Clemon v. State, 21940
| Decision Date | 25 March 1963 |
| Docket Number | No. 21940,21940 |
| Citation | 218 Ga. 755,130 S.E.2d 745 |
| Parties | Ralph Aaron CLEMON v. The STATE. |
| Court | Georgia Supreme Court |
McClure & Campbell, Rossville, for plaintiff in error.
Earl B. Self, Sol. Gen., Eugene Cook, Atty. Gen., Rubye G. Jackson, Asst. Atty. Gen., Atlanta, for defendant in error.
Syllabus Opinion by the Court
Ralph Aaron Clemon was indicted for murder in Walker County. The indictment was returned during the regular February 1962 term of the superior court of that county. Before arraignment, he filed a plea in abatement in which he alleged that the indictment was, for stated reasons, null and void and that it should for those reasons be quashed and dismissed. His plea in abatement was denied and the questions raised by it will be pointed out and fully dealt with in the rulings we will later make in this opinion. A demurrer which the accused interposed to the indictment was also overruled and there is an exception to that judgment. The case resulted in a verdict convicting the accused of the offense charged with a recommendation for mercy and he was sentenced to serve the remainder of his life in the penitentiary. He moved for a new trial on the usual general grounds, later amended his motion by adding other grounds and excepted to a judgment overruling his amended motion. Held:
1. Art. VI, Sec. III, par. I of the constitution of 1945 provides: Code Ann. § 2-3801. The Lookout Mountain Judicial Circuit is composed of Catoosa, Chattooga, Dade and Walker Counties and the Honorable Samuel W. Fariss was the only judge of the superior courts of that circuit when this indictment was returned in the Superior Court of Walker County. The defendant's plea in abatement alleges that the indictment against him is null and void because (1) Judge Fariss was at the time it was returned holding a term of the superior court in Catoosa County and (2) because Governor Yandiver had no legal authority to order Emeritus Superior Court Judge Paschall to hold the regular February term 1962 of Walker County Superior Court while Judge Fariss was still holding a regular term of the superior court in Catoosa County. The plea in abatement therefore raises these two legal questions: (1) Can sessions of the superior courts of the Lookout Mountain Judicial Circuit be legally held in two counties of that circuit concurrently and, (2) did Governor Vandiver have legal authority to order a superior court judge emeritus to hold a regular term of the superior court in a county of the Lookout Mountain Judicial Circuit just because the only judge of that circuit was holding court in another county of his circuit at the same time?
We will dispose of the first of these two questions by holding that there is no law of force in this State which expressly or by necessary implication requires this court to hold that a regular term of the superior court in any one of this State's judicial circuits cannot be held at the time fixed by law for holding it just because the trial of a case in some other county of the circuit has not been completed prior to the time fixed by law for convening the regular term in another county of the circuit. A ruling different from the one here made could frequently paralyze the operation of our superior courts and seriously impede the administration of justice. From this ruling, it necessarily follows that the indictment returned against the accused in the Superior Court of Walker County was not void because the Superior Court of Catoosa County was also in session when it was returned, and Hudgins v. State, 61 Ga. 182, cited and relied on by the defendant does not require a different holding. As to the second question, we hold that Governor Vandiver had ample legal authority under an act which was passed in 1958 (Ga.L.1958, p. 318; Code Ann. § 24-2605a) to direct Emeritus Superior Court Judge Paschall to hold the regular February 1962 term of Walker Superior Court. That act authorizes the Governor to call on such a judge to serve as a judge of the superior court when the regular judge is for some reason unable to serve. The record in this case shows that Judge Fariss was unable to hold the regular February 1962 term of Walker County Superior Court because he was at that time presiding over the trial of a murder case in the Superior Court of Catoosa County which he was unable to finish prior to the time fixed by law for convening the February term of the Superior Court in Walker County.
2. The indictment in this case alleges that the accused did 'feloniously, and with malice aforethought with a certain automobile which he had and held, the same being a weapon likely to produce death, make an assault upon Jerry Shook hereinafter referred to as the deceased, and the said accused with said weapon did then and there unlawfully, feloniously, and with malice aforethought, strike, hit, and run against the said deceased and the motorcycle upon which said deceased was driving, thereby giving him a mortal wound, of which the said deceased then and there died, contrary to the laws of said State, the good order, peace and dignity thereof.' The defendant demurred to the indictment on the ground that its allegations were insufficient to charge the offense of murder. His demurrer was overruled and he excepted to that judgment. This assignment of error is not meritorious. See Jones v. State, 185 Ga. 68, 194 S.E. 216; and Wallace v. State, 216 Ga. 180, 115 S.E.2d 338.
3. Special ground 1 of the motion for new trial alleges that the judge erred in overruling the defendant's motion to exclude Merl Matthews from the jury panel for cause. The motion to exclude the juror was on the ground that he had 'formed and expressed an opinion as to the guilt or innocence of the accused.' All that the record shows respecting this is that the juror when questioned on voir dire said: ...
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