Perry v. State

Jul 20, 1901
Reporters:
, ,
Before:
Cobb
Cobb, J.

Perry was tried upon an accusation charging him with the offense of enticing away the servant of another, and was con-; *938victed. His motion for a new trial, based upon the general grounds only, having been overruled, he excepted.

1. When the case was called in this court a motion was made to dismiss the writ of error, on the ground that the bill of exceptions did not show in what State and county the case was tried. The bill of exceptions recites that “at the April term, 1901, of the city court of Bainbridge, his honor B. B. Bower, judge of said court, presiding, there came on to be tried the case of The State against John Perry.” It nowhere appears affirmatively in the bill of exceptions in what State or county the case was tried. The courts-, of Georgia will take judicial cognizance of the fact that a named, county is within the State. Wright v. Phillips, 46 Ga. 197. And when it is shown that a given town is in the State, the court will take judicial notice of the county in‘which such town is located. Clayton v. May, 67 Ga. 769; Cent. R. Co. v. DeBray, 71 Ga. 406 (2); Cooper v. State, 106 Ga. 120. But the courts can not know judicially that a named town is in the State, for there may be towns of the same name in other States. In order, therefore, for this court to acquire jurisdiction of a bill of exceptions, it must appear at least either in what county the case was tried, or, if it is stated that the case was tried in a given town, it must appear that-the town is in this State. We think sufficient appears in the. present bill of exceptions to give the court jurisdiction. While we-can not know that Bainbridge is in Georgia, we can take judicial cognizance of the fact that Hon. B. B. Bower is judge of a court in this State known as the city court of Bainbridge and located atBainbridge, Georgia. This is matter of public record. .A simple recital that the1 case was tried in the city court of Bainbridge would probably have been insufficient, because there may be such a court in another State ; but when that recital is coupled with a statement, that a judge of this State presides over that court, we can with certainty locate it in this State, and once located in this State, we can know that the town where the court is held is in Decatur county. Counsel for movant relied on the case of English v. Bryan, 66 Ga. 574, but we think that case is distinguishable from this. There the bill of exceptions simply recited that a certain case was tried before “Hon. A. C. Pate, judge of the Oconee circuit, presiding instead of Hon. H. V. Johnson, hindered from providential cause.” It was ruled that where a bill of exceptions failed to state *939either the court or county in which the case was tried, the writ of error would be dismissed, and that the certificate of the clerk could not be looked to to determine where the case was tried. That decision was manifestly right. The court would take judicial cognizance of the fact that Judge Johnson was judge of the Middle circuit, but there was absolutely nothing to show in which of the several counties in that circuit the case was tried. Had there been but one county in that circuit, as in the Atlanta circuit, the rule would be different. The motion to .dismiss the writ of error in the present case must be overruled.

2, 3. The evidence shows that the person whom the accused was charged with having enticed away from his employer was a minor illegitimate child, and there was no evidence that he had ever been legitimated by his father. Civil Code, § 2509, provides: “The mother of a bastard is entitled to the possession of the child, unless the father shall legitimate him as before provided. Being the only recognized parent, she may exercise all the paternal power.” It follows, therefore, that the mother of a minor bastard child has absolute control over him, and is entitled to his services. Such a phild could not, therefore, against the consent of his mother, any more than a minor legitimate child could, against the consent of his father, enter into a valid contract of service. As it appears in this case that the hoy ran away from home, and, without his mother’s consent and against her wishes, entered into the employment from which it is charged he was enticed away, the conviction of the accused was not warranted by the evidence. It may be that if the mother of a minor bastard child abandoned him, or refused to support and maintain him, he could make a binding contract of service with another; but the present record presents no such case.

Judgment reversed.

All the Justices concurring.