2 Ga. 290 | Ga. | 1847
By the Court
delivering the opinion.
When this motion was first made we felt considerable embarrassment, on account both of the novelty and magnitude of the question presented for our adjudication. And it is but just to ourselves to say on this occasion, that our successors on this bench will be relieved from many of the difficulties which beset us, as pioneers under the new organization of our judiciary. We are not only forced to decide all questions promptly, and at remote places in the State, where we cannot procure that assistance from books, so essential to the sound and satisfactory administration of justice, but we are often called upon, as in the present case, to pronounce the law upon points that are new to us. It may be that the principles involved may have been well settled elsewhere, but having heretofore no tribunal here, out of which alone such cases could arise, the profession is not prepared - by their previous reading for the proper discussion of them.
With what extreme caution, then, does it become us to proceed, with what diligence and care to examine and deliberate, lest we should not only do injustice to the parties before us, but, what is perhaps still more to be deprecated, establish a precedent which we should be compelled to reverse, and thereby diminish the public confidence in the stability of our opinion, or else to adhere to it at the expense of the public justice of the country.
Much, yea every thing, depends on the discreet exercise of the powers of this Court, so far as its permanence, strength, and use
With these preliminary observations I approach the case before us; and what is it?
William W. Harris was convicted of murder, in Coweta
At the late March Term of Coweta Superior Court, the prisoner (Harris) was brought up by habeas corpus for the purpose of being re-sentenced, and his counsel were called on to know if they had any cause to show why the sentence of the law should not be executed. They assigned seven reasons, all of which, except one (fifth) were for alleged errors growing out of the first trial in September, 1846. The Court declined hearing them upon the six grounds, and overruled them on the other, refusing to certify a bill of exceptions, for the reason that one had already been signed in the same case. And that if this were not so, it was too late to make the application, when six months, instead of Jour days, the time prescribed, had elapsed since the trial and decision complained of.
This motion is made for a writ of mandamus, to be directed to the judge of the Coweta Circuit, commanding him to sign and seal the bill of exceptions so tendered. There is no appearance in behalf of the State, and hence we are not aided by the research and enlightened by the conflict of discussion which the occasion demanded. Nevertheless, the responsibility of a correct declaration of the law is upon us, with or without the help of argument and authority.
The principles and usages of law which warrant the issuing this writ, are thus laid down by the Supreme Court of the United States, in Marbury vs. Madison, 1 Cranch R. 168, 169. “ Whenever there is a right to execute an office, perform a service, or exercise a franchise, more especially if it be a matter of public concern, or attended with profit, and a person is kept out of possession of such right, and has no other specific remedy, the court ought to assist by mandamus, upon reasons of public policy, to preserve peace, order, and good government; this right ought to be used on all occasions where the law has established no specific remedy, and where, in justice and good government, there ought to be one.”
In Sikes vs. Ransom, 6 John. R. 279, the question was distinctly made upon an application similar to this, whether the Supreme Court of New York could interfere when the Court of Common Pleas refused to seal a bill of exceptions; and it was decided that they had the power to grant a mandamus, directed to the inferior judicatory, commanding the judges to seal a bill of exceptions, or to amend it, according to the truth of the case.
From these definitions and decisions, and numerous others which might be adduced, we should hold, were it necessary, that the power of this Court to issue this mandatory writ would result from the jurisdiction conferred on it to review and correct the judgments of the Superior Court.
No question however, can arise under the Statute of 1845, respecting our power. By the 4th section of that act, it is made the duty of the judges of the Superior Court to certify and sign the bill of exceptions, provided it be true and consistent with what has transpired in the causes before them. And section 6th declares, “ that if any judge of the Superior Court shall refuse to certify a bill of exceptions when properly tendered, the Supreme Court while in session in any district in the State, may issue a writ of mandamus to such officer and enforce obedience
Two things then are well established, viz : that this Court has the power to grant this writ, and that the judges of the Superior Courts have no' discretion to refuse to certify and sign a bill of exceptions, when properly tendered, if the fact alleged be truly stated, “ si ita est.” The law is imperative, quod apponat sigillum swum; and that not only under the vague and undefined peril of the common law, et hoc sub periculo quod incumbit nullatores, &c. for the express penalty prescribed by the statute as we have already seen, is by attachment against the delinquent Judge.
In addition to this, it would seem that the party aggrieved has his action, not only for a false return, but for the failure or refusal of the judge to certify and sign the bill of exceptions when duly taken and tendered. See the opinion of Lord Chancellor King in 1 Vernon; of Lord Redesdale in 1 Sch. and Lefr; of the Court of King’s Bench in Bridgman vs. Holt; of Justice Buller in his Nisi Prius, 316; and the Constitutional Court of South Carolina in 2 McCord. And I see it stated that there is an original writ for this specific case in the Register, which of itself has been esteemed sufficient to show what the law is.
Upon the proof then before us, as exhibited in the petition, can we assume that there is sufficient ground for the intei’position of this Court! This rule to show cause, is a call upon the judge to explain his official conduct, and implies that a prima fade case has been made out, which makes it proper for this Court to know the reasons for his decision. Of course, therefore, it should not be • granted, unless the record before us shows mistake, misconduct, or to say the least of it, omission of duty on the part of the Court. We think the affidavit of the relator furnishes no such evidence. The prisoner had his day in court; he had been allowed the full benefit of the act Ci-eating this coui-t; a bill of exceptions embracing the same grounds had been once certified by the judge below, sent up by the clerk, heard and determined by this Court. The whole matter had been adjudicated.
It is argued that the defendant had the right upon the return of the habeas corpus, to inquire into the legality of the September
It is further urged that the Court below had no power to re-sentence the defendant. We maintain that it had the power both under the Penal Code of 1833, and independent of it. The 39th section of the 14 th division provides that, “whenever for any reason any convict sentenced to the punishment of death, shall not have been executed pursuant to such sentence, and the same shall stand in full force, the presiding judge of the Superior Court, where the conviction was had, on the application of the Attorney or Solicitor General, or other person prosecuting for the State, shall issue a habeas corpus to bring such convict before him; or if such convict be at large, said judge or any judicial officer of this State may issue a warrant for his apprehension; and upon the said convict being brought before the said judge, either by habeas corpus or under such warrant, he shall proceed to inquire into the facts and circumstances of the case; and if no legal reason exist against the execution of such sentence, such judge shall sign and issue a warrant to the. sheriff of the proper county, commanding him to do execution of such sentence, at such time and place as shall be appointed therein, which the said sheriff shall do accordingly,” &c. Prince, 663, 664.
Here the sentence was suspended by the supersedeas consequent upon the first bill of exceptions, until the same was affirmed by this Court by the dismissal of the case. It was then in full force. The Court below therefore, had the right under the Code, upon habeas corpus, to command the sheriff to do execution of the sentence. Besides, the judgment having been affirmed, it immediately became the duty of the judge below by the Act of 1845, (and he would have been in default had he omitted it,) to carry it into full effect. 1 Kelly’s R. viii. And this he could only do by re-sentencing the prisoner.
And as to the fifth ground taken in arrest of judgment, that the judge had not the proper evidence before him of the disposition made of the previous case by this Court, we are clear thathe had; he had the fact duly authenticated by the clerk of this Court
The rule therefore for an alternative mandamus, is unanimously refused.