175 Ga. 232 | Ga. | 1932
This is an application for the grant of the writ of certiorari to review the decision and judgment of the Court of Appeals in affirming the judgment of the superior court of McDuffie County in a criminal case in which Holliman was convicted of a felony of stealing a bale of cotton. More than a year ago the case was considered by this court, and a majority of the court agreed that the certiorari should be denied. The writer was of the opinion that the writ should be granted, and held up the case and took the record and briefs for the purpose of reducing to writing the reasons for his dissent with a view that the same should be published in the reports of the court. The writer laid the papers aside, and, in the pressure of other business which under the law could not be delayed without an affirmance resulting as a matter of operation of law, he mislaid the papers in this case. For all delay in the rendition of the judgment the writer assumes full responsibility. In the administration of the law, I am of the opinion that it is no wrong to delay an unjust judgment, even if I be powerless to prevent it. Several months ago, after the legislature had passed the act of 1931 (Ga. L. 1931, p. 163), in which it was declared that all applications for certiorari which were not decided within ninety days should be considered as having been granted, this petition for certiorari was again before the court, all the Justices being present, and the question arose whether under the rule prescribed by the General Assembly the certiorari in this case was now granted as a matter of law. The court was unanimously of the opinion that the legislature exceeded its power in attempting to prescribe a rule dominative of the judgment of this court upon the grant and refusal of certioraries, and the other members of the court requested the writer to prepare the opinion of the court upon this subject. The court, in at least one instance, acted upon the unanimous decision just referred to. The majority of the court, however, at the same time adhered to its previous view in denying the certiorari in this ease. . ;
There can be no question that it is the duty of the court to have
The note of the judge on the second special ground of the motion is as follows: “The jury had not been stricken and empaneled when the motion for a continuance was made, and when the admission was made by the solicitor-general as to the time the truck stayed in the yard, movant’s counsel had not offered the admission in evidence, nor requested its admission when he undertook to comment on it in his argument.” I can not see how this note is applicable to the facts of the ease. Naturally, it would be assumed that the jury had not been empaneled or stricken when the motion for a continuance was made. Ordinarily, especially in a felony case, where from 48 names the jury would be selected after putting them upon their voir dire, courts do not have the jury stricken or empaneled until they have ascertained whether the case is ready for trial. The court stated in his note: “When the admission was made by the solicitor-general as to the time the truck stayed in the yard, movant’s counsel had not offered the admission in evidence.” This would seem to be true unquestionably, in view of the fact that at the time the admission was made by the solicitor-general the trial had not begun. No jury had been stricken or empaneled. I know of no form of evidence more respected than that denominated as solemn admissions in judicio, regardless of the failure of the court to furnish the defendant with a copy of the admission as required by law other than in meaningless hieroglyphics. The representative of the State, in the hearing of the court, when it was in session considering the continuance of this case, heard the admission. It was very simple. The admission was that the defendant’s truck, in which he is charged to have moved the cotton, was on the night the cotton was stolen in a different county from that of the theft, and that it stayed there virtually all night. The importance of this testimony is so apparent that I think, upon the doctrines controlling admissions of parties in open court, it is rendered admissible for all purposes. This rule of law is planted upon a higher plane than the mere directory provisions of the Penal
A careful reading of the record convinces me that the court erred in admitting the testimony of the witness that he “later found out that that was a bale of cotton left there by Mr. Holliman. I found out it went there in his name. I got that information from Mr. Cook.” In view of the evidence that this was information which Mr. Cook got by inquiry, and the witness in making his statement plainly states that all he knew about it he got from Mr. Cook, the objection that it was hearsay is absolutely sustained; and the testimony in the ease being altogether circumstantial and very weak, the error in the admission of this testimony was not only extremely prejudicial, but altogether unlawful. In the state of the record there is extremely grave doubt as to' the sufficiency of the - circumstances adduced to connect the defendant with the crime, or to show any larcenous intention on his part; it rather appearing that Mr. Holliman, as a truckman, made a mistake in getting a bale of' cotton which he thought belonged to Cook, for whom he was hauling, which belonged to some one else, but which was deposited in the warehouse in Cook’s name. After a careful consideration of the alleged newly discovered .evidence, I have no doubt that it would more than probably produce a different result upon another investigation. For that reason, I think the Court of Appeals erred in its second ruling.
Despite the opinion of the writer as to the merits of this application for certiorari, we all agree that “An act to regulate the practice upon application for the writ of certiorari before the Supreme Court of the State of Georgia to the Court of Appeals of the State of Georgia; to provide for the decision by the court upon such application as to whether the same shall be granted or refused; to provide for the time within which the court shall pass upon such application, and the effect of the failure of the court to pass upon such application within the period required by this act” (Ga. L. 1931, p. 163), is unconstitutional and void. Section 1 of the act is a mandatory requirement that the Supreme Court “shall” either grant or refuse all applications for certiorari to the judgment of the Court of Appeals within ninety days; and the second section provides that if the court fails within ninety days to refuse