Brinkley v. Buchanan

• Decision Date: 31 July 1875
• Citation: 55 Ga. 342
• Parties: Stephen B. Brinkley, plaintiff in error. v. Hugh Buchanan, judge, defendant in error.
• Court: Georgia Supreme Court

55 Ga. 342

Stephen B. Brinkley, plaintiff in error. v. Hugh Buchanan, judge, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Mandamus. New trial. Before the Supreme Court. July Term, 1875.

Reported in the opinion.

P. F. Smith; McCay & Trippe; B. H. Hill & Son, for petitioner.

Thomas W. Latham, solicitor general, for respondent.

Bleckley, Judge.

Brinkley was under sentence of death for the offense of murder. His case had been before this court on writ of error, and the judgment of conviction had been affirmed. The case was ended. The record had been fully made up. The courts, in the regular course of proceedings, had discharged their functions, and it remained only for the executioner to perform his. The day of execution was near at hand. The superior court in which the conviction took place, and in which was the record of the conviction, was not in session, and the next term was some months distant. Under these circumstances, Brinkley's counsel made a motion, in his behalf, for a new trial on the ground of newly discovered evidence. It was alleged that the evidence had been discovered since the last term of the court, and that if time and opportunity were given for its introduction, it would establish the prisoner's insanity at and before the commission of the offense. The motion was made in vacation before the judge of the circuit, who not only refused to grant a rule nisi for a new trial, but also refused to sign and certify a bill of exceptions, which was presented to *him in order to bring his decision before this court for review. Counsel for Brinkley, thereupon, applied to this court, in due form, for a mandamus nisi, calling upon the judge to show cause why he should not be compelled to sign and certify the bill of exceptions.

Apart from the merits of the motion for new trial, there is an insuperable obstacle in the way of the success of this application. In the opinion of this court, as now constituted, the judge below had no legal power or authority to entertain the motion in vacation, however extraordinary the case, or however sufficient the grounds of the motion might be deemed, if pre-sented in proper time and made to a competent tribunal. This question, we are aware, has been decided differently. In the case of Spann v. Clark, Judge, 47 Georgia, 369, a majority of the court held that in extraordinary cases the motion might be made before the judge in vacation; but the chief justice dissented, and his dissenting opinion is still satisfactory to himself, and in its reasoning and conclusions the other members of the court concur. The argument is so nearly exhausted by the chief justice in that opinion that we might rest upon it alone, and perhaps any attempt which I may make to give it support, will add little or nothing to its strength. Nevertheless, as the question is important and has proved doubtful enough to produce a divided bench, what further can be briefly and pertinently said upon it ought to be said.

The inquiry relates to applications for new trials in extraordinary cases. In ordinary cases it is clear that the application must be made not only in the term, but during the term at which the trial was had. The power to originate motions in extraordinary cases, and of the judge to hear them, in vacation, is supposed to be derived from two sections of the Code: sections 3719 and 3721. The former of these reads thus: "All applications for a new trial, except in extraordinary cases, must be made during the term, at which the trial was had, but may be heard, determined and returned in vacation;" and the latter reads thus: "In the case of a motion for a new trial made after the adjournment of the court, *some good reason must be shown why the motion was not made during the term, which shall be judged of by the court. In all such cases twenty days' notice shall be given to the opposite party." Now, an examination of the cases decided by this court prior to the Code will show that these provisions are not new. They were not introduced by the Code, but were adopted by it from the reports. In the reports extant at the time the Code was compiled, they were taught, both by precept and example. Two of the head-notes in Graddy v. Hightower, 1 Kelly, 252, are as follows: "The judges may make rules for new trials returnable in vacation, in cases where the application has been first made in term, and recorded, and where the record shows that such rule is made so returnable in vacation." "When the term of the court at which the judgment was rendered has passed, and no application made and recorded at that term, the record in the cause having been finally made up, the court has no power to grant a new trial, except in some peculiar and extraordinary cases." In that case the practice as to motions for new trials is carefully discussed by Judge Nisbet. He adverts to the practice in the English courts, and shows that there an exceptional rule prevailed in extraordinary cases; which was, not for a judge, out of term, to act, but for the court, in term, to act on its own motion. Further on in the opinion a purpose appears to adopt the English rule literally, and not to hear a motion at the instance of a party at all, unless made at the first term; and this took such distinct shape that it passed into one of the head-notes of the case, which, however, it is unnecessary to transcribe here. But subsequently, in 23 Georgia Reports, 493, an extraordinary case presented itself, and was ruled thus: "In extraordinary cases, where the ends of justice require it, and the cause is still within the control of the court, a rule nisi may be moved after the expiration of the term at which the trial was had." Accordingly, a motion was entertained, made in term, not in vacation, after the term of trial, even after the case had been before this court on writ of error. Here, then, was an actual example of an extraordinary *case which the codifiers had before them. They found in the body of the opinion this language, "Our courts, however, have adopted a rule of practice, which, as far as I know, prevails as a general rule, that when a party is dissatisfied with a final verdict in a cause, he must move a rule nisi at the term of the court at which the trial was had,...