164 Ga. 204 | Ga. | 1927
Lead Opinion
On June 17, 1925, Howell was convicted of murder, without recommendation, and was sentenced to be electrocuted on August 6, 1925. He made a motion for a new trial, which was overruled. He thereupon brought his case to this court, to review the judgment overruling his motion for a new trial. The judgment of the trial court was affirmed by this court. Howell v. State, 162 Ga. 14 (134 S. E. 59).
On September 15, 1926, Hon. H. A. Mathews, judge of Houston superior court, passed an order fixing a new date for his execution on October 5, 1926. Howell alleges that this order was not signed in term time, but in vacation, when Houston superior court was not in session, and in his absence when confined in the jail of Bibb County. During the November term, 1926, of Houston superior court, being the first term of said court to be held after the order of September 15, 1926, Howell presented to said judge his motion to set aside the sentence imposed upon him, on several grounds. Additional grounds were added to this motion by two amendments.
On December 4, 1926, sentence was again imposed upon the defendant, when he was present. To the imposition of this sentence he objected and moved to set it aside upon the same grounds and for the same reasons as set up and urged in his said motion as amended.' His counsel in their briefs state that in view of this new sentence imposed upon the defendant, many of the questions raised in the original motion to set aside “have been eliminated, and the main questions for” consideration by this court “are those raised in the two amendments to the original motion.” These grounds are substantially: (a) that, said last sentence is null and void, for the reason that it directs that the defendant be electrocuted by the warden of the penitentiary, who shall serve as executioner, when under the law, and as a matter of fact, there is no such person or official, as the warden of the penitentiary; (b) that said sentence is null and void, in that it condemns defendant to death at the hands of an alleged person or official, when there is no such person or official, and it is therefore incapable of enforcement; and violates art. 1, see. 1, par. 3 of the constitution of this
On the hearing of the defendant's objections to the imposition of said last sentence, it was agreed that the following resolutions had been adopted by the Prison Commission: “ Office of the Prison Commission. May 10th, 1922. The Prison Commission having under advisement the filling of vacancy at State Farm, caused by the death of Hon. J. Pope Brown, Superintendent and Warden, it is resolved: (1) That the resolution of September 28th, 1921, recorded on page 153, be rescinded, and that the offices of superintendent and warden be separated. (2) That a superintendent shall be elected for a term ending January 1st, 1923, and annually thereafter for a term of one year. (3) That the deputy wardens of the several departments shall be raised to the position of warden, with all the duties imposed by law and rules of the department. (4) The superintendent shall have charge of the management of the faTm, 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, recorded on page 153 of our minutes, except those specially under charge of the warden, such as custody of prisoners and their discipline. (5) The salaries of the superintendent and wardens shall be $100.00 per month. (6) B. H. Dunaway, of Lincoln County, was elected Superintendent. (7) J. E. Smith was elected warden of the male camp. (8) E. N. Etheridge was elected warden of female camp. (9) W. L. Proctor was elected warden of the hospital camp.” “Office of the Prison Commission. Atlanta, Ga., Dee. 20th, 1922. Whereas B. N. Etheridge, Warden of the Male Camp at State Farm, has resigned effective January 1st, 1923, it is ordered that the office of Warden of said camp be filled by B. H. Dunaway, the Superintendent of the Farm, in addition to his duties as Superintendent, and that his salary as Superin
We deal first with the contention that section 4 of the electrocution act of August 16, 1924, contains matter different from what is expressed in the title of that act, and that for this reason this section is unconstitutional, because it violates art.- 3, sec. 7, par. 8, of the constitution of this State, which provides that “No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof.” The fourth section of this act 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.” Ga. Laws 1924, p. 195. The title of the act provides “for the execution of persons sentenced to the punishment of death, by electrocution,” for “a permanent death chamber, . . appliances and apparatus necessary for the proper execution of felons by electrocution,” for the appropriation of moneys necessary to defray the expenses thereof; to “authorize the trial judge to fix a new date for the execution of the sentence where the same is not executed on the date originally named; and for other purposes.” Clearly these provisions of this section fall within the title of this act. Under the title of an act providing for the execution of-persons sentenced to the punishment of death by electrocution, the body thereof can provide for the person - who shall execute the condemned convict, for persons to assist the executioner, for the presence of physicians to determine when death ensues, for an electrician-to operate the electric appliances necessary for electrocution, for a suitable guard, and for the presence, if the condemned person so desires, of his counsel, his relatives, and such clergymen and friends as he may desire. Besides, the title of the act contains the words “and for other purposes,” and
The defendant moved to set aside the sentence imposed upon him, providing for his execution by electrocution, upon the ground that it provides that he is to be executed “by the warden of the State Penitentiary,” and “within the walls of the . , State Penitentiary at Milledgeville, Georgia,” when in fact there is no such person or official as “the warden of the State Pehitentiary,” and when in fact there is no State Penitentiary at Milledgeville, Georgia, and that in consequence of these facts his sentence is a nullity and his electrocution under this sentence would deprive him of his life without due process of law, and in violation of the due-process clauses of the State and Federal constitutions. We shall deal alone with the premises from which the defendant draws the conclusion that his execution under this sentence would deprive him of his life in violation of the above provisions of the State and Federal constitutions. If these premises are unsound, it necessarily follows that the conclusion drawn therefrom is likewise unsound. The first section of the act of August 16, 1924, provides that all persons convicted, after its passage, of a capital crime, and sentenced to die, “shall suffer such punishment by electrocution within the walls of the State Penitentiary, at Milledgeville, Georgia, or wherever the State Penitentiary may be located, instead of hanging.” The defendant contends that there is no State Penitentiary at Milledgeville, Georgia, or elsewhere in this State. Is this contention sound? In answering this question it may be well to determine the meaning of the term “penitentiary.” What is a penitentiary? A penitentiary is a prison or place of punishment, especially one in which convicts are confined at hard labor for punishment and reformation. Funk & Wagnalls’ New Standard Dictionary of the English Language; Webster’s New International Dictionary. It is an English word in common use, and.means a place of punishment in which convicts sentenced to confinement and hard labor are confined by au
Under the sentence imposed upon the defendant, he was to be executed within the walls of the penitentiary at Milledgeville, this State. This sentence was imposed in strict conformity to the first section of the act of August 16, 1924. This brings us to- decide whether the State has a penitentiary at Milledgeville. The word “at,” as used in this statute, does not mean within the corporate limits of the City of Milledgeville. As used in this statute, it is the equivalent of the word “near.” In Minter v. State, 104 Ga. 743 (30 S. E. 989), it was held that an indictment which charged the defendant with disturbing a religious congregation assembled for worship “at” a named church was supported by proof that the-congregation was disturbed at a bush-arbor near such church. In Bice v. State, 109 Ga. 117 (34 S. E. 202), it was held that our penal statute which prohibits carrying to a church, or other place of divine worship, any intoxicating liquor, was violated when one attending such exercises at a named church had in his buggy such intoxicating liquor, although the buggy was left standing one or two hundred yards from the church building during the exercises. In Massey v. Columbus, 9 Ga. App. 9, 13 (70 S. E. 263), the Court of Appeals approved a ruling of Judge Gilbert, now an Associate Justice of this court, made by him while a judge of Muscogee superior court, that the word “near” is equivalent to the word “at.” The word “at,” when used in reference to place, often means “in,” or “within;” but its primary idea is “nearness”
The Prison Commission is required to use all net profits arising from the State farm in establishing a central penitentiary for the working of such vicious convicts as that body may select. Penal Code, § 1214. In the stipulation of facts, appearing in the bill of exceptions, it is agreed that no central penitentiary has been established at or near Milledgeville, or elsewhere in the State of Georgia. So, when the legislature used the term penitentiary in the first section of this act, it can not be held that it had any reference whatever to any central penitentiary at Milledgeville. We presume, and rightfully presume, in favor of legislative sagacity, that the members of the legislature who passed this act knew that there was no central penitentiary at or near Milledgeville, and had no such institution in mind when it enacted this statute. It would be attributing to the legislature an absurdity to hold that they used the word “penitentiary,” in the first section of this act, in the sense of “central penitentiary,” when no such institution was in existence. By the act creating the Prison Commission, that body was authorized to purchase not less than 2000 nor more than 5000 acres of land, in one body or in several bodies located in different parts of the State; and when purchased they were re-, quired to erect thereon suitable buildings, stockades, and appurtenances for the safe-keeping of the following classes of convicts: females, boys under fifteen years of age, and such aged, infirm, or diseased convicts as in the’ judgment of that body should not be hired out. Acts 1907, p. 70; Penal Code, § 1203. Prom the stipulation of facts set out in the bill of exceptions it appears “that the Prison Commission of Georgia, has established a State Prison Farm in Baldwin County, Georgia, near Milledgeville, where the same has been located for several years, and has installed in the main building at said farm an electric chair to be used in all executions of prisoners in this State.” It further appears that the present superintendent and warden of this State Prison Farm have been acting as such since January 1, 1923. So, when the
It is further urged that the fourth section of the act prescribes “That there shall be present at such execution the warden of the penitentiary, who shall serve as such executioner;” that in point of fact there was no warden of the penitentiary; and that in consequence of these facts the sentence is unenforceable, for which reason this section of the act, and the sentence imposed upon the defendant in pursuance thereof, are both null and void. Is this contention sound? We think it unsound and untenable. We have seen that there was a State Penitentiary near Milledgeville, for the confinement and punishment of all women convicts, for boys under fifteen years of age, and for old, infirm, or diseased male convicts. The Prison Commission is required to provide for the keeping of the male and female prisoners separate and apart, and for the keeping, separate and apart from the other inmates of the prison, of all minors under the age of fifteen years. So there must be codepartments in the State Prison at Milledgeville. To effectuate this purpose, that body, on May 20, 1922, elected separate wardens for the male, female, and hospital camps. At the same time they elected a superintendent of the State Prison Farm. The warden elected for the male camp resigned, his resignation to take effect on January 1, 1923; and on December 20, 1922, the Prison Commission passed a resolution providing that the office of warden of the male camp should be filled by the superintendent of the farm. From the stipulation of facts it appears that B. H. Dun-away has filled the office of warden of the male camp at the State Prison Farm, under the above resolution, continuously since Jan-
It is likewise contended that sections 1 and 4 of this statute
It follows from the rulings above made that the defendant is not being deprived of his life without due process of law, and in violation of the due-process clauses oE the State and Federal constitutions.
In view of what is said above, we affirm the judgment of the court below refusing to set aside the sentence imposed upon the defendant. Judgment affirmed.
Concurrence Opinion
concurring specially. I concur in all that is said by my learned associate who speaks for the court. In addition, I deem the following views to be appropriate. Where a person is illegally restrained of his liberty, the remedy is habeas corpus. Yet the great weight of'State and Federal authority, including the United States Supreme Court, is that these questions can not be raised even by habeas corpus. In Ex parte Ward, 173 U. S. 452 (19 Sup. Ct. 459, 43 L. ed. 765), it was unanimously decided that a person convicted at a trial presided over by a judge without title to hold office could not be discharged, the judge’s power hot being open to collateral attack. This case was followed in Dones v. Urrutia, Warden of the Penitentiary of Porto Rico, 202 U. S. 614 (26 Sup. Ct. 767, 50 L. ed. 1172), and in many other State and Federal cases. Morford v. Oklahoma, 54 L. R. A. 513 (10 Okla. 741, 63 Pac. 958); Minnesota v. Bailey, 19 L. R. A. (N. S.) 775 (106 Minn. 138, 118 N. W. 676, 130 Am. St.RE. 592, 16 Ann. Cas. 338). In these eases -it was contended that the presiding judge did not in law hold the office. In the Morford case it was said that “the acts of such officers are held to be valid because the public good requires it. The principle wrongs no one. A different rule would be a source of serious and lasting evils.” It would seem that if the acts of the presiding judge could not be collaterally called in question by habeas corpus, certainly those of a warden could not be collaterally attacked in equity.
The Dones case went to the United States Supreme Court from the Supreme Court of Porto Eico. Dones had been convicted of a felony and sentenced to death, lie sought release from the custody of the warden, on the ground that the judgment was illegal because the trial court was not legally organized, and because the judge who rendered the judgment was not legally authorized to
Concurrence Opinion
specially concurring. I agree that the judgment of the learned trial judge should be affirmed, but I do not concur in accepting some of the rulings contained in the syllabus of the court as. grounds upon which the affirmance should be predicated. In my view of the law, “the warden of the penitentiary,” who “shall be present” at an execution by means of electrocution, can not properly be construed to mean “any warden of said prison and embraces the superintendent of said prison.” However, I do not think, even if the trial judge based his refusal to interfere with the execution of Howell upon this ground, that this alone should require a reversal of his judgment; for I am of the opinion, as held by the Supreme Court of the United States in passing upon a similar question upon petition for habeas corpus, that the convict is not in a position to object to the disqualification of the judge who imposed sentence upon him; so for the same reason the plaintiff in error in this case can not complain that a de facto executioner is to impose upon him the death penalty. Section 1315 of the Penal Code declares that superintendents “shall be required to give their entire time and attention to the duties of their office.” It is therefore important to consider what are the
