Burke v. State

• Decision Date: 11 July 1949
• Docket Number: 16722.
• Citation: 54 S.E.2d 350,205 Ga. 656
• Parties: BURKE v. STATE.
• Court: Georgia Supreme Court

54 S.E.2d 350

205 Ga. 656

BURKE v. STATE.

No. 16722.

Supreme Court of Georgia

July 11, 1949

Rehearing Denied July 27, 1949.

Syllabus by the Court.

Even though a conviction for crime, procured by perjured evidence and known to be such by the State's prosecuting attorneys, amounts to a denial of due process of law required by the State and Federal constitutions, yet the Code, § 110-706, which authorizes a new trial when a conviction is based upon perjury and requires that proof of such perjury be made a judgment of conviction, is not unconstitutional in that it denies due process and equal protection of the law. That section is in harmony with the purest sources of evidence rule declared in the Code, § 38-101, and the ground of the extraordinary motion for new trial based upon newly discovered evidence, alleging perjury of the principal witness for the State, not having been supported by proof of a conviction for perjury, the court did not err in overruling the motion.

The exception here is to a judgment overruling an extraordinary motion for new trial upon the ground of newly discovered evidence in the form of an affidavit by a person who was the principal witness for the State upon the trial, and who by his affidavit, not only asserts that his former testimony was false, but further asserts that he was induced and coerced by the two prosecuting attorneys representing the State into giving the testimony which the attorneys knew at the time was perjured. One ground of the motion is an attack upon the constitutionality of the Code, § 110-706, alleging that it offends the due process and equal protection clauses of the State and Federal constitutions, Const.Ga.1945, art 1, § 1, pars. 2, 3; Const.U.S.Amend. 14, in that it requires conviction of perjury as a condition precedent to the grant of a new trial upon the ground that his conviction was procured by perjured testimony as shown in his motion. The State made a counter showing, and by affidavits of the two prosecuting attorneys contradicted the evidence of the movant and denied that either of them had any knowledge of the falsity of the witness' testimony, and denied that they persuaded or coerced the witness to testify, and that so far as they knew, the testimony was freely and voluntarily given. To the judgment overruling the motion exception was taken and the writ of error was transmitted to the Court of Appeals, which court held that despite the existence of the constitutional attack upon a State law as shown by the record, since a decision in the case did not require a ruling upon the constitutional question, the court had jurisdiction of the writ of error, and rendered judgment affirming the judgment of the trial court. The movant petitioned the Supreme Court for the writ of certiorari, which petition was granted, and thereupon the Supreme Court issued the following order for the purposes therein stated, and in pursuance of such order the Court of Appeals transmitted the original record to this court: 'This court having granted the petition for certiorari in the above stated case on the ground that this court and not the Court of Appeals has jurisdiction of the case, it is hereby ordered that the Court of Appeals transmit the original record and the original bill of exceptions to this court forthwith. It is further ordered that the clerk of this court docket both the case made by the petition for certiorari and the original case and place them on the calendar for argument at the June call in order to avoid delay in the final disposition of the case, should this court, upon consideration of the case made by the petition for certiorari, decide that this court and not the Court of Appeals has jurisdiction of the original writ of error. It is further ordered that the clerk of this court send a copy of this order to counsel for both sides, and that they be permitted to argue both cases at the June call.' This case was argued as provided in the above-quoted order, together with the case made by the writ of certiorari, and this court on July 11, 1949, 54 S.E.2d 348, rendered judgment in the certiorari case, holding that the Supreme Court, and not the Court of Appeals, had jurisdiction, and for that reason reversed the judgment of the Court of Appeals.

James R. Venable, Atlanta, Frank A. Bowers, Atlanta, H. C. Morgan, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Atlanta, William Hall, Atlanta, for defendant in error.

DUCKWORTH Chief Justice (after stating the foregoing facts).

There is in this record much testimony of numerous witnesses, other than the witness upon whose testimony the extraordinary motion for new trial is based, tending in some way to support the verdict of conviction. But there may be considerable doubt as to whether or not the verdict and judgment could have been 'obtained and entered up without the evidence of such perjured person' as required by the Code, § 110-706. Therefore, giving the defendant the benefit of this doubt, and assuming for the purpose of this decision that the conviction rested upon the testimony of the injured...