Davis v. Smith

• Court: Georgia Court of Appeals
• Writing for the Court: POWELL
• Citation: Davis v. Smith, 7 Ga.App. 192, 66 S. E. 401 (Ga. App. 1909)
• Decision Date: 10 December 1909
• Docket Number: (No. 2,216.)
• Parties: DAVIS, Sheriff. v. SMITH.

(7 Ga.App. 192)

66 S.E. 401

DAVIS, Sheriff.

v.SMITH.

(No. 2, 216.)

Court of Appeals of Georgia.

Dec. 10, 1909.

1. Habeas Corpus (§ 113^*)—Writ of Error —Right of Custodian of Prisoner to Review.

While writ of error does not lie in favor of the state in criminal cases, nor in favor of municipalities in prosecutions under ordinances, it does lie in favor of sheriffs, wardens, and other custodians of prisoners, where it is sought by habeas corpus to release from custody prisoners held under criminal charges or convictions.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 105; Dec. Dig. § 113.*]

2. Appeal and Error (§ 671*)—Bill of Exceptions—Dismissal.

Where, in a bill of exceptions, error is assigned upon the court's refusal to sustain a demurrer to the petition and upon other matters depending upon consideration of the evidence, and where, for any technical reason, such as the failure to have the evidence properly briefed, or approved, or verified, the latter assignment of error cannot be considered, the bill of exceptions will not be dismissed; but it presents forconsideration only the error assigned as to the ruling on the demurrer.

TEd. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2871; Dec. Dig. § 671.*]

3. Appeal and Error (§ 613^2-*)—Bill of Exceptions—Certificate—Irregularities.

If the judge's certificate to the bill of exceptions unqualifiedly verifies it, other irregularities in the certificate do not vitiate the proceeding.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2705; Dec. Dig. § 613.*]

4. Appeal and Error (§§ 548, 588*)—Setting Out.Evidence—Method.

Where no motion for a new trial is made, and direct bill of exceptions is taken, and a consideration of evidence is necessary, the plaintiff in error has the choice of setting out a summary of the evidence in the bill of exceptions, or of causing a brief of the evidence to be made, filed, approved, and sent up as a part of the record.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440, 2607-2610; Dec. Dig. §§ 548, 588.*]

5. Habeas Corpus (§§ 4, 30*) — Existence op Other Remedy for Review—Grounds of Relief—Void Conviction—Judgment Without Evidence to Support It._

Habeas corpus cannot be made a substitute for certiorari, bill of exceptions, or other similar remedial procedure, by which errors and irregularities in judgments or convictions are to be corrected. A conviction can be attacked by habeas corpus only when it is void. A judgment, though founded on no evidence, is not void, where the defendant has actually or constructively had his day in court.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. §§ 4, 25; Dec. Dig. §§ 4, 30.*]

(Syllabus by the Court.)

6. Words and Phrases—"Trial."

The word "trial" in a limited sense relates only to the examination and determination of issues of fact, but in a broader sense includes hearing and determining of issues, whether of law or of fact (citing 8 Words and Phrases, 7095).

[Ed. Note.—For other definitions, see Words and Phrases, vol. 8, pp. 7095-7103; vol. 8, p. 7821.]

Error from City Court of Wrightsville; J. L. Kent, Judge.

Habeas corpus by T. L. Smith against L. Davis, Sheriff. Judgment for petitioner, and the sheriff brings error. Reversed.

A. L. Hatcher and Wm. Faircloth, for plaintiff in error.

B. H. Moye and E. L. Stephens, for defendant in error.

POWELL, J. 1. That sheriffs, wardens, and other custodians of prisoners may maintain writ of error to review judgments in habeas corpus cases releasing prisoners is well settled in this state. Such cases are in no true sense criminal cases. Hendley v. Adams, 129 Ga. 518, 59 S. E. 227; Livingston v. Livingston, 24 Ga. 379, 383. See, also, Ex parte Tom Tong, 108 U. S. 556, 2 Sup. Ct. 871, 27 L. Ed. 826; United States v. Sanges, 144 U. S. 321, 12 Sup. Ct. 609, 36 L. Ed. 445; Henderson y. James, 52 Ohio St. 242, 39 N. E. 805, 27 L. R. A. 290.

2. As to the matters stated in the second headnote, see Sizemore v. Woolard, 3 Ga. App. 261, 59 S. E. 833, and National Broadway Bank v. Denny (Sup.) 65 S. E. 412.

3. As to the propositions stated in the third headnote, see Starling v. State, 5 Ga. App. 171, 62 S. E. 993. The question is also fully discussed in Bailey v. Guthrie, 1 Ga. App. 350, 58 S. E. 103, in which attention is called to the fact that the earlier cases of Gresham v. Turner, 88 Ga. 160, 13 S. E. 946, Lovingood v. Roberts, 89 Ga. 417, 15 S. E. 495, and Holland v. Van Beil, 89 Ga. 223, 15 S. E. 302, were abrogated by statute. See Pusey v. Sweat, 92 Ga. 809, 19 S. E. 816, Gregory v. Daniel, 93 Ga. 795, 20 S. E. 656, and Scott v. Whipple, 116 Ga. 214, 42 S. E. 519.

4. Prior to 1889, where no motion for new trial was made, it was necessary to incorporate the evidence in the bill of exceptions, or to have it attached as a verified exhibit thereto; but now, by the act of 1889 (Civ. Code 1895, § 5529), the plaintiff in error may cause "a brief of so much of the evidence as is necessary to a clear understanding of the errors complained of approved by the judge, and made a part of the record and sent up by the clerk as a part thereof, rather than have the same incorporated in the bill of exceptions." Compare Johnson v. Gleaton, 4 Ga. App. 383, 61 S. E. 493. The motion to dismiss, being controlled "by the propositions above ruled, is overruled.

5. This is a habeas corpus case. The petition for habeas corpus, brought by Smith, alleged that he was held by the sheriff of the county and illegally restrained of his liberty under an arrest by virtue of a judgment and sentence of the board of commissioners of roads and revenues of Johnson county, sitting as a road court. A copy of the sentence is set out. In the petition he asserts that the restraint is illegal, and the judgment and sentence are void, for the following reasons: "Because said sentence and judgment are based upon no evidence, that no trial was had or given petitioner, that not a word of evidence was introduced or heard or offered by and before said commissioners to prove petitioner to be a road defaulter. Because petitioner was present in court when said case charging him with being a defaulter was called, that he announced ready for trial, pleaded not guilty, and demanded a trial, and said commissioners then and there rendered and imposed the above sentence against petitioner, which was done without the hearing or introduction of one word or scintilla of evidence to show him guilty of being a road defaulter. Because said sentence deprives him of hisliberty * * * without due process of law. Because, while petitioner was present when said Judgment and sentence was rendered, same was rendered as by default, and without a trial; that said commissioners refused to try petitioner, refused to, submit and did not submit evidence to prove him guilty; that petitioner cannot be subjected to penal servitude in the chain gang without being given a trial and heard and allowed to defend himself; that he is not called on to defend himself until he is given a trial and until the prosecution or commissioners have by competent evidence shown him to be prima facie guilty, which was not done." Together with his response to the writ, the sheriff filed a demurrer, setting up that the application for habeas corpus showed no legal reasons for its issuance. The court overruled this demurrer.

Habeas corpus, it must be remembered, cannot be made a substitute for certiorari, writ of error, or...