Club v. State

• Decision Date: 30 January 1913
• Docket Number: (No. 3,007.)
• Citation: 12 Ga.App. 174,76 S.E. 1029
• Parties: PROGRESS CLUB. v. STATE.
• Court: Georgia Court of Appeals

76 S.E. 1029

12 Ga.App. 174

PROGRESS CLUB.

v.STATE.

(No. 3, 007.)

Court of Appeals of Georgia.

Jan. 30, 1913.

(Syllabus by the Court.)

1. Corporations (§ 531^*)—Indictment and Information (§ 3*)—Criminal Prosecutions—Service of Process—Necessity for Indictment.

Corporations are responsible for violations of penal laws, but, being intangible artificial persons, without physical existence, the Legislature has provided a certain mode of service by which the courts acquire jurisdiction, and, until there has been service in the method prescribed by law (unless it be waived), a trial cannot legally proceed.

(a) In the absence of an express statutory provision to that effect, or of a waiver of indictment, a corporation can be tried for crime only upon an indictment or presentment of a grand jury.

(b) There being no indictment in the present case, the clerk of the city court of Brunswick was not clothed with power to issue, or the sheriff to serve, a notice as prescribed in section 963 of the Penal Code 1910. The city court of Brunswick was without jurisdiction to try the offense alleged in the accusation, based upon the affidavit of the prosecutor, and the exceptions of the defendant corporation to the notice served upon it, and the plea to the jurisdiction, should have been sustained.

[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2145; Dec. Dig. § 531;* Indictment and Information, Cent. Dig. §§ 9-23; Dec. Dig. § 3.*]

(Additional Syllabus by Editorial Staff.)

2. Corporations (§ 531*)—Criminal Prosecutions—Necessity for Indictment—"Indictment"—"Special Presentment."

In Pen. Code 1910, § 963, authorizing the clerk of court to issue notice to a corporation of the filing of an indictment or special presentment against it, the terms "indictment" and "special presentment" do not include accusation.

[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2145; Dec. Dig. § 531.*

For other definitions, see Words and Phrases, vol. 4, pp. 3551-3555.]

Error from City Court of Brunswick; D. W. Krauss, Judge.

The Progress Club was convicted of failure to register and pay license tax, and brings error. Reversed.

Max Isaac, of Brunswick, for plaintiff in error.

Ernest Dart, Sol., of Brunswick, for the State.

RUSSELL, J. On November 6, 1911, an accusation was brought in the city court of Brunswick, charging and accusing the Progress Club, a social association and corporation, with a violation of Tax Act 1909, § 2, par. 17 (Acts 1909, p. 42); it being alleged in the accusation that the Progress Club failed to register and pay the license tax required in the said paragraph of the Tax Act. The present writ of error contains assignments of error predicated upon exceptions to various rulings of the court during the trial upon certain excerpts from the charge, and upon the conduct and language of the judge in recalling the jury, after they had retired and inquiring into the progress of their deliberations. We deem it wholly useless to deal with any of these exceptions, for the reason that we are of the opinion that the case is absolutely controlled by the jurisdictional point, which was presented by exceptions to the notice served upon the corporation, the plea to the jurisdiction, and the demurrer to the accusation.

Stated in its ultimate terms, the question is: Can a corporation charged with a violation of a penal law be arrested and brought before the court for trial in any case unless an indictment or presentment has been preferred against it by a grand jury? As we conclude that no corporation can be served with the notice prescribed by section 963 of the Penal Code as the only means of service upon those intangible artificial creatures of law known as corporations, unless the charge (of the crime alleged to have been committed) has been made by the grand jury of the county in which the offense was alleged to have been committed, it follows, of course, that the city court of Brunswick, proceeding upon an accusation, was without jurisdiction, and that the proceedings were nugatory. The city court of Brunswick would, of course, have had jurisdiction if the defendant had been charged by an indictment or presentment of the grand jury of Glynn county, and this accusation had been regularly transferred to the city court.

It may be that, if the point had been waived in the trial court, we could not consider it, if here presented for the first time (High v. Padrosa, 119 Ga. 648, 46 S. E. 859), but the plaintiff in error protested the jurisdiction of the court at every proper stage of the trial from the time the case was called upon the docket. We have several times held that for all practical purposes an accusation in a city court supplies the place of, and is governed by the same rules as apply to, indictments and presentments. Only recently we repeated that ruling in the case of Flint v. State, 76 S. E. 1032; and yet in deciding the Flint Case we did not lose sight of our ruling in Goldsmith v. State, 2 Ga. App. 284, 58 S. E. 486, in which we held that, in view of the marked difference in the origin of the accusation and an indictment, an accusation might be amended, though an indictment could not be, nor did we overlook the fact that the provisions of section 388 of the Penal Code expressly require as to certain offenses, that the charge shall originate with the grand jury, and not otherwise. Penal Code, §§ 385, 386, 387.

It was argued with some force, and it is perhaps true, that the same reasons which influenced the General Assembly in requiring as to the offenses mentioned in sections 385-387, that the charge shall be made by the grand jury, may have been considered by the General Assembly in the adoption of section 963. Inasmuch as the General Assembly was licensing "locker clubs" as a revenue measure, it may be that it can be implied that it remitted to the grand jury, who exercise a supervision of the county finances, the sole duty of inquiring as to whether or not such clubs had complied with the law, and of instituting proceedings in case they had failed in this respect, and at the same time intended to protect clubs complying with the regulations from personal prosecutions that might be ill advised or based upon whim or caprice. This was undoubtedly the reason for expressly restricting prosecutions for opprobrious words and abusive language, and similar offenses, to the initiative of the grand jury. But a court, as such, cannot consider the wisdom of a law. It can only enforce it as it is written, and criminal laws must always be strictly construed in favor of the accused.

It may be that there is no substantial reason why a criminal proceeding against a corporation should not be begun by an accusation in a city court, but in the enforcement of the criminal law the statement of a definite mode of procedure excludes the employment of any other method. Section 5 of the act of 1909 (Acts 1909, p. 61) provides that "any person failing to register with the ordinary, or having registered, fails to pay the special tax as herein required, shall be liable to indictment for misdemeanor, " and on conviction shall be punished as therein prescribed. In our judgment the offenses thus denounced can only be punished after indictment by the grand jury; and consequently a notice given in compliance with the provisions of Penal Code, § 963 (which is also confined to cases against corporations), cannot have a wider scope. In section 963 it is provided that "whenever an indictment or special presentment against a corporation doing business in this state is returned, or filed in any court in this state having jurisdiction of the offense, the clerk of said court shall issue an original and copy notice to the defendant corporation of the filing of such indictment or special presentment, which copy notice shall be served by a sheriff, " etc. While it has been uniformly held that a corporation may be punished for any violation of the criminal law which it may commit through any of its agents (Southern Express...