that case a man ought not to be discharged from responsibility, in my judgment. He ought not to have a judgment of "not guilty," which means that he is then not responsible for the act with which he is charged. I don't know of any authority in Georgia on the subject, but in some other States, where it appears that the trial has not placed the accused in jeopardy, where the court had no jurisdiction, the plea of former jeopardy is not good.

The first suggestion, then, aims at inaugurating a practice, by which, if the defendant desires to raise the issue, that is contest the venue, there is no attempt to try him at all. He raises that issue, and that issue is tried, and, if he succeeds in sustaining his contention that the court is without jurisdiction to try him, the judgment is on that ground. Now the provisions of Section 1 of the proposed Act cover that point fully, and by reading it you will see what is aimed at: "From and after the passage of this Act, if the defendant in any criminal case desires to contest the venue of the offense alleged against him, he shall do so by written special plea filed before the case is finally submitted to the jury, and stating before what court or courts the venue properly should be; and not otherwise. If no such plea is filed, all questions as to the venue of the case shall be held waived. If such plea be filed before a trial on the merits is begun, it shall be first separately tried and disposed of"

In that case of course there would be no jeopardy. He wouldn't be tried on the merits of the case at all, simply on the plea that he files to the jurisdiction of the court.

"If filed, after such trial is entered upon, a separate verdict or judgment upon said plea shall be made, and, if in favor of the plea, there shall be no finding upon the plea to the merits of the case"

Defendant will have simply invoked the judgment of the Court as to its jurisdiction, and, when that judgment is rendered, still the merits of the case remain to be tried before the court having jurisdiction, and no plea of former jeopardy can be entered.

"Upon the sustaining of any plea to the venue, the defendant shall be bound over under a proper recognizance, or

committed, to appear before the court found to have jurisdiction of the offense. A verdict or judgment against such plea may be reviewed as other verdicts or judgments against the accused."

If the jury found against the plea, then the court would proceed to try the main question.

Now the second section goes to the question of amendments. This recommendation grows out of experience. A man is charged with stealing certain property. It may be that there is not a sufficient description of the property he is alleged to have stolen, and a special demurrer is filed. The defendant is entitled to the information. Suppose that he in good faith merely wants the information - he ought to have it — and the court says "You are entitled to this information," but instead of giving him the information, he is turned loose. Mere errors in form have quashed many indictments, and turned lots of guilty criminals loose. In my own court some time ago there were twenty-odd indictments quashed on account of the clerk of the grand jury making a mistake in writing the name of a grand juror. There was no power in the court to do anything about the matter, and so all those indictments had to be quashed, and nobody was tried for a misdemeanor in six months. Now it seems to me that, if

it appears to the satisfaction of the court that the grand juror's name ought to be so-and-so, the court ought to direct an amendment correcting such a small error of form, and in cases where the description of the property is not sufficiently set up, this should be corrected, where the substance of the charge is in no way affected thereby. Sometimes a slight error may occur in stating that a man or woman is married, when he may not be. I remember a case, that came up against a woman, alleged to be unmarried. She lived as such, and nobody ever heard of her being married, but on the trial of the case she produced a certificate of marriage, and proof that her husband was still living. Simply on the question of an error like that defendant was entitled to a discharge. Now the State, or society, relies upon the grand jury to bring criminals to justice. After all, the grand jury is the State, and the solicitor-general is the agent of the

State, and he ought to have some power in changing the pleadings to remedy such defects of form, just as an ordinary lawyer has the right to amend in managing his case for his client. Matters of this sort have been adopted in other States, and there seems to be no reason why we should sacrifice the right of society to have one fair, square trial on the actual merits of a criminal prosecution, and not be hampered by the failure of the prosecuting officers to find out beforehand all about the defendant, and have a person discharged, not because he is not guilty, but because other men are not as well posted about the defendant as he is himself.

Now the third provision is this: "Upon the allowance of any such amendment, if before the trial is begun, upon a showing by the defendant that he is surprised by the amendment, and the less prepared to proceed with the trial, a reasonable postponement of the trial, or in the discretion of the court, a continuance of the case, shall be allowed."

This simply means that, if he has asked for further information, and gets it, and is surprised by the amendment, and unable to proceed with his defense, then he will not be pressed into an immediate trial, but be given reasonable time to prepare his defense by a postponement or continuance of the case. Then another section is to the effect that, if the amendment is allowed during the course of the trial, defendant may move for a mistrial, or he can go ahead with the trial, as he wishes.

The fourth suggestion is "No person arraigned for a misdemeanor before any court having jurisdiction to try the same, shall be entitled to demand an indictment by the grand jury, except as to offenses in which indictment is specially made a prerequisite to trial."

This is comparatively trivial, and applies only to County Courts, I believe.

Mr. J. L. Sweat (Waycross): There are some sections of this proposed bill that we may favor, and others that might be very objectionable. I therefore move that we take it up by

sections.

This motion was seconded and carried.

Mr. B. F. Abbott (Atlanta): It is with a great deal of pleasure that I have listened to the explanation of this recommendation by the committee. I wish to state that I am opposed to that first section, and I will give my reasons very briefly, I think within five minutes. When a man is accused of a crime, the burden is upon the State to make out the accusation or the crime by competent evidence. The mouth of the defendant is sealed. The State therefore tries a dumb man. Now this section contemplates that he must come in and plead, if he is accused of a crime, that he didn't commit in one county, but he did commit it in another, which is equivalent to a quasi plea of guilty, and that he ought to be tried in some county. It seems to me an anomally that he is called upon, if he is indicted for stealing in Habersham county, to say that "I am not guilty of the crime in Habersham county, but I am guilty of it in Rabun county." I don't think the State, by legislative enactment, ought to require a man, who is accused of a crime, to make a plea in advance that will prejudice his case. The logical result of that section is to make a man accused of a crime plead first. That contemplates that he should plead first, and that, unless he wants to plead guilty and throw himself on the mercy of the court, he must say, "I ought not to be tried in this county, but I ought to be tried in some other county that has jurisdiction, for I committed the crime there." That's an anomaly in criminal law. It is with great diffidence that I dissent from this recommendation by the learned committee, but I never could give my consent to a provision of that kind in our criminal practice. If the law puts a seal upon the lips of a defendant, a helpless man, then it ought not to require him to open his lips with a quasi-confession of guilt. The State undertakes to prove the case, and it is for the defendant to make out his defense as best he can according to the principles of the common law.

The President: Mr. Sibley, may I ask you this questionhow far can you compel a defendant to raise the question of venue? Suppose an offense is committed in DeKalb County, and the man is tried in Fulton County, and he says nothing about the venue, and it subsequently appears that the court of

Fulton was without jurisdiction. Might he not be discharged on a writ of habeas corpus on the ground that the court of Fulton had no jurisdiction?

Mr. S. H. Sibley (Union Point): The point raised by yourself and Col. Abbott is that a court actually without jurisdiction may try a man, and a verdict of "Not guilty" be rendered, when it was discovered that the court was without jurisdiction, and the defendant would take advantage of the quibble, and never be tried on the merits of the case. That's exactly what we want

to avoid.

The President: Yes, but here's a court actually without jurisdiction, and there's no point made upon it at the time of the trial. Now would it not be a void proceeding entirely to try a man in Fulton County for a crime committed in DeKalb?

Mr. S. H. Sibley (Union Point): Yes, I think it would. The President: Then could he not show that, and nullify the proceeding, and on a writ of habeas corpus be released?

Mr. S. H. Sibley (Union Point): Well, yes, I guess he could, but the really proper mode of procedure would be to hear all objections first, and then proceed with a trial of the case on its merits.

The President: That's all right. That may be true, but I don't think you can force the defendant to enter his plea to the venue to the prejudice of any right he may have later under a different proceeding.

Mr. H. C. Peeples (Atlanta): I believe you are aiming at a very desirable result, but here's a thing that has occurred to me. Suppose the defendant in the case does not want to plead.

While Mr. Peeples was speaking the hour arrived for the annual address to be delivered by Mr. Justice J. H. Lumpkin, of the Supreme Court of Georgia, and the President suspended further discussion of the matter and invited the justice to a seat upon the rostrum.

The President: Before announcing the distinguished speaker, we wish to say that after the address one of the subjects for discussion will be "The Use of Injunctions by Federal Courts as to State Laws."