Daniels v. Towers

• Decision Date: 01 November 1887
• Citation: 7 S.E. 120,79 Ga. 785
• Parties: DANIELS v. TOWERS.
• Court: Georgia Supreme Court

7 S.E. 120

79 Ga. 785

DANIELS v. TOWERS.

Supreme Court of Georgia

November 1, 1887

Syllabus by the Court.

After a judgment of conviction for felony has been affirmed by the supreme court on writ of error brought by the convict, the legality of his conviction cannot be drawn in question by a writ of habeas corpus sued out by him or by another person in his behalf, save for the want of jurisdiction appearing on the face of the record as brought from the court below to the supreme court. Such affirmance implies that he was tried by a court of competent jurisdiction, legally constituted, and nothing to the contrary can be shown otherwise than by inspection of the record.

Any judge of the superior court of the state is competent to preside on the trial of any case, civil or criminal, in the superior court of any county.

Error from superior court, Fulton county; M. J. CLARKE, Judge.

Wimbish & Walker, for plaintiff in error.

C. D Hill, Sol. Gen., for defendant in error.

BLECKLEY C.J.

The petition for habeas corpus was filed by the mother of George Daniels in behalf of her son. The substantial facts appearing upon the face of it are that, at the superior court held for Fulton county, at the September term, 1885, George Daniels was tried and convicted for the offense of burglary and sentenced to the penitentiary. The judgment of conviction came to this court by writ of error sued out by him, and was affirmed. The trial took place before Judge RICHARD H CLARKE, judge of the Stone Mountain circuit, and he, as judge of that circuit, presiding, passed sentence upon the convict. The petition alleges that while he was conducting this trial in the basement of the court-house, Judge MARSHALL J. CLARKE, judge of the Atlanta circuit, was presiding in the superior court, with a jury regularly impaneled, in the trial of civil causes. The point is made that Judge RICHARD H. CLARKE, under these circumstances, had no power to proceed in a case of felony in the basement of the court-house, and that the jury serving with him was not a legal jury, inasmuch as there was another jury in the court-room above doing service in presence of Judge MARSHALL J. CLARKE. It is not alleged that the superior court of Fulton county had no jurisdiction of this offense, but the allegation is that Judge RICHARD H. CLARKE had none.

1. The constitution of the state does not confer any jurisdiction over the trial of criminal cases upon the judge of any superior court. Exclusive jurisdiction of all felonies is in the superior court. Section 5137, Code. There is a broad distinction between the judge and the court. If a writ of error had come here founded upon jurisdiction exercised by Judge CLARK merely as a judge, it would have presented altogether a different matter for review to that which was reviewed at the prisoner's instance. The question was directly made in the case of Dunn v. State, 2 Ark. 229, and, it appearing that the judge who presided, although a judge, was not presiding in the court, but at a special term appointed without authority of law, the appellate court ruled that the appeal could not be entertained; that the supreme court had no jurisdiction to review the decision of the judge made in such a case, unless he was is presiding in the court; that it was the court, and not the judge, that had jurisdiction. The writ of error having been entertained as one to the superior court, it follows that there has been an adjudication that the indictment for burglary was well tried by the superior court of Fulton county. That decision was the result of a writ of error brought by the convict himself, and we hold that he cannot be heard to controvert it upon a writ of habeas corpus; nor can any other person in his behalf. In McMillan v. Nichols, 62 Ga. 36, a distinction was taken between the judge and the court, and it was there held that exception to the judge's competency to preside in a given case should be taken at the trial, and that a judgment rendered by him, whether competent or not to preside in the case, was not void, but was the judgment of the court, and not of the judge; and if the court had jurisdiction, and the judge presiding exercised it, it was sufficient. See, also, Small v. State, 63 Ga. 386. In Griffin's Case, Chase, Dec. 369, an attempt was made to call in question upon a writ of habeas corpus the competency of a judge in Virginia to be a judge and to preside in a court. Chief Justice CHASE ruled that no such inquiry could be entered into; that upon a writ of habeas corpus it would not be investigated whether a judge de facto who presided in the court was competent to preside or not. To the same effect, we think, is the text of Wharton, in Whart. Crim. Pl. §§ 995, 996. The general principle is, as ruled in Rice v. Carey, 4 Ga. 558, which was in relation to a bill of review, that after a final determination by a court of last...