, by reason of the offense charged, an injury done, especially to any one person, he has a remedy for the wrong. In criminal trials, the State — the supreme authority— that authority which makes the law, and prescribes its penalty, and executes its judgments — moves against the citizen. The Court, the Jury and the Solicitor General are its agents. The State is not a party — the State is rather an accuser — she charges crime, arrests, tries, convicts and executes. In criminal causes, the State, through her agents, is the judge who tries the accused. In civil cases, she stands aside and leaves the parties to litigate upon equal terms before a tribunal independent of -both. Thus un*743equally do the State and the defendant enter upon an issue, the result of which may involve the liberty or life of the one, and no sensible consequence to the other. ■ Viewed in this light, it is a concession in behalf of the defendant, both humane and reasonable, that the State should not review her own errors' — that she should decide but once.” (Italics ours.)
Under the rule stated in the Jones case (that the State should not review her own errors), where the effect of the ruling is an acquittal or discharge, there can be no review at the instance of the State. It is significant that at the time of the ruling in the Jones case the law in effect with reference to the right of review in this court was that “All causes of a criminal or civil nature may, for alleged error in any decision, sentence, judgment or decree of any such Superior Court, be carried up from the counties of the respective districts aforesaid, to the Judges of the Supreme Court, at the respective terms thereof for such district, to be by said Supreme Court revised and determined.” Yet, under this provision, it was held that there could be no appeal or review by the State. The provision that all causes of a criminal or civil nature might be reviewed in the Supreme Court remained in effect until the adoption of the Code of 1863, at which time the present Code § 6-901 was codified, the first sentence of which is a follows: “Either party in any civil cause, and the defendant in any criminal proceeding, in the superior or city courts, may except to any sentence, judgment, or decision, or decree of such court, or of the judge thereof in any matter heard at chambers.” See Code of 1863, § 4160.
The rule announced in State v. Jones, supra, was followed in Cranston v. Augusta, 61 Ga. 572. In the Cranston case, Justice Bleckley, in speaking for the court, said: “The State cannot have the writ of certiorari or a writ of error to revise a judgment of discharge by its courts.” In State v. Johnson, 61 Ga. 640, this court held that “a writ of error does not lie in behalf of the State in a criminal case.” In State v. Lavinia, 25 Ga. 311, it was said: “A writ of error does not lie to this court, in a criminal case at the instance of the State.” To the same effect, see Mayor & Council of Hawkinsville v. Ethridge, 96 Ga. 326 (22 S. E. 985); Mayor & Council of Macon v. Wood, 109 Ga. 149 (34 S. E. 322); Barnett v. Atlanta, 109 Ga. 167 (34 S. E. 322). In State v. *744Steele, 112 Ga. 42 (37 S. E. 174), this court reiterated that it has no jurisdiction of a writ of error sued out at the instance of the State.
In Eaves v. State, 113 Ga. 749, 754 (39 S. E. 318), it was said: “We hold that the State is without any right to a writ of error in a criminal case by either main or cross-bill of exceptions. The cross-bill filed in the present case was not authorized by law, and this court is without jurisdiction to entertain the writ of error.” The Eaves case cites many of the earlier decisions to the effect -that there can be no review at the instance of the State and reaffirms the earlier decisions.
The general rule as to review is stated in 24 C. J. S., 258, § 1659, as follows: “In the absence of a statute expressly so providing, the state cannot appeal from an order granting accused a new trial, or from an order quashing a conviction and sentence.” In 2 Am. Jur., 984, § 227, the general rule is stated as follows: “In the absence of a statute clearly conferring the right as a general rule, the State or United States cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case.”
The Congress of the United States by the Criminal Appeals Act of March 2, 1907 (U. S. Code, Ann., Title 18, § 682), has provided that a writ of error will lie on behalf of the United States from a district court to the Supreme Court of the United States, from a decision quashing an indictment or sustaining a demurrer thereto, where the judgment is based on the invalidity of a statute; from a decision arresting a judgment for insufficiency of the indictment; and from a decision or judgment sustaining a special plea in bar, where the defendant has not been put in jeopardy. But this act has been construed strongly against the Government, and liberally in favor of the defendant. See United States v. Weissman, 266 U. S. 377 (45 Sup. Ct. 135, 69 L. ed. 334).
In some States an appeal is permitted at the instance of the State from an order sustaining a motion to quash or a demurrer to an indictment. There is not now, nor has there ever been, in this State any statute or constitutional provision authorizing an appeal or review at the instance of the State. In those States permitting an appeal by the State, where a motion to quash, or *745a demurrer to the indictment, is sustained, no provision is made for a rehearing at the instance of the State from any verdict of acquittal or discharge of the defendant by the court of last resort. See 92 A. L. R. 1146.
In B’Gos v. State, 43 Ga. App. 379 (159 S. E. 137), the Court of Appeals reversed a verdict of guilty on two counts, holding that the evidence showed only one scheme, and that, obviously, the accused could not be guilty on both counts of the accusation. A motion for rehearing was filed by the State, and on rehearing the judgment of reversal was adhered to. An application by the solicitor-general (the State) for a writ of certiorari was dismissed by this court, it being held: “The Supreme Court of Georgia is without jurisdiction to entertain, at the instance of the State, a petition for certiorari to the Court of Appeals in a criminal case.” State v. B’Gos, 175 Ga. 627 (165 S. E. 566). In the body of the opinion (at page 638), this court quoted with approval from the case of United States v. Sanges, 144 U. S. 310 (12 Sup. Ct. 609, 36 L. ed. 445) (which was an appeal by the Government from an order, sustaining a demurrer, by the District Court for the Northern District of Georgia), as follows: “It is settled by an overwhelming weight of American authority that the State has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal, or upon determination by the court of a question of law.” In dismissing the application for certiorari, in the B’Gos case, this court reviewed and quoted from many of the earlier decisions of this court cited in this dissent.
Provision was not made for a writ of certiorari from this court to the Court of Appeals at the time the latter court was created. By a constitutional amendment, adopted in 1916 (Ga. L. 1916, p. 19), it was provided: “It shall also be competent for the Supreme Court to require by certiorari or otherwise any case to be certified to the Supreme Court from the Court of Appeals for review and determination with the same power and authority as if the case had been carried by writ of error to the Supreme Court.” Notwithstanding this constitutional authority, which is not limited by its terms to civil cases, it was held in *746State v. B’Gos, supra, that this court was without power to review a criminal case from the Court of Appeals at the instance of the State.
There is no statute or constitutional authority for review in this court by motion for rehearing. Cooper v. Portner Brewing Co., 113 Ga. 1 (38 S. E. 347). Any contention that the State is a “party,” under subsection (c) of Rule 40 of this court, is without merit. It was held by this court that the word "party” as used in the Code, § 6-901, does not apply to the State, so as to permit a cross-bill of exceptions. Eaves v. State, supra. In State v. Jones, supra, it was held that the word “party,” as used in reference to review, does not include the State. The present Code section provides for an appeal only by the defendant in a criminal proceeding. In the light of the decisions of this court above cited, and of the Code section referred to, the writer will not infer that this court, in the adoption of Rule 40, intended to disregard full-bench decisions of this court defining a party, and the Code, § 6-901, limiting the right of review to the defendant in a criminal case.
The Fifth Amendment to the Federal Constitution (Code, § 1-805), provides in part as follows: “Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” The State Constitution, art. 1, sec. 1, par. 8 (Code, Ann., § 2-108), provides: “No person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his, or her own motion for a new trial after conviction, or in case of mistrial.”
It has been said by this court that it is a well-settled principle that, in affording protection to defendants under the above constitutional provisions, if the indictment is so defective as to afford good cause for arresting the judgment, there is no jeopardy. Simmons v. State, 106 Ga. 355 (32 S. E. 339). This court by the judgment rendered in this case has said that the indictment was fatally defective, in that it failed to charge a crime. If a rehearing should be granted at the instance of the State, the judgment for the defendant vacated, and a judgment entered holding that the indictment did charge a crime, would not the spirit of these constitutional provisions be violated?
Independent of any constitutional prohibition affording pro*747tection from double jeopardy, there should be no review of alleged errors in criminal cases in the courts of review of this State on motion of the State. The right of this court and the Court of Appeals to revise opinions, as was done In re Fite, 11 Ga. App. 665 (76 S. E. 397), is not related to the right of the State to file a motion for rehearing in any criminal case. While the judgments of this court are completely under its control during the term at which they are rendered, until the remittitur has been transmitted to the court below, it is the writer’s opinion that there is no authority, constitutional; statutory, or otherwise, granted to the State to file a motion for rehearing, as a matter of “right,” in this court, where the effect of the judgment as originally entered is a discharge of the defendant.
For the reasons stated, I am convinced that the motion for rehearing filed by the State in this case should have been dismissed. I am authorized to say that Mr. Justice Wyatt and Mr. Justice Almand concur in this view.