164 Ga. 219 | Ga. | 1927
Lead Opinion
M. M. Gore, upon being convicted of murder, was sentenced to be executed “by the warden of” the “penitentiary” of the State of Georgia, “by electrocution in private within the walls of said penitentiary at Milledgeville, Georgia.” The sentence was about to be executed by B. H. Dunaway as a .warden of the penitentiary. In .a petition by Gore for the writs of injunction and prohibition to prevent the execution of the sentence by Dunaway, it was alleged that Dunaway was superintendent of the penitentiary at Milledgeville but was not the warden
Paragraph ten of the petition alleges that the said act of 1924 is “unconstitutional,” because (a) “there is no legal machinery now in force in the State of Georgia . . to carry the sentence in this case into execution. There is no such person as the “warden of the penitentiary. . . The act contemplates the warden of the penitentiary of this State.. It does not by its language say that the wardens of the various departments have the authority to execute any condemned person. . .” (b) Because “the act strips the sheriff of the counties of Georgia of the authority to execute a condemned person, and it does not specially designate any official with the power to act with that authority.” The first of the foregoing grounds of attack is disposed of by the ruling in the first headnote. The second ground of attack is also
Applying the foregoing rulings, the petition failed to allege a cause of action, and the judge erred in overruling the general demurrer to the petition.
The rulings announced in the preceding paragraphs apply also to the assignments of error in the bill of exceptions filed by Gore.
Assignments of error upon constitutional questions which are raised for the first time in the bill of exceptions will not be considered. Loftin v. Southern Securities Co., 162 Ga. 730 (134 S. E. 760); Puckett v. State Banking Co., 130 Ga. 586 (61 S. E. 465).
In the bill of exceptions filed by Gore error was also assigned upon the statement of the judge: “I hold that the act of 1924, substituting electrocution for hanging, is'constitutional and legal.” This language of the judge contained in his opinion was not a judgment upon which error could be assigned. Griffith v. Finger, 115 Ga. 592 (41 S. E. 993); Hendricks v. Jackson, 139 Ga. 604 (77 S. E. 816). And even if it announced an incorrect principle of law, it would not be a proper subject for review under this assignment of error.
The foregoing rulings result in a reversal of the judgment of the trial court overruling the general demurrer as complained of in the bill of exceptions filed by Dunaway, and in an affirmance of the judgment of the trial court on questions raised in the bill of exceptions filed by Gore, in so far as that bill of exceptions contains assignments of error sufficient to raise any question for decision by this court.
Judgment in Case No. 5810 reversed. Judgment in case No. 5811¡. affirmed.
Concurrence Opinion
specially concurring. The foregoing syllabus expresses the opinion of the court. For the reasons stated in Howell v. State, supra, I do not concur in the statement that as a matter of law any warden or the superintendent of the prison farm is the proper person to act as executioner within the terms
On November 12, 1926, M. M. Gore, having been convicted of murder in the superior court of Fulton County, was sentenced to be executed between the hours of 10 o’clock a. m. and two o’clock p. m. on November 26, 1926, “by the warden of” the “penitentiary” of the State of Georgia “by electrocution, in private within the walls of said penitentiary, at Milledgeville, Georgia.” At the dates above mentioned B. H. Dunaway was acting under a commission issued, January 1, 1923, by the Prison Commission of Georgia, appointing him “warden of the male camp at the State Farm, Milledgeville, Georgia.” The following occurred in reference to the offices and tenure of office by Dunaway as superintendent and warden: A resolution was passed by the Prison Commission, May 10, 1922, which rescinded a former resolution adopted September 29, 1921, and declared “that the offices of superintendent and warden be separated,” that “the deputy wardens of the several departments shall be raised to the position of warden,” and that “the superintendent shall have charge of the management of the farm and shall direct its operation. He shall have general supervision over the wardens and employees of the farm and shall discharge all duties imposed upon him by the resolution of September 28th, 1921, . . except those specially undercharge of the warden, such as custody of prisoners and their discipline.” Also, that “the salaries of the superintendent and wardens shall be $100 per month,” and that B. H. Dunaway “was elected superintendent.” On December 20, 1922, another resolution was passed by the Prison Commission which declared: “Whereas, R. N. Etheridge, warden of-the male camp at State Farm, has resigned, effective January 1st, 1922, it is ordered that the office of warden of said camp be filled by B. H. Dunawajr, the superintendent of the farm, in addition to his duties as superintendent, and that his salary as superintendent and warden be $1800.00 per annum, beginning Januarjf 1st, 1923.” On April 1, 1925, the Prison Commission passed the following resolution: “It is ordered by the Commission that the salary of the superintendent and warden of the State Farm be fixed at $200.00 per month, $100.00 as warden and $100.00 as superintendent.” On February 13, 1925,. Dunaway executed separate official bonds with
When the sentence of the court above mentioned was about to be executed, Gore instituted a suit against Dunaway for injunction and prohibition to prevent the execution, on the ground that there is no warden of the State Prison Farm and no warden to carry out the sentence of the court, but that Dunaway is in possession of the said order of the court and is threatening to carry out its terms, and that his act in doing so will be an illegal act, without authority, and not within the scope of his duties as superintendent of the farm, and that Gore will be denied due process of law. The petition also set forth a copy of the act of 1924 (Acts 1924, p. 195), relating to punishment by electrocution, and made special reference to section four of the act, which -is as follows: “That there shall be present at such execution the warden of the penitentiary, who shall serve as executioner, and at least two assistants, two physicians to determine when death supervenes, an electrician, a suitable guard, and, if the condemned person so desires, his counsel, relatives, and such clergymen and friends as he may so desire.” In paragraph 10.of the petition it was alleged that the act above referred to “was enacted for the purpose of changing the mode of execution of condemned persons as set out above and in Penal Code Section: Article 26, Sections 1069, 1070, 1072, and death penalty in section 63 of the Penal Code of Georgia, 1910,” and “is unconstitutional, in that there is no-legal machinery now in force in the State of Georgia, at this time, to carry the sentence in this case into execution. There is no such person as the warden of the penitentiary. Petitioner avers that the act contemplates the warden of the penitentiary of this State. It does not by its language say that the warden of the various departments has the authority to execute any condemned person. Petitioner further shows that the act strips the sheriff of the counties of Georgia of the authority to execute a condemned person, and it does not specially designate any official with the power to act with that authority — and that no such office as warden of the penitentiary now exists and did not at the time of the enact
Rehearing
ON MOTION ROE REHEARING.
It is insisted in the motion for a rehearing that the court overlooked the contention of the plaintiff in error, Gore, that the execution of the sentence of the court by Dunaway was unauthorized and unlawful, in that it appears from the record that Dunaway was not only the warden of the male camp near Milledgeville, but that he also at the same time held a second office, that of superintendent of the prison farm. It is contended that Dunaway’s incumbency in the office of superintendent of the prison farm rendered him ineligible to hold at the same time the office of warden of the male camp, by reason of which his appointment as warden was void and he was neither “the warden” as the term is used in the act of 1924, nor even “a warden” as that term is construed in Howell v. State, ante. The objection argued then is' that Dunaway would be ineligible to hold two offices at the same time. In our opinion this contention can not be sustained. Two code sections relating to this subject are sections 258 and 259. The provisions of section 258, so far as relate to the matters now before us, áre: “The following persons are held and deemed ineligible to hold any civil office in this State, and the existence of either of the following state of facts is a sufficient reason for vacating any office held by such person, but the acts of such person, while holding a commission, are valid as the acts of an officer de facto, viz.: . . 4. Holding other offices. Persons
In the opinion of the majority of the court Mr. Dunaway was fully authorized to act at the same time as superintendent of the prison and as the warden, and in the latter capacity to execute the sentence as provided in the act of 1924. Eor myself, I doubt the soundness of this proposition, but not because of any provision in section 258 or 259. It is merely my opinion, that, the General Assembly having created two distinct offices by providing salaries therefor in the act of 1920 (Acts 1920, p. 273), and in view of the further provisions of law that the superintendent of the prison farm shall have no other duty than the general' direction and supervision and control of all the convicts engaged in working on the prison farm'and like superintendence and control of all wardens in charge of these convicts, the superintendent is restricted to these duties alone, and for that reason the mandate of the General Assembly should in the future be obeyed, and the two positions of superintendent of the farm and the warden should be distinct and separate. The regulation provided in section 1215 is in my opinion wise and timely legislation, for the reason, if no other, that it is a matter of common knowledge, to which judicial cognizance extends, that the immense body of land upon which the State conducts farming operations near Milledgeville, and the supervision of several hundred convicts, imposes a sufficient labor and re
Plaintiff in error, Gore, contends that the court overlooked his contentions as to the unconstitutionality of the act of 1924 (Acts 1924, p. 195). This court did not overlook the contention, but is constrained to hold that no attack was made in the lower court upon the constitutionality of the act which permitted this court to investigate the questions. In Georgia & Florida Railway v. Newton, 140 Ga. 463, 466 (79 S. E. 142), a written request was made of the court to instruct the jury that section 2675 of the Civil Code (commonly known as the blow-post law) was unconstitutional, and exception was taken to its refusal. Complaint was also made because the court declined to instruct the jury “that the latter part of said section, to wit, fand to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road,’ is not the law of Georgia, and is invalid and not binding on said defendant, and that the same is unconstitutional.” Though several reasons were assigned in the motion for a new trial why the section in question as a whole, and the portion above quoted, were repugnant to the clause of the Federal constitution giving to Congress the power to regulate commerce, it did not appear that any reason