Pittman v. Hagins
91 Ga. 107
Ga.
1892
Check Treatment

Robert and Anderson Hagins and Robert Brower *108brought their petition against Pittman, judge of the county court, asking that he be required to answer three several writs of certiorari, issued at their instance by the judge of the superior court. On this petition it was ordered that the county court judge, by a day named, file his answers to the three writs, or show cause why he should not be attached and punished as for contempt. Pittman demurred upon the grounds : (1) The petition shows that defendant is a judicial officer, judge of a court of record, and as such he cannot be attached as in contempt, for the exercise of his judicial discretion in the performance of his duties as judge. (2) It does not show that the petition for writ of certiorari, which he is ruled to show cause for not answering, has ever been sanctioned by the judge of any superior court. (3) It does not disclose on its face that defendant has illegally or wrongfully convicted and sentenced petitioner, nor that defendant as judge was without jurisdiction to hear, decide and sentence him. There was also a ground that the petitioners could not jointly proceed. This ground was sustained, and an amendment of the rule was allowed, striking the names of all the petitioners except Pobert Hagins. It was then adjudged that respondent should answer instanter. He answered, offering in evidence in support of his answer the petition filed by Pobert Hagins for certiorari, and the joint petition for certiorari filed by petitioners. Petitioner offered no evidence. The joint petition for certiorari was dismissed on motion of counsel for the petitioners. It was then ordered that the rule be made absolute, and that respondent answer the writ of certiorari sued out by Pobert Hagins. To this order, to the refusal to sustain all the grounds of demurrer, and to the allowance of the amendment, exceptions were taken.

The petition for rule alleged: On February 13, 1892, the judge of the superior court of Effingham county *109issued three several writs of certiorari, directed to the judge of the county court, requiring him to send up without delay a complete and accurate history of the several cases against petitioners, severally tried before him on January 25,1892, upon three several accusations charging them severally with the offence of rescuing a prisoner. The three petitions upon which the writs were issued were duly served upon the county judge on the-day of February, 1892. Petitioners are now confined at hard labor in pursuance of the sentence passed upon them by the county judge. No return or answer has been made by him to either of the writs of certiorari, though they have more than once, through their attorney, specially requested him to answer, that the question of the legality of their sentences might be determined and they be released. Unless some order be passed which shall require the county judge to obey the writs, they must continue indefinitely during his pleasure to suffer the hardships of illegal confinement and servitude.

The answer of the county judge stated : No petition for the writ of certiorari, duly sanctioned by any judge of a superior court, at the instance of Robert Hagins, "has ever been served on him as set out in the petition. Three orders issued by Judge Falligant were served on respondent, requiring him to answer as to his action, as the judge of the county court of Effingham, touching the trial and conviction of the three petitioners in that court; but as no petition setting out the evidence in or trial of the cases against petitioners has ever been, in connection with such orders, sanctioned by Judge Falligant or any other judge of a superior court, defendant could not make any answer legally to such petition for certiorari. A short time after said orders of Judge Falligant were served on respondent, a petition, duly sanctioned by Judge Falligant at the instance of *110Robert and Anderson Hagins and Buddy Coleman, was filed in the office of the clerk of the superior court, and a writ of certiorari has duly been issued by the clerk, directed to defendant, requiring him to answer thereto at this term of the court, to which writ he will answer as by law required. It is not true that petitioners have' been illegally and improperly convicted, but. on the contrary were duly convicted after a fair and impartial trial. It is not true that respondent has refused to obey or disregarded any lawful orders to him directed, etc.

The petition of Robert Hagins for certiorari, offered in evidence by respondent, was as follows: On January 25, 1892, he was tried at a special session of the county court of Effingham, upon an accusation charging him with rescuing a prisoner. He had not been arrested nor notified until that morning. Without asking him any questions in reference to indictment or trial by jury, and without the waiver by him of anything, the judge ordered the trial to proceed before him without a jury and petitioner’s approval or consent; and without allowing him an opportunity to obtain counsel, appointed one Hodges, who is not a lawyer and who is utterly unskilled in the law, to defend him. After the introduction of evidence immaterial to be set out here, the judge" of the county court rendered judgment of guilty against petitioner and sentenced him to pay a fine of $100, or to hard labor for twelve months. The trial was not conducted in the face of the country. The usual place of holding the sessions of the county court is in the court-house in the room where the superior court holds its sessions, and where the accommodations for the public are ample, but on this occasion the judge convened his court in one of the smaller rooms of the courthouse building where there was no adequate accommodation provided for spectators who might desire to attend the trial, and a number of persons, resident in the *111county and desirous of attending the trial, were prevented from doing so and were excluded from the session of the court, the door to the room being closed and admittance refused them upon their express application for admission. The judgment of the court finding petitioner guilty was erroneous and void upon the following grounds: The court and judge thereof were incompetent and without jurisdiction, because the judge was-disqualified by interest, and the court as organized is an illegal and unconstitutional tribunal, in that as organized no provision is made for the compensation of the judge, except that be is to receive for bis services in criminal cases such costs as may be assessed against defendants therein, in accordance with tbe provisions of chapter four, title five, part first of tbe code. No salary has been recommended by tbe grand jury of tbe county since tbe organization of tbe court, and tbe judge is therefore directly interested in tbe issue of every criminal case tried by him, because section 281 of tbe code attempts to authorize him to receive and retain as bis-compensation tbe cost prescribed in such cases. Tbe court is an illegal and unconstitutional tribunal, for the further reason that tbe act of October 5, 1885, creating-said court, is itself unconstitutional, because in conflict-with tbe first paragraph of .the fourth section of the first article of tbe constitution, there being at the time of tbe passage of tbe act a general law of force in tbe State, in which provision had been made for the establishment of county courts, embodied in section 279 of tbe code. At tbe time of appointing said county judge, first after the passage of tbe act, no grand jury of tbe county bad by a majority so recommended. Tbe judge erred in convening tbe court in tbe room mentioned, and in closing or having closed or allowing to be closed the door of tbe room where tbe trial was bad, during its-progress, and in excluding or allowing to be excluded *112citizens of the county who desired to be admitted. He also erred in denying petitioner an opportunity to obtain counsel and in appointing Hodges to represent petitioner, for such appointment was a practical denial to him of the benefit of counsel. He also erred in proceeding with the trial without a jury, without any waiver of petitioner’s right to a jury, and without asking him if he demanded indictment. Attached to this petition was a writ of certiorari signed by the judge of the superior court February 13, 1892, and by the clerk of the superior court on February 15, 1892. It was directed to the judge of the county court and bore his acknowledgment of service, February 16, 1892. It recited that the application for certiorari had been duly sanctioned by the judge of the superior court.

J. G. & D. H. Clark, for plaintiff in error. A. C. "Wright, contra.