Godbee v. State
| Decision Date | 15 April 1914 |
| Docket Number | 256. |
| Citation | 81 S.E. 876,141 Ga. 515 |
| Parties | GODBEE v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The discretion of a trial judge in overruling a motion for continuance will not be disturbed unless abused.
The acts of a de facto officer are valid in so far as they affect the rights of the public and of third persons having an interest in the acts performed by such officer.
(a) The legality of such acts, or the title of such officer, cannot be collaterally attacked in a proceeding to which he is not a party.
(b) Accordingly, where a solicitor general was elected as such of a given judicial circuit, and during his term of office the Legislature passed an act transferring one of the counties of his circuit to another judicial circuit, and authorizing him to discharge the duties of solicitor general in the county so transferred, during the remainder of his term, and while so acting he wrote and signed an indictment as solicitor general and presented it to the grand jury, who returned it into court as true, the indictment will not be held void on demurrer filed by the defendant, on the ground that the solicitor general, who drew and signed it, had no authority of law for so doing, but that the solicitor general of the circuit to which the county was added was the only officer qualified to draft and sign indictments in that judicial circuit, unless he was disqualified or absent.
(c) Nor will it be held that a grand jury sworn by the solicitor general first mentioned in the preceding note was without authority to perform the functions of a grand jury.
The charges complained of, which are set out in the third fourth, fifth, and sixth divisions of the opinion are not erroneous, for the reasons therein given.
The trial judge is a trior as to the competency and disqualification of jurors under the evidence, on the question of bias and prejudice, and his discretion will not be disturbed unless manifestly abused. There was no abuse of discretion in this case.
Where on the trial of one for murder, the evidence authorized a charge of voluntary manslaughter, which was given, and did not authorize a charge on involuntary manslaughter, it is not cause for a new trial that the court charged the jury "If there is any manslaughter in this case at all, it is voluntary manslaughter," when this charge is taken in connection with the charge on the subject of voluntary manslaughter.
The following charge was not erroneous for any reason of which the defendant can complain: "I charge you, in that connection, that a person shall not be found guilty of any crime committed by misfortune or accident, where it satisfactorily appears that there was no evil design or intention, or culpable neglect."
The evidence was sufficient to support the verdict.
Error from Superior Court, Jenkins County; H. C. Hammond, Judge.
Mrs Edna Godbee was convicted of murder, and brings error. Affirmed.
F. H. Saffold, of Swainsboro, Jas. A. Dixon, Chas. G. Reynolds, and G. C. Dekle, all of Millen, Y. E. Bargeron, of Springfield, and Jas. K. Hines, of Atlanta, for plaintiff in error.
R. Lee Moore, Sol. Gen., of Statesboro, A. S. Anderson, of Millen, W. H. Davis, of Waynesboro, and T. S. Felder, Atty. Gen., for the State.
Mrs. Edna Godbee was indicted for the murder of Mrs. Florence Godbee. On the trial of the case, the jury returned a verdict finding the prisoner guilty and recommending that her punishment be imprisonment in the penitentiary for life. The defendant made a motion for a new trial, which the court overruled, and she excepted.
1. When this case was called for trial in the court below, the defendant made a motion for a continuance, which was overruled, and the defendant excepted pendente lite. The main grounds insisted on were that the homicide was of recent occurrence, and that her counsel had not had sufficient or reasonable time to prepare for trial; on account of absent witnesses; and also that, on account of "various and varied criminal acts happening in Jenkins county within a few days of the trial, a state of high public sentiment exists, and rumors that, if somebody was not convicted, there was no telling what would become of the county." It appears from the record that the homicide occurred on August 18, 1913, and the motion for a continuance was made on September 11, 1913. In the meantime the defendant had consulted with local attorneys and employed counsel from another county to represent her. It is insisted that on account of other engagements the counsel from outside the county did not have time to properly prepare the defendant's case for trial. It does not appear from the motion who the absent witnesses were (except one), and whether they were within the jurisdiction of the court, or that they had been subp naed; nor does the motion set forth in detail the evidence these witnesses would have given had they been present. The record bears testimony that the defendant was ably represented at the trial. All applications for continuances are addressed to the sound legal discretion of the court (Civil Code, § 5724), and it does not appear that its discretion was abused in overruling the motion for a continuance.
2. A demurrer to the indictment was filed in this case on the following grounds: (a) Because R. Lee Moore, the solicitor general who prepared the indictment for the consideration of the grand jury, is not the solicitor general of Jenkins superior court, and has no right or authority to act as solicitor general, for the reason that he is the solicitor general of the Middle judicial circuit of the state, and is not the solicitor general of the Augusta judicial circuit, in which Jenkins county, where the indictment was prepared and found true, now is; that the proper officer, and the only one who could give the indictment legal validity, is A. L. Franklin, the only elected and qualified solicitor general of the Augusta circuit, of which Jenkins county forms a part. (b) That the indictment is void, because the grand jury finding the indictment true amounts to no grand jury, for the reason that the oath administered to the grand jury was not administered by any legal or authorized officer, nor by any person duly and legally appointed by the judge of the court as solicitor general pro tem., or for the special purpose of acting for the court in administering the oath; and therefore, there being no legal oath administered to the grand jury in finding the indictment true, it was acting without first being duly sworn. (c) Because that part of the act of the Legislature (Acts 1913, p. 64) which provides that R. Lee Moore, solicitor general of the Middle judicial circuit, shall exercise the rights and perform the duties of solicitor general in the county of Jenkins, which is now a part of the Augusta judicial circuit, is void and in violation of paragraph 1, § 11, art. 6, of the Constitution of the state (Civil Code, § 6530), which provides that "there shall be a solicitor general for each judicial circuit whose official term shall be for four years," and that part of the act of 1913 is also void as being repugnant to paragraph 1, § 4, art. 1, of the Constitution of the state of Georgia (Civil Code, § 6391), which reads as follows: "Laws of a general nature shall have uniform operation throughout the state, and no special law shall be enacted in any case for which provision has been made by an existing general law," etc.
This presents the most difficult question in the case. The indictment is not void for any of the reasons assigned. The act of the Legislature of 1913, supra, which transferred the county of Jenkins from the Middle to the Augusta circuit authorized the solicitor general of the Middle circuit "to discharge the duties of said office during said term as though this act had not been passed." The solicitor general who procured and signed the present indictment was therefore acting under authority of the Legislature. The indictment was received in court by the presiding judge of the Augusta judicial circuit. It cannot be said, therefore, that the acting solicitor general was a mere usurper, or that his acts in administering the oath to the grand jury, and in procuring and signing the indictment, were void. He was a de facto officer, and as such his title to the office of solicitor general cannot be collaterally attacked. It does not appear that, after the transfer of Jenkins county to...
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