Brooks v. Sturdivant
| Decision Date | 10 August 1933 |
| Docket Number | 9378. |
| Citation | 170 S.E. 369,177 Ga. 514 |
| Parties | BROOKS v. STURDIVANT, Chief of Police, et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Writ of error to review judgment refusing habeas corpus held not dismissible on ground that plaintiff had been released where plaintiff submitted affidavits showing that execution of sentence was merely suspended.
Recorder's court of Atlanta can punish for contempt committed in its presence (Civ. Code 1910, § 4644).
Atlanta recorder's court must determine punishment for contempt in exercise of sound legal discretion, and punishment cannot be cruel, unusual, unreasonable, or excessive (Civ. Code 1910, § 4644; Laws 1874, pp. 117, 146, §§ 5, 141, 143; Const art. 1, § 1, pars. 9, 20).
Atlanta recorder's court sentence to imprisonment for 20 days for contempt held unreasonable and excessive as matter of law, entitling prisoner to habeas corpus (Civ. Code 1910 § 4644, 4679 (2), 4791, 4849 (5), 6103 (6); Laws 1874, pp 117, 146, §§ 5, 141, 143; Laws 1913, p. 171, § 48; Const. art. 1, § 1, pars. 9, 20; art. 6, § 2, par. 9; Park's Ann. Civ. Code, §§ 4775 (ll), 4831(p).
1. The motion to dismiss the writ of error is denied.
2. The recorder of the city of Atlanta, while sitting as a court, has power to punish for a contempt of court committed in his presence; but since there is no statute prescribing the punishment which may be imposed, the character and extent thereof must be determined by the recorder in the exercise of a sound legal discretion, and cannot be unreasonable or excessive. In such a case a sentence to imprisonment for 20 days is unreasonable and excessive as a matter of law, and is void. The court erred in not granting the application for the writ of habeas corpus.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Petition for writ of habeas corpus by Margaret G. Brooks against T. O. Sturdivant, Chief of Police of the City of Atlanta, and another. Writ was refused, and petitioner brings error.
Reversed.
Norman DeKrasner and George G. Finch, both of Atlanta, and Sidney J. Goodman, of New York City, for plaintiff in error.
John A. Boykin, Sol. Gen., J. W. Le Craw and J. L. Mayson, C. S. Winn, and J. C. Savage, all of Atlanta, for defendants in error.
Margaret G. Brooks filed a petition for the writ of habeas corpus against T. O. Sturdivant as chief of police of the city of Atlanta, and A. L. Poole as chief of detectives thereof, alleging that she was being unlawfully held as prisoner by the defendants, under an order of the recorder's court of the city of Atlanta in which the plaintiff was adjudged to be in contempt of court, but in which the judge of the recorder's court exceeded his powers as to the amount of punishment inflicted. The petition alleged that the plaintiff testified as a witness in a case which was being tried in the recorder's court, "and that thereafter during the trial of said case the Hon. John L. Cone, judge presiding, adjudged your petitioner guilty of contempt of court, and immediately sentenced your petitioner to serve twenty days in the City of Atlanta prison." It was averred in the petition that the power of the recorder in a matter of contempt is the same as that of a justice of the peace, which is limited by the Civil Code, § 4679 (2), to a fine of not more than $5, or to imprisonment for not more than five hours; and that the plaintiff had served for more than five hours as a prisoner in the station house before her application for the writ of habeas corpus was filed. The application was heard by Judge Humphries of the superior court of Fulton county, who denied the application, and the plaintiff excepted.
The allegations of fact as contained in the petition were accepted as true upon the trial. The following ordinances of the city of Atlanta were introduced in evidence:
Although it appears that the plaintiff was guilty of some act of contempt while testifying as a witness, the exact nature of the contempt is not otherwise more specifically shown by the record in this court. The only assignment of error in the bill of exceptions is that to the judgment remanding the plaintiff to the defendant's custody the "plaintiff then and there excepted and now excepts and assigns the same as error on the ground that the recorder of the police court of the City of Atlanta has no authority to sentence for contempt of court for a longer period than five hours, or a five-dollar fine, or both."
The defendants moved to dismiss the writ of error, on the ground that since the rendition of the judgment refusing the writ of habeas corpus the plaintiff has been released from custody, and is no longer being detained as a prisoner by the defendants or any other person. In response to this motion the plaintiff submitted affidavits in which it was shown that the execution of the sentence was merely suspended by releasing her from custody during the pendency of the writ of error.
1. The motion to dismiss the writ of error is denied. The present case is distinguished by its facts from Stark v. Hamilton, 149 Ga. 44, 99 S.E. 40, and Samuels v. Lanford, 149 Ga. 167, 99 S.E. 532.
2. The charter of the city of Atlanta not only fails to confer any express authority upon the recorder's court to punish for contempt of court, but contains no reference whatever to the subject of contempts. It is provided by the Civil Code, § 4644, however, that "every court has power to preserve and enforce order in its immediate presence, and as near thereto as is necessary to prevent interruption, disturbance or hindrance to its proceedings," and "to control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto." Under these provisions, the recorder's court of the city of Atlanta has authority to punish for a contempt committed in its presence, even though such court may not be a court of record. In Kingsbery v. Ryan, 92 Ga. 108 (5), 118, 17 S.E. 689, 693, it was said: "The duration of imprisonment for contempt, when not regulated by statute, is subject to the sound discretion of the court or the presiding judge." Since there is no statute which limits the power of the recorder of the city of Atlanta in a contempt case, the character and extent of the punishment must be determined by the presiding judge, in the exercise of a sound discretion. The punishment cannot be cruel, unusual, or excessive, but must be reasonable in view of the particular facts and circumstances. Civil Code 1910, § 6365 (Const. art. 1, § 1, par. 9); Farnham v. Colman, 19 S.D. 342, 103 N.W. 161, 1 L.R.A. (N. S.) 1135, 117 Am.St.Rep. 944, 9 Ann.Cas. 314; 13 C.J. 92, § 140; Oswald on Contempt of Court, 237. By the Civil Code, § 4679 (2), it is provided that justices of the peace shall have power "to fine not more than five dollars, or imprison not more than five hours, any person guilty of a contempt of court." This section is of statutory origin, and refers only to justice's courts. We cannot agree that the limitation as to punishing for contempts, as thus stated, was intended by the General Assembly to be applicable as a matter of law to other courts than those referred to therein. An intimation to the contrary of this view was expressed in Swafford v. Berrong, 84 Ga. 65, 10 S.E. 593, a case which involved the power of a town council to punish for a contempt; but the decision in that case was finally placed upon a different ground. While the Legislature has defined, as a matter of law, what may be reasonable as the punishment to be inflicted by a justice's court, it is yet true that some greater punishment might be reasonable as a matter of fact. Accordingly, it might in a particular case be reasonable for a...
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