17 Ga. App. 593 | Ga. Ct. App. | 1916
Lead Opinion
An indictment for perjury was returned against A. J. Nichols, and it was alleged therein that the perjured testimony of Nichols was given by him when he testified as a witness for the defendant company in a case pending in the superior court of Gordon county, Georgia, wherein H. L. Knight was plaintiff and the Western & Atlantic Railroad Company was defendant. Before formally pleading to the indictment the defendant interposed a special plea in abatement, praying that the indictment be quashed, for reasons set forth therein. The State demurred to this plea and moved that it be stricken; the court sustained the demurrer and struck the plea, and the defendant excepted pendente lite. So much of the plea in abatement as is necessary for the determination of this case is as follows:
“The cause of H. L. Knight as plaintiff and the Western & Atlantic Railroad Company as defendant, wherein it is alleged in said indictment was delivered the alleged false and perjured tes
“And this defendant further says: As illustrating and showing to the court the nature, character, and extent of the interest of said Lang in the said cause of H. L. Knight against the W. & A. Kailroad Company, and the means said Lang wished to use and sought to use to procure a settlement thereof, and the relation between the same and the. indictment made against this defendant in the instant cause, this defendant says that on or about the first day of December, 1913, the said Lang wrote and mailed
'' 'Law office of J. M. Lang, Calhoun, Georgia.
'"December 1,1913. Mr. John L. Edmondson, Equitable Building, Atlanta, Ga. Dear Sir: In re Knight vs. W. & A. R. R. Co. My understanding has been that there was pending spme negotiations in an effort to settle this case. I am writing you in regard to the same and ask that you please advise me whether the company is going to settle this case, and, if so, about when. I have been over on the Sand Mountain and spent some time in an effort to ascertain the facts in regard to testimony of certain witnesses in this case. I have got considerable evidence which I believe is sufficient to convince any unbiased person that the testimony of the witnesses for the defendant who came from Alabama was and is untrue. In fact, I have secured a sufficient amount of evidence, in my opinion corroborating the sworn testimony of Mason, that you offered Hughes $250 conditionally, to at least make some interesting reading. This evidence, of course, might be used in the case in the Supreme Court, or it might be used in a proceeding to attach you for contempt. In other words, I have not fully decided yet just how would be the best way to use this evidence, and I am writing to ascertain whether the case will likely be settled or not, and, of course, if it 'is settled right away, I do not care to use it at all. This, of course, is a straight business proposition, and I am trying to collect the money that the jury says is due my client by your company. I know he needs this money very much and the jury said he was entitled to it, and I think the company ought to pay it. At least I am doing all I can to convince you that it will be to the best interest of the company to- pay it right away. This matter was undertaken solely by me, and my associates at Rome had nothing to do with it. In fact they are both likely to get into politics, and I assure you that everything referred to in this letter is chargeable to me and not to either of them. If you see fit to reply to, this, and if we can get this matter settled, I will be very glad indeed.
“ 'Yours very truly, [signed] J. M. Lang.’
''As further illustrating the feeling, interest, purpose, and intent of said Joe M. Lang, in the institution of this prosecution,
“This defendant further shows that some time during the month of February, 1915, before the fourth Monday in said month, said Lang again came to the State of Alabama, on Sand Mountain, where this defendant lived, and had with him a man by the name of Harry Wise, and also said Lang’s client, H. L. Knight, all of whom came to this defendant’s home while defendant was sick, and procured from this defendant an affidavit that what he had sworn to on the trial of H. L. Knight against the
“During the latter part of the first week of the February term, 1915, of Gordon superior court, this defendant was arrested in Alabama, and handcuffed, and brought to Calhoun, Ga. Deputy sheriff 0. Calbeck, of Gordon county, took charge of this defendant at Scottsboro, Alabama, and brought him, together with Bob Hughes, to jail in Calhoun, and there incarcerated him. This defendant was placed in a cell on an upper floor of the building and confined separate and apart from Bob Hughes, who was placed in a cell on the lower floor. As defendant and said Hughes were being carried from the station at Calhoun to the jail, they and the sheriff stopped at the court-house, where solicitor-general Lang instructed the sheriff not to allow this defendant or Hughes to make any bond, although Mr. 0. N. Starr, an attorney at law, was then and there proposing and offering to procure a bond for them; and, at this direction of the solicitor-general, the sheriff did refuse to allow either of them to give bond. On Saturday morning after defendant was put in jail, said Lang came to the jail to see this defendant, and inquired if he intended to stick up to his affidavit given in Alabama; at the same time saying that he was now solicitor-general and had power to put this defendant in jail, and had power to let him out, and that the best thing for this defendant to do was to stick to the said affidavit, and that if he would do so, he, Lang, would take care of him, and gee that he was let out without being harmed. And, induced by these promises, this defendant told Lang he would stand by the said affidavit, he believing that this was the best and easiest way to get out of jail. Said Lang then asked this defendant to go and see Hughes and get him to turn State’s evidence and to join this defendant in testifying that he had sworn falsely in the Knight case, and to promise the said
“On information and belief defendant avers that on the same Sunday afternoon Mr. Harry Wise came to the jail to see the defendant Hughes, and advised him that it would be best for him to turn State’s evidence against Edmondson, and plead guilty to perjury, and that he further stated that this was the only way for said Hughes to get out, and that Lang had promised him, said Wise, that if Hughes would do this, that Mr. Lang would see him out of it; that after much persuasion said Hughes finally agreed to the suggestions of said Wise, and that he would turn State’s evidence as hereinbefore stated. Defendant further states, that on information and belief, that said Wise further told said Hughes that when said Lang should come in he would ask Hughes if he had decided what he was going to do, and told said Hughes to reply that he had decided to make a clean breast of it; that said Wise then stated that said Lang would tell Hughes that he did not want him to put up any job on Edmondson, but wanted him to tell the truth; that said Wise then told Hughes
“On the following night Harry Wise came to see said Hughes and myself and insisted that both of us should change our statement as Mr. Lang had requested, stating that this was the only way out of it for us. He further stated that Lang had the power to put Hughes in jail and the power to take him out, and that if he, Hughes, would agree to Lang’s request, that he, Wise, would do all he could to see Hughes out of it. Mr. Wise started to leave, and just then Mr. Lang came in and wanted to know what we had decided to do. Hughes told him he did not know what to do, and Lang again urged Hughes to agree to his request to turn State’s evidence against Edmondson, to plead guilty to perjury, and again renewed his promise that if Hughes would do this, he, Lang, would see him out, and that he should not suffer for it. Said Lang was talking to both of us, and this defendant understood that his remark applied to both of us. ' Said Lang further stated that the railroad company had money, but had no power, and that he, Lang, had the power. After
“On Sunday night, March 21, Lang and Wise again came to this defendant and Hughes in their cells, and asked if they were going to stand by what they had told the night before, and defendant and Hughes agreed that they would do so if they would turn them out, and said Lang stated that he would guarantee" that if they would do this he would send them back home by the following Saturday night. Said Lang further stated that the railroad lawyers would want to see Hughes and this defendant, and that he did not wish them to do so, and that he would arrange with the judge to keep them from seeing this. defendant and Hughes. He further stated that he would have the judge bring this defendant and Hughes into court on Monday morning, and that the judge would ask them if they had any lawyer, and told them to tell the judge that they had no lawyer and did not need any, and to say that they were going to stick to what they bad told the grand jury. Said Lang further stated that he was not after defendant and Hughes but was after John Edmondson; that Edmondson had fought him in his campaign for solicitor-
“Hpon all the foregoing statement of fact and circumstances, this defendant avers and charges that at the time said Lang, as solicitor-general, instituted said prosecution, and in the preparation and presentation of the bill of indictment before the grand jury, was not only pecuniarily interested-in the contingent fee in said Knight case, in which the alleged perjury was charged to have been committed, but that he was also actuated by motives of ill will and revengeful feelings against the said John L. Edmondson, and was seeking to use this defendant and said Hughes for the purpose of carrying out his purposes aforesaid, and is how conducting this prosecution against this defendant because this defendant will not further assist him in his prosecution of the said Edmondson as aforesaid, and is not a fair and impartial prosecuting officer, fit or qualified to represent the State of Geor- ' gia therein. And this defendant says that he could not have presented to the court his objection and exception to the said Lang acting as solicitor-general in the matter of preparation or presentation of said indictment to the grand jury before the finding or making of said indictment, because he did not know of the fact that the grand jury were considering the making of said indictment, until the action of the grand jury in making and finding said indictment had been had. Wherefore this defendant prays that this his plea be sustained, and that said indictment be quashed and go for naught.”
Section 4929 of the Civil Code (1910) provides that, “when
In Hicks v. Brantley, 102 Ga. 271 (29 S. E. 459), the Supreme Court says: “A solicitor-general or prosecuting officer for a particular circuit has only the State for a client. He can not be employed by a private person to prosecute a case, nor to give advice. His is a public duty. He represents the entire public . . . As a prosecuting officer, the office of solicitor-general is a very responsible and important one. He is attorney and agent of the government in whatever concerns his office. He has to determine whether or not to commence a particular prosecution, or to discontinue one already begun. If it be not for the public interest to punish the doer where the law is but technically violated, he shall forbear the prosecution. The |>rosecutions which he inaugurates are by the people in the name of the State. He is controlled by the public interests, and while these interests require the conviction of the guilty, they forbid that of the innocent. . . . The solicitor-general draws the bill of indictment, examines the witnesses, not with a view to the interest of any client, but alone to subserve public .justice.” In Baker v. State, 97 Ga. 452 (25 S. E. 341), it was held, where the solicitor-general was himself the prosecutor in a criminal case, that a solicitor-general pro tern, should have been appointed before the indictment was acted upon by the grand jury; and in that case the Supreme Court said: “We shall undertake no discussion of the proposition that it is improper for a solicitor-general 'to appear before the grand jury in a case-which he himself prosecutes personally. It is, of course, his right as a citizen to be the prosecutor in any criminal case; but as he is the official counselor of the grand jury, he could not with propriety appear before that body and give advice in a case in which he was personally concerned. In such
This is not only good Georgia law, but is also the law of many other States. In Flege v. State, 93 Neb. 610 (47 L. R. A. (N. S.) 1106), one of- the grounds of reversal was, that, over objection of the defendant, an attorney who had been employed or engaged in the prosecution of defendant by another suspected person was appointed assistant prosecutor, and the court held that “no attorney should be appointed who is known to be a partisan as against the accused, and who has theretofore been employed and paid by another suspected person,” etc. And the court in that case quoted from Liniger v. State, 85 Neb. 98 (122 N. W. 705) : “Public prosecutors and peace officers owe no greater obligation to the public than to a defendant charged with crime, and they ' should as zealously protect the one as the other.” In McKay v. State, 90 Neb. 63 (39 L. R. A. (N. S.) 714), the court held that under the statute of Nebraska it was error to permit private counsel to assist in the prosecution, when such assistance was not procured by the county attorney under the direction of the district judge. And, among other things, the court said (p. 719): “Counsel thus procured [as provided by the statute] will not be actuated by sordid motives. He will enter upon the discharge of his duties in the same spirit that any honorable.county attorney would enter upon the same, viz., with the desire simply to see that justice is done. It is just as much the duty of a county attorney to see that an innocent man is not convicted as to see.that ■ the guilty receive their just deserts.”
In this State the solicitor-general, in assuming the duties of his office, must swear that he will faithfully and impartially discharge such duties, without fear, favor, or affection (Civil Code, § 4922). It is made a crime for him to take from anyone any
Under the law and the averments of the plea in abatement, it is as clear as the noonday sun in a cloudless sky that the solicitor-general was disqualified from presenting the bill for perjury in this case to the grand jury, and from advising with them in regard thereto. The court should have appointed a solicitor pro tern, to act in the matter.
The only remaining question then is, was this point made too late?' It is obvious that the question of the disqualification of a solicitor-general to appear before the grand jury in a particular case is an objection propter affectum. It is, of course, well settled that an objection propter defectum can be made after the return of the indictment, where it affirmatively appears that the accused had no notice of the charge against him and no opportunity of presenting Ms objections sooner. But as to whether an objection propter affectum can be so made, the authorities are not at all clear or harmonious. It is true that many of them hold generally that an objection of the latter class should be made as a challenge, before the indictment is returned; but in nearly all of these decisions the ruling is modified by the qualification that this is true where the accused had notice of the pendency of the indictment against him, or could, by proper diligence, have learned of it, and had an opportunity of raising the question before the indictment was found. Williams v. State, 69 Ga. 12; Turner v. State, 78 Ga. 174; Lascelles v. State, 90 Ga. 347, 372 (16 S. E.
In 2 Thompson on Trials (2d ed.), § 2861, it is said: “If, however, advantage is taken of being before the grand jury to bring improper influence to bear on them, as, for example, where an attorney employed to prosecute was called as a witness and urged the grand jury to find an indictment, this presents good ground on motion to quash. The presence of any unauthorized person during deliberation is ordinarily held to presume prejudice and to require an indictment to be quashed. . . The rule as to prejudicial presence during deliberations applies to a prosecuting officer the same as that of another.” In State v. Rocker, 130 Iowa, 239 (106 N. W. 645), it was held that the presence before a grand jury of a prosecuting attorney disqualified to prosecute a particular case was good ground for setting aside an indictment, and the court said: “Being disqualified, he should have moved the appointment of a substitute, as provided for in Code section 304. . . . While ordinarily' it is the duty of the county attorney to attend upon the grand jury when required by that body (Code, § 307), there can be no warrant for his appearance when disqualified for reason of his having been attorney for the person charged in respect to the very matter under investigation. He is then a person not required or permitted by law to be before the jury. ... It follows from what we have said, that the trial court erred in overruling the motion to set aside the indictment.” In Reich v. State, 53 Ga. 74 (21 Am. R. 265), the Supreme Court held that “it is a good special plea to an indictment, if made on arraignment, that one of the grand jurors who found the indictment or special presentment was an alien, and not qualified to sit as a grand juryman.” And in that
While we recognize that the general rule in Georgia is that an objection propter affectum to a grand juror should be made before the finding of the indictment (in Betts v. State, 66 Ga. 508, it was even held that a grand juror was not subject to challenge propter affectum), it has never been held in this State, so far as we know, that an objection of the same nature to the conduct of a solicitor-general must be so made. Indeed, under the express provisions of our statute (Civil Code, 1910, § 4299), a solicitor-general is clearly subject to challenge propter affectum, and, in our opinion, the question of his disqualification to appear before a grand jury can be raised by the accused at any time before pleading to the merits of the case, especially where it is affirmatively shown that the accused had no notice of the pendency of the indictment against him, and had no opportunity of making known his objections sooner. However, no matter what the general rule on this subject is, we think this case should be treated as an exceptional one. We have not been able to find another one exactly like it in any of the books. It differs materially from the case of a disqualified juror. The solicitor-general is the official counselor of the grand jury. They look to him for ad
The error in sustaining the demurrer to the plea and in dismissing the plea rendered the further proceedings nugatory, and a consideration of the other assignments of error is unnecessary.
Judgment reversed.
Dissenting Opinion
dissenting. I concur in the ruling in the first headnote, to the extent that I agree that uj)on well-settled principles a solicitor-general is disqualified to represent the State in a prosecution in the result of which he is interested either directly or indirectly. I favor the broadest construction of the foregoing rule of disqualification which will insure absolute impartiality in the trial of every person charged with crime. I think a proper plea in abatement, based upon the ground that the solicitor-general, J. M. Lang, was disqualified, by his interest in the civil case named (which was contingent upon recovery), from preparing the indictment or from conducting the prosecution against one who was charged with perjury, in delivering false testimony