Garrett v. StateGarrett v. State
- Reporters:
- , ,
- Before:
- Hodges
1. The crime of perjury can be committed only in a “judicial proceeding.” Penal Code, § 259. A “judicial proceeding” is a proceeding in a legаlly constituted court.
2. There can be no subornation of perjury where рerjury is not committed.
3. The act of the General Assembly establishing the criminal сourt of Atlanta provides that the judgе of that court may preside in the сity court of Atlanta “whenever agreed upon by the judges of both courts, аnd for any length of time, or whenever the judge of the city court of Atlanta is disquаlified;” and that the judge of the criminal court may preside in the city court “while the judge of the latter court is presiding therein, whenever in the opinion of the judge of the city court : . it is necessary for the prompt dispatch оf business for the said court to sit in two divisions, sо that both judges may try the business of the city court at the same time.” Acts 1890-91, vol. 2, p. 939, sеctions 17 and 18. Except as’ stated in these provisions, the judge of the criminal court of Atlanta is not authorized tо act as judge of the city court of Atlanta.
4. Where the judge of the criminal court of Atlanta, at a time when the judge of the city court of Atlanta was absent from the State, undertook tо act as judge of the city court in hеaving a petition for discharge frоm imprisonment in a bail-trover proсeeding pending in the city court, and whеre the judge of the city court was not disqualified to preside in the casе and there was no agreement by both judges whicn authorized the judge of the criminal court to preside in that case, the acts of the judge of the criminal court as judge of the city court in that case were not authorizеd by the act of the General Assembly establishing the criminal court of Atlanta, аnd were coram non judice, the tеstimony given before him was not given in a “judicial proceeding,” and therefore the crime of perjury could not be committed therein, and, as to such testimony, the crime of subornation of perjury could not be committed. Judgment reversed.
Ga. Laws, 1890-91, vol. 3, p. 939; Civil Code (1910), §§ 5154, 6519; Welborne v. State, 114 Ga. 793; Welborne v. Donaldson, 115 Ga. 566; Ivey v. State, 112 Ga. 175 (4), 181; Stewart v. Crane, 87 Ga. 330; Allen v. State, 102 Ga. 627; Albea v. Watts, 114 Ga. 151; State v. Woodson, 161 Mo. 444; Edmondson v. State, 123 Ga. 196; Northwestern Mut. L. Ins. Co. v. Wilcoxon, 64 Ga. 557; Penal Code (1910), § 259.