56 S.E.2d 183 | Ga. Ct. App. | 1949
Lead Opinion
An extraordinary motion for new trial is not favored. It stands upon a different footing from an original motion for a new trial. To a judgment overruling the latter where a bill of exceptions is presented to the trial judge, he can do only one of two things: Certify it as presented, or refer it to the movant for corrections where it does not speak the truth. In the former (an extraordinary motion for a new trial), the trial judge is vested with a broad discretion. While the extraordinary motion is a new case, the whole record, including the extraordinary motion, may be looked into to determine whether the extraordinary motion is meritorious. If from such an examination of the record, the trial judge, as a matter of law, determines that the extraordinary motion is without merit, he may decline to entertain it and is not compelled, as a matter of law, to issue a rule nisi thereon. If he so refuses, and a bill of exceptions to the judgment of the court declining to entertain such extraordinary motion is presented to the trial judge, he may refuse to certify such bill of exceptions. In such event, if the petition for mandamus nisi to require the trial judge to certify such bill of exceptions is presented to this court, this court will look to the whole record to see whether or not the trial judge erroneously refused to entertain the extraordinary motion, and to certify the bill of exceptions to the judgment refusing to entertain it. In such event, if this court should determine that the extraordinary motion is without merit, as the trial court so determined, it will not sanction or entertain the petition for writ of mandamus nisi, but will refuse to entertain it and will dismiss the petition for writ of mandamus nisi, which seeks to have this court require that the trial judge certify such bill of exceptions pertaining to the extraordinary motion.
(b) It is contended by the applicant that, since the law provides that a judge in the court below exercise discretion in passing upon an extraordinary motion for a new trial, the trial judge in the instant case committed reversible error in refusing to entertain the extraordinary motion. This contention is not sound as a matter of law. If the extraordinary motion is palpably without merit, taking into consideration the extraordinary motion together with the whole record of the case, the judge may refuse to entertain the extraordinary motion as a matter of law. In such a case, when the trial judge does so refuse, as in the instant case, and the applicant in the extraordinary motion presents such trial judge with a bill of exceptions to the ruling refusing to entertain such extraordinary motion, which bill of exceptions the trial judge refuses to certify and where, as here, a petition for the writ of mandamus nisi under the Code, § 6-910, is presented to this court to compel the judge to certify to such bill of *399
exceptions, then this court will look to the merits of the extraordinary motion and the whole record in the case to determine whether this court will issue such mandamus nisi requiring the trial judge to show cause why he should not certify such bill of exceptions. If this court should determine from the record in the extraordinary motion and the original case that the extraordinary motion is without merit, and the trial judge was correct in so determining, then this court will refuse to grant the petition of the applicant for mandamus nisi for the trial judge to show cause why he should not certify the bill of exceptions. This court will not as a matter of law be compelled first to grant the mandamus nisi. In Harris v. Roan,
(c) The gist of the extraordinary motion is that the names of Clarence H. Kight and Douglas Watson were known to the grand jury at the time the indictment was returned. Nevertheless the indictment alleged that the last two were unknown and for this reason the applicant was illegally convicted, for it the names of the corioters were known to the grand jury, the grand jury was as a matter of law required to insert their names in the indictment as corioters with the three indicted. In Leverkuhn v. United States, 297 Fed. 590 (1), the court held that, where an indictment *400
for conspiracy sufficiently informed the accused of the charge, it was not reversible error to reject evidence that the names of persons with whom the accused conspired, alleged in the indictment to be unknown to the grand jury, were known to that body. In 2 Wharton's Criminal Law (12th Ed.), p. 2199, § 1869, it is said: "It is enough, if, in addition to the defendant, there be two or more persons, known or unknown, alleged to have acted as corioters." The same authority (p. 1933, § 1558), states: "It is in the discretion of the prosecution to include only as many of the alleged coconspirators in the indictment as it may deem expedient; and the nonjoinder of any such, provided there is enough alleged on the record to constitute the offense aliunde, is not matter for exception, although the party omitted was a particeps criminis." Reverting to Leverkuhn v. United States, supra, the court held that an indictment for conspiracy to possess, sell, and transport intoxicating liquor sufficiently informed the defendant of the nature and cause of the accusation against him, though the persons with whom the accused was alleged to have conspired, alleged in the indictment to be unknown to the grand jury, were known to that body. And on page 593 the court said: "Furthermore, even if the ruling in question was erroneous, it is not a ground for reversing the judgment of conviction, as . . the error was not one which affected the substantial rights of the accused." In that decision it was held that an allegation in the indictment that names of coconspirators were unknown to the grand jury and proof that they were known to that body, is not a material variance and the court did not err in rejecting evidence that the names of the persons with whom the accused conspired were known to the grand jury at and before the return of the indictment, the court holding: "A court would not be chargeable with reversible error for rejecting offered evidence which would serve no other purpose than to give rise to an immaterial variance. 12 Corpus Juris. 627." In the instant case the alleged irregularity in the indictment in alleging that the corioters, Clarence H. Kight and Douglas Watson, were unknown to the grand jury, though allegedly their names were known to that body at the time of and before the indictment was returned, is one of form rather than of substance. See Martin v. State,
Counsel for the applicant relies strongly on the case ofMartin v. State, supra, and Ray v. State,
(d) It would seem from the record in the original case that the affidavits of the accused and his counsel are discredited by that record and from that record the facts regarding alleged newly discovered evidence were known to the accused at, before, and during the trial and before the regular motion for a new trial as amended was filed. It appears from the brief of evidence in the original case that a document identified as defendant's Exhibit number 9, page 417 of the brief of evidence, was introduced, to the effect that Clarence Kight stated that on December 13, 1946, he appeared before the Fulton County grand jury and testified that he and J. R. Childers on or about October 28, 1946, accosted the victim, Clifford Hines, and struck him twice with a blackjack. George Thomas Esq., who represented Burke, was sworn as a witness in the main trial and testified in substance that at the time Clarence Kight made the statements in Exhibit 9, supra, Homer Loomis Jr. was present. The witness Thomas testified that Clarence Kight told him certain things with reference to the defendant's Exhibit 9 and that the witness dictated the statements made by Clarence Kight to his secretary and that Clarence Kight told the witness Thomas that he would not sign it, but would testify to that on the trial. Clarence Kight requested a copy and witness Thomas gave it to him. *403 Clarence Kight testified in the main trial that he did go around to the witness Thomas' office and made certain statements in the presence of the defendant Loomis, Emory Burke, Mr. Thomas, and Mr. Thomas' secretary and that Homer Loomis Jr., the applicant, worded it and that the secretary of attorney Thomas filled it out. Kight testified that he told attorney Thomas on December 13, 1946, that he had appeared before the Fulton County grand jury and testified that he and J. R. Childers, on the date of the occasion in question, did beat and accost a Negro by the name of Clifford Hines, and that that statement was voluntarily made. It thus appears from the record in the original case that the applicant knew of the alleged newly discovered evidence as to Kight. Certainly, it is a reasonable inference that if the applicant knew it, he informed his counsel of it before the trial, or during the trial before his original amended motion for a new trial was prepared and filed.
The writer of this opinion participated in and concurred in the affirmance of the conviction of the applicant in the judgment of Loomis v. State,
"The law is clear that in such a situation, when the grand jury knows the name of one of the alleged rioters, and yet charges *404
that the accused jointly did the acts, alleged to constitute the riot, with certain named persons (not including the one so known to the grand jury) and others unknown to that body, the accused is entitled to acquittal. Nelms v. State,
Clarence Kight testified on the original trial: "I did go around to Mr. George Thomas' office, and I made certain statements in the presence of the defendant Loomis, Emory Burke, Mr. Thomas and Mr. Thomas' secretary. . . Your son (Homer Loomis Jr.) worded it, and his (Thomas') secretary filled it out. . . I admit that I said I hit the Negro. I wouldn't say that I didn't make any other statements. . . I told Mr. Thomas in his office in Atlanta that on Friday, December 13, 1946, I had appeared before the Fulton County grand jury and testified on oath that J. R. Childers and I on or about October 28, 1946, in an alley in the rear of 313 Formwalt Street did beat and accost a Negro by the name of Clifford Hines. That statement was voluntarily made." It appears that accused knew of the allegedly newly discovered evidence before the trial; and it appears that both accused and his counsel were apprised thereof during the trial.
In this connection we might quote what Chief Justice Bleckley said in a similar situation in McElmurray v. Blue,
(e) The record in this case fails to show due diligence. According to the affidavits of Kight and Watson they were participes criminis with applicant in the commission of riot charged in the indictment. One of them, Kight, was actually sworn and cross-examined at the trial. (In fact he discloses in his testimony as above stated that he took part in the riot. The other witness, Watson, was present at the trial and was sworn, although not called as a witness. The applicant was present when attorney George Thomas questioned Kight. Kight seems to have talked with them very freely before the trial. It would appear that by the exercise of diligence they could have ascertained from either Watson or Kight what they now seek to urge as newly discovered evidence in the extraordinary motion). We mention this *406 merely to complete the whole picture. It is not mentioned for the purpose of conceding that, if the grand jury knew at the time the indictment was returned that Kight and Watson were participes criminis with applicant and knew their names, but in spite of this alleged that they were unknown to the grand jury, such would require a reversal. We have dealt with this contention hereinbefore.
(f) Counsel for the applicant in his brief argues interestingly, enthusiastically, and evidently with much research, his contention that the trial judge committed reversible error in not entertaining the extraordinary motion and in refusing the grant of a rule nisi thereon, and in refusing to sign the bill of exceptions presented to him complaining of Judge Edwards' ruling in regard to the extraordinary motion. We will call attention to the authorities which he cites and which we have studied. They are numerous. We cannot analyze each of the cases cited, but we will call attention to them. It is contended that the trial judge, since only one trial had been had, was possessed with full and unfettered discretion to grant the new trial sought by the extraordinary motion and to take all preliminary steps to that end. In this connection, our attention is called to Central of Georgia Railroad v. O'Kelley,
(h) It is further contended by counsel for the applicant that the rule of law relied on by the trial judge was inapplicable to most of the alleged new evidence and could in no event be decisive of the motion insofar as it is based on such alleged newly discovered evidence. Our attention is called to Carey v.King,
Counsel for the applicant further calls our attention to his contention that his extraordinary motion shows that the misconduct of the solicitor-general would require that the mandamus nisi be granted. He cites Canons of Professional Ethics (American Bar Association), and numerous foreign decisions which we will not here mention. Suffice it to say that, as to this contention, we are wholly at variance with the argument of counsel for the applicant.
When the extraordinary motion for a new trial was filed by the applicant, the trial judge issued a rule nisi directed to the Solicitor-General of the Atlanta Judicial Circuit to show cause why the extraordinary motion should not be granted. Thus, the *410 solicitor-general was brought into the proceedings on this extraordinary motion and remained actively therein throughout every step of the case, according to the record before us, including the writing of the final order dismissing the extraordinary motion for a new trial.
After the trial judge refused to sign the bill of exceptions based on the judgment dismissing the extraordinary motion for a new trial, and after an application for the writ of mandamus nisi was filed with this court, the Solicitor-General, Paul Webb, of the Atlanta Judicial Circuit and as the prosecutor of the special presentment under which Homer L. Loomis Jr., was convicted in the original case, and in his right and also as amicus curiae made a motion for this court "to decline to entertain, refuse to grant a rule nisi, and to dismiss the application for mandamus [nisi] because it is palpably and entirely without merit. . ." In connection with the motion, the solicitor-general contains therein a brief and argument in support of the motion. In reply to this motion the attorney for the applicant made a motion to dismiss the motion of the solicitor-general. The argument for the applicant goes largely to the effect that the solicitor-general had no right to file a motion as amicus curiae. Without going into the many decisions cited in support of the applicant's view, we decline to dismiss the motion of the solicitor-general. We are inclined to the opinion that the solicitor-general does not, as a matter of law, have a right to file a motion as amicus curiae under the facts of this case. He does have the right, and we think it is his duty, under all the facts of this case, to file whatever pleadings he deems necessary on behalf of the State in the proceedings now before us regarding the merits of the application for the writ of mandamus nisi to this court. We therefore treat whatever reference is made to the solicitor-general in his individual right and as amicus curie as mere surplusage to the motion.
The petition for mandamus nisi is denied.
Mandamus nisi denied. Sutton, C. J., MacIntyre, P. J.,Townsend and Worrill, JJ., concur. Felton, J., dissents.
Dissenting Opinion
Assuming for the sake of argument that the trial judge had authority to vacate his order granting a nisi on the extraordinary motion for a new trial, and to do so *411
without affording movant a hearing on the question, I am of the opinion that the judge erred in refusing to grant a rule nisi "as a matter of law." The judge's order denying the rule nisi is as follows: "The defendant was convicted of the offense of riot, his motion for a new trial was denied and the Court of Appeals affirmed. Loomis v. State, 51 S.E.2d 33. An extraordinary motion was filed by the defendant. The indictment charges, `Homer L. Loomis Jr., Emory C. Burke with the offense of riot for that said accused. . ., did jointly with J. R. Childers and other persons whose names are to the grand jurors unknown.' The defendant contends that this indictment was not a true bill of indictment in that `other persons' referred to therein, to-wit: Clarence H. Kight and Douglas (Red) Watson, two of the principal rioters, were in fact known to the grand jurors. That he was unaware of this at time of trial and therefore deprived of a defense he was entitled to and which, when established on subsequent trial, would demand his acquittal. Counsel for the defendant insists that the following is the true rule of law here applicable: `In an indictment the names of the persons injured, and of all others whose existence is legally essential to the charge, must be set forth, if known; it is, of course, material that they be precisely proved as laid, . ., and if the person be described as unknown, and if it be proved that he was known, the variance is fatal, and the prisoner will be acquitted.' Greenleaf on Law of Evidence (16th Ed.), Vol. 3, Section 22. He further contends that this rule has been approved of in Georgia in