Arthur v. State

Decision Date17 May 1917
Docket Number460.
Citation92 S.E. 637,146 Ga. 827
CourtGeorgia Supreme Court

Syllabus by the Court.

When a citizen is accorded a trial in a court of justice according to the modes of procedure applicable to all cases of a similar kind, it cannot be said that he has been denied "due process of law." The demurrer to the indictment in this case does not point out any such denial and the demurrer on this ground was properly overruled (citing Words and Phrases, Due Process of Law).

The demurrer does not point out any reason why the Code section on which the indictment is based denies to the accused equal protection of the laws. The General Assembly may constitutionally make classifications in its penal laws, and the same are valid, so long as the legislation bears equally on all in the same class. A demurrer which sets out facts not appearing on the face of the pleadings is "speaking" in character, and will not be allowed.

There is nothing in the act of Congress, known as "the United States Cotton-Futures Act" (Act Aug. 18, 1914, c. 255 38 Stat. 693), which invalidates section 4257 of the Code of 1910.

The motion in arrest of judgment is based upon the same grounds as those contained in the demurrer. The reasoning and conclusions reached in this opinion in ruling on the demurrer are equally applicable to the ruling on the motion in arrest.

The verdict was authorized by the evidence, and the court did not err in overruling the motion for a new trial.

Error from Superior Court, Fulton County; B. H. Hill, Judge.

C. H Arthur was convicted of the statutory misdemeanor of conducting a place of business for dealing in futures on margin, and from the overruling of his demurrer to the indictment, his motion before sentence in arrest of judgment and his motion for new trial, he brings error. Affirmed.

Brown & Randolph, Parker & Scott, and Jos. E. Johnson, all of Atlanta, for plaintiff in error.

H. M. Dorsey and Eb. T. Williams, Sols. Gen., both of Atlanta, for the State.

GILBERT, J. (after stating the facts as above).

1. The protection which the citizen enjoys as to life, liberty, and property, under the guaranty of "due process of law," has its origin in the twenty-ninth chapter of Magna Charta. This guaranty is found in some form of words in each of the state Constitutions. Though there may be found slight verbal differences in the language employed, the expressions are nearly identical, except that the phrase "due process of law" is sometimes used, and sometimes "the law of the land." The meaning is the same in every case. By the Fourteenth Amendment this guaranty is now incorporated in the Constitution of the United States. Cooley on Constitutional Limitations (6th Ed.) 430. In Westervelt v. Gregg, 12 N.Y. 202, 209, 62 Am.Dec. 160, Edwards, J., said:

"Due process of law undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights."

See Cooley's Con. Lim. 433.

The fundamental idea in "due process of law" is that of "notice" and "hearing." It means that the citizen must be afforded a hearing before he is condemned. There must be a hearing first, and judgment can be rendered only after trial. Dartmouth College v. Woodward, 4 Wheat. 519, 4 L.Ed. 629; McGehee on Due Process of Law, 16; 3 Words and Phrases, 2228, 2232. The issue of "due process of law" in this case is sought to be raised by demurrer to the indictment. The demurrer cannot be said in any sense to raise any question of procedure, or that the defendant was not afforded a fair hearing under the same rules of law as were applied to all others charged with a violation of the penal statutes of the state, before condemnation and sentence. When the citizen is accorded such a trial in a court of justice according to the modes of procedure applicable to such a case, it cannot be said that he has been denied "due process of law." Davidson v. New Orleans, 96 U.S. 97, 105, 24 L.Ed. 616; 8 Cyc. 1081, 1083.

2. Another contention set out in the demurrer is that the statute is null and void, because it offends the Fourteenth Amendment to the Constitution of the United States, which guarantees to every citizen the "equal protection of the laws." "Equal protection of the laws" means equal security under them to every one, under similar terms, in his life, his liberty, his property, and in the pursuit of happiness, and exemption from any greater burdens and charges than such as are equally imposed upon all others under like circumstances. Hence a statute bearing alike on all individuals of each class, or on all districts in like conditions, does not deny the equal protection of the laws; but such classification must not be arbitrary and without reasonable grounds on which it may be based. 8 Cyc. 1059, 1060. Section 4257 of the Code of 1910, on which the indictment is based, reads as follows:

"It shall be unlawful for any person, association of persons, or corporation, either as principal or agent, to establish, maintain, or operate an office or other place of business in this state for the purpose of carrying on or engaging in the business commonly called dealing in futures on margins; and any person violating the provisions of this section shall be guilty of a misdemeanor."

There is nothing in this section to support the contention that the law does not operate upon all persons alike. The fact that other sections of the Code bearing upon the same subject may classify individuals can have no bearing upon the validity of the indictment, which has no reference to the latter sections. If these sections were declared void, because offensive to the equal protection clause of the federal Constitution, it would not invalidate the section on which the indictment is based. We do not mean, however, to hold that they are void. It is clearly within the constitutional power of the General Assembly of Georgia to make classifications; and so long as the legislation bears equally upon all in the same class, there is no violation of the federal Constitution.

It is not clear to us what is meant by that portion of the demurrer which says that the law seeks to punish this defendant as the "agent of a citizen of another state," etc. The defendant in this case is indicted as a principal, and the gist of the indictment is, not that he was acting as agent of nonresidents of this state, but that he "did establish and maintain and operate an office and place of business for the purpose of carrying on and engaging in the business commonly called dealing in futures on margin," etc. In misdemeanors all are principals. Henderson v. State, 95 Ga. 327, 22 S.E. 537. The ground of the demurrer which states that the indictment is bad because it deprives the defendant of "inalienable" rights to make contracts to be performed in other states of the United States is without merit. Plumb v. Christie, 103 Ga. 686, 692, 30 S.E. 759, 42 L.R.A. 181.

The contention in the demurrer that another section of the Code enacted by the General Assembly at the same time and as a part of the same act which includes section 4257, provides that certain enumerated facts, when proved, shall constitute prima facie evidence of guilt, furnished no basis for sustaining the demurrer. The law in regard to this matter is purely a rule of evidence, and has nothing to do with the validity of the...

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