175 Ga. 627 | Ga. | 1932
Lead Opinion
Nick B’Gos was convicted in the city court of Savannah upon an accusation which alleged that he had operated a gambling device called “ clearing-house,” known as a lottery, the second count alleging that he operated a gambling scheme or device other than a lottery. The defendant was found guilty by a jury in a general verdict, and was sentenced by the trial court. He made a motion for new trial on the general grounds, which was denied, and he brought his case by writ of error to the Court of
Upon consideration we sustain the motion and dismiss the petition for certiorari, for the reasons hereinafter given. The sole question to be decided in this case is whether the State of Georgia has the right to an appeal or to seek a writ of certiorari to the Court of Appeals in a criminal case, where the judgment of that court has been favorable to the defendant. It is insisted by learned counsel for the State of Georgia, that, since the amendment to the constitution of Georgia (Ga. L. 1916, p. 19), our constitution provides that “It shall also be competent for the Supreme Court to require by certiorari or otherwise any case [italics ours] to be certified to the Supreme Court from the Court of Appeals for review and determination, with the same power and authority as if the case had been carried by writ of error to the Supreme Court.” And it is argued that the language quoted above means exactly what it says, “all cases,” and certain decisions of this court are cited to sustain the contention of the plaintiff in certiorari, among others, Central of Ga. Ry. Co. v. Yesbik, 146 Ga. 620 (91 S. E. 873), where it was held: “Under the constitutional amendment of 1916, the power of the Supreme Court in certiorari extends to all cases decided by the Court of Appeals.” And it is insisted that the decision in the
We can not agree to the conclusions reached by able counsel for plaintiff in certiorari. In the view we take of this ease there is no conflict between the previous decisions rendered by this court and the position we take in the present ease. It will be noted that in each case cited by counsel for the plaintiff in certiorari the language is “any case” [italics ours] may be certified to the Supreme Court, and in neither the constitution nor any of the decisions cited is it stated that in a criminal case the State of Georgia is authorized to appeal, or to file a petition for certiorari in the Supreme Court to the Court of Appeals. In declaring what laws
The constitution provides that no person shall be put in jeopardy of life, or liberty, more than once for the same offense, save on his
It is contended that the Court of Appeals under the law has. the right to certify a question or questions to the Supreme Court, and that this is the same thing as giving the Supreme Court the right to grant a certiorari upon petition by the State. But we can not agree to this view. It is true that the Court of Appeals can certify a question to the Supreme Court under the constitution. Civil Code, § 6506. It provides: “Where a ease is pending in the Court of Appeals and the Court of Appeals desires instruction from the Supreme Court, it may certify the same to the Supreme Court, and thereupon a transcript of the record shall be transmitted,” etc. In a case like that, the Court of Appeals is merely transferring the record and the certified questions to the Supreme Court for its decision; but it will be noted that there is no appeal by either party. Furthermore, in such case the Court of Appeals has not made any decision which can be appealed from. That court of its own motion has simply asked certain legal questions, and the questions are answered by the Supreme Court to the Court of Appeals, and from those answers the Court of Appeals makes its own decision in accordance therewith. But the ease under consideration is one where the Court of Appeals has definitely and finally decided the case in favor of the defendant, the effect of which is to acquit the defendant, just as much so as the verdict of the jury can acquit him; and it is this judgment in favor of the defendant from which the State can not appeal. But, as already stated, in the case of certified questions there has been no judgment in favor of or adverse to the defendant by the Court of Appeals; and consequently there is nothing from which either party can appeal. The law which declares that the State has no right of appeal in any criminal ease from any judgment of the court has no application to a case where the Court of Appeals has certified certain questions to the Supreme Court.
In Cranston v. Augusta, 61 Ga. 572, it was held that the power of a municipal corporation to exercise police jurisdiction is a power
In another case decided by this court, State ex rel. Tucker v. Lavinia, 25 Ga. 311, it was again decided that a writ of error does not lie to the Supreme Court in a criminal case at the instance of the State. In that case Lavinia was tried for a certain offense, and was acquitted. An effort was made by the State to obtain a certiorari from the superior court. The superior court dismissed the certiorari on the ground that the defendant had been acquitted by the proper tribunal, and that the court had no power to order a rehearing at the instance of the State. Judge Lumpkin, who delivered the opinion of the court, did not decide the question as to whether the superior court could have acquired jurisdiction upon a petition for certiorari by the State, but he decided the question that the State could not have a writ of error from the decision of the superior court to" the Supreme Court. And so this court has decided numerous times that the superior court can not review, at the instance of the State, a decision of a lower court on a writ of certiorari. Eaves v. State, 113 Ga. 749 (39 S. E. 318), was a case where the defendant was indicted for selling liquor. ITe was found guilty, and his motion for new trial was overruled. He excepted to the three rulings contained in the motion for new trial. The State filed a cross-bill of exceptions upon the overruling of a motion made by the solicitor-general to dismiss the motion for new trial. This court held, Chief Justice Simmons delivering the opinion, that the State could not file a cross-bill of exceptions, quoting § 5527 of the Civil Code of 1895, which was then in force, and which is to the effect that when the successful party to any cause which is carried to the Supreme Court by the unsuccessful litigant files a cross-bill of exceptions the questions made by the cross-bill shall be heard, with certain exceptions^ and determined. It will be noticed that
As we have already observed, there is no statute of this State, so far as we are aware, where the State is expressly granted the right of appeal or the right to certiorari in cases like the present. In Commissioners of Pilotage v. Tabbolt, 72 Ga. 89, a pilot was tried before the commissioners of pilotage of the port of Brunswick for dereliction of duty, and was convicted. He appealed to the superior court, and on the trial before a jury in that court he was acquitted. It was held that the commissioners of pilotage could not make a motion for a new trial or take a writ of error in their own names. In Mayor &c. of Hawkinsville v. Ethridge, 96 Ga. 326 (22 S. E. 985), the"defendant was convicted before the police court of Hawkinsville for violation of an ordinance of that town, upon an accusation of the offense of draying in the corporate limits. He was sentenced to work upon the public streets of the city for sixty days, with the alternative of paying a fine of $60 and the costs of the proceedings. He applied to the superior court for a Avrit of certiorari, and when the case was called for trial counsel for the City of Hawkinsville moved to dismiss the certiorari. The judge overruled the motion to dismiss, and to this judgment the Mayor and Council of Hawkinsville excepted and by Avrit of error presented for review the judgment overruling its motion to dismiss the petition for certiorari. There was therefore presented for decision purely a question of law. This court said, through Mr. Justice Atkinson
In harmony with the foregoing decisions of our court, see State v. Simmons, 49 Ohio St. 305 (31 N. E. 34), and Mick v. State, 72 Ohio St. 388 (74 N. E. 284). The Supreme Court of the United States has also passed upon this question in the Sanges case, 144 U. S. 310 (12 Sup. Ct. 609, 36 L. ed. 445), in which the Circuit Court of the United States for the Northern District of Georgia, sustained a demurrer and quashed an indictment, and the government sought a writ of error. It was held: “A State has no right to sue out a writ of error upon a judgment in favor of the defendant in a criminal case, except under and in accordance with express statutes, whether that judgment was rendered upon a verdict of acquittal or upon the determination by the court of a question of
After careful consideration of the important question involved here, we reach the conclusion that the motion made to dismiss the petition for certiorari on the ground that the Supreme Court has no jurisdiction of the case should be sustained, and the petition for certiorari is therefore
Dismissed.
Dissenting Opinion
dissenting. The precise question involved in this case has never been adjudicated. The cases to which reference has been made in the opinion of the majority deal with issues which arose under the constitution of Georgia before the amendments of 1916, which define the precise jurisdiction of the Supreme Court of Georgia, and of the Court of Appeals of Georgia, respectively.
If the motion of a defendant who has been convicted is overruled and he files a bill of exceptions, the rule laid down by this court in Eaves v. State, 113 Ga. 750 (supra), which denies the State the right accorded all other litigants of filing a cross-bill, is not interfered with. If one who has been convicted of a criminal offense is content to abide the judgment of the court, he can never
It is provided in art. 6, sec. 2, par. 5, of the constitution, as amended (Acts 1916, p. 19), defining the jurisdiction of the Supreme Court that “It shall also be competent for the Supreme Court to require, by certiorari or otherwise, any case to be certified to the Supreme Court from the Court of Appeals for review and determination, with the same power and authority as if the case had been carried by writ of error to the Supreme Court.” In accordance with this provision, this court passed the rules published in 146 Ga. 840 (Park’s Code Supp. 1922, § 6259 (a) et seq., Michie’s Code, § 6259 (1) et seq.), prescribing the nature of the procedure in case the writ of certiorari should be applied for to review a decision of the Court of Appeals. As we have said, the constitutional amendment provided for the writ of certiorari from the decisions of the Court of Appeals. It is an inseparable incident to any decision which may be rendered by the Court of Appeals which may affect the law of the State. It is perfectly plain that the constitutional amendment of 1916 is specially designed as the vehicle by which decisions of the Court of Appeals may be reviewed. Therefore one who brings a writ of error to the Court of Appeals to review his conviction for the purpose of obtaining a new trial in the inferior trial court, whether the same may be the superior court or a city court, himself assumes the risk of having the case reviewed either by the Supreme Court of itself requiring the Court of Appeals to certify the same to the Supreme Court for decision, or by the officers of the State applying for a writ of certiorari to have the law involved in the case authoritatively and finally determined by the court of last resort, to wit, the Supreme Court. Before the constitutional amendment of 1916, the judgment of the Court of Appeals was a finality. By the adoption of that amendment, the correctness of the decision of the trial judge was subjected to two tests — first, the decision of the 'Court of Appeals; and finally, a reference by certiorari to the Supreme Court, which would be a conclusion of the