174 Ga. 432 | Ga. | 1932
Lead Opinion
This is the fourth appearance of this case in this court. King v. State, 163 Ga. 313, 166 Ga. 10 (136 S. E. 154); 169 Ga. 15 (149 S. E. 650). When this case was here upon its first and second appearances, this court reversed the judgments of the trial court refusing the defendant a new trial upon his motions therefor; and new trials were granted to him. On a third appearance of the case in this court the defendant’s writ of error, in which he excepted to the judgment of the trial court overruling his motion for new trial, was dismissed for want of jurisdiction in
The extraordinary motion for new trial contains ten grounds. The first of these grounds is based upon newly discovered evidence of E. E. Logue and his wife. In the second, third, fourth, and fifth grounds thereof the defendant insists that he was not legally tried and convicted. This contention is based upon the ground that a majority of this court, when it first had under consideration the defendant’s writ of error dealt with in 169 Ga. 15, decided that certain grounds of his last ordinary motion for new trial were meritorious, and that this court would have granted him a new trial but for the fact that this opinion was withdrawn and the writ of error dismissed for the reason that this court was without jurisdiction to entertain it, due to the fact that the bill of exceptions was not sued out within the time required by law, which was necessary to give this court jurisdiction of his case. In this situation the defendant deduces the conclusion that he has been sen
In the sixth ground of his extraordinary motion the defendant insists that the verdict and judgment against him are illegal, for the reason that he will suffer the punishment of death by electrocution, in violation of art. 1, sec. 1, par. 2, of the constitution of this State, which declares that “Protection to person and property is the paramount duty of government, and shall be impartial and complete.” In the seventh ground the defendant alleges that the verdict and judgment against him are illegal, because they violate art. 1, sec. 1, par. 17, of the constitution of this State, which declares that “There shall be within the State of Georgia neither slavery nor involuntary servitude save as a punishment for crime after a legal conviction thereof.” In the eighth ground the defendant insists that he has been sentenced under said purported verdict and judgment to suffer death, and will be executed without a trial by jury, in violation of par. 1, of sec. 18 of art. 6 of the constitution of this State, which provides that “The right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate,” for the reason that this court had adjudicated that a new trial was demanded, which is tantamount to an adjudication that there had been no trial. In the ninth ground the defendant contends that the verdict rendered against him and the sentence imposed upon him are illegal, for the reason that they violate the sixth amendment to the constitution-of the United States, which provides that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” In the tenth ground the defendant contends that the verdict rendered against him and the sentence imposed upon him are illegal, for the reason that they violate the fourteenth amendment to the constitution of the United States, which declares that no State shall deprive any person of life, liberty, or property without due process of law.
By an amendment to his extraordinary motion the defendant
The testimony of Towles is to the effect that lie was personally acquainted with Johnnie Bell and the defendant, having known each of them for several years prior to the homicide; that he was also familiar with the land and the still site thereon where the deceased was killed, said land being the property of Johnnie Bell’s mother; that several days prior to the homicide he was passing by said site, and saw apparatus set up there which was the same or similar to the apparatus that he later heard described by L. J. McMichael and W. T. Burke as the stilling apparatus found at the site on the night of the homicide; that at the same time and on the same occasion he saw several men working around said site; and that on said occasion Johnnie Bell was present and participating in the enterprise, but the defendant was not present.
The extraordinary motions for new trial contemplated by our statute are such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character. Malone v. Hopkins, 49 Ga. 221; Cox v. Hillyer, 65 Ga. 57; Harris v. Roan, 119 Ga. 379 (46 S. E. 433); Wheeler v. State, 149 Ga. 473 (100 S. E. 568); Harris v. State, 150 Ga. 680 (104 S. E. 902); Coggeshall v. Park, 162 Ga. 78 (132 S. E. 632), A new trial may be granted on an extraordinary motion based upon the ground of improper communication with the jury. Harris v. State, supra. Relationship of a juror to the prosecutor within the prohibited degree has been held to be a good ground for
Where a defendant is convicted of murder and moves for a new trial, and his motion is overruled by the trial judge, and he excepts to that judgment and brings the same to this court for review, the judgment of this court affirming the judgment of the lower court denying a new trial, whether by decision on the merits or by dismissal of the writ of error upon the ground that this court is without jurisdiction to pass upon the judgment of the lower court, due to the neglect of the defendant to bring his ease to this court within the time required by láw to give this court jurisdiction, an extraordinary motion for new trial will not lie to review any grounds of the motion for new trial, although some of such grounds are meritorious and would have resulted in the grant of a new trial by this court if the case had been properly brought in time to have conferred jurisdiction upon this court. The dismissal of the writ of error in this court operated as an affirmance of the judgment of the court below. Rice v. Carey, 4 Ga. 558; Price v. Lathrop, 66 Ga. 545. In these circumstances an extraordinary motion for new trial is not a remedy to correct errors to which the defendant excepted in his regular motion for new trial which had been overruled by the trial judge, and where he had excepted to the judgment of the trial judge overruling his motion, in a writ of error brought to this court, which was dismissed because of his neglect to file the bill of exceptions within the time prescribed by law, which neglect deprived this court of jurisdiction to pass upon the merits of the grounds of his overruled motion for new trial. His negligence in filing his bill of exceptions in time does not furnish any ground for the filing of an extraordinary motion to review the assignments of error embraced in his ordinary motion. Applying this principle, the court did not err in overruling the second, third, fourth, and fifth grounds of the extraordinary motion for new trial.
In the sixth, seventh, eighth, ninth, and tenth'grounds of his extraordinary motion the defendant attacks the verdict and sentence upon certain constitutional grounds which are fully set out above. These attacks are without merit. The court did not err in overruling these grounds. None of the provisions of the
The defendant further insists that his conviction and? sentence violate due process of law, and violate the fourteenth amendment to the constitution of the United States. This amendment is applicable to criminal trials in the State courts, and inhibits the violation of due process in cases where defendants are tried in State courts for violations of State penal statutes. Under the facts of this case the defendant was not denied due process. Due process of law means the administration of general laws according to established rules, not violative of the fundamental principles of private right, by a competent tribunal having jurisdiction of the subject-matter, and proceeding upon notice and hearing. Where the legislature of this State has enacted laws for the government of its courts while exercising their respective jurisdictions, which, if followed, will furnish the parties the necessary protection of life, liberty, and property, it has complied with its duty to furnish to a party charged with a crime due process of law. A State can not be deemed guilty of violating the due-process clause of the Federal constitution, simply because one of its courts, while acting within its jurisdiction, has made erroneous rulings or decisions. In such a case a defendant is left to the appropriate remedy for the correction of errors in judicial proceedings; and if the defendant undertakes to correct errors committed in his trial by the appropriate remedy-of a motion for new trial, which is overruled, and if he then undertakes to review the judgment of the trial court overruling his motion for new trial by writ of error brought to
The first ground of the extraordinary motion for new trial and the amendment thereto are based upon newly discovered evidence. These are proper grounds for an extraordinary motion for new trial; and present questions for decision by this court. The first ground seeks the grant of a new trial upon the existence of newly discovered evidence, which E. E. Logue and his wife would give if a new trial were granted to the defendant, and which he would introduce on a new trial. The judge declined to entertain the extraordinary motion for new trial, upon the ground that it was made and presented to him in vacation. The defendant applied to this court for mandamus to compel the judge to entertain and pass upon the motion, this court finding against the contention of the judge that it was presented to him in vacation. It was insisted by counsel for the State that the mandamus should be refused upon the ground that the extraordinary motion did not make a case for the grant of a new trial upon the ground of newly discovered evidence, or upon any other ground; and that for this reason the grant of a mandamus would be vain and useless. In overruling this contention of the State this coirrt made the statement that it was “of the opinion that the newly discovered evidence would authorize the grant of a new trial.” 172 Ga. 508. This was not a ruling that a new trial should be granted. It was a mere holding that this newly discovered evidence, standing alone, would authorize the grant of a new trial, if the State failed to show some reason why it should not have this effect.
In reply to this ground the State introduced evidence showing that both of these witnesses had been subpoenaed for the defendant, that they appeared at court as witnesses for him at his first trial in 1926, that they were again jsubpeextaed as witnesses for the de
But it may be said that Cleveland testified to facts similar to those testified to by Logue and his wife; and that for this reason the extraordinary motion for new trial should be granted. This contention is not well taken. An extraordinary motion for new trial on the ground of newly discovered evidence is properly refused if it appears that two of the witnesses whose evidence is alleged to have been newly discovered were subpoenaed by the defendant and in attendance, and that another witness would prove the same facts as they. In such circumstances due diligence is not shown in discovering the evidence of the third witness. McAfee v. State, supra. The ground of the extraordinary motion for new trial based upon the newly discovered evidence of the witness Towles does not authorize the grant of a new trial, the facts deposed to by him in his affidavit being immaterial and irrelevant.
The other grounds of attack upo'n the judgment overruling the extraordinary motion for new trial are without merit.
Judgment affirmed.
Dissenting Opinion
dissenting. At the last appearance of this case (172 Ga. 508), and after the court had issued a mandamus nisi (requiring the honorable judge of the superior court to show cause why he should not certify a bill of exceptions), the writer, concurring specially, concluded by saying “Now, merely as a means of speeding the adjudication in this long-protracted litigation, I agree to an order which in my opinion is not in harmony with the prior proceedings as they appear of record in this court.” I was then and still am of the opinion that no order or judgment could be granted by the court upon an application for mandamus to compel the judge to certify a bill of exceptions, except, after consideration of the answer of the judge, to dismiss the application for mandamus, or to enter a mandamus absolute and require the judge to certify the bill of exceptions. In this case the court made the mandamus absolute. Thereupon the judge of the superior court certified the bill of exceptions, in obedience to the order of this court. I do not agree to the statement in the judgment per curiam that “In this stage of the case the only thing to be considered and decided by this court is whether the judge erred in declining to entertain the extraordinary motion for new trial.” The declining to entertain the extraordinary motion for a new trial was only a short cut to refusing a new trial, which absolutely prevented any review of the decision of the lower court b3r the ordinary right of bill of exceptions. To remand a case with direction that a judge of the superior court pass upon the motion is not germane to. a proceeding to require the judge to certify a bill of exceptions, and thus remit the consideration of the case upon its merits to the Supreme Court. I am aware that this court has several times decided that a judge of the superior court may refuse to entertain an extraordinary motion for a new trial, if he is of the opinion that the grounds of the motion are without merit. I am. unwilling in any instance to extend the number of such cases. A ruling that the trial judge can determine for himself the merit of one who seeks to have his case reviewed, and thus decide the merits of his own judgment by refusing a review, confers upon the judge of a superior court, if this decision be final, all the powers and pre
