19 S.E.2d 746 | Ga. Ct. App. | 1942
1. A trial and conviction of a policeman, pursuant to a city ordinance, on charges of "conduct unbecoming an officer of the police department of the City of Atlanta and with violation of the rule of the police department in the particulars set forth," etc., is a judicial proceeding from the final judgment in which the writ of certiorari will lie.
2. An application for the writ of certiorari is reviewable notwithstanding it fails to set forth a copy of the ordinance pursuant to which the charges were made, or the substance thereof, or to deny its existence, where the charges are set forth with specification. It may be assumed that the act or acts embraced therein have been made the subject-matter of a valid ordinance. *86
3. Where the participation by the attorney for the city in such trial is prohibited by the City Code unless requested by the commission trying the defendant, and where the record does not show that such request was not made, and no objection was made at the time to the participation, the assignment of error on the ground of such participation is without merit.
4. It is the general rule that the manner in which an accused is brought before a court or commission trying him does not impair its jurisdiction to try him.
5. No proper assignment of error is presented where the city's attorney and others (not constituting any part of the commission trying the accused), after the case had been submitted to the commission in executive session for deliberation and judgment, remained present, and no timely objection was made to such alleged illegal presence.
6. Where proper objections are made to the admission of illegal testimony, and the tribunal makes no ruling, the failure to rule is equivalent to overruling the objections; but under the facts of this case, where the trial was before a quasi-judicial tribunal acting in an administrative capacity without a jury, and there was sufficient legal evidence to sustain the finding, the judgment will not be reversed because of the admission of such illegal testimony.
The defendant, a policeman, was charged, as follows: "You are hereby charged with conduct unbecoming an officer of the police department of the City of Atlanta and with violation of the rule of said department in the particulars set forth in the affidavits hereto attached and marked `Exhibit A.' You are hereby notified to be and appear before the police headquarters, at 7:30 o'clock, p. m., on the 30th day of January, 1941, to answer said charges. This the 15th day of January, 1941. M. A. Hornsby, chief of police." Exhibit A is as follows: "I, Janelle Neel, make this statement of my own free will and accord: `Saturday night, January 4th, 1941, about 11:30 p. m. a boy by the name of Jimmie, *87 that last name I do not remember, came into the Francis Coffee Shop where I work and asked me for a date which I gave him then he said that he had a boy friend, and wanted me to get a date for this friend. I told him that I had a roommate and might be able to get her. Jimmie and I got into the automobile and drove to Brown's Buffet, where the girl friend works. She accepted the date and Jimmie then said that we would go and see his boy friend and make arrangements for him to go. About 12:00 midnight Jimmie came back; me and my girl friend named Florine Smith got into the car and drove to police station and picked up Lieutenant C. L. Heath. Lt. Heath got into the car and told Jimmie to drive out to his house on Cooper Street and he would get some whisky, and we drove out on Cooper Street where Lt. Heath got out of the car and went into a two-story house, going upstairs and came back with a quart of Seagrams 5 Crown Whisky. We then drove out to LaBlanc's on Ponce de Leon, where all of us took a drink from this bottle. We then left there and went out some highway to a road house; what highway I do not know. We parked there, a man come out of the road house, and one of the boys stated to the man that they wanted to get a double cabin, and I, Janelle, told them that they were crazy, that I was not going to a cabin. I got out of the car and they told me to get back into the car and they would carry me home. We all got into the car and had been riding about three minutes and I heard a lick pass. I looked back and saw my roommate crying. I told Lt. Heath that he could not do that, that the girl had not done anything to him, and at that time he struck me. We rode down the road a short distance and Jimmie stopped the car and said, `Let them get out and walk.' I got out of the car and Miss Smith started to get out, and Jimmie said [to] get back in and they would carry us home. After Lt. Heath had struck us both, he told Miss Smith that if she reported this that he would run her out of town; for her to take it and like it. When he struck me in the mouth, it caused a tooth to abscess and I had to go to a dentist. He also blacked my eye and the eye of Miss Smith. They then drove us back to 95 Merritts Avenue where we live, and we went upstairs. Lt. Heath was in full uniform.' Signed: Janelle Neel." The second exhibit A was to the same effect. The police commission, including the mayor, tried the defendant, found him guilty of the charges, and dismissed him from the police force. *88
The record presents the following questions: (1) Would a certiorari lie? (2) Was it necessary to set out in the petition the ordinance or the substance of it? (3) Did the presence of an assistant attorney for the city, who conducted the prosecution before the commission, invalidate the proceedings by virtue of an ordinance providing that neither the city attorney nor his assistant shall be competent to engage in such a proceeding unless instructed so to do by the mayor and general council? (4) Was the arraignment and trial of the defendant nugatory because a member of the commission received the report of misconduct of the defendant and instructed a police officer to investigate the same, and such instructed police officer did so investigate and did obtain the affidavits on which the charges were based, on the ground that such member of the commission usurped the duties and powers of the chief of police in instructing the police officer to make such investigation? (5) Should the judgment be reversed on the ground that the police commission, after the evidence closed, went into executive session, excluding defendant and his attorney and retaining the city attorney and other persons in the session? (6) Was it error requiring a reversal for the commission to admit illegal testimony?
1. The record presents a proceeding of a judicial nature. It is, we think, well settled generally and particularly in Georgia that a proceeding in the nature of a judicial one is always subject to review by certiorari. We have examined at length the constitutional provision contained in the Code, § 2-3205, and the decisions on this question. We are certain that the proceedings in question were reviewable by the writ of certiorari, under the provision of the charter of the City of Atlanta; see Ga. L. 1905, pp. 613, 616, and the allegations of the petition. It is not deemed essential to discuss in detail the many decisions sustaining this view. We cite a number of decisions which we think are controlling: Mayor c. of Macon v. Shaw,
2. The city contends that the petition for the writ of certiorari was fatally defective for it failed to bring up the ordinance or specification of the rules for the violation of which the defendant was tried. This contention is based on the well-recognized principle that the superior court is without authority to take judicial notice of municipal ordinances, and that such ordinances must be specially pleaded. To support this position the city cites Hill v. Atlanta,
3. This brings us to the proposition in which the defendant complains that an assistant city attorney appeared at his trial and took part in questioning the witnesses for both parties, which participation the defendant claims was prohibited by a section of the City Code, unless the attorney had been instructed to do so by the mayor and general council. It nowhere appears in the petition that the mayor and general council did not instruct the assistant attorney to participate in the proceedings against the defendant. There was no timely objection made before conviction. There is no merit in this contention.
4. The defendant also contends that a member of the police commission received the complaint against him from one of the alleged victims, and directed and instructed a police officer to make the investigation; that the officer, acting under the instructions of the commissioner, made the investigation and was instrumental in procuring the evidence. He contends that the commissioner usurped the duty and authority of the chief of police in violation of an ordinance which prohibits such conduct on the part of a commissioner. It appears from the record that the chief of police preferred and approved the charges in writing on which the accused was tried and convicted. "It is the general rule that the manner in which an accused is brought before a court does not impair its jurisdiction to try him." Joiner v.State,
5. The defendant complains that after the case was closed as to evidence and argument the commission went into executive session, excluding the defendant and his attorney, while retaining the city attorney and others. It does not appear that the defendant registered any protest or objection before the commission at the time he was excluded and the others were permitted to remain, and before the findings of the commission were published; and it does not appear that the defendant and his counsel had no knowledge of such conduct before the findings were published. The law does not permit the defendant to take his chances on irregularities of which he has knowledge, without protest, and after conviction urge them as harmful. This ground is without merit.
6. The defendant complains that he objected to the admission of certain evidence. This evidence was to the effect that numerous approaches and threats were made to the alleged victims who made the affidavits, which were the basis of the charges. These threats were testified to have been made while the case was pending and before the trial. They were not made in the presence of the defendant. There was no evidence at all to connect the defendant with such conduct. The witnesses who testified to such were unable to identify any of the parties engaged in such wrongdoing. The defendant entered timely and lawful objections to the introduction of such testimony. The objections were ignored by the trial body. Some of the members of the committee participated in the questioning which brought out the incompetent testimony. The defendant made a motion to exclude the testimony. This motion was likewise ignored. Where proper objections, as in this case, are made to the admission of illegal testimony and the tribunal makes no ruling, the failure to rule is equivalent to overruling the objections. Lynn v. State,
As to the effect of the admission of illegal testimony, and the authority of the reviewing court to reverse a judgment of the inferior court for admission of it, a different rule is recognized in trials before quasi-judicial tribunal or court trials without a jury, and in jury trials. 5 C. J. S. 136 states: "In an equitable or other case tried by the court without a jury the appellate court considers only relevant, material, and competent evidence and disregards all other evidence, whether objected to or not."
There is a long line of decisions by our Supreme Court holding that in interlocutory hearings in equity, the admission of illegal testimony will not void the judgment. It is true that this principle seems to be based on the ground that the judgment is not final. But it must be conceded that the granting of injunctive relief and the appointment of receivers, etc., are of grave concern, yet the rule is that the judgment will not be reversed because of the admission of illegal testimony, if there be legal evidence to sustain it.
In Southern Cotton-Oil Company v. Overby,
The Supreme Court in Savannah River Terminals Co. v.Southern Railway. Co.,
The most recent pronouncement of our Supreme Court on this principle, in which the court cited approvingly SouthernCotton-Oil Co. v. Overby, supra, is in Willingham v.Willingham,
Then too, there is a long line of decisions of our Supreme Court and of this court which announce the principle that even in jury trials admission of illegal testimony will not always demand a reversal of a judgment based upon a verdict. It is true that since this principle was announced in the first volume of the Georgia Reports, Stephens v. Crawford,
A court for the correction of errors, we hold, has, in relation to this matter, as ample, if not greater, discretion than the circuit court has upon an application for a new trial. It will, to use the language of the Supreme Court of New York, look beyond the letter of the error assigned, and inquire how far that error affected the judgment of the court or the finding of the jury. 9 Cowen, 680. We have no doubt that the discretion now claimed belongs to all corrective tribunal. It is expedient, as preventing delay and cost in the administration of justice, that this court should be clothed with such power. It has exercised that discretion already. See Arrington v. Cherry,
In Hagar v. State,
Since we have determined, and so hold, that the trial in the instant case was judicial, as determined by Tibbs v. Atlanta,
supra, and that the police committee was acting more in a judicial capacity than as a fact-finding body, we must apply to them the rules which govern a trial without a jury. In this respect, in Ward v. State,
In the instant case the legal evidence for the City of Atlanta, while it may not be termed as overwhelming and sufficient to demand a finding in favor of the city, yet it was ample and abundantly sufficient to authorize the finding. The objectionable evidence pertained to an incident which happened long after the misconduct for which the officer was tried. We can not say, applying the rule most cautiously, as a matter of law, that the admission of the illegal testimony, under the facts of this case, demands a reversal. In this connection it is interesting to note the discussion that has arisen in recent years with reference to the rules of procedure applicable to administrative tribunals or bodies. Wigmore on Evidence (2d ed.), 28 says: "The . . technical view is that the jury-trial system of rules is the only safe method of investigation where liberty and property may be at stake; that the sound wisdom of caution which is the basis of that system is as valid for one tribunal as for another; and that the judicial review of administrative officers' findings would be impracticable and ineffective without using that system as a standard for checking the regularity of the proceedings. There is no need to quote representatives of this view; it preaches or lurks in almost every judicial opinion; and it echoes instantly in the breast of the orthodox legal practitioner." And the same authority states *96 another view: "The popular view, it may be called — is that the jury-trial rules have had their day in our system of justice; that their obstructive and irrational technicalities have made the system nauseous and futile in its native habitat; and that to transplant it to new fields would be an error amounting to a folly." Dickinson on Administrative Justice and Supremacy of Law, 35, says: "Administrative tribunals are not bound by the procedural safeguards which mold the outcome of an action at law; more specifically, they are, in the first place, not bound by the common-law rules of evidence." Henderson on Federal Trade Commission, 64, with respect to the Federal Trade Commission, has this to say: "So far as I have been able to find, the commission itself has never refused to give effect to testimony on the ground that it is technically incompetent; nor have questions of the law of evidence played any part in the cases on appeal. As has been pointed out, the rules of evidence grew out of the practical exigencies of jury trials and are probably superfluous in administrative proceedings."
We find in Stephens on Administrative Tribunal and the Rules of Evidence, 5, this statement: "The subject is of interest from the standpoint of the science of law. It is important to both society and the individual that the orders of all tribunals have a foundation in fact. If the orthodox lawyer's view that only through the use of the rules of evidence can we dependably find the facts as correct, then following the popular view and abandoning the use of these safeguards to the truth is perhaps greater individualization of the administration of justice than even the most spirited protagonists of commissions would endorse. For already the administrative official has been freed from the restraints of the more rigid rules of substantive law and left much to his own discretion in the application of wide standards of reasonableness and adequacy and fairness. But now he is, by the realization or abandonment of the rules of evidence, to be `heart whole and fancy free' as to the facts. The `hunch' as the basis of decision will indeed have been canonized. But if the popular view is correct and the rules of evidence are but `obstructive and irrational technicalities' then we are well rid of them. Perhaps the truth lies part way between."
Along the same line the United States Supreme Court in Interstate Commerce Commission v. Baird,
We call attention also to United States v. Abilene c. R. Co.,
While these authorities, other than those of our own State, are cited here only as historical and as persuasive authority, as such they do, we think, sustain the construction which we have placed on the decisions of our own State and illustrate the applicability of that construction to the facts in the instant case.
For these reasons, on rehearing, we hold that the judgment of the lower court should be affirmed. The original opinion of this court rendered on January 14, 1942, is hereby withdrawn and vacated, and this decision is substituted in lieu thereof and made the judgment of this court.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. *98