Sheppard v. State

Atkinson, J.

1. In the Penal Code of this State, which has the force of statutory law, there are two separate provisions on the subject of compounding. Penal Code, §§ 328, 329. In § 328 it is declared: “ If any person shall take or receive any money, goods, chattels, lands, or. other reward, or promise to compound, or shall for any cause compound any crime or offense punishable with death or imprisonment and labor in the penitentiary, he shall be punished by imprisonment and labor in the penitentiary for not less than one year nor longer than five years.” This law relates to the compounding of felonies, and the punishment of such compounding is for a felony. By the language of the statute, the offense is completed by compounding a felony, whether or not there was any prosecution. It has been held that in a prosecution based upon this statute it is necessary to prove the actual perpetration of a felony alleged to have been compounded. Hays v. State, 142 Ga. 592 (83 S. E. 236). The language of the other provision (§ 329) is different, as will readily appear from its verbiage: “If any person, informing or prosecuting under pretense of any penal law, shall compound with the offender, or direct the suit or information to be discontinued, unless it be by leave of the court where the same is pending, he shall be guilty of a misdemeanor.” It will be observed that this law provides that compounding in violation of its terms shall be a misdemeanor. The word “ crime ” is not mentioned; and it could not refer to the compounding of a felony that had been actually committed, because such a construction would cause the statute to be in conflict with § 328, which makes it a felony to compound felonies. The words, “informing or prosecuting under pretense of any penal law,” are employed. This language was employed in our first statute on the subject. Penal Code of 1833, § 32; Cobb’s Digest, 808. “Pretense” as here employed is used in its offensive sense, as “that which is advanced or displayed for the purpose of concealing the reality; . . a ruse or wile masking ulterior design.” Standard Dictionary. The use of this word denotes an intention to punish a person for informing or prosecuting another under “ pretense ” that such other has committed an offense for which he might be prosecuted, when in fact such person has not commited any offense; the thing thus condemned is in the nature of a fraud, and is punished as for a misdemeanor. The prosecution contemplated is a proseeution in a court which would have jurisdiction to try the pretended offender, and which would have authority to allow the parties to compound the pretended offense. This is manifest from the use of the language, “ unless it be by leave of the court where the same is pending.” Thus construed, § 329 means that if any person informing or prosecuting under pretense of any penal law, after the commencement of a prosecution in a court having jurisdiction of the pretended offense, shall compound with the alleged offender or direct a suit or information to be discontinued, without leave of the court, he shall be guilty of a misdemeanor. As the offense consists of compounding, without consent of the court, with the person prosecuted for a pretended offense, it follows that in such cases it would not be necessary to charge and prove specifically the elements necessary to make the pretended offense. The indictment was not subject to the demurrer.

2. The statute, being a penal law, is to be strictly construed. As indicated in the preceding division, it is an essential part of the offense that there must have been a prosecution of the pretended offense in a court which would have had jurisdiction to try tire pretended offender and to grant leave to the parties to compound it. Evidence that the defendant caused an officer of the law to arrest the pretended offender without a warrant on a charge of larceny alleged to have been committed out of the presence of the officer, and compounded the offense without any further steps toward a prosecution in the court having jurisdiction of such alleged offense, would not support a verdict of guilty.

All the Justices concur.